Health and Social Care Update - June 2021

Bevan Brittan provides high quality, comprehensive advice to the NHS, independent healthcare sector and local authorities. 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, independent sector and local authorities which have been published in the last month. 

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Training Events	Information sharing/data
Acute and emergency care	Inquests
Children/young people	Mental Health
Clinical Risk/Patient Safety	Primary Care
Commissioning	Regulation
Digital Health	Social Care
Employment/HR	General
Finance

 

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Bevan Brittan Free Training Events 

Clinical Risk Webinars
Bevan Brittan Clinical Risk/Health, Care and Regulatory Law Team Training - These are internal hour long lunch time training sessions.  You can sign up to watch the training sessions remotely via our webinar facility. Please contact Claire Bentley.

Serious Medical Treatment: When and how to bring an application. Focusing on the practical aspects when making these difficult decisions, Bridget Dolan QC will share her thoughts and experiences regarding whether or not to go to court, how urgently one should make the application, how to get sufficiently cogent evidence together at short notice and the essential procedural steps to follow.

Recent developments to the MHA 1983 and MCA 2005. This seminar is aimed at professionals working within a mental health setting. It will consider legislative developments and significant cases decided over the last 12 months in relation to the MCA 2005, with a particular focus on any overlap within the context of the MHA 1983.

Please note that registration for each webinar will close when the webinar starts, so please do ensure you have booked your place in advance to guarantee your attendance

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Acute and emergency care

Publications/Guidance

Clinically led review of urgent and emergency care standards The NHS National Medical Director was asked to review the current NHS access standards to ensure they measure what matters most to patients and clinically. In December 2020, the recommendations from the clinically led review of NHS access standards for urgent and emergency care were published for consultation alongside the strategy for transforming urgent and emergency care provision. This document summarises the responses to the consultation and next steps.

News

Paramedics wear cameras after assaults rise by a third. Ambulance crew members across England will begin wearing body cameras after assaults on paramedics rose 30% in five years to 3,569 assaults in 2020-21, up from 2,703 in 2016-17. The technology has been trialled in London and the northeast, and will now be provided to crews across the country over the next three years in line with long-term health service plans.

Distancing measures now ‘impossible’ in overcrowded EDs

If you wish to discuss any queries you may have around acute and emergency issues please contact Claire Bentley.

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Children and young people 

Publications/Guidance 

Children and young people’s mental health – policy, CAMHS services, funding and education House of Commons Library briefing on children and young people’s mental health policy.

Safeguarding and radicalisation: learning from children's social care: Research report. A Department for Education exploratory report details findings on how radicalisation is being addressed in children's social care. It explores: current approaches; views on how cases, process and practices have changed since 2017; challenges encountered by children's social care and partners in tackling cases of radicalisation; examples of promising and potentially transferable practice; and common and preferred sources of advice, support and guidance.

#NotOK: filling the gaps in mental health support for young people with cancer This report finds that young people with cancer are unable to access specialist mental health support in parts of the UK, putting them at risk of lifelong trauma. It reveals that more than a third of young cancer patients who felt they needed it, have had no, or reduced access to a psychologist in the six months prior to being surveyed, due to inadequate access in parts of the UK. It also highlights the frustrations of psychologists due to the high demand and 'limited resource'.

Early years funding (England). This House of Commons Library Briefing provides a short overview of early years funding in England since 2017-18, including funding provided in response to the Covid-19 pandemic.

Respecting human rights and the rule of law when using automated technology to detect online child sexual exploitation and abuse: Independent experts' report. Technology used to detect the online sexual abuse of children must respect human rights and the rule of law, a report for the Council of Europe (CoE) concludes. The report, prepared by a group of experts led by former European Court of Human Rights President Linos-Alexandre Sicilianos, draws on a wide range of CoE standards and aims to help policymakers develop a comprehensive and balanced approach to the use of automated technologies to detect child sexual abuse material. It contains a series of recommendations and calls for the establishment of a "public interest-based framework" enabling service providers to automatically detect, remove and report relevant content in line with data protection and privacy safeguards.

Student mental health and wellbeing: insights from higher education providers and sector experts This research uses survey data and interviews to explore: approaches to supporting students’ wellbeing and mental health; the range of services available to students; data collected on the prevalence of mental health difficulties and levels of wellbeing; and evidence gaps.

Higher education and mental health: analyses of the LSYPE cohorts This research project sought to improve understanding of common mental health problems in young people who attend higher education, compared with those who do not. It comprised a quantitative analysis of the Longitudinal Study of Young People in England (LSYPE) cohorts 1 and 2 investigating differences in symptoms of common mental disorder using the General Health Questionnaire (GHQ12) measure.

SEND: old issues, new issues, next steps. An Ofsted report on the experiences of children and young people with special educational needs and/or disabilities (SEND) and their families during the coronavirus (COVID-19) pandemic , in the context of the SEND reforms over the last 10 years, shows that children and young people with SEND have been disproportionately affected by the pandemic.

Investing in children and young people. A Local Government Association submission to the House of Commons emphasises that it is vital that vulnerable children are the focus of any programme of work for investing in children and young people. The submission also notes: the June 2021 education recovery fund should also include measures to support children and young people's socialisation, communication and mental health and well-being; any policy strategy should articulate the role of each department, recognising that the policies of every department impact on children's lives, with a named minister working across government to improve outcomes for children; and that children and young people impact assessments should also be introduced to ensure that the needs of children are central to all new policies and legislation.

Review of sexual abuse in schools and colleges Ofsted’s findings and recommendations on sexual harassment and sexual violence, including online sexual abuse.

