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Health and Social Care Update - August 2011

01/08/11

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
  Clinical Management   Infection control
  Commissioning   Mental Health
  Employment/HR   Obesity
  Estates   Primary Care
  Finance   Regulation 
  Foundation Trusts   General
  Freedom of Information

 

Care

Publications/Guidance
Dignity in practice - An exploration of the care of older adults in Acute NHS Trusts. The aim of this study by the British Geriatrics Society is to look at evidence-based guidance for policies and practice to promote dignified care.

Route to success: the key contribution of nursing to end of life care. This guide highlights the key nursing contributions within the six steps of the end of life care pathway. It focuses predominantly on how nurses can and do contribute to planned (and unplanned) end of life care for adults in England.

Fairer care funding. The Commission on Funding of Care and Support, chaired by Andrew Dilnot, has published its final report on changes to the funding of adult social care in England. It recommends that costs should be capped and the means-tested threshold increased. Instead of individuals paying all their care costs until they have assets of less than £23,250, as under the current system, the proposals would mean that those with high care costs would only pay up to a set amount and after that their care costs would be paid for by the State. The Commission estimates that its proposals, based on a cap of £35,000, would cost the State around £1.7bn.
Among the recommendations in the report are:
 individuals’ lifetime contributions towards their social care costs – which are currently potentially unlimited – should be capped. After the cap is reached, individuals would be eligible for full state support. This cap should be between £25,000 and £50,000. The Commission considers that £35,000 is the most appropriate and fair figure;
 the means-tested threshold, above which people are liable for their full care costs, should be increased from £23,250 to £100,000;
 national eligibility criteria and portable assessments should be introduced to ensure greater consistency;
 all those who enter adulthood with a care and support need should be eligible for free state support immediately rather than being subjected to a means test;
 a new universal deferred payment scheme for anyone who would be unable to afford care charges without selling their home. Local authorities should be allowed to charge interest to recover their costs, to make the scheme cost neutral, and to remove the disincentive they currently face in promoting the scheme;
 new social care legislation should place duties on local authorities to provide information, advice and assistance services in their area, and to stimulate and shape the market for services;
 the Government should review the scope for improving the integration of adult social care with other services in the wider care and support system.

The Government has stated that it welcomes the report. It will consider each recommendation carefully to test whether it meets the wider objectives for reform, including increased personalisation, choice and quality, closer integration of health and social care and greater prevention and early intervention. The Government will need to consider the acknowledged significant costs of implementing the reforms against other calls on constrained resources. The Government wants to create a social care system that offers people and their carers choice and personalised, high quality care. It will be engaging with the care sector over the autumn to develop and refine its priorities and plans for action, bearing in mind the financial context.

Funding the right care and support for everyone. This report recommends the introduction of the first per-patient funding system for palliative care in the NHS. The proposals include the development of a palliative care tariff based on need, a funding system which incentivises good outcomes for patients, irrespective of time and setting, and providing incentives for commissioning integrated care packages which stimulate community services.

A quest for quality in care homes. The report by the British Geriatrics Society reviews current NHS support for care homes. It describes what should and could be done and calls for national action by Government and local action by NHS commissioners, planners and clinical services to improve the quality of NHS support to care homes. It highlights the need to build joint professional leadership from the health, social, and care home sectors, statutory regulators and patient advocacy groups to find solutions.

Home care in London. This paper explores the issue of home-based social care in London. It provides policymakers and commissioners with a clearer idea of what makes for good quality home-based care, the challenges that exist for delivering it, and how the increasing demand can be met. Our research identified three key tests to ensure home-care is of good quality.

Making care safer. This report by the Health Foundation collects together the testimony given by family and carers of people living in a care home, specifically around issues of medication safety. Three day-long focus groups were held in 2010, in Manchester, Birmingham and London. The issues and potential solutions raised by the groups are presented in this report under four main headings: communication and information sharing; prescribing and administration of medication; staff development and support; and advocacy and rights.

Keeping patients safe when they transfer between care providers. This guidance aims to increase the priority given to medicines information transfer and promote best practice in line with existing national initiatives. It has been developed in collaboration with pharmacy, medical, nursing and allied health professional bodies, plus patients, national agencies and health and social care professionals.
 Keeping patients safe when they transfer between care providers - Professional guidance 
 Keeping patients safe when they transfer between care providers - Organisational guidance
 Help get the right medicines when you move care providers.

Bevan Brittan Updates
Housing Allocation: Registered Providers’ responsibility to assist local housing authority. Local authorities have a statutory responsibility to secure suitable accommodation for the occupation of eligible homeless (housing) applicants with priority.  However, many local authorities in England and Wales have transferred their housing stock to social landlords hence the need for assistance from Registered Providers in the discharge of their functions in this area.  Even in cases where a local authority still retains/owns its housing stock, demand for social housing often far outweighs supply such that local authorities have to rely on housing associations to provide accommodation to housing applicants in the discharge of their duty. 

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

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Children

Publications/Guidance
The RCN's UK position on health visiting in the early years. The Royal College of Nursing has published evidence of the important role that health visitors play in the lives of children and families. The briefing provides evidence for health visiting as a means of improving public health in a challenging time for the NHS. The principles position statement sets out core values to guide the development of health visiting across the UK.

Evidence base for Family Nurse Partnership (FNP). The evidence base for FNP is robust with three high quality US trials showing a wide range of positive impacts for children and mothers over the short, medium and longer term. This summary leaflet provides more information on this evidence base.  

