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Health and Social Care Update - March 2012

07/03/12

Legal intelligence for professionals in health and social care

This Update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in health and social care work, which have been published in the last month.

If you have been forwarded this update by a colleague and would like to receive it directly, please email Claire Bentley.

  Care   Health and Safety
  Commissioning   Information Law
  Employment/HR   Mental Health
  Estates and facilities   Primary Care
  Finance   Regulation
  Foundation Trusts   General
  Governance  

 

Care

Publications/Guidance
Winterbourne View: update and action needed. This letter sets out out action that needs to be taken forward by NHS bodies and local authorities following the BBC Panorama programme which revealed the systematic abuse of patients within Winterbourne View hospital. It also reminds commissioners of the minimum action that is expected to be taken in order to improve standards at a local level.

Care in crisis 2012. This report reveals that this year spending on older people’s social care in England has fallen by £500 million and the funding gap is growing. It projects that by 2012-2013 the Government would need to spend £1 billion more than this year to stop the situation getting any worse.

Care planning and diabetes. A new edition of the NHS Diabetes Knowledge and Information Repository series has been launched, covering care planning and diabetes. It provides an overview of diabetes care planning and synthesises key policy papers; national body statements; clinical and care guidelines; and key research and evaluation papers.

Transforming end of life care in acute hospitals - The route to success 'how to' guide. This builds on the overarching framework set out in 'The route to success' (2010) which highlighted best practice models developed by acute hospital Trusts, providing a comprehensive framework to enable hospitals to deliver high quality care to people at the end of life. This guide aims to help clinicians, managers and directors implement The route to success more effectively, drawing on valuable learning from the NHS Institute for Innovation and Improvement’s Productive Ward: Releasing time to care series.

The route to success in end of life care: achieving quality in ambulance services. This guide sets out the key role and contribution of ambulance services in achieving high quality care at each step along the end of life care pathway. Whilst highlighting the crucial role of ambulance services, the guide also acknowledges the unique set of challenges and barriers that need to be addressed and overcome.

Social care: fourteenth report of session 2010-12. This report claims that older people are being let down by fragmented care services. It concludes that joined up services are the key to securing better outcomes for older people and other vulnerable groups, and to delivering the required efficiency savings. 

Nursing care bands set for 2012. The annual level of the NHS contribution towards the costs of a place in a care home with nursing for those people assessed as requiring the help of a registered nurse is unchanged for 2012/13.

Developing end of life care practice: a guide to workforce development to support social care and health workers to apply the common core principles and competences for end of life care. This guidance aims to ensure that workers involved in supporting someone who is at the end of their life are properly trained to be able to undertake their work effectively and appropriately. It supersedes the guidance released in 2010: A framework of National Occupational Standards to support common core principles for health and social care workers working with adults at the end of life.

Patient experience in adult NHS services. NICE has published a quality standard and guidance which aims to ensure that patients have an excellent experience of care in the NHS. The quality standard aims to ensure that patients are given the opportunity to discuss their health beliefs, concerns and preferences in order to individualise their care. The guidance promotes person-centred care that takes into account a patient's needs, concerns and preferences.

Guidance for pharmacy staff. This guidance has been produced to help pharmacy staff with some areas of practice. The areas of practice covered are: consent; raising concerns; patient confidentiality; and maintaining clear sexual boundaries.

NICE has developed a number of new clinical case scenarios to help improve and assess users' knowledge of their guidance. The case scenarios are an educational resource that can be used for individual or group learning. This month, they have case scenarios covering their guidance on adult and paediatric epilepsy, self harm and colorectal cancer.

Spirituality in nursing care: online resource. This online resource supports nursing staff to explore the issue of spirituality in an interactive and reflective way that develops self-awareness and highlights implications and considerations for nursing practice. It will aims to be of use to all health care professionals, allowing them to engage with and address important questions about the spiritual aspect of care.

Consultations
The Commission on Improving Dignity in Care for Older People has published its draft report and recommendations for public consultation. The draft report sets out ten key recommendations for hospitals and ten key recommendations for care homes to help them tackle the underlying causes of undignified care, as well detailed recommendations on the changes the Commission believes need to take place across the wider health and social care system. The public consultation will run until Tuesday 27 March and any organisation, individual or member of the public is invited to feed in their views.  

If you wish to discuss any of the items raised in this section please contact Carlton Sadler

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Commissioning

Publications/Guidance
Guidance on varying the 2012/13 NHS Standard Contract one year default contract duration. The 2012/13 NHS Standard Contract was issued with a default duration of one year and will expire on 31 March 2013. However, the relevant SHA Cluster will have the discretion to approve an extended duration up to a maximum of three years. This letter from David Flory gives guidance on the processes to be adopted.

NHS standard contracts for 2012-13. The variations to the NHS Standard Contracts for 2010/11 and 2011/12 are now available. The NHS Standard Contract should be used by commissioners when commissioning acute, mental health and learning disability, community or ambulance Services. These variations will bring these contracts in line with the requirements of the 2012/13 NHS Operating Framework. There is also a letter from David Flory giving guidance on varying the 2012/13 one year default contract duration.

Healthcare public health advice to CCGs. Subject to the Health and Social Care Bill, from 2013-14, CCGs will have access to public health advice, information and expertise in relation to the healthcare services that they commission, provided by local public health teams based in local authorities. This draft guidance aims to help commissioners with local planning in this transition year.

