Health and Social Care Update - September 2013

Legal intelligence for professionals in health and social care

Bevan Brittan provides high quality, comprehensive advice to the NHS and independent healthcare sector. This Update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in health and social care work, both in the NHS and independent sector 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 and Data Sharing
Children	Inquests
Clinical Risk/Health and Safety	Mental Health
Commissioning	Primary Care
Employment/HR	Public Health
Finance	Regulation
Foundation Trusts	General

Care

Publications/Guidance
Personal health budgets: challenges for commissioners and policy-makers. From 2014, personal health budgets will be offered to people in receipt of continuing care. This report from the Nuffield Trust looks at what they are, how they will work in practice, and the issues they raise.

Frequently asked questions on integrated care. Monitor has published these FAQs to assist commissioners, providers and health and wellbeing boards to comply with their obligations relating to integrated care and to explain the relationship between these obligations and the other rules that Monitor enforces.

Why the Francis Inquiry matters to social care providers. This two-part briefing from the Voluntary Organisations Disability Group aims to explain why the Francis Inquiry and the resulting reforms are important to social care providers. Part 1 introduces the background to the inquiry and the evolving policy response, while Part 2 considers some of the implications of the inquiry and other recent reviews for social care providers. It also recommends a number of areas for the attention of chief executives, directors and chairs of boards.

If you wish to discuss any queries you may have around care please contact Stuart Marchant.

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Children

Publications/guidance
Annual report 2012: national neonatal audit programme. This audit measures neonatal units against a series of standards in order to assess if babies receive the right level and consistency of care across England and Wales. This year's report finds that more than three quarters (79%) of the parents of babies in neonatal units are seen by senior healthcare professionals within 24 hours of admission and the majority of parents report positive experiences, but there is room for improvement in areas such as breastfeeding rates and levels of hypothermia in newborns.

Commissioning children’s palliative care: A guide for Clinical Commissioning Groups. This is a concise document for all CCGs, describing: the population of children who need palliative care; the services and professionals who provide it; and how children’s palliative should be commissioned within the context of the five stages of commissioning set out by the NHS Institute for Innovation and Improvement. it is produced by Together for Short Lives, a charity for children with life-threatening and life-limiting illnesses, which wants to see children’s palliative care commissioned effectively so that children and families get the support they need. This means clarity about what is commissioned nationally and locally, and fair and transparent commissioning from all providers in the statutory and voluntary sectors, including children’s hospices.

Bevan Brittan Events
Safeguarding – Meeting the Challenge. 24 September 2013 : 10.00am - 3.30pm (Registration at 9.30am).  Bevan Brittan’s health and social care team are delighted to invite you to our one day seminar, “Safeguarding - Meeting the Challenge”. This will be held on 24th September 2013, and will be held at our Bristol office.

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

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Clinical Risk/Health and Safety

Publications/Guidance
Emergency care: an accident waiting to happen? This briefing by the NHS Confederation discusses the findings of a poll of senior health service leaders which aimed to identify six major sources of local A&E pressures and also provide an up-to-date prediction of the winter pressures on A&E services.

Safety, quality, trust - briefing for council scrutiny about the Francis Report. This briefing is about how council scrutiny can support improvements in quality and patient experience and help the local NHS put patients first. Robert Francis had clear messages about council scrutiny and this briefing suggests some first steps for council scrutiny to consider in responding and improving scrutiny practice and outcomes in relation to holding the NHS to account.

IHI Global Trigger Tool for Measuring Adverse Events (Second Edition). This tool provides an easy-to-use method for accurately identifying adverse events and measuring the rate of adverse events over time. It includes a retrospective review of a random sample of patient records using "triggers" (or clues) to identify possible adverse events. This paper provides comprehensive information on the development and methodology of the tool, with step-by-step instructions for using the tool to accurately identify adverse events and measure the rate of adverse events over time.

