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Health and Social Care Update - April 2012

11/04/12

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

 

Care

Publications/Guidance
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.

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.

Health care in care homes: a special review of the provision of health care to those in care homes. The Care Quality Commission (CQC) has published the results of a review of how the healthcare needs of care home residents are met. It addresses how older people and people with learning disabilities living in care homes access healthcare services, whether they have choice and control over their healthcare and whether they receive care that is safe and respects their dignity.

End of life care co-ordination: core content. This national information standard specifies the core record content to support the provision of high-quality co-ordinated care at the end of life. The standard facilitates consistent recording of information by health and social care agencies and, with the consent of the individual, supports safe and effective management and sharing of information.

Charging for residential accommodation. This circular outlines charges for residential accommodation which will come into effect from 9 April 2012. It provides further information and guidance for local councils on how these changes need to be implemented.

Persistent challenges to providing quality care: an RCN report on the views and experiences of frontline nursing staff in care homes in England. This report identifies a lack of training for staff, inappropriate admissions and extreme pressure on the workforce leading to poor staff morale. It also highlights the key issue of funding and admissions.

Committed to carers: supporting carers of people at the end of life. This report draws on the direct experiences of carers looking after someone at the end of life and Marie Curie’s expertise of caring for patients and their carers at this time. It shows how carers can have drastically different experiences of support and information. It also points to a lack of coordinated support for carers, which causes health breakdowns for carers and unnecessary and costly hospital admissions for them and their loved ones at end of life, preventing people from dying in their place of choice. 

Bevan Brittan Updates
Something to shout about - closing retrospective reviews. On 15 March the Department of Health announced that it is to close the continuing care retrospective review process.  The letter from Sir David Nicholson confirms that the Department of Health intends to introduce a close down for any new cases requesting assessment of retrospective eligibility for NHS Continuing Healthcare. 

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

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Children

Publications/Guidance
Getting it right for children, young people and families. This guidance contains the Government's vision and call to action for school nursing services. It sets out an ambition that the service vision and model for school nursing services developed through the School Nursing Development Programme will be a framework for local services that meet both current and future needs. The report identifies the next steps towards achieving improved services and outcomes, within the Healthy Child Programme 5-19. DH has also published the first detailed pathway which sets out the transition from health visiting to school nursing services, plus a range of related documents designed to support partnership working for those who deliver the Healthy Child Programme 0-19 years old (HCP) and to strengthen consistent, seamless support and care for families.

Bringing networks to life: an RCPCH guide to implementing clinical networks. This publication aims to make the case for development and maintenance of formal and informal paediatric networks across a range of specialties. It sets out the rationale and benefits and provides evidence based examples, tips and checklists to ensure that development of new networks benefits from the lessons of others, and successful models are promoted for others to emulate where appropriate.

Consultations
Children and young people's health outcomes consultation. The Children and Young People’s Health Outcomes Forum is gathering views on the health outcomes that matter most for children and young people and how the different parts of the health system will work together to deliver these. The consultation focuses on four areas: acutely ill children; mental health; children with disabilities; and long-term conditions public health. It closes on 30 April 2012. 

Health and wellbeing of looked-after children: consultation on quality standard. NICE have been asked by the Department of Health to pilot the development of a social care quality standard on the health and wellbeing of looked-after children and young people for use in England. The draft scope defines the proposed settings, areas and activities the quality standard will consider and to whom it will apply. Registered stakeholders for this quality standard are invited to submit comments on the scope. The consultation runs until 13th April 2012. 

News
NHS Atlas of variation in healthcare for children and young adults. This maps out the variation in healthcare for 25 different child health issues across England. It allows clinicians, commissioners and service users to identify priority areas for improving outcome, quality and productivity.  

Bevan Brittan Updates
Something to shout about - closing retrospective reviews. On 15 March the Department of Health announced that it is to close the continuing care retrospective review process.  The letter from Sir David Nicholson confirms that the Department of Health intends to introduce a close down for any new cases requesting assessment of retrospective eligibility for NHS Continuing Healthcare.  

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Commissioning

Publications/Guidance
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.

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.

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. The government have identified six guiding principles on safeguarding which seek to increase the protection for those most at risk in society. Key points for commissioners are outlined here in relation to each of the principles.