News

Health workers "fear that flagging child abuse will breach data laws"  Simon Bailey, the National Police Chiefs' Council lead for child protection, has claimed that the failure of health professionals to share information with police about child rape victims because they fear it will breach data protection requirements is "one of the most significant obstacles in tackling child sexual exploitation". He also asserts that local authorities have also failed to share critical information, which meant that children at risk of exploitation had been housed with potential abusers. Children known to be at risk of abuse, some as young as 11, have gone missing more than 55,000 times in UK over the past three years.

Bevan Brittan Updates

Independent Review of Children’s Social Care in England: Publication of ‘Case for Change’ Kirtpal Kaur Aujla

How we can help

We can assist in relation to the statutory responsibilities for children under the Coronavirus Act 2020 including decisions around:-

• commissioning and the provision of healthcare and social care;
• isolation and duties toward children in the care and those classed as vulnerable under the Coronavirus ( COVID19 );
• guidance on vulnerable children and young people;
• the delivery of EHCP plans; 
• safeguarding; and,
• all aspects of educational provision including for key workers.

If you wish to discuss any queries you may have around children please contact Deborah Jeremiah or Ruth Shedlow

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Clinical Risk / Patient Safety

Publications/Guidance 

Framework for involving patients in patient safety. An NHS England framework publication, and associated appendices, provides guidance on how the NHS can involve people in their own safety as well as improving patient safety in partnership with staff: maximising the things that go right and minimising the things that go wrong for people receiving healthcare.

NHS Resolution responds to DHSC's "Regulating healthcare professionals, protecting the public" consultation. Responding to the Department of Health and Social Care consultation on proposals for reforming professional regulation, NHS Resolution supports the proposals to modernise the legislation of the healthcare professional regulators, and particularly welcomes the introduction of a single legal framework to provide greater regulatory consistency and the proposal for a single register, as well as the requirement to publish consistent data.

Better, safer regulation: Our response to the DHSC consultation on regulating healthcare professionals, protecting the public. Responding to the Department of Health and Social Care (DHSC) consultation on proposals to reform the regulation of healthcare professionals, the Nursing and Midwifery Council sets out its support of DHSC's objectives and the overall direction that has been set out in the proposals. It agrees that overly prescriptive legislation should be removed and replaced with a system which is able to respond to a changing health and care landscape whilst ensuring accountability to and engagement with the public and the regulated professions.

Response to Regulating healthcare professionals, protecting the public.  A General Medical Council publication welcomes the Department of Health consultation on plans to reform the regulation of healthcare professionals as a major step towards fulfilling the UK Government's longstanding commitment to reform of professional regulation. It expresses support for the proposals to improve the support given to regulated professionals in delivering high quality care, enable regulators to address concerns about the performance and conduct of regulated professionals in a timely and proportionate manner, and increase the efficiency of the regulatory system.

Learning from Litigation Claims: The Getting It Right First Time (GIRFT) and NHS Resolution best practice guide for clinicians and managers. A joint webinar was held between GIRFT and NHS Resolution to discuss the guidance and how it can be used in conjunction with 2021 data packs sent to trusts. 

Shared decision making This guidance advises that shared decision-making should be part of everyday practice across all health care settings. It sets out ways for health care professionals to work with people using services to make decisions about their treatment and care, and to ensure this is best practice at an organisational level.

NHS Resolution 2021/2022 Business plan.

Admin matters: the impact of NHS administration on patient care High-quality NHS admin processes can improve patient experience, help to address inequalities and promote better care.

Whole system quality: a unified approach to building responsive, resilient health care systems This paper describes a more holistic approach to quality management. Through a process of rigorous learning, health care organizations can design resilient and responsive management systems to continuously deliver services that reliably and sustainably meet the evolving needs of patients, populations and communities – in times of both stability and crisis. Free registration is required to access this paper.

Wrong site surgery – wrong patient: invasive procedures in outpatient settings This investigation drew on the field of human factors to understand how the outpatient context influences the reliability of patient identification. It sought to identify the risks associated with the identification of patients specifically attending for invasive procedures in outpatients, and potential opportunities to manage or minimise them. As a result, HSIB recommends that NHS England and NHS Improvement leads a review of risks relating to patient identification in outpatient settings, working with partners to engage clinical and human factors expertise.

News/articles

HSIB highlights concerns of NHS healthcare errors due to poor patient identification schemes. The Healthcare Safety Investigation Branch (HSIB) has stated that cases in which procedures were performed on the wrong patient or on the wrong part of the body were not widely reported and could lead to physical and psychological harm. There were 472 serious healthcare errors reported in England in 2019-20, nearly half of which were due to waiting room mix-ups. It has called for the NHS to review patient identification schemes in outpatient settings.

‘Secretive’ safety findings set to be revealed direct to CQC. The Care Quality Commission may in future be notified when ‘secretive’ external reviews have looked at patient safety issues within trusts.

Bevan Brittan Updates

King v Royal United Hospitals Bath NHS Foundation Trust [2021] EWHC 1576 (QB) - Penelope Radcliffe. 

Claims Online - Zara Bhakri looks at the Supreme Court judgment of Khan (Respondent) v Meadows (Appellant) [2021] UKSC21 in which the court considered the difficult question of whether a mother can sue for damages for a baby born with autism following a pregnancy, which, with appropriate care, would have been terminated but for an unrelated reason. Ben Lambert looks at issues GPs should be aware of when conducting remote consultations. Beth Warner looks at the recent High Court case of Wormald v Ahmed [2021] which highlights important considerations when dealing with Part 36 offers and protected parties.

Bevan Brittan Events

Serious Medical Treatment: When and how to bring an application. Focusing on the practical aspects when making these difficult decisions, Bridget Dolan QC will share her thoughts and experiences regarding whether or not to go to court, how urgently one should make the application, how to get sufficiently cogent evidence together at short notice and the essential procedural steps to follow. 

