Health and Social Care Update Care Information Sharing Children Mental Health Clinical Risk/Health and Safety Primary Care Commissioning Procurement Employment/HR Public Health Finance General

06/12/2022

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	Independent Health
Acute and emergency care	Information Sharing/Data
Children/young people	Mental Health
Clinical Risk/Patient Safety	Primary Care
Digital Health	Provider
Employment/HR	Public Health
Finance	Regulation
Health Inequalities	Social Care
Housing and homelessness	General

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Bevan Brittan Free Training Events

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.

Employment Law Update: Case law and horizon scanning for HR and in-house legal advisers 6 December 11am.

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.

Acute and emergency care

Publications/guidance

Why have ambulance waiting times been getting worse? This data analysis looks at ambulance service performance and explores the contributing factors and priorities for improvement.

Health inequalities: what is happening in emergency medicine Kelly Ameneshoa, Population Health Fellow at The King's Fund, considers how health inequalities affect access to care and how clinicians in A&E can consider population health issues in day-to-day work.

Feeling blue: the experiences of ambulance staff An ambulance tearing past is one of the most regular reminders of the NHS’s integral role in society. But how ambulance staff feel about their work has long been a concern, and the latest staff survey shows their job satisfaction has deteriorated further. A new blog from Cyril Lobont takes a closer look at the findings.

Paramedics in general practice NHS England and Health Education England have co-published this guidance document which describes the scope of practice of paramedics working in general practice.

Mind the gaps: understanding and improving out-of-hours care for people with advanced illness and their informal carers This research states that terminally ill people are struggling to access essential care at home during evenings and weekends, which, the charity warns, means people are dying in pain. Among the findings is that out-of-hours emergency department attendance increases in frequency as death approaches, and is more common among people living in the most socio-economically deprived areas.

NHS Key Statistics: England, November 2022 Summary of NHS demand, performance, backlogs, and capacity of services in England. Covers A&E statistics, waiting lists and pressures, 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

Safeguarding Pressures phase 8: special thematic report on children's mental health This report draws together returns from 125 local authorities, 21 interviews with directors or assistant directors of children’s services and supplements this with existing data, finding evidence of a crisis in children’s mental health. It finds that the recent focus has been placed on improving mental health support for children and young people but calls for more attention from central government, mental health commissioners and providers working together at a national level, with sufficient long-term investment.

Scoping digital support for children and young people’s mental health. At a time of rising demand, the NHS has recognised that Child and Adolescent Mental Health Services (CAMHS) needs help to identify and harness the best of the ever-expanding array of digital innovations – from assessment through therapeutic interventions to ongoing support and prevention. This report identifies potential digital solutions to support NHS mental health services for children and young people. The audit of 24 digital tools and solutions covered current usage, interoperability, user experience and cost, and fit with NHS strategic priorities.

Mental Health Act Reform - Children and Young People: Research briefing. A UK Parliament POST briefing covers how and when the Mental Health Act 1983 (MHA) is used to treat children and young people (CYP) aged under 18, rates of MHA use and outcomes for CYP and how it interacts with other legislation. It also cover stakeholder perspectives on the potential impact of the reforms on CYP and details how the draft Mental Health Bill will amend the MHA.

Crisis in children's mental health This report draws together returns from 125 local authorities, 21 interviews with directors or assistant directors of children’s services and supplements this with existing data, finding evidence of a crisis in children’s mental health.

Beyond the labels: A SEND system which works for every child, every time. A Children's Commissioner report outlines key messages it has heard from children including that: children are ambitious, but do not always have excellent support; the Special Educational Needs and/or Disability (SEND) system should work for all children; children want services to work together to provide seamless support; and children don't always feel understood. It translates these messages into three over-arching ambitions: to ensure all children and young people get support that reflects their ambitions ; to ensure that all children are getting timely and effective support, locally, with a focus on early intervention; and to ensure that all children have consistent, excellent experiences wherever they are in the system.

The Independent Inquiry into CSA has published its overarching final report. The seven-year inquiry has said that the abuse of children is an “epidemic” and has set out a series of wide-ranging recommendations, including that a national compensation scheme for victims should be introduced, along with laws compelling people in positions of trust to report CSA. The Government has said it will respond in full to the report within six months.

The Child Safeguarding Practice Review Panel has published its phase one report into safeguarding children with disabilities and complex health needs in residential settings. The report examines allegations of abuse and neglect in three private residential settings operated by the Hesley Group in Doncaster. Among its initial findings are concerns about children’s voices not being heard; the availability of appropriate placements for children; workforce and culture in the settings; inconsistent quality assurance processes by councils; and challenges with national regulatory arrangements. Councils have been asked to urgently carry out quality and safety reviews for every child placed in similar provision for whom they are responsible, to provide reassurance that the setting meets the child’s needs and to address any concerns that arise. A second phase of the review is now underway to consider the changes needed to the wider ‘system’ to ensure that children are helped to live better lives in a safe, loving environment.

