Legal intelligence for professionals in health and social care

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.

  Care   Governance
  Children   Health and Safety
  Clinical Management   Healthcare Associated Infection
  Commissioning   Mental Health
  Complaints   Pandemic Influenza
  Data Protection   Primary Care Trust
  Employment/HR   Prison Health
  Finance   Regulation
  Foundation Trusts   General
  

Care

Publications/Guidance
Transfer of learning disability social care funding and commissioning from the NHS to local government. Since 1 April 2009, funding and commissioning responsibility of social care for adults with learning disabilities transferred from the NHS to local authorities. Further guidance on capital transfers and other financial and practical issues has been published.

Care Quality Commission: Managing money belonging to people who use services - Checklist. This checklist gives information on supporting people who use services to manage their money.

The point of care: measures of patients' experience in hospital: purpose, methods and uses. This paper provides a brief guide to the methods used for measuring what matters most to patients. The aim is to help trust boards and other interested parties decide which measurement and feedback tools are appropriate for their requirements.

Paying for Additional Private Care. This letter from Director of NHS Operations Lyn Simpson covers the requirement that each strategic health authority have a detailed policy in place that reflects the national principles for paying for additional private care.

Social care bulletin green paper special issue. This special bulletin marks the publication of Shaping the future of care together, the green paper on the reform of adult social care and support in England.

Regulation of low level support services (sitting services). CQC guidance on whether a low-level sitting service needs to be registered as a domiciliary care agency, which will depend on whether the service provides personal care.

Local authorities’ use of carers grant. The carers’ grant is provided to all councils with responsibility for social services in recognition of the support carers need for breaks and other services. This is the report of a study undertaken by the University of Leeds for the Department of Health that aimed to get a better understanding of how local authorities in England spent their carers’ grant allocations between 2005 and 2007 and how it enabled them to improve support for carers in their area.

News
NHS ordered to pay £100,000 to family of Alzheimer's sufferer. The Health Services Ombudsman has ordered NHS Worcestershire to repay care home fees amounting to £100,000 to the family of an Alzheimer's sufferer that the NHS trust had refused to pay because it claimed that her condition was not health related.

New service hands more power to the patient. The DH has launched a new online service that allows patients to rate and compare hospitals on issues such as car parking and waiting times. The web-based scorecard allows patients to pick from a drop down menu, and choose criteria which are most important to them when making their decisions. People can either look at a general scorecard which compares different hospitals, or look in more details at specific treatments and procedures within those hospitals.

Keeping older people fit and healthy. The Care Service Minister Phil Hope has launched the Older People’s Prevention Package that sets out how preventing health problems before they occur can help older people live better and healthier lives. It is part of the Government’s ageing strategy Building a Society for All Ages. It: promotes best practice around falls prevention and effective fracture management; introduces measures to improve access to affordable foot care services; clearly sets out health entitlements’ including sight tests, flu vaccination and cancer screening; and summarises existing progress on audiology and telecare services.

Funding allocated for hospice care. The Welsh Health Minister Edwina Hart has announced the allocation of £4m Assembly Government funding for hospices and palliative care services across Wales. Just over half of the total, £2.1m, will help fund the clinical palliative and end-of-life care services provided by 18 hospices throughout Wales and £1.9m will be spent on NHS palliative care services. 

Bevan Brittan Updates
New registration system for health and adult social care. The CQC will be implementing a new regulatory scheme, which will be applying new requirements and standards to an increasing range of services.  It is important for all providers to be aware of the changes, particularly as accountability rests not just with the organisations but also their senior officers. Neil Grant looks at the key changes.   

Bevan Brittan Training
Preparing for the New Regulatory System.   From April 2010 onwards, the Care Quality Commission will extend the scope of its regulatory remit over providers of health and adult social care services in both the public and independent sectors.  All providers who undertake “regulated activities” will be required to be properly registered under the Health and Social Care Act 2008.  The key changes will be: 
 NHS Providers:  registration which, to date, has been based solely on compliance with the Code of Practice on Healthcare Associated Infections (HCAIs), will be extended and measured against a new set of requirements and standards governing all aspects of the running of the organisation.  These requirements will replace the Standards for Better Health.  
 Social Care and Independent Healthcare Providers:  from October 2010 services will require registration under the 2008 Act, rather than the Care Standards Act 2000. 
This will mean:
  A wider scope of services requiring registration.
  The need to comply with a new set of registration requirements and guidance, in place of the existing regulations and National Minimum Standards.

Bevan Brittan is running two free training sessions on Preparing for the New Regulatory System at our London office from 10am -12.30pm on 15 October 2009 and at our Birmingham office from 10am - 12.30pm on 20 October 2009. 

If you would like to attend the London session on the 15 October click here and if you would like to attend the Birmingham session on the 20 October click here.

