27/10/2021
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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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.
Breach of duty and causation. Anthony Searle from Serjeants Inn Chambers will be giving an update of the last 12 months looking at important liability cases and developments. 30 November 2021. To register for this session click here.
HSIB and its role in patient safety in England. Matthew Wain (Principal National Investigator at HSIB) will give a broad overview of the HSIB including their investigations, reports/recommendations and maternity programme. 14 December 2021 To register for this session click here.
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 attendance
If someone forwarded you this email, you can sign up for your own free monthly copy here delivered directly to your inbox.
Acute and emergency care
Publications/guidance
Urgent and Emergency Care Survey: 2020. Statistics on people’s experiences of NHS urgent and emergency care services in England in September 2020. The Urgent and Emergency Care Survey 2020 reports on the experiences of people aged 16 and over who attended an NHS type 1 or type 3 urgent and emergency care service in England in September 2020, treated at 126 NHS trusts. The survey follows up on similar surveys carried out in 2016 and 2018.
State of care. This CQC report looks at the trends, shares examples of good and outstanding care, and highlights where care needs to improve. Inspectors reported ongoing challenges around ambulance handover delays at emergency departments which has raised concerns about patient safety. The report notes that new models for urgent and emergency care are needed in which people receive the care they need where and when they need it so that they are less likely to be inappropriately funnelled into emergency departments.
UEC recovery 10 point action plan: implementation guide This year has seen significant pressure put on urgent and emergency care (UEC) services. As demand has returned to pre-pandemic levels, managing this activity while impacted by, for instance, staff isolation and infection prevention and control measures has constrained the capacity within the system to manage this demand. There are further, complex, reasons for the current challenges within UEC that mean it will take all parts of the system working together to ensure a strong recovery across urgent and emergency care services. This plan sets out how the whole system will work together to ensure UEC services have resilience.
NHS Key Statistics: England, October 2021 Summary of NHS demand, performance and capacity of services in England. Covers A&E statistics, waiting lists, ambulance data, delayed discharges, staffing levels including doctors and nurses, and more.
If you wish to discuss any queries you may have around acute and emergency issues please contact Claire Bentley.
Children and young people
Publications/Guidance
The cost of eating disorders in the UK 2019 and 2020. This report highlights the cost of eating disorders in the UK, in terms of financial costs to the NHS, the financial, social and emotional impact on individuals, families and wider society, and in terms of the ongoing loss of lives to illnesses that can be treated but that are currently subject to severe underfunding and lack of services. The report estimates the costs of eating disorders, highlights where a lack of data is adding to the problems in current eating disorder services and the impact of these gaps, and sets out a series of recommendations.
Suicide in children and young people: National Child Mortality Database Programme thematic report. This report draws on data from the NCMD to identify the common characteristics of children and young people who die by suicide. It investigates factors associated with these deaths and pulls out recommendations for service providers and policy-makers.
Suicide: summary of statistics A summary of statistics on suicide in the UK. Includes trends by gender, age, English region, and deprivation.
Children's social care market study: Interim report The Competition and Markets Authority's interim report into its market study of children's social care provision finds that there is evidence of a shortage of appropriate places for children and that high prices are often being paid to place them. The interim report also finds: that there are too often no placements available, in children's homes, with foster carers or in independent accommodation, that fully meet the needs of children; and that because local authorities must find an appropriate placement, often under considerable time pressure, their position in the market is inherently weak. Recommendations being considered include the creation of larger-scale national or regional bodies with a remit to help ensure that children are able to access the right placements, where these do not already exist. The final report is due to be published in March 2022.
Children’s commissioner consultation The Children’s commissioner for England has published the results of the biggest-ever consultation with children in England.
National bundle of care for children and young people with asthma
The National bundle of care for children and young people with asthma is phase one of a plan to support integrated care systems to deliver high quality asthma care.
School attendance and clinically vulnerable families – a guide for parents and schools - Good Law Project
Cases
Re ABC. [2021] EWHC 2574. The court granted declarations sought by two NHS trusts in relation to the life-sustaining treatment of a 19-month-old child who had suffered catastrophic brain damage at birth and had whole body dystonic cerebral palsy. The court found that it was not in the child's best interests to receive any invasive forms of ventilation. It authorised a "ceiling of care" of non-invasive ventilation treatment.
Nottingham University Hospitals NHS Trust v M. [2021] EWHC 2613 (Fam). It was appropriate to make an anticipatory declaration concerning the ceiling of medical treatment for a 16-year-old who suffered from microcephaly and severe cerebral palsy and who was likely to experience a severe deterioration in his health at some point in the near future. The court declared that it would not be in his best interests to be provided with invasive mechanical ventilation in hospital for a short period in the event of an acute deterioration in his condition due to a potentially reversible cause.
