Health and Social Care Update May 2015

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	Primary Care
Emergency Care	Public Health
Employment/HR	Regulation
Foundation Trusts	General

Care

Publications/guidance
Palliative and end of life care. Palliative and end of life care refer to the care of people who have an incurable and progressive illness. This briefing note provides an overview of palliative care and its key components, approaches to managing and standardising care and key challenges to providing high quality care.

Dying without dignity. The Parliamentary and Health Services Ombudsman has published a report featuring 12 cases that illustrate the issues it regularly sees in its casework on end of life care. End of life care is a recurring and consistent theme in the PHSO's casework; it has also been a key issue for the NHS for some time. The PHSO is committed to making sure that complaints make a difference. By highlighting the key themes in its casework, it can inform the debate about how to drive up standards to improve the quality of end of life care offered across the country.

The future of life expectancy and life expectancy inequalities in England and Wales: Bayesian spatiotemporal forecasting. A new study forecasting how life expectancy will change in England and Wales has predicted people will live longer than current estimates. The researchers from Imperial College London say official forecasts underestimate how long people will live in the future, and therefore don’t adequately anticipate the need for additional investments in health and social services and pensions for the elderly. The new study, published in the Lancet, also predicts that regional inequality in life expectancy will increase, highlighting a need to help deprived districts catch up with affluent areas.

Cases
R (Whapples) v Birmingham Crosscity CCG; Secretary of State for Health (Interested Party) [2015] EWCA Civ 435 (CA). W appealed against the High Court's decision regarding the extent of the CCG's obligation to provide her with accommodation under s.3 of the NHS Act 2006 and the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care 2012. W had severe physical symptoms resulting from PTSD and she was tetraplegic. She applied for a ruling that the CCG had an obligation under s.3 NHS Act 2006 to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS. The CCG conceded that it had power under s.3(1)(b) to provide or pay for private accommodation but contended that the statutory regime and National Framework imposed no such obligation.
The court held, dismissing the appeal, that there was no question that W was entitled to NHS continuing healthcare under s.3. The context of the National Framework was to establish how those in need of care should receive it, whether from the NHS, from local authorities or both. Its aim was to ensure that there were no gaps. Where ordinary residential accommodation was needed which the patient could not arrange and fund for himself, the distribution of responsibility placed such accommodation needs upon local authorities, rather than the NHS. If the patient could provide his own accommodation, funded privately or with the assistance of benefits, he was expected to do so. The National Framework did not, in circumstances where a patient was receiving NHS continuing healthcare in his own home, generally contemplate that the NHS would be responsible for defraying the costs of that accommodation. W's interpretation of the National Framework, if correct, would have significant implications for NHS funding of private accommodation and it was not consistent with the practical guidance found elsewhere in the document. The judge was right to conclude that the National Framework did not dictate the outcome that W sought. The Secretary of State had developed the concept of a "primary health need" as the criterion for deciding whether a need should be met by the NHS or by a local authority under s.21 of the National Assistance Act 1948 and the CCG was entitled to decide that the provision to W of a private home (assuming that such provision could fall within the terms of s.3(1)(b) of the NHS Act) was not such a need.
There was no public law failing in the CCG's decision not to fund alternative accommodation on the basis that it was likely to be available through a housing provider or a housing authority. W had capacity to make the relevant decisions and she had indicated her willingness to explore alternative options. All bodies concerned had been willing to assist her to find accommodation away from the West Midlands. Effectively, there had been a standoff brought about by W. She had declined offers of assistance in seeking alternative accommodation unless the offer included an acceptance on the part of the CCG to provide it or fund it. In the meantime, and contrary to her own best interests, she continued to decline any assistance with her care. The CCG was entitled to conclude either that W had no reasonable requirement for accommodation provided or funded by the NHS, or that it was not necessary to provide it (or both). There was every reason to suppose that, with W's co-operation, suitable alternative accommodation would be found for her.

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

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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
Raising concerns: Guidance for nurses and midwives. Raising concerns provides guidance for nurses and midwives on raising concerns. It sets out broad principles that will help them think through the issues and take appropriate action in the public interest.

