Health and Social Care Update - February 2015

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.

27/02/2015

Claire Bentley

Claire Bentley

Associate

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

Care

Publications/Guidance
Unblocking – Securing a health and social care system that protects older people. This report from Localis explores the failures of the health and social care system, which is resulting in sub-standard care for the older population. It addresses some of the recent issues witnessed in the health service, looks at the reasons behind them and argues that recent changes need to go further. It makes a number of recommendations, including that care for the elderly should be coordinated by single, place-based commissioning budgets for 40-55 year olds and care provision of those over 85. Acute trusts should become members of Health and Wellbeing Boards, and the Government should commit to a fixed five-year budget, to enable long-term strategic planning.

The false or misleading information offence: guidance for providers The Care Act 2014 has put in place a new criminal offence applicable to care providers who supply, publish or otherwise make available certain types of information that is false or misleading, where that information is required to comply with a statutory or other legal obligation. The offence also applies to the ‘controlling minds’ of the organisation, where they have consented or connived in an offence committed by a care provider. This guidance sets out the context for the offence and explains how the offence is applied.

Thinking about using a hidden camera or other equipment to monitor someone's care? New information about using surveillance equipment when monitoring care has been released by the Care Quality Commission (CQC). The information was designed to help families and carers make appropriate decisions regarding recording equipment, and set out the correct procedure and steps for those intending to monitor the care of a relative or patient.

Older people in care homes. NICE has published a new briefing to help local authorities and partner organisations ensure that older people in care homes receive the best possible care. It summarises NICE's key recommendations for local authorities and partner organisations on the health and care of older people in care homes. It also highlights relevant quality standards. It aims to help local authorities and their partner organisations to deliver good standards of care for older people in care homes.

Care and Support Specialised Housing Fund: Phase 2. The HCA is inviting specialist housing developers and providers to bid for a share of an additional £155m from the Care and Support Specialised Housing Fund Phase 2 to develop accommodation for adults who need support in order to live independently. Full details are in the prospectus and further information for bidders. The deadline for applications is 29 May 2015.

Towards excellence in adult social care: progress with adult social care priorities England 2013-14. This report from the LGA helps to inform and support improvement in adult social care. It also provides an overview of the progress of councils in England towards ensuring better care and support. Maintaining and improving the level of performance or perception (i.e. in terms of quality of life) of social care has taken place in the context of the 26% savings that have been required over the last four years. The report attributes some of this as a result of the transformation of adult social care in terms of the increased personalisation of services.

Accessing care in 2016 and beyond – A step-by-step guide for over 65s. London Councils has produced a flowchart that sets out how the Care Act reforms are likely to impact on those over 65 and whether they will qualify for support from their council or not. London Councils’ main concern is the cost for local authorities of implementing the Care Act 2014. It considers that some of the key changes defined in the Act will require high levels of resourcing to be appropriately delivered and London Councils has been lobbying Government to ensure that the reforms are appropriately funded. It states that with some of the measures coming in 2015 and the rest in 2016, it is critical that local authorities are ready and prepared to deliver their statutory responsibilities as set out in the Act.

PSNC Briefing 001/15: Support for carers – how community pharmacy teams can help. This briefing from the Pharmaceutical Services Negotiating Committee describes the important role that carers play in supporting patients and the NHS and explains how community pharmacy teams can help carers in their work.

Social care – Charging for care and support (Circular LAC(DH)(2015)1). This circular advises local authorities of changes to the social care charging arrangements and provides an overview of the changes and some additional statutory guidance.

Legislation
Care Act Regulations 2015. Four more sets of Care Act Regulations have been published:
 Care and Support (Business Failure) Regulations 2015 (SI 2015/301): provide for the interpretation of "business failure" for the purposes of temporary duties on local authorities in England and Wales and on Health and Social Care trusts in Northern Ireland, under the Act, to meet care and support needs of adults or support needs of carers, in circumstances where care providers are unable to carry on because of "business failure";
 Care and Support (Children’s Carers) Regulations 2015 (SI 2015/305): provide for the exercise of a local authority's power under s.62(1) of the Care Act 2014 to meet the support needs of the carer of a child in circumstances where the authority has carried out an assessment of the carer’s needs under .60 in advance of the child becoming 18;
 Care and Support (Eligibility Criteria) Regulations 2015 (SI 2015/313): set a national minimum eligibility threshold for the meeting of adult care and support needs and carer support needs;
 Care and Support (Market Oversight Criteria) Regulations 2015 (SI 2015/314): set out the criteria for the CQC to determine to which care providers s.55 of the Care Act applies and so are within the market oversight regime. The CQC is currently consulting on draft Market Oversight Guidance regarding business failure.  

Consultations
NHS continuing healthcare – Draft redress guidance. NHS England has published draft refreshed NHS Continuing Healthcare (NHS CHC) Redress Guidance for CCGs, to be used when considering NHS CHC redress payments for individuals. The document has been updated to reflect the Principles for Remedy from the Parliamentary and Health Service Ombudsman for all public bodies. The guidance retains the principle of returning the individual to the financial position they would have been in had they been assessed as eligible and the need for redress identified. Once introduced, CCGs will continue to consider the specific circumstances of individual cases, as they do now, to ensure that all individuals are returned to the financial position they should have been in, if redress is considered appropriate. The closing date for comments is 19 March 2015.

Care Act 2014 – Consultation on draft regulations and guidance to implement the cap on care costs and policy proposals for a new appeals system for care and support. Seeks views provisions in the Care Act 2014 relating to the cap on care costs system, which are set to come into force in April 2016. Under the new system people who develop eligible care and support needs below the age of 25 will have a zero cap for life. For those who develop a care and support need from the age of 25, the cap will be set at £72,000. The paper sets out draft Care and Support (Cap on Care Costs, etc) Draft Regulations 2015 and draft statutory guidance on how the proposed cap will work. It also discusses the need for a new appeals system that would sit alongside the current means of redress. The consultation closes on 30 March 2015.
DH has published two new factsheets that explain the consultation proposals:
 Factsheet 6: Reforming how people pay for their care and support
 Factsheet 13: appeals policy proposals

Implementation of the Social Services and Well-being (Wales) Act 2014 – Consultation on the code of practice in relation to measuring the performance of social services. The Social Services and Well-being (Wales) Act 2014 forms the basis for a new statutory framework for social care in Wales. This paper seeks views on a new Code of Practice that sets out how the Welsh Government will measure the progress that local authorities make against the duties under the Act. The consultation closes on 24 April 2015.

