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   Information Law
  Commissioning   Inquests
  Employment/HR   Mental Health
  Finance   Primary Care
  Foundation Trusts   Regulation
  Governance   General
  Healthcare Associated Infection



ExtraCare well-being: review of 2011. This report summarises some of the key points that the charity has encountered over the last year. It focuses on ExtraCare's Fracture-Free project, funded by a grant from the Department of Health, which looks to reduce the impact of fractures for residents by detecting previously undiagnosed osteoporosis.

RCN lone working survey 2011. This survey finds that over 60 per cent of nurses working in the community have been subjected to abuse in the past two years. The RCN is calling on employers to do all they can to protect their nursing staff and is urging all lone working nurses to consider the risks and act with caution at all times.

Emergency bed use - what the numbers tell us. This briefing by the Kings Fund examines why we need to understand more about bed use for emergency admissions; what progress has been made in reducing bed use; how reducing bed use can lead to improved quality of care and patient experience; and what the next steps should be.

 R (Mavalon Care Ltd) v Pembrokeshire CC [2011] EWHC 3371 (Admin) (Admin Ct). The High Court has for a second time quashed Pembrokeshire CC's decision regarding the fees paid to residential care home providers.
In December 2010 in R (Forest Care Home Ltd) v Pembrokeshire CC [2010] EWHC 3514 (Admin), Hickinbottom J quashed the Council’s original decision to pay £390 pw per resident in 2010/11. The council then reassessed the rate using an economic toolkit and raised its payment per resident to £464 pw. The seven claimants, care home providers that delivered 22.4% of all beds in the area, applied for judicial review of that new decision. They contended that the Council had breached its duty under s.21 of the National Assistance Act 1948 as the methodology used, which resulted in a fee of some £52 pw per resident lower than it would otherwise be, lacked any rational foundation, failed to take account of its legitimate current and future costs, did not consider what they needed in order to be viable, and gave no incentive for care home providers in the county to improve their facilities.
The court held that an important part of the judgment in Forest Care Homes had been lost sight of. The clear message of Hickinbottom J's judgment was that a decision-maker who agreed to use a model, but then wished to depart from it, needed to take great care lest the departure was an inappropriate one. The council might have reached a different decision if it had had regard to the guidance about sustainability, what was stated in Forest Care Homes on the application of the toolkit, and the way in which, given the initial decision to use the toolkit, a departure from it had to be justified. The new decision would be set aside and remitted to the Council for the redetermination of the rate for 2010/11.

If you wish to discuss any of the items raised in this section please contact Carlton Sadler

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NHS standard contracts for 2012/13. The DH has published the NHS Standard Contract for 2012/13 for use by commissioners when commissioning NHS funded acute, ambulance, community and mental health and learning disability services from all types of providers. It brings together the previous four core contracts into a single restructured contract. The NHS Standard Contract for 2012/13 reflects the requirements set out in the 2012/13 NHS operating framework. There is also supporting guidance. National variation documents will be issued to vary the existing standard contracts that expire after 31 March 2012. This contract sits alongside the Care Homes Contract and the High Secure Services contract which were published in 2011/12.

NHS Commissioning Board Special Health Authority: question and answers. This question and answers document attempts to ask and answer some of the more frequently asked questions about the special health authority.

Involving older people in commissioning: more power to their elbow? This report from the Joseph Rowntree Foundation studies older people’s wishes and experiences of commissioning health and personal care services. The study investigates what happens when older people are given the opportunity to shape service commissioning and delivery, and also raises wider questions about the impact of their involvement, particularly whether it can change the nature of local power relations in the long term. It identifies Dorset and Salford as two areas where structures and processes exist which encourage and facilitate the involvement of older people in local decision-making.

If you require further information about any of the items raised in this section please contact David Owens

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Raising a concern with CQC: a quick guide for health and care staff about whistleblowing. This guide has been written for health and care professionals that need to raise a concern about their workplace. It gives advice on speaking out about poor care and what protection you will have from the law if you do.