Bevan Brittan Articles
Quality Regulation: Ensuring you are Well-Led - meeting the Governance, Quality and Workforce challenges. The regulatory burden on NHS providers is ever increasing: From 1 April 2015, in addition to the Duty of Candour and Fit and Proper Person Test introduced in November 2014, the full suite of requirements under the Fundamental Standards will be monitored and assessed under CQC’s new inspection methodology.

Bevan Brittan Events
Inquest Update Seminar 18 June 2015 : 10:00 - 13:00 (registration opens at 09:30 and the event will be followed by networking lunch) Location: Bevan Brittan, Fleet Place House, 2 Fleet Place, Holborn Viaduct, London, EC4M 7RF. Bevan Brittan’s Inquest Update will provide a review of recent case law and guidance from the Chief Coroner as well as an update on the progress and effect of the implementation of the Coroners and Justice Act 2009. This session is a great opportunity to join an interactive session and share experiences.

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

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Commissioning

Publications/Guidance
Public Contracts Regulations 2015 – Statutory guidance for contracting authorities and suppliers on paying undisputed invoices in 30 days down the supply chain. Updated statutory guidance to contracting authorities on the payment of valid and undisputed invoices within 30 days.

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

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Emergency Care

Publications/Guidance
Acute care collaboration. NHS England is inviting expressions of interest from all providers of acute services, including small hospitals, that are interested in developing new ways of delivering and improving their local acute services. The aim of these new vanguard sites is to enhance the viability of local hospitals through new formal shared working arrangements between clinical specialists at different hospitals, and to improve efficiency by sharing back office administration and management between different sites. Detailed information and guidance for the process on selecting sites is in Registering interest to join the New Care Models Programme: New models of acute care collaboration. The closing date for applications is 31 July 2015.

Rip off the sticking plaster now: Enabling the local implementation of sustainable urgent and emergency care models in 2015/16. Without immediate action, the NHS is set for a winter crisis in 2015/16. NHS organisations need to take rapid action now if they are to implement solutions that will prevent this from happening. Planning and policy guidance have been issued in disparate documents across a number of months, and have been affected by the electoral cycle. This NHS Confederation report collates the guidance and urges immediate action from NHS organisations, national bodies and the incoming Government.

Consultations
Standards for the non-specialist emergency surgical care of children. The Royal College of Surgeons is seeking views on draft new standards for services delivering emergency surgical care for children and young people up to the age of 19 years. The document is intended for use by commissioners, service managers, and clinicians. The aim of the standards is to ensure emergency surgical services for young people meet expected levels of quality and attain excellent outcomes in relation to governance, organisation of care, patient experience, training and service delivery. The consultation closes on 26 June 2015.

Bevan Brittan Articles
Acute Care Collaboration Vanguards. NHS England has launched the Acute Care Collaboration Vanguard Programme for smaller acute hospitals to develop and test innovative ways of delivering high quality acute care for patients. Organisations and partnerships have until 31 July 2015 to submit an Expression of Interest in becoming a Vanguard site for new models of acute care collaboration.

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

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Employment/HR

Publications and Guidance
International recruitment: quick guides for employers. This range of quick guides to international recruitment for employers has been updated to reflect changes to new immigration rules that came into effect on 6 April 2015. These resources have been designed to help employers gain a concise understanding of some important elements of the international recruitment process.

Workforce planning in the NHS. This King's Fund report looks at past experience with NHS workforce planning and the challenges facing workforce planning in the future, in the light of changing health care needs and the need to deliver the future care models outlines in the NHS five year forward view. The report focuses on three areas key to providing integrated care: mental health, primary care and community nursing.

Medical union to seek legal advice on treatment of young doctors. The British Medical Association is seeking legal advice on the treatment of young doctors by their NHS employers, amid concerns that it may be in breach of the Human Rights Act 1998. Junior doctors usually have little to no say over when and where they work, or when they take their holidays. Although they work on average 46 to 47 hours a week, this can include spells in which they are contracted to work 12 days in a row.