Cases
AJ v A Local Authority [2015] EWCOP 5. This case provides guidance as to the burden that is upon local authorities to make sure that those deprived of their liberty in care homes are afforded effective access to the Court of Protection so as to secure their rights under Article 5(4) ECHR. See also Alex Ruck Keene's commentary.

News
Call for long term funding to address hospital beds crisis. The Government has announced that councils, nationally, would receive £37m to help with the rise in demand for home care packages over winter. However, London Councils is calling for sustainable funding of adult social care, rather than a one-off payment. Boroughs are facing a funding shortfall of £1.14bn for adult social care by 2019/20. It highlights innovative schemes, in which social workers and NHS professionals work alongside each other, that are effective at ensuring vulnerable people leave hospital and are safely settled back at home as soon as possible.

New funds to kickstart joint working with NHS and councils this winter. Announces that DCLG and DH have released extra funds for councils to get people home from hospital more quickly and stop them from being admitted in the first place. The new £12m funding is from DCLG underspends in 2014 to 2015 and will be allocated to 87 councils through ring-fenced grants for social services immediately, weighted towards areas with significant demand for home care packages who have not previously received additional funding this winter.

Testing the new Care Certificate for support workers across health and social care in England. Following the Francis Inquiry, Camilla Cavendish was asked by the Secretary of State to review and make recommendations on the recruitment, learning and development, management and support of healthcare assistants and social care support workers. The resulting report, published in July 2013, found that the preparation of healthcare assistants and social care support workers for their roles within care settings was inconsistent, and one of the recommendations was the development of the Care Certificate.

Supporting carers to stay in paid employment. Announces £1.6m funding for nine pilot areas that will explore how technology can be combined with professional support from the local authority and the assistance of informal networks of friends, neighbours and Time Bank volunteers to ease the pressure of caring. The pilots will also explore how businesses can give employees with caring responsibilities more help. DH also announces a new pledge to support carers under the Public Health Responsibility Deal’s health at work network.

Bevan Brittan Updates
Deprivation of Liberty & Supported Living Arrangements: The Streamlined Court Process – What you need to know  Following last year's Supreme Court landmark judgments (P v Cheshire West and Chester Council; P & Q (aka MIG and MEG) v Surrey CC [2014] UKSC 19) an increased number of incapacitated adults in supported living arrangements across England and Wales now fall within the ambit of being deprived of their liberty. In considering whether a person is deprived of his or her liberty, attention should focus in particular on whether the person concerned is under continuous supervision and control and whether that person is free to leave.

The Care Act - are you ready? With two months to go until 1 April 2015 when the Care Act 2014 comes largely into force and with it the impact of the Better Care Fund, are councils ready for the changes that will follow?

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.

Publications/Guidance
Culture change in the NHS: Applying the lessons of the Francis Inquiries. This DH report sets out the progress made in applying the lessons learned from the failings at Mid Staffordshire (Mid Staffs) NHS Foundation Trust. It shows that a great deal has been achieved since Sir Robert Francis's public inquiry into Mid Staffs, and that the improvements made since must be sustained and embedded for the future and applied equally and rigorously across all sectors of the health and care system.
See the press release Plans for new legal protection for NHS whistleblowers that summarises the new measures to further improve the culture of the NHS and proposals to protect whistleblowers.

Freedom to speak up. Individuals who speak up about poor care in the NHS will get new legal protections. The Freedom to Speak Up review by Sir Robert Francis states the NHS has a moral obligation to support and encourage its staff to speak out, to protect the integrity of the service as well as patient safety.

Maternity Care Pathways.This tool, developed in collaboration with the Centre for Workforce Intelligence, aims to enable service providers to analyse their whole maternity workforce aligned with their service’s individual care pathways. The tool is free to download alongside a user guide but requires free registration for full access.

Surgical safety checklists and short-term mortality.A population-based before and after study in Canada found that safety checklists did not reduce 30-day mortality or complications after surgery, although the study was limited by the variability in checklists, patients and hospitals and the lack of training for staff.

Is 'special measures' working? This report provides the first analysis of the impact that the intervention of ‘special measures’ has had on mortality rates at the 11 hospital trusts placed under these measures following Professor Sir Bruce Keogh’s review into standards of care in 2013. The analysis finds that the pattern of mortality rates at the 11 trusts as a group is significantly different to the rest of the country and that this is not something that might have happened by chance.

Vaccine in pregnancy: advice for pregnant women. Guidance for health professionals to share with pregnant women immunised with MMR (measles, mumps, rubella), chickenpox or shingles vaccines.

Consultations
Improving patient safety and openness: the role of the NHS Litigation Authority in incentivising the duty of candour. The DH is seeking views on whether the NHSLA should be able to recover part of an NHS trust’s indemnity cover for claims where the statutory duty of candour (a legal responsibility to be open with patients) about patient safety has been breached. This means that the trust would be responsible for reimbursing the NHSLA for part of a successful claim against that trust. The NHSLA would continue to make any compensation payments due to the patient. It also sets out a number of other options for how the work of the NHSLA can support candour and openness in NHS trusts and foundation trusts and other providers of NHS care. The consultation closes on 27 March 2015.

Legislation
Personal Injuries (NHS Charges) (Amounts) Regulations 2015 (SI 2015/295). From 6 April 2015, charges recoverable from a person who pays compensation to another, for an injury where that person receives NHS hospital treatment or ambulance service, are increased. Changes are also made to consolidate the Personal Injuries (NHS Charges) (Amounts) Regulations 2007 (SI 2007/115) to make the law clearer. Explanatory memorandum.

