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Change of control approval for GP practices is lawful says High Court

The High Court has dismissed a judicial review challenge to a CCG's decision approving the transfer of 37 GP practices operating in North London to a health services group ultimately owned by Centene, an American 'health insurance giant'.

(see Khurana v North Central London Clinical Commissioning Group and NHS England [2022])

The case was highly charged, with 55,000 members of the public having signed a petition indicating concerns about the transfer, and 76 MPs having tabled an Early Day Motion on the issue.

The challenges were based on the alleged poor financial standing of the UK subsidiary of the US company, ‘serious concerns’ about the operations of the American company, the failure to consult the ‘5 local authority health leads’ (who had described the decision as “a matter of huge public concern”), and generally that the issues considered by the CCG were too narrowly focussed.

Despite these challenges the Court rejected the claim.  It held that the CCG had properly focussed on the foreseeable consequences of their decision, namely the key risks associated with the performance of the GP practices. It had therefore not unlawfully excluded from consideration any particular factor, such as the alleged concerns about the new provider’s suitability.

The Court also decided that the procedures, which the CCG already had in place to publicise and ensure scrutiny of its decision making processes, were sufficient to satisfy its obligation to consult. The fact that the CCG had later acknowledged that it would have been better if it had specifically consulted with the ‘5 health leads’ was not fatal, and the Court reiterated that a challenge will not necessarily succeed ‘simply by pointing out ways in which the consultation could have been better’.

The case illustrates how difficult it can be to successfully challenge decisions of this nature, and will be of interest to all public bodies, but particularly those in the health sector, as well as primary care practitioners, health forums and other public interest groups.

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Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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