PM on plans for a seven-day NHS. The Prime Minster has given a speech setting out his plans for "a 7-day NHS, safe in our hands - for every generation to come". He confirmed his pre-election pledge to increase budgets by at least £8bn a year by 2020 and promised to recruit 5,000 new GPs.

Bevan Brittan Articles
Employment news round up, May 2015 . Anne Palmer provides the first News Round Up of the new financial year, and covers: new restrictions on zero hours contracts now in force (along with a number of other changes which are effective this month); the new 'IP' process for dismissing and disciplining local authority 'protected officers'; the latest in the ongoing holiday pay saga; what the new government has in store for employment law; and, finally, the latest on the Fit for Work scheme – check whether your area is covered on the 'roll out' map.

Managing Misconduct Ashley Norman looks at two recent cases which provide helpful clarification on two potentially knotty problems which may arise during disciplinary proceedings: (1) what happens if an employee raises a grievance during a disciplinary process; and (2) are employers entitled to rely warnings which have been given in bad faith?

What's not to 'like'? Social media and the workplace. The impact of social media on working life has been steadily increasing in recent years, and it is now an issue which employers ignore at their peril. Jodie Sinclair outlines five key issues and practical steps to consider in relation to social media and the workplace. 

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

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Foundation Trusts

News
 Foundation trusts face challenging year as pressures mount. Monitor reports that FTs treated 10.7m emergency in-patients between April 2014 and March 2015, a 574,000 increase on the previous year. In addition, there was also a significant increase in non-emergency patients. However, this increase in demand for care, combined with an over-reliance on expensive agency staff and the need to make cost savings, is putting trusts under sustained and exceptional pressure. Overall, the 152 FTs missed a number of national waiting times targets for A&E, routine operations and some cancer treatments for the entire year. The sector also ended 2014/15 in deficit (-£349m) for the first time, in a further sign of the increased pressures upon services.  

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

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Information Sharing

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
Information sharing protocol. Ofsted has published a protocol for sharing of pre-publication reports and other information regarding services for children and vulnerable adults.

Bevan Brittan Articles
Data sharing: The blurred line between protecting patient data and protecting patients  Fear of making costly mistakes in respect of data sharing has led to passivity and in some cases fatal inaction by a number of health sector bodies. This has been highlighted recently by a number of high profile incidents in the context of health and social care, meaning that data sharing is now firmly in the limelight. 

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

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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
Learning disabilities census report - Further analysis, 2015. This report, published by the Health and Social Care Information Centre, gives a snapshot of the experiences of people with learning disabilities who are inpatients in either NHS or independent services, and provides a new insight into regional variations of care. The publication includes information about: the use of antipsychotic medication, and the frequency of experiences of self-harm; accidents; physical assault; restraint and seclusion. It also reports on: the length of stay and distance from home; the number of patients with an agreed care plan; the reason for the patient being in inpatient care; and how many patients have been receiving continuous inpatient care since the census in 2013. This information was published at a national level in January 2015, but is here broken to down to NHS Area Team level for the first time. 

Cases
Re MN [2015] EWCA Civ 411. The Court of Protection held that, when making decisions on behalf of incapacitated adults, the court was limited to the available options and could not compel a public authority to agree to a care plan which it was unwilling to implement. The court should avoid making declaratory orders, and said that it needed to learn from the revolution that had taken place in the family justice system so as to take a firm grip of case management. Simon Lindsay has prepared an update on this looking at the practical implications of this case. This is available on the Bevan Brittan Mental Health Extranet. For more information please contact Claire Bentley.

RE G (An Adult by her Litigation Friend the Official Solicitor (Costs)) sub nom G (An Adult) v (1) Associated Newspapers Ltd (2) Redbridge LBC [2015] EWCA Civ 446. The OS had taken an overly rigid stance to an order limiting media contact with an elderly lady for whom he was acting as litigation friend in personal welfare proceedings in the Court of Protection, and had no grounds for challenging an adverse costs order when a newspaper applied to be joined as a party to the proceedings so as to maintain contact with the lady. While the joinder application failed, the newspaper had succeeded in clarifying a point of principle.

