The High Court dismissed an action for judicial review in the first procurement case when applying the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013, which apply to the commissioning of certain NHS services by NHS England.
In the interim period and prior to a review and new national commissioning exercise, NHS England had refused to fund specialist gamma knife surgery treatments at a facility operated by the claimant.
NHS England was only funding treatments at facilities that it considered to be existing providers as at 1 April 2013. The claimant sought to review that decision, alleging that NHS England had acted in breach of its obligations to act in a transparent and proportionate way, and treat providers equally and in a non-discriminatory way when commissioning NHS Services.
Whilst it was agreed that the claimant had been providing the specialist treatment to individual patients, the issue was whether the particular ad hoc funding arrangements (IFR) precluded the claimant from being treated as an existing provider during the interim period.
The High Court concluded that NHS England had, in accordance with guidance issued by Monitor in April 2014, been wrong to find that the claimant was not an existing provider. However, the High Court found that the defendant's refusal to contract was objectively justified in all the circumstances and did not infringe the relevant regulations.
The High Court also found that to grant the claimant an interim contract would be to give it preferential treatment, and that would then have placed the defendant in breach of the regulations. The High Court concluded that NHS England had not acted unlawfully.
This is an interesting case in light of the ongoing tension and uncertainty around the Public Contracts Regulations 2015 and the NHS Patient Choice Regulations. Watch this space for more case law.