Commissioning Guide for Children, Young People and Maternal Health.  Also see executive summary. NHS North West has developed a guide which identifies what the most important child health issues are in the region, and what can be done to improve outcomes. The Guide has been produced through a collaboration of GPs, nurses, therapists, local government and the voluntary sector, and informed by the views of children and carers.

A child-centred system - The Government’s response to the Munro review of child protection. Sets out the Government's response to Professor Eileen Munro’s recommendations to reform the child protection system that were published in May 2011. The response outlines the Government’s intention to build a system focused on the needs, views and experiences of vulnerable children. Ministers agree with Professor Munro that the current system is overly focused on complying with procedures and targets as a measure of success. The new approach is based on developing professional expertise and providing a range of help and services to children and families that meet all their needs. The Government states that it will reduce central regulation and prescription and place greater trust and responsibility in skilled professionals and local leaders to bring about long-term reform.

Where is my advocate? A scoping report on advocacy services for children and young people in England. The Office of the Children's Commissioner has published a report entitled ‘Where is my advocate?', to establish an accurate picture of the advocacy provision available in England. The report suggests that there is a postcode lottery system for children attempting to access advocacy and that no national strategy exists to ensure the entitlements children have are consistently met across England.

Transferring children to and from theatre: RCN position statement and guidance for good practice. This publication aims to support health care staff to develop locally agreed guidelines for the assessment and management of children and young people being transferred between hospital departments, ensuring they are safely transferred to and from theatre.

If you wish to discuss any of the items raised in this section please contact Penelope Radcliffe or Deborah Jeremiah

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Clinical Management

Publications/Guidance
Acute care toolkit for handover. This toolkit aims to provide a framework for standardisation of clinical handover practice, audit and monitoring of the process, and defining accountability and responsibilities in the process.  

If you wish to discuss any of the items raised in this section please contact Jackie Linehan

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Commissioning

Publications/Guidance
The joint strategic needs assessment: a vital tool to guide commissioning. This briefing gives a step-by-step guide to what a joint strategic needs assessment (JSNA) is and lists five principles behind a good JSNA.

Commissioning Guide for Children, Young People and Maternal Health.  Also see executive summary. NHS North West has developed a guide which identifies what the most important child health issues are in the region, and what can be done to improve outcomes. The Guide has been produced through a collaboration of GPs, nurses, therapists, local government and the voluntary sector, and informed by the views of children and carers.

Managing conflicts of interest in clinical commissioning groups. This paper summarises the key points from conversations between NHS Confederation and commissioners, providers, regulators and professional bodies. It also sets out some draft principles that clinical commissioning groups might adopt when developing local policies for managing conflicts of interest, and some outstanding policy questions that may require further consideration and debate.

Developing the NHS Commissioning Board. This document sets out initial proposals from the NHS Commissioning Board development team about how the Board will operate and how it will be organised. It aims to give staff and stakeholders further clarity about the suggested design of the Board, and to serve as the basis of further engagement on how the Board should develop.   

Commissioning cancer services. This best practice document is a transitional update to the Cancer Commissioning Guidance to support the commissioning of cancer services across the NHS. It sets out key issues and questions that commissioners and cancer network teams will wish to take into consideration when assessing local health needs and reviewing services, developing their contract service specifications and monitoring performance. It should be read alongside the Cancer Commissioning Toolkit.

Act & early to avoid A&E - commissioning end of life care: initial actions for new commissioners. The purpose of this briefing is to help identify the immediate priority actions to commission effective end of life care.

Clinical commissioning: securing better outcomes for the NHS and its patients. This discussion paper explains how clinical commissioning holds the key to tackle the three major challenges facing the NHS in England over the next five years: improve the health of the population; reduce health inequalities; and create a service that delivers better services to patients whilst achieving ambitious efficiency savings.

Feasibility of transferring budget and commissioning responsibility for forensic sexual offences examination work from the police to the NHS: evidence base to support the impact assessment. This publication supports an impact assessment that emerged from the feasibility study carried out by HSMC between September 2010 and February 2011. The impact assessment proposes that funding and commissioning responsibility for forensic examinations for sexual offences work should transfer from the police to the NHS, with improved quality standards.

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
Workforce risks and opportunities: nursing and midwifery. This report reviews the key workforce risks and opportunities within the nursing and midwifery workforce in 2011 and beyond. The purpose of this project is to provide an assessment of current workforce issues and potential opportunities for improvement.

A guide to consultant job planning. This guide, written with the British Medical Association, emphasises the need for consultants and managers to work closely together to meet their shared responsibility of providing the best possible patient care within the resources available to them. It highlights the benefits of effective preparation for both managers and consultants and covers objective setting, information gathering, supporting resources which may be required and some of the contractual provisions relevant to component parts of the job plan.

Human resources (HR) transition framework. This framework provides the overarching guiding standards for the Department of Health, NHS and Arm's Length Bodies relating to the movement of employees to the new or changed bodies proposed in the Health and Social Care Bill 2011. It has been developed with employers and Trade Unions, to deliver transparent and fair HR processes for the organisations to which staff and functions may transfer at local and national level.  

Who will care? Protecting employment for older nurses. This guidance provides information for RCN representatives and officers to help them influence health and social care employers to apply good practice in the effective management of the older nursing workforce.
See also
Who will care? Nurses in the later stages of their career. This research provides information about the employment patterns, preferences and retirement decisions of nurses approaching retirement age.