Social Action, Responsibility and Heroism Act 2015. This Act has received Royal Assent and comes into force on a day or days to be appointed. It makes provision about civil liability for negligence and for certain breaches of a statutory duty by requiring a court which is determining what was required to meet the standard of care in a specific case to have regard to certain specified matters:
 if the person being sued was doing something for the benefit of society, e.g. volunteering, running an event or trip, or helping out by clearing snow;
 if they had been acting in a predominantly responsible way; and
 if they were intervening in an emergency.
The Act does not preclude the court from having regard to any other relevant factors or from deciding what weight to give to each of those matters in determining whether the standard of care has been met.

News
Brain damaged woman awarded £7m compensation. A woman suffering from brain damage as a result of harm caused to her when she was a baby has been awarded £7m in compensation by the Criminal Injuries Compensation Tribunal. The woman was awarded £215,000 when her case was initially heard in 2005; however, the case was left open should the woman require future residential care and would need a further award to pay for care fees.

Damages claim dismissed from patient who fell from hospital wall. The High Court has dismissed a damages claim by an A&E patient who was badly injured when he fell 30 feet from a wall outside a hospital. The court ruled that the man had been drunk at the time of the incident, and that what happened had been entirely his own fault.

Law firms need to rethink approach under ‘fundamentally dishonest’ rule, barristers warn. Claimant solicitors have been warned that they need to review their retainers and advise clients about the implications of the new ‘fundamentally dishonest’ rule being introduced shortly.

Development of new guidance for doctors who carry out cosmetic procedures. The General Medical Council is to develop new ethical guidance for doctors who carry out cosmetic procedures. This is in response to concerns outlined by Sir Bruce Keogh's report and the Government's response on the regulation of cosmetic interventions.

Challenge to government policy on legal aid at an inquest. The Equality and Human Rights Commission has intervened in the case, also arguing that the grounds on which legal aid should be provided in inquests needs to be expanded. Note this is one of Georgia Ford's cases.

Medical negligence costs ‘threat’ to National Health Service. A soaring bill from medical negligence damages has become a threat to the National Health Service, says one of the most senior business figures in Whitehall. He said there was a question as to whether patients should lose their right to sue. The NHS Litigation Authority, which provides indemnity cover for legal claims against the health service, has set aside £26.1bn to cover outstanding liabilities, equivalent to almost a quarter of the £113bn annual health budget: £1.6bn was paid out last year.

NHS sets aside quarter of its budget for medical negligence claims. The health service has set aside £26bn to cover medical negligence claims against NHS hospitals, it has emerged

National review of avoidable deaths ordered by Health Secretary. An annual national review of avoidable deaths is to be introduced to help hospital boards have a “laser-like focus” on eradicating mortalities that could have been prevented, the health secretary has announced.

Bevan Brittan Updates
Speaking up and speaking out: "Freedom to Speak Up" Review – key themes & practical steps Robert Francis has published his independent review into creating an open and honest reporting culture in the NHS, "Freedom to Speak Up" and the government has already issued its initial response – including announcing new 'whistleblower guardians'. Furthermore, whilst the recommendations set out in the report are aimed at the specific challenges which face the NHS, its themes are also relevant to independent sector providers across the health and social care sector, and, indeed, any sector where safety is in issue.

Make Health and Safety a Priority for 2015. Last year marked the 40th anniversary of the Health and Safety at Work etc Act 1974, a key piece of legislation with a humble aim for employers of reducing the risk to employees and members of the public in the workplace. 2015 is also an important year in which we wish happy birthday to the Health and Safety Executive, who will be marking the 40th year since their creation. Whilst the Health and Safety Executive has seen a significant decrease in the number of accidents at work over the years, accidents still occur which could have been prevented. This is a good time to take stock of your health and safety procedures. This is particularly important as the Sentencing Guidelines Council is currently consulting on the latest draft of the Health and Safety Sentencing Guidelines and it is expected that sentences will increase.

The Statutory Duty of Candour. As of 27 November 2014, all health service Providers must comply with a new statutory duty of candour. This is separate to the contractual duty of candour which took effect from 1 April 2013. The new duty was implemented by Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It applies to all CQC registered Providers (whether providing NHS, Local Authority or privately-funded care). The duty is likely be extended to all the above Providers beyond the NHS from 1 April 2015.

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

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Commissioning

Publications/Guidance
Dispute resolution process for the 2015/16 contracting process. NHS England and the NHS Trust Development Authority (NHS TDA) have agreed a joint Dispute Resolution Process which Monitor has also contributed to. It states that it is important that all commissioners and all providers have in place between them mutually agreed contracts prior to the start of the financial year to which they relate. NHS England, NHS TDA and Monitor consider it to be a major failing of the health economy where parties do not manage to reach agreement by the national contract signature deadline of 11 March 2015. The guidance includes a set of contract dispute resolution principles, against which organisations are encouraged to assess their contracting proposals and potential arbitration cases.

Model grant funding agreement. NHS England has published a draft model Grant Agreement for CCGs who are making grants to voluntary organisations under s.14Z6 of the NHS Act 2006. There is also guidance and a "bite size" guide. The grant agreement should not be used by CCGs when making a loan to a voluntary organisation nor where the CCG is making payments to a local authority or other body under s.256 of the NHS Act 2006.

Implementing the NHS five year forward view – Aligning policies with the plan. This new paper from The King’s Fund calls for fundamental changes to how health services are commissioned, paid for and regulated to deliver the vision of the NHS five year forward view. The paper focuses on key areas in which The King’s Fund has particular expertise, namely: how services are commissioned and paid for; regulating the NHS; how local leaders deliver improvements in care the contribution of a transformation fund. It makes practical recommendations on what to do now to remove barriers to developing new care models and to support their implementation. Looking ahead, it argues that national leadership of the highest order will be needed to meet the challenges inherent in delivering these changes.

News
First CCGs set [to] take on commissioning of GP services. NHS England has announced the 64 CCGs across the country that have been approved to take on greater 'delegated' commissioning responsibility for GP services. This follows plans set out by NHS England chief executive Simon Stevens to give patients, communities and clinicians more scope in deciding how local services are developed.

