Health and Social Care Update - April 2023

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
Children/young people	Inquests
Clinical Risk/Patient Safety	Mental Health
Covid	Primary Care
Digital Health	Public Health
Employment/HR	Social Care
Health Inequalities	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. 

Human Rights – Important cases and developments. Edward Bishop KC of Deka Chambers will on 9th May give a brief summary of:

• the foundations of human rights claims in the healthcare context; and
• recent important cases.

A Day in the Life of a Respiratory Consultant. On 11th May Dr Guy Hagan, a Consultant in Respiratory and General Medicine, will describe:

• the reality of working as a respiratory consultant;]
• the kind of cases he deals with, and;
• what sort of cases are most likely to translate into potential allegations of negligence.​

Reluctant Discharges from and Ending Placements in Health and Social Care settings. On 18th May Anna Tkaczynska from Serjeants’ Inn Chambers will consider:

• What are the service user’s rights to occupy the health and social care setting – and what does this mean for ending those arrangements?
  - Public authority hospital inpatient; or
  - Other care setting – both as a private payer or commissioned by a public authority.
• Assessing the service user’s capacity to make decisions about discharge / residence – and how does this impact what the relevant legal regime is?
  An overview of the two potential legal regimes and key considerations for each:
  - Mental Capacity Act 2005: best interest decisions, restraint and deprivation of liberty;
  - Possession proceedings: effective notice, vulnerabilities and potential defences;
• Lessons to be learnt from the case law and practical guidance on the evidence required.

Impacted Fetal Head at Caesarean Section. Impacted Fetal Head (IFH) at Caesarean Section is an increasingly important intrapartum complication with significant potential consequences for mothers and babies. On 23 May Professor Tim Draycott consultant obstetrician at North Bristol NHS Trust, will outline the clinical issues associated with IFH and some of the recent legal precedents, as well as discuss national initiatives to improve care. 

Employment Law Update: Springing forward into 2023. If you are involved in the HR practitioner workspace, you will know how challenging 2023 has already been. Recruitment and retention issues have been causing headaches for many workplaces, industrial action is more prevalent than it has been for many years, and further significant employment changes may be on the horizon. On 24th May our team of expert employment lawyers will guide you through some of the key issues of the year so far. They will also explore the next wave of changes, and what they might mean for your organisation.

What are anticipatory declarations and when might they apply for those whose capacity fluctuates or for vulnerable adults? Anticipatory declarations are a relatively new concept in the Court of Protection and the inherent jurisdiction of the High Court; but what are they and when might it be appropriate to use them? On 25th May Katie Gollop KC from Serjeants’ Inn Chambers will consider:

• what is an anticipatory declaration?
• in what kind of matters might an anticipatory declaration be suitable?
• what evidence is required and what threshold has to be demonstrated for an anticipatory declaration to be granted?
• what does an anticipatory declaration mean in practice in terms of implementation by frontline professionals?
• considering the case of North Middlesex University Hospital NHS Trust v SR [2021] EWCOP 58
• is there any other key guidance from the case law?

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

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Acute and emergency care

Publications/guidance

Non-accidental injuries in infants attending the emergency department. This investigation explores the issues that influence the diagnosis of non-accidental injuries in infants (children under one year of age) who visit an emergency department (ED). Specifically, it explores the information and support available to ED clinicians to help them to make such a diagnosis.

Urgent and emergency care improvement guide to same day emergency care pathways. This guide has been designed for providers and systems to consider embedding as good practice to reduce ambulance handover delays. The contents have been drawn from the Winter Improvement Collaborative, which was set up to identify solutions to the problems facing the system over the winter period. Members of the collaborative were asked to co-design a series of plans and potential improvement measures, to be adapted and trialled at local level.

Urgent and emergency care improvement guide to same day emergency care flow. This guide has been designed for providers and systems to consider embedding as good practice to reduce ambulance handover delays. The contents have been drawn from the Winter Improvement Collaborative, which was set up to identify solutions to the problems facing the system over the winter period. Members of the collaborative were asked to co-design a series of plans and potential improvement measures, to be adapted and trialled at local level.

Urgent and emergency care improvement guide to direct access. This guide has been designed for providers and systems to consider embedding as good practice to reduce ambulance handover delays. The contents have been drawn from the Winter Improvement Collaborative, which was set up to identify solutions to the problems facing the system over the winter period. Members of the collaborative were asked to co-design a series of plans and potential improvement measures, to be adapted and trialled at local level.

Urgent and emergency care improvement guide to contact hubs for primary, ambulance and clinical calls. This guide has been designed for providers and systems to consider embedding as good practice to reduce ambulance handover delays. The contents have been drawn from the Winter Improvement Collaborative, which was set up to identify solutions to the problems facing the system over the winter period. Members of the collaborative were asked to co-design a series of plans and potential improvement measures, to be adapted and trialled at local level.

News

The mythbuster: 12-hour A&E waits kill – their abolition should be the priority Now that NHSE has finally started publishing honest 12-hour A&E wait reports, they should rethink their improvement strategy to focus on eliminating them.

England’s ambulance crews spend 1.8m hours a year on mental health callouts Ambulance crews in England are spending 1.8m hours a year – the equivalent of 75,000 days – dealing with patients with mental health problems, new NHS figures reveal.

