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  Information Sharing
Clinical Risk/Health and Safety Mental Health
Commissioning Personalisation
 Emergency Care Primary Care
Employment/HR Providers
Finance Public Health
Foundation Trusts Regulation
Governance General

Care

Publications/Guidance
Provider handbooks for adult social care services. The CQC has confirmed how it will regulate, inspect and rate care homes and community adult social care in England. Following joint development, consultation and testing over the last eighteen months, CQC has issued documents called 'handbooks', which will help care providers to understand how they will be assessed and rated from now on. Specialist teams, including trained members of the public, will inspect services, unannounced, against what matters most to the people who use them – are they safe, caring, effective, responsive to their needs, and well-led.

Transforming care at the end-of-life: dying well matters This report finds that at least £4.5 billion is spent each year in England caring for those at the end of their lives. Analysis of national reviews and audits over the past 18 months highlights shortcomings and concerns about the large degree of variation in services across the country.

Strategic commissioning of long term care - can we get more for less? LaingBuisson have published a White Paper that looks at the state of the UK market in care services for older people. It asks if there are any ways to correct the failures – especially the key issue which dogs providers of care services working for a publicly funded clientele, namely the mismatch between public sector commissioners’ need to contain costs in an extended period of austerity, and providers’ need to earn an adequate return in order to sustain existing services and develop the new ones. It argues for a new style of outcomes-based, long term contracts with lead providers (called Social Care Maintenance Organisations or SCMOs) covering the entire care pathway including advice and guidance, homecare and residential care.

Patients in control: Why people with long-term conditions must be empowered. This report from the Institute of Public Policy Research argues that more should be done to recognise and support the amount of self-management done by people with long-term conditions and their carers, and to enable people to work in partnership with healthcare providers to agree the services that fit their needs. It concludes that patients would welcome greater self-determination and that there would be economic benefits too.

Exploring the cost of care at the end of life. This analysis estimates the hospital and non-hospital costs for people in the last 90 days of life. It also explores whether reduced hospital activity and costs at the end of life were likely to be offset by increased care costs in other health and social care settings using the Marie Curie home-based palliative care nursing service. The results suggest that cost savings might be available if community-based support were made more widely available to help people to die in their own homes, where that was their preference.

Co-ordinated care survey findings. This report details the results of a survey of RCS members and patients looking into the coordination of care including discharge processes and re-admission for surgical patients in England and Wales. Overall, the results showed that discharge from hospital is an area of particular concern with only one quarter of those surveyed agreeing that there is a thorough coordinated discharge process in place to enable effective transfer of care from the hospital environment. It makes a number of recommendations for where the integration of care for patients can be improved including calling for greater discharge planning to take place from the outset, more information to be available to patients and carers, and greater communication between professionals and services.

Statutory guidance published to help with Care Act implementation. The final version of the statutory guidance supporting the implementation of Part 1 of the Care Act 2014 (CA 2014) has been published. The guidance, which was published in draft form for consultation in June 2014, has been amended by the Government to reflect the concerns and issues raised by the respondents to the consultation. Amendments include the clarification of the duty to promote wellbeing set out in the CA 2014. In addition, the regulations, also consulted on, which help to implement the CA 2014, have been laid before Parliament and some have been published- see Legislation section below.

Care Act 2014: factsheets. These factsheets accompany Part 1 of the Care Act 2014. They provide an overview of the duties and powers local authorities will have in the future.

Personal Independence Payment (PIP) quick guide. Personal Independence Payment (PIP) has replaced Disability Living Allowance (DLA) for new claims from people aged 16 to 64 on 8 April 2013 or who turn(ed) 16 after that date. This guide for advisers contains information on who is eligible, how the claim process works, how the rate is calculated and the timetable for implementation of PIP. There is also a PIP myth-buster that aims to provide reassurance on some common misunderstandings about PIP.

Cases
Karia v Leicester City Council [2014] EWHC 3105 (Admin) (Admin Ct). K applied for judicial review of the Council's decision to close a care home. K was a British Asian woman of Gujarati descent, aged 101, and had lived in the home since 1999. She contended that the Council, in making its decision, had breached its Public Sector Equality Duty under s.149 of the Equality Act 2010, had breached her human rights and her legitimate expectation of a home for life at the care home, and had failed to take into account K's likely future care needs and whether these could be met in alternative potential placements.
The court held, refusing her application, that while it had sympathy with K and understood her concerns, its task was to apply the recognised legal principles which showed that there were no valid grounds for challenging the Council's decision. The s.149 duty was not a duty to achieve a particular result - the Council's duty was only to show "due regard" to the need to advance equality of opportunity, not to ensure that equality of opportunity was achieved. The Council had considered how K's linguistic, cultural, dietary and religious needs could be met and had confirmed that K and other residents would only move from the home when appropriate alternative provision had been found for her which was suitable to meet her various needs. There was nothing in K's Placement Agreement which showed that K would be entitled to remain in the home in certain circumstances, e.g. if she was and would continue to be the only resident there or if it was unsafe for her to live there because of a serious defect in the building. So she was not entitled to an order quashing the decision on the grounds that she had a legitimate expectation to remain at the care home for life.

