Health and Social Care Update - January 2010

This Update prepared by Claire Bentleycontains 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.

05/01/2010

Template HSC - Do not publish

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

 

Care

Publications/Guidance
Strategic plan 2010-2015: position statement and action planning for learning disability. The Care Quality Commission (CQC) has published a five year plan outlining how it will drive up standards on behalf of people with learning disabilities. This is in direct response to an inpatient follow up review.

Your health, your way - a guide to long term conditions (LTCs) and self care. This booklet discusses the concept of personalised support planning for people with LTCs and supported self care with points for consideration when starting the support planning process.

Shaping personal health budgets: a view from the top. Personalisation is a key aspect of future health policy, but how close is it to becoming a reality? This report presents the opinions of local health and social care leaders on the future of personal health budgets. It portrays their understanding of the key issues, as well as their expectations, hopes and doubts.

Consultations
Common registration regulations of establishments and agencies under the Care Standards Act. Seeks views on regulations covering the registration arrangements for children's homes, fostering agencies, independent adoption agencies, adoption support agencies and residential family centres. The current registration regulations for these establishments also cover adult and health settings; however, the Health and Social Care Act 2008 will remove adult and health settings from the Care Standards Act 2001. The revised regulations being consulted on here therefore only cover children's social settings. The consultation closes on 2 March 2010.

Response to the consultation on the revision of the Fair Access to Care Services guidance to support councils to determine eligibility for social care services. Summarises the responses to the public consultation on revised guidance on eligibility for social care that closed on 6 October 2009. The revised guidance will replace the 2003 Fair Access to Care Services guidance, which provides local authorities with a framework for determining individual eligibility for social care. It aims to support fair and transparent implementation of eligibility criteria, within the new policy context of personalisation and prevention set out in Putting People First.

Legislation
Care Quality Commission (Registration) Regulations 2009 (SI 2009/3112). These regulations, which come into force on 1 April 2010, provide for the registration of health and adult social care providers of regulated activities under the Health and Social Care Act 2008. They set out requirements in relation to the register of regulated activities that the CQC must maintain, provisions relating to the publication of information by the CQC and its power to require an explanation from persons and requirements on registered persons. The regulations also set out provisions in relation to compliance with the regulations and offences. They contain provisions for providers to notify the CQC of certain incidents.

Personal Care at Home Bill. The Personal Care at Home Bill was announced in the Queen's Speech on 18 November 2009 and has received its second reading in the House of Commons. The Bill guarantees free personal care for the 280,000 people - including those with serious dementia or Parkinson's disease - with the highest needs. It is anticipated that, subject to the passage of the Bill and the introduction of regulations, free personal care could be introduced from 1 October 2010. The Bill's progress through Parliament can be tracked on the Parliamentary Bills web page.

News
Baroness Young is leaving her position as chair of the Care Quality Commission (CQC). She told the CQC Board and Secretary of State for Health, Andy Burnham, about her decision on 26 November 2009, the day the controversial report was leaked about poor standards at Basildon and Thurrock University Hospitals Foundation Trust. It is claimed that Baroness Young had a "difficult" meeting with Mr Burnham after it became public. However, CQC sources deny this is the reason for her departure.

Bevan Brittan Training
Neil Grant and Carlton Sadler are presenting at a Butterworth conference on Thursday 21 January  2010 entitled "Regulation of Health and Social Care Providers : A Brave New World." For more information 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
Parental experiences of services provided to disabled children: 2009-10. This publication sets out the main findings from the second national sample survey of parents of disabled children in England. The primary purpose of the survey is to measure parental experience of services for disabled children and provide a 2009-10 score for the national performance indicator 5 for the Public Service Agreement on Child Health and Wellbeing. The secondary purpose of the survey is to provide 2009-10 figures for the large majority of local authorities and Primary Care Trusts.

Aiming high for disabled children: improving data. York Health Economics Consortium were commissioned by the Department of Health to explore how data on disabled children is collected, managed and used at a local level. The focus of the research was fieldwork across eight health economies in England, underpinned by a review of peer-reviewed literature.

Safeguarding children and primary medical care. This Dear Colleague letter provides clarity on the specific actions that PCTs should take with regard to their primary medical services, to outline the actions that GPs themselves should be taking and the steps that PCTs should take to support GPs, in response to Recommendation 34 of the Laming progress report (March 2009).

Healthy children, safer communities - a strategy to promote the health and well-being of children and young people in contact with the youth justice system. This cross-government strategy aims to help tackle youth crime and anti-social behaviour, and contribute to community safety in England. It sets out a strategic approach to inform the work of the Healthy Children, Safer Communities Programme Board to fulfil the vision that children and young people will be safer, healthier and stay away from crime.

Consultations
Working Together to Safeguard Children: Consultation. This consultation seeks views on revised draft guidance on safeguarding children .

Responding to Lord Laming's Recommendation for Further Guidance on Effective Practice for Local Safeguarding Children Boards: A summary outline for consultation and a call for evidence. . This consultation and call for evidence seeks views on a proposed outline for guidance to local safeguarding children boards on how to operate as effectively as possible.

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
Delivering same-sex accommodation progress report: the story so far. This report provides a snapshot of progress towards the goal of all but eliminating mixed sex accommodation in NHS hospitals and other settings of NHS-funded care. It describes investment in new and improved facilities supported by the £100 million Privacy and Dignity Fund; practical support for organisations via reviews, resources and sharing good practice; initiatives to engage patients/service users and staff; support for design innovation for new-build and refurbished hospitals; levers and incentives to ensure trusts continue to provide same-sex accommodation as an integral part of their package of high quality services.

Bevan Brittan Free Workshop
Bevan Brittan is holding a Redress Workshop at our London offices at Fleet Place House on Thursday 14 January 2010 from 9.15am - 11am. This workshop is aimed at anyone involved with Complaints, Claims and Clinical Governance and is free of charge. It will look at the thorny issue of Redress; the proposed legislation, the Health Service Ombudsman Guidance on Redress, how to tackle apologies and explanations and compensation requests for maladministration and small claims. We will then work through some practical examples with a view to pulling together some best practice guidance.

