Health and Social Care Update August 2013

Legal intelligence for professionals in health and social care

Bevan Brittan provides high quality, comprehensive advice to the NHS and independent healthcare sector. This Update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in health and social care work, both in the NHS and independent sector 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	Information and Data Sharing
Clinical Risk/Health and Safety	Inquests
Commissioning	Mental Health
Complaints	Primary Care
Employment/HR	Public Health
Finance	Regulation
Foundation Trusts	General

Care

Publications/Guidance
The Cavendish review: an independent review into healthcare assistants and support workers in the NHS and social care settings. This independent review by Camilla Cavendish makes a number of recommendations on how the training and support of both healthcare assistants who work in hospitals, and social care support workers who are employed in care homes and people’s own homes, can be improved to ensure they provide care to the highest standard. It proposes that all healthcare assistants and social care support workers should undergo the same basic training, based on the best practice that already exists in the system, and must get a standard ‘certificate of fundamental care’ before they can care for people unsupervised.

Care home top-up fees: the secret subsidy. This report argues that some families end up subsidising elderly relatives’ care home fees because councils do not give them the advice and support they’re legally obliged to provide.

More care, less pathway: a review of the Liverpool Care Pathway.This report sets out recommendations regarding the Liverpool Care Pathway (LCP) and end of life care following an independent review of the LCP chaired by Baroness Julia Neuberger. The panel recommends that use of the LCP should be phased out over the next six to 12 months, and be replaced by a personalised end of life care plan, backed up by good practice guidance specific to disease groups. Other recommendations include:
 a general principle that a patient should only be placed on the LCP or a similar approach by a senior responsible clinician in consultation with the healthcare team;
 unless there is a very good reason, a decision to withdraw or not to start a life-prolonging treatment should not be taken during any ‘out of hours’ period;
an urgent call for the Nursing and Midwifery Council to issue guidance on end of life care;
 an end to incentive payments for use of the LCP and similar approaches; and
 a new system-wide approach to improving the quality of care for the dying.
The Care and Support Minister Norman Lamb has written to all NHS Trusts outlining the action to be taken following the review of the Liverpool Care Pathway. The Government will issue a full response to the Review in the autumn. He asks all Trusts to ensure that they provide the option of an independent assessor for complaints about the LCP or similar pathways, and to support this, the DH will shortly publish a list of independent experts who will be available to patients, their families and carers, and Trusts. Trusts should also consider whether new evidence exists that would warrant a re-examination by the trust of past complaints about the LCP or similar pathway. They should appoint a Board member with the responsibility for overseeing any complaints about end of life care and for reviewing how end of life care is provided.

Guidance for doctors and nurses caring for people in the last days of life. This guidance has been issued by the National Council for Palliative Care as interim guidance following the independent review of the Liverpool Care Pathway (LCP). It aims to settle uncertainties with respect to the immediate care of patients and stresses where the LCP is being used properly, this should not stop abruptly.

Commissioning care and support for older people with high support needs. Practical guidance for commissioners of older people’s services on the range of models and approaches available for supporting older people with high support needs. It describes the options that are available, what makes them successful and beneficial, and suggests five priorities for commissioners.

Divided in dying. This report highlights the need for better advance care planning at the end of life and the urgent need to put in place workable guidance to replace the Liverpool Care Pathway as soon as possible. The report found that almost half of those who have lost someone close to them through a short or long illness, feel their loved one died badly (45%). In cases where the dying person had recorded their end of life wishes, relatives and friends are more likely to report that they had a good death (58%).

Consultations
Caring for our future: consultation on reforming what and how people pay for their care and support. Seeks views on the practical details of how the changes to the funding system should happen and be organised locally. The issues that the consultation will be exploring in particular are: how the capped costs system should work; how the deferred payments should be administered; and how people should be supported in making informed choices about their care. The consultation closes on 25 October 2013.  

If you wish to discuss any queries you may have around care please contact Stuart Marchant.

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Children

Publications/guidance
Commissioning children’s palliative care: a guide for Clinical Commissioning Groups (CCGs). This document describes the population of children who need palliative care; the services and professionals who provide it; and recommendations for the commissioning of children’s palliative care within the context of the five stages of commissioning set out by the NHS Institute for Innovation and Improvement.

National child measurement programme: operational guidance for the 2013 to 2014 school year. This annual guidance advises local commissioners and providers of the national child measurement programme on how the programme should be implemented. The programme is part of the Government’s commitment to tackling the public health challenge of excess weight.

Designing and commissioning services for children and young people with asthma: a good practice guide. This guidance aims to help guide commissioners, service developers and providers on best practice asthma care. It sets out the 20 points that good asthma services need to include, and highlights what commissioners can do to drive improved asthma care at each part of the care pathway, with examples of good practice at each step.

Consultations
Should children be involved in clinical research? Would you let your child take part in clinical research? How much say should children have in these decisions? Should they be encouraged? These and other such questions are at the heart of a new inquiry from the Nuffield Council on Bioethics, which has today opened a consultation on the ethical issues arising from children taking part in clinical research. The consultation seeks the views of young people, parents, professionals involved in clinical research with children and young people and anyone else with an interest in these issues. 

If you wish to discuss any queries you may have around children please contact Deborah Jeremiah or Penelope Radcliffe.

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Clinical Risk/Health and Safety

Publications/Guidance
The safer management of controlled drugs: annual report 2012. This sixth annual report into the management of controlled drugs covers the year ending 31st December 2012. It covers all schedules of controlled drugs, including narcotics, amphetamines and anabolic steroids. It warns that whilst the arrangements for monitoring controlled drugs have worked well over the past six years, continued vigilance is needed to make sure this good practice continues.