Remediation report. This report by the Steering Group on Remediation looks at clinical competence and capability issues occurring in doctors no longer in the training grades. The Steering Group found that whilst there was much good practice in managing clinical competence and capability concerns, it was still an area that many employers and contracting bodies found difficult to manage. Providing suitable remediation packages was also challenging and was often difficult and very expensive, and it appeared that ignoring a problem until it became a crisis sometimes seemed to be the easiest solution. The Group has developed a set of principles that should be followed when tackling poor performance; it also considered the factors that will support or undermine how concerns are identified and dealt with through remediation. It has developed some options for the future system and for how the complex issues around funding might be taken forward, identifying a set of practical actions that organisations can take to reduce or prevent the need for intensive remediation or crisis management.

Engaging your staff during periods of change. Engaging staff during a period of major change is challenge for NHS organisations. This quick guide from NHS Employers offers some tips and techniques that may be helpful.

A call to action - One year on - Health visitor implementation progress report. In October 2010, the government set out its vision for the future of health visiting - including a commitment to increase the workforce by 4,200 by 2015, and a new service model for the profession. This report captures progress on these commitments and describes planned, next-stage activities.

Improving the quality of medical training. The GMC is consulting on proposed new arrangements for the recognition and approval of medical trainers in a consultation.

Implementing the Equality Act 2010: interim guidance for the NHS. The Equality Act includes specific deadlines that all public bodies are legally required to meet. NHS Employers has published interim guidance to support NHS organisations with this. The guidance signposts the best advice and answers the most popular questions asked in relation to employer responsibilities.

Bevan Brittan Updates
Can employees claim contractual damages for the manner of their dismissal? The Supreme Court has finally handed down its reserved judgment in the much anticipated case Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Botham (FC) v Ministry of Defence which was heard in June this year.

Update on the employment reforms. On 23 November, Business Secretary Vince Cable gave a speech at the Engineering Employers' Federation in London outlining the government's plans for reform of employment legislation and practices.  This announcement coincided with the publication of the government’s written response to the Resolving Workplace Disputes consultation, containing further details of many of the proposals and "calls for evidence".  Following our article last month which detailed many of these reforms John Moore takes another look at some of the key announcements and analyses what we and the employment market in general, have made of them.

News Round Up . James Gutteridge reports on the latest employment news: how to prepare for the arrival of winter weather; an update on auto-enrolment of pension schemes; and a couple of interesting case updates. 

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

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The quarter, quarter 2 2011/12. David Flory’s report for the second quarter July to September 2011/12 provides a summary of the NHS financial position and performance against the national priorities set out in the NHS Operating Framework 2011/12. The report shows that the NHS has continued to perform strongly against the requirements of the NHS Operating Framework 2011/12 and has made good progress in beginning to make the savings and system transformation required to deliver the quality, innovation, productivity and prevention (QIPP) and reform challenge.

Joining up health and social care - Improving value for money across the interface. At a time when the whole of the public sector must find significant savings, this report from the Audit Commission says that integrated working across health and social care offers opportunities for efficiencies and improvements to services. Without it, there is a risk of duplication and ‘cost-shunting’ where savings made by one organisation or sector create costs for others. And a lack of integrated working means that people are less likely to receive the best care. But the briefing also finds that the NHS and councils have made patchy progress in improving this joint working across health and social care. The briefing offers guidance to local partnerships, setting out a list of questions to consider, and suggestions for interventions that might help. Case studies show how some areas have embraced partnership working and used local data and benchmarking to establish how and where to make improvements. NHS and social care partnerships can benchmark their performance against others by using the tool that accompanies the briefing.

Guidance on implementing the Overseas Visitors Hospital Charging Regulations. The guidance has been updated to advise NHS bodies how, and under what circumstances, they can share data concerning outstanding overseas visitor payments for NHS hospital treatment.