Commissioning care homes: common safeguarding challenges. This guide aims to identify the issues that commonly lead to safeguarding referrals from care homes. The underlying causes are also identified; neither are in order of prevalence. Prevention checklists are provided to help both commissioners and providers to work towards a reduction in occurrence of these issues.

An economic case for patient and public involvement in commissioning. This work, commissioned by the Department of Health, looks at the economic case for public and patient engagement as well as developing a decision support tool. Fourteen detailed case studies were carried out to identify how meaningful and effective involvement in commissioning can drive economic, quality and user experience benefits for the NHS and partner organisations – as well as the populations they serve.

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.

Bevan Brittan Updates
Health and Social Care Act: CCG Governance. Explores the structure, governance regime and the model constitution framework for the new Clinical Commissioning Groups. This article also considers the relationship between CCGs and GPs.

Health and Social Care Act: Decision Making By Clinical Commissioning Groups. This article explores the introduction of CCGs, their duties and responsibilities and how these will impact on commissioning health services.

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
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.

Pay circular on Agenda for Change pay rates from 1st April 2012. NHS Employers has published the new pay rates for staff on Agenda for Change contracts, effective from 1st April 2012. The Government has confirmed that staff earning up to £21,000 per year will receive a flat rate pay increase of £250 from 1st April 2012. Other staff will be subject to the two-year pay freeze announced in the emergency budget in June 2010.

NHS mobile working knowledge centre. This knowledge centre brings together good practice, tools and experience to provide support and guidance for those initiating and implementing mobile working programmes and projects.

Mandatory nurse staffing levels. Despite older people often having the most complex needs, this report suggests they regularly suffer from a severe shortage of nurses and health care assistants (HCAs), coupled with an inappropriate skill mix of HCAs to nurses. It calls for a ‘patient guarantee’, setting out the number of nurses needed on older people’s wards.

Maternity workforce: forward work. This letter from Jan Sobieraj, Managing Director for NHS and social care workforce, is aimed at SHA cluster workforce directors and provides an update on progress and plans for the maternity workforce. 

Reforming the NHS pension scheme for England and Wales - Proposed final agreement. The proposed final agreement represents the government’s final position on the design of the new NHS pension scheme for England and Wales. The final scheme design is conditional on acceptance by trade unions of the proposed final agreement.

Review body on doctors’ and dentists’ remuneration: fortieth report 2012. This report monitors recruitment, retention and motivation of doctors and dentists within England, Scotland, Wales and Northern Ireland in the context of pay freezes and efficiency savings.

NHS pay review body: twenty-sixth report 2012. This report makes recommendations on the remuneration of all staff paid under Agenda for Change and employed in the NHS. It notes major developments on the proposed NHS reforms and on changes to public sector pensions and looks at recruitment, motivation and retention of staff as well as workforce planning. 

Consultations
Equality objectives consultation. The NMC is seeking views on its draft equality objectives for 2012-2015 which focus on five core issues: embedding diversity, leadership, governance, staffing and service delivery. The NMC is consulting to help make sure that these objectives are realistic and appropriate, and that they will enable them to promote equality, diversity and inclusion when carrying out their functions and delivering their services as a regulator and as an employer. The consultation closes on 1 June 2012.

News
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.

Bevan Brittan Updates
News round-up March 2012. In this issue we consider: collective redundancies; key changes resultant from amendments to the Employment Tribunal Regulations; review the Government's decision to increase the national minimum wage and; include a case regarding justified age discrimination.

Redundancy Pool Decisions. With financial pressures still dominating the news headlines and organisations having to make substantial savings, redundancies remain a real possibility for many employers. It is more important than ever for employers to implement a fair redundancy process to avoid unfair dismissal claims, and part of that is identifying an appropriate redundancy pool. Mike Smith looks at two EAT cases for guidance to employers.

TUPE update. Sarah Lamont discusses two recent decisions arising out of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

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

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Estates and Facilities

Publications/Guidance
Extra funding to pay for new health equipment and buildings. The Prime Minister has announced that more than £330m of extra funding will be spent on providing state of the art equipment and facilities to improve services for patients in England. The DH has published the breakdown of the new funding proposals by SHA.