Baseline spending estimates for the new NHS and Public Health commissioning architecture. Provides estimates of how 2010-11 spend by PCTs would be deployed under the new commissioning arrangements proposed in the Health and Social Care Bill. The main data sources are two major collections of financial information from PCTs which have been brought together with information from other sources to provide these estimates of baseline spend. The baseline estimates, which have been uplifted to 2012-13 values, provide emerging Clinical Commissioning Groups and local authorities with the information they need to support initial planning for the commissioning responsibilities they will take on in the future.

Confirmation of Payment by Results (PbR) arrangements for 2012-13. The DH has published confirmation of the arrangements for PbR in 2012-13. The road test of the draft 2012-13 PbR Guidance concluded on 20 January 2012 and a number of changes have been made as a result of this feedback.

Winterbourne View: update and action needed. This letter sets out out action that needs to be taken forward by NHS bodies and local authorities following the BBC Panorama programme which revealed the systematic abuse of patients within Winterbourne View hospital. It also reminds commissioners of the minimum action that is expected to be taken in order to improve standards at a local level.

Safeguarding and quality in commissioning care homes. This guide aims to support NHS and local authority commissioners of care homes to ensure that safeguarding is central to the commissioning process and a primary concern for residential and nursing care home providers. It identifies six guiding principles on safeguarding which seek to increase the protection for those most at risk in society: Empowerment; Protection; Prevention; Proportionate Responses; Partnership; and Accountability. It also has links to the legislative and policy framework.

New organisational models for delivering health and social care. Health and Social Care Partnership South East have published a briefing paper that pulls together information on the development of employee ownership and social enterprises in health and social care. It is written to be of general interest, but is specifically aimed at commissioners interested in stimulating the creation of new forms of organisation as an alternative to direct service provision or conventional outsourcing, and staff who may be interested in setting up some form of employee ownership and/or social enterprise. It provides a handy overview, and has some useful links to other resources and a summary of Government policy in this area.

Consultations
Guidance to support the provision of healthcare Public Health advice to Clinical Commissioning Groups. The DH has issued draft guidance on the healthcare public health advice – also known as the 'core offer' – that is aimed at helping commissioners with local planning in this transition year. The intention is to make it a mandatory requirement for local authorities, from April 2013, to provide this service to clinical commissioning groups, but the detail of the arrangements will need to be planned locally. The core offer follows on from the Healthy Lives, Healthy People White Paper consultation on the funding and commissioning routes for public health. Comments are required by 30 March 2012.

If you require further information about any of the items raised in this section please contact David Owens

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Employment/HR 

Publications/Guidance
Building a people transition policy for Public Health England. Sets out how the principles of the HR Transition Framework, which provides the guiding standards relating to employee movement from 'sender' organisations to 'receiver' organisations, will be used for the transfer and appointment of staff to Public Health England. The detailed HR policies and processes required to transfer, redeploy and appoint staff to posts in the new organisation will be set out in the People Transition Policy (PTP), which will be published later this year.

Equality in our workforce: equality data about the Care Quality Commission's staff. This report looks at staffing statistics relating to age, gender, disability, ethnicity, religion and sexual orientation in CQC. The findings from this report are based on CQC's workforce in September 2011.

Partnership Agreement: An agreement between DH, NHS Employers and NHS Trade Unions. This agreement sets out that outlines the principles of how the partners will work together to promote effective partnership working on the workforce implications of policy at national, regional and local levels. By adopting these principles, all parties agree to recognise and respect each other’s roles and functions, which are distinct but complementary. This document supersedes the 2007 Partnership Agreement.

Compromise agreements and the Public Interest Disclosure Act 1998. This letter from Sir David Nicholson KCB CBE, NHS Chief Executive, is about adequate support being provided to whistleblowers in the NHS and requirements of ‘Health Services Circular 1999/198: The Public Disclosure Act 1998 whistleblowing in the NHS.

Meeting the specific duty to publish equality objectives to help deliver the Public Sector Equality Duty. The Equality Act (Specific Duties) Regulations 2011 (reg.3) require NHS organisations to publish at least one specific and measurable equality objective that they think will achieve the aims of the general equality duty by 6 April 2012, and at least every four years after that. The regulations state that equality objectives must be published in a manner that is accessible to the public. This guidance from NHS Employers helps NHS organisations in preparing their equality objectives ahead of the 6 April 2012 deadline.

Partnership agreement: an agreement between Department of Health, NHS Employers and NHS trade unions. This agreement provides a guiding set of principles for the Department of Health, employers and unions to work together at national, regional and local levels. By adopting the principles set out in the partnership agreement, all parties agree to recognise and respect each other’s roles and functions, which are distinct but complementary.

Language competency: good practice guidance for employers. This document outlines the importance of language competency assessment and aims to provide good practice guidance for employers. It has been produced in consultation with key partners including the European Office, the Department of Health and professional regulatory bodies. It reflects current law under the European Directive 2005/36/EC – recognition of professional qualifications.

Calculators have been developed to enable members of the NHS Pension Scheme to estimate their future benefits and see any changes to their current scheme benefits, under the Government’s proposed new scheme from April 2015. There are separate calculators for Agenda for Change staff and medical and dental staff in the hospital and community health services.

