Anjna Khurana v North Central London Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 23 February 2022 |
| Neutral Citation | [2022] EWHC 384 (Admin) |
| Docket Number | Case No: CO-1752-2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 384 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Hill
Case No: CO-1752-2021
and
Adam Straw QC and Leon Glenister (instructed by Leigh Day) for the Claimant
Fenella Morris QC and Jennifer Thelen (instructed by Hill Dickinson) for the Defendants
Susanna Rickard (instructed by Mills & Reeve) for the Interested Parties
Hearing dates: 1 and 2 February 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a claim for judicial review of a decision by the North Central London CCG (NCL) on 13 January 2021 to authorise a change in the control of the holding company of AT Medics Ltd. AT Medics Ltd has been commissioned by NCL to provide primary care services through GP practices in north central London.
The Claimant is a patient at one of the relevant GP practices. She is supported in her claim by Keep Our NHS Public (KONP). KONP is a non-party political organisation campaigning against privatisation and underfunding of the NHS.
The claim, based on four grounds, was issued on 17 May 2021. Permission was refused on the papers. The Claimant did not renew the application for permission in relation to the fourth ground. On 12 October 2021, after an oral hearing, permission was granted on the other three grounds by Richard Hermer QC sitting as a Deputy High Court judge.
The Claimant's grounds are, in summary, that (1) NCL misdirected itself in various respects as to the approach it should take to the decision and therefore excluded from its consideration important information; (2) NCL failed to obtain any information about the financial stability of the companies to whom it was proposed control be transferred; and (3) NCL failed to adequately consult or otherwise involve patients and other stakeholders in the decision to authorise the change in control.
The Defendants resist the claim on the basis that (1) there was no misdirection as alleged and the Claimant has pointed to no material which NCL irrationally excluded from its decision-making; (2) NCL relied on an adequate financial due diligence exercise in reaching its decision; and (3) there was sufficient involvement of the public in the decision-making process, whether viewed against the requirements of policy or the common law. The Defendants also argue that if any of the grounds are found to have merit, relief should not be granted, on the basis of section 31(2A) of the Senior Courts Act 1981 and/or the court's general discretion to decline relief. The Claimant submits that there is no basis to refuse her relief.
At the hearing the Claimant was represented by Adam Straw QC and Leon Glenister, the Defendants by Fenella Morris QC and Jennifer Thelen and the Interested Persons by Susanna Rickard. Ms Rickard addressed certain factual matters in writing, but otherwise aligned herself with the legal submissions made by Ms Morris. I was greatly assisted by the written and oral submissions from counsel and by their agreement of a list of issues.
Professor Sue Richards, a member of Islington KONP and the KONP national executive committee, provided witness evidence in support of the Claimant's claim. The Claimant also relied on her own witness evidence and that from Anna Dews (her solicitor at Leigh Day).
The Defendants and Interested Parties relied on witness statements from Paul Sinden (NCL's Chief Operating Officer), Ian Bretman (Lay Member of NCL's Governing Body), Allan Ruan (Head of Digital at NHS North East London Commissioning Support Unit, which provides hosting and technical support for NCL's website), Richard Parker (solicitor at Hill Dickinson LLP) and Elizabeth Perry (Interim Chief Executive Officer for Operose Health Ltd (OHL) and Operose Health Group Ltd (OHGL)).
The factual background
The parties
The Claimant has been a patient at Hanley Primary Care Centre since 2015. She is a local councillor for the area in which the practice is situated.
The Second Defendant, known as NHS England, delegates powers to Clinical Commissioning Groups (CCGs) throughout England.
The First Defendant, NCL, is the CCG for north central London.
AT Medics Ltd contracts with CCGs to provide primary care services in and around London. It does so through 37 GP practices across 49 sites, serving around 375,000 patients. It has been a provider of primary care services since 2004. It is a for-profit legal entity, as is usually the case for those entities which contract for the provision of GP services.
