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Rationing legal cases will ‘kill’ commissioning groups, says DH adviser

Exclusive GP commissioners will face potentially financially devastating judicial reviews launched by patients challenging their prescribing and rationing decisions, a Department of Health legal advisor has told Pulse.

Health law experts warned the inevitable rationing decisions taken by GP commissioners in order to manage consortia budgets mean patients that challenge the decisions in the courts could leave consortia facing huge legal bills that could ‘kill' consortia.

They also warn GPs will find it even harder to carry through rationing decisions, due to complications with the patient-doctor relationship.

Professor Chris Newdick, a member of the Department of Health's Medicines Commission and adviser, said the abolition of PCTs and the lack of appropriate legal support meant clinical commissioning groups were vulnerable to judicial reviews.

Professor Newdick told Pulse: ‘In exactly the same way that PCTs are currently the subject of judicial review actions so will GPs be.'

‘Commissioning is always subject to challenge and if the processes are not managed appropriately then GPs will have extreme difficulty in defending their decisions.'

‘It is not only necessary to establish in law that your conclusion is reasonable, you also have to be able to show that the process you went through to reach your decision was proper and that all factors were given their proper weight.

He added: ‘It is a certainty that CCGs will lose cases, PCTs still do even after all their years of experience. Losing such an expensive action would all but kill a CCG because it would have to absorb the resources that would otherwise go into patient care.'

Professor Newdick, a barrister and professor of health law at the University of Reading, said health secretary Andrew Lansley had ‘underestimated the difficulty of this job', and added. ‘GPs have not done the rationing job in the past in the same way. Although the NHS Future Forum has said that GPs need more skills I don't think they will have the training they need.'

Ben Troke, a partner at Browne Jacobson Solicitors who specialises in health law, also warned GPs ‘lack experience of accountability forpublic decision making.'

He said: ‘I think CCGs may find it even harder in future to deal with these cases than PCTs do at the moment. There's a real threat to the doctor-patient relationship.'

A Department of Health spokesperson said: ‘GPs are already responsible for making decisions about the use of NHS resources, for example when they refer patients to specialists or hospitals.'

‘CCGs will have the freedom to make commissioning decisions that they judge will achieve the best outcomes within the financial resources available to them.'