Consultations
Summary of consultation responses: Proposed duty of co-operation. Summaries the responses received for the March 2010 consultation on draft regulations on a proposed Duty of Co-operation that would have placed certain duties on employers, contractors and other designated bodies related to health care workers. The duties would have involved the sharing and providing of information relating to the conduct or performance of a worker who could potentially be a risk to patient safety unless the concern is dealt with locally. The Government has decided not to proceed with developing the regulations because respondents were unconvinced of the need for further legislation in this area.

Bevan Brittan Updates
Indirect discrimination - justification and cost defences. The recent case of HM Land Registry v Benson looked at a cost-based voluntary redundancy situation and whether or not this resulted in indirect discrimination on the grounds of age and sex.  Jodie Sinclair has reviewed this case in detail to assess whether or not such discrimination can be justified and if so, on what grounds.

News Round Up. Alec Bennett looks at some key employment law developments which took place in February, including a delay to the response to the Modern Workplaces Consultation; an increase in statutory and tribunal payment figures; and two recent employment tribunal cases, the first of which looked at the complex area of protection from discrimination for those becoming parents through surrogacy and the second, at post employment victimisation under the Equality Act 2010.

Violent employees: can an employer be vicarious liable? The two cases of Weddall v Barchester Healthcare Ltd and Wallbank v Wallbank Fox Designs Ltd were heard together by the Court of Appeal recently.  Both considered whether employers were vicariously liable for violence committed by their employees in response to lawful requests and instructions.  Gemma Hill looks more closely at the combined case and explains how the different outcomes of the two cases have highlighted the scope of vicarious liability for employers.

If you wish to discuss any of the items raised in this section please contact Julian Hoskins or Sarah Michael.  

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Estates and Facilities

Publications/Guidance
Charitable assets relating to the PCT estate and related assets. This letter is from David Flory trying to establish what 'estates assets' (i.e. land and buildings, equipment, investments and cash) are currently held by or on behalf of PCTs on trust ahead of the proposed abolition of PCTs, so that arrangements can be made in relation to those assets.

Management of SHA and PCT administration estate. This letter sets out the framework for the management of the SHAs and PCTs administrative estates. It explains how future decisions will need to be made in respect of future office requirements for the NHS Commissioning Board and other Arm’s Length Bodies at sub-national and local level. Initially a full audit of all properties that fall into this category is being taken and returns completed by PCTs are to be submitted to the Department by 16th March. There is a moratorium on taking any further administrative or office space until further notice.  The guidance brings the ongoing discussions in relation to the community estate in line with government policy on administrative assets owned by government departments generally.

If you require further information about any of the items raised in this section please contact  Rob Harrison or Mark Calverley.  

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Finance 

Publications/Guidance
Health Committee report on Social Care. The Commons Health Committee has issued a report that considers the issues facing the future of social care, and makes recommendations for consideration by the Government in advance of publication of its White Paper on social care and update on funding. It concludes that older people are being let down by fragmented care services. The funding for NHS care, social care and social housing comes from different sources but apart from a few exceptions like Torbay Care Trust, attempts to join up these funds and to integrate services have been disappointing. It does not believe that the proposals in the Health and Social Care Bill will simplify this process. The committee's central recommendation is that the key to joined up services is joined up commissioning - the Government should place a duty on the new clinical commissioning groups and local councils to create a single commissioning process, with a single accounting officer, and a single outcomes framework for older people’s health, care and housing services in their area. 

Care in crisis 2012. This report reveals that this year spending on older people’s social care in England has fallen by £500 million and the funding gap is growing. It projects that by 2012-2013 the Government would need to spend £1 billion more than this year to stop the situation getting any worse.

NHS Trusts to receive funding support. The DH has announced up to £1.5bn support over 25 years for 7 NHS Trusts with historic PFI arrangements that were unable to demonstrate the necessary long-term financial viability. The hospitals are:
  Barking, Havering and Redbridge NHS Trust
  Dartford and Gravesham NHS Trust
  Maidstone and Tunbridge Wells NHS Trust
  North Cumbria NHS Trust
  Peterborough and Stamford Hospitals NHS Foundation Trust
  South London Healthcare NHS Trust
  St Helens and Knowsley NHS Trust.

To meet the criteria for such support, the shortlist of affected Trusts had to demonstrate that they had met four key tests:
  The problems they face should be exceptional and beyond those faced by other organisations;
  They must be able to show that the problems they face are historic and that they have a clear plan to  manage their resources in the future;
  They must show that they are delivering high levels of annual productivity savings;
  They must deliver clinically viable, high quality services, including delivering low waiting times and other performance measures.

Sustainability in the NHS: health check 2012. This report highlights how sustainability is viewed by leaders in the health service and demonstrates the public’s desire for a more sustainable healthcare system. It also indicates how sustainability can save NHS organisations money as well as saving the environment. 

Personal health budgets and NHS Continuing Healthcare discussion paper. This paper explores personal health budgets for people receiving NHS Continuing Healthcare (NHS CHC). It defines personal health budgets and NHS CHC, and gives more information about the recent Government announcement. It discusses how personal health budgets are relevant to people receiving NHS CHC and how personal health budgets change the NHS CHC pathway. It also goes through some practical considerations and next steps, and gives some useful case studies and Q&As. 

Report of the Office of Health Economics Commission on competition in the NHS. This report recommends careful expansion of competition between providers of NHS-funded health care in England. It finds that competition in the NHS is controversial, but in the right circumstances it can be used to stimulate the provision of better health care than is achieved without competition. Three background reports are also available alongside the final report of the commission. 

