Bevan Brittan Health and Social Care Update - June 2014

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.


Claire Bentley

Claire Bentley


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 Mental Health
Clinical Risk/Health and Safety Primary Care
Commissioning Procurement
Employment/HR Public Health
Finance  Regulation
Foundation Trusts General
Information Sharing


Focus on Enforcement (FoE) Review of Adult Care Homes – Care Quality Commission and Department of Health response. Sets out CQC's and DH's response to the DBIS FoE Review of the Adult Care Homes Sector. This review identified a number of key findings about the impact of regulation on adult care home providers, and highlighted a number of concerns around CQC’s regulatory model and its ability to assess effectively and report on the quality of care people receive. The response gives details of a number of commitments from the CQC to improve regulatory enforcement in partnership with the adult care sector, such as improving the co-ordination of inspection and monitoring visits, and new commissioning standards to help local authorities manage the commissioning of care places. It includes timetables for delivery and the expected benefits to providers.  

Review of adult social care complaints 2013. The LGO has seen a 130% increase in adult social care complaints since it took on responsibility for registered private care providers in 2009. This report looks at these complaints in more detail.

Improving quality of life in care homes through community visiting. The Joseph Rowntree Foundation has published a report looking at the difference that community visiting can make to care home residents’ quality of life. The report sets out the findings from a pilot Community Visitor (CV) scheme in three Essex care homes that show potential to support community engagement in care homes and improve residents’ quality of life.

Residential placements for adults – Draft regulations and guidance on cross-border placements, dispute resolution and business failure. The Care Act 2014 sets out principles on cross border placements, when an adult’s need for care and support is best met with care in a different part of the UK. It also imposes duties on local authorities to meet care and support needs where registered providers of care suffer business failure. The Welsh Government is seeking views on draft guidance on cross-border placements, business failure and dispute resolution. The closing date for comments is 19 August 2014.

If you wish to discuss any of the items above or the issue of care more generally please contact Stuart Marchant.

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Clinical Risk/Health and Safety

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.

Guidance for doctors acting as responsible consultants or clinicians. The GMC have brought together relevant sections from their existing guidance to help doctors who have a role in coordinating patient care, to feel supported in providing the best possible care to their patients.

Guidance for taking responsibility: accountable clinicians and informed patients. Following recommendations in the Francis Inquiry report that there is a need for a named accountable clinician for a patient's care whilst in hospital, AoMRC was asked by the Secretary of State to see how this could be taken forward. This guidance was developed following discussion and consultation with medical royal colleges, regulatory bodies and professional bodies.

Safe staffing frequently asked questions. Following the release of guidance referring to the publication of NHS staffing data, this FAQ has been compiled to respond to frequent queries.

NHS LA Complaints Policy. An NHS Litigation Authority (NHSLA) publication sets out the framework by which complaints about NHS services that cannot be resolved locally and quickly are escalated and managed. It is to be implemented by all NHSLA employees, workers, contractors and non-executive directors receiving a written or verbal complaint about the NHSLA.

The safety of Poly Implant Prothèse (PIP) silicone breast implants. Poly Implant Prothèse (PIP) silicone breast implants have far higher rupture rates than breast implants by other manufacturers, a new report says, but exposure to the silicone gel emanating from a ruptured PIP implant has no increased health risk in comparison to a conventional implant from another manufacturer. The European Commission and its non-food Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR) has published the report--its final opinion on the subject, which takes into account new evidence which became available in 2012 and 2013.

The importance of effective partnership working on health, safety and wellbeing. This guidance includes information on workplace inspections, the functions of a safety representative, what an effective health and safety committee looks like and the legal requirements to consult on health and safety matters.

DH: New offences of ill-treatment or wilful neglect – Government response to consultation. Sets out the Government's response to the February 2014 consultation on the details of a new criminal offence of ill-treatment or wilful neglect of users of health and social care services. It states that in light of support for the proposals, the Government will proceed with its plans. There will be two offences, one relating to individuals, and a separate one relating to organisations. They will apply to:
 all formal healthcare provision for adults and children in both the NHS and private sector, other than in specific excluded children’s settings and services;
 all formal adult social care provision, in both the public and private sectors, including where care is self-funded; and
 individuals and organisations paid to provide or arrange for the provision of these health and adult social care services, but with the offence for organisations formulated differently from that for individuals. 
The penalties for individuals will be similar to those for the offence of ill-treatment or wilful neglect of persons without capacity under s.44 of the Mental Capacity Act 2005, while for organisations, they will include fines, and/or the issuing of publicity orders and remedial orders, similar to those for corporate manslaughter in the Corporate Manslaughter and Corporate Homicide Act 2007. The Government will establish these two offences through amendments to the Criminal Justice and Courts Bill, which is currently proceeding through Parliament, with the aim that the new offences come into effect in 2015.