PCT estate: Guidance on accounting for estate transfers. Provides guidance on accounting implications of the transfers of PCT estate taking place upon PCT abolition. It does not cover existing arrangements. Depending on the existing occupancy arrangements between NHS providers and PCTs, each organisation should account in 2011/12 for their occupancy as appropriate (e.g. operating lease, finance lease) following the guidance set out in the NHS Manual for Accounts. The DH currently anticipates that all documentation of transfers (property and associated staff) will be in place from 31 December 2012 with legal transfers being effective from 31 March 2013.

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
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.  

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 trusts: review of nine months to 31 December 2011. Monitor requires each NHS foundation trust board to submit a quarterly report. Performance is monitored against these reports to identify where problems might arise. Based on these reports, each foundation trust is assigned financial and governance risk ratings. These risk ratings are designed to indicate the risk of a failure by a foundation trust to comply with its terms of authorisation. This is the third quarterly report for 2011/12 and covers the 141 foundation trusts authorised up to 31 December 2011.

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

Detailed guidance for external assurance on quality reports 2011/12. This document sets out detailed guidance for NHS foundation trusts and their auditors to enable them to carry out the external assurance engagement on quality reports from 2011/12. 

Bevan Brittan Updates
Health and Social Care Act: Implications for Foundation Trust Governance and Constitutional Arrangements. Considers the amendments to the legislative provisions which must be contained in all Foundation Trust Constitutions and the impact on governance.

Health and Social Care Act: repeal of the private patient income cap...Give and Take. Considers the repeal of the private patient income cap and explores how Foundation Trusts can generate income from non-NHS activity.

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

Annual governance statements - Guidance. This Dear Colleague letter from Janet Perry, NHS Financial Controller, outlines the year end arrangements for the annual governance statement, including the key elements that must be covered within the statement. The annual governance statement will, for 2011/12, replace the Statements on Internal Control completed by NHS Accountable Officers (AO). SHA, PCT and NHS Trust AOs are required to provide assurance about the stewardship of their organisations to the NHS Chief Executive, and should include the governance statement in their annual report and accounts. Copies of governance statements and Head of Internal Audit Opinions must be submitted to the DH by 13 April 2012.

Bevan Brittan Updates
Health and Social Care Act: Implications for Foundation Trust Governance and Constitutional Arrangements. Considers the amendments to the legislative provisions which must be contained in all Foundation Trust Constitutions and the impact on governance.

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
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.

Solicitors’ Risk Management Reports on Claims – Analysis and Annual Review 2010/11. The Solicitors’ Risk Management Report on Claims initiative aims to ensure that organisations are learning lessons from their own claims and that the knowledge gained is shared, with the aim of contributing to improvements in patient safety. The Analysis and Annual Review 2010/11 analyses the information in the reports prepared during the year and looks at the actions taken by organisations in response to them.

Raising and acting on concerns about patient safety. All doctors have a duty to act when they believe patients’ safety is at risk, or that patients’ care or dignity is being compromised. Raising and acting on concerns about patient safety (2012) sets out the GMC's expectation that all doctors will, whatever their role, take appropriate action to raise and act on concerns about patient care, dignity and safety.

Updated guidance on the diagnosis and reporting of Clostridium difficile. The guidance on how to test, report and manage C. difficile infections has been revised and updated. In particular, this new guidance will help healthcare providers by identifying which two types of tests, which when used in combination, will deliver the most accurate results for C. difficile infection testing.

Review of the evidence on fall prevention in hospitals. To facilitate the development of a hospital falls prevention resource guide, this paper systematically reviews and documents the existing evidence base for interventions to prevent falls in hospitals and provides an overview of the performance of existing tools with known measurement properties. It also identifies a wide variety of tools for the prevention of falls in hospitals.

Metal on metal hip replacements. The Chief Medical Officer and the NHS Medical Director has written to senior managers in the NHS raising awareness of the MHRA Medical Device Alert, making recommendations about the management and monitoring of patients with metal on metal hips, and the accumulating evidence which should be used to make an informed decision about patient treatment.