Consultations
Consultation on health and social care fees for providers. A Care Quality Commission consultation seeks views on the fees that it proposes to charge registered providers in 2015/16. This consultation includes proposals to: increase annual fees for all registered providers except for the dental sector; and amend the fee scheme for independent healthcare providers whose fees increased due only to structural changes made in the 2013/14 fees scheme. Comments by 9 January 2015.  

News
Care inspection teams to apply 'Mum Test.' Inspection teams will be required to apply the Care Quality Commission's (CQC) 'Mum Test', which requires them to decide whether they would be happy for their own family to use the services they inspect, the regulator confirms. The CQC's new inspection approach is set out a range of adult social care provider handbooks which aim to help providers understand how they will be assessed and rated under the new approach, which begins in January 2015.

Statement about the use of cameras to monitor care. The CQC's Chief Inspector of Adult Social Care, Andrea Sutcliffe, has issued a statement in response to media coverage today about the potential use of cameras to monitor care. She states that the CQC expects to publish guidance for providers, as well as for members of the public, on the issues to consider if they are thinking of using cameras – both secretly and openly – as an option to monitor care for themselves, a loved one, or someone within their care. "While cameras may have a role to play, what is most important is that care is provided safely, effectively and compassionately and that staff are recruited, trained and supported to do this. Our guidance will help to make sure both care providers and the public are well-informed and better able to make decisions, sometimes in very difficult circumstances." The guidance will be discussed in the CQC's Board meeting on 15 October, with the final guidance published on its website at the end of the month.

£1 million fund to support people at end of life. The Cabinet Office has launched the Social Action End of Life Support Fund to support projects that provide compassionate support. The funding is available for charitable and NHS hospices, hospitals, care homes, UK registered charities, public bodies, social and community enterprises to support existing projects that enable continued social interaction and to improve the experience for people at end of life and their families.

Boost for carers from rise in allowance threshold. Announces that the earnings threshold for Carers' Allowance will be raised to £110 a week from April 2015. This is a rise of £8 on the previous limit of £102. The change means that more people will have the opportunity to work part-time and still be eligible for the full £61.35 a week Carers’ Allowance.

Sir Bruce calls for support for technology enabled care services programme. NHS England’s National Medical Director Professor Sir Bruce Keogh has outlined NHS England’s plans for further developing Technology Enabled Care Services (TECS). He has written to key stakeholders, calling on them to support the programme that takes the NHS into a new and exciting technological era that will help empower patients and improve health outcomes. He states that the TECS programme has been re-focused to address the demand from health and social care professionals for support and practical tools to commission, procure, implement and evaluate technology enabled care services. The ambition is to create the right commissioning environment that supports and encourages the innovative use of technology to improve health outcomes, empower patients, and deliver more cost-effective services as part of a modern model of integrated care.  

Bevan Brittan Updates
Duties and responsibilities when commissioning accommodation as part of NHS Continuing Care. R (Whapples) v Birmingham Crosscity Clinical Commissioning [2014] EWHC 2647 (Admin) is an important judgment on the scope of the duties and responsibilities that fall to CCGs in relation to commissioning/funding accommodation as part of NHS Continuing Healthcare (CHC). It also affects local authorities in so far as it addresses the extent of continuing obligations of local authorities under housing and welfare provisions even when the service user is eligible for CHC.

If you wish to discuss any of the items above or the issue of care more generally please contact Stuart Marchant. 

Clinical Risk/Health and Safety

Bevan Brittan 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
Exploring the costs of unsafe care in the NHS. This report, commissioned by the Department of Health, investigates the costs of unsafe care in the NHS. A rapid review of existing evidence suggests that the costs of preventable, adverse events is likely to be more than £1 billion per year, but could be up to £2.5 billion annually.

Loud and clear: making consumer voices heard This report details the findings of an investigation into the failings of the complaints system in health and social care. It raises concerns about the NHS and local authority red tape making it difficult for people to complain and that there is not enough independent advice and support out there to help those in need and, above all, the public is given little incentive to come forward about their experiences. It highlights simple changes which could be made to the system in order to improve patients' experiences in complaints handling within health and care systems. 

What are the problems with the health and social care complaints system? Healthwatch England has published a report calling for renewed efforts to create a compassionate complaints system.

Suffering in silence: listening to consumer experiences of the health and social care complaints system This report details the findings of an investigation into the failings of the complaints system in health and social care. It raises concerns about the NHS and local authority red tape making it difficult for people to complain and that there is not enough independent advice and support out there to help those in need and, above all, the public is given little incentive to come forward about their experiences. It highlights simple changes which could be made to the system in order to improve patients' experiences in complaints handling within health and care systems.