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

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Children

Publications/Guidance
The team around the child and the lead professional: a guide for managers. This non-statutory guidance from the Children’s Workforce Development Council replaces the original guidance entitled ‘The lead professional: managers’ guide’ which was published in 2006. The new guidance has been updated and re-titled in order to reflect policy developments and include revisions identified in consultation with practitioners and managers across the children and young people’s workforce. The document also seeks to link together the processes and tools, to show how collaboratively they provide a package of support to help practitioners and managers implement integrated working in their practice. DCSF has also published revised guidance for practitioners.

Early identification, assessment of needs and intervention - the Common Assessment Framework for children and young people: A guide for managers. This non-statutory guidance for managers has been updated and re-titled in order to reflect policy developments and include revisions identified in consultation with practitioners and managers across the children and young people’s workforce. It also seeks to link together the processes and tools, to show how collectively they provide a package of support to help practitioners and managers implement integrated working in their practice. DCSF has also published revised guidance for practitioners.

PCT autumn statements for services for disabled children. This Dear Colleague letter from Dame Christine Beasley DBE, Chief Nursing Officer, includes a questionnaire template which PCTs may find useful when setting out their autumn statements on the development of services to disabled children.

Keep children and young people safe: develop your workforce - New e-learning from the Royal College of Paediatrics and Child Health and e-Learning for Healthcare can help healthcare staff stay up to date and be better able to identify and respond to suspected abuse and neglect. The resource is available through the National Learning Management System (NLMS), which is free to all NHS England employees who are on ESR

Safeguarding the young and vulnerable - the Joint Chief Inspectors' recommendations and the Government's responses one year on: sets out the Government's annual update on progress against the specific recommendations in the Joint Chief Inspectors' third joint report, Safeguarding Children: the third Chief Inspectors' Report on Arrangements to Safeguard Children (July 2008), which highlighted what had improved over the three years from 2005 to 2008 and assessed the extent to which the considerable activity that had taken place at both national and local levels has affected outcomes for children. It also identified those areas still in need of improvement.

DCSF: Facing up to the task - The interim report of the Social Work Task Force. The Social Work Task Force was set up by the Government to undertake a comprehensive review of frontline social work practice and to make recommendations for improvement and reform of the whole profession, across adult and children’s services. This report sets out interim advice about the state of social work in England at present, and the nature and content of the comprehensive reform programme needed.
The Government's response welcomes the report's recommendation for a national college of social workers, which will now be taken forward. The Government has also launched a new peer support programme for middle managers of social care functions in local authorities that will help managers to explore and tackle the challenges of leading and managing workforce change to improve services and outcomes.

Consultations
Serious case reviews - revised Chapter 8 of Working Together to Safeguard Children. This DCSF consultation seeks views on revised guidance that aims to improve the quality, consistency and impact of serious case reviews (SCRs) and is directed in particular at Local Safeguarding Children Boards that by law undertake an SCR whenever a child dies or is seriously injured and abuse or neglect is known or suspected to be a factor. The consultation arises out of Lord Laming's recommendations to strengthen and clarify the serious case review process. Comments are required by 23 October 2009.

If you wish to discuss any of the items raised in this section please contact Penelope RadcliffeTracey Lucas or Deborah Jeremiah

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Clinical Management

Publications/Guidance
Safer births: supporting maternity services to improve safety. To enable frontline professionals working in maternity units to improve the safety of the services that they deliver to women and their babies, The King's Fund has set up the Safer Births initiative, a service improvement programme, with national and local partners. During the first phase of the Safer Births initiative, in early 2009 three regional interactive events were organised for an invited audience of heads of midwifery, lead obstetricians and risk managers. This report presents the findings of these workshops.

Patients not numbers, people not statistics. The Patients Association has published a report containing 16 personal accounts of patient care in hospital as an attempt to raise awareness of the failings in hospital care being submitted to it every week through its Helpline phone calls, emails and letters. The collection of stories developed organically from a review of the Association's database of patients and relatives who had contacted it to express concern about the care they or a relative had received in hospital. The case studies show a consistent pattern of shocking standards of care and highlight the unacceptable experiences facing patients up and down the country on a regular basis.

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

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Commissioning

Publications/Guidance
World class commissioning summer update - July/August 2009. This letter from Gary Belfield, Director of Commissioning, gives a progress report on the world class commissioning programme for July and August. It includes updates on the launch of assurance year two, the Practice Based Commissioning (PBC) National Clinical Network, a new film showcasing PBC in action, some new support and development resources and an update on the programme of Integrated Care Pilots (ICP).

Market facilitation: transforming the market for social care. In order to transform social care to make it fit for the purpose of meeting changing needs and providing a more personalised approach to service provision, commissioners are tasked with the role of influencing and shaping local care markets. This series of papers looks at different aspects of facilitating markets.