Update on PIP silicone gel breast implants. Dame Sally Davies, the Chief Medical Officer, has written to general practitioners to highlight new information which the Medicines and Healthcare products Regulatory Agency have become aware of in relation to PIP implants. 

News
Funding for two patient safety research centres announced. Two research centres will receive a share of over £13m funding to help make the NHS a safer place for patients. The money, which comes from the National Institute for Health Research, will be used to advance and refine new ways of improving safety in hospitals, GP surgeries and in the community. Research carried out at the centres will benefit patients by reducing prescription errors, improving diagnosis of cancer and rare diseases, and reducing accidents during surgery. Imperial College Healthcare NHS Trust will receive just over £7.2m, and NHS Greater Manchester will receive just over £6.2m.

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

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Inquests

Publications/Guidance
Guide to Coroners and Inquests and Charter for coroner services. Guidance by the Ministry of Justice provides general information about coroners and inquests. The Charter sets out the service standards that bereaved family members, other "properly interested persons", and witnesses in a coroner inquiry should expect to receive. The Charter also sets out what someone can do if they wish to complain about the level of service they have received or the personal conduct of a coroner.

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

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Mental Health 

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. Forum issues currently being discussed are:-
 Olympics 2012
 Best interest/dols - What is an objective test?
 Is it possible to take a laptop to Mental Health Act assessments, in order that psychiatrists can complete the medical recommendations electronically for ease. Does it matter that there may not be a "pink" copy of the form and would the CQC be satisfied with an electronic document?
 S117 and prescription charges.
 Power to transport recalled patients.
 Prison membership for foundation trusts

Training 
It was fantastic to see so many of you at the Bevan Brittan Annual Mental Health Seminar that took place in London and Birmingham. A huge range of issues were covered during the sessions including detaining in an emergency, capacity, best interests and deprivation of liberty from a clinical perspective, tribunals and a summary of important case law in the last year.  Slides and information from the speakers are available on the Bevan Brittan Mental Health Extranet.

We also had a very interesting lunch time talk by a consultant psychiatrist on suicide this month. There is a wealth of information around the issue of suicide that can be accessed from the Bevan Brittan Mental Health including the slides from the talk, information about observation policies, relevant cases and guidance and useful links. If you are a member of the Bevan Brittan Mental Health extranet click here to access this information.

Details of other lunch time training sessions relevant to mental health professionals are available on the Bevan Brittan Mental Health Extranet. If you would like to see what is coming up click here.

If you would like information about how to access the Bevan Brittan Mental Health Extranet please email Claire Bentley by clicking here.

Publications/guidance
The operation of the Deprivation of Liberty Safeguards in England, 2010/11. The Care Quality Commission has published its first monitoring report on the implementation of the Deprivation of Liberty Safeguards. Their key findings are as follows:-
•There have been high profile investigations into failures in health and social care which include aspects related to deprivation of liberty. These reinforce the need for, and value of, a system to safeguard the rights of people who lack capacity and are deprived of their liberty.
• The CQC have integrated monitoring of the safeguards into their mainstream regulatory work, so that it forms part of their inspections of how well care providers are complying with the essential standards of quality and safety.
• Their inspections show that many providers have developed positive practice, notably in involving people and their carers in the decision-making process.
• But, while the number of applications for authorisations under the safeguards rose, there continue to be areas that need to be addressed.
• There is some confusion about what constitutes a deprivation of liberty and this can cause inconsistent practice.
• A ‘rump’ of providers have still not trained their staff in the Safeguards, two years after their introduction.
• They have identified that there is a need to increase understanding to ensure people’s rights are properly protected. Training and guidance, including updates, are likely to be key to developing consistent practice.
• There is a particular gap in information on the role of supervisory bodies which has hindered our ability to monitor the Safeguards. We will take the initiative to address these and in doing so we will broaden our approach to monitoring so as to include other stakeholders more and monitor in partnership with them.
• There continue to be concerns about the complexity of the Safeguards, in terms of content, processes and responsiveness. We will continue to discuss this with the Department of Health as and when our overview of the system enables us to identify areas for exploration.
Links to commentary is also available on the Bevan Brittan Mental Health Extranet.