‘Care left undone’ during nursing shifts: associations with workload and perceived quality of care. This report aims to examine the nature and prevalence of care left undone by nurses in English National Health Service hospitals and to assess whether the number of missed care episodes is associated with nurse staffing levels and nurse ratings of the quality of nursing care and patient safety environment. It recommends that hospitals could use a nurse-rated assessment of ‘missed care’ as an early warning measure to identify wards with inadequate nurse staffing.

A promise to learn – a commitment to act: improving the safety of patients in England. Professor Don Berwick was asked by the Prime Minister to carry out a review of patient safety following publication of the Francis Report into the breakdown of care at Mid Staffordshire Hospitals. His four key findings are that:
 The quality of patient care, especially patient safety, should be paramount;
 Patients and carers must be empowered, engaged and heard;
 Staff should be supported to develop themselves and improve what they do; and
 There should be complete transparency of data to improve care;
The report makes a number of recommendations; however, it does not recommend that a statutory duty of candour for healthcare workers is introduced – instead it finds that this duty is adequately addressed in professional codes of conduct and guidance. Above all else, the report argues that cultural change is the most important factor in continuously reducing harm. It distinguishes clearly between mistakes and negligence and the need for a transparent culture where mistakes are reported and learnt from. The report is clear that the most important task for the NHS is to build a culture of learning and improvement. It aims to complement rather than duplicate the Francis Inquiry, which has already made 290 concrete recommendations for change.

Safer Wards, Safer Hospitals Technology Fund update. NHS England has announced an update on the Safer Hospitals, Safer Wards Technology Fund which offers NHS Foundation Trusts and NHS Trusts access to a £260m technology fund, after the deadline for Expressions of Interest closed on 31 July.

Guidance for employers on sharing information about a healthcare worker where a risk to public or patient safety has been identified. This document outlines a set of key principles for employers to consider in relation to the sharing of relevant information between the private and public health sectors, when the conduct or performance of a healthcare worker comes into question and a substantiated risk to patient or public safety has been identified. It specifically focuses on strengthening existing policy and legislative levers, and includes a number of tools to help employers ensure that workable measures are introduced within their organisations which facilitate the sharing of relevant information in the interest of patient and public safety.

Review into the quality of care and treatment provided by 14 hospital trusts in England: overview report. Sir Bruce Keogh has published his final report following his investigation of 14 NHS trusts in England as part of a review into higher-than-expected hospital death rates. He found that, while there were some examples of good care, none of the 14 hospitals investigated was providing consistently high quality care to patients. They identified patterns across many of the hospitals. As well as the national overview report, which outlines all key findings and recommendations, there are also final reports for each individual hospital trust.
The Health Minister has announced that all 14 Trusts investigated by Professor Sir Bruce Keogh’s review team will have to undertake strict improvement plans and 11 will be placed into “special measures” to ensure that Sir Bruce’s recommendations are fully implemented and patient care improves.

Delivering safe care, compassionate care. Sets out the Welsh Government's findings about lessons for Wales from the report of the Mid Staffordshire NHS FT Public Inquiry. It re-states the core values of the NHS in Wales, and how they will be preserved in the future.

The Francis report (report of the Mid-Staffordshire NHS foundation trust public inquiry) and the Government’s response. This briefing sets out the main issues arising from the public inquiry led by Robert Francis QC, and other preceding reports, into serious failings in care at Mid-Staffordshire NHS Foundation Trust. It also provides some information on the Government’s response to the Francis report, which was published on 6 February 2013.

Workplace health and safety standards. This revised version of these standards include updated chapters on health and safety management systems to reflect HSE’s Plan, Do, Check Act process; lone working and an updated chapter on sharps injuries reflecting the new health and safety (sharps instruments in healthcare) regulations 2013, as well as updated links and signposts to all relevant information.

Cases
R (Nicklinson and Lamb) v Ministry of Justice; DPP and Attorney General (Interested Parties); CNK Alliance Ltd (Care Not Killing) and British Humanist Association (Interveners); R (AM) v Director of Public Prosecutions [2013] EWCA Civ 961 (CA). The Court of Appeal has dismissed appeals brought by three people with catastrophic physical disabilities concerning the illegality of assisted suicide and euthanasia. The court refused to create a defence of necessity to a charge of murder or assisting suicide. It found that the blanket legal prohibition on providing assistance to those wishing to die was not a disproportionate interference with Art.8 ECHR. However, the DPP's policy concerning the factors to be taken into account when deciding whether to prosecute such cases was insufficiently clear in relation to healthcare professionals.
See also Court of Appeal assisted suicide judgment – CPS statement. In a statement made in relation to the Court of Appeal's decision on assisted suicide, Director of Public Prosecutions Keir Starmer said that while he respects the court's judgment, he believes it would be appropriate for the Crown Prosecution Service, if possible, to have the benefit of the views of the Supreme Court before any amendments are made to the DPP's Guidelines in this area of the law. An application has been made by the CPS for permission to appeal to the Supreme Court.

Bevan Brittan Updates
“A promise to learn – a commitment to act” – The Berwick Review on Improving the Safety of Patients in England. Last week saw the publication of the report of the National Advisory Group, chaired by Professor Don Berwick, on improving the safety of patients in England (“the Report”). The Report was heralded as one of the centrepieces of the Government’s response to Robert Francis QC’s report into the Mid Staffs Inquiry in February; at the time of receiving that report David Cameron said he had asked Don Berwick “to make zero harm a reality in the NHS” stating that “bedsores and hospital infections… are unacceptable - end of story”.