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

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Complaints

Publications/guidance
Report by the Public Services Ombudsman for Wales and the Health Services Ombudsman for England of a complaint about the Welsh Assembly Government (Health Commission Wales), Cardiff and Vale NHS Trust and Plymouth Teaching Primary Care Trust. This joint report by the Welsh and English Ombudsmen considers a complaint by S concerning the care of her adult daughter, D. D lived in South Wales but became ill while staying with a friend in SW England, developing depression and anorexia nervosa. She was treated as an in-patient with Plymouth Teaching PCT (the PCT). She was then referred to the local eating disorders unit and the PCT applied to the Health Commission Wales (HCW) to fund this treatment. HCW refused on the grounds that D had not been assessed by the services in Wales and because there was no follow up plan for when she was discharged. S complained that she had to use her life savings to pay for private care for D and that the NHS should have funded D's care. The Ombudsmen found maladministration that caused S and D injustice. They recommended that the HCW pay S £31,000 + interest for the amount spent on D's private care, together with £250 from each of the three bodies in compensation for the distress caused. The Ombudsmen also made a number of recommendations regarding the adequacy of services for eating disorders in South Wales.

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

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Data Protection

Publications/Guidance
Payment by Results (PbR) data assurance framework 2008/09. This report presents the key findings and analysis of the 2008/9 national clinical coding audit programme managed by the Audit Commission. It shows that the number of errors made by NHS trusts under the PbR system is falling, but there are continuing concerns about the poor quality of some medical records.

Long live the database state. Tim Kelsey has written this article for Prospect magazine on the ongoing struggle of using personal records to improve public service performance. It recounts the battle to get hospital standardised mortality ratios published and recognised by Government and addresses the need to translate records collected by public services into knowledge that leads to the improved performance.

Consultations
PbR data assurance framework consultation 2010/11 onwards. The Audit Commission is seeking views on the framework that supports the improvement of data quality in the NHS. The consultation closes on 2 October 2009.

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

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Employment/HR

Publications/Guidance
How is life as a healthcare manager? Management in Practice is asking healthcare managers to complete their annual online survey about life as a healthcare manager today. The survey asks about managers’ hopes and concerns for the health service, views about pay and personal development, health policy and what changes would allow you to do your job better.

Business case for the NHS staff survey. A series of information and guidance resources has been produced by the Institute of Employment Studies to help NHS organisations and staff understand the benefits of conducting and participating in the NHS staff survey.

European Working Time Directive (EWTD). This letter from Flora Goldhill, Director, Workforce Capacity, Values and Equality, gives an update on the EWTD. The EWTD is now fully implemented across the NHS with the inclusion of junior doctors in training in the 48 hour working week.

Update to Staff and Associate Specialist doctors frequently asked questions. This now includes two new questions on funding (questions 13.1 and 13.2), and an additional question on back pay (question 4.7). The specialty doctor and associate specialist pay scale tables have been updated to include the 2009/10 rates and some of the questions have been moved to more appropriate headings.

New Guidance on NHS Pension Choice exercise, linked to TUPE transfers. NHS Pensions has issued guidance informing employers that, as part of the Choice exercise, it is necessary to identify staff that may be part of a TUPE or TUPE like transfer on or after 1 October 2009 to an employer who cannot offer membership of the NHS Pension Scheme. Failure to carry out the Choice exercise for such staff before employment is transferred could result in legal challenge.

New Guidance on managing time off for employee representatives has been agreed by the Acas Council which complements it’s new Code of Practice on time off for trade union duties and activities, and provides further information on the subject of time off for employee representatives.

Cases
Kulkarni v Milton Keynes Hospital NHS Trust; Secretary of State for Health (Interested Party) [2009] EWCA Civ 789 (CA). In dismissing an appeal brought by a doctor, K, against the High Court's refusal to make a declaration that he be entitled to legal representation in disciplinary proceedings brought by his employer, the NHS Trust, the court considered as an obiter point that a doctor facing what was effectively a criminal charge, although it was being dealt with by disciplinary proceedings, had an implied right to legal representation under Art.6 ECHR. The decision is likely to be appealed to the House of Lords by the Secretary of State but effectively any doctors or dentists that are employed by the NHS and are facing serious disciplinary charges on misconduct or capability grounds will rely on this decision to argue that they have a contractual right to legal representation by someone instructed or retained by their medical defence union.

Consultations
Role of the nurse consultation period extended until the end of 2009 to allow interested organisations to submit their responses.  The questionnaire can be completed on line.

The Equality and Human Rights Commission has launched a consultation on how private and voluntary sector employers with at least 250 staff can measure and report on their gender pay gap. The consultation remains open until 28 October 2009.