Annual report 2012: national neonatal audit programme. This audit measures neonatal units against a series of standards in order to assess if babies receive the right level and consistency of care across England and Wales. This year's report finds that more than three quarters (79%) of the parents of babies in neonatal units are seen by senior healthcare professionals within 24 hours of admission and the majority of parents report positive experiences, but there is room for improvement in areas such as breastfeeding rates and levels of hypothermia in newborns.

Consultations
The management of HIV-infected healthcare workers – Government response. The Chief Medical Officer Professor Dame Sally Davies and government ministers have agreed to lift the current restrictions on HIV positive healthcare workers working on exposure prone procedures (EPPs), provided they are on effective combination antiretroviral drug therapy, with a very low or undetectable viral load, and are regularly monitored by both their treating and occupational health physicians. The Department of Health (DH) has now requested Public Health England (PHE) to produce guidance for the NHS to implement the change in policy, and to establish a centralised database to monitor healthcare workers with HIV.

News
HSE prosecutes Mid Staffordshire NHS Foundation Trust. The Health and Safety Executive (HSE) is to prosecute Mid Staffordshire NHS Foundation Trust over the death of a patient, on 11 April 2007, of diabetic ketoacidosis. The immediate cause of death was the failure to administer insulin to a known diabetic patient. The Trust is due to appear before Stafford Magistrates' Court on 9 October 2013 for the first hearing in this case.

If you wish to discuss any clinical risk or health and safety issues please contact Joanna Lloyd, Stuart Marchant or Julie Chappell.

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Commissioning

Publications/Guidance
NHS terms and conditions for supply of goods and provision of services. The DH has published updated versions of the NHS terms and conditions for supply of goods and provision of services. These are intended for use by NHS bodies procuring goods and services from commercial organisations, not for the procurement of clinical services from other NHS bodies or independent sector providers. There is also guidance. The DH will also be publishing terms and conditions to use to establish framework agreements for the supply of goods and services.

Commissioning children’s palliative care: A guide for Clinical Commissioning Groups. This is a concise document for all CCGs, describing: the population of children who need palliative care; the services and professionals who provide it; and how children’s palliative should be commissioned within the context of the five stages of commissioning set out by the NHS Institute for Innovation and Improvement. it is produced by Together for Short Lives, a charity for children with life-threatening and life-limiting illnesses, which wants to see children’s palliative care commissioned effectively so that children and families get the support they need. This means clarity about what is commissioned nationally and locally, and fair and transparent commissioning from all providers in the statutory and voluntary sectors, including children’s hospices.

Enhanced services 2013/14. Outlines the four new enhanced services that have been developed by the NHS Commissioning Board as part of the 2013/14 GMS contract changes, and are offered to practices on a preferred basis. These are:
 the identification and management of patients identified as seriously ill or at risk of emergency hospital admission;
 a proactive approach to the timely assessment of patients who may be at risk of dementia;
 preparatory work to support the subsequent introduction of remote care monitoring for patients; and
 enabling patients to utilise electronic communications for appointment booking and obtaining repeat prescriptions. 

Personal health budgets: challenges for commissioners and policy-makers. From 2014, personal health budgets will be offered to people in receipt of continuing care. This report from the Nuffield Trust looks at what they are, how they will work in practice, and the issues they raise.

News
Consultants unhappy with level of input into CCGs, finds BMA survey. A BMA survey has found that the majority of consultants are dissatisfied with the level of secondary care doctor input on GP-led commissioning groups. The results reveal that 90% of consultants feel secondary care involvement is necessary to achieve effective commissioning, but 77% are not satisfied with the current degree of input. More worryingly, 10% of respondents were aware of CCGs in their area which had no secondary care clinician input. Most respondents said they were not confident their CCGs had adequate measures in place to manage potential conflicts of interest for secondary care doctors on the board.

If you wish to discuss the issue of commissioning please contact David Owens.

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Employment/HR

Publications/Guidance
Guidance on the appointment and employment of locum doctors. This updated guidance is intended to summarise the current standards governing the appointment and use of locum doctors. The guidance, originally published in June 2012, now includes updated information around NHS employment checks standards, tax assurance of off-payroll workers, language competency and revalidation.