NHS England launches new framework for commissioning support services. NHS England has announced the organisations that have been approved to join the new Commissioning Support Lead Provider Framework to deliver the best support services to CCGs and other commissioners of health and social care services.  

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

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Complaints

Publications/Guidance
How do I give feedback or make a complaint about an NHS service? Complaints guidance for patients, explaining how they can give feedback or make a complaint about NHS care or treatment. It includes information on the NHS complaints arrangements, and what patients can expect when they make a complaint. The guidance should be read alongside the NHS Constitution.

If you wish to discuss the issue of complaints please contact Claire Bentley

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Emergency Care

Publications/Guidance
Helping the NHS cope with system pressures. NAVCA has published a short briefing demonstrating the important role that charities and community groups can play in reducing pressures on health systems, such as A&E, and to improve health outcomes. NAVCA members can be key to this work by connecting local health bodies to the local organisations that can help. The examples show many different ways in which charities and community groups support health outcomes and how the co-ordinating role of local infrastructure can be key to helping local health bodies’ work with smaller organisations.

If you wish to discuss the issue of emergency care please contact Claire Bentley.

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Employment/HR

Publications and Guidance
Culture change in the NHS: Applying the lessons of the Francis Inquiries. This DH report sets out the progress made in applying the lessons learned from the failings at Mid Staffordshire (Mid Staffs) NHS Foundation Trust. It shows that a great deal has been achieved since Sir Robert Francis's public inquiry into Mid Staffs, and that the improvements made since must be sustained and embedded for the future and applied equally and rigorously across all sectors of the health and care system.
See the press release Plans for new legal protection for NHS whistleblowers that summarises the new measures to further improve the culture of the NHS and proposals to protect whistleblowers.

Freedom to speak up. Individuals who speak up about poor care in the NHS will get new legal protections. The Freedom to Speak Up review by Sir Robert Francis states the NHS has a moral obligation to support and encourage its staff to speak out, to protect the integrity of the service as well as patient safety.

Staff engagement: six building blocks for harnessing the creativity and enthusiasm of NHS staff. There is now an overwhelming body of evidence to show that engaged staff deliver better health care. Trusts with more engaged staff tend to have lower levels of patient mortality, make better use of resources, and have stronger financial performance and higher patient satisfaction, with more patients reporting that they were treated with dignity and respect. This paper encourages boards and other leaders to focus on staff engagement and suggests a number of questions boards can ask to assess their organisation’s level of staff engagement.

Bevan Brittan Updates
Change is gonna come? Changing employee contracts. Julian Hoskins looks at the sometimes tricky area of changing terms and conditions of employment, focussing on two recent decisions (on variation clauses and age discrimination) and also providing a reminder of the key factors that need to be taken into account when considering contractual change.

Employment news round-up, February 2015 This month's selection of key employment law news is brought to you by Alec Bennett and covers: the latest developments on the 'Woolworths' decision on redundancy consultation; whistleblowing; Care Certificates and 'dates for diary' – forthcoming changes on the horizon, this Spring. You can also book your free place at our forthcoming round of training events, taking place in in April and May.

TUPE – single employee as organised grouping. In the recently decided case of Rynda (UK) Ltd v Rhijnsburger, the Court of Appeal (CA) considered whether, for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a single employee was an "organised grouping of employees", and whether the employee's principal purpose was to carry out activities on behalf of a client. Nicola Stibbs reports.

Upper Tribunal decides that water companies are "public authorities" The Fish Legal case has finally been concluded, with the Upper Tribunal ruling that the four water companies involved are indeed to be considered "public authorities" for the purposes of the Environmental Information Regulations 2005 ("the EIRs"), which provide a right of access to environmental information to anyone regardless of purpose and virtually free of charge. The decision has wide ranging implications for all privatised regulated industries.

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

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Finance

Publications/Guidance
Frontline First: Runaway agency spending. This report from the Royal College of Nursing shows an unprecedented rise in the amount the NHS spends on agency nursing staff in England, with a projected spend of at least £980m on agency nursing staff by the end of this financial year if action is not taken. This is an average of £4.2m per Trust.

Financial sustainability of NHS bodies. This report from the HC Public Health Committee finds that the financial health of NHS bodies has worsened in the last two financial years. It concludes that the savings required across the NHS will be difficult to achieve solely by continuing with the same approach used in recent years. The NHS has typically achieved efficiency savings of 1%–2% against a target of 4% set by Monitor and NHS England. These savings were achieved partly through wage freezes. NHS England, Monitor, and other NHS bodies recognise that radical change is needed to the way healthcare is provided, including making better use of community and primary care services to reduce pressure on hospitals. Making this change will require significant upfront investment, but the money available for this is reducing as the number of organisations in deficit increases. The national oversight bodies also lack the detailed and accurate cost data from local NHS bodies needed to monitor and identify cost savings achieved and whether they are sustainable in the longer term.

Model grant funding agreement. NHS England has published a draft model Grant Agreement for CCGs who are making grants to voluntary organisations under s.14Z6 of the NHS Act 2006. There is also guidance and a "bite size" guide. The grant agreement should not be used by CCGs when making a loan to a voluntary organisation nor where the CCG is making payments to a local authority or other body under s.256 of the NHS Act 2006.

Overseas visitors who need healthcare while in England will soon be charged differently for using the NHS as part of efforts to recoup £500 million a year by 2017 to 2018. This equality analysis assesses the effect of the changes introduced by the regulations on overseas visitors with ‘protected characteristics’ compared to the rest of the overseas visitor and ordinarily resident population.

Detailed requirements for quality reports 2014/15. NHS foundation trusts must include a report on the quality of care they provide in their annual report to improve public accountability. This document describes the detailed requirements for the quality report. See also Monitor's Detailed guidance for external assurance on quality reports 2014/15 that sets out guidance for NHS FTs and their auditors on how to carry out external checks on these reports.