Bevan Brittan Clinical Risk/Health, Care and Regulatory Law Team Training - These are internal hour long lunch time training sessions that are attended by our team of solicitors. If you would like to receive more information about our webinar programme just ask Claire Bentley.

How we can help

We are working with clients on formulating policies and making it easier to balance treatment with finite resources. We are helping with social care policies and day to day activities such as contact and isolation, human rights issues and life/death decisions. We are working on notifications of harm and death, RIDDOR, CQC compliance, judicial review, infection control law and grappling with the new regulations and guidance. For more information click here. If you wish to discuss any clinical risk or patient safety issues please contact Joanna Lloyd, Joanne Easterbrook or Tim Hodgetts  

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Commissioning

Publications/guidance

NHS System Oversight Framework 2021/22 These documents describe NHS England and NHS Improvement’s approach to oversight of Integrated Care Systems (ICSs), CCGs and trusts for 2021/22.

Integrated care systems: design framework These documents set out the headlines for how NHS leaders and organisations will be asked to operate with their partners in integrated care systems from April 2022 and guidance in respect of what the employment commitment is, its application in practice and how it affects people.

Bevan Brittan Updates

An overview of how the new Who Pays Guidance affects commissioning and financial responsibility for Section 117 Aftercare - Ruth Atkinson-Wilks

Determining ordinary residence under section 117 of the Mental Health Act 1983 – clarification at last… for now - Lisa Mulholland

If you wish to discuss any queries you may have around commissioning please contact Julia Jones.

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Digital Health

Publications/guidance

Switched on: how do we get the best out of automation and AI in health care? This report calls on policy-makers and NHS leaders to invest in infrastructure and skills to enable NHS staff to use automation technologies and AI safely and effectively in the future, and to engage with the public and NHS workforce to build confidence in technology-enabled care. It found that 36 per cent of the general public and 44 per cent of NHS staff surveyed wanted to see more automation and AI in health care in the future – compared with 21 per cent of the public and 14 per cent of NHS staff who said they would like to see less.

Digital boards: tackling digital inclusion means designing services that meet all your users’ needs The acceleration of digital ways of working during the pandemic has seen digital inclusion rise up the board agenda. Board leaders need a shared understanding of what digital inclusion means and clarity on their priorities for action. This briefing defines digital inclusion and highlights practical tips.

Digital skills in mental health guide: an interactive tool for teams to make progress together This is a practical guide for people working in mental health to help build their digital confidence and skills. The guide helps people understand their current confidence and skills and identify things they can do to improve. Leaders and managers can use the guide to support an open, supportive discussion with individuals and teams as a whole.

If you wish to discuss any queries you may have around Digital Health please contact Daniel Morris.

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Employment/HR  

Publications/guidance

Strengthening NHS board diversity An independent taskforce asked to examine the diversity of health care leadership has said that NHS organisations can create a 'sustainable pipeline' of senior leaders that properly reflect the diversity of their staff and communities by refreshing their processes for appointing chairs and non-executive directors (NEDs). The report, based on the feedback of taskforce members including NHS chairs, NEDs and chief executives, found that while there are pockets of innovation, the current NHS appointment process for NEDs would benefit from a standard, more transparent procedure.

Ethnic health inequalities and the NHS: driving progress in a changing system Our new report, commissioned by the NHS Race and Health Observatory, represents one of many steps needed to help understand the factors that shape race inequality in health, including the forces of structural racism and discrimination, and to begin to respond to them with impactful changes.

Healthy workplace toolkit This toolkit provides organisations with a systematic framework to use to improve working environments. The RCN recognises that there are a number of frameworks in place to improve working environments and the health and wellbeing of the workforce. However, this framework has been developed with nursing staff with the aim of improving their working environment and conditions and the subsequent impact this will have on their health and wellbeing.

Connecting for change: for the future of learning disability nursing In 2018, the number of learning disability nurses working in NHS hospital and community services in England hit a record low of 3,192 – a fall of 40 per cent in less than a decade. Since then, it has risen to 3,214 – an increase of just 22 full-time equivalent posts in the NHS. This report sets out a series of recommendations and priorities that the UK government and devolved administrations need to address. It also identifies priorities for the RCN to take forward.

Working well? How the pandemic changed work for people with health conditions This research, produced together with the Institute for Employment Studies, highlights the challenges faced by employees with long-term health conditions and warns that more support is needed to help people manage their conditions in the workplace if the state pension is to rise further.

Rheumatology workforce: a crisis in numbers This report presents a detailed analysis of the entire adult, paediatric and adolescent rheumatology workforce, including comprehensive UK-wide workforce data. The findings provide robust evidence in areas that have traditionally relied on anecdote, such as chronic understaffing, persistent regional and national vacancies and lack of exposure to the specialty throughout training and early career. The report's recommendations include: investment in the rheumatology workforce to secure long-term sustainability; enhanced roles for allied health professionals and increasing numbers of pharmacists and nurses to ease the current crisis; and increasing exposure to rheumatology in training.

Outsourcing as a threat to public health: the case for insourcing public sector cleaners and facilities management The evidence cited in this report suggests that outsourced health facilities management services pose a threat to public health. This represents a major weakness in the UK’s ability to cope with subsequent waves of Covid-19. As a matter of public health, this paper recommends that: the government should launch an urgent and independent inquiry into the outsourcing of key workers, including cleaners, to assess whether, as the literature suggests, there is a link between outsourcing and higher rates of infection; and as a pandemic precautionary measure, all local authorities and NHS trusts should immediately assess their portfolio of health care facilities management and sanitation workers, and examine opportunities to bring them in-house.

Moral distress for UK doctors This pan-profession survey of UK doctors found that 78 per cent of respondents said they could identify with the term 'moral distress'.