Public bodies and competition law - A guide to the Competition Act 1998. Public bodies must comply with the UK and EU competition law prohibitions on anti-competitive agreements and abuse of a dominant position if and when they engage in 'economic activity', as opposed to carrying out non-economic, wholly social functions or exercising public powers. This guide provides a high level outline of the circumstances in which public bodies' activities will be 'economic activities' subject to the UK and EU competition law.

NHS quality accounts 2010/11 - providing external assurance: findings from auditors' work at NHS trusts and foundation trusts. This briefing summarises findings from appointed auditors' reviews of quality accounts at 91 NHS acute and mental health trusts. It also summarises the Audit Commission's Audit Practice reviews of quality reports at 52 (out of 136) foundation trusts. The aim of this report is to help providers improve their quality accounts and support auditors in reviewing the arrangements that underpin their production.

If you require further information about any of the items raised in this section please contact David Owens

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Foundation Trusts

Achievement of foundation trust status by NHS hospital trusts. This report from the Commons Public Accounts Committee critically examines the responsibility for dealing with the huge challenge of achieving FT status, and what is being done to protect taxpayers and patients when trusts need external help. The Committee finds that creating a national network of hospital trusts which are autonomous and financially viable presents hugely difficult challenges. It remains unclear whether all the problems trusts have highlighted can be resolved. Making all trusts viable will involve reconfiguration of some services, including through mergers. Where changes are proposed, trusts will need to demonstrate how merging organisations will create healthcare benefits to local communities while addressing the root causes of the financial problems that exist. The Committee is particularly alarmed that the healthcare system in London has been allowed to deteriorate despite its problems having been known about for many years. It states that strong leadership is urgently needed if those trusts facing clinical and financial difficulties are to meet the challenge of achieving foundation status.
An additional challenge is the cost of private finance schemes - the Department has identified six trusts that are unviable largely because of their PFI charges. Long term PFI deals reduce the Department's ability to establish a level playing field of financially sustainable, autonomous trusts. In many cases efficiency savings alone will not be enough to make unviable trusts financially sustainable. The Department faces a particular dilemma about how to manage the debt of these hospitals as their long term financial commitments make reconfiguration more difficult.

Board governance assurance framework for aspirant foundation trusts. The DH has published guidance to help aspirant foundation trusts develop strong and sustainable governance. A key part of achieving FT authorisation is passing a rigorous assessment of their board capability and capacity by Monitor, the FT regulator. To support aspiring FTs to meet this competency, the DH has developed a mandatory board governance assurance framework in partnership with existing FTs and other stakeholders. In the past, around half of all NHS trusts whose FT application was deferred during the authorisation process was because of a failure of governance, meaning that there were issues with capacity and capability of the board.
The Board Governance Assurance Framework has two key stages:
  the board governance memorandum (BGM) – a mandatory process where boards self-assess their current capacity and capability, which is supported by appropriate evidence by using the board governance memorandum – submission document and then externally validated by an independent supplier
    the development modules – where boards can opt to gain a deeper level of assurance into the specific areas of quality governance, organisational strategy and values and financial governance.

Quality Assurance Department review of the 2010/11 audits of foundation trusts. The Audit Code for NHS Foundation Trusts makes provision for the review of the work of auditors of foundation trusts. Monitor commissioned the Quality Assurance Department of the Institute of Chartered Accountants to undertake reviews on their behalf of the work of auditors in respect of nine audits of trust accounts for the year or period to 31 March 2011.

Bevan Brittan Updates
Monitor consults further...stakeholders engage! On 17 November 2011 we produced a flyer entitled "Glimpses of the Future? Monitor Reveals Proposed Licensing Regime" which set out that Monitor had started to prepare for its new role, as regulator of NHS healthcare providers, in anticipation of the Health and Social Care Bill (the "Bill") becoming law.

If you require further information about any of the items raised in this section please contact Vincent Buscemi.   

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Good governance for clinical commissioning groups: an introductory guide. This guide to good governance for clinical commissioning groups aims to help them take their first steps towards authorisation.

Building the NHS Trust Development Authority. From April 2013 the NHS Trust Development Authority (NTDA) will provide governance and oversight of NHS trusts, supporting them to NHS foundation trust status. This document explains the purpose of the NTDA as a special health authority, its process, its people and its relationships with other parts of the NHS.