Evaluation of the reimbursement system for NHS-funded care. Monitor has published an in-depth, independent and extensive evaluation by PwC of the reimbursement system in the NHS in England. It is the most comprehensive analysis of pricing in the NHS that’s ever been done. The report highlights the vital importance of good quality information which accurately identifies the true costs of providing care. It is the first step in evolving the payment system to make sure it delivers the best possible care for patients and the best possible use of valuable resources. Comments on the report should be submitted by 20 April 2012. 

NHS Foundation Trust Annual Reporting Manual 2011/12. Provides guidance to foundation trusts on producing their annual reports and accounts. 

Quality accounts reporting requirements for 2011-12 and planned changes for 2012-13. The Department of Health and Monitor have jointly written to provide advance notice of likely changes to quality account reporting requirements for the 2012/13 round of quality accounts, following consideration by the National Quality Board about strengthening quality accounts by introducing mandatory reporting against a small, core set of quality indicators. The letter also flags up that NHS acute and mental health trusts will be formally required to have their quality accounts externally audited from this year, 2011/12.  

If you require further information about any of the items raised in this section please contact David Owens

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Foundation Trusts

Publications/Guidance
NHS Foundation Trust Annual Reporting Manual 2011/12. Provides guidance to foundation trusts on producing their annual reports and accounts.

Sector regulation – A short guide to the Health and Social Care Bill. The DH has produced a guide that outlines what providers of NHS-funded services need to know in relation to the regulation regime proposed under the Health and Social Care Bill. It outlines the government’s proposals to introduce a sector regulation regime which will apply to all NHS-funded health services. It also gives an overview of planned legislative changes designed to increase autonomy and strengthen accountability for foundation trusts.

If you require further information about any of the items raised in this section please contact Vincent Buscemi.   

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Governance

Publications/Guidance
NHS Constitution maximum waiting time right for consultant-led non-emergency treatment. David Flory has written to NHS Chief Executives to re-iterate the expected performance on referral to treatment waiting times in 2012/13 and to set out some of the good practice that should be in place to ensure that performance is maintained, and where necessary improves.

If you require further information about any of the items raised in this section please contact Vincent Buscemi.     

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Health and Safety    

Publications/Guidance
Never events list update for 2012/13. The ‘never events’ list has been updated and published with minor amendments to two of the never event definitions. The changes are to ‘never event’ number 18, ‘Transplantation of ABO incompatible organs as a result of error’ and ‘never event’ number 23, ‘Misidentification of patients’. The never events list for 2012/13 sets out the revised list and definitions for use in the NHS in 2012/13.

Medicines security audit results. The Department of Health is asking all NHS acute hospitals to submit results of recent audits of their compliance with published standards for the safe and secure handling of medicines. This is in response to recent concerns about the handling of medicines in hospitals, and to support patient safety. The results of the audits, together with any remedial action plans, should be returned to the Care Quality Commission by 31 March 2012.

National Prescribing Centre (NPC) reports on safe management and use of controlled drugs. The NPC has published three reports commissioned by the Department of Health, concerning the safe management and use of controlled drugs in the ambulance and paramedic sector, in prisons and when privately prescribed. This letter highlights the publication of these reports and the implications that they have for the NHS.

News
Over £100m will be invested in NHS clinical research facilities to develop new treatments to benefit thousands of patients.

The European Commission (EC) has proposed a new Directive to speed up the process by which medicines enter the market. They have suggested that decisions must be taken within 120 days for innovative medicines and 30 days for generic medicines. The current limit is 180 days.

If you wish to discuss any of the items raised in this section please contact  Joanna Lloyd    

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Information Law

Consultations
Call for evidence on the European Commission's data protection proposals. The MoJ has issued a call for evidence on new legislative proposals for data protection that were published by the European Commission on 25 January 2012. The proposals consist of a draft Regulation setting out a general EU framework for data protection and a draft Directive on protecting personal data processed for the purposes of prevention, detection, investigation or prosecution of criminal offences and related judicial activities. Data controllers, rights groups, information policy experts and other interested parties are invited to provide information about the likely impact of the Commission's proposals, to assist the Government in its forthcoming negotiations for an effective EU data protection legislative framework. The closing date for submissions is 6 March 2012.

If you wish to discuss any of the items raised in this section please contact James Cassidy. 

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Mental Health 

Bevan Brittan Training
Bevan Brittan’s annual mental health seminar took place in Birmingham on 28th February and will take place again on 14th March in London. The London seminar is now full. If you have been allocated a place and are unable to attend please let Claire Bentley know as we have a  waiting list of people who would like to attend.  

Bevan Brittan Mental Health Extranet.
Free resource for Bevan Brittan NHS clients. Bevan Brittan has a wealth of mental health knowledge it would like to share with NHS clients. We have therefore developed an online searchable extranet designed to bring various sources of mental health information and guidance into one place. The extranet also contains a forum for use by members to share knowledge and information. If you would like information about how to access the  Bevan Brittan Mental Health Extranet  please email Claire Bentley by clicking here. Issues currently being discussed are:-  

 Do associate hospital managers need to attend MHA scrutiny committee meetings?
 S18(2)(A) of the MHA sets out the powers to take a recalled patient into custody and return them into hospital. S17(3) sets out the powers with regard to escorts of people on s17 leave. Both use the term 'officer on the staff of the hospital'. Can this be interpreted widely to mean any employee of the organisation or must it be interpreted narrowly to mean any employee working at that specific hospital?
 Regulation 19 authorises hospital managers to delegate the functions described in 1) above and the return of AWOL patients. Can these functions be delegated in a policy, approved by the board, to all staff in a specific role or do they need to be delegated in writing in each circumstance?
 Is it legitimate to authorise a number of staff, via a policy approved by the board, to delegate in writing in each instance on a standard form the functions described in 2) to authorise a limited number of staff of the organisation, defined by role, to carry out these functions?