Duties to report child abuse in England A briefing on the current position regarding reporting child abuse in England, and calls for the introduction for a mandatory reporting duty.

Support for vulnerable adolescents. The National Audit Office (NAO) has published a report on the support available for vulnerable adolescents, which has found that the current governmental approach may be insufficient to meet the needs of families, vulnerable adolescents and children. The report considers the challenges adolescents face, the risk factors that can cause vulnerability and the cumulative impact of adverse outcomes for adolescents and society. The report also examines the information the government uses to understand these issues, its approach to supporting vulnerable adolescents, including how well government bodies are working together to plan and deliver support, the effectiveness of support programmes and the challenges the government faces in providing effective support and delivering value for money.

Educational poverty: how children in residential care have been let down and what to do about it: Government response to the Committee's Second Report: Third Special Report of Session 2022-23 Official Publication - UK Added: November 10, 2022 06:57 (GMT) Subject: Education; Social welfare Keywords: Children's services; Education; Looked-after children; Residential care; Social care Abstract: An Education Committee special report sets out the Government's response to its report "Educational poverty: how children in residential care have been let down and what to do about it". The Government notes a number of the Committee's recommendations closely relate to issues where recommendations have been made by "The Independent review of children's social care: Final Report". This includes, for example, recommendations relating to OFSTED's inspection framework for local authority children's services. As the Government is keen to consider all related recommendations in a cohesive, holistic manner, in such instances it will consider the Committee's recommendations as it progresses the wider work of the department in these areas.

How local authorities plan for sufficiency of accommodation that meets the needs of children in care and care leavers. An OFSTED report finds that local authorities are struggling to find homes for children coming into care due to the rising demand for places and a lack of suitable accommodation. It found local authorities often struggle to plan for and meet their legal duty to offer sufficient accommodation for children in need of care. It also suggests that difficulty forecasting demand and the need for urgent placements leaves local authorities with little option but to respond to individual cases as and when they arise.

The independent review of Children's social care. A House of Commons Library research briefing on "The Independent Review of Children's Social Care", ahead of a back bench business debate scheduled for 24 November 2024, outlines the recommendations of the Final Report and the Government's response. It also lists news articles together with Parliamentary material including Commons Library briefings, parliamentary questions, and select committee reports.

Evaluating innovation projects in children's social care: Twenty-Seventh Report of Session 2022-23. A Public Accounts Committee report examines the Department for Education's Children's Social Care Innovation Programme to see what delivers best for children in the care system. It notes that it is not yet clear that these innovations are delivering widespread improvement at the front line, and states that embedding high quality innovations in social care practice remains a challenge, requiring cultural change, a sustained commitment from government, and consistent support from senior leaders in the sector.

Logan Mwangi Child Practice Review. A child practice review report in relation to Logan Mwangi, who was murdered by his mother, her partner and his stepson in 2021, considers how different agencies were involved with the boy's family in the 17 months before his death. It recommends that the Cwm Taf Morgannwg Health Board should commission an independent review into its practice and management of identifying and investigating non-accidental injuries in children and adolescents which should also make recommendations as to how the Health Board develops escalation and quality assurance systems that embed and maintain any practice learning.

A new approach to area SEND inspections: a report on the response to the consultation. A joint OFSTED and Care Quality Commission (CQC) publication summarises the responses to a consultation proposing changes to the way they jointly inspect local area partnership special educational needs and disabilities (SEND) arrangements. In 2023, the two bodies plan to compile a list of checks that are carried out when looking into whether services are making a difference. Reports will also start to have better ways to explain what local services are doing well, and what needs to improve. Local services will be required to write a plan after OFSTED and the CQC have checked their services.

News

Child protection enquiries reach record levels.

Bevan Brittan Updates

The Housing Sector and Mould - Part One. In this two part series we identify health and safety and children’s safeguarding issues arising from the recent inquest of Awaab Ishak, whose death resulted following exposure to mould in his family home.

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

Saving lives, improving mothers' care: lessons learned to inform maternity care from the UK and Ireland Confidential Enquiries into Maternal Deaths 2018-20 This report, the ninth MBRRACE-UK annual report of the Confidential Enquiry into Maternal Deaths and Morbidity, includes surveillance data on women who died during or up to one year after pregnancy between 2018 and 2020 in the UK. In addition, it also includes Confidential Enquiries into the care of women who died between 2018 and 2020 in the UK and Ireland from cardiovascular causes, hypertensive disorders, early pregnancy disorders and accidents, and the care of women who died from mental health-related causes in 2020.