Openness and honesty – the professional duty of candour: Joint statement from the Chief Executives of statutory regulators of healthcare professionals. The GMC has underlined its commitment to a professional duty of candour for doctors throughout the UK. Together with eight UK professional healthcare regulators, the GMC has published a joint statement, which sets out a professional duty of candour. The statement clarifies what the regulators expect from health professionals wherever they work across the public, private and voluntary sectors.

Cause for concern: QualityWatch annual statement 2014 This report offers an independent assessment of the current quality of NHS health and social care services in England. It observes that while care quality has improved since a decade ago, the last year has seen progress in some areas slow down or begin to reverse.

Decisions relating to Cardiopulmonary Resuscitation (3rd edition). The British Medical Association (BMA), the Resuscitation Council (UK), and the Royal College of Nursing (RCN) have issued new guidance regarding anticipatory decisions about whether or not to attempt resuscitation in a person when their heart stops or they stop breathing.

The new EU Clinical Trials Regulation – How NHS research and patients will benefit. This briefing from the NHS Confederation outlines the key changes made by the new EU Regulation 536/2014 on Clinical Trials and what they mean for the NHS. Clinical trials are an essential part of the development of new medicines, and also have a role in the improvement of medical care more generally. The new Regulation addresses many of the difficulties of the existing Directive by introducing more proportionate and streamlined procedures for the approval and the conduct of clinical trials, while fully safeguarding the safety of patients participating in these studies.

NHS IQ prospectus. NHS Improving Quality (NHS IQ) has launched a new Prospectus which provides information and links to a variety of programmes supporting the improvement of care quality and safety, tools to audit outcomes and measure improvement, service transformation training programmes and best practice networks.

Infection - NICE Evidence Update September 2014. A summary of selected new evidence relevant to NICE clinical guideline 139 ‘Prevention and control of healthcare-associated infections in primary and community care’.

Consultations
NHS Litigation Authority 2014 review. This triennial review looks at what the NHS Litigation Authority does and how their work is carried out. Closing: 06/11/2014.

News
High Court rules brain damaged child should be taken off life support. Justice Russell sitting in the High Court has ruled that a one year old boy with "profound irreversible brain damage" should be taken off life support - against the wishes of his parents. Doctors had argued it was in the child's best interest for live-sustaining intensive care to be withdrawn. Justice Russell gave the NHS foundation trust permission to withdraw ventilation, doing so with "great reluctance".

Staff still at too high a risk from sharps injuries, warns union

Honesty in healthcare is paramount, says GMC. Healthcare professionals throughout the UK have a professional duty of candour, regardless of their field of practice, as outlined in a statement from the General Medical Council (GMC). The statement is made jointly with eight other UK professional healthcare regulators, and clarifies what the regulators expect from health professionals wherever they work across the public, private and voluntary sectors.

Health Secretary launches new patient safety collaboratives. A network of 15 Patient Safety Collaboratives are being established, each led by an Academic Health Science Network (AHSN). They will focus on improving safety and empowering patients, carers and staff to highlight, challenge and implement local improvements in patient care. AHSNs provide a unique combination of NHS, academia, third sector and industry partners and work across defined geographical areas. - See more.

Bevan Brittan Events
The Duty of Candour – what it means for you? 18 November 2014 : 11:00 - 13:30 (registration opens at 10:30) Location: Bevan Brittan LLP, Kings Orchard, 1 Queen Street, BS2 0HQ, Bristol. The duty of candour is expected to take effect for NHS organisations from 21 November 2014. This will be the first of a new set of regulations impacting across the healthcare sector in the wake of Sir Robert Francis QC's recommendations in the Mid Staffs Inquiry. The aim of the duty is to promote learning and increase patient safety, but failure to comply can result in poor ratings under CQC's new inspection regime and potentially prosecution. The aim of this seminar is to look at the implications of the duty for all levels of the organisation; how to comply and what it means for your workforce.

The Maternity PEARLS® Workshop - Evidence based management of second degree perineal tears 01 December 2014 : 09:00 - 16:45 (registration opens at 08:30). Location: Bevan Brittan LLP, Kings Orchard, 1 Queen Street, Bristol, BS2 0HQ . This Birth 2 UK medical training course will focus on episiotomy and second degree perineal tears. Childbirth perineal trauma affects thousands of women in the UK each year and millions more world-wide. Perineal suturing skills and training provision remain highly variable within and between maternity units in the UK as well as worldwide.

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

Commissioning

Publications/Guidance
Accounting Officer system statement. The role of the Accounting Officer has changed following the implementation of the Health and Social Care Act 2012. This updated report provides further information on how accountability for the NHS is divided between commission and provision of services.