Bevan Brittan Updates
Martine Widlake V BAA Ltd [2009] EWCA Civ 1256. This case concerns a claimant who fell down a staircase at work, but concealed from medical experts she had a previous back injury and exaggerated her condition to increase her compensation.

Psychiatric injury – second class victims? This article focuses on the current position in case law for a Claimant who seeks to be compensated as a “secondary” victim, who “was no more than the passive and unwilling witness of an injury caused by others” (Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1992]). In clinical negligence practice we find that this mostly applies to those cases in which a parent claims for injury as a result of the loss of a child, and given that we are seeing more of these types of secondary claim (in addition to the primary claim on behalf of the deceased) I hope that this article will assist claims handlers and practitioners alike in dealing with such claims.

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Clinical Research

Publications/Guidance
Summary of responses to the consultation on the additional uses of patient data. This consultation explored the issues around patient consent and confidentiality in relation to using their medical data for researching treatments. It ran from 17 September - 12 December 2008. A total of 1,598 respondents to the survey included the public, researchers and representatives from the NHS, social care, medical charities and ethics bodies.

Consultations
Assessment of the functioning of the Clinical Trials Directive 2001/20/EC (ENTR/F/2/SF D(2009) 32674). The European Commission has launched a public consultation seeking views on how to improve the functioning of the Clinical Trials Directive. This consultation outlines the key issues raised and seeks views from NHS organisations. The consultation closes on 8 January 2010.

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

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Commissioning

Publications/Guidance
Mainstreaming the Commissioning of Local Services to Address Violence Against Women and Girls: Consultation. This consultation seeks views on draft guidance to help local commissioners develop the best approach to commissioning services to prevent violence against women and girls, protect victims and potential victims and provide services to victims and perpetrators in local areas.

Promoting health and well-being: reducing inequalities. This guide has been developed to assist commissioners to make the most of the best methods of promoting health, using the latest understanding of how they can support people to make healthy choices as individuals within the social and environmental contexts in which they live. The guide will also be of value to providers in giving insight into the commissioning process.

Regional trauma systems: interim guidance for commissioners. This document aims to provide generic information on trauma and trauma systems, and presents a proven practical and evidence-based model suitable for regional trauma systems in the UK. It is aimed at regional commissioners and other stakeholders involved in the assessment of the provision of trauma care and the reconfiguration of services to regionalised trauma systems.

Strengthening National Commissioning: a consultation. Seeks views on proposals to improve the process by which decisions are made on funding very specialised new technologies (drugs and treatments) which are candidates for national specialised commissioning, by adapting and strengthening the existing arrangements for national commissioning; and to adapt the scope of this system to allow it to consider a small number of additional technologies that are not appropriate for assessment by the National Institute for Health and Clinical Excellence (NICE), and which may be suitable for nationally specialised commissioning services. The consultation closes on 19 February 2010.

Commissioning for personalisation. The Public Management and Policy Association is working with the Centre for Public Service Partnerships and Queen Mary, University of London on a research project to understand the challenges created by personalisation. They are asking for input from other people working with public services who are implementing personalisation reforms and also from those working in a service which is being personalised. The research is being conducted until February 2010.

Better Care, Better Value indicators. The Better Care, Better Value (BCBV) indicators reveal the potential to make significant cash or resource savings whilst improving quality. Two guides have been published which contain ten steps that organisations can take to use the BCBV indicators to maximum effect to improve quality and increase productivity. One is aimed at NHS commissioners and the other is for provider organisations.

World class commissioning, December 2009 update. This letter from Claire Whittington, Acting Director of Commissioning, to SHA chief executives and directors of commissioning includes updates on world class commissioning assurance and practice based commissioning.

The commissioning friend for mental health services: a guide for health and social care commissioners. This guide covers mental health services across England and provides a useful reference tool and up to date "friend" on key issues to support commissioners to carry out their day to day work.

No voice, no choice: a sustainable future for Alternative and Augmentative Communication. This report is the culmination of three years of research into ensuring all those who need AAC get the equipment and support they need. It focuses on how commissioners and policy makers can ensure meaningful outcomes for people who use AAC.

How to use NICE guidance to commission high quality services. This document explains how NICE guidance supports the commissioning of high quality services and describes how the guidance can be used throughout the commissioning cycle. Seeking to support commissioners in developing systems and processes that entrench NICE guidance into commissioning, it also highlights sources of further information and practical help.

NHS Evidence - commissioning: December news alert. The commissioning specialist collection has published the second edition of their monthly news alert. NHS Evidence - commissioning is an information resource for all those involved in commissioning for health and wellbeing. It includes the best available evidence, examples of good practice, policy and data to support world class commissioning. This monthly news alert provides an update on the latest additions to the collection.

The NHS Constitution - the State of Readiness Group (SoRG) report. From January 2010, all providers and commissioners of NHS care will be under a new legal obligation to have regard to the NHS Constitution in all their decisions and actions. This means that the Constitution, its pledges, principles, values and responsibilities need to be fully embedded and ingrained into everything the NHS does. This report from the State of Readiness Group (SoRG), convened at the request of the NHS Management Board, contains recommendations and examples of good practice designed to help.

Practice based commissioning: GP practice survey wave 8. This is the eighth quarterly practice survey for 2009, covering a sample of practices from each PCT, conducted between June and August 2009. It has been updated to ask more accurate questions directly to commissioners themselves, rather than a random sample of GP practices. This better measures the impact of PBC and the level of support PCTs give to practice-based commissioners in helping improve the services for local populations. From data collected between October to December 2009, 80% of practice-based commissioners believe that their work investing in better quality, better value, and better-designed health services, is showing some impact to their patients to bring about improvements in local health. 80% of practice-based commissioners consider that PBC has had some impact in bringing care closer to home, and 77% said their efforts have improved the patient experience to some degree.