NHS ambulance staff in England quitting for less stressful, better paid jobs NHS ambulance trusts in England are struggling with high staff turnover as key workers leave the crisis-hit service for less stressful or better paid work, according to figures obtained by the Observer.

Bevan Brittan Events

Reluctant Discharges from and Ending Placements in Health and Social Care settings. On 18th May Anna Tkaczynska from Serjeants’ Inn Chambers will consider:

• What are the service user’s rights to occupy the health and social care setting – and what does this mean for ending those arrangements?
  - Public authority hospital inpatient; or
  - Other care setting – both as a private payer or commissioned by a public authority.
• Assessing the service user’s capacity to make decisions about discharge / residence – and how does this impact what the relevant legal regime is?
  An overview of the two potential legal regimes and key considerations for each:
  - Mental Capacity Act 2005: best interest decisions, restraint and deprivation of liberty;
  - Possession proceedings: effective notice, vulnerabilities and potential defences;
• Lessons to be learnt from the case law and practical guidance on the evidence required.

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

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Children and young people 

Publications/Guidance 

Non-accidental injuries in infants attending the emergency department. This investigation explores the issues that influence the diagnosis of non-accidental injuries in infants (children under one year of age) who visit an emergency department (ED). Specifically, it explores the information and support available to ED clinicians to help them to make such a diagnosis.

Safeguarding children with disabilities and complex health needs in residential settings: Phase 1 report. A Child Safeguarding Practice Review Panel report from phase one of a national review seeks to make sense of how and why a significant number of children with disabilities and complex needs came to suffer very serious abuse and neglect whilst living in three privately provided residential settings in the Doncaster area. It considers urgent action to be taken by local authorities by November 2022, to provide assurance about the safety and care of children who may be residing in similar specialist settings.

Safeguarding children with disabilities and complex health needs in residential settings: Phase 2 report. A Child Safeguarding Practice Review Panel report from phase two of a national review sets out recommendations to improve the safety, support and outcomes for children with disabilities and complex health needs living in residential settings. These include: that the Department for Education and Department of Health and Social Care develop statutory guidance to require local authorities and integrated care boards to jointly commission safe, sufficient and appropriate provision for children with disabilities and complex health needs; and that the Government should ensure all children with disabilities and complex health needs have access to independently commissioned, non-instructed advocacy.

Law Commission invited to review legislation on social care for disabled children. The Department for Education has invited the Law Commission to review the legal framework governing the social care of disabled children to ensure that the system is fair and works for parents, care givers and local authorities. The existing law on children's social care is governed by a "patchwork of legislation", some of which dates back more than five decades, and has contributed to unnecessarily complicated routes to accessing support for the parents and care givers of disabled children. The Commission will release further information on the scope and timeline of the review once the project is formally agreed.

Understanding and supporting mental health in infancy and early childhood: a toolkit to support local action in the UK. This resource aims to support service leaders, commissioners and policy teams to develop a whole-system approach to support the mental health of babies and young children, and to enable them to develop the capacities to be mentally healthy throughout their lives. Evidence shows that the mental health needs of babies and young children – which present differently than in older children and young people – are not well understood and often overlooked. This toolkit acknowledges that it can be harder for professionals to work together to promote and protect mental health at this life stage, as understanding varies across sectors. It suggests practical steps to help all services play their role and work together, and will facilitate shared understanding and constructive discussions about the needs of babies and young children in local communities.

Looked-after children data strategy A joint strategy prepared by the Race Disparity Unit and the Equality Hub, working with analysts in Department for Education and The Children and Social Care Secretariat, Coram-i, to improve the quality and availability of ethnicity data and evidence about looked-after children and their routes out of care. It sets out: what data is currently available; an assessment of the quality of available data; what the internal and external user needs are for data met or partially met; and further work priorities.

Looked after children. The Department for Education (DfE) has published the latest statistics on looked after children aged 16-17 in independent or semi-independent placements in England. Data shows that there were 7,370 children looked after aged 16 to 17 living independently or in semi-independent living accommodation in March 2022, compared to 6,010 in 2021. 42% of the children in independent living in 2022 were unaccompanied asylum seeking children.

New measures to tackle child sexual abuse. People who work with children will be legally required to report child sexual abuse or face sanctions under plans unveiled by the Home Secretary. She committed to a mandatory reporting duty, subject to consultation, for those working or volunteering with children to report child sexual abuse, after the Independent Inquiry into Child Sexual Abuse (IICSA) heard testimony from thousands of victims let down by professionals turning a blind eye to their suffering. The first step to introducing the duty will be a call for evidence which will be open to professionals, volunteers, parents, victims and survivors, and the wider public.It will be published alongside the Government's full response to the Inquiry shortly.

Child wellbeing. The Children’s Society has published a blog post on children and stress which provides tips and suggestions on recognising the signs of stress and listening to children.

Cases

Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust. [2023] EWCA Civ 331 The court discharged reporting restriction orders protecting the identities of clinicians and other treating staff involved in the care of two children, now deceased, who had been the subject of end-of-life proceedings. A proper balancing exercise clearly showed that the ECHR art.10 rights of the parents to have the freedom to tell their story outweighed such art.8 rights of the clinicians and staff to privacy as might still be in play.