Consultations
Language controls for doctors – Proposed changes to the Medical Act 1983. Proposals to increase the standard of English language required for doctors to practise. The proposals intend to give the General Medical Council (GMC) further powers to request evidence of a doctor's understanding of the English language. The proposals are intended to apply to all doctors regardless of their years in practice. The consultation closes on 2 December 2013. 

If you require further information about any of the items raised in this section please contact Julian Hoskins or James Gutteridge.

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Finance

Publications/Guidance
Personal Independence Payment (PIP) toolkit for partners. As part of wider welfare reform, Personal Independence Payment (PIP) has replaced Disability Living Allowance (DLA) for people who were aged 16-64 on 8 April 2013 or reach age 16 after that date. This is initially for new claims only. This toolkit is to provide clear information to individuals and organisations that support PIP and DLA claimants. It equips them to offer up-to-date advice on PIP or direct claimants to other sources of help. The toolkit could also be adapted into training for their people.
See also:
 What Personal Independence Payment means for the health sector
 Personal Independence Payment (PIP): a quick guide for health professions 
 Personal Independence Payment: Information for the health professions to use in their own communications: sets out text that health professionals can use in their own communications, including a section on how the change from DLA to PIP affects the health professions.

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

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Foundation Trusts

Bevan Brittan Updates
Updated guidance for NHS Foundation Trust governors. Monitor, in association with (among others) the Care Quality Commission and the Foundation Trust Governors' Association, has recently published an updated reference guide for NHS foundation trust governors in relation to their statutory duties.

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

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Information and Data Sharing

News
£1 billion to help A&Es and NHS staff access medical records in hi-tech hospital revolution. Announces new funding to help deliver the Government’s commitment to allow everyone to book GP appointments and order repeat prescriptions online by March 2015, as well as give everyone who wants it online access to their GP record. One of the key things the money will be spent on will be systems which allow hospitals, GP surgeries and out of hours doctors to share access to patients’ electronic records.

Bevan Brittan Updates
New FOI obligations on public bodies when providing datasets. Public bodies are under new obligations in respect of the way that they provide information that forms part of a 'dataset', following changes to the Freedom of Information Act 2000 (FOIA) which came into force on 1 September 2013. Where an applicant makes a request to a public body for information which is, or forms part of, a dataset and also expresses a preference for communication of that information in an electronic form, the new provisions require public bodies, so far as reasonably practicable, to provide information in an electronic form which is capable of reuse.

If you wish to discuss the issue of information and data sharing generally please contact Jane Bennett.

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Inquests

Bevan Brittan Events
Annual Inquest Update 10 October 2013 : 10am – 12.30pm (Registration from 9:30am). Location: Bevan Brittan, Fleet Place House, 2 Fleet Place, Holborn Viaduct, London, EC4M 7RF. Bevan Brittan’s Annual Inquest Update will consider the important changes in coronial law over the past year, legislative and case law. We will review the key provisions of the Coroners and Justice Act 2009, its associated Rules and Regulations and their impact on Coronial practice since the new law came into force on the 25 July 2013. We will discuss the impact of the new legislation and the Francis report on healthcare inquests. We will also explore recent key cases together with consideration of how existing case law will be interpreted in light of the new legislation framework. Finally, we will look at the Reports to prevent future deaths/ former Rule 43 Reports that have been made over the past 12 months, particularly in relation to healthcare organisations.

If you wish to discuss the issue of inquests more generally please contact Joanna Lloyd.

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Mental Health

Bevan Brittan Mental Health Extranet. - This is a 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.

If you would like information about how to access the Bevan Brittan Mental Health Extranet please email Claire Bentley.

