HSJ Catch Up: Judicial review and the Kernow climbdown

NHS England loses HIV drug judicial review 

On Tuesday NHS England lost a judicial review about whether it has the power to commission the preventive HIV drug pre-exposure prophylaxis (PrEP).

The national body said it could not consider funding PrEP – which involves HIV-negative people at risk of acquiring the disease through unprotected sex taking an antiretroviral drug to avoid getting infected – because it did not have the legal power to commission it. NHS England claimed the responsibility rested with local authorities.

The National Aids Trust, which lodged the judicial review, thought differently. So did the Local Government Association, which represented councils as an interested party in the case.

Mr Justice Green judged that NHS England had “erred” in deciding it had no power or duty to commission the drug.

NHS England is appealing the decision, and even if that appeal fails the drug will still have to be weighed up against other treatments in a re-run of NHS England’s “prioritisation process” to determine whether it is sufficiently cost-effective to deserve funding.

The decision is highly significant. It could result in up to nine treatments which were provisionally approved for commissioning being displaced if PrEP is judged to represent better value for money.

The judgment brings greater clarity to the contested borderline between NHS England and local authorities, which was created by the shifting of responsibility for public health to the latter in the Health Act 2012.

Concerns over speed of pathology consolidation 

Trust chief executives have received two missives in as many months from NHS Improvement, instructing them to draw up plans for consolidating pathology and back-office services.

The provider sector is in dire financial straits. NHS Improvement has identified consolidation of these services as quick wins, which it hopes will make a significant contribution to efforts to get the sector deficit down to a manageable £250m by the year end.

However, the tight turnaround deadline for proposals has drawn criticism. The Association for Clinical Biochemistry and Laboratory Medicine accused NHS Improvement of imposing a “dangerously short timescale”, and claimed trusts were being “railroaded into consolidation without proper consideration for where pathology is now in terms of efficiencies and cost effectiveness”. The Royal College of Pathologists added that it was a “really high risk approach”.

Kernow CCG to revisit £396k spending on interim director

Last week HSJ reported how Kernow CCG had been allowed to spend £396,000 on a new interim turnaround director this financial year. The CCG said it was required to make the appointment by NHS England, and the national body had been aware of the costs.

The story prompted a lot of criticism of the process and amount of money being spent on interims – one HSJ reader called the amount “obscene”, although others argued that a difficult and unpredictable job required experienced managers who cost more money.

However, on Wednesday it emerged that the CCG will have to revisit the whole “financial package” after NHS England decided it should be subject to new financial controls.

On 21 July (after Kernow’s appointment had already been given sign-off) NHS England brought in a cap on interim pay as part of the financial “reset”, with approval needed for all interim CCG managers paid more than £600 a day.

NHS England sent a statement to HSJ after the original story was published saying the £396,000 appointment “will not continue at that rate” as it would not be compliant with the new controls.

It said that although it had approved the appointment, it did not approve the “financial package” because this was outside its remit at the time. The new controls made the financial element of the appointment part of its remit, so it had subsequently examined the Kernow case.

The CCG will now have to ensure the contract complies with the cap, or return to NHS England for permission to breach it.

Two-year tariff plans published

NHS Improvement and NHS England have published new tariff plans covering a two-year period between 2017 and 2019.

They have again shelved plans for a marginal rate for specialised services. The national bodies previously tried to introduce the measure in the 2015-16 tariff, before providers revolted. The measure was proposed again last year, for the 2016-17 tariff, but was dropped due to delayed implementation of a new currency framework.

The new currency framework, called HRG4+, now looks set to be introduced from 2017-18, but the regulators said they “will not be introducing a marginal rate for specialised services in this tariff”.

How to cut out unwanted variation

A new guide from HSJ and Syncera looks at how reducing variation in healthcare offers both financial savings and the opportunity for trusts to improve care.

It includes a summary of a recent HSJ roundtable, video highlights from the contributors, and case studies from organisations making inroads into the problem of unwarranted variation.

• Read the guide for free