I hope that you had a good Christmas and with best wishes for a very happy and peaceful 2008.

This Update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in health and social care work, which have been published in the last month.

If you have been forwarded this update by a colleague and would like to receive it directly please email Claire Bentley.

All links are correct at the date of publication. The following topics are covered in this update:

	Care		Health and Safety
	Children		Mental Health
	Clinical Management		Patient
	Commissioning		Primary Care Trusts
	Data Protection		Prisons
	Estates and Facilities		Third sector
	Foundation Trusts		General

Care

Rights, Risks and Restraints: An exploration into the use of restraint. This is a report from the Commission for Social Care Inspection on the use of restraint in providing care to older people.
Putting people first: a shared vision and commitment to the transformation of adult social care: this ministerial concordat establishes the collaboration between central and local government, the sector's professional leadership, providers and the regulator. It sets out the shared aims and values that will guide the transformation of adult social care, and recognises that the sector will work across shared agendas with users and carers to transform people’s experience of local support and services.

Children

Publications/Guidance
Investment to improve services for disabled children. Ministers in the Department of Health and the Department for Children, Schools and Families have written to local authority and primary care trust chief executives setting out the full Comprehensive Spending Review settlement in relation to priorities for disabled children's services, including investment in short breaks, palliative care, transition support and access to childcare.

Implementation plan for reducing health inequalities in infant mortality: a good practice guide. This plan shows what can be done at local level to help reduce health inequalities in infant mortality and to achieve the 2010 Public Service Agreement target. The plan sets out to:

		update national progress in reducing health inequalities in infant mortality
		illustrate progress on implementing the recommendations from the review
		develop practical guidance to aid local implementation of the review's recommendations

If you wish to discuss any of the items raised in this section please contact Deborah Jeremiah.

Clinical Management

Legislation
Damages for Bereavement (Variation of Sum) (England and Wales) Order 2007. SI 2007/3489: Bereavement damages are to be increased from £10,000 to £11,800 in respect of causes of action which arise on or after 1 January 2008.

Publications/Guidance
Collaborative commissioning of national screening programmes. This best practice guidance sets out roles and responsibilities for the collaborative commissioning of national screening programmes, as recommended in Sir David Carter's Review of Commissioning Arrangements for Specialised Services.
If you wish to discuss any of the items raised in this section please contact Jackie Linehan.

Commissioning

Publications/Guidance
Practice based commissioning - budget setting refinements and clarification of health funding flexibilities, incentive schemes and governance. This document follows up the commitment made in Practice based commissioning: practical implementation to refine the budget-setting methodology, and responds to requests received through the Commissioning Framework for Health and Well-being Consultation for clarification on the flexible use of NHS funds, governance arrangements and incentive schemes.

Generic choice model for long term conditions. This generic model helps commissioners understand the process and range of services needed to be commissioned, to improve and personalise services and support people with long term conditions. The model, developed in conjunction with a number of patient organisations, provides good practice examples, and aims to reduce inequalities.

Towards world class commissioning competency. This report was submitted to the Department of Health’s consultation on the vision and delivery of World Class Commissioning. Published by the Health Services Management Centre (HSMC), at Birmingham University, the report welcomes the Department’s recent focus on commissioning, and reflects many of its conclusions regarding the capabilities required by commissioners. However, it concentrates on particular aspects of commissioning competency which have not been fully addressed or sufficiently emphasised so far.

If you wish to discuss any of the items raised in this section please contact David Owens.

Data Protection

Updates
If you would like a copy of the Bevan Brittan alert on Patient Information and the Risks of Accidental Disclosure please contact Claire Bentley

Publications/Guidance
The civil procedure rule committee has published its freedom of information scheme. The scheme aims to ensure that information is readily available to the public. The scheme also provides information on the extent of available material.

The Department of Health has produced guidance on preparation of local IM&T plans for 2008/09 for the production of an information management and technology plan for the local health community in support of national and local service objectives. National expectations for the NHS are set out building on the existing investment in NPfIT and to strengthen local information and data management.

News Personal data lost as NHS trusts admit security breaches.

If you wish to discuss any of the items raised in this section please contact James Cassidy.

Estates and Facilities

Legislation
Changes to building control coming into force from 2 January 2008. The Building and Approved Inspectors (Amendment) Regulations 2007 (the Amendment Regulations 2007) were made on 28 November 2007 and laid before Parliament on 5 December 2007. The Amendment Regulations 2007 will amend:
 

		Part L in Schedule 1 to the Building Regulations 2000, which relates to the conservation of fuel and power in buildings.
		Provisions on the commissioning of lighting systems or fixed systems for heating, hot water service, air conditioning or mechanical ventilation.
		Provisions relating to self-certification schemes and the categories of work where notification to a local authority is not required.