Current topics being discussed are:-
 Oh No! The MHA/MCA Interface Revisited . Key findings and practical impact of AM –v- South London & Maudsley NHS FT and SoS for Health [2013] UKUT 0365 (AAC).
 Practical Guidance on S.117
 What's eating you? - Issues of interest to MHA colleagues

Bevan Brittan Training - If you would like to know about our free lunch time training sessions just ask Claire Bentley. You can attend in our London, Bristol or Birmingham office.

Publications/Guidance
Statement of Government policy on adult safeguarding. This document provides an update on the Government’s policy on safeguarding adults vulnerable to abuse and neglect. It includes a statement of principles that Local Authority Social Services and housing, health, the police and other agencies should use when developing and assessing the effectiveness of their local safeguarding arrangements. It also describes, in broad terms, the outcomes for adult safeguarding for both individuals and organisations.

Black and minority ethnic (BME) communities, mental health and criminal justice. This briefing argues that community groups are key to engaging BME groups that are disproportionately represented both in mental health care and in the criminal justice system. It discusses examples of some services making excellent progress in this area but argues that there is a lot of room for other services and commissioners to build on such examples of good practice.

Autism: the management and support of children and young people on the autism spectrum. The guideline is the final part of a series of three. NICE has already published recommendations on diagnosing autism in children and diagnosing and managing the condition in adults. This guideline aims to ensure that children and young people with possible autism, as well as their parents or carers, get the appropriate care and support.

Making recovery a reality in your community: a briefing for commissioners of mental health, drug and alcohol services. This briefing urges commissioners to tackle the poorly integrated support received by those with overlapping needs. It identifies new commissioning arrangements in public health and the NHS as an opportunity to put recovery at the heart of commissioning to build better lives for people with multiple needs. It argues that by focusing on what matters most to people's lives – a home, a job, family and friends – services can enable people with multiple needs to build better lives on their own terms.

Post-legislative scrutiny of the Mental Health Act 2007. This report on the committee's post-legislative assessment of the Mental Health Act 2007 makes recommendations on areas including: readmissions data; detention in place of voluntary admissions; achieving ‘parity of esteem’ for patients needing mental and physical healthcare; independent mental health advocates; the responsibilities of clinicians; and the commissioning and funding of services.

Cases
A Local Authority v WMA [2013] EWHC 2580 (COP). WMA suffered from atypical autism and a pervasive development disorder. The local authority sought orders for WMA's move into supported living accommodation as they belioved that the mother  was unable to care for WMA properly. The Court of Protection made the orders and  found that WMA lacked capacity and that there was no doubt that it was in WMA's best interests to move. It also made further orders for his deprivation of liberty.

A NHS Trust v Dr A [2013] EWHC 2442 (COP).  The Trust sought declaratory relief that: (i) the patient lacked capacity to litigate, and to make decisions in respect of his nutrition and hydration; and (ii) it was lawful for the NHS Trust to administer artificial nutrition and hydration. The Court of Protection held that the patient lacked capacity, and that the balance came down in favour of making an order permitting the forcible feeding by artificial nutrition and hydration. Further, the court had the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that included the provision for the deprivation of his liberty.

News
Patient wins fight against smoking ban at Carstairs. Charles McCann, a patient at high-security psychiatric hospital Carstairs, has won a court ruling stating that a decision to bring in a blanket ban on smoking breached his human rights. However, the judge rejected Mr McCann's claim for £3,000 in compensation, stating that he must have saved approximately £8,000 on the cost of cigarettes since the ban came into force at the hospital.

Extending the street triage scheme: New patrols with nurses and the police. The Care and Support Minister Norman Lamb has announced that five new police forces have been selected to pilot a scheme aimed at improving the way people with mental health problems are treated during emergencies. The street triage scheme sees mental health nurses accompany officers to incidents where police believe people need immediate mental health support. The aim is to ensure that people get the medical attention they need as quickly as possible. The police forces are: Metropolitan Police; British Transport Police; West Yorkshire Police; West Midlands Police; and Thames Valley Police.