The Berwick Review on Improving the Safety of Patients in England - Implications for the Independent Sector. Last week saw the publication of the report of the National Advisory Group, chaired by Professor Don Berwick, on improving the safety of patients in England (“the Report”). An interesting feature of the Report is the extent to which it also impacts upon the independent sector which this alert examines.  

If you wish to discuss any clinical risk or health and safety issues please contact Joanna Lloyd, Stuart Marchant or Julie Chappell.

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Commissioning

Publications/Guidance
Approved costing guidance. This guide sets out costing principles, costing standards, and guidance for both reference costs and patient-level information and costing systems collections for 2012/13. It also gives details of the requirements that providers of NHS-funded services will need to comply with to meet the pricing conditions of the NHS provider licence.

Commissioning care and support for older people with high support needs. Practical guidance for commissioners of older people’s services on the range of models and approaches available for supporting older people with high support needs. It describes the options that are available, what makes them successful and beneficial, and suggests five priorities for commissioners.

Resources for commissioners of women's health services. This new e-resource aims to support CCGs and NHS England in the commissioning of women’s health services. It brings together standards for hospital-based obstetric and gynaecological care with community-based sexual and reproductive healthcare advice. It is also accompanied by a digital booklet, which provides a brief introduction to the medical specialties and highlights examples of best practice and innovation in UK health organisations.

European cross-border healthcare: information for commissioners. Sets out the associated roles and responsibilities of NHS England, CCGs and CSUs and summarises the requirements of the EU Directive on cross border healthcare, which became UK law in October 2013.

Commissioning for carers: Key principles for Clinical Commissioning Groups. This guidance from the Carers' Trust demonstrates how commissioning for carers can help CCGs deliver desired outcomes and make savings across health and social care.

Designing and commissioning services for children and young people with asthma: a good practice guide. This guidance aims to help guide commissioners, service developers and providers on best practice asthma care. It sets out the 20 points that good asthma services need to include, and highlights what commissioners can do to drive improved asthma care at each part of the care pathway, with examples of good practice at each step.

News
A further 46 CCGs make significant progress in clearing conditions and directions in the post Authorisation process. NHS England has announced that a further 46 CCGs have fully discharged their conditions and directions, meaning they’ve satisfied the all 119 criteria, while two CCGs with legal directions have addressed all their concerns and the legal directions lifted. This means that a total of 152 (72%) CCGs are free of all conditions placed upon them by NHS England. The number of CCGs with directions has been reduced from 14 to 8 and two CCGs that had legal directions in place are now recommended for full authorisation.

Bevan Brittan Updates
Commissioning Outcome-Based Incentivised Contracts. Fragmented care pathways can deliver suboptimal patient experiences and, when combined with perverse incentives from the financial structure, often mean increased costs and poor value for money. These problems can be addressed if the same care is delivered through a seamless and efficient care pathway. This is why CCGs are starting to consider using a model of outcome based commissioning with an accountable lead provider (also known as "COBIC" or Capitated Outcome-Based Incentivised Contracts) to deliver care to patients with health needs that span domiciliary, primary, community and acute care. Examples of this approach include the delivery of substance misuse services in Milton Keynes, and in procurement are musculoskeletal services in Bedford and frail elderly care services in Oxfordshire.

If you wish to discuss the issue of commissioning please contact David Owens.

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Complaints

Publications/Guidance
NHS hospital complaints. The Parliamentary & Health Services Ombudsman has published three pieces of research that aim to support the government review into how NHS hospitals deal with complaints:
 The NHS hospital complaints system: a case for urgent treatment?: analyses the evidence from example cases and explores the themes underlying patient’s experience of complaint handling;
 NHS governance of complaints handling: gathers evidence of how NHS trust boards use information from complaints to put things right and to learn;
 Designing good together: transforming hospital complaint handling: outlines feedback from patients, complainants, carers and NHS staff who participated in a two-day workshop on the NHS hospital complaints system.

If you wish to discuss the issue of complaints more generally please contact Julie Chappell.

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Employment/HR

Publications/Guidance
Using social media in your recruitment process: the essential guide for HR directors and managers. This briefing is aimed at HR directors and managers and looks at how NHS organisations can utilise social media platforms to increase the number of job applications; and also how a permissive approach to social media can improve an organisation's recruitment success.

New to managing doctors? A guide for HR practitioners. The transition to the new NHS architecture has meant some HR practitioners may be working with doctors for the first time. This guide signposts those new to managing doctors to information on this new aspect of the role.

Hospital locums quality assurance survey. The NHS Revalidation Support Team is seeking employer feedback about quality assurance arrangements for hospital locums. The survey is aimed at HR directors, workforce managers and medical staffing managers of secondary care and mental health organisations and runs until 25 August 2013.

Supporting medical students with mental health conditions. This guidance provides advice to medical schools on all aspects of supporting medical students with mental health conditions. It includes suggesting preventative measures that may help to reduce mental health problems in their students, the use of occupational health and how to handle students with mental health conditions in relation to fitness to practise.

Guidance for employers on the sharing of information about healthcare workers. Guidance for employers on sharing information about healthcare workers has been produced in partnership with the Independent Healthcare Advisory Services (IHAS). This document outlines a set of key principles for employers to consider in relation to the sharing of relevant information between the private and public health sectors, when the conduct or performance of a healthcare worker comes into question, and a substantiated risk to patient or public safety has been identified.