News

Child health checks failed to recover after covid. Inadequate health visiting provision has led to gaps in care for children and heaped pressure on acute services

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

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Clinical Risk / Patient Safety

Publications/Guidance 

Black maternal health. Third Report of Session 2022-23. A Women and Equalities Committee report calls on the Government to set a definitive target to eliminate "appalling" disparities in maternal deaths, noting that black women are almost four times more likely to die from childbirth than white women. The Committee concludes that the current Government and NHS measures to address the disparity in maternal deaths are "necessary but insufficient" and expresses concern that the Government and NHS leadership have "underestimated" the extent to which racism plays a role in perpetuating inequalities.

Improving regulation for safer care for all: A briefing on the Government consultation on the draft Anaesthesia Associates and Physician Associates Order. A Professional Standards Authority for Health and Social Care stakeholder (PSAHSC) briefing on the Department of Health and Social Care's consultation on proposed legislation to bring physician associates and anaesthesia associates into regulation under the General Medical Council, states that it believes that the reforms are a key opportunity to give regulators more flexibility to help tackle some of the "big challenges in the sector" such as those outlined in its recent report "Safer care for all: Solutions from professional regulation and beyond" as well as an opportunity to bring about greater consistency between regulators, and also allow a less adversarial and more efficient route for dealing with concerns about professionals. PSAHSC sets out its five recommendations on some important changes that it believes are needed to maximise the benefits of the reforms.

Three year delivery plan for maternity and neonatal services. This plan sets out how the NHS will make maternity and neonatal care safer, more personalised, and more equitable for women, babies and families. For the next three years, services are asked to concentrate on four themes: listening to and working with women and families, with compassion; growing, retaining and supporting our workforce; developing and sustaining a culture of safety, learning and support; and standards and structures that underpin safer, more personalised and more equitable care.

NHS England’s three year delivery plan for maternity and neonatal services. On 30 March 2023 NHS England published a three year delivery plan for maternity and neonatal services. Following several national plans and reports, including the reports by Donna Ockenden and Dr Bill Kirkup, the plan brings together the key objectives services are asked to deliver against over the next three years. This briefing summarises the key contents of the plan.

NHS delivery and continuous improvement review: recommendations - How can improvement-led delivery enhance the quality of outcomes for our patients, communities and our health and care workforce? An NHS England publication summarises the recommendations of the delivery and continuous improvement review conducted by Anne Eden, Regional Director South East, NHS England, to consider how the NHS can develop a culture for continuous improvement while focusing on its most pressing priorities. It focuses on: establishing a national improvement board to agree a small number of shared national priorities on which NHS England, with providers and systems, will concentrate on improvement-led delivery work; launching a single, shared "NHS improvement approach"; and co-designing and establishing a Leadership for Improvement programme.

Infected Blood Inquiry: Second Interim Report: Compensation. In its second interim report and chair's statement the Infected Blood Inquiry states chair Sir Brian Langstaff and Sir Robert Francis KC, commissioned by the Government to give independent advice on a framework for compensation and redress, agree on the fundamentals of the design of this scheme. The Inquiry recommends this compensation scheme should be set up now and should begin work in 2023. Sir Brian also recommends further interim compensation payments to recognise the deaths of people who have so far gone unrecognised, including the parents of around 380 children with bleeding disorders infected with HIV and children orphaned as a result of infected blood.

NHS injury costs recovery scheme: tariff and charges from 1 April 2023. Department of Health and Social Care guidance details the annual amendment in the tariff and ceiling of charges payable by compensators for the recovery of NHS charges under the NHS injury costs recovery scheme. The increases will apply only to injuries sustained on or after 1 April 2023.

Maternal healthcare. The Parliamentary and Health Service Ombudsman has published a report which shares the stories of women who have been affected by failures in maternity services in England. The report includes case summaries which highlight issues around treatment and guidance; aftercare; and mental health support. Guidance is included to help families seek support and help NHS organisations understand the issues.

Cases

Robinson v Liverpool University Hospitals NHS Trust. [2023] EWHC 21. A judge had erred in making a non-party costs order against a dental practitioner who had given expert evidence in a clinical negligence claim against a hospital surgeon that was subsequently withdrawn. Contrary to the judge's comments, the practitioner had not stepped outside the boundary of his expertise. Some criticism might be made of his evidence, but he had not demonstrated a flagrant or reckless disregard of an expert's duty to the court that justified a costs order against him.

XX v Barts Health Trust. [2023] EWHC 963  The court approved the terms of settlement of a clinical negligence case brought by a 19-year-old protected party who sustained a severe hypoxic ischaemic brain injury shortly before his birth and developed quadriplegic athetoid cerebral palsy. A lump sum of GBP 6.5 million plus periodical payments for care and case management was in his best interests. An anonymity order was granted to protect him and his family.

News

Almost one in three doctors investigated by GMC ‘have suicidal thoughts’ Almost one in three UK doctors investigated by the General Medical Council (GMC) think about taking their own life, a survey has found.

Bevan Brittan Events

Human Rights – Important cases and developments. Edward Bishop KC of Deka Chambers will on 9th May give a brief summary of:

• the foundations of human rights claims in the healthcare context; and
• recent important cases.