If you require further information about any of the items raised in this section please contact Vincent Buscemi.    

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Healthcare Associated Infection 

Prevention and control of healthcare-associated infections quality improvement guide. NICE, in partnership with the HPA, have developed this quality improvement guide. It offers advice on management or organisational actions to prevent and control healthcare-associated infections (HCAIs) in secondary care settings. The guide is aimed at board members working in (or with) secondary care. It helps build on advice given in the Code of Practice on Preventing and Controlling Infections and elsewhere to improve the quality of care and practice in these areas over and above current standards. Taken together, the quality improvement statements contained in this guide describe excellence in care and practice to prevent and control HCAIs. Examples of evidence and other data to demonstrate progress against each statement are provided.   

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Information Law

Guidance on implementing the Overseas Visitors Hospital Charging Regulations. The guidance has been updated to advise NHS bodies how, and under what circumstances, they can share data concerning outstanding overseas visitor payments for NHS hospital treatment.

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

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Charter for current coroner services. In its response to the May 2011 consultation on "The Draft Charter for the Current Coroner Service", the Ministry of Justice summarises the responses received, including how the consultation process will influence the redrafting of the Charter. It also announces that the final version of the combined guide and charter will be published in 2012.

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

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Mental Health

Bevan Brittan Training
Bevan Brittan’s annual mental health seminars will be taking place on 28th February in Birmingham and 14th March in London. Both sessions will start at 09:30 and finish at 1pm.
The speakers will be:-
 Paul Barber, Consultant in Mental Health Law and former Partner at Bevan Brittan
 Phil Fennell, Professor of Law at Cardiff Law School
 Amy Street, Barrister at 3 Serjeants Inn
 Laura Davidson, Barrister at No 5 Chambers
 Dr Bill Cutter, Consultant in old age psychiatry
 Jo Easterbrook, Partner at Bevan Brittan and Tribunal Judge
 Simon Lindsay, Partner at Bevan Brittan

Topics to be covered will include:-
 Recent mental health caselaw developments,
 Deprivation of liberty and current issues in the DOLS scheme,
 Assessing capacity,
 Managing patients in the community and
 Tribunal practice and procedure.

If you would like to attend please contact Claire Bentley stating which venue you would like to attend. There is no charge for attending but places are limited.

Bevan Brittan Mental Health Extranet. Free resource for Bevan Brittan NHS clients. Bevan Brittan has a wealth of mental health knowledge it would like to share with NHS clients. We have therefore developed an online searchable extranet designed to bring various sources of mental health information and guidance into one place.

Bevan Brittan Mental Health Forum
There is also a forum on the extranet for use by members to share knowledge and information. If you would like information about how to access the  Bevan Brittan Mental Health Extranet  please email Claire Bentley by clicking here. Issues currently being discussed are:-  

 Guidance for staff - Incapacitated patients refusal of treatment following self harm. Several of our members are interested in this topic area. If you would also be interested in Bevan Brittan guidance on this, do add your details to the post thread. 

 Observation policy. Discussion of what happens in practice in relation to the observation and monitoring of patients during the night. In addition, Hannah Taylor has produced a very useful update looking at whether your observation policy will stand up to scrutiny and the minimum requirements of such a policy. 

 When an urgent DOLs authorisation starts. - Does the process for extensions actually provide a safeguard?

Service user experience in adult mental health. Adult mental health services should be improved to provide patient-centred care that tackles the stigma associated with mental illness. The guidance, together with a quality standard, comes on the back of government calls to improve patient experience of using mental health services.

Safeguarding adults at risk of harm: A legal guide for practitioners. This guide was commissioned by the Department of Health in response to requests from practitioners for a comprehensive guide to the legal framework underpinning adult safeguarding work. It aims to equip practitioners with information about how to assist and safeguard people. Knowing about the legal basis is fundamental because the law defines the extent and limits of what can be done to help people and to enable people to keep themselves safe.