The changes will come into force on 2 January 2008 and 6 April 2008.

Publications/Guidance
Two new guides are available to help the NHS and local planning authorities work together. One of the guides is written for NHS staff explaining town planning in England, the other is for local planning authorities explaining the NHS and how planners can impact on it:-
 

		A guide to town planning for NHS staff
		A guide to the NHS for local planning authorities

Cases
Environment Agency prosecutes landowner for DIY flood defence. Environment Agency v Afshin Payravi (unreported). In November 2007, the Environment Agency (EA) successfully prosecuted a landowner who had built a flood defence near an adjoining watercourse to protect his property.  The magistrates' court fined the landowner and ordered him to remove the flood defence and pay the EA's costs.  The case is a useful reminder for landowners near watercourses and on floodplains that they must proceed with caution when protecting their property from the risk of flooding.

Planning permission required for enclosure of additional land adjoining listed property. Sumption & Anor v London Borough of Greenwich [2007] EWHC 2776 (Admin). The High Court has held that the question of whether additional land came within the curtilage of a listed building depended on the facts and the use that was being made of the land.  A lack of historical connection with the existing land, and the reasons given by the owner for enclosing the additional land, were not enough to mean that the land did not form part of the curtilage.  The case does not create new law, but it illustrates the way that a court is likely to objectively consider the overall circumstances of each case, when determining the extent of the curtilage of listed property for planning purposes.

If you wish to discuss any of the items raised in this section please contact Mark Calverley.

Foundation Trusts

Publications/Guidance
NHS foundation trusts: review of six months to 30 September 2007. This report, published by Monitor, details how the foundation trust sector has performed over the second quarter. It also comments on the specific actions Monitor requires boards of NHS foundation trusts to undertake when there is a risk of breach of targets or national core standards. The report shows that the target to achieve a year-on-year reduction in MRSA continues to provide the most significant challenge to NHS foundation trusts, but that financial performance remains strong.

If you wish to discuss any of the items raised in this section please contact David Owens.

Health and Safety

Training
At Bevan Brittan we can help by providing a tailored training session to your Board and senior managers on Corporate Manslaughter, assist with undertaking a high level review of governance arrangements and putting in place solid processes to deal with the unexpected. If you would like more information please contact Duncan Astill.

Legislation
A new offence of corporate manslaughter will come into force on April 6, 2008. The Corporate Manslaughter and Corporate Homicide Act 2007 changes the basis on which companies are liable for prosecution for manslaughter. Gross failures in the management of health and safety, causing death, will be liable to prosecution as corporate manslaughter. If you would like to receive copies of our corporate manslaughter flyers which look at how it will impact on the NHS please contact Duncan Astill.

Publications/Guidance
NHS Emergency Planning Guidance 2005: planning for the management of blast injured patients. This guidance provides a set of general principles to guide all NHS organisations in the provision of services for the management of blast injured patients within the context of the NHS Emergency Planning Guidance 2005.

Strategic command arrangements for the NHS during a major incident. The purpose of this document is to provide guidance to NHS organisations regarding command, control and co-ordination arrangements. It provides a platform for all NHS organisations to undertake emergency planning.

Hospital Organisation, Specialty Mix and MRSA. This document analyses organisational factors, such as bed occupancy rates, cleanliness and use of temporary staffing, to understand the variations in MRSA rates between different hospitals.

Safety First : One Year On.
The National Patient Safety Agency (NPSA), on behalf of the Patient Safety Forum, reports significant progress in putting patient safety at the top of the NHS agenda.

Safety First: One Year On reveals that many major milestones have been reached over the last year, but that there is still a lot of work to do to ensure that all NHS organisations have patient safety as their number one priority. The publication shows how NHS organisations are pulling together with other key groups, including the Royal Colleges and international partners, to push for patient safety.

If you wish to discuss any of the items raised in this section please contact Duncan Astill.

Mental health

Training dates
This year has seen unprecedented change in mental health law affecting service provision, rights of service users and responsibilities of providers across all sectors. Mental health is an area increasingly under the spotlight from politicians, regulators and service user groups.

To help you understand how these changes will affect your service Bevan Brittan has organised a series of seminars, each will be followed by networking and refreshments.