Signpost to Nowhere? A report by the Harmed Patients Alliance (HPA) puts forward the case for funded independent advocacy, advice and information for patients and families following patient safety incidents. It Explaining what is meant by advocacy, advice, information and independent, it outlines: the needs of people when they have been harmed or affected by a patient safety incident; what such services are currently available from the NHS and healthcare systems; what the Government, NHS bodies and regulators say about independent advocacy, advice and information for harmed patients and their families; and the moral, patient safety and financial arguments for funding independent advocacy, advice and information. Looking at the way forward, the report provides an example of how such needs can be met in a cost-efficient way.

Final report of the Serious Untoward Incident investigation into the misreporting of PCR test results by the Immensa Health Clinic Limited. A UK Health Security Agency (UKHSA) report sets out the findings of a serious untoward incident (SUI) investigation following errors at the private Immensa laboratory in Wolverhampton, which was commissioned to provide additional testing capacity for NHS Test and Trace from 2 September 2021. It concludes that incorrect setting of the threshold levels for reporting positive and negative results of PCR samples for coronavirus (COVID-19) by staff led to some tests reporting as negative for COVID-19 which would have been assessed as positive if the threshold had been correctly set. It estimates that this error could have led to around 39,000 results being incorrectly reported as negative when they should have been positive. The report makes recommendations about corporate working for UKHSA.

Early Notification case stories. In Advise, resolve and learn NHS Resolution strategy to 2025, their second strategic priority is to share data and insights as a catalyst for improvement and their third is to collaborate to improve maternity outcomes. Aligned with these aims they have gathered together learning from our Early Notification Scheme and produced a number of case stories to help support learning from harm identified through claims.

Maternity statistics 2021-22 NHS Maternity Statistics, England, 2021-22 brings together information on hospital care received before, during and after delivery.

Healthcare Professional Alert Notices (HPANs): insights from nine years of managing the scheme which explains what an HPAN is, why they are issued and their importance in ensuring patient, staff and public safety. This publication is primarily aimed at medical directors, senior clinical managers, HR professionals and professional regulators.

Cases

Case of note: PP v. Cambridge University Hospitals NHS Foundation Trust (High Court, 17 May 2022 – Ritchie J.)This was a case where distinguished experts held radically differing views. The judge had to consider the performance of each under cross-examination by experienced counsel and also the extensive academic literature, which lacked directly relevant clinical studies for ethical reasons. Choosing between contrasting opinions is something judges have to do frequently, and it can be difficult to predict the outcome. The trust’s haematology expert was (and indeed is) a leading figure in the field of thrombolysis, having written many relevant papers himself and being a lecturer on the subject. This was undoubtedly an extremely sad case for PP and her family, but the trust’s defence was supported by one of the foremost specialists in the country. We are now proceeding to quantify the claim and to try and agree damages as soon as feasible.

Builder in dishonest NHS compensation case. A builder from Ross-on-Wye was fundamentally dishonest about his injuries in his attempt to claim more than half-a-million pounds in compensation from Wye Valley NHS Trust, a judge has ruled.

O'Brien v Guy's and St Thomas' NHS Trust. [2022] EWHC 2735 (KB). An intensive care unit doctor who administered a high dose of an antibiotic to a patient with impaired renal function which caused ototoxic injury to his hearing and balance had not been negligent. He had weighed the patient's risk of sepsis and death against the risk of ototoxicity and prescribed the high dose for good, logical, and cogent reasons. The hospital's ICU guideline on the dosage of the drug departed from national guidelines for good reasons as the balance of risk in the ICU was often different from that in other settings.

Consultations

Help influence future MHRA safety communications and safety reporting systems. The public consultation on how the MHRA communicate medicines and medical devices safety information to healthcare professionals is now open. This is a unique opportunity for healthcare professionals and representative organisations to have their say on the way they would like to receive safety information.

NHS resolution response to proposed changes to the NHS provider licence. Responding to the NHS England consultation on changes to the NHS provider licence to support effective system working and the delivery of high-quality sustainable care, NHS Resolution suggests that NHS2: governance arrangements, is amended to ensure that the licensee (that being the NHS trust) has regard to their claims experience and membership contributions to the NHS Resolution indemnity schemes, and patient safety initiatives associated with those schemes, to ensure that there is sufficient scrutiny and oversight of not only the cost of clinical negligence but the causes of incidents at each provider.

News

Prolific surgeon ‘harmed more than 100 patients’.

Speak-Up month: Being a force for positive change

Bevan Brittan Updates

Maternity Outcomes. The Independent Report into the Maternity and Neonatal services in East Kent was published on 19 October 2022 and raises fundamental concerns about the provision of maternity services. The report makes for difficult reading. The criticisms are wide ranging but there are 4 broad areas for action, which as the report makes clear, have national applicability.

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 or Tim Hodgetts.

Digital Health

Publications/guidance

Digital technologies support health and care workforce As demand for the NHS and social care workforce continues to grow over the next decade, maximising digital technologies will allow for the transformation of workforce planning and supply, education and training, clinical decision-making and deliver personalised healthcare services.