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

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Complaints

Publications/Guidance
Consultation on sharing and publishing information about complaints. The Parliamentary and Health Service Ombudsman, Ann Abraham, is seeking views on sharing and publishing information about complaints handled by the Ombudsman as significant changes in the NHS complaints system, and the abolition of the Healthcare Commission as a second stage complaint handler, have given rise to some unrealistic expectations of the volume and scope of information that the Ombudsman can and will make available. Comments by 10 March 2010.

Bevan Brittan Portal - New!
At Bevan Brittan we have set up an e-portal to assist complaints managers in the NHS. The portal is of use to all NHS complaints managers who are often handling very sensitive and complex work. It provides tailored access to a range of up-to-date knowledge and information enabling you to have a central, structured and focused source of information on complaints.

It also has a discussion forum for use by complaints managers to share tips and knowledge with each other. You may like to take a look at the forum and see what colleagues have posted about different topics. In addition you may want to write a post/query of your own.

Currents topics are:-
 Patients lacking capacity
 Persistent complainants
 Disclosure
 Recording complaints and the PSHO
  Managing a complaint and legal proceedings
  Complaints procedure and the 2009 regulations
  Complaints training
  Aggregated data on complaints.

Bevan Brittan Free Workshop
Bevan Brittan is holding a Redress Workshop at our London offices at Fleet Place House on Thursday 14 January 2010 from 9.15am - 11am. This workshop is aimed at anyone involved with Complaints, Claims and Clinical Governance and is free of charge. It will look at the thorny issue of Redress; the proposed legislation, the Health Service Ombudsman Guidance on Redress, how to tackle apologies and explanations and compensation requests for maladministration and small claims. We will then work through some practical examples with a view to pulling together some best practice guidance.

If you would like more information about any of the items in this section please contact Claire Bentley or Julie Chappell.

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Data Protection

Publications/Guidance
Informatics planning 2010/11. The operating framework 2010/11 confirms that informatics will be included in operational plans and this document provides guidance on the informatics components of these plans. National expectations for the NHS for delivery of national and local objectives are set out, building on existing investments to strengthen local information and data management.

Consultations
Summary of responses to the consultation on the additional uses of patient data. This consultation explored the issues around patient consent and confidentiality in relation to using their medical data for researching treatments. It ran from 17 September - 12 December 2008. A total of 1,598 respondents to the survey included the public, researchers and representatives from the NHS, social care, medical charities and ethics bodies.

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
A guide to the implications of the European Working Time Directive for doctors in training. This document provides clarity on the European Working Time Directive (EWTD) by giving guidance using the views of experts who have already considered most issues arising from the EWTD, implemented in the UK as the Working Time Directive Regulations 1998/the Working Time Regulations (Northern Ireland) 1998 and subsequent amendments. Where a definition already exists by statute or regulation, this is noted; but in other situations a consensus view is given.

NHS Pension Choice Calculator - The NHS Pension Choice exercise, which will give members of the 1995 section of the NHS Pension Scheme the opportunity to move to the 2008 section, will begin in January 2010. To help with this process NHS Pensions has launched a career calculator to demonstrate the differences between the pension and cash benefits available in each of these sections, which can be used by scheme members once they have received their personalised choice statement to specify future changes. More information can be found here. 

On a similar note a Flexible retirement guide is also available which will help employers in the NHS to review and update the relevant HR policies, in partnership with their trade unions, to ensure that retirement policies and flexible working schemes are aligned to both sections of the NHS Pension Scheme.

Advice has been published on the use of locum doctors. Patient safety requires that locum doctors are appropriately qualified for the work they undertake and that the necessary NHS checks are undertaken. The advice is designed to support NHS organisations with this process and outlines the current standards governing the appointment and use of locum.

Engagement Toolkit - NHS Employers has launched an engagement toolkit giving tips on how best to achieve the benefits of engagement at work in an NHS context. 

Consultations
Working Time Directive - The review into the European Working Time Directive and its impact on the quality of postgraduate training for doctors, dentists, healthcare scientists and pharmacists, is now underway. Professor Sir John Temple, on behalf of NHS Medical Education England (MEE) is the independent chair leading the review. Sir John has invited written evidence to help inform the work.

News
A coroner has said that surgeons who live too far away from hospitals are putting patients' lives at risk. Greater Manchester coroner John Pollard has written to the National Patient Safety Agency (NPSA) citing the case of a man in which a contributing factor to his death was delays from the on-call surgeon and anaesthetist to get into hospital. Both doctors lived more than 40 miles away from the hospital they were working at. NHS Employers head of programmes David Grantham said: "It is a national requirement for key medical staff who undertake emergency 'on-call' work to live a reasonable distance or travel time from their workplace."

Advertising rule change for international recruitment – From 14 December 2009 all adverts for jobs for skilled workers are subject to a four week advertising period to meet the requirement of the resident labour market test. Whilst this four week period does not have to be continuous it must be completed within a three month period.

Bevan Brittan Updates
HR Workforce Transformation - Legal Challenges and Opportunities for Smarter Government and Operational Efficiency. The current intense financial pressures mean that public authorities are looking at what can be done to fundamentally reconfigure and deliver services to achieve the efficiencies required. 

Just how long is ‘long enough’? – TUPE Information and Consultation Obligations. Regulation 13(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 clearly provides that a transferor must consult appropriate representatives about a number of transfer related issues “Long enough before the relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees..." The Regulation is however silent on how long before the relevant transfer is long enough. Given the possibility of a protective award (of up to 13 weeks full pay per affected employee) being made if this Regulation is breached the question of ‘how long is long enough’ is one that has troubled both employers and their legal advisers alike. This much vexed question has now been considered by the Employment Appeal Tribunal recently in the case of Cable Realisations Ltd v GMB Northern and while there was little, if any, guidance given by the EAT as to what would be long enough we do now know that two working days is not. Alec Bennett explains more...