Children and Young People’s Mental Health - recent developments. This letter brings together information on a number of recent developments to support delivery of improved mental health outcomes for children and young people.

Building Partnerships, Staying Safe - the health sector contribution to HM Government’s Prevent strategy. These documents provide guidance and a toolkit for both healthcare organisations and frontline healthcare workers working with providing support and interventions for vulnerable individuals.

Board assurance prompt - safeguarding. This briefing is targeted at organisations that have a responsibility for safeguarding adults. It is intended to stimulate debate within NHS Boards, Local Authority Safeguarding Adults Boards and other public service partner boards.

The fourth year of the Independent Mental Capacity Advocacy Service - 2011-2011 annual report. This is the fourth annual report of the Independent Mental Capacity Advocacy Service, which is an innovative statutory service provided by the voluntary sector. It acts as an important safeguard for people who lack capacity.

Managing and supporting mental health at work – disclosure tools for managers. This guide published by MIND and the Chartered Institute of Personnel and Development (CIPD) is designed to help employers ensure that how they manage people supports their mental wellbeing and resilience, and also encourage more employees to talk about any mental health issues they may be facing at an early stage.

All-Party Parliamentary Group on Dementia inquiry into how to improve dementia diagnosis rates in the UK. 2012 Inquiry. The APPG has launched its next inquiry which will focus on improving dementia diagnosis rates across the UK. Currently we know only 43 per cent of people in the UK living with dementia ever receive a formal diagnosis. This varies greatly across England, Wales, Northern Ireland and Scotland, but overall we know little progress has been made towards improving diagnosis rates over the last few years. An inquiry into this area will bring together more evidence and understanding about the current problems there are to improving diagnosis of dementia. It will also find good practice examples where services have been helpful to people with dementia getting an early diagnosis, and ensuring they have proper information and support afterwards, so that these examples can be shared. In this work the APPG on Dementia is seeking evidence from people with dementia and their carers, health and social care providers and practitioners, and key stakeholder organisations and professional bodies.

Report of the national audit of dementia care in general hospitals 2011. This audit has identified a need for significant improvements in hospital ward environments, staff training and the overall approach to care delivery for patients with dementia. Although the majority of wards meet basic safety requirements, it shows that many had not addressed simple measures that could lessen the distress caused to dementia patients by an unfamiliar and confusing hospital environment. It also reveals deficiencies in staff training.

Developing an outcomes-based approach in mental health. The Department of Health commissioned the Mental Health Network to produce a report which would help set out a direction of travel for developing an outcomes-based approach to improving mental health. The report makes a number of recommendations for Government, the NHS Commissioning Board and emerging clinical commissioning groups. This briefing sets out the policy context for outcomes in mental health and summarises the recommendations made in the report, including the need to develop an implementation framework in support of the mental health strategy, 'No health without mental health'.

IAPT accreditation advice. Formal accreditation procedures and standards are the primary means for ensuring the IAPT workforce is capable of delivering NICE approved therapies appropriately and effectively. This advice identifies the relevant professional bodies involved in the accreditation of IAPT approved therapies and summarises their accreditation requirements.

RCN lone working survey 2011. This survey finds that over 60 per cent of nurses working in the community have been subjected to abuse in the past two years. The RCN is calling on employers to do all they can to protect their nursing staff and is urging all lone working nurses to consider the risks and act with caution at all times.

SSJ v RB [2011] EWCA Civ 1608 (CA) . The Court of Appeal has said that "a tribunal cannot rely on the patient's best interests as a ground for ordering conditional discharge on terms that involve a deprivation of liberty. This is more particularly so if the detention would not be for the purpose of any treatment. However, the position is to some degree mitigated by the fact that the Secretary of State has powers of transfer in an appropriate case".

Re RK; RK v BCC [2011] EWCA Civ 1305 (CA). The Court of Appeal has upheld the High Court's decision that the provision of accommodation to a child (of any age) under s.20 of the Children Act 1989 is not capable in principle of ever giving rise to a deprivation of liberty within the terms of Art.5 ECHR. A detailed summary is available in 39 Essex Street Newsletter December.