Developing healthcare workers' confidence in AI This report is a collaboration between the NHS AI Lab and Health Education England, and is the second of two reports in relation to this research. The first report published in May 2022 argued that confidence in AI used in health care can be increased by establishing its trustworthiness through the governance and robust implementation of these technologies. This second report determines educational and training requirements, and presents pathways for education and training offerings to develop the workforce’s confidence in AI.

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

Employment/HR

Publications/guidance

NHS staff from overseas: statistics One in six 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.

Has Brexit affected the UK’s medical workforce? This long read looks at how the numbers of doctors in the NHS who come from the EU and the European Free Trade Association has changed since the Brexit referendum in 2016 and whether certain specialties face particular problems.

NHS staffing shortages: why do politicians struggle to give the NHS the staff it needs? The King’s Fund and Engage Britain commissioned Bill Morgan, a former Conservative special adviser, to explore what can get in the way of ministers taking meaningful, long-term action to address NHS workforce shortages. The resulting report focuses on the role of politicians in workforce planning and delivery. It sets out the scale of the workforce crisis and the impact that it has, and the causes. It also considers the political reasons around why it has historically been so hard to fix and considers three factors that could contribute to tackling the current shortages.

Statement on English language proficiency requirements for internationally trained health and care professionals. A Health and Care Professions Council (HCPC) statement sets out its approach to assessing English language communication skills for people who qualified and trained outside of the UK who are applying to join the HCPC's Register.

Combatting racial discrimination against minority ethnic nurses, midwives and nursing associates This resource is designed to support nurses, midwives and nursing associates, providing advice on the action that can be taken if witnessing or experiencing racism. It also aims to support those in leadership roles to be inclusive leaders.

Understanding ‘early exiters’: the case for a healthy ageing workforce strategy Compared with before the pandemic, there are over 100,000 more people aged 50-64 who are no longer in work because of a long-term health condition. This report finds that the UK is the only high-income country that has seen a sustained rise in economic inactivity among this age group since the start of the pandemic. It calls for the first ever Ageing Workforce Strategy: a cross-government approach, including tax incentives to improve access to occupational health, better integration of health and employment support, and more scientific and physiological research to weaken the link between ill health and older age.

Supporting our NHS people through menopause: guidance for line managers and colleagues This guidance helps NHS organisations, line managers, and those working in the NHS understand more about the menopause, how they can support colleagues at work and those experiencing menopause symptoms.

News

New hub on challenging racism and discrimination in healthcare. The General Medical Council (GMC) has launched a resource to support doctors facing racism at work. It collates guidance: focusing on supporting those who experience discrimination; giving advice on how to tackle it, whether personally or as a bystander; and highlighting expectations of employers and medical leaders to foster inclusive cultures, where people feel supported to challenge racism, and signposts to how and where a concern or issue can be raised.

Record numbers of NHS doctors and nurses A record number of doctors and nurses are now working in the NHS in England.

Bevan Brittan Updates

Employment Eye December 2022. Our latest round up of employment law developments and what they mean for employers.

Bevan Brittan Events

Employment Law Update: Case law and horizon scanning for HR and in-house legal advisers 6 December 11am.

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

Financial wellbeing: applying All Our Health This guidance illustrates how money can impact on wellbeing and identifies how frontline health and care staff can use their trusted relationships with patients, families and communities to promote the benefits of financial wellbeing.

Managing NHS backlogs and waiting times in England According to this report, the plan to reduce long waits for NHS elective and cancer care services by 2025 is at serious risk. It finds that the funding allocated by the government for recovering services has not kept pace with inflation, and the NHS faces workforce and productivity issues.

The Pritchard challenge: the next NHS efficiency drive Ahead of the Autumn Statement, Siva Anandaciva, Chief Analyst at The King's Fund, explores what we can learn from the two rounds of £20 billion funding squeezes the NHS has faced since 2010.

What does the autumn statement mean for public services? An Institute for Government report sets out the impact of the Chancellor's Autumn Statement on four service areas: the NHS; schools; the criminal justice system; and local government. One issue highlighted is the continued slow recovery of public services from the impact of the COVID-19 pandemic. Another is pay, which accounts for more than half of public-sector budgets. It notes that prisons and courts are in a particularly dire state, with the spending decisions meaning little prospect of making meaningful reductions to the post-pandemic Crown Court backlog or of safely housing the expected increase in prisoner numbers.

For more information contact Claire Bentley.

Health Inequalities

Publications/Guidance

Involving and engaging with the patients and local communities The Care Quality Commission's latest mythbuster talks about how GP practices engaging and involving local communities in primary care is incredibly important, both in terms of reducing health inequalities and acting on feedback.