A Day in the Life of a Respiratory Consultant. On 11th May Dr Guy Hagan, a Consultant in Respiratory and General Medicine, will describe:

• the reality of working as a respiratory consultant;]
• the kind of cases he deals with, and;
• what sort of cases are most likely to translate into potential allegations of negligence.​

Reluctant Discharges from and Ending Placements in Health and Social Care settings. On 18th May Anna Tkaczynska from Serjeants’ Inn Chambers will consider:

• What are the service user’s rights to occupy the health and social care setting – and what does this mean for ending those arrangements?
  - Public authority hospital inpatient; or
  - Other care setting – both as a private payer or commissioned by a public authority.
• Assessing the service user’s capacity to make decisions about discharge / residence – and how does this impact what the relevant legal regime is?
  An overview of the two potential legal regimes and key considerations for each:
  - Mental Capacity Act 2005: best interest decisions, restraint and deprivation of liberty;
  - Possession proceedings: effective notice, vulnerabilities and potential defences;
• Lessons to be learnt from the case law and practical guidance on the evidence required.

Impacted Fetal Head at Caesarean Section. Impacted Fetal Head (IFH) at Caesarean Section is an increasingly important intrapartum complication with significant potential consequences for mothers and babies. On 23 May Professor Tim Draycott consultant obstetrician at North Bristol NHS Trust, will outline the clinical issues associated with IFH and some of the recent legal precedents, as well as discuss national initiatives to improve care. 

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.

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Covid

Publications/Guidance 

Deaths at home during the Covid-19 pandemic and implications for patients and services. Statistics show that, since the start of the Covid-19 pandemic, a third more people have died at home in England. This research sheds light on the services used by people who died at home in England, both before and during the first year of the pandemic, including looking at variation between socio-economic and ethnic groups, and by cause of death. This report includes a perspective on the findings from a patient and public involvement group based on their own experiences of end-of-life care.

Bailed out and burned out? The financial impact of Covid-19 on UK care homes for older people and their workforce. This report reveals that government support worth more than £2 billion helped the care home sector avoid financial collapse during the peak of the pandemic. However, when the support was removed, the sector experienced a crisis due to workforce shortages, inflation and continuing infection outbreaks. Furthermore, only a small fraction of the additional government funding was spent directly on supporting the workforce even though the sector weathered the storm thanks to staff working longer hours and putting themselves on the line to continue to provide vital care services. The report offers evidence-based recommendations for policy-makers and care home providers on how to ensure the financial and operational sustainability of the sector and prepare it for future pandemics.

UK Covid-19 Inquiry Announces Ethics Advisory Group for Every Story Matters. The UK Covid-19 Inquiry has announced the creation of an independent Ethics Advisory Group, chaired by David Archard, Emeritus Professor of Philosophy at Queen's University Belfast, to ensure its UK-wide listening exercise, Every Story Matters, maintains the highest ethical standards. Every Story Matters is the Inquiry's way of engaging with people across the UK to hear their experiences of the pandemic, which can be brought together to understand the experience across the whole of the UK, including those seldom heard. These experiences will then be submitted into evidence and considered by the Inquiry Chair, to contribute to learning lessons for the future. 

COVID-19 vaccination of children aged 6 months to 4 years: JCVI advice, 9 December 2022. A Department of Health and Social Care statement sets out the advice from the Joint Committee on Vaccination and Immunisation (JCVI) on coronavirus (COVID-19) vaccination for children aged six months to four years. It advises that children of that age in a clinical risk group should be offered 2 3-microgram doses of the Pfizer-BioNTech COVID-19 vaccine. Further advice regarding a potential third 3-microgram dose of the Pfizer-BioNTech COVID-19 vaccine will be issued in due course. It does not currently advise COVID-19 vaccination of children in that age group who are not in a clinical risk group.

Written statement - UK COVID-19 Inquiry. A written statement from the Prime Minister announcing his decision that the COVID-19 Inquiry will be conducted by Baroness Hallett without a panel. Baroness Hallett has stated that she will appoint scientific, economic and other experts to help her with her work, covering a range of different topics and views, and that the reports and advice she receives from these experts will be entered into evidence and published by the Inquiry.

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Digital Health

Publications/guidance

Effectively embedding digital in your trust. This guide, prepared with Public Digital as part of the Digital Boards programme, highlights key learnings from the programme's previous six leadership guides. It covers insights from NHS board leaders on a range of topics, including: digital leadership – understanding the role of the board; building and enabling digital teams; creating an effective digital strategy; making technology decisions; digital delivery; and optimising electronic patient record systems (EPR).

Offline and isolated: the impact of digital exclusion on access to healthcare for people seeking asylum in England. This report finds that people seeking asylum in England are at risk of missing out on basic health care services because they have limited access to the internet and digital tools. Using a peer research approach, where refugees who have been through the asylum process interviewed people seeking asylum, the report provides a detailed picture of the barriers to online health care services. It highlights several barriers, including the affordability of devices and mobile data, a lack of wifi in asylum accommodation, and a lack of confidence in using technology and navigating websites in English.