Court of Protection guidance. Updated 22 March 2012. This sets out:
    The Court of Protection (Amendment) Rules 2011
    Court of Protection Rules,
    Court of Protection Practice Directions
    Making urgent and Fast Track applications
    Practice Direction Deprivation of Liberty Applications
    Court of Protection Listing Policy.

Prime Minister's challenge on dementia. This document sets out the Prime Minister’s challenge on dementia, a programme of work to push further and faster to deliver major improvements in dementia care and research by 2015, building on the achievements of the existing National Dementia Strategy.

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.

Summary of responses to the consultation on 'Mental Capacity - OFT guidance for creditors'. An Office of Fair Trading (OFT) report summarises responses to its consultation on "Mental Capacity - OFT guidance for creditors", which aimed to clarify what the OFT expects from creditors in terms of identifying and appropriately assisting borrowers who have, or may have, limitations in their mental capacity which might affect their ability to make informed borrowing decisions.

Think child, think parent, think family: final evaluation report. In July 2009, SCIE published a guide to parental mental health and child welfare to help services improve their response to parents with mental health problems and their families. This is the final evaluation report of the project, documenting the progress made by the sites involved, and making recommendations for future activity.

Equality and Human Rights Commission: Mersey Care NHS Trust video. This short film shows how Mersey Care NHS Trust takes a human rights based approach to healthcare.

Services for people with neurological conditions: seventy-second report of session 2010–12. This report examines the implementation of the National Service Framework for Long-term Conditions. It found that spending on neurological conditions increased by 38% in real terms, from £2.1 billion in 2006-07 to £2.9 billion in 2009-10. Spending on social services for people with neurological conditions was an estimated £2.4 billion in 2009-10, and has remained flat since 2005-06. However, while there have been some improvements, such as reduced waiting times, services remain well below the quality requirements set out in the Framework.

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.

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.

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.

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.

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.

Official Solicitor: Court of Protection: Acceptance of appointment as litigation friend. This note explains the Official Solicitor's current general position when invited to act as litigation friend in Court of Protection healthcare and welfare cases, in order to correct some misconceptions which he has become aware are in circulation.

Cases
Reynolds v United Kingdom (App. No. 2694/08) [2012] ECHR 437 (ECtHR). The applicant's schizophrenic son had died after falling from the sixth floor of a unit run by the local authority. The European Court of Human Rights awarded €7,000 in non-pecuniary damages in respect of a violation of Art.13 in conjunction with Art.2 ECHR. There had not been civil proceedings available to the applicant to establish any liability and compensation due as regards the non-pecuniary damage suffered by the applicant on her son's death.

DL v A Local Authority (2012) EWCA Civ 253, (2012) MHLO 32. "The central issue in this case is whether, and to what extent, the court's inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor." See Mental Health Extranet.

ZH v Commissioner of Police for the Metropolis (2012) EWHC 604 (QB), (2012) MHLO 25 The Claimant, ZH, is a severely autistic, epileptic nineteen year old man suffering from learning disabilities who cannot communicate by speech. The actions by the police constituted assault, battery and false imprisonment. There was also unlawful disability discrimination under the Disability Discrimination Act 1995 (DDA) and under the Human Rights Act 1998 (HRA) in particular breaches of Articles 3, 5 and 8. Quantum: Post traumatic stress disorder 10,000 Exacerbation of epilepsy 12,500 Disability Discrimination Act damages 5,000 Trespass to the person (loss of liberty £500, pain and distress from assault £250); total £28,250; no aggravated or exemplary damages; no additional HRA damages.

A Local Authority v H [2012] EWHC 49 (COP). The CoP held that "H lacks capacity to consent to sexual relations on two specific bases: first, that she does not understand the health implications of sexual relations, a matter made more serious in this case by her history of multiple partners indiscriminately accommodated; and secondly, that she cannot deploy the information she has effectively into the decision making process. Those matters are evidenced both by the history of the case and the expert psychiatric assessment ... The local authority wish to continue with H's education and awareness of sexual protection and sexual health issues. Dr Xenitidis thinks further progress is possible. They wish to conduct a wholesale review of H's capacity and best interests in September 2012. They clearly fully appreciate how restrictive of H's personal freedom the current arrangements are and how the balance always has to be struck between the competing demands of freedom and protection. I fully agree with that approach and, given the significance of the issues raised in this case, propose that I should review the case in November 2012. It is strange, but nevertheless true, that even the freedom to make unwise decisions, clearly a real risk here in relation to sexual relations, is one that the court is required to guard and only to restrict if and when (bearing in mind s.1(6) of the Act) the best interests of H positively so require."