NHS contribute extra: A return to the NHS’s core values. Thsi report from Civitas argues that NHS patients should be given the opportunity to take their personal treatment budgets to any suitable healthcare provider in return for a modest additional monthly payment. The report's authors, NHS consultant Dr Christoph Lees and Civitas researcher Edmund Stubbs, argue that this would alleviate the current stress on the health service while raising much-needed extra revenue. Such a move would offset the need for higher general taxation or any extension of user charges to fill the black hole in the NHS's accounts. Their proposal is for a voluntary scheme allowing patients in England to see the benefit of their additional contribution while remaining true to the principles set down by Sir William Beveridge.

Rationing in the NHS. The Nuffield Trust have published a policy briefing that provides an overview of the current difficulties in making decisions about rationing healthcare in England, and sets out some of the challenges faced by policy makers in the future.

Legislation
NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2015. DH is consulting on draft regulations that amend the Partnership Arrangements Regulations 2000 to provide more flexibility around pooled budgets by bringing NHS England’s primary medical care functions into local authorities and health bodies partnership arrangements. It states that the proposed change will widen the potential scope of pooled budgets by making it possible for them to include funding for primary medical care, paving the way for greater integration across community health, social care and primary care. The proposed change provides greater flexibility and local powers around the use of pooled budget arrangements, and removes a potential legislative barrier to continued efforts to increase integration. The consultation closes on 8 March 2015.

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

Publications/Guidance
Performance of the foundation trust sector. NHS foundation trusts are working hard to provide patients with quality care in the face of sustained operational and financial pressures.

Reference costs guidance 2014-2015. sets out requirements for the collection of 2014 to 2015 reference costs from NHS trusts and NHS foundation trusts between 22 June and 1 August 2015. It follows feedback from the NHS on draft collection guidance. This guidance forms Chapter 3 of Monitor’s 'Approved Costing Guidance', which brings together NHS costing and cost collection guidance. Reference costs are: the average unit cost to the NHS of providing secondary healthcare to NHS patients; used to set prices for NHS-funded services in England; collected and published annually.

Detailed requirements for quality reports 2014/15. NHS foundation trusts must include a report on the quality of care they provide in their annual report to improve public accountability. This document describes the detailed requirements for the quality report. See also Monitor's Detailed guidance for external assurance on quality reports 2014/15 that sets out guidance for NHS FTs and their auditors on how to carry out external checks on these reports.

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

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Information Sharing Publications/Guidance
The false or misleading information offence. Guidance on prosecutions and convictions for the new false or misleading information (FOMI) offence has been published by the Department of Health (DH). The FOMI offence is restricted to information on which data on mortality is derived and which may result in harm to patients.

Findings from ICO audits and reviews of community healthcare providers: June 2013 to December 2014. This report looks at how community healthcare providers approach data protection. Community providers often involve staff working at remote locations or off-site entirely. This brings particular data protection challenges. The report provides an analysis of data breaches in the sector that shows a trend of information being ‘disclosed in error’ - the report offers tips that aim to help address these problems.

Accessing and sharing health records and patient confidentiality - Commons Library Standard Note. A House of Commons Library Standard Note sets out arrangements for accessing and sharing confidential patient information.

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

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Inquests

Publications/Guidance
A Law Sheet by the Chief Coroner on the discretion of the coroner includes information on: setting the scope of an investigation; calling witnesses; the decision to adjourn; leaving conclusions to a jury; and challenges to the exercise of discretion. The purpose of this Law Sheet is to set out for coroners the main headlines from the authorities on the exercise of the coroner’s discretion. It is not intended to cover all aspects of the coroner’s discretion, but to consider generally the ambit, limits and possible challenge to its exercise. The discretion of the coroner derives in some instances from statute (for example in relation to juries). But otherwise it emanates from the inquisitorial nature of the coroner’s inquiry. The ambit of the coroner’s investigation and inquest is determined not by parties or interested persons but by the coroner.

Cases
R (Letts) v The Lord Chancellor [2015] EWHC 402 (Admin).The application concerned the criteria applied by the Legal Aid Agency to determine whether relatives should be granted legal aid for representation at an inquest into a death that has arisen in circumstances which might engage article 2 of the European Convention of Human Rights (right to life). The Administrative Court, held that the Lord Chancellor's Exceptional Funding Guidance (Inquests) was inadequate, incorporated an error of law and provided a materially misleading impression of what the law was. That was by virtue of the fact that there was no recognition that there was a category of case where the investigative duty under art 2 of the European Convention on Human Rights arose irrespective of the existence of an arguable breach by the state. Those errors could lead to erroneous decision being taken by caseworkers.

If you wish to discuss any issues relating to foundation trusts please contact please contact Joanna Lloyd.

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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.

Publications/Guidance
Care services for people with learning disabilities and challenging behaviour. This report by the National Audit Office finds that the Government did not meet its goal of transferring all people with learning disabilities and challenging behaviour, for whom it was appropriate, from mental hospitals into the community by 1 June 2014.

Policing and mental health. The House of Commons Home Affairs Committee has called on the NHS to improve how it cares for those suffering mental health crises. While the effectiveness of the street triage scheme was praised by the Committee, the use of police cells and cars was criticised. The reduction of police responsibility in detaining these individuals was recommended.

Prime Minister's challenge on dementia 2020. Launches the next phase of the Prime Minister's challenge on dementia. The document sets out a new, long-term strategy focused on boosting research, improving care and raising public awareness about the condition. The press release summarises the new plans:
 £300m funding for UK research and medical innovation;
 a new global multi-million pound fund to help establish a large-scale, international investment scheme to discover new drugs and treatment that could slow down the onset of dementia or even deliver a cure by 2025;
 all NHS staff will now be required to undergo training in dementia;
 3m more people trained as Dementia Friends to understand about dementia and how to best support people who may have the condition; and
 initial dementia assessments will take place in an average of 6 weeks, followed by better support post-diagnosis.

Children and young people's mental health - policy, CAMHS services, funding and education - Commons Library Standard Note. A House of Commons Library Standard Note outlines the commitments for children and young people's mental health in government policy and recent discussions on funding and investment in Child and Adolescent Mental Health Services (CAMHS) services.

Guidance to support the introduction of access and waiting time standards for mental health services in 2015/16. This guidance is aimed at CCGs and how new access and waiting time standards for mental health services are to be introduced. It explains the case for change in four areas and sets out the expectations of local commissioners for delivery during the year ahead working with providers and other partners.