News

Why are we stuck in first gear with Shared Care Records? An excessive focus on innovation may be getting in the way of progress, says Lorraine Foley, from the Professional Record Standards Body

Bevan Brittan Updates

Digital and Data Health Solutions - article by Dan Morris, Vincent Buscemi and James Cassidy on page 48 analysing current trends.

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

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Employment/HR  

Publications/guidance

The cap on medical and dental student numbers in the UK. This briefing provides an overview of Government policy on training doctors and dentists in the UK. It highlights calls to lift the cap on medical and dental school places and explains some of the associated challenges.

Maternal health and care in London. This report looks at the impact of the pandemic on maternal health and services in London, the impact of staffing shortages, and the inequalities that exist across maternal health outcomes. It sets out nine recommendations to improve services.

The NHS Staff Survey 2022: what do the results tell us? In this King's Fund blog, Sonya Wallbank (a consultant clinical psychologist specialising in workforce resilience and restorative approaches to wellbeing) reflects on the results of the 2022 NHS Staff Survey and what needs to happen next.

Looking after your team’s health and wellbeing guide. This guide, inspired by the NHS health and wellbeing framework, supports any team that is seeking to improve the health and wellbeing of members of the team, through a culture change approach. It is for all teams working in health and care, inclusive of all team forms and functions, across health care, primary care, social care and voluntary sectors. The guide has been co-designed with colleagues across health, social care and voluntary sectors.

Supporting clinicians to address health inequalities in practice. This report looked at clinicians’ confidence in talking about and understanding health inequalities. It finds that most clinicians feel they haven't received enough training on health inequalities and would like more as part of their medical education. Of the almost 1,000 clinicians surveyed, 67 per cent of respondents had not received teaching or training in health inequalities within a training programme or as part of their degree, and only 26 per cent felt confident in their ability to reduce the impact of health inequalities in their medical practice.

Workforce: recruitment, training and retention in health and social care: Third Report of Session 2022-23. A Health and Social Care Committee report calls for reform of the NHS pension scheme to reduce the number of senior staff retiring early, contributing to a workforce crisis. It suggests an overhaul of flexible working to encourage NHS workers to retain permanent NHS positions whilst being able to choose working arrangements better suited to their lifestyles. It also calls for new regulations to be introduced by 2023 in which care workers initially employed on zero-hours contracts are offered a choice of contract after three-months of employment.

Government Response to the Committee's Report on Workforce: recruitment, training and retention in health and social care - Sixth Special Report of Session 2022-23. A Health and Social Care Committee report summarises the Government's response to its report on recruitment, training and retention in the NHS. The recommendations that the Government has accepted include: the need for objective, transparent and independently audited reports on workforce projections giving details of future work; an agreement in principle that improving diversity in the recruitment of midwives will lead to a better standard of care for black, Asian, mixed-race, and ethnic minority women; and that NHS England should develop and implement a national menopause strategy focused on the retention of senior staff who may be reducing their hours or leaving as a result of lack of support.

News

Unite members reject latest pay offer for NHS workers in England A leading health union has rejected the government’s improved pay offer to NHS staff, raising the prospect of prolonged strikes and disruption to health services.

Nursing strike cut short following court order Next week’s nurses strike will now end on bank holiday Monday – one day earlier than planned – following a High Court decision that it could not run into Tuesday.

Midwives in England vote to accept NHS pay offer  Midwives have voted to accept the latest NHS pay offer, their union has announced. In a turnout of 48% of eligible members of the Royal College of Midwives (RCM) working in the NHS in England, 57% voted to accept the deal – with 43% rejecting it. The offer covers two pay years – a one-off amount for 2022-23 and a 5% wage rise for 2023-24.

Discrimination ‘biggest cause of staff leaving’ Discrimination and inequality are bigger factors for staff wanting to leave acute trusts than burnout, new analysis of this year’s NHS staff survey has found.

Deficit trusts face ‘intimidating conversations’ and orders to hold down staffing NHS England has told many trusts and systems they are not allowed to increase their staffing establishment in the next 12 months, HSJ  has learned.

NHS ambulance staff in England quitting for less stressful, better paid jobs NHS ambulance trusts in England are struggling with high staff turnover as key workers leave the crisis-hit service for less stressful or better paid work, according to figures obtained by the Observer.

Almost one in three doctors investigated by GMC ‘have suicidal thoughts’ Almost one in three UK doctors investigated by the General Medical Council (GMC) think about taking their own life, a survey has found.

NHSE director’s discrimination claims dismissed by tribunal An employment tribunal has thrown out claims brought by an NHS England director of race and sex discrimination against his employer and its former chief people officer.

Bevan Brittan Events

Employment Law Update: Springing forward into 2023. If you are involved in the HR practitioner workspace, you will know how challenging 2023 has already been. Recruitment and retention issues have been causing headaches for many workplaces, industrial action is more prevalent than it has been for many years, and further significant employment changes may be on the horizon. On 24th May our team of expert employment lawyers will guide you through some of the key issues of the year so far. They will also explore the next wave of changes, and what they might mean for your organisation.

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, James Gutteridge or Andrew Uttley

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Health Inequalities 

Publications/Guidance

Black maternal health. This report calls on the government to set a definitive target to eliminate 'appalling' disparities in maternal deaths. Black women are almost four times more likely to die from childbirth than white women. Maternal death rates in deprived areas are on the rise, with women in the most deprived areas 2.5 times more likely to die than those in the least deprived areas.