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.

K v (1) LBX (2) L (by his litigation friend the Official Solicitor) (3) M [2012] EWCA Civ 79. The Court had to consider whether or not ECHR Art 8 respect for family life requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 to afford a priority to placement of an incapacitated adult in their family or whether family life is simply one of "all the relevant circumstances" which under MCA 2005 S4 the court must consider. The court held that a balanced consideration of all the circumstances and attention to what is required by Article 8 is all that is required.

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 [2012] MHLO 13. This case considered whether a detained patient can fund future care. It was held that the RC decides the appropriate placement and treatment but the patient could pay for his own care and treatment. Leave to appeal was given.

Legislation
The Tribunal Procedure (Amendment) Rules 2012 (SI 2012/500 (L.1)). They make changes to the Tribunal Procedure Rules applied by the First-tier Tribunal and Upper Tribunal, in force 6 April 2012.

Consultations
Consultation on statistics produced from Mental Health Minimum Datasets. The NHS IC are consulting on what measures and breakdowns should be provided in regular statistics and data extracts from the MHMD. The consultation invites 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. The consultation closes on 1 June 2012.

Summary of responses to the consultation on 'Mental Capacity - OFT guidance for creditors'. An Office of Fair Trading (OFT) report summarises responses to its consultation on "Mental Capacity - OFT guidance for creditors", which aimed to clarify what the OFT expects from creditors in terms of identifying and appropriately assisting borrowers who have, or may have, limitations in their mental capacity which might affect their ability to make informed borrowing decisions.

News
Mental health tribunal decision: re the Application of Ian Brady: notice to the media. The Mental Health Tribunal has announced Ian Brady's hearing will be on 9 July 2012 with a time estimate of 8 days. The Tribunal will convene at Ashworth Hospital and the proceedings will be relayed by close circuit television to the Civil Justice Centre Manchester where members of the public and media will be able to observe the proceedings. Further consideration is being given as to the media's attendance at Ashworth hospital.

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. 

Social worker deprivation of liberty assessments unmonitored. The Care Quality Commission has raised concerns over the protection of vulnerable adults because of its inability to monitor deprivation of liberty assessments by social workers and other professionals. 

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
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.

Euro headache index 2012. This report compares in what way 29 European countries address and take care of headache and migraine, by healthcare and other measures. It looks into patients rights and information; professional awareness and education; access to healthcare; and medication, treatment and prevention. 

Guidance on the time limits applicable from April 2012 for requests on review of eligibility decisions for NHS continuing healthcare funding. This guidance covers the time limits starting from 1st April 2012 for individuals or their families and representatives to request a review of an eligibility decision for NHS continuing healthcare funding by the local PCT or responsible NHS body at a local level. These limits will only apply to eligibility decisions notified after 1st April 2012 and not before.

PCT estate: Guidance on accounting for estate transfers. Provides guidance on accounting implications of the transfers of PCT estate taking place upon PCT abolition. It does not cover existing arrangements. Depending on the existing occupancy arrangements between NHS providers and PCTs, each organisation should account in 2011/12 for their occupancy as appropriate (e.g. operating lease, finance lease) following the guidance set out in the NHS Manual for Accounts. The DH currently anticipates that all documentation of transfers (property and associated staff) will be in place from 31 December 2012 with legal transfers being effective from 31 March 2013.

Choice of GP practice: Patient Choice Scheme. Guidance on a pilot scheme that will enable patients in Westminster, City and Hackney, Tower Hamlets, Manchester, Salford and Nottingham City PCT areas to register with a GP practice in a convenient place for them, regardless of practice boundaries. The pilot scheme starts in April and runs for a year. Patients will be able to register with a practice close to their home, workplace, child’s school, or other place that suits them, to make it easier for them to see a GP. It could also benefit people who move home and want to remain with their current practice.

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.