Manchester University NHS Foundation Trust v Fixsler. [2021] EWHC 2664 (Fam) When determining the place at which life-sustaining treatment should be withdrawn from a terminally ill child whose parents were practicing Chassidic Jews, the religious obligations which the family wished to observe were important but were subordinate to the child's clinical and welfare needs. Accordingly, the High Court refused to permit life-sustaining treatment to be withdrawn in the parents' home and directed that it should take place in a children's hospice where most of the strict religious obligations could be observed, and where the child would receive expert medical care.
Bell v Tavistock and Portman NHS Foundation Trust. [2021] EWCA Civ 1363. The Divisional Court had been wrong to make a declaration specifying the relevant information that a child under 16 would have to understand, retain and weigh up in order to give informed consent to the administration of puberty blockers. The declaration covered areas of disputed fact, expert evidence and medical opinion. Nothing about the nature or implications of treatment with puberty blockers allowed for a real distinction from the consideration of contraception in Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112, [1985] 10 WLUK 150, [1985] C.L.Y. 2230, which decided that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.
News
JCVI issues updated advice on COVID-19 vaccination of children aged 12 to 15 The JCVI has reviewed the evidence on vaccinating children aged 12 to 15 who do not have underlying health conditions that put them at increased risk from severe COVID-19
Bevan Brittan Updates
New age restriction legislation for cosmetic injections - Julie Charlton
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
Clinical Risk / Patient Safety
Publications/Guidance
The Safety, Equity and Engagement in Maternity Services CQC report highlights continued concern about the varied quality and safety of England's maternity services. The report presents an analysis of the key issues persisting in some maternity services and highlights where action is still needed to support vital improvements.
Safety of maternity services in England: government response. This is the government’s response to the 15 recommendations made by the Health and Social Care Committee (HSCC) in its report published on 6 July 2021: ‘The safety of maternity services in England’.
The Government’s response to the Health and Social Care Committee’s expert panel evaluation: the government’s progress against its policy commitments in the area of maternity services in England The expert panel evaluated the following government commitments on maternity services: maternity safety; continuity of carer; personalised care; and safe staffing. They rated the government’s progress against each of these commitments using a Care Quality Commission-style rating. The government states that it welcomes this report and is considering the panel’s findings carefully as part of ongoing policy development.
MBRRACE-UK perinatal mortality surveillance report: UK perinatal deaths for births from January to December 2019. The results indicate that while perinatal deaths in the UK are declining – with the rate of stillbirths across the UK reducing by more than 20 per cent from 2013 to 2019 – there are key areas that need to be prioritised. The research shows an urgent need to improve care for mothers and babies from Black and Asian and minority ethnic backgrounds, and care for those living in more deprived areas.
Making maternity services safer: nurturing a positive culture. According to this Royal College of Midwives report, poor working cultures must be tackled if UK maternity services are to be made safer. It describes how a positive working environment is needed, where multi-disciplinary teams work and train together and are better equipped to deliver good quality, safe care for women and families.
Care Quality Commission Safety, equity and engagement in maternity services This report highlights continued concern about the variation in the quality and safety of England’s maternity services and calls for improvements to be prioritised to ensure safer care for all mothers and babies. It draws on the findings from a sample of nine focused maternity safety inspections carried out between March and June 2021, along with insight gathered from interviews and direct engagement with organisations representing women and their families, including equality campaign group Five X More and local Maternity Voices Partnerships.
Responding to the Independent Medicines and Medical Devices Safety (IMMDS) Review. A General Medical Council (GMC) document welcomes the Government's July 2021 response to the Independent Medicines and Medical Devices Safety (IMMDS) Review which highlighted patient stories of unacceptable harm caused by medicines and devices, alongside recommendations for the healthcare system, and details work that it has undertaken since the publication or the report including: exploratory work on how conflicts of interest can be better managed and addressed to improve transparency; and publishing guidance on shared decision making and consent.
The investigation of stillbirth This Commons Library briefing paper deals with the way stillbirth is investigated at present and proposals for change.
Building back cancer services. This research finds that even if stretched hospitals can maintain activity levels five per cent above pre-pandemic levels, it will still take until 2033 to clear the cancer treatment ‘missing patients backlog’.
Elective care: how has Covid-19 affected the waiting list? Presented in six charts this analysis looks at the impact of the pandemic on consultant-led elective care, using monthly referral to treatment waiting time data published by NHS England.
Bevan Brittan Events
Breach of duty and causation. Anthony Searle from Serjeants Inn Chambers will be giving an update of the last 12 months looking at important liability cases and developments. 30 November 2021. To register for this session click here.