Human resources (HR) transition framework. The HR Transition Framework provides the overarching guiding standards for the Department, NHS and Arm's Length Bodies (ALBs) relating to the movement of employees to the new or changed bodies proposed in the Health and Social Care Bill 2011.

The NHS equal pay toolkit. The toolkit aims to guide employers through their legal responsibilities in relation to equal pay audits. The toolkit builds on the Equality and Human Rights Commission’s work but recognises that the NHS has a national pay structure and job evaluation scheme in place under the Agenda for Change agreement.

Consultations
Supporting our future NHS Workforce: Consultation report. Following a public consultation on proposed changes to the NHS Bursary Scheme, changes have been agreed. This is a report of the outcome of that consultation including a description of the consultation process, key findings and a summary of the responses. An Impact Assessment and Equalities Impact Assessment are being published alongside the consultation report.

News
Law Society Scotland: Social media access in the workplace can expose employers to online defamation.  

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

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Estates

 Publications/Guidance
Good design – it all adds up. This report provides evidence for how well designed buildings can deliver tangible social and economic benefits to those who use them and invest in them. It brings together research from the UK and abroad to illustrate the benefits that good design in housing, education, health, the workplace and public spaces can bring, and what happens if that investment is not made.

Accelerating the release of public sector land for development. This Dear Colleague letter from David Flory, Deputy NHS Chief Executive, sets out points and actions that the NHS can take locally to support the Government’s initiative to release enough public land to build up to 100,000 new homes by 2015.

Legislation
The draft Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 will require statutory sewerage undertakers to take ownership of all private sewers and lateral drains that are connected to the public sewerage system on 1 July 2011. The regulations provide for an overnight transfer of ownership on 1 October 2011. The transfer will apply to residential and commercial properties.

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
Fairer care funding. The Commission on Funding of Care and Support, chaired by Andrew Dilnot, has published its final report on changes to the funding of adult social care in England. It recommends that costs should be capped and the means-tested threshold increased. Instead of individuals paying all their care costs until they have assets of less than £23,250, as under the current system, the proposals would mean that those with high care costs would only pay up to a set amount and after that their care costs would be paid for by the State. The Commission estimates that its proposals, based on a cap of £35,000, would cost the State around £1.7bn.
Among the recommendations in the report are:
 individuals’ lifetime contributions towards their social care costs – which are currently potentially unlimited – should be capped. After the cap is reached, individuals would be eligible for full state support. This cap should be between £25,000 and £50,000. The Commission considers that £35,000 is the most appropriate and fair figure;
 the means-tested threshold, above which people are liable for their full care costs, should be increased from £23,250 to £100,000;
 national eligibility criteria and portable assessments should be introduced to ensure greater consistency;
 all those who enter adulthood with a care and support need should be eligible for free state support immediately rather than being subjected to a means test;
 a new universal deferred payment scheme for anyone who would be unable to afford care charges without selling their home. Local authorities should be allowed to charge interest to recover their costs, to make the scheme cost neutral, and to remove the disincentive they currently face in promoting the scheme;
 new social care legislation should place duties on local authorities to provide information, advice and assistance services in their area, and to stimulate and shape the market for services;
 the Government should review the scope for improving the integration of adult social care with other services in the wider care and support system.
The Government has stated that it welcomes the report. It will consider each recommendation carefully to test whether it meets the wider objectives for reform, including increased personalisation, choice and quality, closer integration of health and social care and greater prevention and early intervention. The Government will need to consider the acknowledged significant costs of implementing the reforms against other calls on constrained resources. The Government wants to create a social care system that offers people and their carers choice and personalised, high quality care. It will be engaging with the care sector over the autumn to develop and refine its priorities and plans for action, bearing in mind the financial context.

Whole of government accounts (WGA). This publication is a consolidated set of financial statements for the UK public sector. The aim of WGA is to enable Parliament and the public better to understand and scrutinise how taxpayers’ money is spent.

Money matters: review of cost-effective initiatives. This is a set of case studies, produced for IRISS by the Institute of Public Care, on initiatives, which through detailed costings, have been shown to be cost effective.

Landscape review: Formula funding of local public services. The National Audit Office has published a review of three formula-based grants from central government to fund local public services. under which £152 billion, one-fifth of all government spending, was allocated in 2011-12. One of the grants reviewed is the Primary Care Trust allocations administered by the Department of Health which are designed to fund services across the majority of healthcare.

Funding the right care and support for everyone. This report recommends the introduction of the first per-patient funding system for palliative care in the NHS. The proposals include the development of a palliative care tariff based on need, a funding system which incentivises good outcomes for patients, irrespective of time and setting, and providing incentives for commissioning integrated care packages which stimulate community services.

The Quarter, quarter 4 2010/11. David Flory’s report for the fourth quarter January to March 2010/11 provides a summary of the NHS financial position and performance against the national priorities set out in the Revision to the Operating Framework for the NHS in England 2010/11. This Quarter shows that the NHS has performed well, and includes a chapter on performance over the winter period which shows that the severe weather in December did challenge the NHS but these challenges were met. Out of 21 measures, it shows the NHS has improved or maintained quality of services in 20 areas, while highlighting only one area (non-admission of under-18 year olds to adult psychiatric wards) where the NHS needs to focus its efforts.