Better integrated care could save the NHS millions. The DH has launched a new series of online tools that will help the NHS identify how therapists can intervene at different stages of a patient’s condition to improve patient care whilst saving on costs. The DH contends that the NHS could save millions and provide better care by involving more Allied Health Professionals in patient care. Physiotherapists, dietitians, podiatrists, speech and language therapists and other Allied Health Professionals can have a dramatic impact on care for people with diabetes, cancer, musculoskeletal problems and stroke survivors.

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.

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.

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.

Bevan Brittan Updates
Regulation and competition under the Health and Social Care Act 2012. Examines the licensing roles of Monitor under the reforms and the new general duties arising out of this.

Regulation and competition under the Health and Social Care Act 2012 - part 2. In this article we explore Monitor's roles in investigating anti-competitive behaviour, the remedies that it can impose and its responsibility for setting the national pricing tariff. This article also examines what happens in the event of insolvency of providers of NHS services.

Investigation of abortion practices. The Department of Health and CQC are increasing their focus upon termination of pregnancy services. Following the Daily Telegraph secret investigation, which highlighted allegations of clinics agreeing abortions on the ground of gender of the foetus, the Chief Medical Officer wrote to all NHS Medical Directors and independent sector abortion clinics  reminding them of their obligations under the relevant legislation and guidance.  CQC then undertook a programme of unannounced inspections of private and NHS clinics.

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

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General

Publications/Guidance
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.

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.

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. 

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. 

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

NHS Standard contracts 2012/13 updates. The DH has published further updates for the NHS Standard Contracts 2012/13, including: National CQUIN goals; variations to the care homes contracts (bilateral and multilateral); guidance on completion of the 2012-13 national variation deeds; and National variation deed 2012-13 for community 2010-11 contracts.

Twins and multiples healthcare survey: making progress. This report highlights the need for improvements in maternity antenatal care for women having twins, triplets or more. It calls for more flexibility around ward visiting for partners; more consistent advice and encouragement with feeding; better preparation for parents of multiples – particularly the likelihood that one or more of their babies will need care in a neonatal/special care baby unit; and better maternity planning so that women and their babies can all stay together in the same hospital.

Assisted suicide. This briefing provides background to the offence of assisting a person to commit suicide under the Suicide Act 1961, in the context of terminally ill people who may be unable to end their lives without the assistance of family or friends. It also considers legislative proposals to amend the language of the 1961 Act, and provides an overview of some of the key stakeholders on either side of the assisted suicide debate. 

Allied health professionals (AHP) QIPP toolkits. The Department of Health has identified potential savings and the opportunity to provide better care by involving more AHPs in patient care. This series of online tools aims to help the NHS identify how therapists can intervene at different stages of a patient's condition to improve patient care whilst saving on costs. This first set of toolkits covers how AHPs can help to improve care for stroke; oral nutritional support; musculoskeletal care; cancer; and diabetes. 

Transforming patient experience: the essential guide. This resource is for people with designated responsibility for improving patient experience – both as providers of services and as commissioners. It is intended to provide the evidence needed to influence others – both at board level and team level, to focus on improving patient experience.

Cases
Nicklinson v Ministry of Justice; DPP and Nicklinson (Interested Parties) [2012] EWHC 304 (QB) (QBD). The court held that the claimant had an arguable case for declarations that it would not be unlawful, on the grounds of necessity, for a doctor to terminate or assist in the termination of his life, alternatively that the law of murder and/or of assisted suicide was incompatible with his right to respect for private life under Art.8 of the European Convention on Human Rights 1950. 

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
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.

NHS 111 minimum data set. The 111 number will provide a new easy to remember route into the NHS for all those who are unclear about which service is best placed to meet their needs. The service has been rolled out to four pilot sites in 2010 with more likely to come on stream in summer 2011. This publication supplies data to help assess the efficiency and effectiveness of the different 111 models.

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. 

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.

Shifting power to the local NHS – a new way for NHS IT. The Health Secretary Andrew Lansley has given a speech at the launch of the Chief Clinical Information Officers network in which he confirmed that the Government has secured agreement to over £1bn reduction in its contract with Computer Sciences Corporation, the largest supplier to the now-dismantled National Programme for IT. He made clear that this money will be released back into the NHS.  

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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