Maternal health and care in London. This report looks at the impact of the pandemic on maternal health and services in London, the impact of staffing shortages, and the inequalities that exist across maternal health outcomes. It sets out nine recommendations to improve services.

News

MPs condemn failure to tackle ‘glaring’ racial inequalities in UK maternal health Ministers have failed to tackle “appalling” and “glaring” racial disparities in maternal health despite repeated promises, MPs have said, as they called for new targets to eliminate inequalities.

Discrimination ‘biggest cause of staff leaving’ Discrimination and inequality are bigger factors for staff wanting to leave acute trusts than burnout, new analysis of this year’s NHS staff survey has found.

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 Julia Jones.

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Independent Health 

Publications/guidance

Procedures for the approval of independent sector places for termination of pregnancy (abortion) in England. Updated Department of Health and Social Care guidance sets out procedures for approval of independent sector providers of treatment for termination of pregnancy.

News

Private hospitals ‘will turn away from NHS work’ unless tariff increased, they tell NHSE Private hospitals will turn away from NHS work unless the health service increases the rates it pays, some of the country’s largest independent providers have told NHS England.

Bevan Brittan Updates

Bevan Brittan establishes private hospital owed no vicarious liability, non-delegable duty or contractual liability to patient - Helen Troman

Medical Tourism – the challenges of cross-border litigation - Lauren Halliday

For more information contact Tim Hodgetts or Julie Charlton  

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Information sharing 

Publications/guidance

NHS data: maximising its impact for all. This paper identifies strategic and technical recommendations to move towards developing a health data policy ecosystem that is designed so that clinical, societal or financial value is more readily extracted from patient data.

News

Why are we stuck in first gear with Shared Care Records? An excessive focus on innovation may be getting in the way of progress, says Lorraine Foley, from the Professional Record Standards Body.

For more information contact James Cassidy or Jane Bennett. 

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Inquests  

Publications/guidance

Patrick Soames: Prevention of future deaths report. A prevention of future deaths report has been sent to the Department of Health and Social Care and NHS England under the Coroners and Justice Act 2009 and the Coroners (Investigations) Regulations 2013 following the death of Patrick Soames. The corner is of the opinion that future deaths could occur unless action is taken and highlights that there was no single effective global focus consolidating the information which was flowing into the various agencies about Mr Soames, who committed suicide after he attended various hospital accident and emergency departments (in different NHS Trust areas), following incidents of self-harm. The report also finds there is no national "risk flagging" system. The recipients of the report must respond by 13 June 2023.

Alexandra Briess: Prevention of future deaths report. Following an investigation into the death of Alexandra Briess, who died after suffering a sudden deterioration and cardiac arrest under anaesthesia, a coroner's report sent to the Secretary of State for Health and Social Care, Fatal Anaphylaxis Registry, and the Medicines and Healthcare Products Regulatory Agency states: consideration should be given to creating a leadership role and responsibility within NHS England to coordinate a national approach; it should be mandatory to refer fatal anaphylaxis cases; and there should be better funding and research into anaphylaxis. A response is required by 2 June 2023.

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

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Mental Health 

Publications/guidance 

A national framework to deliver improved outcomes in all-age autism assessment pathways: guidance for integrated care boards. This national framework sets out the principles that should underpin the planning, design and delivery of an autism assessment pathway that works for everyone irrespective of where they live, their background, age, ethnicity, sex, gender, sexuality, disability or health conditions. Implementation of this national framework will include taking actions to reduce known sources of health inequality that exist in access to, or experiences of, an autism assessment across England.

Autism: Overview of policy and services. This briefing provides an overview of policies and services for autistic people in England.

Learning disabilities: policies to reduce inpatient care. A House of Commons Library briefing outlines health policies aimed at reducing inpatient care for people with a learning disability. The Health and Care Act 2022 introduced a new legal requirement for all health and social care service providers registered with the Care Quality Commission to provide employees with training on autism and learning disabilities. The Government also proposed in the draft Mental Health Bill 2022 to amend the criteria for detention under the Mental Health Act 1983, so a person could not be subject to long-term detention for treatment for autism or a learning disability.

BASW responds to decision to delay introduction of liberty protection safeguards. The British Association of Social Workers (BASW) has expressed its disappointment over the UK Government's decision to delay the introduction of the liberty protection safeguards (LPS) "beyond the life of this Parliament", in the wake of the release of its plans for adult social care "Next steps to put People at the Heart of Care" on 4 April 2023. The BASW notes that the next UK general election must be held by January 2025 at the latest, and it is not currently clear what this means for the publication of the revised Mental Capacity Act 2005 code of practice, which integrated chapters on the new LPS. BASW is therefore calling upon the Department of Health and Social Care to clarify as a matter of urgency what this means for the revised code of practice and how the Government will seek to improve and resource deprivation of liberty safeguards in the immediate future with a clear focus on promoting and upholding human rights.