The cost of implementing personal health budgets. This third interim independent evaluation report on the personal health budgets pilot programme looks at set-up costs involved for the 20 in-depth evaluated pilot sites to implement personal health budgets. Costs examined include project management, system development, workforce development and support planning and brokerage.

NHS expenditure. This documents NHS expenditure since 1948, gives a summary of the structure of the NHS and how it is financed and a description of how PCTs are allocated funding.

National Data Collection – Primary and community Care property. Letter from Bob Alexander, Director of NHS Finance, Department of Health, about initiation of data collection exercise in order to provide an England wide picture of the location and status of infrastructure and equipment used to deliver primary and community care.

Sharper axes, lower taxes: big steps to a smaller state. This report published by IDEA (a pro market think-tank) provides a comprehensive spending review, proposing an additional £215bn of public spending cuts, on top of the coalition's current plans. It makes recommendations for two future economic models for funding the NHS.

Legislation
NHS Foundation Trusts and Primary Care Trusts (Transfer of Trust Property) Order 2011 (SI 2011/1552). This Order, which comes into force on 20 July 2011, transfers property held on trust (charitable property) from the NHS Foundations Trusts and PCTs to other NHS bodies, following the transfer of services from the PCT to the NHS body under the Transforming Community Services programme. Order transfers the funds from the body currently holding the funds to the body that will then be the corporate trustees for them. Copies of the schedules of trust property transferred under this Order can be obtained from the Department of Health.

News
Government announces extension of International Accounting Standard 27 to all NHS organisations. HM Treasury has announced that Monitor has agreed to extend the consolidation accounting standard to all NHS organisations from 1 April 2013. This application has been deferred since the adoption of International Financial Reporting Standards across central government on 1 April 2009. This decision will ensure that the highest standards apply to the reporting of public expenditure. The deferral will allow time to achieve consistent and correct application across the NHS. This decision does not affect NHS-linked charities - the regulation of charities remains a separate matter and the responsibility of the Charity Commission.

Bevan Brittan Updates
Public Sector equality duty Public bodies now need to consider the public sector equality duty in their decision making.  In an era of funding cuts the question is when should that duty be carried out and how?  Bevan Brittan is the largest provider of legal services to the public sector and we understand the application of this duty to budget setting and implementation.  

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
Survey of NHS foundation trust governors 2010/11. The objective of the survey was to understand how governors feel about their ability to perform their role, and to identify potential areas for improvement.

Current practice in NHS foundation trust member recruitment and engagement. This report outlines the progress that foundation trusts have made in membership recruitment and engagement.

Case study: University Hospital of South Manchester NHS Foundation Trust. This case study has been prepared with the University Hospital of South Manchester, through interviews with members of its boards of directors and governors, to share the learning from their experience of the trust being in significant breach of its terms of authorisation.

Do hospitals respond to greater autonomy? Evidence from the English NHS. This paper examines the impact of the foundation trust (FT) policy on hospital performance by looking at measures such as financial management, quality of care and staff satisfaction. The paper finds that generally FTs perform better than non-FTs. However, these differences appear to be long-standing rather than the effect of the FT policy per se and there is some evidence of a convergence in hospital performance between FTs and non-FTs. 

NHS Foundation Trusts: consolidated accounts 2010/11. This publication presents the consolidated accounts for the 136 NHS foundation trusts authorised at 31 March 2011.

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

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Freedom of Information 

Publications/Guidance
Release of documents relating to contaminated blood products: litigation over infection of haemophiliacs with HIV. The DH has published documents relating to litigation over infection of haemophiliacs with HIV through contaminated blood products. In addition, the Department made a commitment to release the attached information in response to an earlier FOI request for Ken Clarke's papers related to decisions on haemophiliacs / response to the haemophilia HIV litigation during the late 1980s.

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

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Governance

Publications/Guidance
Better care for people with long-term conditions: the quality and good governance of telehealth service. This report highlights the challenges that currently exist in the healthcare sector and includes a set of detailed recommendations for healthcare commissioners, providers and policy makers to ensure those deploying telehealth services address critical governance, quality and safety issues.

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
Making care safer. This report by the Health Foundation collects together the testimony given by family and carers of people living in a care home, specifically around issues of medication safety. Three day-long focus groups were held in 2010, in Manchester, Birmingham and London. The issues and potential solutions raised by the groups are presented in this report under four main headings: communication and information sharing; prescribing and administration of medication; staff development and support; and advocacy and rights.

Keeping patients safe when they transfer between care providers. This guidance aims to increase the priority given to medicines information transfer and promote best practice in line with existing national initiatives. It has been developed in collaboration with pharmacy, medical, nursing and allied health professional bodies, plus patients, national agencies and health and social care professionals:-
 Keeping patients safe when they transfer between care providers - Professional guidance.
  
Keeping patients safe when they transfer between care providers - Organisational guidance.
 Keeping patients safe when they transfer between care providers - Organisational guidance 

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Infection Control

Consultations
Infection control: guideline consultation. A clinical practice guideline on Infection Control is being developed for use in the NHS in England, Wales and Northern Ireland. Registered stakeholders for this guideline are invited to comment on the provisional recommendations by 07/09/2011.  

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Mental Health

Publications/Guidance
Ten standards for adult in-patient mental healthcare. This report from the Royal College of Psychiatrists describes the ten standards for working-age adult in-patient wards that working psychiatrists believe to be central to wards and high-quality care being delivered effectively.