Preventing deaths in detention of adults with mental health conditions: An inquiry by the Equality and Human Rights Commission. The Inquiry covered the period 2010-13, during which 367 adults with mental health conditions died of non-natural causes while detained in psychiatric wards and police cells and another 295 adults died in prison, many of whom had mental health conditions. The Commission is the first body to examine how the human rights of detainees with mental health conditions are protected across the health, prison and police settings. The Inquiry found failures by institutions to bring in processes to learn from lessons and implement recommendations. As a result, the Commission has, for the first time, created an easy-to-follow Human Rights Framework, aimed at policy makers and front-line staff across all three settings, which includes 12 practical steps to help protect lives.

Preventing suicide in England: Two years on – Second annual report on the cross-government outcomes strategy to save lives. A report from the Department of Health sets out what local areas can do to prevent suicide and save lives.

Guidance to support the introduction of access and waiting time standards for mental health services in 2015/16. This NHS England guidance for CCGs explains the case for change in four areas and sets out the expectations of local commissioners for delivery during the year ahead working with providers and other partners. It sets out how commissioners and providers can begin to prepare for implementation of the new early intervention in psychosis and liaison mental health standards. It says plans need to be submitted about how local commissioners will meet the new IAPT standard for people with depression and anxiety disorders. It also updates on funding for eating disorders services.

Mental Health Act annual report 2013/14. This report assesses the use of the Mental Health Act and explores the experiences of patients who received care under the act throughout 2013/14. It finds that uses of the MHA have grown by 6% since 2012/13. In CQC's monitoring visits, they found that too often patients were not involved in their own care and treatment and concerns were raised around bed availability and patients being detained too far away from home.

Care services for people with learning disabilities and challenging behaviour. The Government continues to miss targets for the care of people with learning disabilities and challenging behaviour, according to a report by the National Audit Office. This report finds that the Government did not meet its goal of transferring people with learning and behavioural conditions from mental hospitals into the community by 1 June 2014. 

News
Norfolk and Suffolk NHS Foundation Trust has become the first mental health facility to be put into special measures, after the health sector regulator, Monitor, decided it required urgent improvements. The decision follows an earlier inspection in February 2015 by the Care Quality Commission (CQC) which gave the trust a rating of 'inadequate' and identified several concerns relating to the safety of services, staffing levels and leadership.

£75,000 charitable grant to fund national review to assess needs for veterans’ mental health. Announces that the Forces in Mind Trust (FiMT) has awarded £75,000 to NHS England to fund a national review of Health Needs Assessments for veterans’ mental health and other health related needs. The work will be a collaboration between NHS England and Community Innovations Enterprise (CIE).

Bevan Brittan Events
New Code of Practice: Mental Health Act 1983. 05 March 2015 : 10:00 - 11:00 (registration opens at 09:30) Location: Bevan Brittan LLP, Kings Orchard, 1 Queen Street, Bristol, BS2 0HQ. The Mental Health Act Code of Practice was last revised in 2008. Since then, there have been huge changes in legislation, policy, case law and professional practice. Subject to Parliamentary approval, a new Code of Practice will come into force on 1 April 2015 which aims to reflect and embed developments since 2008. This seminar looks at the changes to the Code.

Annual Mental Health Seminar - Click on any of the links below to register your interest
 Bristol - 22 April
 London - 5 May
 Birmingham - 6 May

Bevan Brittan Updates
Deprivation of Liberty & Supported Living Arrangements: The Streamlined Court Process – What you need to know Following last year's Supreme Court landmark judgments (P v Cheshire West and Chester Council; P & Q (aka MIG and MEG) v Surrey CC [2014] UKSC 19) an increased number of incapacitated adults in supported living arrangements across England and Wales now fall within the ambit of being deprived of their liberty. In considering whether a person is deprived of his or her liberty, attention should focus in particular on whether the person concerned is under continuous supervision and control and whether that person is free to leave. 

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

Publications/Guidance
The future of GP out of hours care. The Royal College of General Practitioners (RCGP) has launched a paper describing the vital role general practice plays in providing out of hours care to patients and outlining a set of policy recommendations for how out of hours GP services can be better supported to meet the needs of patients. It argues that GPs who want to run out of hours services in their local areas should be awarded contracts without facing a 'David versus Goliath' struggle with large private companies. The College says that the regulations for awarding contracts should be clarified, and legislative changes made if necessary, to enable practices or groups of practices to take back their out of hours service without having to go through a competitive tender.

Moving services out of hospital: Joining up General Practice and community services? This report commissioned by the DH looks at the factors to be taken into account to increase the scope of services provided outside of hospitals. It considers the integration of primary care and community services needed to support the change.

GP payment schemes review. Review of the literature on primary care physician payment, methods and their impacts on physician behaviour. This report was commissioned by the Department of Health to provide background evidence to support policy development on primary care and the impact of payment structures. .

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

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Procurement

Publications/Guidance
Transparency requirements for publishing on Contracts Finder. The Crown Commercial Service has published guidance that applies to new procurements when the Public Contracts Regulations 2015 come into force on 26 February 2015. It is intended for contracting authorities across the public sector that publish on Contracts Finder. It sets out requirements on contracting authorities to ensure that any new procurement opportunities, above thresholds, are published on Contracts Finder (in addition to, or instead of, any other portal or publications route they may currently use). Once a contract has been awarded as a result of a procurement process, contracting authorities must also publish details of who has won the contract, the contract value, and for procurements below the EU thresholds, indicate whether the winning supplier is a small business or voluntary sector organisation. The Cabinet Office has also published an updated guide for SMEs that provides support on bidding for government contracts. 