 Are Patients being poorly represented by their legal representatives?
 Advocates

Publications/Guidance
Mental health community teams activity. This page links to quarterly data on new cases taken on by Early Intervention in psychosis services, the number of patients on Care Programme Approach, followed up within seven days of discharge from psychiatric inpatient care, and gate-keeping inpatient admissions by Crisis Resolution Home Treatment teams.

National survey of investment in mental health services for 2011-12. Mental Health Strategies is a long established leading provider of support to organisations wishing to improve mental health services across the health and social care fields and actively engages with NHS providers and commissioners as well as the independent sector. The National Survey of Investment in Mental Health Services for the 2011-12 collection is an ongoing exercise. This is the tenth national survey exercise for working age adults and the sixth for older adults. The data aims to provide detailed analysis on spending in mental health services which can help Ministers in answering parliamentary questions. It should also assist the Department and local authorities in formulating policy for the provision of mental health services. This dear colleague letter explains about the responsibility of local implementation teams leads to co-ordinate, collect, review and return all data to Mental Health Strategies. The deadline for submitting data is 23 March 2012. 

Second Family Listening Day - Focusing on families of patients who died whilst detained under the Mental Health Act. The IAP has published a report on its second family listening day held in September 2011. The event was organised on behalf of the IAP by INQUEST following an open procurement exercise. It focused on bereaved families whose relatives died whilst detained under the Mental Health Act. The report, prepared by INQUEST, brings together key themes from the day including family suggestions for improvements to the system. It was presented along with an IAP paper to the Ministerial Board on 7 February 2012.

Death by indifference: 74 deaths and counting. This report by MENCAP finds continued institutional discrimination in the NHS. The new report looks at what progress has been made since the publication of Mencap’s original ‘Death by indifference’ report in 2007. It confirms that, although some positive steps have been taken in the NHS, many health professionals are still failing to provide adequate care to people with a learning disability. The report highlights the deaths of 74 people with a learning disability in NHS care over the last ten years – highlighted in an article in The Guardian on 3 January – which Mencap believes are a direct result of institutional discrimination and could have been avoided.

Long-term conditions and mental health: the cost of co-morbidities. This paper suggests that developing more integrated support for people with mental and physical health problems could improve outcomes and play an important part in helping the NHS meet the quality, innovation, productivity and prevention challenge. It concludes that the prevailing approach to supporting people with long-term conditions is at risk of failing unless the role of emotional and mental health problems in reducing people’s ability and motivation to manage their physical health is recognised.

Learning disability reports. The CQC has published a further 20 reports from a targeted programme of 150 unannounced inspections of hospitals and care homes that care for people with learning disabilities.

Dual diagnosis: a challenge for the reformed NHS and for Public Health England. This discussion paper finds that the current set of health reforms poses both threats and opportunities for people with dual diagnosis or multiple needs. 

NICE has developed a number of new clinical case scenarios to help improve and assess users' knowledge of their guidance. The case scenarios are an educational resource that can be used for individual or group learning. This month, they have case scenarios covering their guidance on self harm
 
Cases
K v (1) LBX (2) L (By his litigation friend the Official Solicitor) (3) M [2012] EWCA Civ 79 (CA). The Court of Appeal has stated that Article 8 should not be the starting point when considering best interest issues under the MCA 2005. A judge should firstly apply the checklist of factors in s.4 MCA 2005 in order to determine the best interests of the incapacitated adult, and then consider  whether the result amounted to a violation of the persons Article 8 rights and then consider whether that violation was necessary and proportionate.

Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 (Sup Ct). The Supreme Court has held that the European Convention on Human Rights 1950 Art.2 imposed an operational obligation on states to protect mentally ill patients who were not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

DD v Lithuania (No.13469/06) [2012] ECHR 254 (ECtHR). A significant clarification of States' obligations in relation to legal capacity. The case concerned a Lithuanian national who, on being placed in a home for the mentally handicapped, was automatically stripped of her legal capacity. The ECtHR held that there had been violations of art.5(4) and art.6(1) ECHR. The European Group, chaired by the Scottish Human Rights Commission, made a third party intervention in case - the first such action by a regional grouping of national human rights institutions.

Wychavon DC v EM (HB) [2012] UKUT 12 (AAC). The Upper Tribunal judge reviewed his previous decision dated 31 March 2011, set it aside and re-decided the matter as follows:-
"1. The claimant is liable to make payments in respect of the provision to her of her home, such accommodation being necessary for her despite the absence of any contractual obligation to make such payments, the obligation arising either at common law or under section 7 of the Mental Capacity Act 2005. The amount of her obligation is equivalent to the rent provided under the purported tenancy agreement prepared on behalf of her parents.
2. The claim is not affected by regulation 9 of the Housing Benefit Regulations 2006.
3. The matter was remitted to the Respondent local authority to calculate the claimant’s entitlement accordingly."
For further comment and links see the Bevan Brittan Mental Health Extranet.