News
A new equality and diversity council for the NHS has been announced which will champion improvement on equalities in the NHS and campaign for change. The council will support the national focus on improving quality in the NHS, in line with stated commitments in High Quality Care for All and the NHS Constitution.

Bevan Brittan Updates
It’s no sacrifice … Salary sacrifice schemes have been the cause of sleepless nights for HR professionals for many years. Couple this with the fact an employer must now continue to provide non cash benefits during an employees entire maternity leave and its a long time 'til dawn. Tim Woodward takes a closer look at this tricky area of employment law. 

EAT Discrimination update. Perhaps because of the poor weather, the last month has seen the dissemination of not one but two important judgments from the EAT. One dealing with whether or not a failure to make a reasonable adjustment to avoid dismissing an employee was sufficient to render the dismissal itself an act of discrimination and the other considering the circumstances in which an individual providing work for a third party who is not their employer is protected from race discrimination by the third party or its employees. Mugni Islam-Choudhury explains more.
 
4 Day Week and Short-time Working – Unintended Consequences for Pension Schemes. In the economic downturn, as a means of avoiding redundancies some employers are introducing a 4 day week or short term working  involving changes to employees’ working hours and salaries  (permanently or for a limited period ) and even “sabbatical “ periods of unpaid leave.  While this is a commendable solution in difficult times it is not without its risk from a pension’s perspective. Christine Johnston explains more. 
 
News Round-up. Sara Touzel reports on the latest developments in employment law including the gender pay gap, the government review of the default retirement age, an update on swine flu, the recently published ACAS annual report and the introduction of a new supreme court. 

Bevan Brittan Training
Employment Absence: How to manage out risks and avoid personal injury action
10.00am – 12.30pm. Registration from 9.30am. 15 September - London office, 16 September - Bristol office, 17 September - Birmingham office. We all know that workplace absences affect productivity and profits. Repeated occurrences can lower morale and motivation in both the absent and those remaining. In a struggling economy, anxiety and stress related problems are on the increase and a failure to deal with the early warning signs could store up problems for the future. Employees can become more litigious in a difficult economy. While sickness absence is not a new occurrence, employees are increasingly aware of their rights, both in the Employment Tribunal and also in relation to personal injury actions. This workshop based session will look at the key steps managing absence in the workplace with a particular focus on stress problems. Members of Bevan Brittan’s Personal Injury team will also provide guidance on how to deal with a personal injury claims; together with a review of the practical steps employers can take to prevent further claims being brought.

If you wish to discuss any of the items raised in this section please contact Sarah Michael

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Finance

Publications/Guidance
Transfer of learning disability social care funding and commissioning from the NHS to local government. Since 1 April 2009, funding and commissioning responsibility of social care for adults with learning disabilities transferred from the NHS to local authorities. Further guidance on capital transfers and other financial and practical issues has been published.

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

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Foundation Trusts

Publications/Guidance
2009-10 review of NHS foundation trusts' three-year plans. Foundation trusts are required each year to submit their three-year plans to Monitor, whose relationship managers review the plans in detail. Each foundation trust is assigned governance, financial and mandatory services risk ratings, based on the self-certifications and returns in their plan. These documents provide a summary of the key findings from this year's review process.

Consultations
Consultation on the de-authorisation of NHS foundation trusts. Seeks views on proposed changes that will enable Monitor and the Government to de-authorise failing foundation trusts and remove foundation status, following the failings at Mid Staffordshire FT that exposed a need for changes to the current regulations. The consultation closes on 18 September 2009.

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

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Governance

Publications/Guidance
The point of care: measures of patients' experience in hospital: purpose, methods and uses. This paper provides a brief guide to the methods used for measuring what matters most to patients. The aim is to help trust boards and other interested parties decide which measurement and feedback tools are appropriate for their requirements.

Transforming community services: Governance arrangements to support PCT provider committees. This guidance is intended to help support PCT provider committees implement strong robust governance arrangements in order to deliver the transformation of community services. It sets out the core principles that should underpin the committee's membership and make-up.

Governance arrangements to support PCT provider committees. This governance guidance is intended to help support PCT provider committees implement strong robust governance arrangements in order to deliver the transformation of community services.

If you wish to discuss any of the items raised in this section please contact Tracey Lucas, Vincent Buscemi or Deborah Jeremiah

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Health and Safety

Publications/Guidance
Payment by Results (PbR) data assurance framework 2008/09. This report presents the key findings and analysis of the 2008/9 national clinical coding audit programme managed by the Audit Commission. It shows that the number of errors made by NHS trusts under the PbR system is falling, but there are continuing concerns about the poor quality of some medical records.