Bevan Brittan Events
 Procurement Update - London morning. 21 April 2015 : 09:30 - 12:30 (registration opens at 09:00) Location: Bevan Brittan, Fleet Place House, 2 Fleet Place, Holborn Viaduct, London, EC4M 7RF.
 Procurement Update - Birmingham 22 April 2015 : 10:00 - 13:00 (registration opens at 09:30) Location: Bevan brittan LLP, Interchange Place, Edmund Street, Birmingham , B3 2TA.
 Procurement Update - London afternoon. 21 April 2015 : 13:30pm - 16:30pm (Registration from 1pm). Location: Bevan Brittan, Fleet Place House, 2 Fleet Place, Holborn Viaduct, London, EC4M 7RF
 Procurement Update - Bristol 23 April 2015 : 10:00 - 13:00 (registration opens at 09:30) Location: Bevan Brittan LLP, Kings Orchard, 1 Queen Street, Bristol, BS2 0HQ
Our first round of procurement updates events for 2015, covering recent UK and EU case law and significant developments in legislation, policy and practice. We will look into recent updates of the new Procurement Directives and what they will mean in practice as well as a selection of other important topics.

Bevan Brittan Updates
Bevan Brittan byte size procurement update 15: Public Contracts Regulations 2015 published. The new Public Contracts Regulations 2015 (SI 2015/102) were published and laid before Parliament on 5 February 2015. Most of the Regulations will come into force in England, Wales and Northern Ireland on 26 February 2015 but there are a few exceptions, where the Regulations will come into force at a later date.

Bevan Brittan byte size procurement update 16: Advertising on Contracts Finder - EU contracts. The Public Contracts Regulations 2015 are now in force. In this first of three Bytes on the "national provisions" we look at the requirements to publish information concerning contracts over the EU thresholds on Contracts Finder, in addition to publication in the Official Journal of the European Union. We will be following up with Bytes on the Contracts Finder rules for below threshold contracts and the new provisions on abolition and control of the pre-qualification stage.

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

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Providers

Publications/Guidance
NHS England and Monitor set out new tariff option for providers for 2015/16. Simon Stevens, CEO of NHS England and David Bennett, CEO of Monitor have written to providers of NHS-funded services setting out a new enhanced tariff option for 2015-16. There is also a parallel letter from CCG leaders and Simon Stevens to CCG commissioners.

For providers on meeting the regulations. The Care Quality Commission's (CQC) new enforcement policy will allow it to prosecute providers for poor care without having to issue a warning notice first. Guidance from CQC describes how the 46,000 health and adult social care providers and services across England can meet the Government's new Care Regulations, which include the fundamental standards below which care must never fall. The guidance applies from April 2015, and replaces the CQC's 'Guidance about Compliance: Essential standards of quality and safety'.

Helping the NHS help itself. This briefing outlines Monitor's decision on setting up a new directorate to support NHS providers. The directorate will help Monitor to understand better what needs to be done on the ground, and work with other bodies to try to make sure effective support is available to NHS providers.

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

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Public Health

Publications/Guidance
Making the case for tackling obesity - why invest? This set of infographic slides identifies reasons why it is important for local authorities and others to invest in tackling obesity. The slide set illustrates the facts and figures about obesity, the costs, the benefits of investing and the potential routes to action. An accompanying reference sheet is included.

Tackling tobacco and nicotine dependency. The transfer of public health responsibilities from the NHS to local government and PHE represents a unique opportunity to set out a local approach to tackling tobacco and nicotine dependency and change the focus from treatment to prevention. The LGA's report outlines a raft of measures which councils would like to take to tackle smoking. It is proposing that these should be paid for by reinvesting a fifth of existing duty on tobacco.

Transfer of 0 to 5 children’s public health commissioning to local authorities: mandation factsheets. DH has published two mandation factsheets that explain the responsibilities of local authorities after the transfer, and how and why the commissioning and associated funding are being transferred.

A guide to community-centred approaches for health and wellbeing. The transfer of public health to local government has created opportunities for healthcare to become more community-centred, according to a report from Public Health England and NHS England. The report suggests how local leaders can implement strategies involving the community. It also recommends that the most vulnerable should be particularly included to address any inequalities.

Supplementary guidance for health protection teams involved in prevention and control of influenza and other respiratory viral infections among care home residents. Additional guidance on managing seasonal influenza: identifying pathogens and transmission routes for acute respiratory disease in care homes.

Legislation
Smoke-free (Private Vehicles) Regulations 2015 (SI 2015/286). These regulations, which come into force on 1 October 2015, extend the existing smoke-free legislation made under Part 1 Chapter 1 of the Health Act 2006 by setting out the circumstances when private vehicles are smoke-free, in order to protect children from the harms of secondhand smoke in private vehicles. People failing to comply could face a £50 fixed penalty notice.

Consultations
Consultation – introduction of regulations for standardised packaging of tobacco products: Summary report. In June - August 2014 DH consulted on whether to introduce standardised packaging of tobacco products. This report provides an overview of the responses received and a summary of the main themes that emerged in response to the specific questions asked in the consultation document.

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

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Regulation

Publications/Guidance
The performers lists and suspension – Government response. The DH has adopted a policy of automatically suspending a practitioner from a performers list, in circumstances where they have been suspended by their regulator under an interim order. The decision follows responses to a consultation on draft amendment regulations, in which none of the 53 respondents thought that the current position of removing a practitioner from the performers list was appropriate. The NHS Performers List Regulations 2013 (SI 2013/335) will be amended, to come into force by April 2015.

Implementing the NHS five year forward view – Aligning policies with the plan. This new paper from The King’s Fund calls for fundamental changes to how health services are commissioned, paid for and regulated to deliver the vision of the NHS five year forward view. The paper focuses on key areas in which The King’s Fund has particular expertise, namely: how services are commissioned and paid for; regulating the NHS; how local leaders deliver improvements in care the contribution of a transformation fund. It makes practical recommendations on what to do now to remove barriers to developing new care models and to support their implementation. Looking ahead, it argues that national leadership of the highest order will be needed to meet the challenges inherent in delivering these changes.