Poverty and the health and care system: The role of data and partnership in bringing change Poverty causes ill health, drives inequality in health outcomes and increases use of health services. This King's Fund long read with the Centre for Progressive Policy considers how successful sharing and acting on data can support health and care systems in mitigating, reducing and preventing poverty's effects on health.

Why preventing food insecurity will support the NHS and save lives This long read from the NHS Confederation highlights how rising food insecurity is increasing the prevalence of physical and mental health conditions caused by hunger and unhealthy diets.

NICE and health inequalities NICE's health inequalities web resource directs you to NICE-recommended, evidence-based approaches to address health inequalities.

Health and place: how levelling up health can keep older workers working This report finds that a quarter of a million older people could have stayed in paid employment longer had the levelling up health targets been achieved a decade ago.

The IFS Deaton Review of Inequalities: health inequalities This report finds that there are marked differences in life expectancy between the regions of England, the countries in the UK, and the UK and other wealthy countries. It argues that the austerity measures enacted after the financial crisis of 2008 not only harmed many people directly and unequally, through reductions in public services, but may also have played a role in the anaemic reduction in mortality rates observed for adults after 2010. For policy to improve the health of those left behind to be properly implemented, more and better data is needed.

A knotted pipeline: data-driven systems and inequalities in health and social care This report aims to describe the interplay between data and inequalities in the health and social care system across the UK. Acknowledging the potential for data-driven technologies to improve health and social care outcomes, it scrutinises the ‘pipelines’ of data that power health technologies, identifying trends, approaches or limitations in data and data use that might undermine the beneficial outcomes sought.

Human Rights of Asylum Seekers in the UK - Inquiry As part of its inquiry, the Joint Committee on Human Rights calls for views on the rights of asylum seekers in the UK, with a view to identifying human rights concerns. Comments by 15 December 2022.

Migrant health guide Advice and guidance on the health needs of migrant patients for healthcare practitioners.

Improving Roma health: a guide for health and care professionals. Supporting health and care professionals to improve services by better understanding the health outcomes that some people in the Roma community face.

Sexual orientation and gender identity in the medical profession This report has found that fewer than half (46 per cent) of lesbian, gay, bisexual, and queer respondents feel able to be open about their sexual orientation where they work or study. The report, based on 2,490 responses from doctors across the UK, suggests a medical workforce that still suffers from and engages in persistent negative stereotypes, derogatory language and social exclusion. It makes several recommendations around improving medical curricula, better training, increasing the visibility of LGBTQ+ role models and enabling dialogue and space to learn.

The elective care backlog and ethnicity This research looks at variation in treatment rates for routine hospital care, both before and during the Covid-19 pandemic. It considers changes in elective activity overall and specifically in relation to seven groups of common hospital procedures across five main ethnic groups (White, Mixed, Asian, Black and Other). The focus is on ethnic variations, but it also considers variations by deprivation and region because the proportion of ethnic minority groups is higher in more deprived areas, in cities and in some regions.

Health inequalities: what is happening in emergency medicine Kelly Ameneshoa, Population Health Fellow at The King's Fund, considers how health inequalities affect access to care and how clinicians in A&E can consider population health issues in day-to-day work.

How we can help

We have a multidisciplinary team advising NHS commissioners and providers on all aspects of tackling health inequalities, ranging from:

advising on the new legal framework and compliance with the relevant statutory duties, particularly in the context of service reconfiguration;
addressing workforce inequalities;
taking action on patient safety to reduce health inequalities;
the role of the Care Quality Commission in tackling health inequalities; and
lessons to be learnt from the Covid-19 pandemic.

If you wish to discuss any queries you may have around health inequalities please contact Olivia Carter or Julia Jones.

Housing and homelessness

Publications/Guidance

Homeless and Inclusion health nursing: case studies This collection of case studies demonstrates the role that specialist homeless and inclusion health nurses play in protecting and improving the health and wellbeing of the most disadvantaged members of society.

Regulation 28: Report to Prevent Future Deaths. A Courts and Tribunals Judiciary publication sets out the details of an investigation into the death of Awaab Ishak, who died from a respiratory condition caused by exposure to mould in his home. It urges the Department of Levelling up, Housing and Communities and the Department of Health and Social Care to respond within 56 days with details of action taken or proposed to be taken.

Bevan Brittan Updates

If you wish to discuss any queries you may have around housing and homelessness please contact Julia Jones.

Independent Health

News

Lack of clarity around funding constraining use of independent sector for NHS electives. Complex funding mechanisms and ongoing uncertainty over future allocations are hampering plans to channel more NHS elective activity into the independent sector.

Bevan Brittan Updates

Independent healthcare providers: mitigating commercial risk when managing energy costs

For more information contact Tim Hodgetts or Julie Charlton

Information Sharing/Data

Publications/Guidance

Accelerated access to GP-held patient records guidance Ahead of the planned 1 November switch-on of prospective record access for patients, GPC England (BMA's General Practitioners Committee) has published guidance setting out its position and informing practices of their options.