NICE to consider US approach to treating depression. NICE is to consider the US approach to treating people with depression, after latest research found that the treatment model could be successfully replicated in the UK.

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

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Primary Care

Consultations
Faculty of Medical Leadership and Management (FMLM) GP strategy consultation. This consultation is aimed at GPs in various roles and aims to identify major challenges and frustrations, as well as the most relevant services, tools and resources in enabling GPs to meet these challenges. It is also open to non-GPs in other areas of community and secondary care, and invites their views on what leadership and management services, resources and networking opportunities they need to improve and strengthen working relationships between themselves and GPs. The consultation closes in October 2013.

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

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Public Health

Publications/Guidance
Health & Wellbeing Boards: Orchestrating the possible for integrated care. This guide from the Office for Public Management looks at the challenges faced by HWBs. With record cuts in local authority budgets, increasing demands due to an ageing population, the restructuring of the NHS, and a challenging public health agenda, the pressure is on for HWBs to achieve more for less, to orchestrate system change and to bring about integrated care. The guide is based on OPM's experience of working with HWBs and answers the key questions that they need to address make sure that they reach their full potential.

Directors of Public Health. Following PHE's letter to local authorities on its role in the appointment of Directors of Public Health, it has now published a list of the DPHs appointed in each authority.

Reducing health inequalities: the challenge of public health. This think piece suggests that a solution to tackling inequalities in public health lies with creating co-produced services which utilise the assets within people. It draws from findings of the People Powered Health project, as well as horizon scans from around the world to explore the capacity within people and communities to help themselves and each other.

Management of public health incidents: Guidance on the roles and responsibilities of NHS led Incident Management Teams – October 2011: Updated July 2013. A Scottish Government publication provides guidance for the NHS in preparing for, and managing, public health incidents in collaboration with partners, especially the local authorities.

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

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Regulation

Publications/Guidance
Professional standards for hospital pharmacy services: One year on – sharing experience from the development sites. This report from the Royal Pharmaceutical Society outlines the experiences of 35 hospital sites across the UK which have implemented the RPS Professional Standards for Hospital Pharmacy over the past year. The standards are aimed at pharmacy services delivered by acute, mental health, private and community service providers. 

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

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General

Publications/Guidance
Choosing a model to predict hospital admission: an observational study of new variants of predictive models for case finding. This study aimed to test the performance of new variants of models to identify people at risk of an emergency hospital admission. It compared the impact of using alternative data sources (hospital inpatient, A&E, outpatient and GP electronic medical records; the effects of local calibration on the performance of the models; and the choice of population denominators. It found that the addition of more detailed data sets led to moderate improvement in the number of patients identified; the use of general practitioner registry data for the denominator proved to be of significant importance; and that models calibrated to local data sets did not show consistent improvement over models built on pooled data.

Friends and family test resources. This set of online resources aims to support healthcare staff in using results from the friends and family test. The resources include accessible, impartial guidance and interactive calculators to help professionals to understand how to use and interpret data.

ILPA response to the Department of Health consultation: Sustaining services, ensuring fairness: A consultation on migrant access and their financial contribution to NHS provision in England: July 2013. In its response to the DH consultation paper on migrant access and their financial contribution to NHS provision in England, the Immigration Law Practitioners' Association (ILPA) discusses whether access to free NHS services for non-European Economic Area migrants should be based on whether they have permanent residence in the UK; the most effective means of ensuring temporary migrants make a financial contribution to the health service; and the levels at which a migrant health levy should be set.

ILPA response to the Home Office consultation Controlling Immigration - Regulating Migrant Access to Health Services in the UK. In its response to the Home Office consultation paper on regulating migrant access to health services in the UK, the Immigration Law Practitioners' Association (ILPA) discusses: whether access to free NHS services for non-European Economic Area migrants should be based on whether they have permanent residence in the UK; the most effective means of ensuring temporary migrants make a financial contribution to public health services; and whether the requirement to hold health insurance should be a mandatory condition of entry to the UK.