Calculation of holiday pay under the NHS Handbook for regular voluntary overtime: equalities impact assessment This document, together with accompanying guidance, records the equality analysis undertaken for the calculation of holiday pay under the NHS Handbook for regular voluntary overtime to enable ministers to fulfil the requirements placed on them by the Public Sector Equality Duty (PSED) as set out in section 149 of the Equality Act 2010. The PSED is an ongoing duty that will continue to be monitored and reviewed.

Public sector pensions This report finds that the Treasury has 'done little to identify and manage the stark differences in average pensions between genders and other groups' and 'should have foreseen the age discrimination issue that gave rise to the 2018 Court of Appeal McCloud judgment'.

Clinical radiology: UK workforce census 2020 report The RCR's annual workforce census reveals huge shortages across radiology departments – both diagnostic radiologists who enable accurate treatment, and interventional radiologists who treat via non-invasive procedures. The RCR states that without significant investment in workforce, equipment and new ways of working, patients will suffer, diagnoses will be further delayed, and fewer patients will benefit from life-saving minimally invasive interventional radiology.

Supporting recovery after long COVID. NHS Employers has produced guidance for organisations on how they can work with managers to support staff recovering from long COVID.

Workforce burnout and resilience in the NHS and social care. This report finds that workforce burnout across the NHS and social care has reached an emergency level and poses a risk to the future functioning of both services. Only a total overhaul of workforce planning can provide a solution. Available funding was the driver behind planning, rather than the level of demand and staffing capacity needed to service it. The report further cites the absence of any ‘accurate, public projection’ of workforce requirements in specialisms over the next five to ten years.

Bevan Brittan Updates

Compulsory Covid-19 vaccinations for care home workers – update on consultation response - Jodie Sinclair

How we can help

We can offer support and advice on managing many workforce issues including flexing your workforce to respond to the pandemic, managing bank staff, redeployment, vulnerable groups, sick pay, leave options, supporting staff well-being, presenteeism, remote and home working, through FAQs, helpline or policy guidance and practical day to day advice.  

If you wish to discuss any employment issues generally please contact Jodie Sinclair,  Alastair Currie or James Gutteridge.

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Finance 

Publications/Guidance

Early years funding (England). This House of Commons Library Briefing provides a short overview of early years funding in England since 2017-18, including funding provided in response to the Covid-19 pandemic.

If you wish to discuss any queries you may have around finance please contact Claire Bentley.

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Information sharing/data

Publications/Guidance

The protection of personal data in health information systems: principles and processes for public health Public health institutions are increasingly required to balance fundamental rights and data protection principles. To address this, WHO Europe has released these easy-to-implement steps to allow any organisation in public health to increase its level of data protection compliance.

Data saves lives: reshaping health and social care with data (draft) The draft strategy sets out ambitious plans to harness the potential of data in health and care, while maintaining the highest standards of privacy and ethics. The strategy sets out the Secretary of State’s vision for how data will be used to improve the health and care of the population in a safe, trusted and transparent way. It provides an overarching narrative and action plan to address the current cultural, behavioural and structural barriers in the system with the ultimate goal of having a health and care system that is underpinned by high quality, readily available data. It marks the next steps of the discussion about how we can best utilise data for the benefit of patients, service users, and the health and care system. The strategy is being published in draft format to enable full and open engagement on the commitments made within it, before publishing a final version of the strategy later in 2021.

Respecting human rights and the rule of law when using automated technology to detect online child sexual exploitation and abuse: Independent experts' report. Technology used to detect the online sexual abuse of children must respect human rights and the rule of law, a report for the Council of Europe (CoE) concludes. The report, prepared by a group of experts led by former European Court of Human Rights President Linos-Alexandre Sicilianos, draws on a wide range of CoE standards and aims to help policymakers develop a comprehensive and balanced approach to the use of automated technologies to detect child sexual abuse material. It contains a series of recommendations and calls for the establishment of a "public interest-based framework" enabling service providers to automatically detect, remove and report relevant content in line with data protection and privacy safeguards.

News

Data strategy to support delivery of patient centred care Patients to have better access and greater control over their health and care data under new proposals.

Health workers "fear that flagging child abuse will breach data laws"  Simon Bailey, the National Police Chiefs' Council lead for child protection, has claimed that the failure of health professionals to share information with police about child rape victims because they fear it will breach data protection requirements is "one of the most significant obstacles in tackling child sexual exploitation". He also asserts that local authorities have also failed to share critical information, which meant that children at risk of exploitation had been housed with potential abusers. Children known to be at risk of abuse, some as young as 11, have gone missing more than 55,000 times in UK over the past three years.

How we can help

We have a dedicated Information Law & Privacy team who advise clients on:-

• all aspects of the UK GDPR and Data Protection Act 2018 including commercial GDPR issues and information sharing
• managing and completing Subject Access Requests  
• rights of access under Freedom of Information and the Environmental Information Regulations, alongside issues relating to access to records, confidentiality, cyber risks and data breaches.

For more information contact  James Cassidy or Jane Bennett.

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Inquests 

Cases

R. (on the application of Morahan) v Assistant Coroner for West London [2021] EWHC 1603 . A coroner had not erred in deciding not to conduct an inquest which fulfilled the enhanced investigative duty required by ECHR art.2 following the death of a voluntary in-patient of a psychiatric hospital. The circumstances of the death did not automatically trigger such a duty. An NHS Trust had also not assumed responsibility for the patient and no operational duty had arisen as there had been no real or immediate risk of which the Trust should have been aware.

Bevan Brittan Updates

Morahan – when is there a duty to hold an Article 2 compliant inquest? - Simon Lindsay and Samantha Minchin

How we can help

We have a vast experience in representing a range of organisations for inquests, including NHS and other health bodies, regulators, schools and individual medical practitioners. For more information click here.