Re Neary; Hillingdon LBC v Neary [2011] EWHC 3522 (COP) (29 December 2011). The court summarises 5 Court of Protection decisions on costs in an appendix to the judgment and shows how the court has exercised its powers previously. Each application must be considered on its own merit. Departure from the general rule (that each party bear their own costs) is justified on the facts of this case. The approach taken by Hillingdon was unreasonable as a result of its disorganised decision-making, the lack of proper assessment of Steven’s best interests, its uncooperative attitude towards Mr Mark Neary, its delay in referring the matter to the court (thereby increasing costs), and its attempt to defend its actions to the end, both in court and in the media. Costs were ordered to be paid by Hillingdon on the standard basis from the date of issue to the conclusion of the main hearing (December to May). Payment between May and July was spent in co-operative efforts between the parties and did not attract a costs award. There was no order in relation to the costs of the press issues.

 An independent investigation into the care and treatment of service user Ms Z. December 2011. Ms Z stabbed and killed her boyfriend, Mr Y, on 21 September 2007.

People with dementia short changed out of £100 million and must be better protected says Alzheimer's Society. The charity estimates that up to 112,500 (15 per cent) people with dementia have been victims of financial abuse such as cold calling, scam mail, or mis-selling. Its new report 'Short changed: Protecting people with dementia from financial abuse' calls for people with the condition to be better protected. Visit www.alzheimers.org.uk/shortchanged for more information.

Am I really free? Radio 4 programme on assessing capacity and the way that mental disorders can affect capacity. Broadcast on 22 December.

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

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Primary Care

Integrated approach to planning and assurance between DH and the NHS for 2012/13. This guide supports the accountability arrangements that by the end of March 2012, all PCT clusters should have an integrated plan as required in the NHS Operating Framework 2012/13. It includes: the indicative planning timetable; content of the submission; overview of the indicators process; overview of the milestones process; overview of assurance narrative and red, amber, green rating on each PCT cluster plan. SHA cluster submissions on plans for 2012/13 are due in two stages: the first submission due on 27 January 2012, with the final submission due on 5 April 2012.

NHS allocations 2012/13. The Department of Health allocates revenue funding to PCTs on the basis of the relative needs of their populations and in line with pace of change policy. The allocations for 2012/13 have now been published.

Keep it simple? Predicting primary health care costs with measures of morbidity and multimorbidity. This paper from the University of York investigates the relationship between patients’ primary care costs (consultations, tests, drugs) and their age, gender, deprivation and alternative measures of their morbidity and multimorbidity. Such information is required in order to set capitation fees or budgets for general practices to cover their expenditure on providing primary care services. It is also useful to examine whether practices’ expenditure decisions vary equitably with patient characteristics.

NHS Atlas of Variation 2011. This publication highlights the amount each PCT spends on clinical services and links this with the health outcomes that patients see. Consisting of 71 maps, the Atlas will help commissioners learn from one other, consider the appropriateness of a service, and investigate when clinical health outcomes are not reflecting the financial investment that has been made.

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

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The Care Quality Commission: Regulating the quality and safety of health and adult social care. This report finds that the Care Quality Commission had a difficult task in establishing itself and has not so far achieved value for money in regulating the quality and safety of health and adult social care in England.

R (X) v General Medical Council [2011] EWHC 3271 (Admin) (Admin Ct). The court granted X's application for judicial review of the GMC's Fitness to Practise Panel's decision that X's application for voluntary erasure from the medical register should be heard in public. X had applied for voluntary erasure on the basis that he was suffering from severe depression and his condition was not likely to be resolved in the near future. The court held that although there was a public interest in the public knowing that there was a legitimate reason for the grant of a voluntary erasure application, it did not follow that this public interest required the specific nature of the claimant's illness to be disclosed. The court quashed that part of the Panel's decision that ordered that there should be reference to X's "severe depression not likely to be resolved in the near future" in public, and remitted the issue of whether any reference to X's health condition and prognosis should be made in public to the same Panel for consideration.

