The regulatory burden on NHS providers is ever increasing:

From 1 April 2015, in addition to the Duty of Candour and Fit and Proper Person Test introduced in November 2014, the full suite of requirements under the Fundamental Standards will be monitored and assessed under CQC’s new inspection methodology, meaning:

  • More robust inspection – with increased scrutiny of providers’ governance systems
    Focus on organisational culture, particularly with regard to Openness, Transparency and Candour
  • Increased accountability of Board level directors through the Fit and Proper Person test – with implications for providers’ systems around recruitment, appraisal, and investigatory approaches.
  • Quality ratings of services - impacting on patient choice
  • Stronger enforcement powers – with direct prosecutions for offences, and CQC taking the lead on Health and Safety issues impacting on patient care.
  • ‘Special Measures’ regimes in respect of inadequate care.
  • For Foundations Trusts, parallel enforcement action by Monitor under the provider licence
  • Increased emphasis on promoting and protecting patients’ rights through the new Adult Safeguarding regime and particularly under the Mental Capacity Act and Deprivation of Liberty Safeguards

A further specific focus is in relation to the provision of information and information governance with:

  • Requirements to comply with the NHS Information Governance Toolkit as part of the NHS Standard Contract.
  • Forthcoming significant changes to the data protection regime under the impending EU Data Protection Regulation.
  • Increased transparency as a consequence of various obligations under the NHS Standard Contract and regulatory expectations.

These combine to present major challenges for providers in terms of their governance systems and management of workforce to ensure they can deliver safe, high quality care against a backdrop of increasing funding pressures from commissioners and enhanced regulatory scrutiny.

Bevan Brittan’s Services

Our team provides a ‘one stop shop’ to support providers to meet the regulatory challenges with specialists in Corporate Governance; Regulatory law; Employment law; Medical law; and Information law.

We have extensive experience and understanding of the changes impacting on the health and social care sector having acted as a recognised legal representative in the Mid Staffs Inquiry which has prompted the current regulatory reforms. Drawing on this experience we advise providers on meeting the challenges at all levels from setting board strategy, to implementation and review of Governance frameworks, and advice on operational matters.

How we can help

Strategic Support

  • Board level workshops and senior management briefings on the challenge of being ‘Well-led’ – incorporating CQC’s and Monitor’s requirements and cultural issues on raising and responding to concerns, equalities, anti-bullying and harassment and running investigations.
  • Advice and assurance on quality and corporate governance arrangements.
    Support on service restructuring/acquisitions – governance, regulatory, and workforce issues.
  • Advice and support in relation to contractual obligations.

Policy/ Process Support

  • HR policies and procedures – audits and advice on recruitment, performance management, and disciplinary arrangements.
  • Candour - drafting and reviewing candour and related quality governance policies and procedures.
  • ‘Raising Concerns’ – audit and review of policies and procedures and practical advice on how documentation may be embedded to create a positive open culture.
  • Quality governance – checking that your systems deliver evidence-based outcomes by interrogating whether information is robust and compliant with best practice and legal requirements.
  • Information governance – drafting and reviewing policies, procedures and data processing agreements and advice on compliance with the NHS Information Governance Toolkit

Operational Support

  • Investigations – early engagement on the planning, structuring and conduct of internal investigations, and advice on participation in third party investigations to ensure they are conducted fairly and robustly, particularly in circumstances where the outcome may be published.
  • CQC inspection support - preparing for CQC inspections and responding to CQC inspection reports (factual accuracy challenges)
  • CQC challenges – Ratings reviews and representation in enforcement action.
  • Advice on all aspects of employment relationship issues including managing grievances, raising concerns and whistleblowing processes and Employment Tribunal challenges.
  • Monitor licensing and enforcement action.
  • Commissioner led investigations.
  • Advice on legislative frameworks for mental health, mental capacity and Deprivation of Liberty including representation in the Court of Protection, High Court and disputes with commissioners.
  • Advice on data protection and information governance, including handling data breaches and complaints, sharing of patient confidential data and subject access requests.

This article may contain information of general interest about current legal issues, but does not give legal advice.

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