Medical education’s front line: a review of training in seven emergency medicine departmentsThis review found that high workloads and inconsistent supervision are putting off doctors from training in emergency medicine. The findings come from GMC checks on the training of doctors at six emergency medicine departments in England and one in Jersey over a two-month period. Concerns ranged from a lack of supervision of doctors in training at night to inadequate staffing levels. The report identifies a number of ways in which NHS trusts may be able to improve the quality of education and training in emergency medicine.

NHS working longer review. The NHS Working Longer Review group commissioned Bath University to undertake an audit of existing research into the impact of working beyond aged 60. This was to provide the review group with an understanding of what evidence is already available in relation to the impact of people working beyond 60 on a number of key areas. The final report addresses NHS capacity and performance; workforce demographics; 50+ employment migration; push and pull variables; and staff retention.

NHS job evaluation handbook (fourth edition). This handbook has been updated to reflect the changes in the NHS and the end of central funding in England for Computer Aided Job Evaluation system.

How do they manage? A qualitative study of the realities of middle and front-line management work in health care. This project addressed three questions. First, how are middle management roles in acute care settings changing, and what are the implications of these developments? Second, how are changes managed following serious incidents, when recommendations from investigations are not always acted on? Third, how are clinical and organisational outcomes influenced by management practice, and what properties should an ‘enabling environment’ possess to support those contributions? Recommendations for future research concern the assessment of management capacity, the advantages and drawbacks of service-line organisation structures, the incidence and implications of extreme managerial jobs, evaluating alternative serious incident investigation methods, and the applicability of high-reliability organisation perspectives in acute care settings.

Survey on female leaders in healthcare. This survey, conducted in conjunction with the HSJ, suggests that women are still facing barriers to becoming senior leaders in the NHS. Just under half of the respondents thought having children put their career at a disadvantage, and two thirds felt a greater pressure to prove themselves than their male counterparts. Other respondents said that they struggled with a culture of an old boys’ network and attitudes to women leaders. Over a third said they had encountered sexual discrimination and over half said they had been bullied in the workplace.

Preparing for your F1 post. This resource for foundation year doctors in the UK draws on the experience of doctors and risk management professionals to prepare F1 doctors for their foundation year. It covers medico-legal scenarios which may be encountered as well as preparing F1 doctors for any time management challenges which may arise.

Consultations
Engagement exercise on information for nurses and midwives about professional indemnity insurance as a condition of registration. Views are sought on draft information on the new professional indemnity insurance requirement, which becomes a condition of registration with the Nursing and Midwifery Council (NMC) from winter 2013. It will also become mandatory under the NMC Code. The consultation is open until 6 September 2013.

Consultation on the profession-specific standards of proficiency for operating department practitioners. These standards of proficiency explain the key obligations that the HCPC expects of registered health, psychological, and social care professionals. They contain generic standards that apply to all registrants, and profession-specific standards that set out the different requirements for specific professions. The review is an opportunity to make sure the standards of proficiency are relevant to each profession. The closing date for comments and feedback is 18 October 2013.

News
Consultant contract – heads of terms agreed. Announces that NHS Employers has published draft heads of terms for possible reform of the consultants' contract, which have been jointly agreed by the BMA. The document sets out a framework for future detailed negotiations on amendments to the current consultant contract in England and Northern Ireland and to the Clinical Excellence Awards scheme.

Bevan Brittan Updates
Employment news round-up, July 2013. Aside from news of the new Royal Prince, the other hotly anticipated media event of this month is (possibly) Mike Smith's round-up of July's employment law developments. William and Kate will not be the only people adjusting to a new world of change this month: in the employment law sphere, we have seen some key developments this month, including the introduction of fees in the employment tribunal and employment appeal tribunal, new employment tribunal rules, the re-naming of Compromise Agreements as 'Settlement Agreements' and the introduction of ‘pre-termination discussions’. We also report on the ‘employee shareholder’ scheme and a new whistleblowing call for evidence.

Establishment challenged – redundancy law rewritten. In a ground-breaking decision, the Employment Appeal Tribunal (EAT) has made a major change to collective redundancy law. The EAT looked at whether the collective redundancy consultation duty is triggered when 20 or more employees across a whole organisation are potentially affected by proposed redundancies; or when 20 or more employees are potentially affected at any individual establishment, within the larger organisation (such as various regional offices)? As the EAT characterised it, should employers take a site by site 'atomised' approach or a 'holistic' approach? As Julian Hoskins reports, the EAT has said that a holistic approach should be taken, thereby dramatically widening the scope for employers' collective consultation obligations to bite.

How far must an employer go to make reasonable adjustments? Should an employer always waive the requirement for a competitive interview where a disabled employee would be 'substantially disadvantaged ' by the process? In the case of Wade v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) considered whether a university breached its duty to make reasonable adjustments by refusing to waive a competitive interview requirement. The EAT held that an employer will not be expected to transfer a disabled employee to a role without an interview if the employer genuinely believes the employee to be unsuitable. Alastair Currie reports.

TUPE Regulations officially 'static' As we reported in our recent Alert, the European Court of Justice has published its long awaited decision on whether the TUPE Regulations are 'static' or 'dynamic' in relation to the enforceability of collective agreements on a public to private sector TUPE transfer. As Sarah Lamont (a nationally recognised authority in this area) explains, this decision is highly relevant to private to public sector outsourcing exercises.

If you require further information about any of the items raised in this section please contact Julian Hoskins or James Gutteridge.