Commissioning Support Lead Provider Framework (LPF) factsheet. NHS England has produced a myth-busting factsheet for CCGs to help them when the LPF goes live in February 2015. CCGs will be able to buy accredited, high quality and affordable commissioning support by undertaking short, simple, mini-competitions.  

Bevan Brittan Articles
Duties and responsibilities when commissioning accommodation as part of NHS Continuing Care. R (Whapples) v Birmingham Crosscity Clinical Commissioning [2014] EWHC 2647 (Admin) is an important judgment on the scope of the duties and responsibilities that fall to CCGs in relation to commissioning/funding accommodation as part of NHS Continuing Healthcare (CHC). It also affects local authorities in so far as it addresses the extent of continuing obligations of local authorities under housing and welfare provisions even when the service user is eligible for CHC.

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

Emergency Care

Publications/Guidance
Acute care toolkit 10: ambulatory emergency care. Ambulatory emergency care (AEC) allows patients going to hospital as an emergency to be quickly assessed, diagnosed and treated on the same day, so that they can return home, reducing the number of patients admitted to a hospital bed. Although not suitable for all patients, for example those needing emergency surgery, the streamlined process has already improved clinical care, reduced costs, and is popular with patients. This toolkit outlines the principles of AEC and describes the resources required for delivering AEC, highlighting the benefits, and signposts other resources to support its development.

News
Welsh Government announces a "flying doctors" service for Wales. The Welsh Deputy Minister for Health has announced that a new clinical emergency service to stabilise and transfer the most critically-ill and injured patients to hospital by road and air will be operational in Wales from April 2015.

Extra accident and emergency doctors recruited.

If you wish to discuss the issue of emergency care please contact Claire Bentley

Employment/HR

News
Flexible retirement options - quick guides for employers and employees

The state of medical education and practice in the UK 2014 The findings of this report show significant increases in the number of women becoming surgeons and specialists in emergency medicine. At the same time, the profession as a whole will soon have equal numbers of men and women doctors – already women account for 44% of all registered doctors and more than half of medical students are female. There has also been a shift in the pattern of doctors from overseas coming to work here. In the past, the largest source of overseas-trained doctors was south Asia, but recently there has been a sharp rise in doctors coming to work here from southern Europe. 

Employment review launched to improve clarity and status of British workforce. The Business Secretary Vince Cable has launched a wide-ranging employment review to help clarify and potentially strengthen the employment status of workers. This follows the recent review and upcoming legislation of zero hours contracts, which revealed that an increasing number of people in the UK who could be on ‘worker’ employment contracts which have fewer basic rights than the vast majority of people who are on 'employee' contracts. The review will look at how clear the current employment framework is, what the options are to extend some employment rights to more people and whether there is scope to streamline this very complex area of employment law, thus simplifying and clarifying rights for both employers and employees. 

Test for overseas applicants to UK medical register should be made more robust, advises GMC report. Recommendations to strengthen the test for doctors from overseas wishing to practise in the UK have been welcomed and accepted by the GMC. 

Chief Inspectors of Hospitals, Professor Sir Mike Richards announces his findings following an inspection at Mid Staffordshire NHS Foundation Trust. It concluded that while services were safe, staffing levels were only just adequate in some areas at that time, particularly on medical wards.  

Bevan Brittan Updates
Avoiding negligent disciplinary hearings. Employers' duty of care towards their employees applies at all stages of the employment relationship, and can particularly come into play in the context of disciplinary action. Jodie Sinclair looks at a case where the Court of Appeal considered whether an employer had breached its duty of care to an employee by instigating disciplinary proceedings, after an initial investigation appeared to show that there was a case to answer. Helpfully, the Court of Appeal has clarified that an employer might be wrong about their concerns, without being negligent.

Calculation of holiday pay The Employment Appeal Tribunal (EAT) has [today] handed down its decision in the joined cases of Fulton v Bear Scotland Limited and Wood v Hertel (UK) Limited [insert link], which concern the question of whether an employer should take a worker's voluntary overtime payments into account when calculating holiday pay, or whether holiday pay should only include basic pay.

Employment news round-up October 2014. Our pick of October's key employment law developments are brought to you by Julian Hoskins and cover: the Ebola crisis, holiday pay (where are we now?), the latest developments on shared parental leave and extended parental leave, BIS announcements on law reform and news of the new 'health and work scheme'. Last but not least, bookings are now open for our December employment law updates – please see below for details of how to register for a place.

Pension loss: a substantial issue. The Court of Appeal in Griffin v Plymouth Hospital NHS Trust has offered guidance to Employment Tribunals regarding the correct basis on which to calculate an employee's pension loss on a claim for unfair dismissal. Mike Smith provides a summary of the case and its key implications. 

If you wish to discuss any employment issues please contact Julian Hoskins or James Gutteridge.

