Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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With the final report on the Mid Staffordshire Trust due out on 6 February, it is increasingly important for commissioners to understand the implications generally of this type of issue for them and how their role can assist in early detection and dealing with problems which can arise.
With the final report on the Mid Staffordshire Trust due out on 6 February, it is increasingly important for commissioners to understand the implications generally of this type of issue for them and how their role can assist in early detection and dealing with problems which can arise. It is not good enough merely for the commissioners to say “well CQC have the regulatory role, our role is merely about payment and volume of activity”. Similar issues have arisen in relation to the commissioner role with regard to Winterbourne View and the criticisms made of commissioners in that context, although there are different issues which arise where one is dealing with single placements of vulnerable people out of area and the need for commissioners to co-ordinate information and, in particular, concerns between them in such cases.
Where commissioners are dealing with a major local provider, there are nonetheless some clear lessons that can be learned, even at this stage. Some aspects of this are already feeding into the new Standard Contract and, in particular, the obligation on providers known as the “duty of candour”.
The first issue is ensuring that the commissioners are adequately engaged in monitoring the delivery of service under the contract, so as to ensure that they are meeting the duty on all commissioners to exercise functions with a view to securing continuous improvement in the quality of services provided to individuals. The initial challenge is to ensure there is appropriate handover over intelligence about providers into the new commissioning structures and that issues do not get ‘lost in transition’.
From then on, CCGs and others have a positive duty to ensure that they are actively using the powers in contracts to obtain the relevant information as to the quality of services and considering that seriously, rather than just filing it and forgetting. This will involve consideration of benchmarking against other providers and also triangulation to information available from other routes. This may involve engagement with patient groups, and through the Health and Wellbeing Board. The recently announced Quality Surveillance Group process will also afford enhanced opportunities for information sharing, including with Healthwatch, CQC, Monitor, the National Health Service Trust Development Authority, and representatives from LETBs.
Where serious incidents are occurring, the commissioners need to know that the provider is taking them seriously. Just because there is a serious untoward incident is not necessarily evidence that there is a major problem, but if it is not addressed promptly, effectively and with adequate involvement at Board level that may be evidence of a more systemic problem. Similarly, levels of complaints should be monitored and due regard had to the size of the organisation in terms of reviewing comparative data, but also how far any increase in complaints or the reporting of incidents or near misses, reflects an improvement in the culture of reporting within the organisation. Commissioners should be positively engaging with major providers and should consider attending Board meetings so as to observe how quality issues are treated by the Board of the provider.
We would, however, add a word of warning about the difficulty of dealing with complaints and concerns raised by individuals who may appear to have an axe to grind or who have become obsessional about a particular issue. Both commissioners and providers need to be careful that such concerns are not merely dismissed as another letter from “X” but are considered to the extent that is appropriate. Both at provider board level and by commissioners, there does need to be an appropriate level of challenge to responses from within the providers that there is nothing to worry about. Where appropriate, it may be necessary if there are persistent concerns, to seek an external review of the organisation’s Policy of Service.
An important part of the commissioners’ role is ensuring that identified problems are properly addressed, both by the provider and externally. You may need to consider whether it is appropriate merely to seek to address the issues informally but if the matters are at all serious the NHS Standard Form Contracts have a mechanism for dealing with service issues and an escalation process. It is sometimes a difficult balance between a ‘soft approach’ or the issue of Service Queries and following that up with a contract management meeting, leading where appropriate to remedial action plan.
A particular concern here is where the provider does not appear to be addressing the issues adequately or taking them sufficiently seriously. It may be necessary for the commissioners to escalate matters to ensure that the Board is aware of the issue and to involve other stakeholders through the Quality Surveillance Groups. Potential remedies involve withholding of payment under the contract or suspending or removing a service from the provider. The latter options, whilst they may be necessary, need to be regarded as steps of last resort, if only because of the potential disruption to patients. It may well be more practical in less serious cases to ensure that referrers are aware that there is a potential difficulty and to seek to agree diversion of referrals where appropriate.
These can be difficult issues and it is important not to let a wish to avoid scandal, or indeed a wish to maintain a particular provider, to override safety concerns which should be at the heart of NHS care.
Once the report is issued all colleagues will need to reflect on what its findings and recommendations mean for them. To help consideration of this, Bevan Brittan is hosting a series of seminars to consider the implications following its anticipated publication. The scheduled dates for these seminars are as follows:
Bristol: 20 February 2013Birmingham: 26 February 2013 London: 1 March 2013Please click on the above dates and locations to view further details and to register for the seminars.