Five ways to wellbeing. This document contains a set of evidence-based public mental health messages aimed at improving the mental health and wellbeing of the whole population. They were developed by nef (the new economics foundation) as part of the Foresight Project on Mental Capital and Wellbeing. It presents the results of a scoping exercise looking at how the five ways to wellbeing have been used across the UK since their launch as part of the Foresight report in October 2008.

Review into the needs of families bereaved by homicide. This publication by Victims' Commissioner Louise Casey includes the largest ever survey of bereaved families. It calls for a law that will set out rights that the criminal justice system should afford families, as well as the practical help and support they should receive.

National Dementia Strategy: Equalities action plan. This Equalities action plan sets out a series of planned actions in relation to the implementation of the National Dementia Strategy and the Dementia Commissioning Pack. It supplements the Equality Impact Assessment published alongside the National Dementia Strategy in 2009 and has been compiled in line with the requirements of the Equality Act 2010.

Launch of Dementia Commissioning Pack. The Dementia Commissioning Pack provides practical resources for health and social care commissioners to work together to improve the quality of both specialist dementia services and general health and care services for people with dementia and their carers.

Supporting high-risk victims of domestic violence - A review of Multi-Agency Risk Assessment Conferences (MARACs). This report by the Home Office presents the key findings of the review of Multi-Agency Risk Assessment Conferences (MARACs). It includes the case for putting MARACs on a statutory basis.

No health without mental health: guides. These two briefings, aimed at community groups and general practices, explain in practical terms the ways in which general practitioners, community groups and voluntary organisations can improve life chances for people with mental health conditions. Guide for community organisations.

Court of Protection guidance on tenancy agreements, June 2011. The Association of Public Authority Deputies (APAD), and a number of other court users, have asked the court for guidance on how to make applications in relation to signing or terminating tenancy agreements on behalf of adults who lack the mental capacity to understand or sign the agreement themselves. The situation arises mainly where adults with learning disabilities are moved from hospital or care home settings into supported living arrangements in the community, that allow greater autonomy and independent decision making. Many of the adults will have the capacity to make certain decisions, such as dealing with social security benefit payments, but will lack the capacity deal with the tenancy arrangement. The policy of assessing clients to support a move to supported living could affect several hundred adults per year across England and Wales. This guidance has been drawn up with the approval of the Senior Judge of the Court of Protection, and sets out: the circumstances when it is necessary to make an application; the court’s requirements for such applications; and puts in place streamlined procedures for receiving applications in bulk, thereby simplifying some parts of the court procedure.

Guidance on the High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011. The revised Directions come into force on 1 August 2011. New issues covered by the revised Directions include:
       A duty upon the Trusts to co-operate with each other in developing security arrangements.
       Searching of patients involving the removal of clothing
       Specified employment opportunities
       Provision of training
This document contains:
       general information (paras.3-5) about the High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011
       specific guidance about the implementation of certain of the requirements contained in the Directions (paragraph 6).
       general guidance on the manner in which policies (including procedures and protocols) should be produced, and promulgated to staff, within the high security hospitals (paras.7-12).

Forced marriage and mental health. This paper by the Race Equality Foundation considers both the extent of Forced Marriage in the UK, and the impact that Forced Marriage, and other associated problems, such as domestic abuse, can have upon the mental health of its victims.

Cases
PH v (1) A Local Authority (2) Z Ltd (3) R [2011] EWHC 1704 (Fam). Declarations were made pursuant to s.15 of the Mental Capacity Act 2005 that a sufferer of Huntingdon's Disease lacked capacity to make a decision as to his residence and care.

PS v Sunderland City Council (2011) EWHC 1918 (Admin) The  claimant's detention as a patient in a mental health hospital was unlawful because the s3 MHA 1983 application made by the local authority, through an approved mental health professional, was unlawful in itself because the claimant's nearest relative only withdrew her objection to the application because she had been given incorrect and misleading advice. Court also said that this case should not be interpreted as prescribing what amounts to consultation.

Consultations
Safety and Security Directions – response to consultation. Response to consultation on new safety and security directions and guidance for the high secure hospitals

Consultation on preventing suicide in England: a cross-government outcomes strategy to save lives. This document sets out a proposal for a new suicide prevention strategy for England with the aims of reducing the suicide rate and improving support for those bereaved or affected by suicide. The draft strategy brings together knowledge about groups at higher risk of suicide, effective interventions and resources available. The closing date for consultation responses is 11 October 2011. Consultation responses will inform the final strategy, early in 2012.

News
Hospital phobia woman ordered to have surgery. A cancer patient who has a phobia of hospitals should be forced to undergo a life-saving operation if necessary, a High Court judge has ruled.  

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

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Obesity

Cases
R (Condliff) v North Staffordshire PCT [2011] EWCA Civ 910 (CA). The court dismissed C's appeal against the PCT's refusal of his Individual Funding Request (IFR) for laparoscopic gastric by-pass surgery to be funded by the NHS. C suffered from diabetes and had other health disorders; he was morbidly obese, with various associated co-morbidities and his health was deteriorating. His BMI was 43 but the PCT did not fund such surgery for those with a BMI under 50 except on exceptional grounds. C applied for funding but the PCT decided that the evidence did not demonstrate exceptionality. He claimed that the PCT's adoption of an IFR policy by which IFRs were to be considered and determined solely by reference to clinical factors breached his rights under Art.8 ECHR. The court held, dismissing his appeal, that the PCT was entitled to set an IFR policy which reflected what it reasonably considered to be a fair balance between the interests of individuals and the community and a fair balance between different patients with similar health conditions. The PCT's IFR policy did not show a lack of respect for C's private and family life, so as to bring Art.8 into play. Even if art.8 were applicable, there were legitimate equality reasons for the PCT to adopt the policy that it did and its decision was well within the area of discretion or margin of appreciation properly open to it. See also BBC news report

Bevan Brittan Updates
Too fat to fly and other supersized stories. At a time when British women take up the mantle of being the fattest in Europe and NHS Trusts are criticised for a failure to tackle their own staff’s obesity, here are 3 cases arising from the impact of the obesity epidemic not only on the NHS but also further afield. 