Safer births: supporting maternity services to improve safety. To enable frontline professionals working in maternity units to improve the safety of the services that they deliver to women and their babies, The King's Fund has set up the Safer Births initiative, a service improvement programme, with national and local partners. During the first phase of the Safer Births initiative, in early 2009 three regional interactive events were organised for an invited audience of heads of midwifery, lead obstetricians and risk managers. This report presents the findings of these workshops.

Chemotherapy services in England: ensuring quality and safety. This best practice guidance aims to bring about a step change in the quality and safety of chemotherapy services for adult patients with either solid cancers or haematological malignancies and many of the recommendations are applicable in the care of children and young people. It highlights the need to improve both elective chemotherapy services and acute oncology services. It recommends that all hospitals with an accident and emergency department should provide acute oncology services to ensure the correct treatment of emergency cancer patients and those who suffer severe side effects from chemotherapy.

The safer management of controlled drugs: annual report 2008. The Shipman Inquiry found that ineffective monitoring had allowed Dr Harold Shipman to obtain large quantities of diamorphine, which he used to kill at least 15 and possibly up to 200 patients. This report details progress in implementing regulations introduced in response to the Shipman Inquiry, to monitor controlled drugs.

Consultations
Learning from serious incidents requiring investigation. The National Patient Safety Agency (NPSA) is seeking comments from interested organisations and individuals concerning the National Framework for Reporting and Learning from Serious Incidents Requiring Investigation. This document is the first release of a proposed new National Framework for the management of serious incidents occurring in the NHS and those parts of the independent sector which provide NHS services in England. The consultation closes on 13 November 2009. 

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

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Healthcare Associated Infection

Consultations
Consultation on the Health and Social Care Act 2008 Code of Practice for health and social care on the prevention and control of infections and related guidance; and Prevention and control of infection in care homes (a supporting guidance document for providers of adult social care). Seeks views on a code of practice and supporting guidance that will help providers of health care and adult social care to plan and implement how they prevent and control healthcare-associated infections. It sets out criteria that the Care Quality Commission will use to assess compliance with the registration requirement. The consultation closes on 6 November 2009.

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

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Mental Health

Publications/Guidance
Psychiatric services for black and minority ethnic older people. Little progress has been made in improving mental health services for black and minority ethnic (BME) older people over the last eight years, according to a new report. It examines what changes have occurred in services offered to BME older people since the original report was published in 2001.

Representation before mental health tribunals. In force from 13 August 2009. This practice note published by the Law Society advises on providing legal advice to clients appearing before the First Tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales. It covers facilitating referral, client capacity, non-disclosure of documents, and avoiding delay at the tribunal.

Care Quality Commission: Managing money belonging to people who use services - Checklist. This checklist gives information on supporting people who use services to manage their money.

The evidence base to guide development of Tier 4 Child and Adolescent Mental Health Services. Until recently the idea of Tier 4 specialist CAMHS was synonymous with psychiatric inpatient provision, sometimes with day hospitals attached. Tier 4 has more recently come to be understood as multi-faceted with multi-agency services that can include inreach, outreach, intensive and crisis community initiatives, day provision and therapeutic fostering. The past few years have seen innovative approaches in assessment and treatment of this group of young people and the development of new community focussed services. The purpose of this paper is to present the latest information on these new developments and share with commissioners and providers the evidence base for development of effective services in this area.

The National CAMHS Support Service (NCSS) - 2009/10 business plan. The NCSS is a service improvement workstream commissioned to deliver a programme of specific activities relating to CAMHS. The NCSS's business plan for 2009/10 (at Annex A) is included.

Deprivation of liberty safeguards. Documents and forms have now been published for the deprivation of liberty safeguards for supervisory bodies, managing authorities, best interests assessors and mental health assessors.

Improving access to child and adolescent mental health services. This joint DH/DCSF guide states how the 18 weeks referral to treatment standard applies to non-emergency consultant-led CAMHS services and pathways. It does not set any new standards or targets. It shows how accessible low-wait CAMHS can be achieved and provides good practice examples.

DCSF: Effectiveness of child and adolescent mental health services. This statistical release gives the baseline for national indicator 51 for services as at 31 December 2008. National indicator 51 measures the effectiveness of child and adolescent mental health services.

Planning for the psychosocial and mental health care of people affected by major incidents and disasters: Interim national strategic guidance. Provides best practice in planning, preparing and managing psychosocial and mental health services in response to traumatic events and all types of emergencies resulting in an abnormal situation that poses any threat to the health of the community or in providing services for psychosocial care following such events.

National Confidential Inquiry into Suicide and Homicide by People with Mental Illness University of Manchester. The Centre for Suicide Prevention within the University of Manchester has published their annual report into suicide and homicides committed by individuals suffering from a mental health condition.  

Consultations
Consultation on the Care Quality Commission Mental Health Strategy. This consultation seeks views on a strategic plan for the commission's work on mental health over the next three to five years.