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Finance

Publications/Guidance
Approved costing guidance. This guide sets out costing principles, costing standards, and guidance for both reference costs and patient-level information and costing systems collections for 2012/13. It also gives details of the requirements that providers of NHS-funded services will need to comply with to meet the pricing conditions of the NHS provider licence.

Personal health budgets (PHBs) - a revolution in personalisation. This report responds to public and GP key fears about the government introduction of PHBs. It describes how patients make decisions normally made by a GP; what could happen to traditional services and asks whether NHS money should be spent on non-traditional equipment and activities.

Payment by Results Q&A for 2013-14. This additional guidance has been issued in response to feedback on the existing guidance for 2013-14.

National Audit Office 2012-13 update on indicators of financial sustainability in the NHS. There was a surplus of £2.1bn across the NHS in 2012-13, matching that in 2011-12. However, there are signs of increasing pressure.

NHS staff: social indicators. This briefing note provides overview statistical information on the NHS workforce in England.

2012-13 update on indicators of financial sustainability in the NHS. This update report found that there was a surplus of £2.1 billion across the NHS as a whole in 2012-13, matching that in 2011-12. Measured by the total surplus or deficit of hospital trusts, financial performance for the NHS appears stronger in 2012-13 than it did in 2011-12 however there are signs of increasing pressure.

Consultations 
Caring for our future: consultation on reforming what and how people pay for their care and support. Seeks views on the practical details of how the changes to the funding system should happen and be organised locally. The issues that the consultation will be exploring in particular are: how the capped costs system should work; how the deferred payments should be administered; and how people should be supported in making informed choices about their care. The consultation closes on 25 October 2013.

News
Prime Minister announces £500 million to relieve pressures on A&E. Announces funding for A&E departments identified as being under the most pressure over the next two years to ensure they are fully prepared for winter. It will be targeted at ‘pinch points’ in local services. There will also be a £15m cash injection to NHS 111 to prepare the service for potential winter pressures. Professor Sir Bruce Keogh is leading a review into the demands on urgent and emergency care and how the NHS should respond; he will report in the autumn.

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
Your statutory duties: A reference guide for NHS foundation trust governors. This Monitor guide lays out the statutory duties for governors of NHS foundation trusts, as provided by the National Health Service Act 2006 and amended by the Health and Social Care Act 2012. It is written for governors and is advisory only – this means there is no requirement to "comply or explain" (i.e. to comply with the guidance or explain reasons for non-compliance).  

Bevan Brittan Articles
Updated guidance for NHS Foundation Trust governors. Monitor, in association with (among others) the Care Quality Commission and the Foundation Trust Governors' Association, has recently published an updated reference guide for NHS foundation trust governors in relation to their statutory duties.

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

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GovernancePublications/guidance
Good practice guidance on patient group directions. This guidance has been developed to help individuals and organisations who are considering the need for, developing, authorising, using and/or updating PGDs to ensure they are appropriate, legal and that relevant governance arrangements are in place within commissioning and provider organisations. The guidance underlines that supplying and/or administering medicines under PGD should be reserved for situations where this offers an advantage for patient care without compromising patient safety and where there are clear governance arrangements and accountability.

Bevan Brittan Updates
Directors' liability in health and social care. As the Government and various regulators map out the steps they are putting in place in response to the failings highlighted by the Mid Staffs Inquiry and the appalling mistreatment of residents at Winterbourne View, one of the key themes emerging is the focus on accountability for poor standards of care not just at corporate level but also for individual board members.

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

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Information and Data Sharing

Publications/guidance
ICO fines NHS Surrey for failing to check the destruction of old computers. NHS Surrey has been fined £200,000 by the Information Commissioner's Office after a second-hand laptop was sold via an online auction, and later found to contain the records for around 3,000 patients. NHS Surrey employed a data destruction company to wipe old computer equipment, with the agreement any salvageable materials could be sold after the secure destruction of the hard drives. NHS Surrey had no contract in place with the provider to explain the legal requirements and failed to monitor the data destruction process.

Standards for the clinical structure and content of patient records. This is the latest version of healthcare record standards which will inform the development of electronic health records by both clinicians and industry. It aims to help meet the Secretary of State for Health’s challenge to the NHS to ‘go paperless’ by 2018.

Guidance for employers on sharing information about a healthcare worker where a risk to public or patient safety has been identified. This document outlines a set of key principles for employers to consider in relation to the sharing of relevant information between the private and public health sectors, when the conduct or performance of a healthcare worker comes into question and a substantiated risk to patient or public safety has been identified. It specifically focuses on strengthening existing policy and legislative levers, and includes a number of tools to help employers ensure that workable measures are introduced within their organisations which facilitate the sharing of relevant information in the interest of patient and public safety.

Interim statement on care.data. NHS England has announced plans to introduce a new system for collecting and analysing data called care.data. The first stage of the new system will involve primary care data from GP practices. Whilst the Information Commissioner’s Office understands that this initiative has the potential to enable the health service to derive significant public health benefits from the large amount of data it generates, it has to be recognised that much of the data is about individuals their treatment and conditions. This is data that the public would expect to be handled carefully. Under the Data Protection Act this is considered sensitive personal data and the Act has specific requirements that organisations must meet if they wish to process personal data. It does not mean it cannot be used but rather that it is handled in a way which complies with the law. Currently every indication is that the organisations concerned are making a concerted effort to ensure compliance with the DPA and they have shown a strong desire to work with the ICO to make this happen. However, there is still a lot of work to be undertaken to ensure that all of the obligations of the DPA will be met.