The seminars, many of which are free, are aimed at Legal Services Managers, clinical and managerial staff involved in service provision in acute and community NHS Trusts, PCTs, Care Home services, statutory regulators, private sector providers and GP consortia. They are taking place at our offices during September 07 – February 08. If you would like a copy of the flyer setting out these sessions please email Claire Bentley.

Bevan Brittan Mental Health Team
If you would like to view the Bevan Brittan mental health team click here.

Bevan Brittan Booklets/Updates
We have produced a credit card size booklet that sets out the Mental Capacity Act 2005 key points. If you would like a copy please email Claire Bentley with your name and postal address.

16 or 17 year old mental health patients may consent to treatment. SI 2007/2798 brings into force on 1 January 2008, the Mental Health Act 2007, s 43. This provides that in the case of patients aged 16 or 17 years who have the capacity to consent to the making of arrangements for their admittance to hospital or registered establishment for treatment for mental disorder on an informal basis, they may consent (or may not consent) to such arrangements and their decision cannot be overridden by a person with parental responsibility for them.

Publications/Guidance
Mental health at work : developing the business case. Due to mental ill health among staff, businesses across Britain are losing £1,000 a year for every person they employ, says a report published by the Sainsbury Centre for Mental Health. Mental health at work: developing the business case finds that the total cost to UK employers of mental ill health among their staff is over £25 billion. That is equivalent to £1,000 per employee in the workforce.  Mental health at work finds that simple steps to improve the management of mental health in the workplace should enable employers to save 30 per cent or more of these costs - at least £8 billion a year.

Helping people through mental health crisis: the role of Crisis Resolution and Home Treatment services. Published by the National Audit Office, this report on Crisis Resolution and Home Treatment (CRHT) found that services are being limited by a lack of input from specialist health and social care professionals, variations in staffing levels across the country and too few admissions to hospital being assessed by CRHT teams. The report found that CRHT services have been implemented across most areas of the country, and where they are working they are making a significant impact. However the report also found wide variations between areas in the extent to which teams are staffed and resourced. Only three regions achieved the DH estimate for a fully-functioning service of 14 or more whole-time-equivalent CRHT staff per 150,000 population. The NAO has also published a report from a survey of clinicians who refer patients to CRHT services.
Count me in 2007: results of the 2007 national census of inpatients in mental health and learning disability services in England and Wales.

The census aimed to provide accurate figures on the numbers of inpatients in mental health and learning disability services in England and Wales, and to encourage service providers to collect and monitor data on all ethnic groups of patients. It was conducted on March 30 2007 and collected information on:-

		31,187 inpatients in mental health wards at 257 NHS and independent healthcare organisations in England and Wales. The proportion of inpatients in independent mental health hospitals increased from 10% in 2005 to 14% in 2007.
		4,153 inpatients in 120 organisations providing services for those with learning disabilities in England and Wales.

The report stresses that without accurate data the quality of care and treatment of black and minority ethnic patients cannot be monitored. It makes recommendations to the Department of Health and the Information Centre to improve the information available about patients from all ethnic backgrounds, including those in independent healthcare organisations.

Mental Health Act 2007 Implementation Self Assessment Tool (ISAT). Produced by the Care Services Improvement Partnership (CSIP), the aim of the is to help organisations providing services under the Act to prepare for a timely and effective implementation of the new legislation. The tool will be useful to service commissioners. Although its primary target is health and social care service providers, some of the standards relate solely to commissioners. More generally the tool should help commissioners develop service specifications and support performance management.

Procedure for the transfer of prisoners to and from hospital under Sections 47 and 48 of the Mental Health Act 1983.The revised and updated Procedure aims to help colleagues to work together more effectively to secure and sustain significant improvements in any unacceptable delays.

Cases
Flawed mental health aftercare decision. Bath and North East Somerset Council decided that a woman who had been detained in hospital for her mental health no longer needed aftercare - but its criteria for making that decision were “seriously flawed” finds Local Government Ombudsman, Jerry White. In his report, issued on 20 December 2007, the Ombudsman says “the practical effect of the Council’s criteria is to remove long term nursing or residential home accommodation from the definition of aftercare services”, and this would allow the Council to “…avoid its public responsibilities under section 117 of the Mental Health Act 1983.”

Anna Savage (Appellant) v South Essex Partnership NHS Foundation Trust (Respondent) & MIND (Intervener). [2007] EWCA Civ 1375. In order to establish a breach of the European Convention on Human Rights 1950 Art.2, where it was alleged that there had been a failure to take reasonable measures to prevent the risk of suicide of a patient held under the Mental Health Act 1983 s.3, it was only necessary to show negligence rather than gross negligence.