Bevan Brittan Updates
Candour: Sorry should not be the hardest word. There has been much discussion about the duty of candour - what it means and how professionals and providers need to comply with their duties. What is clear is that part of the duty of candour (as set out in NHS Standard Contracts for Reportable Patient Incidents) involves giving an appropriate apology to patients, their families or carers when something has gone wrong.

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

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Guidance in relation to requirements of the Abortion Act 1967. Guidance for doctors on how to comply with the Abortion Act. It is intended for those involved in the commissioning, providing and management of abortion services.

NHS Commissioning Assembly and NHS Clinical Commissioners. This letter from Dr Peter Melton and Dr Amanda Doyle clarifies the roles of the NHS Commissioning Assembly and NHS Clinical Commissioners and sets out the ways the two bodies separately and collectively support the NHS Commissioning System.

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

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Bevan Brittan Updates
Dreams of avarice: sleeping workers' wages. The complexities of applying the National Minimum Wage to night workers who sleep at their employer's premises may be something of a nightmare for employers; but Mike Smith reports on a recent EAT decision which provides helpful guidance on this issue.

Employment news round-up, May 2014. Lara Feghali takes a look at the latest employment law news, including an update on early conciliation, the latest news on employment tribunal fees and the judicial review of the new maximum cap on unfair dismissal compensation.

Overtime, commission & holiday pay . With two bank holidays under our belts this month, and the long Summer break on the horizon, holidays will be on the minds of many – although, if you are applying working time rules in the workplace, the thought of holidays may have you reaching for paracetamol rather than suntan lotion. Julian Hoskins looks at the latest developments in respect of how holiday pay should be calculated for employees who are paid overtime and commission – should what those employees are paid while on holiday include their overtime or commission rates…?

If you wish to discuss any employment issues please contact Julian Hoskins or James Gutteridge.

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All in this together? This report by MHP Health investigates how councils are using the Better Care Fund. It includes findings from an extensive audit of how the money for health to social care transfers has been allocated across 2012-13 and 2013-14. The findings have significant implications for the Better Care Fund, half of which is due be financed through a transfer of funds from health to social care – the same money audited by this research. Current practice suggests that, in the absence of evidence about effective interventions that support integration and in light of current funding challenges for social care, the funding will be used to meet rising social care needs rather than transform services.

Funding Transfer from NHS England to social care – 2014/15. Announces that NHS England will transfer £1,100m from the Mandate to local authorities, £200m of which is the first part of the Better Care Fund, intended to help local authorities and CCGs prepare for the implementation of the full Better Care Fund pooled budget in 2015/16. This letter provides information on the transfer to local authorities, how it should be made, and the allocations due to each local authority under s.256 of the 2006 NHS Act. Area Teams are asked to liaise with their local authority colleagues to transfer funding for social care purposes under s.256.

Inquiry on effectiveness of international health systems. This report from the Parliamentary Labour Party sets out the findings of an inquiry, led by Debbie Abrahams MP, into the effectiveness of international health systems in improving health care quality and equity. The inquiry focused on three broad areas: system funding; how this funding is allocated and how in particular health care providers are paid; the organisation of the system; and on how health and social care services in particular are integrated. The inquiry shows that where there is competition, privatisation or marketisation in a health system, health equity worsens. There is also evidence of a negative impact on staff morale, where there may be conflicts in the values and ethos of a health system founded for social good and, for example, some workers are financially rewarded for quality improvements and others are not. As such the parameters within which private healthcare providers could be used in the NHS needs to be clearly defined. It also reveals that there is no compelling evidence that competition, privatisation or marketisation improves healthcare quality; in fact there is some evidence that it actually impedes quality, including increasing hospitalisation rates and mortality.

Improving the quality of costing in the NHS. The DH has published a summary of the findings of a review into the costing accuracy and processes of 50 NHS providers. The trusts audited were selected based on a previous benchmarking exercise. Of the trusts audited, 30 were identified as ‘at risk’, 10 as ‘low risk’ and 10 were selected at random.