Safety and security directions – high secure psychiatric services – proposals for consultation. The aim of this consultation is to gather views on the proposed revision of The High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2009 and associated guidance, by inviting the views of key stakeholders. Responses should be submitted by 2 November 2009.

New Horizons: towards a shared vision for mental health - consultation. This paper explores the prevention of mental illness and earlier intervention when things go wrong. It also looks at how services can become more innovative and work more effectively together. In particular, it focuses on how Government, services and communities can work together to: get everyone to play their part in improving mental well-being; make it easier for people to get the right help; promote equality and make society fairer; and reduce the stigma that people with poor mental health experience. The consultation closes on 15 October 2009.

News
Launch of a national learning package to support the refocused Care Programme Approach (CPA) in mental health. The Centre for Clinical and Academic Workforce Innovation (CCAWI) at the University of Lincoln has been commissioned by the Department of Health to produce a learning resource supporting the mental health workforce to implement the refocused CPA. The first stage of the project is complete and is available free on their website. It consists of a trainer’s manual, a trainee’s manual, powerpoint presentations, a DVD and a work based assessment scheme.

Bevan Brittan Updates

Does Rabone reveal all? Since the Savage v South Essex NHS Trust [2008] UKHL 74 judgment last year left ambiguity...
 
If you wish to discuss any of the items raised in this section please contact Simon Lindsay.

 

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Pandemic Influenza

Publications/Guidance
Pandemic flu: planning and responding to primary care capacity challenges. New guidance has been published for PCTs on how to deliver primary care services whilst potentially short staffed and how to cope with increased patient demand during the pandemic and the anticipated seasonal flu.

Swine flu: authorisation of the supply of antivirals. Ian Dalton, National Director for NHS Flu Resilience, has written this letter jointly with the Royal College of GPs and the BMA’s General Practitioners Committee to all GPs to confirm the revised procedure for authorising the supply of antiviral collection points.

Further Details About the H1N1 Swine Flu Vaccination Programme 2009-10: A letter from Sir Liam Donaldson. This is a letter from Chief Medical Officer Sir Liam Donaldson. It supports the announcement of the priority groups for the swine flu vaccination programme.

Swine flu vaccination programme. This web page links to documents supporting the announcement of priority groups for vaccination against swine flu. The priority groups include: individuals aged six months and up to 65 years in the current seasonal flu vaccine clinical at-risk groups; all pregnant women (subject to licensing considerations on trimesters); household contacts of immuno-compromised individuals; and people aged 65 and over in the current seasonal flu vaccine clinical at-risk groups. The links include letters from David Nicholson and Sir Liam Donaldson about the vaccination programme.

Pandemic influenza: guidance on meeting the needs of those who are or may become vulnerable during the pandemic. Updated guidance to support organisations in their planning for those people who are or may become vulnerable during the pandemic. It emphasises the need for vulnerable groups to be taken account of in the pandemic flu plans drawn up by primary care organisations and their partners (NHS trusts, foundation trusts, local authorities and the third sector).

Swine flu: letter to Social Care Reference Group. This Dear Colleague letter outlines current activities of the National Director for Social Care Flu Resilience.

Swine flu: letter to Directors of Adult Social Services. This Dear Colleague letter from the National Director for Social Care Flu Resilience sets out the actions that local authority Directors of Adult Social Services should be undertaking in response to the current swine flu pandemic.

Flu pandemic advice for healthcare providers. The Care Quality Commission has issued advice for healthcare providers on dealing with a flu pandemic. There is also equivalent advice for social care providers.

News
Working time directive and swine flu opt out - NHS Employers has prepared a model waiver agreement for any staff, including doctors, who wish to exercise their right to opt out of the 48-hour average working week to undertake additional work to support the NHS throughout the flu pandemic. 

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

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Primary Care Trust

Publications/Guidance
Pandemic flu: planning and responding to primary care capacity challenges. New guidance has been published for PCTs on how to deliver primary care services whilst potentially short staffed and how to cope with increased patient demand during the pandemic and the anticipated seasonal flu.

Study of primary care in A&E. The Primary Care Foundation is carrying out a study of the use of primary care clinicians within or alongside emergency departments. The aim is to understand the range of different models and report on the various elements that need to be in place for such initiatives to operate safely and successfully. To achieve this they are asking all emergency departments, commissioners and the primary care provider organisations in England to complete a survey. Comments must be submitted by 14 September 2009.

PCT autumn statements for services for disabled children. This Dear Colleague letter from Dame Christine Beasley DBE, Chief Nursing Officer, includes a questionnaire template which PCTs may find useful when setting out their autumn statements on the development of services to disabled children.