Finance

Publications/Guidance
Exploring the costs of unsafe care in the NHS. This report, commissioned by the Department of Health, investigates the costs of unsafe care in the NHS. A rapid review of existing evidence suggests that the costs of preventable, adverse events is likely to be more than £1 billion per year, but could be up to £2.5 billion annually.

Financial failure in the NHS: what causes it and how best to manage it. This report describes the current financial state of the NHS and the reasons for the deterioration in financial performance and ultimately financial failure. These include weak leadership, legacy costs, Payment by Result tariffs, and the impact of the wider health economy.

Guidance on DH loans to NHS Trusts and Foundation Trusts The provision of loans, public dividend capital or guarantees of payment by the DH to FTs and NHS Trusts is detailed in new DH guidance. The guidance covers all forms of financial assistance to NHS Trusts and FTs, with the exception of grants, which are subject to different rules for which additional guidance may be separately provided.

If you wish to discuss any of the items in this section or any issues around finance please contact David Owens.

Foundation Trusts

Publications/Guidance
Presentation slides: strategy development and transactions event On 16 October 2014, Monitor held a development event for chairs and chief executives of NHS foundation trusts and NHS trusts. These presentation slides cover aspects of strategy development and planning and transactions which were discussed at the event.

Developing strategy – What every trust board member should know. Ensuring long-term planning by NHS foundation trusts is robust is the aim of new guidance from Monitor. The guidance describes what to look for when assessing the quality of a trust's strategy, and highlights common pitfalls. Other issues addressed include ensuring the strategy meets long-term patient needs and the role of a trust board member in the local health economy's strategy development. Monitor also plans to launch a new toolkit for NHS providers containing guidance on each stage of developing a strategy. 

If you wish to discuss any issues relating to foundation trusts please contact Vincent Buscemi.

Governance

Publications/Guidance
Developing strategy – What every trust board member should know. Ensuring long-term planning by NHS foundation trusts is robust is the aim of new guidance from Monitor. The guidance describes what to look for when assessing the quality of a trust's strategy, and highlights common pitfalls. Other issues addressed include ensuring the strategy meets long-term patient needs and the role of a trust board member in the local health economy's strategy development. Monitor also plans to launch a new toolkit for NHS providers containing guidance on each stage of developing a strategy.

If you wish to discuss any issues relating to governance please contact Vincent Buscemi. Information Sharing Publications/Guidance
ICO published its updated CCTV code of practice. The update includes a look at the data protection requirements placed on operators of new and emerging surveillance technologies, including drones and body worn video cameras. 

If you wish to discuss any issues around information sharing please contact Jane Bennett.

Mental Health

Bevan Brittan 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
Helping the police to support people with vulnerabilities Launched at the policing and mental health summit of October 2014, this booklet helps the police to identify those who may have particular needs or vulnerabilities and suggests the most appropriate response.

The quality of mental health care cluster costing and activity data. This report is a review of how well mental health providers categorise patient needs as classified by the payment by results scheme. It summarises the quality of costing and care cluster assignment in 25 mental health providers. All 25 audits were carried out on a voluntary basis. The providers audited are different to the 9 audited in 2012/2013.

Map of health-based places of safety. The Care Quality Commission has called for urgent action to continue to improve access to and the operation of health-based places of safety for people experiencing a mental health crisis. It has found that too many health-based places of safety are turning people away because they are already full, and some are refusing to help people who are intoxicated or exhibiting disturbed behaviour. This map shows the location of designated health-based places of safety in England for people detained under section 136 of the Mental Health Act.

Costs of perinatal mental health problems. Perinatal mental health problems carry a total economic and social long-term cost to society of about £8.1 billion for each one-year cohort of births in the UK. This report also finds that the NHS would need to spend just £337 million a year to bring perinatal mental health care up to the level recommended in national guidance. The report is part of the Maternal Mental Health Alliance's ‘Everyone's Business' campaign, which calls on national Government and local health commissioners to ensure that all women throughout the UK who experience perinatal mental health problems, receive the care they and their families need, wherever and whenever they need it.

Cracks in the pathway. This review into the care provided to people living with dementia found an unacceptable gap in the quality of care that means people are at risk of experiencing poor care as they move between care homes and hospitals. It also highlighted poor practices in sharing information between health and care professionals and the benefits of supporting the mental and physical health of individuals in order to reduce avoidable admissions to hospital and unnecessary long stays in hospital.

Mental wellbeing of older people in care homes This resource is for managers of care homes for older people, including residential and nursing accommodation, day care and respite care. It aims to help managers implement NICE's quality standard defining best practice in mental wellbeing of older people in care homes. It highlights key messages for care providers for each of the 6 quality statements that make up the standard. The messages relate to high-priority areas where improvements are needed.

Guidance for developing a local suicide prevention action plan. Public Health England guidance advises local authorities how to: develop a suicide prevention action plan; monitor data, trends and hot spots; engage with local media; work with transport to map hot spots; and work on local priorities to improve mental health.

