Campaigners are awaiting a ruling on a High Court challenge over a US-backed takeover of GP surgeries in London.
The North Central London Clinical Commissioning Group (NCLCCG) and NHS England face a legal challenge against a decision to approve a “change in control” of AT Medics, a provider of NHS primary care services, early last year.
Anjna Khurana, a Labour member of Islington Council in north London, has brought the claim backed by campaigners, who say patients were not properly consulted about the takeover.
Operose Health, a subsidiary of American health insurance giant Centene, took control of the London-based company in February last year, prompting public concern.
Set up in 2004 by six GPs, AT Medics describes itself as the capital’s largest primary care services provider to the NHS in England, caring for more than 370,000 patients across 49 locations in 19 London boroughs.
The NCLCCG holds eight “alternative providers of medical services” contracts with AT Medics, affecting 57,000 patients.
Ms Khurana claims NHS commissioners acted “unlawfully” in failing to take “reasonable steps” to inquire into the financial stability of the new companies and to consider whether to carry out public engagement over its takeover decision.
She also claims the NCLCCG “misdirected itself” by “arbitrarily” excluding factors such as the “unsuitability of Centene”.
Her lawyers said concerns over Centene include it being sued by US states “for allegedly failing to provide adequate medical care under insurance contracts” and “for overcharging the states’ Medicaid programmes”.
It has also been “fined for not providing enough clinicians under Obamacare contracts”, it was alleged.
Lawyers claimed such concerns should have been taken into account by commissioners, adding: “It could rationally have decided that there was a risk that, if Centene Corporation had a controlling interest over it, AT Medics Ltd would act in a similar manner.”
Ms Khurana, whose case has been supported through a crowdfunding campaign, is ultimately seeking to have the takeover approval decision quashed.
She said in a statement ahead of the two-day hearing at the case, which started on Tuesday: “Like everyone else, I want to feel I can rely on my GP to be on my side.
“That is what we get with the NHS. But without my knowledge, my surgery has been sold to a giant American healthcare company, one with a very poor reputation.
“How can that be right? I needed to stand up and make my voice heard. So many people have been in touch to let me know they support me that I know I am not alone.
“We cannot allow this stealth privatisation of the NHS to carry on.”
The NHS commissioners say the claim should be refused, arguing the risks Ms Khurana alleges are “speculative” and highlighting that there have been “no substantial concerns” following the change of control at AT Medics.
In written arguments, Adam Straw QC, for Ms Khurana, said the NCLCCG should have considered the alleged “risk” that Operose Health could “become insolvent” leading to AT Medics being “unable to perform its contractual obligations”.
He claimed commissioners should have also looked at the alleged risk that Operose Health would “seek to divest of unprofitable contracts”, would “overcharge”, or “would fail to perform contractual obligations, in light of the serious allegations that subsidiaries of Centene Corporation had repeatedly done so in the past”.
Mr Straw said concerns about the takeover had previously been raised by 191 councillors, MPs, mayors and assembly members.
This included concerns over an alleged “lack of transparency” and that it might “undermine healthcare services”.
He claimed commissioners had departed from policy guidance by failing to consider stakeholder engagement given the “great and exceptional public interest”.
“There were reasonable grounds to conclude there was a risk that a change of control would lead to AT Medics Ltd failing to perform its contractual obligations, thereby harming services,” he said.
Mr Straw said the issues raised in the case were likely to be relevant in the future “as this type of change in the NHS becomes more common”.
Fenella Morris QC, representing the NCLCCG and NHS England, said in written submissions people were “notified in advance” of a December 2020 meeting where the takeover was to be considered but the meeting was not held in public “due to the Covid pandemic”.
Questions could be submitted in advance through a website and an audio recording was published, meaning “opportunities for public involvement continued to be provided”.
The structure of the Primary Care Commissioning Committee (PCCC) taking the decision also includes representatives from the community, local GPs and lay members, Ms Morris said.
Documents relating to the takeover decision were later published online.
She said that after due diligence, the committee was “correct” to focus on whether the takeover would affect service provision and “identified no basis to withhold consent”.
Ms Morris said it “recognised it could only refuse consent if there were some other good reason to do so” and if it did this could face a legal challenge.
Centene “does not influence” the day-to-day operation of AT Medics, Ms Morris added, branding Ms Khurana’s claims about the company as “speculation” and her concerns over private ownership of the NHS as “political”.
She said lawsuits against Centene in the US were “settled without admissions of liability” and “arose in an entirely different healthcare and regulator system”.
Ms Morris said the fact that Operose Health was “loss making” was “not material” and that financial information shows there is “no financial risk”.
The PCCC secured public involvement “on a general basis by its processes”, she said, with it acknowledging the concern and criticism.
She said it was “just not right” to say 57,000 patients were “at risk” because of the takeover, with “a high standard of care” continuing to be provided.
A small group of campaigners protested outside the Royal Courts of Justice during two days of legal argument before Mrs Justice Hill this week.
The judge is expected to give her ruling at a later date.
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