If you wish to discuss any queries you may have around inquests, please contact Toby De Mellow, Samantha Minchin or Claire Leonard. 

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Mental Health 

Publications/guidance 

Children and young people’s mental health – policy, CAMHS services, funding and education House of Commons Library briefing on children and young people’s mental health policy.

Midlife approaches to reduce dementia risk This resource provides information on approaches to reducing the prevalence and incidence of dementia.

#NotOK: filling the gaps in mental health support for young people with cancer This report finds that young people with cancer are unable to access specialist mental health support in parts of the UK, putting them at risk of lifelong trauma. It reveals that more than a third of young cancer patients who felt they needed it, have had no, or reduced access to a psychologist in the six months prior to being surveyed, due to inadequate access in parts of the UK. It also highlights the frustrations of psychologists due to the high demand and 'limited resource'.

Care for people with a learning disability during the pandemic. This month’s insight report published by CQC focuses on care for people with a learning disability.

Liberty Protection Safeguards Implementation Support Information about implementation support that is being provided ahead of the implementation of the Liberty Protection Safeguards.

Mental Capacity (Amendment) Act 2019: Liberty Protection Safeguards (LPS) Legislation and guidance on the Liberty Protection Safeguards (LPS) and the latest information on progress towards their implementation.

Informing family justice and Court of Protection recovery plans post-pandemic - Law Society response. The Law Society's response to the President of the Family Division's two-week rapid consultation on remote, hybrid and in-person hearings in the family justice system and the Court of Protection. The Society believes that, despite reports that remote hearings are more time and cost effective and have allowed for better work/life balance, there are some instances where remote hearings may not be the best format, such as public law cases where a party has limited access to technology or where parties require an intermediary or a translator.

Digital skills in mental health guide: an interactive tool for teams to make progress together This is a practical guide for people working in mental health to help build their digital confidence and skills. The guide helps people understand their current confidence and skills and identify things they can do to improve. Leaders and managers can use the guide to support an open, supportive discussion with individuals and teams as a whole.

Mental Health Provision (Children and Young People) Bill 2021-22. A Bill to require the Government to report annually to Parliament on mental health provision for children and young people.

Population screening: supporting people with learning disabilities Guidance for health professionals to support people with learning disabilities to access screening.

Guidance for the transfer and remission of adult prisoners and immigration removal centre detainees under the Mental Health Act 1983 These good practice guidance documents set out the process for transferring and remitting patients in England to and from prisons, immigration removal centres and mental health, learning disability and/or autism inpatient services. They outline the timeframe for completing the assessment, transfer and remission of individuals detained under the Mental Health Act to and from mental health, learning disability and/or autism services and replace the Department of Health’s Good practice procedure guide 2011. The accompanying consultation report sets out the engagement activity that has helped to inform these guidance documents.

Guidance on community mental health services: promoting person-centred and rights-based approaches This guidance provides a detailed description of person-centred and human rights-based approaches in mental health, examples of good practice services around the world, and recommendations for integrating such services into national health and social care systems and services. The guidance is accompanied by a set of seven technical packages focused on specific categories of mental health services and guidance for setting up new services.

Learning Disabilities Mortality Review (LeDeR) programme: annual report 2020 The NHS long-term plan made a commitment to continue LeDeR and to improve the health and wellbeing of people with a learning disability. This annual report provides information about the deaths of people with a learning disability aged four years and over notified to the programme. An accompanying LeDeR Action from learning report identifies some of the work across the NHS in the past year to address the findings from LeDeR reviews, improve care and prevent premature mortality.

DHSC publishes six guidance documents on Liberty Protection Safeguards The Department of Health and Social Care has added six Liberty Protection Safeguards factsheets to its guidance page. Liberty Protection Safeguards, which are to replace the current system of Deprivation of Liberty Safeguards in April 2022, are protections for those aged 16 and over whose medical treatment requires them to be deprived of their liberty. The six factsheets that have been added address the following aspects of the new regime: criteria for authorisation, the appropriate person and independent mental capacity advocates, the approved mental capacity professional role, deprivation of liberty and authorisation of steps necessary for life-sustaining treatment or vital acts, authorisations, renewals and reviews, and the right to challenge an authorisation in court.

Two-week 'rapid' consultation launched on remote, hybrid and in-person hearings. The President of the Family Division, Sir Andrew McFarlane, has launched a two-week rapid consultation on remote, hybrid and in-person hearings in the family justice system and the Court of Protection. The consultation period runs until Sunday 27 June 2021 and the findings will be available for the President’s Conference in July 2021

Mental Health: Question for Department of Health and Social Care.  In response to a written question asking whether a Mental Health Bill will be introduced in the 2021-22 parliamentary session, the Department of Health and Social Care states that the public consultation period on the Reforming the Mental Health Act white paper ended on 21 April 2021 and a formal report, which will inform the development of the planned Mental Health Bill, will be published later in 2021.

Suicide by middle-aged men This reports on findings from a national study combining multiple sources of information that provide a detailed account from families, friends and professionals on the stresses men in their mid-life face before they take their lives. The study provides rich data on the adversities middle-aged men were facing prior to their death, which we hope will help inform policy, public health strategies, and safer practice in all frontline agencies, including the identification of barriers to accessing services, and ultimately reduce suicide rates. The findings described in this study do not cover deaths that occurred during the Covid-19 pandemic.  

Cases

TS, Re (Pacemaker) [2021] EWCOP 41. Judgment concerning capacity and best interests of TS, together with an application for a deprivation of liberty order, who has a delusional disorder but needs to have a pacemaker fitted.