Achieving better access to mental health services by 2020. This report shows what action the government is taking to provide better access to care in mental health services within the next year, including national waiting time standards for the first time. It also sets out its vision for further progress by 2020.

Cases
Derbyshire CC v AC (By her litigation friend the Official Solicitor [2014] EWCOP 38. The court made declarations in respect of a range of issues relating to a 22-year-old woman with a significant learning disability: (1) C lacked the capacity to litigate, to make choices about her care and therapeutic needs and to make appropriate decisions in relation to contact with others. The professional consensus was that she had the capacity to make decisions about sexual relations, and it would not be appropriate to interfere with that conclusion. However, the instant court had small misgivings. The distinguished line of judges sitting in the Family Division and the Court of Protection who had opined on the question of what "relevant information" should inform the test of capacity in this vexed area had not sought to include within the scope of information the understanding of the person concerned that she might at any time change her mind about consenting to sexual relations. The evidence revealed that C might not always fully understand that she did have a choice and/or that she could change her mind in relation to consent to sex; given the extent to which she had been exploited, that gave the court considerable anxiety (see paras.25-27, 36 of judgment). (2) There was no dispute between the parties that the criteria for the making of an interim declaration of incapacity in relation to C's choice of residence were made out. It would be appropriate to make such a declaration. It was in her best interests that she should move to and reside at the unit identified. She required a residential establishment with a therapeutic component. She should be given the maximum chance to develop independent living skills, which would be achievable there. Moreover, such a move accorded with her current wishes and those of her father (paras.39, 46-47).

K (By his litigation friend, L) v (1) Kingswood Centre Hospital Managers (2) North West London NHS Foundation Trust [2014] EWCA Civ 1332. A judge had not erred in holding that the Mental Health Act 1983 s.25 required receipt of a discharge notice in person by hospital managers or their authorised officer under the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 reg.3(3)(b)(i)

Re X (Deprivation of Liberty) [2014] EWCOP 37. As a matter of principle, there was no obstacle to a person who allegedly lacked mental capacity participating and being represented in proceedings in the Court of Protection without being joined as a party; nor was there any fundamental principle that such a person, if participating as a party, had to have a litigation friend. However, those and other matters required urgent consideration by the ad hoc, non-statutory committee which had been set up to review the Court of Protection Rules 2007. This case gives further guidance in relation to three questions:
Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?
If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?
If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?” See commentary on Court of Protection Handbook site.

Aster Healthcare Ltd v Shafi (as representative of the estate of Mohammed Shafi) [2014] EWCA Civ 1350 (CA). The Court of Appeal upheld the High Court's decision to overturn summary judgment against the respondent estate for unpaid nursing home fees in respect of the deceased. The court held that it was arguable that a local authority had a statutory obligation under s.26(2) of the National Assistance Act 1948 to pay nursing home fees in respect of a patient who lacked capacity where it had arranged for the patient's admission to the home and no-one had been appointed as the patient's deputy.

NHS Foundation Trust v X (By Her Litigation Friend, the Official Solicitor) [2014] EWCOP 35. The applicant NHS Foundation Trust sought declarations, including that it was not in the respondent's best interests to be subjected to further compulsory detention and treatment of her anorexia nervosa, and that it was in her best interests and would be lawful for her treating clinicians not to provide her with nutrition and hydration with which she did not comply. Having fully reviewed the circumstances of the case, including the unanimous medical evidence that the declarations were in the respondent's best interests, the Court of Protection held that treatment of the respondent's anorexia should not be compelled.

News
Easy to access ratings for mental health hospitals are published on MyNHS. Easy to access ratings for mental health hospitals will be published on MyNHS. This announcement coincided with World Mental Health Day on 10 October which raises awareness of mental health issues around the world and mobilising efforts in support of mental health.

Mental health trust fined after resident falls from window. An Essex mental health services provider has been fined £10,000 for safety failings which led to a resident suffering serious injuries following a fall from a window. A Health and Safety Executive (HSE) investigation led to the prosecution of North Essex Partnership University Foundation Trust (NEPUFT) after finding it had not taken actions to prevent the incident.

Government considers mental health units in prisons. The Government is considering plans which would see prisoners treated in specialist mental health units inside prisons in the future. A consultation, due to begin in November 2014, is expected to explore the possibility of specialist units in prisons to replace current treatment in secure hospitals.

Police need improved mental health response, says home secretary. The Home Secretary has outlined new measures aimed at improving the response of police to people with mental health problems. At a summit organised by the Home Office and Black Mental Health UK, Theresa May said the needs of those arrested or held in custody should be better assessed. She also recognised the large number of black African and Caribbean people being referred to mental health services by the police.

NHS Trust fined after patient paralysed. Lincolnshire Partnership NHS Foundation Trust has been fined £20,000 after a mental health patient dived off a roof and was left paralysed. Following an investigation by the Health and Safety Executive (HSE), Boston Magistrates Court ruled the Trust had shown serious management failings because they had not stopped patients gaining access to the roof. The Trust was also ordered to cover £6,864 in costs.