If you wish to discuss any of the items in this section or any issues around finance please contact David Owens.

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Foundation Trusts

Performance of the Foundation Trust sector. NHS Foundation Trusts achieved the performance standard for the majority of targets tracked for the year ending 31 March 2014, as detailed in a report published by Monitor, the sector regulator for health services in England. The report shows pressures did increase in the second half of the year--with A&E and certain elective waiting time targets not achieved in this period.

Well-led framework for governance reviews: guidance for NHS foundation trusts. A publication by Monitor sets out guidance on its expectations regarding compliance with conditions of a NHS trust's licence and aims to support NHS foundation trusts in gaining assurance that they are well led.

NHS foundation trusts: financial accounting guidance: this guidance from Monitor has been updated with a clarification on 'going concern' for NHS FTs.

If you wish to discuss any issues relating to foundation trusts please contact Vincent Buscemi.   

Back to topInformation Sharing Publications/Guidance

Data controllers and data processors – What the difference is and what the governance implications are. It is essential for organisations involved in the processing of personal data to be able to determine whether they are acting as a data controller or as a data processor in order to tell who has data protection responsibility, according to new guidance from the Information Commissioner's Office (ICO). The guidance clarifies the difference between the two roles in order to help organisations clarify their responsibilities.

If you wish to discuss any issues around information sharing please contact Jane Bennett.

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Mental Health

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.

Service models in adult psychiatry. This report discusses the separation of care between in-patient and community and within the community. It argues that decisions about the best model of service delivery should be based on evidence that it will deliver better care for patients. It also highlights the need for more responsive crisis services and more access to necessary resources.

Interim guidance: implementing patients’ right to choose any clinically appropriate provider of mental health services. This guidance covers issues such as how to support patients in the choices they are able to make; how to respond to any significant changes in where patients are referred to when patients make their choices; and clarity on pricing and paying for mental health services. There are exemptions to the new right to choice, which are also set out in the guidance.

RCN development programme: transforming dementia care in hospitals - evaluation report. This paper reports on a year-long programme which has highlighted the importance of investing in nurse leaders and dementia nurse specialists to improving dementia care. The programme involved nine NHS trusts developing innovative ways to improve dementia care in hospitals – ranging from trust-wide education programmes, improving individualized care and supporting family carers.

New tool to give people with mental illness better care for their physical health. The Lester Tool will help frontline staff make assessments of cardiac and metabolic health, helping to cut mortality for people with mental illnesses NHS England has launched a vital new tool aimed at helping front line staff make key interventions and treatment for people with mental illnesses. The Lester Tool is a summary poster to guide health workers to assess the cardiometabolic health of people experiencing psychosis and schizophrenia, enabling staff to deliver safe and effective care to improve the physical health of mentally ill people.

Risk, safety and recovery. This briefing paper finds that mental health services can manage risk more effectively by involving service users in planning for safety. It argues that risk and safety are rightly major concerns in mental health care but that traditional methods of assessing risk have stood in the way of helping people to recover their lives. It argues that jointly produced ‘safety plans’ can be more effective ways of managing risk as well as enabling people to get on with their lives.

Service user experience in adult mental health. This Evidence Update covers the service user experience in adult mental health services.

Valuing every voice, respecting every right: making the case for the Mental Capacity Act. The government has closely considered the 39 recommendations of the House of Lords. It has also reviewed inputs and insights received from our discussions with a wide range of stakeholders. This response sets out a system-wide programme of work over 2014 to 2015 and beyond that we believe will make a real improvement to the implementation of the Mental Capacity Act.

Psychiatry's contract with society. This survey is part of a larger piece of research looking at the unwritten but implicit ‘contract’ that exists between psychiatrists and patients, carers, fellow professionals, service managers and commissioners and wider society. Views are being sought from patients, carers, family and staff until 27th June 2014.

NHS England pilots new scheme to help GPs tackle long-term conditions. NHS England has announced that, in partnership with the King’s Fund, the Health Foundation, five clinical commissioning groups and the Renal Registry, it is to launch a new assessment tool, known as patient activation, that is designed to help GPs put people with long-term conditions at the centre of the care and support they receive.

Bevan Brittan Updates
The Mental Capacity Act 2005: Advance Decisions. This article summarises some of the key considerations in respect of Advance Decisions in helping medical professionals to determine whether that document may be valid and applicable. It by no means encompasses every scenario, and each case should be considered on its own merits. However, it is intended that the points outlined below can be considered in overview.