HSIB and its role in patient safety in England. Matthew Wain (Principal National Investigator at HSIB) will give a broad overview of the HSIB including their investigations, reports/recommendations and maternity programme. To register for this session click here.
Bevan Brittan Updates
New age restriction legislation for cosmetic injections - Julie Charlton
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 Joanne Easterbrook, Tim Hodgetts or Joanna Lloyd.
Digital Health
Publications/guidance
Developing the digital skills of the social care workforce: evidence from the Care City test bed. Adult social care roles suffer from poor retention rates, but could digital technologies hold the answer to enabling skill development and improved job satisfaction in the sector? This summary explores how domiciliary care agencies have trained staff to use digital technology in order to monitor the vital signs of services users, and presents findings relating to the experience and skills development of care staff.
Digital Clinical Safety Strategy. The Digital Clinical Safety Strategy will attempt to upskill digital leaders and provide a safer service when using digital technology, including through better use of data and training. Developed jointly NHSX, NHS Digital and NHS England and Improvement, the strategy expands on the 2019 NHS Patient Safety Strategy.
Harnessing technology for the long-term sustainability of the UK’s healthcare system: report The Covid-19 pandemic has exposed the limitations of the current health system, highlighting health inequalities, the challenges to integrated health and social care and the shortcomings in our approach to public and population health. It has also led to further pressures on the system, with a backlog of treatment requirements that may take considerable time to clear. This report presents recommendations aimed at creating system change to improve outcomes for patients and support health care professionals, focusing on the successful integration of existing health care technologies to enable health system leaders to radically reshape the model of health and care delivery.
What Good Looks Like framework and funding digital programmes The NHSX What Good Looks Like framework outlines digital best practice for trusts and integrated care systems. This briefing summarises the proposed framework and associated funding information, followed by a discussion of the implications for trust leaders.
Who Pays for What proposals This document proposes where the cost of digital transformation should fall. It sets out a clear division of responsibility for technology funding and invites NHS organisations to help shape that plan.
If you wish to discuss any queries you may have around Digital Health please contact Daniel Morris.
Employment/HR
Publications/guidance
Making maternity services safer: nurturing a positive culture. According to this Royal College of Midwives report, poor working cultures must be tackled if UK maternity services are to be made safer. It describes how a positive working environment is needed, where multi-disciplinary teams work and train together and are better equipped to deliver good quality, safe care for women and families.
General practice pay transparency. The general practice pay transparency guidance provides information on the contractual requirement to disclose NHS earnings which was included in the GP contract from October 2021.
GP and dental clinical educator pay scales: 2021 to 2022
This guidance sets out GP and dental clinical educator pay rates for the financial year 2021 to 2022.
The state of the adult social care sector and workforce in England 2021. This annual report – based on data provided by sector employers to the Adult Social Care Workforce Data Set (ASC-WDS) – reveals that on average, 6.8 per cent of roles in adult social care were vacant in 2020/21, which is equivalent to 105,000 vacancies being advertised on an average day. The vacancy rate in adult social care has been persistently high at above 6 per cent for the previous six years. The turnover rates across the sector remain high, at 28.5 per cent in 2020/21. This figure had decreased during the pandemic, but since March 2021 many employers report that retention is now more difficult than before the pandemic. The rate was higher for registered nurses at 38.2 per cent, much higher than for their counterparts in the NHS (8.8 per cent).
Whistleblowing disclosures report 2021: healthcare professional regulators The Nursing and Midwifery Council received 192 whistleblowing disclosures in 2020–2021, compared with 107 disclosures the previous year. The rise in disclosures is largely due to Covid-19. Around a third of disclosures made during this year were related to the pandemic. The report highlights the collaborative efforts of eight regulators (General Chiropractic Council, General Dental Council, General Medical Council, General Optical Council, General Osteopathic Council, General Pharmaceutical Council, The Health and Care Professions Council and the Nursing and Midwifery Council) to address serious issues that health and care professionals have raised in UK workplaces.
Respected valued retained: working together to improve retention in anaesthesia This report finds that up to 1 million operations may be delayed every year because of a shortage of 1,400 anaesthetists – and concludes that the situation will get worse, as one in four working anaesthetists plans to leave the NHS in the next five years. It suggests that working patterns should be adjusted to accommodate the changes of ageing and that adjustments should be made to pension and tax arrangements to address the financial pressures that force doctors to retire.
Return on investment of overseas nurse recruitment: lessons for the NHS The recruitment of nurses from overseas is vital for securing the staff we need in order to meet ambitious national goals to expand the workforce – but what are the costs and benefits? This briefing summarises research commissioned by NHS England and NHS Improvement exploring the business case for overseas recruitment and looking at the factors that attract or deter nurses from choosing to work in the UK.