Waiting time targets to be set for mental health. Treatment for mental health problems will be brought into line with physical health care following the announcement of a new five-year plan by the Deputy Prime Minister. £120m in funding will be allocated to improve mental health services, ending years of discrimination in treatment. In April 2015 waiting time standards will be introduced for the first time. 

Bevan Brittan Events
A year in the Court of Protection - Key cases for health and social care professionals
London 04 November 2014 : 10:00 - 13:30 (registration opens at 09:30) will be followed by networking lunch
Birmingham 20 November 2014 : 10:00 - 13:30 (registration opens at 09:30) seminar will be followed by lunch.
Bevan Brittan's Court of Protection Team will be running a legal update session, based in a practical context, on how to manage cases involving incapable patients. The session will discuss navigating a pathway through complex care-planning and legal proceedings; when to go to Court and preparation of evidence; managing the media and an update on recent caselaw, including the latest on deprivation of liberty. The session will include a practical workshop.

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

Personalisation

Publications/Guidance
Personal Independence Payment (PIP) quick guide. Personal Independence Payment (PIP) has replaced Disability Living Allowance (DLA) for new claims from people aged 16 to 64 on 8 April 2013 or who turn(ed) 16 after that date. This guide for advisers contains information on who is eligible, how the claim process works, how the rate is calculated and the timetable for implementation of PIP. There is also a PIP myth-buster that aims to provide reassurance on some common misunderstandings about PIP.

News
Personalised GP care for everyone. Summarises Jeremy Hunt's speech to the Conservative Party Conference 2014 in Birmingham, in which he announces changes to the GP contract with the NHS that will ensure that all people in England will get a dedicated GP personally accountable for coordinating care tailored to their physical and mental health needs. He also announced that the Government is extending the Prime Minister’s Challenge Fund, which provides more flexible GP appointments, including extended opening hours from 8am to 8pm, seven days a week, as well as email, phone and Skype consultations. The new second wave of access pilots will be backed by a further £100 million, with priority given to places where patients find it harder to get a GP appointment because of long standing difficulties to recruit doctors.

If you wish to discuss any of the items above or the issue of personalisation more generally please contact David Owens or Deborah Jeremiah.

Primary Care

Publications/Guidance
Our new approach to the inspection of NHS GP out-of-hours services: Findings from the first comprehensive inspections. This report by Professor Steve Field, Chief Inspector of General Practice, brings together the findings from inspections of 30 NHS GP out-of-hours services by the CQC. Overall, the inspections found that the majority of services were safe, effective, caring, responsive and well-led, with many examples of good practice but they also found some problem areas. The report also describes improvements that have been made since the publication of the ministerial review into NHS out-of-hours care in 2010.

GMS contract changes 2015-16. The changes to the GMS contract for 2015-16 have been announced and the focus of the changes is on a named, accountable GP for all patients, publication of GPs' average net earnings and commitment to expand and improve the provision of online services.

New-style inspections of GP practices begin 9 October 2014. GP practices in England are to be rated as 'Outstanding',' Good', 'Requires Improvement' or 'Inadequate', giving members of the public clear information about how well their local GP practice is performing. The ratings will be made following inspections by NHS regulator the Care Quality Commission (CQC). The first GP ratings are expected to be available from November 2014 and will be published on CQC's web site.

News
CCGs to help develop care.data programme. NHS England has announced that the pathfinder stage of the care.data programme will be rolled out in participating GP surgeries in the CCG areas of Leeds North, West and South and East, Somerset, West Hampshire and Blackburn with Darwen. The pathfinders will be supported in testing different types of communication with patients in those areas, explaining the benefits and risks of data sharing, and making clear their right to opt out from having their confidential information shared for indirect care. As part of the pathfinder stage, a variety of communications will be tested with patients which will include an individually addressed letter sent directly to every individual or household from their pathfinder GP surgery, a leaflet and other explanatory materials, as well as emails and texts where the surgery also uses these channels.

Patients' online diagnoses not useful, say doctors. More patients are going to their GP and telling them what treatment they need based on information from apps and the internet, a survey has suggested.

Could technology transform GP consultations? The way we interact with our GPs could be transformed thanks to a new £458,000 project exploring whether consultations could be conducted via email, text message, telephone or via the internet. A group of researchers from the Universities of Bristol, Oxford, Edinburgh and Exeter have received funding from the National Institute for Health Research to investigate whether there are alternatives to face-to-face consultations that will not only reduce GP workload but also benefit patients. The research aims to learn lessons about the perceived advantages and disadvantages of alternatives to face-to-face consultations, and why these alternatives have not been used more widely in general practice.

If you wish to discuss any queries you may have around primary care please contact David Owens.