Summary report of qualitative research into public attitudes to personal data and linking personal data. This report is the result of focus group research which examined public attitudes towards sharing personal data with researchers for public good. The focus groups had a generally positive attitude to the potential benefits of sharing data, for patients themselves and for society. And their doubts were more sophisticated than merely worrying about information falling into malicious hands, or supposedly anonymous information being linked back to identifiable individuals. Some of the worries expressed by the focus groups linked to wider worries about the changing role of the NHS.

News
Information Commissioner's Office Decision Notices - Complaint upheld against Monitor. The Information Commissioner has upheld a complaint against Monitor following a Freedom of Information request. This relates to minutes of a Board meeting in 2009 that were published on Monitor’s website but subsequently amended in January 2010.

If you wish to discuss the issue of information and data sharing generally please contact Jane Bennett.

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Inquests

Publications/Guidance
Major overhaul of Coroner Services in England and Wales. From 25 July 2013, a reformed coroner system will mean that all 96 coroners in England and Wales will work to the same standards, meaning coroners will: speed up the release of bodies after post mortem; permit less invasive post-mortem examinations; and be required to complete inquests within six months of the date on which they are made aware of the death, unless there are good reasons not to.

If you wish to discuss the issue of inquests more generally please contact Joanna Lloyd.

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Mental Health

Bevan Brittan Mental Health Extranet. - This is a 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.

If you would like information about how to access the Bevan Brittan Mental Health Extranet please email Claire Bentley. Current topics being discussed are:-
 Section 37/41 - Consent to treatment.
 DOLs or MHA in OPMH.
 Commencement of 72 hours?
 CQC reporting requirements re children on adult wards

Training - If you would like to know about our  free lunch time training sessions just ask Claire Bentley. You can attend in our London, Bristol or Birmingham office.

Publications/Guidance
Building resilient communities. This report calls on every council to prioritise mental health within their public health strategy. It brings together the evidence base and people’s experiences about what makes resilient people and communities. It offers practical steps to help teams design wellbeing and resilience services aimed at preventing the development of mental health problems, and to measure their impact.

The Esteem Team: Co-ordinated care in the Sandwell Integrated Primary Care Mental Health and Wellbeing Service. This case study looks at the Sandwell Esteem Team, part of the Sandwell Wellbeing Hub in the West Midlands. The hub is a holistic primary and community care-based approach to improving social, mental and physical health and wellbeing in the borough of Sandwell. This case study is part of a research project undertaken by The King’s Fund and funded by Aetna and the Aetna Foundation in the United States to compare five successful UK-based models of care coordination.

National audit of dementia care in general hospitals 2012-13: second round audit report and update. This audit report has identified continuing problems in the quality of care received by people with dementia in hospitals in England and Wales. Although there has been positive change, the audit shows that many patients are not receiving key health assessments. It also reveals that less than half of hospital executive boards are routinely involved in reviewing hospital performance data on quality of care received by people with dementia, and two in five hospitals do not provide dementia awareness training to new staff.

"Alone with my thoughts": recommendations for a new approach to young people's mental health support. This report has been released to accompany the launch of a free online counselling service for young people. The report is based on a YouGov survey of over 2000 young people which found that over half of those who had shown signs of depression as children felt that they had been let down in their experience of mental health support. It calls for early intervention and prevention as well as increased professional support and advice.

Getting on? Growing older with autism. This report sets out some of the key issues facing older people with autism and what Government and other bodies need to do to make sure they have the services and support they need.

The NHS structure and mental health. This chart illustrates changes to mental health services in the new NHS structure.

Mental Capacity Act 2005 – Code of practice. How to act in the best interests of someone lacking capacity, including issues relating to medical treatment, is included in the new code of practice for decisions made under the Mental Capacity Act 2005. It sets out required actions when acting on behalf of people who cannot act for themselves and is relevant to such groups as attorneys appointed under a lasting power of attorney, deputies appointed by the Court of Protection and independent mental capacity advocates.

Healthy young minds, healthy communities: conference report. This is a report of an event held jointly by RSPH and the Institute of Health Visiting which was designed to explore the extraordinarily close links between early experiences, both in the womb and as a young infant, and the health of the community and public. It mentions the topics covered by the conference, including identifying the evidence base for the impact of early experience during pregnancy and the first two years in infants and young children, the implications of the evidence for health visiting practice and the public mental health implications of the evidence for policy makers.

Government response to the Confidential Inquiry into premature deaths of people with learning disabilities. This response sets out a range of actions across 18 recommendations in the Confidential Inquiry to improve access, experience and outcomes for people with learning disabilities and family carers.

National audit of dementia care in general hospitals 2012-13. This second report of the National Audit of Dementia has identified continuing problems in the quality of care received by people with dementia in hospitals in England and Wales. It shows that less than half of hospital executive boards are routinely involved in reviewing hospital performance data on quality of care received by people with dementia, and two in five hospitals do not provide dementia awareness training to new staff. Problems with the quality of information and communication are also an issue. It also shows that several aspects of care have improved since the first report in 2011.

Six lives: progress report on healthcare for people with learning disabilities. This progress report finds that whilst some improvements have been made, people with learning disabilities are still experiencing poor care, and face unacceptable inequalities in health and social care.

Supporting medical students with mental health conditions. This guidance provides advice to medical schools on all aspects of supporting medical students with mental health conditions. It includes suggesting preventative measures that may help to reduce mental health problems in their students, the use of occupational health and how to handle students with mental health conditions in relation to fitness to practise.