Equality, diversity and inclusion training: a good practice guide This guidance includes information on: who should receive the training; training objectives; training content outline; a definition of health inequalities; and legislative requirements and policies. It also covers equality standards in the NHS; understanding bias and strategies for embedding equality, diversity and inclusion. The guide is aimed at equality, diversity and inclusion leads, HR and learning and development professionals, and trade union representatives.
Increasing recruitment and retention through reward This case study describes how Sherwood Forest Hospitals NHS Foundation Trust developed a comprehensive reward package to play a vital role in its recruitment and retention campaign.
NHS staff from overseas: statistics Almost 15% of NHS staff in England report a nationality other than British. This briefing has statistics on the nationality of NHS staff for doctors, nurses and other groups, figures on EU nationals, and changes since the Brexit vote.
Welfare facilities for healthcare staff. This guidance, developed by the NHS Staff Council’s Health, Safety and Wellbeing Partnership Group, aims to support NHS organisations to improve their provision of staff welfare facilities.
Consultations
NHS Pension Scheme: proposed changes to member contributions - consultation. A Department of Health and Social Care consultation seeks views on proposals for a new member contribution structure in the NHS Pension Scheme which will be implemented from 1 April 2022. The proposal includes basing members' contribution rates on their actual annual salaries and reduces the cross-subsidy between higher and lower earners. Comments by 7 January 2022.
Legislation
NHS primary medical services directions. These directions set out the legal framework under which General Practitioners (GP) operate and are paid.
Bevan Brittan Events
On Demand - Employment Law Update: Menopause - Jodie Sinclair and James Gutteridge
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.
Finance
Publications/Guidance
The cost of eating disorders. This report highlights the cost of eating disorders in the UK, in terms of financial costs to the NHS, the financial, social and emotional impact on individuals, families and wider society, and in terms of the ongoing loss of lives to illnesses that can be treated but that are currently subject to severe underfunding and lack of services.
Respected valued retained: working together to improve retention in anaesthesia This report finds that up to 1 million operations may be delayed every year because of a shortage of 1,400 anaesthetists – and concludes that the situation will get worse, as one in four working anaesthetists plans to leave the NHS in the next five years. It suggests that working patterns should be adjusted to accommodate the changes of ageing and that adjustments should be made to pension and tax arrangements to address the financial pressures that force doctors to retire.
Rebuilding our NHS: the case for capital funding This briefing highlights what trust leaders need from the comprehensive spending review, based on a survey of trust and foundation trust finance directors across all sectors.
Who Pays for What proposals This document proposes where the cost of digital transformation should fall. It sets out a clear division of responsibility for technology funding and invites NHS organisations to help shape that plan.
If you wish to discuss any queries you may have around finance please contact Claire Bentley.
Health Inequalities
Publications/Guidance
The disease of disparity: a blueprint to make progress on health inequalities in England This report identifies six areas where policy needs to change to tackle health inequality, and makes recommendations across the NHS and the socio-economic drivers of poor health. Combined, these provide a constructive plan to tackle the ‘disease of disparity’ in England – and to achieve the health, social and economic gains possible from addressing health inequality.
Manifesto for recovery: the health and care system after Covid-19 This report sets out the views of health care leaders in England on the measures needed to ensure the NHS can meet the key challenges it faces, including addressing the backlog of care and health inequalities that have been exacerbated by Covid-19. It also explores how the health and care sector can sustain the beneficial changes that have resulted from the pandemic.
Building back inclusively: the evidence This briefing provides analysis of August 2021 data and trends in waiting times, the impact on inequalities, and what the NHS and patients can expect unless action is taken.
Tackling the elective backlog: exploring the relationship between deprivation and waiting times Long waiting times and growing waiting lists for hospital treatment have been a problem for some time, but now the Covid-19 pandemic has exacerbated the issue and waiting lists have grown rapidly. As with other aspects of the pandemic, this has not been experienced equally. This analysis of waiting list data shows a clear relationship with deprivation, which sees those living in the most deprived areas nearly twice as likely to wait more than a year for treatment compared to those living in the least deprived areas.
Attitudes to inequalities This report, published as part of the IFS Deaton Review of Inequalities, looks not just at economic inequality, but at attitudes towards other types of inequalities that also have an important bearing on people’s lives, including in health and education, and inequalities between genders, ethnic or racial groups, generations and people living in different areas.
Third quarterly report on progress to address Covid-19 health inequalities This is the third quarterly report on progress to address disparities in the risks and outcomes of Covid-19 for ethnic minority groups. It summarises how work across government, and with national and local partners, has led to increases in both positive vaccine sentiment and vaccine uptake across all ethnic groups over the past quarter. The report also includes further analysis of how the impacts of Covid-19 changed for ethnic minority groups between the first and second waves of the pandemic.