Providers

Publications/Guidance

Strategy development: a toolkit for NHS providers. This toolkit aims to support all NHS providers in developing clear and well-thought-out strategies. It contains guidance on each stage of developing a strategy, illustrations of possible analyses and case studies of strategic changes that some NHS providers have already implemented.

If you wish to discuss any issues relating to providers please contact Vincent Buscemi.

Public Health

Publications/Guidance
Cold weather plan for England 2014. PHE has published its latest Cold Weather Plan that gives advice on preparing for the effects of winter weather on people’s health. it has also published action cards for commissioners, local authorities, provider organisations, frontline staff, GPs and the voluntary sector.

Making every contact count – taking every opportunity to improve health and wellbeing. This report from the LGA looks at the "Making every contact count (MECC)" approach to improving health and reducing health inequalities that has been developed by the NHS and local government. Every contact with a customer should be seen as an opportunity to encourage healthier lifestyle choices. But tackling sensitive issues such as weight loss, smoking cessation or alcohol abuse requires expertise, confidence and knowledge in order to deliver the message effectively.

Vaccination of health and social care workers against flu: 2014 and 2015. This letter from PHE, DH and NHS England urges health and social care staff to get vaccinated against flu this season, in order to protect patients and families.

Transfer of 0-5 children’s public health commissioning to local authorities: Finance issues. Planning and paying for public health services for 0 - 5 year olds will transfer from the NHS to local authorities in October 2015. This factsheet explains the timescales for NHS Area Teams and local authorities in the run-up to the commissioning transfer, and how funding will work after October 2015.

Ebola surveillance and contingency planning ongoing in UK. Public Health England is continuing to work with government colleagues to ensure the UK remains alert to, and prepared for, the risk of Ebola. The overall risk of Ebola to the UK remains low.

If you wish to discuss any queries you may have around public health please contact Olwen Dutton.

Regulation

Publications/Guidance
Organisation structure. This chart show’s Monitor’s organisational structure as at October 2014.

The state of health care and adult social care in England 2013/14. Despite many outstanding healthcare services, the variation in quality of care in England is unacceptably wide, the Care Quality Commission (CQC) has found. The CQC’s fifth annual ‘State of Care’ report looks at 40,000 services and analyses the state of care in England, focussing on safety, leadership, effectiveness and care. The report says healthcare providers must learn from the outstanding examples of others with the same resources.

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

General

Publications/Guidance
EHIC incentive scheme: Frequently asked questions. The European Health Insurance Card (EHIC) gives individuals access to medically-necessary, state-provided healthcare during a temporary stay in any of the 28 EU countries, Iceland, Lichtenstein, Norway and Switzerland, under the same conditions and at the same cost (free in some countries) as people insured in that country. NHS trusts are expected to collect the necessary demographic and administrative information from EEA patients. The EHIC Incentive Scheme provides a financial incentive to NHS trusts to emphasise the need for increased EHIC reporting by NHS trusts and compensates them for the administrative tasks they undertake this important cost recovery activity.

Legislation
CMA market investigation: Private healthcare market investigation – final order. Patients will be able to receive more information on consultant fees, the performance of consultants and private hospitals . The regulator has published the final Private Healthcare Market Investigation Order 2014 in its private healthcare market investigation, following consultation. The measures contained in the order come into force immediately. The changes required by the CMA include:

a crackdown on benefits and incentive schemes provided to referring clinicians by private hospital operators
measures to increase the availability of information to patients on both consultant fees and the performance of consultants and private hospitals—this comes into force in April 2015
allowing the CMA to review future arrangements where private hospital operators work with NHS private patient units and ban any actions which may lessen competition.

The Order came into force on 1 October 2014. See also the Explanatory Memorandum.

News
GMC gives green light to 'passport to practise'. Announces that the GMC has agreed to develop a single national licensing examination, marking the first step to a unified 'passport to practise' for doctors wishing to practise in the UK. The exam will be designed to give patients assurance about the competence and quality of those treating them, regardless of where they received their training.

Bevan Brittan Articles
Consent & the Human Tissue Act: Deceased Individuals. The Human Tissue Act 2004 (the HTA) states that consent must be obtained for the removal, storage and use of material from the deceased. Consent must be valid and appropriate, and is required for all Scheduled Purposes.

Legal Definitions in respect of Parental Responsibility & Gillick Competency As per S3(1) of the Children Act 1989, parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

When a Patient Dies in Hospital - Assistance with Funeral Costs: Who Pays? When should a hospital assist with the funeral costs of a patient? What role does the Local Authority play in funeral costs? It is, of course, a difficult time following the death of a patient, and a sensitive approach must be balanced with the need to obtain the necessary information and make decisions about appropriate funding. Relevant guidance was issued by the Department of Health in October 2005: 'When a patient dies: Advice on Developing Bereavement Services in the NHS' (the Guidance).

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