Fire! Fire! I’m a patient, get me out of here! Now that I’ve got your attention, I have an important question to ask: “In the event of a fire, can you get all persons out of your ward/department to a place of relative safety without the assistance of external agencies?” Fire safety in the field of healthcare is challenging given that at least some patients will require a degree of assistance from healthcare staff to ensure their safety. The recent fire in a mental health ward at a Hospital illustrates that the risk of fire remains very real.

Bevan Brittan Events
Mental Health Law Annual Seminar - Birmingham 17 July 2014 : 10:00-13:00 (registration opens at 09:30) the session will be followed by lunch. Location: Bevan brittan LLP, Interchange Place, Edmund Street, Birmingham. Bevan Brittan's mental health team are delighted to invite you to our Annual Mental Health Seminar. The pace of change in mental health law has given rise to a range of challenges for mental health professionals, both clinical and in management. This seminar will give an outline of what those changes mean for day to day practice as well as how they will affect the structure and policy behind mental healthcare provision. 

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

Dementia roadmap. This online tool aims to help people access dementia care in their local area. It is aimed at doctors and providers of community care and hopes to be a ‘one stop shop’ designed to reflect a patient’s needs as they progress through the disease and signpost them to relevant local resources at the right time, from diagnosis onwards. It provides information about understanding dementia, memory worries, the diagnostic process, post-diagnosis support, living well with dementia, carer health and planning for the future. This is supplemented by details of local information and services for patients, such as memory clinics, hospitals, care homes, and specialist residential housing.

GP Practice Collaboration Survey 2014. The BMA survey on practice collaboration has revealed that GP practices do not have the time, support or information to explore new ways of collaborative working that could help practices deliver more effective, efficient care to their patients. The survey of nearly 2,000 GPs aimed to provide a snapshot of collaborative working between practices in the UK and the results come a week after the GPC launched its Your GP cares campaign highlighting the strains general practice is under from rising workload and falling resources. The results will be used to inform the development of BMA support to practices considering opportunities for collaborative working.

General practice in England. This briefing note provides general background information on NHS primary medical services provided by GPs in England. It has been updated to include sections on specific elements of the new GP contract including the introduction of named GPs for over 75s and increased choice of GP practice, as well as background to extended opening hours, out-of-hours services and waiting times for appointments.

If you wish to discuss any queries you may have around primary care please contact David Owens.

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Ethical procurement for GPs and CCGs. This guidance aims to help GPs champion fair and ethical standards in NHS commissioning. It suggests ways in which GPs can use their influence on CCGs to make sustainability principles a key part of purchasing choices. It aims to encourage GPs involved in commissioning to consider the impact of procurement decisions beyond their immediate population to foster improvements in the working conditions of those in the UK and the wider world.

If you wish to discuss any queries you may have around procurement please contact Matthew Mo.

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Public Health

The RSPH guide to commissioning for health improvement. This guide from the Royal Society for Public Health provides an overview of the commissioning process aimed at providers and commissioners of health improvement services. Following the move of public health into local authorities, the guide is intended to assist commissioners adopt strategic approaches and make the most of the opportunities presented by changes to commissioning. The resource has been developed to enable commissioners to explore aspects of the commissioning cycle, including needs assessment, strategy development and risk management. It encourages commissioners to involve local people in health initiatives, enabling them to contribute to their own health outcomes instead of being seen as passive recipients of services and to develop an integrated, multi-faceted approach.

Government response to the House of Commons health committee report on Public Health England. The House of Commons Health Select Committee examined the new public health arrangements in England and the work of PHE. The Committee was satisfied that some functions are operating well, but expressed concerns about PHE’s policy work and its relationship with government. The Government’s response directly addresses these concerns and the recommendations made by the Committee. The Government has also set out its expectations of PHE for 2014 to 2015 in a letter from the Public Health Minister. This is included as an annex to the response.

Functions of the local public health system. FPH has developed a document setting out the local public health function in England.

Delivering better oral health: an evidence-based toolkit for prevention. This guidance provides evidence based interventions and new advice on how dental health professionals can improve and maintain the oral and general health of their patients. Many of the risk factors for general health conditions also affect oral health such as a poor diet, smoking, and alcohol misuse. The guidance includes advice on the use of fluoride, brushing your teeth, how to prevent gum disease, tooth erosion, eating a healthy balanced diet, stopping tobacco use and drinking within the lower risk alcohol guidelines. 