Coombs v Dorset NHS PCT (2) Nottinghamshire Healthcare NHS Trust [2012] MHLO 13. This case considered whether a detained patient can fund future care. It was held that the detaining authority or the patient's responsible clinician decides the appropriate placement and treatment but the patient could pay for his own care and treatment. Leave to appeal was given.

Consultations
Consultation on low secure services and psychiatric intensive care. Consultation documents on low secure services and psychiatric intensive care have been issued for a three month consultation by stakeholders. The purpose of this consultation is to invite the views of stakeholders on how new guidance will operate by explaining the rationale behind the strategic approach and raising questions which cover a broad range of issues. This consultation will close on 19 April 2012.

News
CCGs testing learning disability guidance. The DH reports that three emerging clinical commissioning groups (Gloucestershire, Nene, and Cambridgeshire & Peterborough) are testing draft learning disability commissioning guidance written by the Royal College of GPs, the Improving Health and Lives Learning Disability Observatory and the Joint Commissioning Panel. There have been initial meetings with the three groups to develop action plans. They are coming together in March to share experiences and then will feed back in April.

Foster parents told to stay away from "autistic" man. The Independent reports that a judge has backed a council's decision to take a 30-year-old man away from his carers despite their 12-year relationship.

Commissioners, data users and the public have the chance to help define how the biggest mental health dataset in England is best packaged and presented to suit their needs.

Bevan Brittan Updates
Rabone – The Supreme Court Decision - How it will impact upon Inquests and Mental Health Practice. The Supreme Court has delivered its long awaited judgment in the case of Rabone  v Pennine Care NHS Foundation Trust. 

If you wish to discuss any of the items raised in the above section please contact Simon Lindsay. 

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Primary Care

Publications/Guidance
Guidance for GPs - NHS reform. The BMA's General Practitioners Committee has issued a number of guidance notes for the profession on the principles of GP commissioning and NHS reforms. The latest cover:
   CCG Constitutions
   The authorisation process
   Accountability and the new structures.

Programme budgeting tools and data. This page links to information to help with finance and planning for primary care trusts.

Choice of GP practice - Guidance for primary care trusts. This guidance provides primary care trusts with the support tool they need to prepare for the implementation of widening patient choice of GP practices.

Charitable assets relating to the PCT estate and related assets. This letter is from David Flory trying to establish what 'estates assets' (i.e. land and buildings, equipment, investments and cash) are currently held by or on behalf of PCTs on trust ahead of the proposed abolition of PCTs, so that arrangements can be made in relation to those assets.

Tackling list inflation. This paper offers a how to guide to tackling list inflation or list cleansing, as it is sometimes known. It describes the work needed to ensure that GP patient lists are accurate, including identifying and removing inappropriate patient records.

Critical success factors that enable individuals to die in their preferred place of death. Highlighting good practice from seven PCTs across the country, this report identifies the critical success factors associated with improving end of life care and enabling a person to die in the place of their choice. The report is intended as a starting point to help those commissioning and planning services to see what has worked well in other areas although it does not suggest that one size fits all.

The National Duplicate Registration initiative (NDRI) 2009/10. Following the NDRI, 95,000 records were identified and removed. This has resulted in cost-savings of £6.1m in one year alone. This report from the Audit Commission gives examples of good practice in following up NDRI matches and recommends that PCTs, and the organisations that carry out checks on their behalf, maximise the benefits of NDRI.

DH asks NHS Trusts to ensure personal injury legal services are not advertised or promoted within NHS premises, including posters, leaflets and adverts in medical advice. Following recent media and parliamentary interest in advertising and other forms of promotion of the services of personal injury lawyers or claims management companies on NHS premises, NHS Chief Executive, David Nicholson, has written to clarify that these should not be supported as they risk undermining the NHS’s relationship with, and responsibilities to patients. He advises NHS Trusts to review their current practices and urges PCTs to consider the guidance they provide to primary medial services contractors.

News
GPs to "prescribe" apps for patients. Reports that people could soon be directed by their GPs to free or cheap apps to allow them to monitor and manage their health more effectively. The latest innovations in smartphone technology will help patients and the public to find and use NHS services, manage conditions and make better lifestyle choices in a way that is very convenient for them. This follows a call to find the best new ideas and existing smartphone apps that help people and doctors better manage care, which received nearly 500 entries and more than 12,600 votes and comments.

If you wish to discuss any of the items raised in the above section please contact David Owens.  

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Regulation  

Publications/Guidance
Performance and Capability Review – Care Quality Commission. The Care Quality Commission must become more strategic and set out more clearly what success looks like.

Evaluation of the reimbursement system for NHS-funded care. Monitor has published an in-depth, independent and extensive evaluation by PwC of the reimbursement system in the NHS in England. It is the most comprehensive analysis of pricing in the NHS that’s ever been done. The report highlights the vital importance of good quality information which accurately identifies the true costs of providing care. It is the first step in evolving the payment system to make sure it delivers the best possible care for patients and the best possible use of valuable resources. Comments on the report should be submitted by 20 April 2012.

Sector regulation – A short guide to the Health and Social Care Bill. The DH has produced a guide that outlines what providers of NHS-funded services need to know in relation to the regulation regime proposed under the Health and Social Care Bill. It outlines the government’s proposals to introduce a sector regulation regime which will apply to all NHS-funded health services. It also gives an overview of planned legislative changes designed to increase autonomy and strengthen accountability for foundation trusts.