An update from NHS England on Accelerating Citizen Access to GP Data (1 November 2022) An update from NHS England on enabling patients to view their GP health record through the NHS App and other online services from November 2022.

Waiting on the waiting list, but what for? Media coverage tends to imply that the waiting list in England is mainly made up of those waiting for hospital admission. But this doesn't tell the whole story. Saoirse Mallorie from The King's Fund explores what the data can tell us about what people are waiting for.

Prosecutions - The ICO has prosecuted a former health advisor working at South Warwickshire NHS Trust who unlawfully accessed the records of 14 patients of the Trust, who were known personally to him, between June and December 2019, without a valid business reason. Christopher O’Brien pleaded guilty when he appeared at Coventry Magistrates’ Court on 3 August 2022 to unlawfully obtaining personal data in breach of Section 170 of the Data Protection Act 2018. He was ordered to pay £250 compensation to 12 patients, totalling £3,000. Following this case the ICO took the opportunity to remind organisations of the need to ensure their staff are adequately informed and trained as to how to handle people’s sensitive data responsibly, and observed that “just because your job may give you access to other people’s personal information, that doesn’t mean you have the legal right to look at it”.

Monetary Penalties (data breach case) In June 2022 the ICO issued a monetary penalty against the Tavistock and Portman NHS Foundation Trust of £78,400, arising out of an incident which occurred when an email communication was issued to the email addresses of patients associated with the Trust’s Gender Identity Clinic (“GIC”) without being sent via the “BCC” (blind carbon copy) function within Outlook. The recipients of each email could therefore see the email addresses of the other recipients which meant that information was revealed which could infer to a reasonable degree that a recipient was in receipt of services from the GIC. The ICO considered that by virtue of the nature of the service provided, in these circumstances the email address used amounted to “special category” personal data as it revealed something about that individual’s gender identity status. The ICO also commented that in this case the fine could have been significantly higher and up to 10 times the fine imposed, however it took into account the public role of the organisation in this case (see further ICO News below).

Bevan Brittan Updates

Data Matters - November 2022

For more information contact James Cassidy or Jane Bennett.

Mental Health

Publications/guidance

DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case. A Department of Health and Social Care publication sets out its position in regard to the determination of questions of ordinary residence for the purposes of the Mental Health Act 1983 s.117(3) that have been referred to the Secretary of State under the Care Act 2014 s.40. It follows the Supreme Court's decision to grant Worcestershire County Council application for leave to appeal R. (on the application of Worcestershire CC) v Secretary of State for Health and Social Care (CA), and notes that cases continue to be stayed until a final decision is reached.

Experiences of being in hospital for people with a learning disability and autistic people This report looks at what people with a learning disability and people with autism experience when they need physical health care and treatment in hospital.

Cases

Hinduja & Hinduja [2022] ECWCA Civ 1492, [2022] EWCOP 36 & [2022] EWCOP 37. Three judgments relating to proceedings involving the care of a wealthy individual nearing the end of life and interaction with other proceedings and reporting restrictions.

R. (on the application of Morahan) v HM Assistant Coroner for West London. [2022] EWCA Civ 1410 The death of a voluntary psychiatric patient from an overdose of recreational drugs did not trigger the requirement for an inquest which complied with the investigative obligation imposed by ECHR art.2. The death had not occurred in circumstances in which it appeared that the substantive obligations of art.2 might have been breached, and the death of a voluntary psychiatric patient would not of itself trigger the investigative requirement absent the possibility of a substantive breach.

X (Catastrophic Injury: Collection and Storage of Sperm), Re. Pursuant to the Mental Capacity Act 2005 s.4, it was not in the best interests of a brain-stem dead 22-year-old to grant a declaration sought by his parents for the retrieval and storage of his sperm in circumstances where there was no evidence that he would have wanted his sperm to be collected and stored so that it could be used after his death for conception. Granting the declaration would represent a significant interference with his ECHR art.8 rights which was neither necessary nor proportionate.

AA, Re (Capacity: Social Media and Internet Use) [2021] EWCOP 70. Application by LA for declaration that AA lacks capacity regarding his use of social media and the internet.

EM, Re Court of Protection | [2022] EWCOP 31 The Court of Protection considered the minimum degree of participation that had to be afforded to an individual who was the subject of a deprivation of liberty application. The individual had to be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) had to be appointed to act for them. However, there was an exception where an interim order was very urgently needed and there was not enough time to secure representation before the hearing.

Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors [2022] EWCOP 47. RD had been diagnosed with Emotionally Unstable Personality Disorder and had been detained three times under the MHA since 2021. In 2022 two incidents of self-harm required hospitalisation, the second requiring insertion of a tracheostomy tube after she tried to cut her throat. The risk that she would try to remove the tube led her to being sedated but as this was not a long term option she was given the choice to either keep the tracheostomy tube, reduce and then stop sedation and undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be put into effect. She was also told the Court of Protection hearing would take place on 12th August.