If you wish to discuss any queries you may have around health inequalities please contact Claire Bentley.
Information sharing/data
Publications/Guidance
Secondary use of health data in Europe This report (and accompanying interactive tool) compares the policy readiness of countries across Europe for the secondary use of health data, and identifies good practice across the region. The pandemic has shown us the value of bringing together population health data from multiple sources. But efforts to share health data across European countries is currently very fragmented. Secondary use of health data can play a crucial role in improving health systems.
News
Class action against Google over use of confidential patient medical data. Google is facing a class action over the use of confidential patient medical data under a contract in 2015 between its subsidiary DeepMind and the Royal Free NHS Foundation Trust. Mishcon de Reya, the law firm bringing the action, said it addressed "real public concerns about large-scale access to, and use of, private health data".
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.
Inquests
Publications/guidance
Reforms to the coroner service in England and Wales This Commons Library briefing paper provides information about the coroner service in England and Wales, provisions in the Judicial Review and Courts Bill which deal with coroners, and recommendations which have been made for further action and reform.
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.
Mental Health
Publications/guidance
The cost of eating disorders in the UK 2019 and 2020. This report highlights the cost of eating disorders in the UK, in terms of financial costs to the NHS, the financial, social and emotional impact on individuals, families and wider society, and in terms of the ongoing loss of lives to illnesses that can be treated but that are currently subject to severe underfunding and lack of services. The report estimates the costs of eating disorders, highlights where a lack of data is adding to the problems in current eating disorder services and the impact of these gaps, and sets out a series of recommendations.
Perinatal mental health services: recommendations for the provision of services for childbearing women. This report summarises the latest evidence base for the extent and impact of perinatal mental disorder and opportunities for intervention. It sets out: best practice principles; guidance on effective interventions; and workforce recommendations.
Mental health in prison This report finds that a disjointed and incoherent approach to care has left many prisoners suffering from mental health issues undiagnosed and unable to access care. It calls on the NHS, Ministry of Justice and the Prison and Probation Service to implement a system of integrated care that improves identification of mental health issues, provides seamless care while in prison and supports transition to care in community settings on release.
Suicide in children and young people: National Child Mortality Database Programme thematic report. This report draws on data from the NCMD to identify the common characteristics of children and young people who die by suicide. It investigates factors associated with these deaths and pulls out recommendations for service providers and policy-makers.
Suicide: summary of statistics A summary of statistics on suicide in the UK. Includes trends by gender, age, English region, and deprivation.
Healthcare needs of adults with a learning disability and autistic adults in prison. Guidance to help commissioners, providers and staff within the adult prison estate to plan and provide healthcare for adults with a learning disability and autistic people.
Cases
Re ABC. [2021] EWHC 2574. The court granted declarations sought by two NHS trusts in relation to the life-sustaining treatment of a 19-month-old child who had suffered catastrophic brain damage at birth and had whole body dystonic cerebral palsy. The court found that it was not in the child's best interests to receive any invasive forms of ventilation. It authorised a "ceiling of care" of non-invasive ventilation treatment.
Nottingham University Hospitals NHS Trust v M. [2021] EWHC 2613 (Fam). It was appropriate to make an anticipatory declaration concerning the ceiling of medical treatment for a 16-year-old who suffered from microcephaly and severe cerebral palsy and who was likely to experience a severe deterioration in his health at some point in the near future. The court declared that it would not be in his best interests to be provided with invasive mechanical ventilation in hospital for a short period in the event of an acute deterioration in his condition due to a potentially reversible cause.
Manchester University NHS Foundation Trust v Fixsler. [2021] EWHC 2664 (Fam) When determining the place at which life-sustaining treatment should be withdrawn from a terminally ill child whose parents were practicing Chassidic Jews, the religious obligations which the family wished to observe were important but were subordinate to the child's clinical and welfare needs. Accordingly, the High Court refused to permit life-sustaining treatment to be withdrawn in the parents' home and directed that it should take place in a children's hospice where most of the strict religious obligations could be observed, and where the child would receive expert medical care.
Re ED [2021] 10 WLUK 84. It was in the best interests of a male patient, who was in his 20s with a prolonged disorder of consciousness, to be transferred from a hospital to a hospice without any further assessment into his levels of awareness and to discontinue his clinically-assisted hydration and nutrition, taking into account his past wishes and the unanimous medical evidence. Bevan Brittan acted for the CCG and the treating hospital in this case. It is commented on here.