Cases
A NHS Trust v DE, FG, JK and A local Authority and B Partnership Trust. [2013] EWHC 2562 (Fam) Mrs Justice Eleanor King has sanctioned the sterilisation of a man "in is best interests" in a landmark legal ruling. See judgment.

R (Modaresi) v Secretary of State for Health [2013] UKSC 53 (Sup Ct). The Supreme Court has held that the Secretary of State had not erred in refusing to exercise his discretion under s.67(1) of the Mental Health Act 1983 to refer a mental patient's case to the First-tier Tribunal in circumstances where the tribunal had unlawfully declined to hear the patient's s.66 challenge to her detention.

Legislation
Public Guardian (Fees, etc) (Amendment) Regulations 2013. The fee for applying to register an enduring, or a lasting, power of attorney is reduced from £130 to £110, and the fee for a repeat application to register a lasting power of attorney is reduced from £65 to £55. The changes take effect on 1 October 2013.

News
Woman with learning difficulties will be forcibly checked for possible cancer, judge rules. The Court of Protection has ruled that a woman with severe learning difficulties who has refused to undergo medical examinations for a possible cancer of the uterus can be sedated and forcibly treated. The case was brought by the woman's local NHS trust, who wanted to agree a way to go ahead with formal diagnostic examinations.

Commission acts to support right to life for people detained under Mental Health Act. A judicial review funded by the Equality and Human Rights Commission has begun into the failure of a hospital trust to independently investigate the death of a woman compulsorily detained under the Mental Health Act.

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

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Primary Care

Publications/Guidance

Securing the future of general practice: new models of primary care. This report from the Nuffield Trust and The King’s Fund examines the new GP organisations forming to allow care provision at greater scale. To inform the challenges facing primary care, the former Midlands and East Strategic Health Authority – now NHS England (Midlands and East) – commissioned the Nuffield Trust and The King's Fund to undertake a review of UK and international models of primary care, focusing on those that could increase capacity and help primary care meet the pressures it faces. It proposes a set of design principles to be used when determining primary care provision that can: address the pressures facing GPs; ensure the needs and priorities of patients and the public are met; and enable general practice to be fit for the future.

The GP practice: A guide for community pharmacists and pharmacy staff. Following the publication last month of the updated guide to community pharmacy, the updated guide to general practice has also been published. It aims to support GPs and community pharmacists in developing more effective working relationships and in turn, improve primary care services for patients.

News
GP surgeries must inform patients about data plan - or face legal action. GP practices could face prosecution under the Data Protection Act 1998 if they fail to take steps to inform patients that data will be taken from their records and used by the NHS and private companies from autumn 2013

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

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Public Health

Publications/Guidance
Government response to the House of Commons Communities and Local Government Committee eighth report of session 2012–13: the role of local authorities in health issues. This document outlines the DH's response to the CLG Committee's report on the role of local authorities in health issues. It addresses the points and issues raised around the transfer of responsibility for public health to local authorities, the role and responsibilities of health and wellbeing boards, and accountability and governance.

Building resilient communities. This report calls on every council to prioritise mental health within their public health strategy. It brings together the evidence base and people’s experiences about what makes resilient people and communities. It offers practical steps to help teams design wellbeing and resilience services aimed at preventing the development of mental health problems, and to measure their impact.

National child measurement programme: operational guidance for the 2013 to 2014 school year. This annual guidance advises local commissioners and providers of the national child measurement programme on how the programme should be implemented. The programme is part of the Government’s commitment to tackling the public health challenge of excess weight.

Delivering accident prevention at local level in the new public health system. This handbook sets out the current level of accidents and their associated costs, and outlines how accident prevention fits into the new arrangements for public health. It also includes case studies, fact sheets and research papers, highlighting how accident prevention can be delivered successfully, with subjects including falls prevention, home safety for under-5s, water safety, local transport plans and how to link up with other agendas such as child welfare.

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

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Regulation

Publications/Guidance
Response to the review of the Human Fertilisation & Embryology Authority (HFEA) and Human Tissue Authority (HTA). This independent report sets out 18 recommendations, primarily for regulators, to improve the efficiency, transparency and accountability of the work carried out by the HFEA and HTA. It concluded that while they provide effective regulation and achieve high levels of public and professional confidence, efficiencies can be gained from reducing regulation. The Government has considered this report and accepts all the recommendations. The Department will work closely with both bodies on implementation of these recommendations. 

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

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General

Publications/Guidance
Better procurement, better value, better care: A procurement development programme for the NHS. Sets out details of the NHS Procurement Development Programme, which aims to help the NHS save £1.5bn by 2015 to 2016. The programme sets out four major actions: achieving immediate efficiencies and productivity gains; improving data, information and transparency; improving outcomes at a reduced cost through clinical procurement review partnerships; and improving leadership and capability of procurement in the NHS. The report also gives examples of how money can be saved in the main NHS spending areas.

Friends and Family Test data. The Friends and Family Test (FFT) is a single question survey which asks patients whether they would recommend the NHS service they have received to friends and family who need similar treatment or care. It is initially for providers of NHS funded acute services for inpatients (including independent sector organisations that provide acute NHS services) and patients discharged from A&E (type 1 & 2) from April 2013. This release of information covers the first three months of the survey.