Bevan Brittan Events
The New Regulatory Landscape for Independent Healthcare. 04 March 2015 : 14:00 - 17:30 (registration opens at 13:30). Location: Bevan Brittan, Fleet Place House, 2 Fleet Place, Holborn Viaduct, London, EC4M 7RF. Two years on from the Mid Staffs Inquiry, and following on from its partial introduction in the NHS and CQC's piloting of its inspection methodology, the new regulatory system starts in earnest for independent healthcare providers in April 2015. The new system will bring clearer standards and new duties of candour and transparency. Services will be assessed by CQC under a new quality rating system, and non-compliance is more likely to lead to enforcement at corporate level (whether through prosecution or the use of a 'special measures' regime) coupled with personal accountability at director level through the new 'Fit and Proper Person' test.

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

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General

Publications/Guidance
Helping the NHS cope with system pressures. NAVCA has published a short briefing demonstrating the important role that charities and community groups can play in reducing pressures on health systems, such as A&E, and to improve health outcomes. NAVCA members can be key to this work by connecting local health bodies to the local organisations that can help. The examples show many different ways in which charities and community groups support health outcomes and how the co-ordinating role of local infrastructure can be key to helping local health bodies’ work with smaller organisations.

Preventing and addressing intimate partner violence against migrant and ethnic minority women: the role of the health sector. This policy brief aims to provide input into the role of the health sector in preventing and addressing intimate partner violence among migrant women and ethnic minorities. It describes the scope of the problem, presents key evidence, and makes recommendations for health policy and health systems, health facilities and health service providers.

Healthcare UK promotional material. Healthcare UK, the UK Government’s specialists in international healthcare partnership working, have produced promotional material on how countries can benefit from the UK's healthcare skills and expertise:
 The UK: your partner for healthcare training
 The UK: your partner for health systems development
 The UK: your partner for clinical services
 The UK: your partner for digital health solutions
 The UK: your partner for healthcare infrastructure

Surplus NHS land: a best value alternative. The National Housing Federation has published a briefing that highlights how spending on the NHS in England has almost doubled since 1999/2000. Amid projections that the shortfall in funding for the NHS in England is likely to reach £30bn by 2021, selling land on the open market can be appealing to NHS trusts. But to achieve best value and a long term solution, a more creative approach to land disposal is needed. The briefing explains various approaches to joint ventures with housing associations that can assist with the transformation of services, improve on quality, reduce hospital admissions and create an ongoing revenue stream resulting in cost savings.

Expert patients. Reform has published new research exploring how patients can be more engaged in their health and more involved in their healthcare. The report argues greater patient engagement could both improve outcomes and reduce costs. it argues that the NHS should embrace patient engagement as a key means to achieve its £22bn target. In recent years, a considerable range of evidence has shown that patient engagement can improve both outcomes and use of resources. At a time when services are stretched, helping patients to manage their own conditions can reduce demand on traditional services.

MyNHS: greater transparency for better health and care: MyNHS planning 2015-2017. The MyNHS site is a single place where health and care organisations, as well as the public, can compare the performance of services over a range of measures, at both local and national level. This document summarises the current plans for how the information on MyNHS will be expanded and improved between 2015 and 2017. DH, NHS England, HSCIC, CQC and PHE are working together on how this site can be improved and are keen to hear suggestions about how to develop it and help make it as useful as possible.

Key statistics on the NHS. NHS Confed updated research.

The NHS under the Coalition Government. This major assessment of the Coalition Government's record on NHS reform by the King's Fund states that while claims of widespread privatisation are exaggerated with less than 10% of the NHS budget spent on non-NHS providers, the emphasis on competition has resulted in greater complexity and uncertainty about when contracts should be put out to tender.

Guidance on the regulations for electronic instructions for use of medical devices Medicines and Healthcare Products Regulatory Agency guidance on medical devices legislation provides advice on Regulation 207/2012 which allows manufacturers of certain types of medical devices and accessories to provide electronic instructions for use if they wish.

Legislation
National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238). These regulations, which come into force on 6 April 2015, revoke and replace SI 2011/1556 and provide for the making and recovery of charges for relevant services provided under the National Health Service Act 2006 (the 2006 Act) to certain persons not ordinarily resident in the UK (overseas visitors). They implement changes in policy around the charging of overseas visitors for NHS services, including: the immigration health charge; commercial charging of overseas visitors; removal of overly generous or superfluous existing exemptions from charges for overseas visitors; and new, or expand existing, exemptions from charges for particularly vulnerable overseas visitors. See also the Equality Analysis that assesses the effect of the changes introduced by the regulations on overseas visitors with ‘protected characteristics’ compared to the rest of the overseas visitor and ordinarily resident population.

Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2015 (SI 2015/242). These regulations, which come into force on 3 March 2015, amend SI 1993/176 so as to exempt persons riding in a motor ambulance from the requirement to wear a seat belt while that person is providing medical attention or treatment to a patient which due to its nature or the medical situation of the patient cannot be delayed.

Human Medicines (Amendment) Regulations 2015 (SI 2015/323). These regulations, which come into force on 1 April 2015, amend SI 2012/1916 to allow supply and administration of medicines under a patient group direction (PGD) by paramedics employed by Maritime and Coastguard Agency contracted helicopter search and rescue operators. The Regulations also allow Public Health England and the NI Public Health Agency, to supply prescription only medicines under a PGD.

Social Value Act review. This review by Lord Young examines how the Public Services (Social Value) Act 2012 has been performing in its first two years. It finds that the Act is having a positive effect where it is taken up, and that it has clear potential to act as a tool for smarter procurement given the right application. The review also makes recommendations around how to further develop the social value agenda and to move the Act into its next phase of implementation. The report includes case studies, practical guidance on how to apply the Act, and a framework and principles for measurement. The Minister for the Cabinet Office Rob Wilson has written to Lord Young asking him to prevent the Act’s thresholds from increasing to €750,000 for many services when the new Public Contracts Regulations 2015 come into force. 

News

NHS 111 helpline adds to strain on doctors, says BMA. The FT reports that the BMA is claiming that the NHS 111 helpline is adding to strains on GPs, as well as accident and emergency departments by advising people with colds or sore thumbs to visit doctors. Based on its analysis of official data, the BMA said the number of telephone callers to NHS 111 that were referred to GP services had risen 186% between 2013 and 2014 and referrals to accident and emergency departments were up 192%.  

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