Re PW (Jehovah’s Witness: Validity of Advance Decision) [2021] EWCOP 52. The court concluded that an 80-year-old woman with dementia lacked capacity to refuse or consent to a blood transfusion and that it was in her best interests to undergo treatment. The patient was a Jehovah's witness and had executed an advance decision in 2001 refusing consent to blood transfusion. However, the court found that she had subsequently "done" things that were "clearly" inconsistent with the advance decision remaining her "fixed" decision such that it was invalid under the Mental Capacity Act 2005 Pt 1 s. 25(2)(c).
The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527 Appeal against a decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 were they to make the practical arrangements for a 27 year old man to visit a sex worker. Appeal allowed.
Calderdale MBC v AB & Ors (Order) [2021] EWCOP 56. The court had to consider the question of whether the property and affairs deputy was an ‘authorised person’ in respect of the P within the meaning of s32 of the Care Act 2014. The court concluded he was not
Dartford And Gravesham NHS Trust v SEB [2021] EWCOP 55. Judgment following an out of hours application by an NHS Trust concerning their plans for managing a woman with a schizoaffective disorder during the birth of her first child.
BU, Re [2021] EWCOP 54. Application by a daughter (WU), as representative for other family members, seeking orders that their mother (BU) lacks capacity to make decisions about her contact, restricting contact with another man and for a forced marriage protection order to be put in place.
Legislation
Implementing the Mental Capacity (Amendment) Act 2019. This briefing outlines the legal and policy background to the Mental Capacity (Amendment) Act 2019 and provides an overview of the main provisions in the new Act.
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.
Primary Care
Publications/guidance
Barriers to wellbeing: migration and vulnerability during the pandemic. This report reveals that refugees, asylum seekers and migrants reported higher levels of bad health and inadequate housing during the Covid-19 pandemic, as well as difficulties registering with a GP and accessing remote health care services, suggesting significant unmet health care needs.
Dealing with abuse of practice staff on social media from patients Steps that GP practices can take against patients who leave abusive comments on social media or websites - including what to do first, reporting content to the provider and criminal and civil actions.
General practice pay transparency. The general practice pay transparency guidance provides information on the contractual requirement to disclose NHS earnings which was included in the GP contract from October 2021.
GP and dental clinical educator pay scales: 2021 to 2022. This guidance sets out GP and dental clinical educator pay rates for the financial year 2021 to 2022.
Referring to the weight management programme. This new toolkit for general practice colleagues contains important information about the programme, how to make referrals and what you and service users can expect.
Our plan for improving access for patients and supporting general practice. An NHS document outlines assistance for improving access for patients and supporting general practice including additional funding for surgeries to boost their capacity to increase the proportion of appointments delivered face to face. The measures also include a £250 million winter access fund from NHS England to enable GP practices to improve availability, with a focus on increasing capacity to boost urgent same-day care. There is also a response from the Kings Fund which is here.
Accessing government-secured flu vaccines: guidance for GPs for 2021 to 2022. How primary care providers in England can access the extra stock of flu vaccines this winter that the government has secured.
Plan set out to improve access for NHS patients and support GPs. New blueprint will improve access and provide additional funding to increase the proportion of face to face appointments.
Legislation
NHS primary medical services directions. These directions set out the legal framework under which General Practitioners (GP) operate and are paid.
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 five 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.
Public Health
Publications/Guidance
Directors of public health and the Covid-19 pandemic: ‘A year like no other’ Directors of public health have had a unique viewpoint during the Covid-19 pandemic and have been at the forefront of making complex decisions about their local populations. Our new report explores their crucial role in leading the local response to the pandemic.
Tackling the elective backlog – exploring the relationship between deprivation and waiting times Long waiting times and growing waiting lists for hospital treatment have been a problem for some time, but now the Covid-19 pandemic has exacerbated the issue and waiting lists have grown rapidly. As with other aspects of the pandemic, this has not been experienced equally. This analysis of waiting list data shows a clear relationship with deprivation, which sees those living in the most deprived areas nearly twice as likely to wait more than a year for treatment compared to those living in the least deprived areas.
Directors of public health and the Covid-19 pandemic: ‘A year like no other’. Directors of public health have had a unique viewpoint during the Covid-19 pandemic and have been at the forefront of making complex decisions about their local populations. This report explores their crucial role in leading the local response to the pandemic.
News
A new body, the Office for Health Improvement and Disparities (OHID), has been launched, with the aim of putting prevention at its heart to help people live longer, healthier and happier lives. The OHID will tackle health disparities across the UK which mean men in the most deprived areas in England are expected to live nearly 10 years fewer than those in the least deprived. Chief Medical Officer, Professor Chris Whitty, will provide professional leadership to OHID. It has also been announced that patients will benefit from earlier diagnostic tests thanks to 40 new Community Diagnostic Centres set to open across England, with the aim of providing around 2.8 million scans in the first full year of operation.