Delivering high standards in medicines advertising regulation. The MHRA has published a sixth annual report 'Delivering high standards in medicines advertising regulation'. This covers the year 2011. It provides details of the activities of the Advertising Standards Unit, including vetting of advertising and complaints investigated and the development of guidance with self regulatory bodies to promote high standards.

Cases
Levinge v Health Professions Council [2012] EWHC 135 (Admin) (Admin Ct). The court held that the HPC had been entitled to uphold a number of allegations of misconduct on the part of a music therapy teacher at a further education college and to find that her fitness to practise was impaired, even though the misconduct had occurred only whilst she was teaching. However, the imposition of a clinical supervision condition had been unreasonable and disproportionate because there had never been any complaint about her practice as a clinician.  

Consultations
Regulation of health and social care professionals: consultation paper. The Law Commissions of England and Wales, Scotland and Northern Ireland are seeking views on the regulation of health care professionals in the UK and social workers in England. The consultation is open until 31 May 2012.

If you wish to discuss any of the items raised in this section please contact Carlton Sadler.

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General

Publications/Guidance
Update of Overall Patient Experience scores. The DH has released statistics on Overall Patient Experience scores that have been updated to include results from a 2011 survey of adult outpatients at 163 acute Trusts. These statistics use questions from a 2011 survey of adult outpatients on the question "overall, has patient experience changed over time?" to produce an updated set of five domain scores out of 100. The results show that more patients are being treated with respect and dignity and more felt they were involved in decisions about their care and treatment and in the amount of information given to them about their treatment. The results also highlight areas in need of improvement, such as communicating with patients: two-thirds of patients were not told how long they would have to wait for an appointment and only 65% said they knew what would happen during their appointment. The figures are compared with figures from 2002 onwards.

Abortion Act (as amended): termination of pregnancy. The Chief Medical Officer has written to Medical Directors of NHS and PCTs, and to independent sector abortion clinics, to draw attention to the conditions under which abortions can be carried out.

Going upstream: nursing's contribution to public health - prevent, promote, protect. This guidance aims to help RCN members and other health professionals, particularly service planners and commissioners of health services, tasked with finding cost effective solutions to the problems caused by unhealthy lifestyles and behaviours.

The role and functions of departmental Chief Scientific Advisers. This report looks at the role and functions of departmental Chief Scientific Advisers. It sets out a range of recommendations to ensure that Government policy decisions are supported by the best science and engineering advice available.

The impact of patient age on clinical decision-making in oncology. This report explores the extent to which age is a factor in treatment decisions for a range of cancers, as well as the extent to which clinical attitudes vary across different cancer types and in different countries. The key finding is that clinicians may over rely on chronological age as a proxy for other factors which are often but not necessarily associated with age, such as co-morbidities or frailty.

NHS patient experience framework. This framework outlines the areas most important to patients’ experiences of NHS services and can be used to direct efforts to improve services.

NHS Litigation Authority Industry Review. The Department of Health has published the report of the NHS Litigation Authority (NHSLA) Industry Review and the Department’s response. The Department welcomes the report, which highlights the positive role of the NHSLA and the effective contribution it has made since its establishment in 1995. The Department broadly accepts the report, its conclusions and recommendations. The Department’s response sets out actions that will be taken forward as a result of the review undertaken by Marsh Ltd between February and April 2011. A process of engagement will now begin with stakeholders by the NHSLA and the Department to look at how particular recommendations will be implemented or where further policy development needs to be undertaken.

NHS dental service - live pilot practices and pilot types. The new national dental contract will be based on a payment model based on capitation so that dentists are paid on a 'per patient' not 'per treatment' basis. It will be structured to reward dentists for the continuity and quality of care provided to patients. The DH has now published a list of the 70 pilot sites for the dental contract pilot that are now live around England. Each is trialling a different model. The list contains information on live pilot practices and pilot types.

Health leadership: Must-knows on health and well-being. Elected members and local authority officers will play a key role in improving the health of their communities. This Local Government Improvement & Development web page highlights good practice in health leadership and signposts support that is available to local authorities to support them in fulfilling their health leadership role. These 20 'Must Knows' are designed to provide the key information members need, in bite size chunks. Each one is arranged in four sections: Why is this important?; The role of the local authority; Key tasks for elected Members; and Useful links: where to find out more.

Health and Social Care Bill explained. The Health and Social Care Bill is now in its report stage in the House of Lords and the DH has published a set of updated factsheets to explain particular topics contained in the Bill. The factsheets cover both key policy areas and cross-cutting themes. 

Driving quality and evidence through National Clinical Audits. This letter is to alert parties to a change in the way that some national clinical audits (NCAs) will be funded from April 2012. 

NHS Constitution maximum waiting time right for consultant-led non-emergency treatment. This letter, from the Deputy NHS Chief Executive, re-iterates the expected performance on referral to treatment waiting times in 2012/13. It also sets out some of the good practice that should be in place to ensure that performance is maintained, and where necessary, improves. 