What exactly is a qualifying disclosure? Since the introduction of the Public Interest Disclosure Act in 1998 there has been much interest in what amounts to a ‘disclosure’ for the purposes of securing the protection of the whistle blowing legislation. The case of Parkins v Sodexho caused alarm in 2002 as it seemed to suggest that merely raising a complaint of breach of contract against the employer is sufficient to bring the whistle blowing legislation into play. However a recent decision of the Employment Appeal Tribunal in the case of Cavendish Munro Professional Risks Management Ltd v Geduld seems to suggest a more ‘common sense’ approach should be adopted. Anne Palmer explains more.

New Minimum Early Retirement Age of 55 instead of 50 from 6 April 2010 - Time limits for Lump Sum Payments to those approaching 50 From April 6, 2010, the minimum early retirement age will increase from age 50 to 55.  Guidance is expected shortly from Her Majesty’s Revenue and Customs (“HMRC”) to assist members approaching age 50 who wish to take a lump sum payment before the early retirement age changes to 55. Christine Johnston explains more.

News Round Up. Lara Feghali reports on the latest employment news.

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

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Finance

Publications/Guidance
Carbon reduction in the NHS: a role for finance. This briefing discusses why carbon reduction should be a priority for NHS finance directors.

NHS response to the financial storm. To test how those in the healthcare system might respond to lower levels of investment, The King's Fund used a behavioural simulation – Windmill 2009. From this event, and discussions with policy-makers, regulators, commissioners and providers, managers and clinicians, an analysis has been developed of what will be required if health and social care systems are to respond effectively to the major challenges that lie ahead.

Consultations
Consultation on amendments to the compliance framework for 2010/11. This consultation explains how Monitor intends to develop and enhance the effectiveness of the compliance framework in 2010/11. The proposals in the consultation covers two main categories: governance and risk ratings; and finance and risk ratings. The consultation closes on 26 February 2010.

News
New rules, to be imposed from April 2010, require all charitable donations to hospitals to be included as part of the institutions' overall budgets, leading to concerns such donations could be used to supplement reduced health budgets. However, the Department of Health has stated the change is necessary to adhere to new accounting rules despite criticism form the Charity Commission that it will undermine the independence of charities and reduce donations as well as "nationalise" such gifts.

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

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Foundation Trusts

Cases
R (Unison) v Monitor; Secretary of State for Health and Foundation Trust Network (Interested Parties) [2009] EWHC 3221 (Admin) (Admin Ct). Section 44 of the National Health Service Act 2006 limits proportion of income of an NHS FT that can be earned from private patient charges. Unison applied for judicial review of Monitor's application of this statutory cap, contending that Monitor had defined income derived from private charges in s.44(2) too narrowly, with the result that NHS foundation trusts have breached the statutory limit on private patient income.
The court held that Monitor had not applied the statutory cap on private patient income for NHS foundation trusts lawfully. Monitor's decision to adopt option 2 as to the application of the cap was wrong in law. Option 2 did not reflect the intention of Parliament, as expressed in the legislation. There was a statutory context and legal pedigree to the concept used, "income derived from" in this case, which determined its meaning. That did not lead to the court endorsing option 3, Unison's preferred approach. Monitor would need to consider whether that option accorded with the correct meaning of the statutory concept of income derived from private patient charges. It might be that there was a workable intermediate option, as the Secretary of State contended, which did reflect the intention of Parliament. Again that was for Monitor's consideration. During the course of the hearing the court was informed that the Government was committed to conducting a review of the cap. If there were particular aspects of the court's interpretation of the cap which caused practical difficulties, those could be raised and, if appropriate, addressed in the course of that review.
Bevan Brittan has issued an Alert on this decision: Judicial review on the private patient income cap

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

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Governance

Publications/Guidance
Governance of equalities, diversity and human rights diagnostic. The Audit Commission have developed a new governance tool to help organisations improve the well-being and outcomes for citizens and users who need it most and strengthen their capacity to deliver equalities, diversity and human rights priorities.

The communicating organisation: using communication to support the development of high-performing organisations. This document contains guidance for NHS chief executives, board members and lead communicators. It describes what is meant by 'best practice' in communications and outlines how NHS organisations can endeavour to accomplish this. This framework encourages chief executives to involve their communications department at a senior organisational level and to view good communication as the responsibility of the entire organisation.

Consultations
Consultation on amendments to the compliance framework for 2010/11. This consultation explains how Monitor intends to develop and enhance the effectiveness of the compliance framework in 2010/11. The proposals in the consultation covers two main categories: governance and risk ratings; and finance and risk ratings. The consultation closes on 26 February 2010.

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

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Health and Safety

Publications/Guidance
Guidance on meeting new essential standards of quality and safety. Healthcare providers must now show that they are meeting essential standards as part of a new registration system. Guidance has been published to help providers meet these standards which relate to aspects of care such as involvement and information for people, personalised care and treatment, safety and safeguarding. Additional guidance has also been published for NHS trusts which are coming into the new registration system in April 2010.

The Dr Foster hospital guide 2009: how safe is your hospital? This independent guide to NHS hospital quality focuses this year on patient safety. Dr Foster has given each NHS hospital a patient safety score that the public can use to identify the highest achieving hospitals. There is also more information about hospital mortality rates, top tips for identifying what makes a safe hospital, how hospitals can save money by improving patient safety and the best hospital trusts of 2009.

Being open: communicating patient safety incidents with patients, their families and carers. The NPSA has published enhanced guidelines for NHS organisations on the most effective ways in which to communicate with patients, families and carers in their Being open framework.

Safe management and use of controlled drugs. This letter highlights the recommendations in the recently published annual report of the Care Quality Commission on the safer management of controlled drugs and the responsibilities of trust chief executives to support their accountable officers in their day-to-day role in delivering these recommendations.

News
A coroner has said that surgeons who live too far away from hospitals are putting patients' lives at risk. Greater Manchester coroner John Pollard has written to the National Patient Safety Agency (NPSA) citing the case of a man in which a contributing factor to his death was delays from the on-call surgeon and anaesthetist to get into hospital. Both doctors lived more than 40 miles away from the hospital they were working at. NHS Employers head of programmes David Grantham said: "It is a national requirement for key medical staff who undertake emergency 'on-call' work to live a reasonable distance or travel time from their workplace."