Cases

West Hertfordshire Hospitals NHS Trust v AX. [2023] EWCOP 11. The court refused to make a costs order against an NHS Trust which had made an urgent out-of-hours application for a declaration of incapacity in respect of a pregnant woman even though it had failed to follow the guidance in NHS Trust v FG [2014] EWCOP 30, [2015] 1 W.L.R. 1984, [2014] 8 WLUK 389, [2015] C.L.Y. 1752. While its conduct amounted to substandard practice, it was not so significantly unreasonable or indicative of a blatant disregard for the processes of the Mental Capacity Act 2005 as to reach the threshold where a costs order was justified. It was important to follow the guidance in FG, but a breach of it did not automatically justify a costs order.

Sunderland City Council v Macpherson [2023] EWCOP 3, the Court of Protection (COP) allowed the mother of a protected party to be named in the contempt proceedings, applying the new COP procedural rules on hearings and judgments in contempt proceedings.

Bevan Brittan Updates

The Government’s Announcement to Delay Implementation of the Liberty Protection Safeguards: What Does This Mean? - Hannah Taylor

Supreme Court is to hear Worcestershire Case on local authority responsibility for Section 117 aftercare on 27 April 2023 - Anna Davies

Bevan Brittan Events

Reluctant Discharges from and Ending Placements in Health and Social Care settings. On 18th May Anna Tkaczynska from Serjeants’ Inn Chambers will consider:

• What are the service user’s rights to occupy the health and social care setting – and what does this mean for ending those arrangements?
  - Public authority hospital inpatient; or
  - Other care setting – both as a private payer or commissioned by a public authority.
• Assessing the service user’s capacity to make decisions about discharge / residence – and how does this impact what the relevant legal regime is?
  An overview of the two potential legal regimes and key considerations for each:
  - Mental Capacity Act 2005: best interest decisions, restraint and deprivation of liberty;
  - Possession proceedings: effective notice, vulnerabilities and potential defences;
• Lessons to be learnt from the case law and practical guidance on the evidence required.

What are anticipatory declarations and when might they apply for those whose capacity fluctuates or for vulnerable adults? Anticipatory declarations are a relatively new concept in the Court of Protection and the inherent jurisdiction of the High Court; but what are they and when might it be appropriate to use them? On 25th May Katie Gollop KC from Serjeants’ Inn Chambers will consider:

• what is an anticipatory declaration?
• in what kind of matters might an anticipatory declaration be suitable?
• what evidence is required and what threshold has to be demonstrated for an anticipatory declaration to be granted?
• what does an anticipatory declaration mean in practice in terms of implementation by frontline professionals?
• considering the case of North Middlesex University Hospital NHS Trust v SR [2021] EWCOP 58
• is there any other key guidance from the case law?

How we can help

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

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

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Primary Care 

Publications/Guidance 

NHS Resolution Supporting General Practice - Medical Record Keeping

GP referrals: part 1 – the referrals black hole. HealthWatch commissioned Panelbase to carry out an online survey covering two distinct groups who had an appointment with their GP practice in the past 12 months. Firstly, those who either expected or requested a referral for tests, diagnosis or treatment, but didn't get one, and secondly, those who were referred for tests, diagnosis or treatment. Panelbase heard from 2,144 people overall. The figures quoted in this briefing are based on the 626 patients who fall into the first group. Fieldwork was completed October 2022. The survey was also shared via the Healthwatch network (1,825 respondents overall, of which 357 respondents were in the 'not referred group'), and comments from both surveys are used to support the analysis and provide quotes for this briefing. The briefing shares people’s experiences and the impact behind these figures.

GP referrals: part 2 – the hidden waiting list. The figures quoted in this accompanying briefing are based on the 1,518 patients who were referred by their general practice for tests, diagnosis or treatment. The survey was also shared via the Healthwatch network (1,825 respondents overall of which 1,458 respondents were in the 'referred group') and comments from both surveys are used to support the analysis and provide quotes for this briefing. Considering how long it can take for a patient to be told they are being referred, combined with the time it takes to get onto a waiting list, the total time the patient has been suffering from their symptoms or condition can be much longer than official waiting time statistics would suggest. There are gaps in measurement for some parts of the referrals process – creating a dangerous blind spot. This briefing shares people’s experiences and the impact behind these figures.

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

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Public Health  

Publications/guidance

Public health annual report 2023: supporting communities in difficult times. This report reflects on the past year and focuses on how councils have responded to the rising cost of living. It also discusses a year of uncertainty about the direction of public health policy and how the approach to tackling health inequalities has blunted optimism. Despite these pressures, this report demonstrates that councils, the NHS and the voluntary and community sector have responded positively to the challenges and that, building on the experience of the pandemic, public health is at the forefront of each local response.

Oral health survey of 5 year old children 2022. This survey takes place every two years in order to collect oral health information of 5 year olds who attend mainstream, state-funded schools across England. This current survey was delayed from 2020 to 2021 by the Covid-19 pandemic. It was carried out as part of the OHID National Dental Epidemiology Programme. The results of the oral health survey showed that overall 23.7 per cent of 5-year-old children in England had experience of obvious dentinal decay. This was similar to the finding of the previous survey in 2019, where 23.4 per cent of surveyed children had experience of dentinal decay.