Local Healthwatch: A strong voice for people – the policy explained. This document explains recent amendments to the Health and Social Care Bill about Local Healthwatch and also describes the key policy ambitions for Healthwatch. It is aimed at all those with an interest in local Healthwatch organisations across the NHS and social care, including local authorities, local involvement networks, emerging health and wellbeing boards and the voluntary and community sectors. It places the role of Local Healthwatch within the overall context of the White Paper, and sets out functions, responsibilities, roles and relationships within the modernised health and care system. The intention is for Healthwatch England to be established in October 2012 and for Local Healthwatch organisations to start in April 2013.

The Bribery Act 2010. This briefing by the HFMA discusses the implications of the 2010 Bribery Act for the NHS.

Legislation
Personal Injuries (NHS Charges) (Amounts) Amendment Regulations 2012 (SI 2012/387). These regulations, in force 1 April 2012, increase the maximum charge in respect of an injury which occurs on or after 1 April 2012 to £45,153. They amend the Personal Injuries (NHS Charges) (Amounts) Regulations 2007 (SI 2007/115) which provide for the charges payable under the scheme for the recovery of NHS charges in cases where an injured person who receives a compensation payment in respect of their injury has received NHS hospital treatment or ambulance services. They make the following changes to the charges in respect of injuries which occur on or after 1 April 2012:
   where the injured person is provided with NHS ambulance services, the charge is increased from £181 to £185;
  where the injured person receives NHS treatment, but is not admitted to hospital, the charge is increased from £600 to £615;
   the daily charge for NHS in-patient treatment is increased from £737 to £755; and
   the maximum charge in respect of an injury is increased from £44,056 to £45,153.
There are saving provisions in order to maintain the existing amounts for injuries occurring before 1 April 2012. 

Consultations
Rare diseases - A consultation. This consultation seeks views on a UK plan for rare diseases that says earlier diagnosis of a rare condition and better coordinated care will help improve the quality of life for people with rare diseases and their families. The consultation closes on 25 May 2012.

The guidelines manual: consultation on the 2012 update. NICE has carried out a review of their guidelines manual. This document describes the detailed process and methodology used to produce NICE clinical guidelines. It applies to both NICE's standard clinical guidelines and short clinical guidelines programmes. The consultation period runs until 9th May 2012.

News
The NHS will support women with PiP breast implants. The Chief Medical Officer, Dame Sally Davies, has written to health professionals, with some more detailed guidance. The latest advice from the NHS and plastic surgery experts is that women with PiP breast implants do not need to have them removed unless they have symptoms such as pain and tenderness. There is no link to cancer and there is no clear evidence of an increased risk of harm compared to other brands of breast implants.

NHS charges to increase from April 2012. Announces that the NHS prescription charge will increase to £7.65 per item from 1 April 2012. The Prescription Prepayment Certificate (PPC) prices remain unchanged.

Lives saved as more than 14 million patients are screened for blood clots. Reports success of the Government's venous thromboembolism (VTE) prevention programme since the introduction in July 2010 of a measure to ensure the NHS assesses 90 per cent of admitted patients for the risk of VTE and treats those who need it.

Bevan Brittan Updates
Claims case round-up. Ed Duckworth takes a look at the recent health claim cases, including: Res Ipsa Loquitur in Clinical Negligence – Thomas v Curley [2011] EWHC 2103(QB); Successive causes and causation; Loss of chance - Wright v Cambridge Medical Group [2011] EWHC Civ 669; Causation and contribution – Dalling v Heale & Co [2011] EWHC Civ 365; and Deferring assessment of damages - Cook v Cook [2011] EWHC 1638 (QB).

Managing Cauda Equina Syndrome claims. Whilst Cauda Equina Syndrome is a relatively rare condition, it is a fairly common source of Clinical Negligence claims. In this article Jonathan Fuggle explores some of the issues that commonly arise when dealing with CES claims.

NHS Litigation Authority industry review. On 26 January, the Department of Health published the long-awaited industry review by Marsh. 

Rabone v Pennine Care NHS Trust . Supreme Court Judgment in Rabone v Pennine Care NHS Trust clarifies law on  Article 2, The Right to Life.

Assisted suicide - what healthcare professionals need to know. Claire Bentley considers how healthcare professionals should respond when in challenging conversations with patients who feel their life is unendurable and wish to explore assisted suicide.

Patient privacy and the use of mobile phones in hospitals Until recently, the main concerns of mobile phone use in hospitals were the risks associated with the interference of medical equipment. This resulted in many NHS Trusts putting restrictions in place to prohibit their use. Some Trusts even enforced blanket bans across their hospitals. However, these concerns have been steadily allayed over the last few years as a mass of research demonstrates that mobile phones actually pose little or no risk to the majority of hospital equipment. Trust policies therefore now tend to adopt a more flexible approach allowing for the use of mobile phones on their premises, with the exception of a limited number of prohibited areas such as specialist baby and critical care units.

Zero tolerance - at what risk? Having the right procedures in place to deal with the management of patients (and in some cases their relatives) who are abusive, aggressive or threatening is more important than ever. Assaults on NHS staff for 2009/2010 amounted to 56,718 (1). This is clearly of huge concern both from the perspective of those individual staff members personally attacked whilst carrying out their jobs, but also in terms of the time and money which is being diverted from the delivery of healthcare.

If you wish to discuss any of the items raised in this section please contact Claire Bentley.

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Disclaimer

This update is intended to give general information about legal topics and is not intended to apply to specific circumstances. Its contents should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem that you may have you are advised to seek specific legal advice.

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[Bevan Brittan] adopts a ‘refreshing’ and ‘collaborative’ approach.
Legal 500 2012

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