Bringing a judicial review against the government was never on my bucket list. Yet there I was in May, a happily retired former deputy chief medical officer, sitting in Court 76 of the Royal Courts of Justice watching the barrister for campaign group JR4NHS engage the platoon of lawyers employed by the Secretary of State for Health and Social Care Jeremy Hunt and NHS England. We were there to challenge plans to introduce Accountable Care Organisations (ACOs) in the NHS.

Former colleagues, who had known me as a bit of an apparatchik, preferring compromise to confrontation, were quietly astonished, as privately was I at times. My only post-retirement involvement in the NHS had been an all-consuming, but doomed attempt to persuade the LibDems to abandon the Lansley reforms. I watched with resignation as the mess predictably unraveled, compounded by the icy hand of austerity. Never again would I involve myself in NHS campaigning; I had done my bit for 40 years and there were many others younger and more energetic, to continue the good work.

So what was it about Accountable Care Organisations that roused me to join three seasoned campaigners—Allyson Pollock, Colin Hutchinson, Sue Richards—at the judicial barricades five years later? One of the reasons that the NHS enjoys huge public support is that it represents a simple concept, that people can understand. It is about much more than being “taxpayer funded and free at the point of delivery.” People identify with their local hospitals and general practices and the staff who run them; there is a huge reciprocal sense of ownership and support.  

The very least we should expect from government is that when it wants to make major changes to our NHS it sets out clearly what it proposes. It was the absence of this basic honesty, the obfuscation and evasion that still continues, that I felt had to be challenged.

The issue of ACOs cuts to the heart of how our public services are administered—whether they are run as relatively simple, open, and accountable services primarily for the public good, or whether they are run in an increasingly complex commercial way, with the ability to extract profit a significant driving force, and decision-making increasingly concealed from the public and their representatives.  

When our legal action began in December last year, ACOs were the flagship in the government’s Five Year Forward View for the NHS.  They were, in Simon Steven’s words to the Public Accounts Committee “pretty big stuff,” intended to “effectively end the purchaser-provider split, bringing about integrated funding and delivery for a given geographical population.” The plan was to get 6-10 ACOs (covering more than 10% of the NHS) up and running in advance of any public consultation or Parliamentary scrutiny.  

Our challenge, boosted by the involvement of Professor Stephen Hawking in the last few months of his life, alerted MPs to the potential dangers of this initiative and forced the government to accept that consultation must precede the creation of the first ACOs. The Health Select Committee examined the issue and has recommended “that ACOs, if introduced, should be NHS bodies and established in primary legislation.” But through all this, the policy clarity, conceded as necessary back in January, is still absent. Why this ongoing reluctance to provide a clear detailed statement of ACO policy, not least to the High Court and the Health Select Committee?

Is this because a proper consultation document would have to explain that ACOs do not have to be public sector bodies? Because ACOs are to be established by a commercial procurement process, they can be partnerships that include profit seeking private health and care providers, insurance and property companies. Manchester and Dudley, the two current frontrunner ACOs, may be NHS based, but five minutes on the internet highlights other vanguards which make great play of their private sector partnerships.

However, instead of policy facts and debate, we have had a smokescreen of anecdotes about the benefits of integrated care, something no-one disputes, from senior clinicians and independent think tanks.

This dishonesty at the heart of policy presentation has been shameful. The clear and present danger posed by the original ACO initiative was that it could import organisations focused on profit making into the heart of NHS decisions about who provides what, and at what cost to patients and families. This is not something to be glossed over; commercialisation has already left the NHS an ethical shadow of the original vision that commands so much public enthusiasm.  

Mr Justice Green has now pronounced ACOs, in the reduced form presented to the court, as a legal option that can be consulted on. Hopefully this consultation will trigger proper debate, including on the wisdom of making the whole of a population’s health and care needs the subject of 10 year commercial contracts, given our experience with the Private Finance Initiative and Carillion.  

Transparency and honesty in NHS policy making still seem worth fighting for.    

Graham Winyard retired in May 2007 from a career in public health and medical management that included six years as medical director of the NHS in England. He is currently treasurer of Chithurst Buddhist monastery.

Competing interests: None further declared.