University Hospitals Dorset NHS Foundation Trust v Miss K [2021] EWCOP 40 — (1) The application should have been made significantly earlier than the day before the proposed caesarean, and judicial criticism of delay felt like "a waste of breath" as it had been made so often. The OS had been instructed the same day, and was unable to form a view on best interests, rendering her role effectively a "tick box exercise". (2) The OS was "appalled" at the evidence of the consultant obstetrician, who decided that Miss K had capacity on 10/6/21 when she chose a caesarean on the basis that she could hold and keep safe her baby earlier, when in fact it had been decided on 20/5/21 that the local authority would take the baby so that when she woke up there would be no baby. (3) The court decided that a planned caesarean, having been taken from PICU to obstetric unit by force if necessary, was in Miss K's best interests. In the event no force was necessary.

NHS Foundation Trust v ZA Court of Protection | [2021] EWCOP 39  It was not in the best interests of a 53-year-old woman, suffering from osteomyelitis in her right foot and leg and who lacked capacity, to have her leg amputated above the knee where she had expressed long-standing opposition to amputation when she previously had capacity. The medical evidence was that she was likely to die within 12 months due to sepsis if she did not have the operation. However, she wished to take chances and enjoy a standard of life with her dignity and independence intact, even if it was for a shorter period.

University Hospital Birmingham NHS Foundation Trust v AI & K [2021] EWCOP 37. The ​applicant Trust was seeking a declaration that it would be both lawful and in the P's best interests to discontinue any further attempts to provide dialysis. The P was diagnosed with end stage kidney disease on 30th September 2019. Since then, he has been in and out of hospital receiving dialysis but repeatedly failed to attend out patient appointments when he returned home. The P is now seriously unwell and is expected to die within 2 or 3 weeks. This hearing was to determine whether such dialysis should continue and whether to endorse the Trust's care plan. The court ruled that it was not in the P's best interests to continue to receive dialysis. The P required peace, rest, the presence of his family and the prescribed palliative medication referred to in the Trust's care plan.

Bevan Brittan Updates

An overview of how the new Who Pays Guidance affects commissioning and financial responsibility for Section 117 Aftercare - Ruth Atkinson-Wilks

Determining ordinary residence under section 117 of the Mental Health Act 1983 – clarification at last… for now - Lisa Mulholland

Bevan Brittan Events

Recent developments to the MHA 1983 and MCA 2005. This seminar is aimed at professionals working within a mental health setting. It will consider legislative developments and significant cases decided over the last 12 months in relation to the MCA 2005, with a particular focus on any overlap within the context of the MHA 1983.

How we can help

We are experts in advising commissioners, providers and care co-ordinators on the relevant legal frameworks. We deal with complex issues such as deprivation of liberty, state involvement, use of CCTV monitoring, seclusion, physical restraint and covert medication. We can help providers with queries about admission and detention, consent to treatment, forensic service users, transfers, leave, discharge planning and hearings. We can advise commissioners on all matters concerning commissioning responsibility, liability and disputes. For more information click here

If you wish to discuss any mental health issues facing your organisation please contact Simon Lindsay, Hannah Taylor,or Stuart Marchant. 

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Primary Care  

Publications/guidance

Locked out: digitally excluded people’s experiences of remote GP appointments This report investigates the barriers to accessing digital and remote care, drawing on the experiences of people who experienced digital exclusion during the pandemic. This included older people, people with disabilities, and people with limited English. It finds that people can be digitally excluded for various reasons including digital skill level, affordability of technology, disabilities, or language barriers. The report suggests the need for a programme of investment in digital literacy and online access while emphasising the importance of maintaining face-to-face methods to ensure no one falls through the gaps.

General Practice Data for Planning and Research (GPDPR) NHS Digital's daily collection of GP data will support vital health and care planning and research. This page gives information on what is changing, what information is shared and what it is used for. It also details how to opt out of the programme.

The Weight Management Enhanced Service encourages practices to develop a supportive environment for clinicians to engage with patients living with obesity about their weight and provides up to £20m funding in 2021/22 for referrals to weight management services. This enhanced service goes alongside a broader expansion of weight management services, including the launch of the NHS Digital Weight Management Service for those with hypertension and diabetes, and further investment into local authority tier 2 services.

Long COVID Enhanced Service (2021/22) To support general practice in managing Long COVID, NHS England will provide up to £30 million from 1 July 2021 – 31 March 2022 via a Long COVID Enhanced Service. This will support professional education, training and pathway development that will enable management in primary care where appropriate and more consistent referrals to clinics for specialist assessment. It will also support accurate coding and planning to ensure equity of access.

Update on Quality Outcomes Framework changes for 2021/22. Documents providing details of the updated Quality Outcomes Framework. The RCGP have produced resources to support practices in meeting the QOF QI requirements for 2021/22 which can be found on RCGP’s website.

The role of primary care in integrated care systems This report sets out the views of primary care members on the underpinning principles needed for strong primary care involvement at system and place.

Access to general practice communications toolkit. This toolkit has been developed to support general practice, Primary Care Networks and CCGs to explain to patients how they can safely access general practice.

Bevan Brittan Updates

Claims Online - Zara Bhakri looks at the Supreme Court judgment of Khan (Respondent) v Meadows (Appellant) [2021] UKSC21 in which the court considered the difficult question of whether a mother can sue for damages for a baby born with autism following a pregnancy, which, with appropriate care, would have been terminated but for an unrelated reason. Ben Lambert looks at issues GPs should be aware of when conducting remote consultations. Beth Warner looks at the recent High Court case of Wormald v Ahmed [2021] which highlights important considerations when dealing with Part 36 offers and protected parties.