Local self-assessment audit for assessing implementation of HTM 01-05: decontamination in primary care dental practices and related infection prevention and control issues. This audit tool has been produced jointly by the DH and the Infection Prevention Society to allow primary care dental practices to assess their level of compliance with Health Technical Memorandum 01-05. It will enable practices to identify areas where they need to improve the quality of the decontamination process to achieve essential quality requirements and best practice.

Improving eye health services. This document provides practical advice on how PCTs can assess their current eye health services performance, identify their vision for the future and commission services that meet the needs of their local communities.

Governance arrangements to support PCT provider committees. This governance guidance is intended to help support PCT provider committees implement strong robust governance arrangements in order to deliver the transformation of community services.

Cases
R (Compton) v Wiltshire PCT [2009] EWHC 1824 (Admin) (Admin Ct). The court held that the PCT's decisions relating to the closure of a day hospital and minor injuries unit at a local community hospital had been properly made and were not susceptible to judicial review on the grounds of apparent bias, inadequacy of consultation, or irrationality.

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

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Prison Health

Publications/Guidance
Working with older prisoners. This resource pack provides information for peer support workers, disability liaison officers, older offender and wing officers to implement good practice ideas and set up activities for older prisoners. It also provides useful reference material on organisations to encourage prison workers to contact other agencies for information and improve the quality of their information, advice and guidance service for older prisoners.

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

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Regulation

Cases
Yeong v General Medical Council [2009] EWHC 1923 (Admin) (Admin Ct). The court held that, when considering the fitness to practise of a medical practitioner following his breach of a fundamental rule governing the doctor and patient relationship, the practitioner's efforts to address his problems and reduce the risk of the recurrence of such misconduct could, in certain circumstances, be given less weight than they would be given in cases involving clinical errors or incompetence.

Saha v General Medical Council [2009] EWHC 1907 (Admin) (Admin Ct). The court held that the GMC's Fitness to Practise Panel had been justified in finding that the failure of a doctor, who suffered from hepatitis B, to provide information as to his past employers was in breach of good medical practice and constituted misconduct, by reason of which his fitness to practise was impaired. The Panel had therefore been entitled to impose the sanction of erasure of his name from the register.

Consultations
A joint consultation on the report to Ministers from the DH Steering Group on the statutory regulation of practitioners of acupuncture, herbal medicine, traditional Chinese medicine and other traditional medicine systems practised in the UK. Seeks views on whether a regulatory system should be established to govern the practice of the specified complementary and alternative therapies. Once the consultation responses have been considered, a decision will be made on whether or not to move towards statutory regulation of these professions. Any final decision will be based on an assessment of the likely risk of harm to patients and the public, and consideration as to whether this harm could be reduced or avoided by other means. These factors are all taken into account in the consultation as well as looking at alternatives to statutory regulation. The consultation closes on 2 November 2009.

Consultation on new registration standards. The CQC is seeking views on draft guidance to providers what they will need to do to meet the new registration requirements. The consultation closes on 24 August 2009.

Bevan Brittan Updates
New registration system for health and adult social care. The CQC will be implementing a new regulatory scheme, which will be applying new requirements and standards to an increasing range of services.  It is important for all providers to be aware of the changes, particularly as accountability rests not just with the organisations but also their senior officers. Neil Grant looks at the key changes. 

Bevan Brittan Training
Preparing for the New Regulatory System.   From April 2010 onwards, the Care Quality Commission will extend the scope of its regulatory remit over providers of health and adult social care services in both the public and independent sectors.  All providers who undertake “regulated activities” will be required to be properly registered under the Health and Social Care Act 2008.  The key changes will be: 
 NHS Providers:  registration which, to date, has been based solely on compliance with the Code of Practice on Healthcare Associated Infections (HCAIs), will be extended and measured against a new set of requirements and standards governing all aspects of the running of the organisation.  These requirements will replace the Standards for Better Health.  
 Social Care and Independent Healthcare Providers:  from October 2010 services will require registration under the 2008 Act, rather than the Care Standards Act 2000. 
This will mean:
  A wider scope of services requiring registration.
  The need to comply with a new set of registration requirements and guidance, in place of the existing regulations and National Minimum Standards.

Bevan Brittan is running two free training sessions on Preparing for the New Regulatory System at our London office from 10am -12.30pm on 15 October 2009 and at our Birmingham office from 10am - 12.30pm on 20 October 2009. 

If you would like to attend the London session on the 15 October click here and if you would like to attend the Birmingham session on the 20 October click here.

If you wish to discuss any of the items raised in this section please contact Neil Grant

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General

Publications/Guidance
Reference guide to consent for examination or treatment, second edition 2009. This document updates that issued in 2001 and provides a guide to the legal framework that all health professionals need to take account of in obtaining valid consent for any examination, treatment or care that they propose to undertake.