If you would like more information about the portal please contact Julie Chappell.

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Primary Care 

 Publications / Guidance
The legacy of primary care trusts. The Government has proposed to abolish PCTs in April 2013. This paper sets out an assessment of the performance of PCTs since their establishment. It examines how effective they have been, as assessed against what they have been asked to deliver. It also examines how their role has changed, as both provider and commissioner, since they were initially established. 

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
The Commons Health Committee has published reports on their annual accountability hearings with the General Medical Council (GMC) and Nursing and Midwifery Council:-
Annual accountability hearing with the NMC
Annual accountability hearing with the GMC

Your choice: how to get better public services. This report argues that whilst the Government is correct to look to choice and competition, it should take an evolutionary approach to change and emphasises the vital role which regulation should play in shaping the development of the market. It also presents a set of requirements for successful public sector reform.

Monitor's annual report and accounts 2010/11. This publication provides a review of the year and includes performance against the priorities set in the 2010/11 business plan.

Consultation
Consultations for regulation of social workers in England. The Health Professions Council has launched two consultations to invite stakeholders for their views on first, its standards of proficiency for social workers in England and second, the threshold level of qualification for entry to the social workers part of the Register. The consultation will run until 18 November 2011.

Consultation on proposed changes to regulations for Care Quality Commission registration. The Care Quality Commission (CQC) took responsibility for the regulation of health and adult social care providers in April 2009. The regulatory framework that CQC operates is underpinned by two main sets of regulations: The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, and The Care Quality Commission (Registration) Regulations 2009. Consultation closes on 7 October 2011. The issues being consulted on fall under three broad headings which are Changes to the extent of regulation; Technical amendments, and Minor clarifications.

News
Government announces extension of International Accounting Standard 27 to all NHS organisations. HM Treasury has announced that Monitor has agreed to extend the consolidation accounting standard to all NHS organisations from 1 April 2013. This application has been deferred since the adoption of International Financial Reporting Standards across central government on 1 April 2009. This decision will ensure that the highest standards apply to the reporting of public expenditure. The deferral will allow time to achieve consistent and correct application across the NHS. This decision does not affect NHS-linked charities - the regulation of charities remains a separate matter and the responsibility of the Charity Commission. 

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

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General

Publications/Guidance
Open Public Services White Paper. Seeks comments on the Government's plans for radical changes to the way in which public services are delivered. The proposals are based on five key principles: Choice; Decentralisation; Diversity; Fair access; and Accountability :-
 People are to have a right to choice enshrined in law. 
 Services will be opened up to new providers, with diversity the default setting, and the State will need to justify why it runs a monopoly service.
 In selected areas, commissioners will have to seek and fully consider a minimum of three providers when they contract for services, and transparently link payment to results. 
Communities and neighbourhoods will be able to commission services at "hyper-local scale".  
 The Government will consult with local authorities about how to further open up locally commissioned services in areas such as customer contact, property and facilities management, family support, back office services, support for looked after children and housing management.
 The Government will look at applying the Foundation Trust model to other public services, and will explore extending different models of increased independence and a more diverse provider base to children’s centres – including considering employee mutuals and how to achieve a greater role for voluntary and private sector providers.
There will now be a “listening period” over the summer, enabling a wide-ranging consultation with individuals, communities, public sector staff, providers and others with an interest in how public services are delivered. This will be followed in November by details of how Departments will take forward ideas to implement open public services over the rest of this Parliament, including proposals for legislation.
Bevan Brittan has published an overview of the White Paper's proposals and their implications for public bodies: Public services open for business.

The national framework for NHS continuing healthcare and NHS-funded nursing care - July 2009 (revised). The revised framework has been produced as a result of a commitment to review the national framework within 12 months of its publication. It clarifies and supports consistency in the determination of eligibility for NHS continuing healthcare and NHS funded nursing care. NHS bodies and local authorities are encouraged to work together to prepare for implementation in October 2009

Operational guidance to the NHS: extending patient choice of provider. Guidance for the NHS on extending patient choice of provider with accompanying impact assessment and equalities analysis. It takes into account the relevant issues raised in response to the consultation 'Liberating the NHS: Greater choice and control', and the NHS Listening Exercise. From April 2012, the Government will begin rolling out selected community and mental health services for competition between external providers. This document provides guidance to providers and commissioners on implementation of the Government commitment to extend patient choice of provider. Crucially for providers, the next steps in implementing the Any Qualified Provider (AQP) strategy are:
 By October 2011 providers should participate in local engagement processes being led by commissioners, which will inform decisions about where offering choice of provider will improve services.
 Between April and September 2012, providers will need to consider if they wish to respond to invitations to deliver services through the AQP model.
 Qualified providers will need to register for payment purposes and will be held to account for monitoring quality via the NHS Standard Contract. Details of how potential providers will be qualified will be published in Autumn 2011.
The type of services opened to external competition will increase in 2013 dependent on the success of competition in the above areas.
More information is on the DH Modernisation Hub.
The Government has also published its response to the consultation on extending patient choice of provider (any qualified provider).