If you wish to discuss any queries you may have around public health please contact Olwen Dutton.

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Urgent and planned care: operational resilience and capacity planning for 2014/15. Guidance from Monitor to support NHS healthcare providers and commissioners with their planning for operational resilience during 2014/15. The framework sets out best practice requirements across planned and urgent and emergency care that local healthcare systems should reflect in their local plans, as well as providing information on more general requirements such as operational planning, patient experience and planning for higher dependency patient groups.

Heatherwood and Wexham Park Hospitals NHS Foundation Trust – advice on proposed merger. The acquisition of Heatherwood and Wexham Park Hospitals NHS Foundation Trust by Frimley Park Hospital NHS Trust is the best available solution to the problems faced by Heatherwood and Wexham Park, Monitor has concluded in its advice to the Competition and Markets Authority (CMA). The advice also concluded the merger of the NHS Foundation Trusts would most likely provide a way to achieve necessary improvements to the services offered to patients by the NHS.

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

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10 priorities for resolving the crisis in emergency departments. This document urges stakeholders to work alongside the College to provide a stable long term future for A&E services whilst tackling short term pressures. These proposals are the collective view of practicing emergency physicians and aim to represent cost-effective solutions to ensure that safe patient care can be delivered.

The role of informal networks in creating knowledge among health-care managers: a prospective case study. This study focuses on how health and well-being managers collectively create knowledge. The objective was to develop a better understanding of the way that knowledge is created within and between healthcare organisations, across different managerial levels, and of the role played by informal networks in those processes.

General Medical Council (GMC) Fairness and the GMC: doctor's views. This research, commissioned by the GMC and carried out by NatCen, shows that while the vast majority of doctors are confident in how the GMC carries out its role, more needs to be done to build trust among certain groups of doctors. It looks at how doctors practicing in the UK view the GMC, based on a sample of 3,500 medics, covering issues such as how the GMC registers doctors and how it investigates and takes action following complaints about doctors.

Health and wellbeing board priorities across England. This interactive map allows you to search the priorities of health and wellbeing boards across England; view the health and wellbeing strategies for each area and explore data reports containing key measures of health and wellbeing at local authority and ward levels.

Patient empowerment: for better quality, more sustainable health services globally. This report by six All Party Parliamentary Groups takes a global perspective on how to empower patients to play a more active role in their care. Drawing lessons from over 100 innovative case studies submitted to the review, it outlines how much the UK has to learn from high, middle and low income countries – and how these lessons should be applied. At the same time, the report also highlights the UK’s strengths, its important role historically in supporting the global patient empowerment agenda, and how it can continue to play a leading role internationally.

Facing the future: smaller acute providers. This report from Monitor sets out the results of its October 2013 consultation into the challenges that smaller district general hospitals face in delivering high-quality, sustainable care to patients. Monitor found no clear evidence that smaller acute hospitals performed any worse clinically than larger counterparts. The analysis of a variety of clinical measures found no systematic evidence of poorer quality in small hospitals and found only a limited effect of size on financial performance, but this is likely to become more important in the future. This is largely as a result of: trends towards the drive to increase staff in the acute sector; further consolidation of specialist care; and moves to improve the delivery of care out of hospital. Monitor will now work with NHS healthcare providers and commissioners, its national partners and healthcare experts to help identify the new models of care that can better address the underlying causes of financial challenge at individual NHS providers and in specific local health economies. This will include understanding the economic impact of moving care out of hospital and the extent to which it might generate savings for commissioners.

From the pond into the sea: children's transition to adult health services. This review found that young people with complex health needs do not always receive the necessary care and support when they move on to adult care services. The transition process can be a vulnerable time for young people and their families. During this period, they stop receiving health services that they may have had since a young age and move on to equivalent adult services which can be structured and funded differently. The review found that there are many committed professionals providing high-quality care but that system-wide change is needed in order to make the transition between services smoother for patients and families.

Prisons and health. The WHO has published a book that outlines important suggestions by international experts to improve the health of people in prison and to reduce the risks posed by imprisonment to both health and society. In particular, it aims to facilitate better prison health practices in the fields of: human rights and medical ethics; communicable diseases; non-communicable diseases; oral health; risk factors; vulnerable groups; and prison health management. It is aimed at professional staff at all levels of responsibility for the health and well-being of detainees and at people with political responsibility. The term "prison" covers all institutions in which a state holds people deprived of their liberty. 

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

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