Private healthcare market investigation. Many private hospitals face little competition in local areas across the UK, leading to higher private medical insurance premiums and charges for private patients, the Competition Commission (CC) has found. In its provisional findings on privately-funded healthcare services, the CC has also pinpointed incentive schemes, which encourage consultants to choose particular private providers for diagnosis and treatment, and the lack of available information on the performance of hospitals and consultants as further restrictions on competition. The CC has also published a Notice of Possible Remedies for consultation on measures which could improve competition, including: requiring operators to sell hospitals in areas where they derive significant market power from the ownership of local clusters; a ban on some incentive schemes; prevention of ‘tying or bundling’ when an operator might respond to a loss of business in one area by raising prices nationally; possible entry enhancing measures; and the provision of better information on prices and quality for patients. The Notice of Provisional Findings report and Notice of Possible Remedies are now available on the private healthcare market home page along with other information relating to the investigation. The redacted full provisional findings report will be published shortly. The CC is required to publish its final report by 3 April 2014 – the inquiry timetable sets out the remaining stages for the investigation. Any interested party is invited to respond to the provisional findings report and notice of possible remedies in writing by 20 September 2013.

Themis Practice Briefing. This briefing is aimed at independent domestic violence advisers working within a hospital setting. It has been created in response to emerging data from CAADA’s Themis project, which highlights some particular characteristics of the client group and areas to consider in relation to practice.

News
Hunt - NHS must fundamentally change to solve A&E problems. The Health Secretary has announced the allocation of £250m to support NHS A&E departments in 53 Trusts in the short-term this winter.

Local Clinical Research Network hosts announced by the NIHR. Announces that the National Institute for Health Research (NIHR) Local Clinical Research Network will distribute £280m of NIHR funding per year to hospitals and surgeries across England to pay for research nurses, scans, x-rays and other clinical research costs. The Network will help to increase the opportunities for patients to take part in clinical research, and will be responsible for making sure that studies are carried out efficiently. It also supports the government’s strategy for UK Life Sciences by improving the environment for life-sciences research in the NHS.

Leadership alliance formed to respond to the independent review of the Liverpool Care Pathway. Announces that a coalition of regulatory and professional bodies, the Leadership Alliance for the Care of Dying People (LACDP), is being set up to lead the way in creating and delivering the knowledge base, the education, training and skills and the long-term commitment needed to make high quality care for dying patients a reality, not just an ambition. The LACDP is being established in response to the independent review of the use of the Liverpool Care Pathway. It will engage extensively with both professionals involved in caring for dying people as well as individuals themselves and their families and other carers to gather views and ideas on good practice in caring for someone in the last days and hours of life.

The Crown Prosecution Service (CPS) has decided it would not be in the public interest to prosecute two doctors in relation to alleged attempts to commit abortions on the grounds of foetal gender. The decisions result from an investigation co-ordinated by the Metropolitan Police Service following an undercover operation by a newspaper. The CPS says there is insufficient evidence to prosecute four medical professionals in relation to this matter.

NHS organisations received more than 162,000 written complaints during 2012/13, the equivalent of over 3,000 complaints a week, according to figures released by the Health and Social Care Information Centre. This annual collection is a count of written complaints made by or on behalf of patients, received between 1 April 2012 and 31 March 2013 and also includes experimental information on upheld complaints. 

Department of Health invests additional £30 million into cancer treatment. Announces that the DH is to buy 20 new radiotherapy machines that are capable of delivering both standard radiotherapy and Intensity Modulated Radiation Therapy (IMRT). NHS organisations will need to put requests to NHS Supply Chain to purchase the machines, at the discounted rate.

Bevan Brittan Events
Safeguarding – Meeting the Challenge. 24 September 2013 : 10.00am - 3.30pm (Registration at 9.30am). Bevan Brittan’s health and social care team are delighted to invite you to our one day seminar, “Safeguarding - Meeting the Challenge”. This will be held on 24th September 2013, and will be held at our Bristol office.

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

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