A pioneering patient safety initiative coming to a hospital near you. A patient safety initiative which aims to reduce catheter associated bloodstream infections in intensive care units (ICUs) is about to be rolled out across England.

Bevan Brittan Updates
Can NHS trusts build the will to improve patient safety? In this article Ceri Catton and Joanna Lloyd explore how safe the NHS is, examine the criticisms raised against NHS Trusts and other key players in the quest to improve patients’ safety and ask what more can be done.

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

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Healthcare Associated Infection

Publications/Guidance
MRSA Objective for 2010-11. This document reflects a zero-tolerance approach to preventable infections and the aim of reducing variation in performance on MRSA bloodstream infections.

MRSA Objective: Stakeholder engagement - Summary of responses. This document summarises responses to the National Quality Board's stakeholder engagement exercise on the development of the new MRSA objective.

The Health and Social Care Act 2008: Code of practice for health and adult social care on the prevention and control of infections and related guidance. This code of practice, which comes into force on 1 April 2010 for the NHS and October 2010 for all other registered providers, sets out the criteria against which a registered provider will be assessed by the Care Quality Commission. It also provides guidance on how the provider can meet the registration requirement relating to healthcare-associated infections set out in the regulations.

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

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Inquests

Publications/Guidance
Witness Anonymity Provisions of the Coroners and Justice Act. This circular gives information on provisions relating to witness anonymity in the Coroners and Justice Act 2009, which come into effect on 1 January 2010.

Human Tissue Authority guidance for coroners post-mortem examinations. In consultation with coroners, pathologists, mortuary managers and the Ministry of Justice, the HTA has developed a model communication flowchart. Based on the revised codes of practice, the flowchart gives guidance on steps to ensure that tissue taken at a coroner’s post mortem is stored only with appropriate consent or is disposed of in line with the wishes of the family.

Cases
R (on the application of P) v HM Coroner for the District of Avon [2009] EWCA Civ 1367. Where a coroner had directed the jury as to the availability of two short form verdicts and a narrative verdict, a failure to direct the jury expressly that a narrative summary could be appended to a short form verdict had rendered the summing up materially defective because the jury had effectively been disabled from fulfilling the purposes referred to in R (on the application of Amin (Imtiaz)) v Secretary of State for the Home Department (2003) UKHL 51, (2004) 1 AC 653.

R (Jenkins) v HMC Portsmouth & SE Hants 2009 EWHC 3229 Admin. A coroner had been justified in reaching a verdict that the overwhelming cause of death of the deceased, who died after his lower leg and foot became gangrenous, was his own refusal to seek medical treatment for his foot injury, and the deceased's partner had not been under a duty to act against those wishes where the deceased had been capable of making his will known. Furthermore, any failure to summon medical help in the last two hours before death would not have made any significant contribution to his death.

R (on the application of Keith Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire and the Secretary of State for the Home Department. [2009] EWCA Civ 1403.  There was no duty to require a jury, in an inquest concerning a death in custody, to consider a fact or circumstance which was only potentially causative rather than actually causative of the death.

News
A coroner has said that surgeons who live too far away from hospitals are putting patients' lives at risk. Greater Manchester coroner John Pollard has written to the National Patient Safety Agency (NPSA) citing the case of a man in which a contributing factor to his death was delays from the on-call surgeon and anaesthetist to get into hospital. Both doctors lived more than 40 miles away from the hospital they were working at. NHS Employers head of programmes David Grantham said: "It is a national requirement for key medical staff who undertake emergency 'on-call' work to live a reasonable distance or travel time from their workplace."

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

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Mental Health

Publications/Guidance
The Second Year of the Independent Mental Capacity Advocacy Service: 2008-09. This is the annual report on the second year of operation of the Independent Mental Capacity Advocacy Service.

CNWL 221/2009 Central and North West London NHS Foundation Trust. Performance and comparison with London Mental Health / Foundation Trusts. An interesting review of the ratings for all mental health trusts in London.

Developing psychosocial resilience: how to cope in a crisis. This guidance provides a stepped model of care for staff that is sensitive and responsive to their needs before, during and after emergencies. It will ensure that staff are prepared to cope with long-sustained demand.

Transfer of commissioning and funding of social care for adults with learning disabilities from the NHS to local government. From April 2009, funding and commissioning of social care for adults with learning disabilities transferred from the NHS to local authorities. Final returns for 2009/10 must be completed and returned to the Department by Friday 15 January 2010. Two letters contain further guidance: one to lead commissioners in PCTS and local authorities; the other to SHAs and deputy regional directors of social care.

Strategic plan 2010-2015: position statement and action planning for learning disability. The Care Quality Commission (CQC) has published a five year plan outlining how it will drive up standards on behalf of people with learning disabilities. This is in direct response to an inpatient follow up review.

Autism strategy: Improving services for people with autistic spectrum conditions. This circular highlights arrangements for the design and delivery of a new national strategy for adults with autistic spectrum conditions.

New horizons: A shared vision for mental health. This document outlines a cross-government programme of action that aims to improve the mental health and well-being of the population and improve the quality and accessibility of services for people with poor mental health.

Equal access? A practical guide for the NHS: Creating a single equality scheme that includes improving access for people with learning disabilities. This is a guide to support the NHS to include people with learning disabilities in their equality schemes. It includes practical examples of reasonable adjustments to achieve equality of access.

The commissioning friend for mental health services: a guide for health and social care commissioners. This guide covers mental health services across England and provides a useful reference tool and up to date "friend" on key issues to support commissioners to carry out their day to day work.

Personalisation briefing: implications for community mental health services. This briefing examines the implications of the personalisation agenda for practitioners and managers in community mental health services.

Mental Health Clinical Costing Standards 2009-10. This is best practice guidance for organisations using and implementing patient-level costing and information systems in a mental health setting.

World-class commissioning for the health and well-being of people with learning disabilities. This is a practical guide to support commissioners to meet the needs of people with learning disabilities and ensure they are fulfilling their duty to promote equality.