Urgent and emergency services. This report presents the findings of the Commons Health Committee's review of urgent and emergency care services in England that was designed to determine how emergency care can be restructured in order to meet the demands of societal and demographic change. It concludes that the problems that have manifested themselves within emergency care cannot be attributed to any one factor or failure within the system. The Committee notes that reduced bed capacity is an important factor in limiting the flexibility of hospitals, but neither this, nor problems with out of hours care or the failures associated with NHS 111, can sufficiently explain why emergency care is operating under such sustained stress. It identifies a broader failure resulting from fragmented provision of emergency and urgent care and a structure that is confusing to patients. A&E departments remain the default option for many patients and hospitals must ensure that they have the flexibility to meet demand by providing sufficient bed numbers. The Committee is mindful of pressures which will build during next winter and is concerned that current plans lack sufficient urgency. It recommends that NHS England should ensure that Urgent Care Plans are agreed for each area before 30 September 2013. The Committee goes on to argue that there is a requirement to restructure provision of urgent and emergency care if patient need is to be met in the longer term.

Urgent and emergency care: a prescription for the future. This report sets out ten priorities for action to address the challenges faced by urgent and emergency care services. The challenges discussed in this report include: rising demand; ageing population; complex discharge issues; handover and flow; and recruitment into urgent and emergency care services.

Hospitals must now prove merger benefits. The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Poole Hospital NHS Foundation Trust must submit evidence of the benefits to consumers that might result from their merging, the Competition Commission (CC) has announced. The CC has raised concerns that the merger of the two trusts would reduce patient choice in a number of clinical specialities.

The NHS belongs to the people: a call to action. In this document, NHS England calls on the public, NHS staff and politicians to have an open and honest debate about the future shape of the NHS in order to meet rising demand, introduce new technology and meet the expectations of its patients. It sets out the challenges facing the NHS, including more people living longer with more complex conditions, increasing costs whilst funding remains flat and rising expectation of the quality of care. It argues that the NHS must change to meet these demands and make the most of new medicines and technology and that it will not contemplate reducing or charging for core services.

Managing the transition to the reformed health system. This report examined the transition to the new reformed NHS and found that whilst some organisations were prepared for the changes, the transition to the system is not yet complete. It also found that quality of care assurance data during the transition period is limited due to the lack of data on the quality of primary care; that getting staff in place presented the biggest challenge in the run up to April 2013; and that the reforms are reported to have cost £1.1 billion up to 31st March 2013, 15% more than expected at this point.

NHS buildings: obstacle or opportunity?There has been little real attention given to how the NHS estate could help to improve efficiency, move more care out of hospitals and exploit new technologies. This perspectives piece demonstrates how models of care are still designed around buildings, and asks whether re-thinking the way that the NHS uses its estate could catalyse change.

Age is just a number: the report of the parliamentary enquiry into older age and breast cancer. This is a report of an inquiry which aimed to examine the variations and barriers preventing all patients diagnosed with breast cancer having access to the services, treatments and care that will benefit them most, regardless of their age. It lays out a series of key recommendations on ways to improve diagnosis, treatment and care, representing the culmination of the findings of the inquiry.

NHS buildings: obstacle or opportunity? The King's Fund has published a paper as part of its Perspectives programme that demonstrates how models of care are still designed around buildings, and asks whether re-thinking the way that the NHS uses its estate could catalyse change.

The NHS belongs to the people – A call to action. This publication from NHS England sets out the challenges facing the NHS, including more people living longer with more complex conditions, increasing costs whilst funding remains flat and rising expectation of the quality of care. It says clearly that the NHS must change to meet these demands and make the most of new medicines and technology and that it will not contemplate reducing or charging for core services. NHS England predicts that by 2020/21 the gap between the NHS budget and rising costs of caring for an ageing population, with increasingly complex health conditions, could reach £30bn per annum.

News
Researchers get £124m funding to tackle major health challenges. Announces funding from the National Institute for Health Research for 13 research teams. The money will be invested in health research which includes work to reduce the risk of dementia through exercise as well as strategies to improve the nutrition and health of those who have already been diagnosed.

£93 million package of support announced for UK’s health industries. Announces the award of £93.2m funding for business and academic health projects, including £25.9m from third wave of Biomedical Catalyst a new £38m National Biologics Manufacturing Centre to be based in Darlington, and an additional £29.3m invested in innovative health companies.

NHS Innovation Fellowship – partner with the NHS to drive innovation. NHS England has launched a new scheme inviting applications to oversee the NHS Innovation Fellowship that will help improve patient care and deliver value for money. The NHS Innovation Fellowship will bring together 15 world-class innovators to work with NHS senior leaders, clinicians and Academic Health Science Network leaders to embed and foster a culture of innovation across the health and care system.

Surveillance camera code of practice comes into force. Announces the coming into force of the new Surveillance Camera Code of Practice, issued under s.29 of the Protection of Freedoms Act 2012, that sets out guidelines for CCTV and Automatic Number Plate Recognition systems in public places to ensure their use is open and proportionate and that they are able to capture quality images. It sets out 12 guiding principles that system operators should adopt. Relevant authorities (as defined by s.33 of the 2012 Act, which include local authorities and police forces in England and Wales) must have regard to the Code when exercising any functions to which the Code relates; other operators and users of surveillance camera systems in England and Wales are encouraged to adopt the code voluntarily.

Legal loophole means NHS overpaying manufacturers for drugs. The taxpayer is losing millions of pounds each year as drug companies are taking advantage of a legal loophole to drive up the prices of medicine sold to the NHS. The scheme involves manufacturers selling drugs to purchasing firms acting outside of the government's price regulation system, who are then free to mark up the prices. Some medicines sold to the NHS have increased by up to 2,000% of their original price.

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

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