AT Medics Ltd holds eight Alternative Provider Medical Services (APMS) contracts with NCL, providing primary care to around 57,000 patients in north central London through a series of GP practices, one of which is Hanley Primary Care Centre.
AT Medics Ltd is wholly owned by AT Medics Holdings LLP. Until 10 February 2021 AT Medics Holdings LLP was wholly owned by six GP directors and their spouses.
After that date, as a result of the decision under challenge dated 13 January 2021, AT Medics Holdings LLP became controlled by OHL. OHL is directly owned and controlled by MH Services International (UK) Ltd. This is ultimately controlled by a US based company, Centene Corporation (Centene) via two further holding companies.
OHL is one company within OHGL, which is an established provider of NHS community and GP services with over 7 years' experience in the field.
Ms Perry's evidence was that OHL has complete autonomy over its strategy and annual business objectives. Its business functions are separate from those of Centene. Centene has provided working capital to OHL and OHGL as is commonly the case with holding companies, but “has, and continues to have, no influence and/or involvement in the day to day operation of AT Medics. Day to day decisions about the management and delivery of primary care under the APMS contracts held by AT Medics Limited are made by the executive team at AT Medics Limited”.
The Claimant remained concerned about the level of control Centene has over OHL, pointing to the fact that the directors of OHL are Ms Perry, Centene's President and Chief Operating Officer, its Senior Vice President and its Vice President.
AMPS contracts
The APMS Directions 2020 (as amended) set out mandatory provider conditions and contractual terms for APMS contracts. The contracts are in a standard form drawn up by NHS England.
The contracts are very prescriptive. They establish the essential medical services a general practice must provide to its patients. They set the relevant quality standards for premises and workforce and the requirements for inspection and oversight. They outline the key policies relating to issues such as indemnity, complaints, insurance, clinical governance and termination of the contract. A provider cannot change the terms of the contract or how patients access services under it without the commissioner's written and signed agreement.
A key feature of APMS contracts is that they are time limited, meaning that they must be put out to public procurement regularly. Commissioners have a range of “levers” to monitor the services provided under APMS contracts. These include various Key Performance Indicators (KPIs), the CCG's ability to trigger a full performance review of a practice and the CCG's right to decide not to extend contracts once their terms expire.
The parties to APMS contracts are not required to include a clause in the contract relating to a change in control in respect of a provider. However, the parties in this case chose to include such a clause, which is in standard form, as follows:
“ 54 Sub-contracting and Change of Control …
54.3 Save in respect of a public limited company listed on an internationally recognised exchange the Contractor shall not undergo a Change of Control without the prior authorisation of the Commissioner and subject to such conditions as the Commissioner may impose…”
NCL's Primary Care Commissioning Committee (PCCC)
The decision under challenge in this case was made by NCL's PCCC. This is a committee of NCL's Governing Body. It exercises the primary care commissioning functions delegated to NCL by the Second Defendant.
PCCC meetings take place bi-monthly or as otherwise agreed by the Committee. The dates of PCCC meetings are set at the start of each year and listed on its website within NCL's website. The agenda and papers for the following meeting are made available a week before each meeting.
The PCCC's Terms of Reference (ToR) include the following relevant features:
Paragraph 4.2: The PCCC comprises the following voting members: (i) a Governing Body clinician; (ii) the Governing Body Registered Nurse; (iii) an independent GP; (iv) three Governing Body Lay Members; (v) the Chief Operating Officer; (vi) the Director of Quality and Chief Nurse; and (vii) a director of finance.
Paragraphs 5.2–5.2: The following shall be invited to PCCC meetings as standing (non-voting) attendees: (i) up to two community Members; (ii) Primary Care Contracting and Commissioning Team representative(s); (iii) a Public Health representative from a Health and Wellbeing Board; (iv) Healthwatch representative(s); (v) representative(s) from the...
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