Applying the NHS performance framework to mental health trusts. This document informs mental health trusts, PCTs and SHAs of the criteria against which mental health performance will be assessed. It should be read alongside Implementing the NHS Performance Framework.

Preventing suicide: a toolkit for mental health services. The toolkit, originally published in 2003, has been amended to reflect recent policy changes and has had input from key stakeholders, service users, carers and experts.

Swine flu H1N1: updated guidance for mental health services in England. This is updated guidance for mental health services and partners on planning and responding to the swine flu H1N1 pandemic.

Consultations
Office of the Public Guardian: Amendments to secondary legislation. The first step in this process was the "Reviewing the Mental Capacity Act 2005: Forms, Supervision and Fees", which saw large-scale changes being implemented from April 2009. This consultation addresses identified areas of legislation and policy that in practice have not worked as well as otherwise intended. Views are sought on: reducing the security bond discovery period after the client's death from seven to two years; expanding the list of benefits that would qualify a customer for exemption from payment of Office of the Public Guardian (OPG) fees; fees associated with the introduction of attorney supervision to Lasting Powers of Attorneys; and fees association with an optional checking service for LPA applications. The OPG intends to implement the proposals on April 1, 2010. Comments by March 9, 2010.

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

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Patient

Publications/Guidance
Responsibilities and operational requirements for the correct use of choose and book. Guidance to help organisations understand the importance of using Choose and Book correctly to ensure that all patients wherever they are in England experience the same high quality access to NHS care.

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Primary Care Trust

Publications/Guidance
PCT grant making powers to commission long term conditions self care support from third sector organisations. This paper highlights the role that grants can play in developing and supporting low level community activity. The use of grants is particularly pertinent to commissioning self care support for people with long term conditions.

Primary Care Trust grant-making powers to commission long-term conditions self-care support from third sector organisations. This booklet highlights the role that grants can play in developing and supporting low-level community activity. The use of grants is particularly pertinent to commissioning self-care support for people with long-term conditions. The guidance for the standard community contract around the use of grants (pg 6) states that: "Commissioners should consider the use of grants as an alternative funding arrangement where appropriate for third sector organisations. Contracts should not inappropriately replace grant funding." Third sector organisations will have an increasingly important role to play in meeting some of the expected increase in demand for self-care support.

PCT Spend and Outcome factsheets and tool (SPOT). The Department of Health has commissioned the Association of Public Health Observatories to develop a tool which helps commissioners to link health outcomes and expenditure. The development of this tool and a Spend and Outcome factsheet for every PCT in England has been led by Yorkshire and Humber Public Health Observatory.

Primary care: current innovations. This report describes some of the aims of the health policies of a range of countries in the developed world and provides examples of service shifts that have been implemented in order to meet the specific requirements and contextual factors of the country or service involved. These examples are described under the four headings of integration, substitution, segmentation and simplification.

Safeguarding children and primary medical care. This Dear Colleague letter provides clarity on the specific actions that PCTs should take with regard to their primary medical services, to outline the actions that GPs themselves should be taking and the steps that PCTs should take to support GPs, in response to Recommendation 34 of the Laming progress report (March 2009).

Health technical memorandum 01-05: Decontamination in primary care dental practices. This memorandum is intended to progressively raise the quality of decontamination work in primary care dental services by covering the decontamination of reusable instruments within dental facilities. It also includes a local self-assessment audit and a covering letter from the Chief Dental Officer.

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
Patient Advice and Liaison Services in Prison: A toolkit and good practice guidance for implementing patient advice and liaison services in a secure setting. This toolkit and good practice guidance covers the implementation of the patient advice and liaison service in a secure setting. It is designed to be read by commissioners and providers of healthcare in the criminal or youth justice sectors.

Enhancing the Healing Environment Programme: Extension of HM Prisons and Young Offenders Institution Programme in England and Wales. This document gives information on the extension of the enhancing the healing environment programme to a further group of 10 prisons and young offender institutes in 2010, with the aim of improving the environment in which healthcare is delivered within the prison service.

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

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Procurement

Publications/Guidance
National innovation procurement plan. An important commitment in the White Paper, Innovation Nation (March 2008), was for each Government Department to include an Innovation Procurement Plan (IPP) as part of its commercial strategy, setting out how the Department will embed innovation in its procurement practices and seek to use innovative procurement mechanisms. DH published its plan in December 2009. It describes the importance of innovation procurement in underpinning quality, productivity and sustainability in the NHS, and details the methodology by which innovation will be identified, procured, adopted and diffused across the NHS.

Bevan Brittan Updates
Procurement Alert - New European procurement regime thresholds.

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Regulation

Publications/Guidance
Department of Health: Simplification plan 2009. This plan sets out what the department has been doing, and plans to do, to manage and reduce the cost of regulation.

Guidance for providers: how the Standards for Better Health link to the new registration regulations. The aim of this guide is to help NHS trusts, including PCT providers, to begin to consider the new registration regulations which come into force on 1 April 2010.

How we manage dormant services: Guidance for inspectors. Explains how the CQC regulates registered services that are not actively providing a registrable service to people.

GMC affiliates pilots: final report of the KPMG evaluation. In July 2008 the Department of Health commissioned KPMG to undertake an independent evaluation of two pilots introducing a system of GMC Affiliates aimed at closing the regulatory gap between local workplace management of doctors and national professional regulation. The purpose of this evaluation is to produce feedback and provide an assessment of the feasibility, potential benefits, costs and wider impacts of the introduction of GMC Affiliates at a national level. This final report expands upon issues covered in the mid-term report published in April 2009. It sets out the broad views of the evaluation.

Consultations
Common registration regulations of establishments and agencies under the Care Standards Act. Seeks views on on regulations covering the registration arrangements for children's homes, fostering agencies, independent adoption agencies, adoption support agencies and residential family centres. The current registration regulations for these establishments also cover adult and health settings; however, the Health and Social Care Act 2008 will remove adult and health settings from the Care Standards Act 2001. The revised regulations being consulted on here therefore only cover children's social settings. The consultation closes on 2 March 2010.