News
Theresa May pledges £15m to keep mentally ill people out of police cells. The Government has set out proposals to provide up to £15m in alternatives to police cells for people detained under the Mental Health Act 2007. Under a new Police and Sentencing Bill, to be announced in the Queen's Speech, the law will be changed so those under the age of 18 are never taken to police cells if detained under the Mental Health Act 2007 ss.135 and 136.

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
Performance of new alternative providers of primary care services in England: an observational study. A new study by researchers at Imperial College London, published in the Journal of the Royal Society of Medicine, has found that alternative providers of primary care in the NHS do not perform as well as traditional GP practices. Alternative providers, including private companies and voluntary organisations, have been contracted to offer primary care in the NHS since 2004 under reforms designed to increase competition. These providers performed worse than traditional GP practices on 15 out of 17 indicators after adjusting for the characteristics of the practices and the populations they serve.

Facing the future together for child health. The Royal College of Paediatrics and Child Health, the Royal College of General Practitioners and the Royal College of Nursing have developed a new set of standards that apply across the unscheduled care pathway and aim to improve health care and outcomes for children and young people with acute illness. Healthcare professionals are warning that unless there is an overhaul of unscheduled care services, there is a risk that growing demand will result in poorer outcomes for children; in order to deal with these pressures, and to improve child health outcomes, not only do unscheduled care services need more investment but there also needs to be a shake-up of how services are designed, with more children being cared for outside the hospital, in the community and closer to their home. This paper sets out three overarching principles and 11 standards that are designed to improve healthcare services for children and ensure that specialist child health expertise and support are available to strengthen primary care services, supporting GPs to care for children safely in the community. The Colleges have jointly developed an implementation plan to support the implementation of the standards across the UK.

News
GP out-of-hours reforms linked to more emergency admissions for children. A study published in Annals of Family Medicine, funded by the National Institute for Health Research, concludes that government reforms of GP working practices in 2004 were associated with a rise in potentially avoidable emergency admissions for children. The reforms altered GP contractual hours, allowing GPs to opt out of providing care out of surgery hours. A financially incentivised scheme aimed at improving quality of care provided mainly to adults was also introduced, which possibly detracted focused care from children. The study by Imperial College London found that the GP contract was associated with an 8% increase in short stay admissions for potentially avoidable chronic conditions. Over half of the 7.8m unplanned admissions from 2000 to 2012 were short stay admissions for potentially avoidable infectious and chronic conditions.

Over 55 million patients in England can now book GP appointments, order repeat prescriptions and access summary information in their medical record online – according to latest figures. Data published by the Health and Social Care Information Centre (HSCIC) shows that the number of GPs offering appointments, repeat prescriptions and access to summary information in medical records online has tripled in the first three months of the year with almost every GP surgery in England offering the service. Over 97% of patients in England can now take advantage of online services, a huge increase from the 3% in April 2014.

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

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Public Health

Publications/Guidance
Heatwave Plan for England. PHE and the DH have issued the latest Heatwave Plan for England that aims to prepare for, alert people to, and prevent, the major avoidable effects on health during periods of severe heat in England. It recommends a series of steps to reduce the risks to health from prolonged exposure to severe heat for: the NHS, local authorities, social care, and other public agencies; professionals working with people at risk; and individuals, local communities and voluntary groups.

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

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Regulation

Publications/Guidance
Memorandum of Understanding between Monitor and the General Medical Council. A memorandum of understanding sets out a framework to support the working relationship between Monitor and the General Medical Council. The working relationship supports a co-ordinated regulatory system for healthcare in England which exists to ensure the health sector works well for patients, promotes patient safety and delivers quality healthcare.

Bevan Brittan Articles
Quality Regulation: Ensuring you are Well-Led - meeting the Governance, Quality and Workforce challenges. The regulatory burden on NHS providers is ever increasing: From 1 April 2015, in addition to the Duty of Candour and Fit and Proper Person Test introduced in November 2014, the full suite of requirements under the Fundamental Standards will be monitored and assessed under CQC’s new inspection methodology.