Consultations
Consultation on the draft revised Mental Health Act 1983 Code of Practice. The consultation document invites comments on the draft revised Mental Health Act 1983 Code of Practice (in the light of  the Mental Health Act 2007).Responses by 24 January 2008.
 
If you wish to discuss any of the items raised in this section please contact Simon Lindsay who leads the specialist Mental Health team at Bevan Brittan.

Patient

Publications/Guidance
Report on the National Patient Choice Survey: July 2007 England. This report gives the final results of around 62,000 responses to the eighth national patient choice survey commissioned to assess the implementation of choice at PCT level. The series of surveys, conducted by Ipsos MORI on behalf of the Department, monitor patient awareness of choice and recall of having been offered a choice of hospital for their first outpatient appointment. They were designed to provide a national overview of choice and summary results at PCT level. The report also contains combined survey results to date by age, sex and ethnic group.

News
NHS to log extent to which patients feel better. From April 2008 the NHS will start measuring whether patients feel better as a result of their treatment in a move aimed at improving the quality of care. The first operations to be covered will be hip or knee replacements and operations for varicose veins. Patients will be asked to fill out questionnaires before and after they are treated. The NHS will then evaluate whether to extend the questionnaires to a wider range of treatments.

If you wish to discuss any of the items raised in this section please contact Duncan Astill.

Primary Care Trusts

Publications/Guidance
How can PCTs shape, reflect and increase public value? The Health Services Management Centre (HSMC) has launched a policy paper focussing on health care, and in particular on the lack of public awareness of, or trust in, primary care trusts. It looks at the strategies available for PCT commissioners as they gain extra responsibilities in the newly-devolved NHS.

If you wish to discuss any of the items raised in this section please contact David Owens.

Prisons

Publications/Guidance
Procedure for the transfer of prisoners to and from hospital under Sections 47 and 48 of the Mental Health Act 1983. The revised and updated Procedure aims to help colleagues to work together more effectively to secure and sustain significant improvements in any unacceptable delays.

Cases
R (on the application of Graham v Secretary of State for Justice : R (on the application of Allen) v Secretary of State for Justice (2007). [2007] EWHC 2940 (Admin). The handcuffing of a prisoner whilst he received chemotherapy treatment had breached his rights under the European Convention on Human Rights 1950 Art.3 not to suffer inhuman or degrading treatment as he did not represent a risk to the public and there was no risk of his escape.

News
Deaths in prison custody 2007. The Ministry of Justice has announced that there were 92 apparent self-inflicted deaths among prisoners in England and Wales in 2007.

Overcrowding blamed for prison suicides. Opposition politicians and penal reform campaigners have blamed prison overcrowding for a 37 per cent rise in the number of inmates killing themselves.

If you wish to discuss any of the items raised in this section please contact Nadia Persaud.

Third Sector

Consultations
The DH is consulting on its Third Sector Strategic Funding and Investment Review that will develop a strategic framework for its investment in the third sector that transforms current piecemeal arrangements into a strategic portfolio of investment that more explicitly supports delivery of the Department's objectives and priorities. The review will consider the entire Department’s funding of the third sector, including its primary funding streams – Section 64 (S64) and Opportunities for Volunteering (OFV) grants schemes – as well as contracts resulting from procurement and grants across a range of the Department’s programmes. It will consider and potentially refine the role of S64 and OFV funding in the context of the Department’s vision for outcomes focused commissioning and increasing plurality of health and social care provision in which the sector has a key role. The consultation closes on 20 March 2008.

General

Publications/guidance The Audit Commission, in partnership with the Healthcare Financial Management Association, has published three guides for non-executive directors with limited financial expertise to help them understand NHS accounts. They explain the role and responsibilities of non-executive directors and auditors in the accounting process. There are separate guides for: NHS Trusts; Primary Care Trusts; and Foundation Trusts.

The NHS in England : the operating framework for 2008/9. The Operating Framework sets out a brief overview of the priorities for the NHS next year. It is accompanied by annexes which provide more detail on the priorities, how they are measured, and how the new arrangements for managing the system will work. 

The 2008/9 Operating Framework sets out:-

		The health and service priorities for the year ahead
		The reform levers and enabling strategies
		The financial regime
		The business processes

News
The Prime Minister's new year message to NHS staff is now available.

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For questions on any of the topics mentioned above, please contact either myself, or the practice area specialist.