Bevan Brittan Videos

Bevan Brittan has collaborated with NHS Resolution to produce a series of videos outlining key areas in general practice that frequently give rise to claims. Members of our clinical negligence team draw on their wealth of experience in dealing with claims to highlight the common areas of risk, provide guidance on how to mitigate or avoid these issues, and what steps to take if a complaint or a claim is received. The first three videos in this series are available to watch now. See below:-
Consent - Daniel Morris
Medical record keeping - Ben Lambert
Administrative errors - Susan Trigg
What to do if you receive a complaint or claim - Joanne Easterbrook
Common pitfalls - Helen Carrington

Other useful resources from NHS Resolution for primary care are set out below:-
1. General Practice Indemnity schemes
2. Understanding the Clinical Negligence Scheme for General Practice
3. Handling claims under the Clinical Negligence Scheme for General Practice
4. Covid-19 guidance for general practice 

How we can help   

We can offer support and advice on managing contractual and operational issues affecting the delivery of primary care services, including emerging legislative changes, updated guidance and policy arrangements, workforce issues and any transactional – related matters relating to vertical integrations, STPs, PCNs, etc. For more information click here.

If you wish to discuss any issues in primary care then please contact  Joanne Easterbrook, Susan Trigg, Vincent Buscemi or Ben Lambert 

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Public Health  

Publications/Guidance  

Outsourcing as a threat to public health: the case for insourcing public sector cleaners and facilities management The evidence cited in this report suggests that outsourced health facilities management services pose a threat to public health. This represents a major weakness in the UK’s ability to cope with subsequent waves of Covid-19. As a matter of public health, this paper recommends that: the government should launch an urgent and independent inquiry into the outsourcing of key workers, including cleaners, to assess whether, as the literature suggests, there is a link between outsourcing and higher rates of infection; and as a pandemic precautionary measure, all local authorities and NHS trusts should immediately assess their portfolio of health care facilities management and sanitation workers, and examine opportunities to bring them in-house.

Chronic pain in adults 2017 This report explores the responses to questions on chronic pain in the 2017 Health Survey for England. It sets out the overall prevalence of chronic pain amongst the general population as well as identifying differences between sub-groups. It examines the site and severity of the chronic pain for those who are experiencing pain, as well as the impact on their mental health. It finishes with an analysis of the use of specialist pain services.

Child mortality and social deprivation: National Child Mortality Database programme thematic report: data from April 2019 to March 2020 Commissioned by the Healthcare Quality Improvement Partnership (HQIP) on behalf of NHS England, this report includes analysis of 3,347 children who died in England between 1 April 2019 and 31 March 2020, as part of NCMD’s remit to learn from child death data in order to reduce the number of children who die in the future. The report finds a clear association between the risk of child death and their level of deprivation (for all categories of death except cancer). More specifically, it states that more than a fifth of all child deaths might be avoided if children living in the most deprived areas had the same mortality risk as those living in the least deprived – which translates to more than 700 fewer children dying per year in England.

Smoking and health 2021: a coming of age for tobacco control? This report reviews the UK’s progress in reducing smoking prevalence, and sets out comprehensive recommendations for England’s forthcoming National Tobacco Control Plan. It says that while the reduction in smoking prevalence by 75 per cent since 1962 has been considered a national success, if the policies advocated by the RCP in 1962 had been adopted and followed through, smoking would have been eradicated from the UK years ago.

Make smoking history: getting back on track to eliminate smoking after the pandemic As part of its public health and prevention series, Future Health has published this report that looks at the impact of the pandemic on smoking rates in England. It forecasts that the number of people smoking is set to be 600,000 higher in 2022 than previously predicted due to rises in unemployment and mental health impacts of Covid-19.   

If you wish to discuss any queries you may have around providers please contact Claire Bentley.  

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Regulation  

Publications/Guidance 

Response to Regulating healthcare professionals, protecting the public.  A General Medical Council publication welcomes the Department of Health consultation on plans to reform the regulation of healthcare professionals as a major step towards fulfilling the UK Government's longstanding commitment to reform of professional regulation. It expresses support for the proposals to improve the support given to regulated professionals in delivering high quality care, enable regulators to address concerns about the performance and conduct of regulated professionals in a timely and proportionate manner, and increase the efficiency of the regulatory system.

NHS Resolution responds to DHSC's "Regulating healthcare professionals, protecting the public" consultation. Responding to the Department of Health and Social Care consultation on proposals for reforming professional regulation, NHS Resolution supports the proposals to modernise the legislation of the healthcare professional regulators, and particularly welcomes the introduction of a single legal framework to provide greater regulatory consistency and the proposal for a single register, as well as the requirement to publish consistent data.

Better, safer regulation: Our response to the DHSC consultation on regulating healthcare professionals, protecting the public. Responding to the Department of Health and Social Care (DHSC) consultation on proposals to reform the regulation of healthcare professionals, the Nursing and Midwifery Council sets out its support of DHSC's objectives and the overall direction that has been set out in the proposals. It agrees that overly prescriptive legislation should be removed and replaced with a system which is able to respond to a changing health and care landscape whilst ensuring accountability to and engagement with the public and the regulated professions.

Ethics in extraordinary times: practitioner experiences during the COVID-19 pandemic. A report by Professor Deborah Bowman, and commissioned by the Professional Standards Authority for Health and Social Care, describes how the COVID-19 pandemic shaped and altered the ethical experiences of practitioners focusing on moral distress, the ethics of care, the role of judgement and practical ways of providing ethical support, and learning from the pandemic. The report makes recommendations for regulators and for those interested in ethical practice reflecting the findings of this research.

A new strategy for the changing world of health and social care - CQC's strategy from 2021

If you wish to discuss any queries you may have around regulation please contact Siwan Griffiths,  Carlton Sadler or Stuart Marchant. 