How we can help
If you wish to discuss any queries you may have around public health please contact Claire Bentley.
Regulation
Publications/Guidance
Consultation on the future regulation of medical devices in the United Kingdom. A Medicines and Healthcare products Regulatory Agency consultation seeks views on how medical devices will be regulated across the UK in the future. The MHRA aims to develop a future regime for medical devices which enables: improved patient and public safety; greater transparency of regulatory decision making and medical device information; close alignment with international best practice, and more flexible, responsive and proportionate regulation of medical devices. Comments by 23.45 on 25 November 2021.
Whistleblowing disclosures report 2021: healthcare professional regulators The Nursing and Midwifery Council received 192 whistleblowing disclosures in 2020–2021, compared with 107 disclosures the previous year. The rise in disclosures is largely due to Covid-19. Around a third of disclosures made during this year were related to the pandemic. The report highlights the collaborative efforts of eight regulators (General Chiropractic Council, General Dental Council, General Medical Council, General Optical Council, General Osteopathic Council, General Pharmaceutical Council, The Health and Care Professions Council and the Nursing and Midwifery Council) to address serious issues that health and care professionals have raised in UK workplaces.
News
Vaccination of people working or deployed in care homes: operational guidance From 11 November 2021, anyone working or volunteering in a care home will need to be fully vaccinated against coronavirus (COVID-19), unless exempt.
How we can help
If you wish to discuss any queries you may have around regulation please contact Stuart Marchant.
Social Care
Publications/Guidance
State of Care. The Care Quality Commission's (CQC) annual assessment of the state of health and social care in England looks at the quality of care over the past year, the first of these reports to cover a full year of the coronavirus (COVID-19) pandemic. The report looks at the identifiable trends, shares examples of good and outstanding care, and highlights where care needs to improve.
Social care funding: improving the availability of private sector insurance products. A House of Lords Library In Focus briefing looks at the Government's intention to work with the financial services industry to encourage it to provide more products to help individuals cover their care costs, alongside the sector's reaction and parliamentary committee commentary on the subject.
The value of adult social care in England. This report estimates that adult social care in England had a minimum total economic value in 2020/21 of £50.3 billion, made up of £25.6 billion of gross value added and a further £12.6 billion of indirect and £12.1 billion of induced effects. The report analyses the wider societal value and monetises some of these benefits, including improved wellbeing of carers and employment opportunities for carers, which is calculated up to £1.3 billion and around £5.6 billion for working age adults. The report also argues that the best way to make adult social care sustainable in the long term is to move away from payment for adult social care processes to payment based on better outcomes for people who draw on care and support services.
Annual review of adult social care complaints 2020-21 This annual review of social care complaints – covering both councils and independent care providers across England – shows the service found fault in 72 per cent of the complaints it investigated last year. The report discovers that the faults found during investigations are often not due to one-off errors caused by staff working under pressure, but are increasingly caused by the measures employed by councils and care providers to mitigate the squeeze on their resources.
Developing the digital skills of the social care workforce: evidence from the Care City test bed. Adult social care roles suffer from poor retention rates, but could digital technologies hold the answer to enabling skill development and improved job satisfaction in the sector? This summary explores how domiciliary care agencies have trained staff to use digital technology in order to monitor the vital signs of services users, and presents findings relating to the experience and skills development of care staff.
Children's social care market study: Interim report The Competition and Markets Authority's interim report into its market study of children's social care provision finds that there is evidence of a shortage of appropriate places for children and that high prices are often being paid to place them. The interim report also finds: that there are too often no placements available, in children's homes, with foster carers or in independent accommodation, that fully meet the needs of children; and that because local authorities must find an appropriate placement, often under considerable time pressure, their position in the market is inherently weak. Recommendations being considered include the creation of larger-scale national or regional bodies with a remit to help ensure that children are able to access the right placements, where these do not already exist. The final report is due to be published in March 2022.
New inquiry: Protecting Human Rights in Care Settings . A Joint Committee on Human Rights inquiry into whether the human rights of residents and their families are respected in care homes will examine how the human rights of those accessing social care are currently undermined or put at risk, what can be done to enhance legal protections, how well care providers ensure the human rights of the people under their care and how regulators ensure high standards in the sector. It will cover the broad range of social care services including support for older people and people with long-term medical or mental health disabilities. Comments by 1 November 2021.
News
Vaccination of people working or deployed in care homes: operational guidance From 11 November 2021, anyone working or volunteering in a care home will need to be fully vaccinated against coronavirus (COVID-19), unless exempt.
They let Covid rip through our care homes
Bevan Brittan Updates
CQC State of Care Report: Key findings - Siwan Griffiths
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If you wish to discuss any queries you may have around social care please contact Siwan Griffiths.
