The move came after it emerged that NHS managers were considering trying to recover up to pounds 10bn from cigarette manufacturers for the cost of treating ill smokers. But the Department of Health said such legal action would not be allowed under Section 1(2) of the NHS Act 1977 unless new legislation was passed - something the Government is not intending to do.
That position was immediately attacked by the British Medical Association (BMA), which questioned the accuracy of the Government's legal advice as well as Labour's will to tackle the tobacco companies.
Dr Bill O'Neill, the ethics and science adviser of the BMA, said: "It is certainly not the only interpretation of the legislation... The Government is understandably reluctant to take on the tobacco companies and perhaps does not want NHS trusts to be seen to be 'spending public money' on this legal battle."
Section 1(2) of the Act deals with the NHS's duty to provide health care. It states: "The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly for, by or under any enactment." Only one law has ever been passed to allow for such charges - the Road Traffic Act 1988.
The heads of several NHS trusts and health authorities are also understood to doubt the validity of the Department of Health's legal position.
The NHS Confederationwrote to members last month asking for their "views in relation to the question of litigation" by 24 February. The letter, a copy of which was obtained by the anti-smoking group, ASH, is only the first stage in a process which, even if it went ahead, could take years.Reuse content