Number of patients staying in mixed sex accommodation continues to fall. New statistics show that since December 2010, when monthly collection of mixed sex accommodation was first introduced, the number of reported breaches has fallen by 84 per cent. In June 2011, hospitals reported that 1,933 patients were placed in mixed-sex accommodation without any justification. This compares to 2,011 for May 2011 – a decrease of 4 per cent.

Reablement: policy, research and practice briefing. Reablement is a key policy priority for health and social care in increasing independence, reducing costs and promoting partnership work. This briefing examines the evidence around reablement in terms of the implications for practice and has identified the main areas that local authorities need to consider.

NHS Chief Executive Innovation review - call for evidence and ideas. The NHS Chief Executive has asked Sir Ian Carruthers to lead a review on his behalf on how the spread of innovations can be accelerated across the NHS and produce a report in November 2011 that will inform the strategic approach to innovation in the modernised NHS.

The performance of the health sector in meeting the Public Sector Equality Duties. Moving towards effective equality outcomes. This research report examines performance on the former race, disability and gender equality duties by Strategic Health Authorities and Primary Care Trusts in England. These duties were replaced by the new public sector equality duty in April 2011.

Palliative care for older people: better practices. This publication provides examples of better palliative care for older people to help governments, policy-makers, practitioners and voluntary and statutory organisations meet the needs of this vulnerable population.

Right to run. This publication provides guidance to public sector workers who are interested in setting up a social enterprise or mutual. It outlines every stage of the process, provides a checklist of actions and examples of successful case studies.

E Health competency framework: defining the role of the expert clinician. This framework has been developed to define the knowledge, skills and behaviours that are required by practising clinicians who have a role in eHealth at a local, regional or national level. The framework covers a broad range of domains from generic competences required by all, such as the safe and secure management of health information, to areas of in depth informatics knowledge which may only be required by a limited number of individuals.

Achieving equality in organ donation and transplantation in the UK: challenges and solutions. The combination of low numbers of black and minority ethnic organ donors and the higher prevalence of conditions such as diabetes and hepatitis mean that these communities are disproportionately represented on transplant lists. This results in minority ethnic patients waiting on average twice as long for some transplants as their white counterparts. This paper promotes a 'two-pronged' approach, tackling barriers to black and minority ethnic groups organ donation in the short term and employing longer term preventative medical interventions which may reduce the need for organs in these communities in the future.

Shared value: rebuilding pharma's contract with society. This report explores the growing challenge of reconciling unmet patient need with pharmaceutical R&D, in the context of changes in what society is willing to pay for and concerns among investors about the return on investment. It concludes that the industry needs to reframe its social contract to ensure that market signals about unmet patient need and incentives for R&D are better aligned, and offers recommendations to society, industry and investors to help make this happen.

The Discharge Summary Implementation Toolkit has been produced with the aim to help trusts implement the nationally-agreed Discharge Summary. It is intended that this will improve the information provided to patients and create a better way of patients and GPs working together in an informed manner, and in turn could result in a reduction of readmissions.

Can we measure "failure to rescue"? "Failure to rescue" refers to a death after a treatable complication. The rate of failure to rescue in surgical patients derived from routine administrative data is recognized as an important indicator of patient safety by the United States Agency for Healthcare Research. In this report a consideration is given to whether these methods can be used in England.

Post-legislative assessment of the Health Act 2006. Government departments are obliged to undertake a preliminary assessment of the Acts they are responsible for since 2005 and within three to five years after an Act has received Royal Assent. This is a preliminary assessment of the Health Act 2006. The main purposes of the Act are: to ensure protection from the health dangers of secondhand tobacco smoke; to provide a statutory footing to reduce levels of health care associated infection; to provide for safer management of controlled drugs, and improvements to pharmacy and ophthalmic services, as well as changes to the administration of the NHS.

Taking stock of regenerative medicine in the United Kingdom. This DBIS report establishes that the UK retains a leading position in Europe and globally in the science and commercial translation of regenerative medicine. The quality of work in research and academia is world class, supported by a strict but permissive legislative and regulatory framework that is helping innovation to flourish. The UK is at the forefront of this rapidly evolving technology and is in a good position to take advantage of its promise. However, despite the huge potential to deliver new treatments and commercial successes, regenerative medicine also faces some key challenges. In the context of these challenges and significant investment by Government, this report takes stock of developments across the development pathway.

Living well at home. The All Party Parliamentary Group on Housing and Care has produced a report from its Inquiry into 'Living Well at Home' .

Management of blood-exposure in police officers. This is a letter from National Clinical Director for Urgent and Emergency Care Professor Matthew Cooke to NHS trusts. It clarifies existing policy on the need for officers to receive assessment, and any necessary initial post exposure prophylaxis treatment, following exposure to the blood of others.

An outcomes strategy for people with chronic obstructive pulmonary disease (COPD) and asthma in England. At present, COPD is the second most common cause of emergency admission to hospital and is one of the most costly diseases in terms of acute hospital care. Asthma also poses clear resource pressures on the NHS. This strategy sets out six shared objectives to improve outcomes for COPD and asthma through high-quality prevention, detection and treatment and care services.
See also the Government response to the consultation on the outcomes strategy.