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

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Social Care  

Publications/Guidance 

Bailed out and burned out? The financial impact of Covid-19 on UK care homes for older people and their workforce. This report reveals that government support worth more than £2 billion helped the care home sector avoid financial collapse during the peak of the pandemic. However, when the support was removed, the sector experienced a crisis due to workforce shortages, inflation and continuing infection outbreaks. Furthermore, only a small fraction of the additional government funding was spent directly on supporting the workforce even though the sector weathered the storm thanks to staff working longer hours and putting themselves on the line to continue to provide vital care services. The report offers evidence-based recommendations for policy-makers and care home providers on how to ensure the financial and operational sustainability of the sector and prepare it for future pandemics.

Next steps to put people at the heart of care: a plan for adult social care system reform 2023 to 2024 and 2024 to 2025. This document sets out how the government proposes to make sure adult social care is of outstanding quality, personalised and accessible. It details how £700 million will be spent, including investment in: improved access to care and support; recognising skills for careers in care; driving digitisation and technology adoption; data and local authority oversight; support to enable people to remain independent at home; encouraging innovation and improvement; and joining up services to support people and carers.

Next steps to put People at the Heart of Care. Building on the People at the Heart of Care White Paper, the Department of Health and Social Care sets out next steps including: further digitisation of the social care sector, plans to bolster the adult social care workforce, and the speeding up of hospital discharges. Alongside the plan, the Better Care Fund framework sets the national conditions, metrics and funding arrangements for the financial years 2023 to 2024 and 2024 to 2025. A call for evidence on the care workforce pathway for adult social care is also published.

How we can help 

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

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

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General 

Publications/Guidance

The Hewitt Review: An independent review of integrated care systems. A Department of Health and Social Care report sets out the findings of a review undertaken by Rt Hon Patricia Hewitt of the oversight and governance of integrated care systems (ICSs) which covered ICSs in England and the NHS targets and priorities for which ICBs are accountable, including those set out in the Government's mandate to NHS England. It outlines the reasons why a new approach is needed for the health and care system: immediate pressures upon the NHS and social care, already visible before the pandemic, but greatly exacerbated as a result of it; a growing number of people living with complex, long-term physical and mental health conditions, often associated with serious disabilities or ageing; and the nation becoming less, rather than more healthy, both physically and mentally. Recommendations include that: the Government leads and convenes a national mission for health improvement designed to change the national conversation about health, shifting the focus from simply treating illness to promoting health and wellbeing and supporting the public to be active partners in their own health; the establishment of a national integrated care partnership (ICP); and the establishment of a Health, Wellbeing and Care Assembly. Further issues covered include the role of data and digital tools to support the prevention of ill health, and empowering the public to manage their health.

Clinical investigation booking systems failures: written communications in community languages. Following an investigation on the systems used by healthcare providers to book patient appointments for clinical investigations, such as diagnostic tests and scans, a Healthcare Safety Investigation Branch (HSIB) report has concluded that NHS trusts are inconsistently capturing information on the language needs of patients, or not recording it at all, and that written communications about scans and tests are being routinely sent in English, not accounting for the needs of the patient's first language, which can lead to a delay in diagnosis and timely care. The report sets out the views and perceptions at a national level. The Equality and Human Rights Commission has stated that the HSIB's investigation has highlighted a "gap that needs to be remedied urgently".

Living (and dying) as an older person in prison: understanding the biggest health care challenges for an ageing prisoner population. Tough conditions in prison disproportionately affect older prisoners, and they tend to be in poorer health than the general population. This research uses hospital data to look at the health care needs of those older people in prison. It finds significant health care needs associated with frailty, which has implications for the prison service in managing increasing numbers of older people as the population continues to age.

The Hewitt Review: an independent review of integrated care systems. A report proposing greater autonomy to enable ICSs to better prevent ill health and improve NHS productivity and care. The proposal includes better and wider use of data.

Standing back from The Hewitt Review: six key take-aways. What are the key take-aways from the much-anticipated Hewitt Review? Anna Charles (Senior Adviser to the CEO at The King's Fund) explores.

The rise and decline of the NHS in England 2000–20: how political failure led to the crisis in the NHS and social care. This personal work from Professor Sir Chris Ham (previous Chief Executive at The King's Fund) finds that multi-year funding increases and reforms led to improvements in NHS performance between 2000 and 2010, but performance has declined since 2010 as a result of much lower funding increases, limited funds for capital investment and neglect of workforce planning.

News

Delivering Patricia Hewitt’s ICS vision on a shrinking budget With Patricia Hewitt’s report on integrated care systems published, ICS leaders and stakeholders must consider how to implement her vision for the future in the face of funding reductions.

Standing back from The Hewitt Review: six key take-aways The much-anticipated Hewitt Review into the oversight, governance and accountability of integrated care systems (ICSs) landed last week, to surprisingly little fanfare and a somewhat muted reception. To anyone that has followed the path of the review since its launch in November 2022, it will come as no surprise that it is both comprehensive in its breadth and that it draws on extensive engagement with the sector and key partners, for which the review team and its leadership should be given due credit. Reflecting this, the final document weighs in at a hefty 89 pages. So, standing back from the detail, what are the key take-aways? 

Bevan Brittan Updates

The Hewitt Review of Integrated Care Systems - Anna Davies

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