Legislation
Care Quality Commission (Registration) Regulations 2009 (SI 2009/3112). These regulations, which come into force on 1 April 2010, provide for the registration of health and adult social care providers of regulated activities under the Health and Social Care Act 2008. They set out requirements in relation to the register of regulated activities that the CQC must maintain, provisions relating to the publication of information by the CQC and its power to require an explanation from persons and requirements on registered persons. The regulations also set out provisions in relation to compliance with the regulations and offences. They contain provisions for providers to notify the CQC of certain incidents.

News
Every NHS trust needs to be ready to apply for registration with CQC from 4 January 2010. The regulations for the new registration system are still subject to secondary legislation. It is expected that they will be approved by parliament in January 2010 at which time this version of our guidance will become final. All NHS trusts should have completed a pre-application form. The application form needs to be completed and submitted between 4 and 29 January 2010. The CQC have published three documents which constitute their guidance about compliance which makes clear what your trust needs to do to be compliant with the new regulations.

Regulators demand improvement at Basildon and Thurrock University Hospitals NHS Foundation Trust. Monitor has used its formal powers of intervention to require Basildon and Thurrock University Hospitals NHS FT to take immediate action to deliver improvement. This follows a decision by Monitor's Board that the Trust is significant breach of the terms of their Authorisation as a result of concerns around compliance with healthcare standards, Board effectiveness and governance. The CQC has also raised these serious concerns, as well as highlighting other specific problems around the quality of the services provided by the Trust, and has shared its evidence with Monitor. The formal notice of intervention is available on Monitor's website.

Baroness Young is leaving her position as chair of the Care Quality Commission (CQC). She told the CQC Board and Secretary of State for Health, Andy Burnham, about her decision on 26 November 2009, the day the controversial report was leaked about poor standards at Basildon and Thurrock University Hospitals Foundation Trust. It is claimed that Baroness Young had a "difficult" meeting with Mr Burnham after it became public. However, CQC sources deny this is the reason for her departure.

Legal action warning issued to Trusts not complying with the Race Relations Act. The Equality and Human Rights Commission has issued compliance notices to Frimley Park Hospital NHS Foundation Trust, Kent and Medway NHS and Social Care Partnership Trust and NHS Surrey, warning that they need to take steps immediately to address race equality or face legal action for failing to comply with the Race Relations Act's Race Equality Duty, which requires certain public authorities to eliminate racial discrimination, and promote equal opportunities and good race relations. The Trusts have three months to put compliant Race Equality Schemes and monitoring plans in place. Failure to deliver may result in an application to the county court. The Commission is writing to a number of other Trusts about concerns it has with their failure to comply with race laws.

Bevan Brittan Updates
Judicial review on the private patient income cap. The High Court of Justice has ruled that Monitor’s interpretation of what constitutes private charges for the purposes of the private patient cap, as set out by Monitor in the NHS Foundation Trust Financial Reporting Manual 2009/10, is incorrect.  

Bevan Brittan Training - January 2010
Neil Grant and Carlton Sadler are presenting at a Butterworth conference on Thursday 21 January  2010 entitled "Regulation of Health and Social Care Providers : A Brave New World." For more information click here.

Bevan Brittan Training - February 2010
Preparing for the New Regulatory System: Registration, Inspection, Compliance and Enforcement. 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. 
Applications having to be made for registration to enter the new system.
 A new set of registration requirements and guidance to comply with.
 Wider and more robust enforcement tools for the regulator.

Following on from our successful September 2009 seminars on regulation, Bevan Brittan is running three additional free training sessions on the New Regulatory System at our Birmingham office from 10am - 12.30pm on 24 February 2010, at our London office from our London office from 10am -12.30pm on 3 March 2010 and at our Bristol office from 10am -12.30pm on 4 March 2010.

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

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General

Publications/Guidance
NHS 2010-2015: From good to great - preventative, people-centred, productive. This command paper sets out a five-year plan to reshape the NHS to meet the challenge of delivering high-quality health care in a tough financial environment. The report describes practical measures to meet the demands of an ageing population and the increased prevalence of lifestyle diseases. The vision is for an NHS that is organised around patients whether at home, in a community setting or in hospital. There will be a renewed focus on prevention with the ambition of delivering cost-effective high-quality care across the service.

Building on progress: enhancing the response to HIV in England. This report by the Independent Advisory Group on Sexual Health and HIV finds that even after making progress over the last 20 years, increased planning for prevention and care is still needed to challenge the spread of the HIV epidemic in England, and provide for the changing needs of the HIV positive population.

Responsibilities and operational requirements for the correct use of Choose and Book. This guidance helps organisations to understand the importance of using Choose and Book correctly to ensure that all patients wherever they are in England experience the same high quality access to NHS care.

Project Argus - health. This letter highlights the launch of Project Argus – health which is a multimedia presentation exploring the possible consequences for the health sector in the aftermath of a terrorist attack and the risks it may face.

The NHS Operating Framework for England for 2010-11. This operating framework sets out the priorities for the NHS for the year ahead to enable them to begin their planning. According to the press release, the Framework will allow the NHS to focus on ensuring care is safe, compassionate and personal to patients and will provide real opportunity for radical and innovative approaches to improve the quality of services, whilst at the same time reducing costs.
The NHS Chief Executive David Nicholson has sent a letter to all health bodies in England introducing the new Operating Framework and highlighting its key policy areas

Markets in health care: the theory behind the policy. According to this report, the NHS will not meet its productivity challenge while the government continues to back away from using markets and competition.

International Development Committee HIV/AIDS strategy report. In its latest report on HIV/AIDS, the International Development Committee has expressed concern that DFID’s HIV/AIDS strategy may not be effective in providing prevention and care services in the community or in tackling the interaction between HIV/AIDS and other diseases, such as TB and malaria.

Medical technology: can we afford to miss out? In this report, the Medical Technology Group warn that any cuts to NHS technology budgets would cost more in the long-run and risk damaging the quality of life of thousands of patients with diabetes, heart disease and other long-term conditions.