System reset: transforming public services through IT. The Government faces a huge challenge in tackling the UK's budget deficit. This report shows that IT is already making many public service transactions easier for citizens and reducing costs within government, and more could be done. It identifies solutions to ten challenges that Government must overcome to ensure IT has a transformative role in public service delivery.

High quality women’s health care: a proposal for change. This report proposes significant changes to the way NHS women’s health services are structured. The report concludes that the combined force of the NHS reforms, workforce and financial pressures against a backdrop of rising demand, increasing complexity and changes in demographics means that the delivery of women’s health care in the current configuration cannot be sustained.

In this together: building knowledge about co-production. This report tells the stories of people who are improving public services by working with the people who use them and delivering public services in a radically different way. It describes a range of practical projects and includes personal testimonies from individuals directly involved. These examples demonstrate reciprocal relationships between professionals, people using services, their families and neighbours – an approach known as ‘co-production’.

Using social media: practical and ethical guidance for doctors and medical students. This guidance provides a brief overview of the challenges and potential pitfalls that health professionals may encounter when using social media. It gives practical and ethical guidance on a range of subjects including, protecting patient confidentiality, defamation, the public-private boundary and the potential impact of social media use on medical education and employment.

Piloting Payment by Results for drugs recovery - draft outcome definitions. Following the announcement of the eight pilot sites in April 2011, work has been taking place to develop and implement pilots exploring how to incentivise drug and alcohol recovery systems to improve delivery of outcomes.

Cases
Nield and Acromas Insurance Co Ltd v Loveday ( 13 July 2011) (Div Ct). A claimant who had brought a personal injury action following a RTA was sent to prison for nine months for contempt as he had verified his statement of claim and witness statement despite knowing that they contained much false information which tended to exaggerate the value of his claim. His wife, who had verified false statements to support his claim, admitted her contempt and was given a suspended six-month sentence.

Legislation
Bribery Act 2010 (Consequential Amendments) Order 2011 (SI 2011/1441). This Order, which came into force on 1 July 2011, makes consequential amendments to secondary legislation to take account of the abolition of the common law offences of bribery and embracery, and the repeal of the Public Bodies Corrupt Practices Act 1889, and the Prevention of Corruption Acts 1906 and 1916 by the Bribery Act 2010. The changes include amending reg.23 of the Public Contracts Regulations 2006 to make section 1 and section 6 offences mandatory grounds for exclusion.
See also Bribery Act 2010 – Guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010). The Bribery Act 2010, which came into force on 1 July 2011, creates a new offence under s.7 which can be committed by commercial organisations which fail to prevent persons associated with them from bribing another person on their behalf. An organisation that can prove it has adequate procedures in place to prevent persons associated with it from bribing will have a defence to the s.7 offence. This statutory guidance helps commercial organisations of all sizes and sectors understand what sorts of procedures they can put in place to prevent bribery. There is also a non-statutory Quick Start Guide which sets out the key points.
NB: Although the guidance refers to "commercial organisations", the DH considers that it will catch NHS Bodies such as PCTs, NHS Trusts, FTs, SHAs and special health authorities and any incorporated body that engages in commercial activities whether or not it pursues primarily charitable or education aims or purely public functions.

News
Quality and safety standards report: Castlebeck Care (Teesdale) Ltd. The Care Quality Commission has published details of the enforcement action it has taken against Castlebeck Care (Teesdale) Ltd which failed to protect the safety and welfare of patients at Winterbourne View. The effect of this action is that the assessment and treatment centre near Bristol has been closed. 

NHS hospital wins right to challenge closure of children's heart surgery unit.

Bevan Brittan Updates
Claims case round-up. In this month's cases round-up, Ed Duckworth looks at some further developments on Part 36 offers, how easy it is to change experts and whether a potential Claimant can sell their claim on. 

Expert Immunity - decision overdue? In this article, Raj Kang, reviews the recent landmark case of Jones v Kaney where expert witnesses have lost their 400 year old immunity from being sued in civil courts.  The full ramifications of this decision are yet to emerge but it is clear that the implications are far-reaching.

Is this claim exaggerated? – six steps to check. Defendants often feel that claims they are presented with are excessive and, occasionally, potentially fraudulent.  Recent case law indicates that Judges are not always sympathetic towards allegations by Defendants of fraud or exaggeration (see below). Such allegations need to be pleaded in a Defence supported by a statement of truth so this is not a step which will be taken lightly. It is therefore crucial that attempts are made to resolve any quantum disputes before trial and to ensure that ample evidence is obtained. This article describes the steps that can be utilised to dispute heads of loss that do not add up.

Fraud scam - Suppliers' changing bank details. Bevan Brittan LLP is aware of a new kind of fraud that is becoming prevalent in the marketplace. The fraud is relatively easy to operate and thus easy to avoid from the point of view of the victim.

Public services open for business. The Government has finally launched its White Paper on reforming public services, that it has trailed as critical to reform in health, education, social care, welfare and housing and would affect all citizens. In this article, we provide an overview of the proposals and consider their implications for public bodies.  

Bevan Brittan Training
Bevan Brittan is commited to providing you with first class training on topical issues relevant to your organisation. Here is a list of ‘dates for your diary’. You will be invited to attend events relevant to you and your organisation in due course.

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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