Bevan Brittan Updates
Monitor consults further...stakeholders engage!  On 17 November 2011 we produced a flyer entitled "Glimpses of the Future? Monitor Reveals Proposed Licensing Regime" which set out that Monitor had started to prepare for its new role, as regulator of NHS healthcare providers, in anticipation of the Health and Social Care Bill (the "Bill") becoming law.

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

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Working together to saves lives: The Organ Donation Taskforce Implementation Programme’s Final Report, 2011. The Organ Donation Taskforce was established in December 2006 to identify barriers to organ donation and to recommend what action should be taken to increase the numbers of organ donation. The Taskforce made 14 recommendations in their first report Organs for Transplants published in January 2008. This final report of the Taskforce’s Programme Delivery Board records activity up to March 2011 in achieving the 14 recommendations in the 2008 report. It also records progress made towards the Taskforce’s challenge to increase organ donation by at least 50% by 2013.

Organ donation for transplantation: improving donor identification and consent rates for deceased organ donation. NICE has published a new guideline on improving donor identification and consent rates for deceased organ donation. NICE recommends that organ donation should be considered as a usual part of end- of-life care planning, and that each hospital should have a policy and protocol, consistent with these recommendations, for identifying potential donors and managing the consent process. The guideline also recommends that in all cases those close to the patient should be approached in a professional, compassionate and caring manner and be given sufficient time to consider the information they have been offered.

The future of the London Ambulance Service: A strategic review. This report from the London Assembly's Health and Public Services Committee discusses how the London Ambulance Service (LAS) can cope with growing demand at a time of budget cuts. The Committee finds that the LAS should look at ways to work more closely with the capital’s police, fire and transport organisations in order to find efficiencies, while remaining firmly embedded in the NHS.

Raising a concern with CQC: a quick guide for health and care staff about whistleblowing. This guide has been written for health and care professionals that need to raise a concern about their workplace. It gives advice on speaking out about poor care and what protection you will have from the law if you do.

NHS outcomes framework indicators - Autumn 2011. The NHS outcomes framework indicators form part of the NHS Outcomes Framework, which is intended to provide national level accountability for the outcomes the NHS delivers, and drive transparency, quality improvement and outcome measurement throughout the NHS.
See also the Technical guidance for the 2012/13 Operating Framework which lists all the indicators against which the NHS will be accountable nationally during 2012/13. It provides a detailed definition of each indicator, including how the indicator is measured, monitored, any planning requirements and how performance will be judged.

The ethics of sustainable health and social care: towards a framework for decision-making. This report examines the ethical challenges potentially posed by factoring environmental outcomes into different levels of health and social care decision-making, including resource allocation and treatments. The environmental and climate change ethics literatures are considered in conjunction with health and social care ethical principles in order to inform the development of a new sustainable health and social care ethical framework.

New arrangements for provision of Health Care Chaplaincy Appointment Advisers. This letter explains about the new arrangements that will come into effect from 3 January 2012, for advising on the appointment of Health Care Chaplains in England.

Improving outcomes: a strategy for cancer annual report 2011. This first annual report highlights the progress on implementation of the strategy and on improving cancer outcomes. It outlines the progress made this year in developing new structures which will deliver the improved outcomes, and more immediate achievements. The report notes that there are still many challenges in terms of achieving the quality of cancer services and outcomes that the strategy set out to deliver.

NHS Outcomes Framework 2012/13. Sets out the changes that have been made to the indicators in the NHS Outcomes Framework. The Framework is designed to help NHS organisations to start to think through what to focus on outcomes means in practical terms.
See also the At a Glance chart of the overarching indicators and improvement areas.

Improving health and health care in London - Who will take the lead? This paper reviews the progress made in improving health and health care in London in recent years and analyses the financial and service challenges facing the NHS now and in the future. It argues that although some progress has been made in improving care following Lord Darzi’s review of London’s health services published in 2007, much remains to be done and London is at risk of operating within a strategic vacuum following the abolition of London's SHAs by April 2013. This report suggests there needs to be much greater clarity of roles and responsibilities within the reformed structure to avoid ambiguity and confusion.