Wellcome Trust: The health benefits of tackling climate change. Executive summary of a study prepared for The Lancet that models the effects of different policies to reduce greenhouse gas emissions in high and low-income countries. Case studies focus on power generation, transport, household energy, food and agriculture. The report calls on health ministers and professionals across the world to recognise the danger that climate change poses to health, in the run up to the UN conference in Copenhagen in December.

NHS Stop Smoking Services: Service and monitoring guidance 2010-11. This document provides best practice guidance relevant to the provision of all NHS stop smoking interventions and sets out fundamental quality principles for the delivery of services that can be used to inform the development of local commissioning arrangements. It also includes full details of the data reporting requirements for NHS stop smoking services.

Healthy Communities Direction of Travel Survey results 2009. In 2008 Ipsos MORI carried out a survey of local authority chief executives. It aimed to understand how councils are involved in tackling health inequalities and improving the health of local communities. The purpose of the 2009 survey is to explore how views have changed, using the 2008 results as a baseline.

Shaping personal health budgets: a view from the top. Personalisation is a key aspect of future health policy, but how close is it to becoming a reality? This report presents the opinions of local health and social care leaders on the future of personal health budgets. It portrays their understanding of the key issues, as well as their expectations, hopes and doubts.

Response to the consultation, and final guidance, to deal with nuisance and disturbance on NHS premises. The Criminal Justice and Immigration Act 2008 provides a power to remove those causing a nuisance or disturbance on hospital premises in England. This response to the consultation produces a final version of the guidance for the use of these powers, which gives NHS bodies a framework in which to use this legislation.

Quality framework for community services: directory of indicators - draft version. This directory sets out a list of quality indicators that are currently being developed for publication. The Department of Health is piloting these indicators at 23 sites and is looking to publish amendments or changes to these at the end of the year.

Improving information for stakeholders, a report of a PCT and SHA working group to improve community information. This report sets out the findings of a joint DH/SHA/PCT working group to improve community information. It provides a framework for commissioners and providers to improve information on community services, and includes a number of case studies from NHS organisations.

The Family Nurse Partnership Programme. This Dear colleague letter from Ann Keen and Dawn Primarolo gives information on the Family Nurse Partnership Programme, which is is an evidence-based, preventive programme for vulnerable first-time young parents, delivered from early pregnancy until the child is two. Extensive evidence points to short and long term benefits for children and parents.

Consultations
NHS Car Parking: Consultation on improving access for patients. This consultation seeks views on the implementation of free NHS hospital car parking for inpatients. 

A consultation on proposals for the Innovation Pass pilot. The Innovation Pass will make selected innovative medicines available on the NHS for a time-limited period, prior to a NICE appraisal. It gives earlier access to innovative drugs for patients with the greatest need, and at the same time will facilitate the collection of further information to support a subsequent NICE appraisal. This consultation seeks views from the NHS, industry and other stakeholders on the Government’s proposals for an Innovation Pass pilot. These proposals will be revised in light of comments received as part of this consultation and will be used to inform the first set of decisions for the pilot in 2010/11.

Legislation
Criminal Justice and Immigration Act 2008 (Commencement No. 13 and Transitory Provision) Order 2009 (SI 2009/3074). This Order brings in the power to remove persons causing disturbance on English NHS premises from 30 November 2009.

National Health Service (Charges to Overseas Visitors) (Amendment) (No.2) (Wales) Regulations 2009 (SI 2009/3005 (W.264)). These regulations, which come into force in Wales on 7 December 2009, amend SI 1989/306 by removing Guernsey and Jersey from Sch.2. The effect is that visitors from these territories to Wales will no longer be exempt under regs.4 and 5 of the 1989 Regulations from charges for healthcare provided within the NHS.

News
The Use of 084 Numbers: Directions to NHS bodies. This is a letter concerning directions to NHS bodies on the cost of telephone calls.

NHS Partners Network, representing private providers of NHS care, and the Association of Chief Executives of Voluntary Organisations, are challenging the Department of Health's policy that NHS organisations should be the "preferred provider" of NHS care. The two organisations have submitted a complaint to the NHS's Cooperation and Competition Panel, arguing that a decision by Great Yarmouth and Waveney primary care trust excluding them from bidding to provide NHS services breaches NHS rules and guidance on competition and choice.

According to figures from the NHS Litigation Authority (NHSLA), law firms representing patients in clinical negligence claims are often taking more money from the NHS than their clients receive in damages. The figures suggests that legal fees accounted for almost half of the GBP 312 million damages claims concluded in 2008. The NHSLA also attributes the rise in the number of claims against the NHS to the increase of no-win, no-fee solicitors. The way such costs can spiral is expected to be addressed in a report to be published in January 2010 reviewing civil litigation costs.

111 is new national number for non-emergency healthcare. The Office of Communications has approved the use of 111 as a telephone number for non-emergency healthcare queries. Callers' needs will be assessed and they will be directed to locally available services for advice.

New funding model opens up volunteering. Announces the launch of the Health and Social Care Volunteering Fund that replaces the Opportunities for Volunteering scheme. The new scheme will continue to support local volunteering projects in health and social care, and open up the floor to national projects to improve health and wellbeing. The scheme will award grants for dozens of volunteer projects which could include schemes such as providing friendship and support to vulnerable adults, community services for disabled children and help for those living with and affected by HIV. It will prioritise projects which work towards key aims such as improving adult social care and reducing health inequalities.

Bevan Brittan Training - Free workshops.
Effective Joint Workings between the NHS and Local Authorities.  Joint working between health and local authorities is coming under renewed focus in the light of World Class Commissioning for PCTs, the drive to achieve operational efficiencies and new models of care such as integrated care pilots.  The Audit Commission report “Means to an End; Joint financing across health and social care has highlighted that powers for  joint working are often not understood,  signed agreements are often not in place for Section 75 arrangements and where they are they, they are not regularly reviewed or effectively monitored.

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

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