General
Publications/Guidance
For whose benefit? NHS England’s contract with the private hospital sector in the first year of the pandemic This report analyses the government’s use of the private hospital sector in England as a strategy for alleviating the burden on the NHS during the first year of the Covid-19 pandemic. It uses publicly available information to examine the nature of the contracts between the NHS and the private sector, the potential costs of these contracts and the extent to which NHS patients benefited from this approach. The research shows that none of the goals outlined for the deal were achieved to a significant extent. Almost no Covid patients were treated in the private sector and NHS-funded activity in the private sector fell significantly, and much further than in NHS trusts.
Building back cancer services. This research finds that even if stretched hospitals can maintain activity levels five per cent above pre-pandemic levels, it will still take until 2033 to clear the cancer treatment ‘missing patients backlog’.
UKHSA review into IPC guidance. The UKHSA has recommended three pragmatic changes that hospitals can make to the current management of coronavirus (Covid-19) infection prevention and control (IPC) measures, with a focus on elective care. These initial recommendations include three interventions that relate to social distancing and testing in NHS and social care elective care services, and cleaning practices: a reduction of physical distancing from 2 metres to 1 metre with appropriate mitigations where patient access can be controlled; removing the need for a negative PCR and three days of self-isolation before selected elective procedures, as currently advised by the National Institute for Health and Care Excellence (NICE); and re-adopting standard rather than enhanced cleaning procedures.
What every board member needs to know about improvement and quality assurance This report, produced together with Perfect Ward, is intended to guide and support boards in developing and maintaining robust quality assurance and improvement processes within their organisations. It contains a maturity matrix, a practical tool to support boards in assessing levels of maturity within their organisations against key identified criteria and identifying the steps they need to take to progress the maturity of their organisations. The report also provides best practice examples and key questions to help boards translate theory into practice.
Coronavirus: lessons learned to date - Sixth Report of the Health and Social Care Committee and Third Report of the Science and Technology Committee of Session 2021-22. A joint Health and Social Care Committee and Science and Technology Committee report on its inquiry into the initial UK response to the coronavirus (COVID-19) pandemic examines pandemic preparedness, lockdowns and social distancing, testing and contact tracing, social care, at risk communities and vaccines. Conclusions include that: the initial decision to delay a comprehensive lockdown, despite practice elsewhere in the world, reflected a fatalism about the spread of the virus that should have been robustly challenged at the time; delays in establishing an adequate test, trace and isolate system hampered efforts to understand and contain the outbreak and it failed in its stated purpose to avoid lockdowns; social care was not given sufficient priority in the early stages; the forward-planning, agility and decisive organisation of the vaccine development and deployment effort should be a guide to future Government practice. The report makes 38 recommendations to the Government and public bodies.
COVID-19 medical exemptions: proving you are unable to get vaccinated How to apply for official proof that, for medical reasons, you're unable to be vaccinated or unable to be vaccinated and tested for COVID-19.
Quality and safety of human organs, tissues and cells. Guidance for hospitals, tissue establishments and fertility clinics for ensuring the quality and safety of human organs, tissues and cells (including reproductive cells).
Hospital discharge and community support: policy and operating model. Sets out how health and care systems should support the safe and timely discharge of people who no longer need to stay in hospital.
COVID-19: guidance for health professionals. Information on COVID-19, including guidance on the assessment and management of suspected UK cases.
Building back inclusively: radical approaches to tackling the elective backlog This briefing recommends radical, whole-system changes to tackle the elective backlog inclusively. Aimed at health care leaders overseeing elective recovery, as well as policy-makers with the levers to effect change, it puts forward 10 practical measures to manage the backlog.
Interim guidance on the functions and governance of the integrated care board This interim guide covers the expected governance requirements for integrated care boards as outlined in the Health and Care Bill and the ICS design framework.
Thriving places: guidance on the development of place-based partnerships as part of statutory integrated care systems This document, produced together with the Local Government Association (LGA), seeks to support all partner organisations in integrated care systems (ICSs) to collectively define their place-based partnership working, and to consider how they will evolve to support the transition to the new statutory ICS arrangements, anticipated from April 2022.
Building strong integrated care systems everywhere. ICS implementation guidance on working with people and communities This guidance includes supporting people to sustain and improve their health and wellbeing, as well as involving people and communities in developing plans and priorities, and continually improving services. It sets out 10 principles for how integrated care boards (ICBs) can develop their approaches to working with people and communities, and the expectations.
Eating and drinking with acknowledged risks.The purpose of this document is to guide healthcare professionals through the complex decision-making process to support adults when eating and drinking with acknowledged risks.
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