An ICB & RN & TN [2022] EWCOP 41. Capacity and best interests decision concerning a 22 year old and whether he should receive the covid vaccine.

Legislation

Court of Protection (Amendment) Rules 2022 Due to come into force 1st January 2023. The rules make changes to contempt proceedings and electronic service.

Written submission from the Parliamentary and Health Service Ombudsman for pre-legislative scrutiny of draft Mental Health Bill. In a written submission for pre-legislative scrutiny of the draft Mental Health Bill, the Parliamentary and Health Service Ombudsman discusses its broad support of the measures in the Bill, and outlines opportunities to strengthen it such as removing the requirement for mental complaints to be made in writing only.

Bevan Brittan Updates

Injunctions in the Court of Protection: A Helpful Tool for Giving Effect to Best Interests Decisions

Supreme Court is to hear Worcestershire Case on Local Authority Responsibility for Section 117 Aftercare

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

'The future of general practice' report: what you need to know The Health and Social Care Select Committee has published its report, The future of general practice, following an inquiry to explore the future of NHS general practice. The inquiry examined the key challenges facing general practice over the next five years as well as the current and ongoing barriers to access to general practice. This briefing provides a summary and analysis of the findings from the report.

Paramedics in general practice NHS England and Health Education England have co-published this guidance document which describes the scope of practice of paramedics working in general practice.

Understanding patient perspectives on improving GP referrals to secondary care through the use of specialist advice and guidance The Patients Association has been working with NHS England to look at how to improve GP referrals of patients to hospital. The goal was to look at ways specialists could support GPs so they could reduce the number of outpatient appointments patients have to attend, without compromising care.

GP access to records programme - GPC England statement - Following extensive negotiations with NHS England, the national mass roll out to turn on prospective access to the medical record from 30th November 2022 is not now occurring for those who wish to delay the process.

GP practice data available for first time Patients will be able to make more informed choices on the GP practice they choose to visit after data showing detailed appointment waiting times was published for the first time on 24 November 2022. The statistics, which cover all GP practices across England, are being made available to inform patients how many appointments each practice is delivering and on the length of time taken from booking an appointment to the appointment itself.

Involving and engaging with the patients and local communities The Care Quality Commission's latest mythbuster talks about how GP practices engaging and involving local communities in primary care is incredibly important, both in terms of reducing health inequalities and acting on feedback.

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 and arising from the delivery of primary care services, including complaints, inquests and claims, regulatory scrutiny, emerging legislative changes, updated guidance and policy arrangements, workforce issues and any transactional – related matters relating to vertical integrations, STPs, PCNs, etc.

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

Provider

Publications/Guidance

Does provider competition improve health care quality and efficiency? Expectations and evidence from Europe Provider competition is a feature of several European health systems but policy-makers are split on whether it improves health care quality and efficiency. This briefing finds that the evidence on provider competition in Europe is growing, but it remains limited and clustered in a few countries. It suggests that the proximity to provider remains the main driver of patient choice of hospital. It also looks at other areas of study such as activity-based payments, hospital mergers and the involvement of private providers in the provision of publicly funded hospital care.

Providers deliver: trusts in systems This report shows how trusts are playing a key role in shaping, supporting and co-leading the development of system working. It presents a series of case studies highlighting ways in which trusts are delivering on the priorities of integrated care systems and driving improvement through partnership working including provider collaboratives and place-based arrangements. It shows how trusts are committing to closer collaboration and integration, recognising that 'system working' can help address immediate pressures and deliver longer-term improvements to quality of care and service delivery.

State of the provider sector 2022 The great majority (85 per cent) of the 183 leaders from 121 trusts who responded to this annual survey are more worried about this winter than any previous one in their NHS careers. Many (86 per cent) are concerned that their trusts will not have the capacity to meet demand for services over the next 12 months. The survey found leaders across the NHS are using their usual ingenuity and innovation to find a way through the challenges ahead, but that they face an uphill struggle.

Consultations

Bevan Brittan Updates

Update on NHS Governance Guidance – Guidance on good governance and collaboration

Updated code of governance for NHS provider trusts

Independent healthcare providers: mitigating commercial risk when managing energy costs

NHS Trusts: mitigating commercial risk when managing energy costs

If you wish to discuss any queries you may have around regulation please contact Vincent Buscemi.

Public Health

Publications/Guidance

Delivering a quality public health function in integrated care boards This checklist sets out how integrated care boards (ICBs) provide a quality public health function across the ICS.

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

Regulation

Bevan Brittan Updates

CQC’s New Quality Statements. This is the second alert in a series of updates on CQC’s new ways of working under its forthcoming Single Assessment Framework.

