Court of Appeal rejects challenge to payment mechanism for health care services

The Court of Appeal has rejected a legal challenge to the lawfulness of a payment mechanism known as the ‘Whole Population Annual Payment’ (WPAP) under the proposed integrated care provider (ICP) contracts.

The case of Jennifer Shepherd (On Behalf of 999 Call for the NHS), R (On the Application Of) v (1) NHS Calderdale Clinical Commissioning Group (2) Monitor [2018] EWCA Civ 2849 concerned the statutory construction of the pricing provisions of the Health and Social Care Act 2012 ("the 2012 Act").

The draft ICP Contract was developed by the respondents, the National Health Service Commissioning Board ("NHS England") and Monitor, as an alternative to the current model for payment of health care services known as "Payment by Results" ("PbR").

The appellant, who acted on behalf of campaign group 999 Call for the NHS, appealed the dismissal of her claim by Mr Justice Kerr in May this year.

She contended that the proposed change in the payment system from PbR to WPAP was unlawful and would put the quality and safety of NHS services for patients at risk.

The respondents contended that the appellant's claim was premised on an incorrect construction of the pricing provisions of the 2012 Act and the WPAP mechanism would help promote integration and innovation in NHS services.

Mr Justice Kerr held that the WPAP scheme was lawful under the 2012 Act and dismissed the appellant's claim. Ms Shepherd appealed.

Lord Justice Haddon-Cave, with whom the President of the Family Division and Lady Justice Nicola Davies agreed, concluded that Kerr J had been right to hold that there was nothing unlawful about the proposed WPAP scheme.

He also said that the High Court judge had been right to hold that s.115 of the 2012 Act did not require visible prices fixed in advance for each individual episode.

Lord Justice Haddon-Cave therefore rejected the appellant's case on construction of the 2012 Act and, accordingly, dismissed the appeal.

Fenella Morris QC and Rose Grogan of 39 Essex Chambers, together with Iain Steele of Blackstone Chambers, appeared for the NHS.

39 Essex Chambers said: “Now NHS England will have the option, if it chooses, to encourage Clinical Commissioning Groups (CCGs) to enter into a new style of contract with a provider to supply health care services in their area in an integrated model of care.  CCGs will also have the option to pay a single payment to the provider for all of the services they are contracted to provide, instead of paying for each episode of health care treatment given to an individual.”