Allocation of organs to non-UK EU residents. This independent report makes recommendations regarding the clarification of the rules on organ transplants for NHS patients and non-UK EU residents. It was commissioned by the former Health Secretary Alan Johnson in March 2009, following concerns about the number of organs from deceased UK donors being transplanted into non-UK resident EU nationals each year. The report's recommendations, which have been broadly accepted by the DH, will help to ensure public confidence in the fairness and transparency of the organ allocation system. Immediate steps will now be taken to implement the report's recommendations, including:
 seeking agreement from devolved health administrations to ban all private clinical practice in the UK involving solid organs donated after death within the NHS, from 1 October 2009;
 establishing an implementation group to work with NHS Blood and Transplant and commissioners of transplantation to monitor referrals from overseas;
 supporting the development of a new liver allocation scheme to build greater transparency into the allocation process;
 developing DH guidance for transplant centres to provide clarification on the eligibility criteria for people from abroad; and
 raising with colleagues across the EU the need to build capacity or expertise in developing transplant programmes in Member States or the building of reciprocal agreements between neighbouring countries.

National Clinical Audit Advisory Group Annual Report 2008-09. The report summarises the advisory group's key achievements over the last year and outlines its forward plan for 2009-10.

Cases
R (on the application of Debbie Purdy) (Claimant) v DPP (Defendant) & Society for the protection of unborn children (Intervener) [2009] UKHL 45. The Code for Crown Prosecutors was insufficient to satisfy the requirements of the European Convention on Human Rights 1950 art.8 of accessibility and foreseeability in assessing how prosecutorial discretion was likely to be exercised in cases of assisted suicide under the Suicide Act 1961 s.2(1). The Director of Public Prosecutions was required to promulgate an offence-specific policy identifying the facts and circumstances that he would take into account in deciding whether to consent to a prosecution under s.2(1).

Consultations
The framework for responsible officers and their duties relating to the medical profession: a consultation on responsible officer regulations and guidance. Part 5A of the Medical Act 1983 (inserted by s.119 of the Health and Social Care Act 2008) sets out the framework for the functions of the responsible officer in relation to the evaluation of the fitness to practise of individual doctors (recommendations on revalidation and referrals to the GMC). The role of responsible officers is integral to improving the quality of care and ensuring a focus on the three core components of quality described in High Quality Care for All: patient safety; effectiveness of care; and patient experience. This paper seeks views on draft regulations that set out the legal framework for introducing responsible officers, together with draft guidance that expands on the regulations and describes the role that responsible officers will play in supporting organisations and doctors. The consultation follows an earlier consultation on the roles and responsibilities of responsible officers which was published in July 2008. Comments are required by 25 October 2009.

A joint consultation on the report to ministers from the Department of Health steering group on the statutory regulation of practitioners of acupuncture, herbal medicine, traditional Chinese medicine and other traditional medicine systems practised in the UK. This consultation seeks views on whether, and if so how, to regulate acupuncturists, herbal medicine practitioners and traditional Chinese medicine practitioners. It focuses on the purpose of regulation (public protection) and explains the difference between professional regulation (whether statutory or voluntary) and system regulation. The consultation closes on 2 November 2009.

Essence of care: a consultation on a new benchmark on pain. Essence of Care is a structured system of benchmarks widely used in various health settings. A focus group made up of carers, patients and professionals have met to review the benchmarks and this has led to a proposed new benchmark for pain management. The DH are now opening this up for wider consultation. A consultation has also been launched on the reviewed original benchmarks. The consultation closes on 12 October 2009.

Towards a strategy to support volunteering in health and social care: consultation. Response to the consultation This document was published in response to 'Towards a strategy to support volunteering in health and social care' consultation. It sets out messages heard during the consultation process through nine regional workshops held around England, an on-line questionnaire and detailed written responses received by the Department of Health. It sets out key themes identified, an analysis of the feedback received, and outlines how the Department of Health intend to take forward work to develop a substantive strategy on volunteering in health and social care.

Changes to reporting procedures of overseas visitors from the EEA. A letter advising NHS Chief Executives that from 12 October 2009 the Department of Health will change the arrangements which NHS Overseas Visitor Managers should follow in recording and reporting treatments (including planned treatments) of visitors from the European Economic Area (EEA) and Switzerland.

News
Future of Independent Sector Treatment Centres. The DH has announced changes to the ISTC programme. Wave One contracts that are due to end from 2010 will be now reviewed on a case-by-case basis and new services will be commissioned by the local PCT where they are designed to meet local needs, provide value for money and benefit patients in that community. Where the NHS identifies an ongoing need for services, there will be a competitive tendering process and bidders, including those from the independent sector, will be invited to deliver services at NHS tariff prices, under Payment by Results (PbR), for the services they provide. Services will be delivered under the terms and conditions of the standard NHS national contract for hospital services.

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

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