Medical Device Reform – Two important updates from the MHRA. MHRA publishes roadmap for regulation of medical software and artificial intelligence (AI) in the UK

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

Social Care

Publications/Guidance

What next for strengths-based areas? Strengths- and asset-based approaches in social care focus on what individuals and communities have and how they can work together, rather than on what individuals don’t have or can’t do. This paper discusses the key features of a strengths-based area and encourages the reader to think about where they are in relation to these features. Please note that free registration is required to access this report.

Why can't I get care? Older people's experiences of care and support This report aims to answer the question as to why 14,000 people per week are having their requests for care turned down by councils, many of which are facing growing demand and static or reducing resources with which to respond. It highlights the number of unpaid carers who provide hours of care for their loved ones, often at the expense of their own health and wellbeing.

Social workers seeing record numbers of children with mental health problems. The Local Government Association (LGA) has reported that the number of children needing help from councils for mental health issues was 87,750 in 2022, a record increase of nearly 53% on the 57,410 recorded in 2018. The LGA is calling on the Government to adequately fund children's social care in the 2022 Autumn Statement, and meet the £1.6 billion cost pressure already in the system to help to stabilise the children's social care system to ensure that children are safe and families receive the support they need. The LGA is also calling for additional funding for children's mental health services to provide the wraparound support increasingly needed by children, including community services, Child and Adolescent Mental Health Services and inpatient provision.

Beyond the labels: A SEND system which works for every child, every time. A Children's Commissioner report outlines key messages it has heard from children including that: children are ambitious, but do not always have excellent support; the Special Educational Needs and/or Disability (SEND) system should work for all children; children want services to work together to provide seamless support; and children don't always feel understood. It translates these messages into three over-arching ambitions: to ensure all children and young people get support that reflects their ambitions ; to ensure that all children are getting timely and effective support, locally, with a focus on early intervention; and to ensure that all children have consistent, excellent experiences wherever they are in the system.

Bevan Brittan Updates

What Next for the Care Cap and Fair Cost of Care?

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.

General

Publications/Guidance

Early medical abortion at home during and after the pandemic This briefing looks at how access to early medical abortion has changed during the pandemic.

Health and wellbeing boards: guidance The Health and Care Act 2022 (the 2022 Act) introduced integrated care boards (ICBs) and integrated care partnerships (ICPs) to the health and care system. This non-statutory guidance sets out the roles and duties of health and wellbeing boards (HWBs) and clarifies their purpose within the new system architecture introduced by the 2022 Act. It should support ICB and ICP leaders, local authorities and HWBs to understand how they should work together to ensure effective system and place-based working, following the principle of subsidiarity. The guidance also includes case studies that illustrate how HWBs are adapting to the changes introduced by the 2022 Act and using their influence as leaders at place.

Antimicrobial resistance national action plan: call for evidence. A Department of Health and Social Care consultation seeks views on the contents of the next five-year national action plan to tackle antimicrobial resistance. The plan will aim to protect patients from deadly infections and will capture learnings from the COVID-19 pandemic. Comments by 23.45 on 20 January 2023.

New legal powers to support Armed Forces families and Veterans From 22 November 2022, councils, NHS Trusts and other local bodies across the UK providing services to the Armed Forces community, will be required to adhere to a new legal duty that reflects the key values of the Armed Forces Covenant. It means that authorities must now consider how their decision-making impacts upon members of the Armed Forces community. The services covered include healthcare, housing and education.

R. (on the application of Crowter) v Secretary of State for Health and Social Care Court of Appeal (Civil Division) | [2022] EWCA Civ 1559 | 25 Nov 2022 The Abortion Act 1967 s.1(1)(d), which permitted late abortion where there was a substantial risk that a child would be born with "such physical or mental abnormalities as to be seriously handicapped" was not incompatible with ECHR art.8 and art.14.

Government to use Vaccine Taskforce model to tackle health challenges. The Government will introduce a Vaccine Taskforce style approach to tackling health challenges which will result in patients benefitting from cutting-edge new treatments and technologies. A £113 million fund will provide for innovative research into improved treatments, including cancer immune therapies or vaccines and game-changing weight loss medication and technologies, to accelerate their development and rollout. In line with the Vaccines Taskforce, the four healthcare missions of cancer, obesity, mental health and addiction will be led by an independent expert, to accelerate the development and introduction of the latest treatments and technology into the NHS, as well as drive collaboration across partners.

New measures to improve access to dental care. The Department of Health and Social Care has announced new measures to improve patient access to dental care which will include: fairer payments for all NHS dentists to providing more complex dental care to those who need it most; and, a requirement for dentists to update the NHS website regularly to make it clear which practices are taking on new patients and the services available, improving access.

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

06/12/2022

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General

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Claire Bentley

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