Palliative care funding pilots 2012-14 - Expressions of interest. The DH is seeking to set up a number of pilot sites to gather the information needed to inform decisions on the creation of a new funding system for palliative care, for adults and children, and to consider the proposals of the independent Palliative Care Funding Review Report. The report, published in July, set out a series of recommendations designed to create a fair and transparent funding system for palliative care, which delivers better outcomes for patients and provides better value for the NHS. It recommended that a number of pilots be set up to collect data and refine its proposals due to the lack of good quality data currently available. The pilot programme will begin in April 2012. The deadline for submissions of interest is 31 January 2012, and successful pilots will be notified in March 2012.

 The Commission on Assisted Dying. This report by Demos concludes that the current legal status of assisted suicide is inadequate and incoherent. It finds that while the current legal regime can be distressing for the people affected and their families, it is also unclear for health and social care staff, and lays a burden on police and prosecutors, which could be eased by a new statutory framework. A proposed legal framework for assisted dying is laid out in detail, including strict criteria to define who might be eligible to receive assistance and robust safeguards to prevent abuse of any new law.

PFI reform: Call for evidence. On 15 November 2011 the Chancellor announced the Government’s intention to reform the Private Finance Initiative (PFI). The Government intends to conduct a broad based engagement process and is now inviting all interested parties to respond to a call for evidence on the reform of PFI and to bring forward proposals for a new approach to using the private sector in the delivery of public assets and services. The deadline for responses is 10 February 2012.

NHS whistle-blowing helpline to be extended to social care staff. Announces that the whistle-blowing helpline for NHS staff is being extended to staff and employers in the social care sector from 1 January. There is also a new helpline number: 08000 724 725.

OFT provisionally decides to refer private healthcare market to Competition Commission. The OFT has announced that it has provisionally decided to refer the market for privately funded healthcare services in the UK to the Competition Commission for further investigation. In its market study, the OFT has provisionally found a number of features that prevent, restrict or distort competition in the £5bn UK private healthcare market. "Private healthcare" includes the provision by privately funded public providers (for example, by Private Patient Units of NHS Trusts) as well as private providers. The OFT considers that the statutory test for reference in s.131 of the Enterprise Act 2002 is met, namely that there are reasonable grounds for suspecting that there are features of this market that prevent, restrict or distort competition in the UK. Comments on the market study and the proposed reference should be submitted by 30 January 2012.

Creation of the Health Research Authority. Announces that the Health Research Authority (HRA) launched on 1 December 2011 as a Special Health Authority, completing one of the key commitments made by the Government in the Plan for Growth towards rationalising and improving health research regulation. The HRA's central purpose is to protect and promote the interests of patients and the public in health research. It will cooperate with others to combine and streamline the current approval system and promote consistent, proportionate standards for compliance and inspection. In doing so it will reduce the regulatory burden on research-active businesses, universities and the NHS, and improve the efficiency and robustness of decisions about research projects. In its initial form, its core is the National Research Ethics Service; it has also taken on the functions that were previously the responsibility of the National Patient Safety Agency. In due course, it will perform the Secretary of State’s function of approving the processing of patient information for medical research.

New EU procurement thresholds from 1 January 2012. The new thresholds are: Works £4,348,350 (€5,000,000); Services/Supplies for central government (inc NHS) £113,057 (€130,000); Services/Supplies for other bodies £173,934 (€200,000).

Bevan Brittan Updates
Procurement Update - January 2012 . This update contains brief details of recent key developments relevant to those involved in procurement work.

Proposals for new Procurement Directives. On 20 December 2011 the European Commission published three new draft Procurement Directives which will replace the existing public sector and utilities Directives and will introduce a new Directive covering the procurement of works and service concessions. This article highlights ten key areas of change raised by the draft public sector Directive. 

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

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