Health and Social Care Regulatory Due Diligence Support Our team is at the forefront of major regulatory changes affecting the health and social care sector and has extensive experience of advising clients on a wide range of regulatory issues including specialist transactional due diligence.

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

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General

Publications/Guidance
Every patient a research patient? Evaluating the current state of research in the NHS. This Cancer Research UK-commissioned report from the University of Birmingham finds that daily pressures on the NHS are having a serious impact on its ability to support world-leading research into cancer. The report, led by Hilary Brown of the Health Services Management Centre and based on interviews with clinicians, nurses and administrators involved in NHS clinical cancer research, revealed pockets of excellence in clinical research, but also showed how escalating pressures to deliver routine NHS services are squeezing out time for hospital staff to do vital research. It also highlights how financial pressures are affecting research infrastructure and the capacity of host organisations to fund additional research costs.

Do patients choose hospitals that improve their health? This paper from the Centre for Health Economics looks at how patients in the English NHS choose which hospital to attend for planned surgery. It focuses on two key aspects of hospital choice: the extent to which patients are more likely to choose hospitals which are expected to achieve larger improvements in patients’ health; and whether patients’ response to quality differs with their morbidity, as measured by pre-operative health status, and other characteristics such as age or income deprivation. It finds that health improvements are more important for the choice of hospital than readmission or mortality rates. However, patients’ reaction to quality information is generally limited: even for large changes in quality patients would only be willing to travel few kilometres more. But because the market for hip replacement surgery is large, individual hospitals can attract a substantial number of extra patients if they can improve their quality. 

Social networking guidance. This guidance, which underpins the Code, covers the need to use social media and social networking sites responsibly. It is not intended to cover every social media situation that a nurse or midwife may face, however it sets out broad principles to enable them to think through issues and act professionally, ensuring public protection at all times.

Enhanced Services business rules v5.0. The Health and Social Care Information Centre (HSCIC) has published the 2015/16 enhanced services business rules for dementia, learning disabilities, rotavirus and pneumococcal.

Legislation
Queen's Speech 2015. The Queen has outlined the Government’s legislative programme for the next year, on the State Opening of Parliament. Items of particular interest to the health sector include:
 Health and Social Care Bill: will implementing the National Health Service's own five-year plan, by increasing the health budget, integrating healthcare and social care, and ensuring the National Health Service works on a seven day basis. Measures will be introduced to improve access to general practitioners and to mental healthcare.  Policing and Criminal Justice Bill: includes reform of legislation on the detention of people under ss.135 and 136 of the Mental Health Act 1983 to ensure better outcomes for those experiencing a mental health crisis.
 consultation on proposals for a Bill of Rights to replace the Human Rights Act.
Her Majesty also announced:
 changes to the House of Commons' Standing Orders so that decisions affecting England, or England and Wales, can be taken only with the consent of the majority of Members of Parliament representing constituencies in those parts of the UK;
 early legislation on an in-out referendum on membership of the European Union before the end of 2017;
 Charities (Protection and Social Investment) Bill that will give charities a new power to make social investments (pursuing both a financial and social return), along with clear duties when so doing.
For further details, see the Government's Background briefing notes.

News
Scaling up improvement. The Health Foundation is inviting bids for a share of £3m funding to support up to seven projects that aim to improve health care delivery and/or the way people manage their own health care, through redesign of processes, practices and services. Projects need to show how ideas, interventions and approaches that have been tested and shown to improve care at a small scale can be delivered at a larger scale. Applications are encouraged from any health or health and social care provider organisation in the UK where services are free at the point of delivery. The closing date for the first stage of the application process is 2 June 2015.

How professional are medical students? A survey to find out more about the professional values of the UK’s medical students.

Medical union to seek legal advice on treatment of young doctors. The British Medical Association is seeking legal advice on the treatment of young doctors by their NHS employers, amid concerns that it may be in breach of the Human Rights Act 1998. Junior doctors usually have little to no say over when and where they work, or when they take their holidays. Although they work on average 46 to 47 hours a week, this can include spells in which they are contracted to work 12 days in a row.  

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

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