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Social Care  

Publications/Guidance 

The Case for Change: The independent review of children's social care. The Independent Review of Children's Social Care seeks views on its interim report on how the children's social care system can be improved. It raises issues of the environment social workers operate in and notes how the lack of funding, infrastructure and joined up co-ordinated integrated commissioning processes has also negatively shaped the way that services are delivered. Comments by 13 August 2021.

Socially excluded older people and their access to health and care services: insights from professionals Age UK and The Salvation Army have come together with people who are socially excluded and key professionals to produce research exploring some of the challenges older people face when accessing support. The results highlight some key themes that make it harder for those that are socially excluded to access support services and some of the reasons behind them.

Adult Social Care Markets: Seventh Report of Session 2021-22.  A Committee of Public Accounts report on adult social care markets states the coronavirus (COVID-19) pandemic's "devastating impact on the care sector" has emphasised that "care is not properly funded, lacks transparency and urgently needs reform." It notes the Government has provided welcome, significant short-term support to help providers through COVID-19, and that it is now vital that the Department for Health and Social Care clearly and in detail "sets out how it will help providers move beyond it".

IMPACT (IMProving Adult Care Together) survey IMPACT (IMProving Adult Care Together) has produced a survey to help inform its work. IMPACT is a new £15 million UK centre for implementing evidence in adult social care, funded by the Economic and Social Research Council (ESRC) and The Health Foundation. Led by the University of Birmingham, IMPACT will be an ‘implementation centre’, drawing on knowledge gained from different types of research, the lived experience of people using services and their carers, and the practice wisdom of social care staff.

Quick guide: Good practice in safeguarding training A quick guide for registered managers of care homes. This quick guide, aimed at registered managers of care homes, explains what to cover in training and how to deliver it, including how to evaluate training in your care home.

Informal carers. A House of Commons Library Research Briefing provides information about the number of informal carers in the UK and the issues they face. It also explains the rights, benefits and support available to informal carers as well as current and previous government policy on caring.

Adult social care and Covid-19 after the first wave: assessing the policy response in England This briefing outlines the impact of Covid-19 on adult social care. It analyses national government policy on adult social care in England after the first wave – between June 2020 and March 2021. It finds that support in some areas improved, such as access to testing and PPE, and the priority given to social care appeared to increase. However, it claims that policy on social care was often fragmented and short-term, creating uncertainty for the sector and making it harder to plan ahead.

Safeguarding and radicalisation: learning from children's social care: Research report. A Department for Education exploratory report details findings on how radicalisation is being addressed in children's social care. It explores: current approaches; views on how cases, process and practices have changed since 2017; challenges encountered by children's social care and partners in tackling cases of radicalisation; examples of promising and potentially transferable practice; and common and preferred sources of advice, support and guidance.

How we can help 

For ways in which we can help with Social Care issues click here.

If you wish to discuss any queries you may have around social care please contact Siwan Griffiths.

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General 

Publications/Guidance 

Providers deliver: collaborating for better care This report sets out examples of a wide range of collaborations taking place across the country to show the complexity of arrangements.   

HIV and migration: understanding the barriers This report, based on interviews with migrants living with HIV in the UK, found migrants are being left behind in the UK’s response to HIV, despite being disproportionately affected.

NHS entitlements: migrant health guide. Advice and guidance for healthcare practitioners on the health needs of migrant patients.

Covax and global access to Covid-19 vaccines The purchasing and administration of Covid-19 vaccines has been dominated by richer economies. In April 2020, the Covax initiative was established to ensure fair access to vaccines. This paper sets out how Covax works, the challenges it faces, and the contributions of the UK and other high-income economies to the global distribution of vaccines.

Unseen, unequal and unfair: chronic pain in England 5.5 million people in England (12 per cent of the population) have high-impact chronic pain, the most disabling form that means a person struggles to take part in daily activities. This report sets out how chronic pain affects England as a nation and what needs to be done about the unseen and unequal burden.

Test and trace in England: progress update According to this report, the NHS Test and Trace Service (NHST&T) has expanded its testing capacity, tracing activities and distribution of rapid tests, but has further to go in reducing the overall time taken for reaching all cases and their contacts. It finds that NHST&T does not have targets for how quickly the contacts of those testing positive should be reached for other types of PCR tests, such as home-based tests.

Review of policing domestic abuse during the pandemic 2021. In a review of policing domestic abuse during the COVID-19 pandemic, HM Inspectorate of Constabulary and Fire and Rescue Services has stated that the police responded proactively to prevent domestic abuse and protect victims. The pandemic had put domestic abuse victims at greater risk, but the police made good use of technology and worked with partners to find new ways to support victims. The inspectorate said that while the police had innovated throughout the pandemic, it still had some concerns about longer-term response. Recommendations include: review why so many domestic abuse cases are discontinued, and whether more can be done to support victims who are particularly vulnerable, and ensure that victims who are waiting for court hearings are safeguarded and can continue to access support.

Guide for LGBT patients on what to expect from their doctor A new guide for lesbian, gay, bisexual and trans (LGBT) patients, setting out what they should expect from their doctor, has been published to coincide with the start of Pride Month by the General Medical Council (GMC). The medical regulator has produced the guide – its first aimed specifically at LGBT patients – in conjunction with LGBT rights charity Stonewall and LGBT doctors’ organisation GLADD.

A new deal for surgery This report highlights the challenges that exist on access to NHS surgical services in England due to the impact of the Covid-19 pandemic and provides recommendations for recovery.

Bevan Brittan Updates

EU Settlement Scheme Deadline: What are your responsibilities to your EU service users? - Simon Lindsay and Eric Chan

If you would like to sign up for any of our Bevan Brittan publications click here.

If you wish to discuss any queries around this general topic please contact Claire Bentley.

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