29/05/2015
Bevan Brittan provides high quality, comprehensive advice to the NHS and independent healthcare sector. This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in health and social care work, both in the NHS and independent sector which have been published in the last month.
If you have been forwarded this update by a colleague and would like to receive it directly, please email Claire Bentley.
 Care |
Information Sharing |
| Clinical Risk/Health and Safety |
Mental Health |
| Commissioning |
Primary Care |
| Emergency Care |
Public Health |
| Employment/HR |
Regulation |
| Foundation Trusts |
General |
Care
Publications/guidance
Palliative and end of life care. Palliative and
end of life care refer to the care of people who have an incurable
and progressive illness. This briefing note provides an overview of
palliative care and its key components, approaches to managing and
standardising care and key challenges to providing high quality
care.
Dying without dignity. The Parliamentary and
Health Services Ombudsman has published a report featuring 12 cases
that illustrate the issues it regularly sees in its casework on end
of life care. End of life care is a recurring and consistent theme
in the PHSO's casework; it has also been a key issue for the NHS
for some time. The PHSO is committed to making sure that complaints
make a difference. By highlighting the key themes in its casework,
it can inform the debate about how to drive up standards to improve
the quality of end of life care offered across the country.
The future of life expectancy and life expectancy
inequalities in England and Wales: Bayesian spatiotemporal
forecasting. A new study forecasting how life expectancy will
change in England and Wales has predicted people will live longer
than current estimates. The researchers from Imperial College
London say official forecasts underestimate how long people will
live in the future, and therefore don’t adequately anticipate the
need for additional investments in health and social services and
pensions for the elderly. The new study, published in the Lancet,
also predicts that regional inequality in life expectancy will
increase, highlighting a need to help deprived districts catch up
with affluent areas.
Cases
R (Whapples) v Birmingham Crosscity CCG; Secretary
of State for Health (Interested Party) [2015] EWCA Civ 435
(CA). W appealed against the High Court's decision regarding
the extent of the CCG's obligation to provide her with
accommodation under s.3 of the NHS Act 2006 and the National
Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care
2012. W had severe physical symptoms resulting from PTSD and she
was tetraplegic. She applied for a ruling that the CCG had an
obligation under s.3 NHS Act 2006 to provide her with
accommodation, as part of the health care package with which it
should provide her free of charge under the NHS. The CCG conceded
that it had power under s.3(1)(b) to provide or pay for private
accommodation but contended that the statutory regime and National
Framework imposed no such obligation.
The court held, dismissing the appeal, that there was no question
that W was entitled to NHS continuing healthcare under s.3. The
context of the National Framework was to establish how those in
need of care should receive it, whether from the NHS, from local
authorities or both. Its aim was to ensure that there were no gaps.
Where ordinary residential accommodation was needed which the
patient could not arrange and fund for himself, the distribution of
responsibility placed such accommodation needs upon local
authorities, rather than the NHS. If the patient could provide his
own accommodation, funded privately or with the assistance of
benefits, he was expected to do so. The National Framework did not,
in circumstances where a patient was receiving NHS continuing
healthcare in his own home, generally contemplate that the NHS
would be responsible for defraying the costs of that accommodation.
W's interpretation of the National Framework, if correct, would
have significant implications for NHS funding of private
accommodation and it was not consistent with the practical guidance
found elsewhere in the document. The judge was right to conclude
that the National Framework did not dictate the outcome that W
sought. The Secretary of State had developed the concept of a
"primary health need" as the criterion for deciding whether a need
should be met by the NHS or by a local authority under s.21 of the
National Assistance Act 1948 and the CCG was entitled to decide
that the provision to W of a private home (assuming that such
provision could fall within the terms of s.3(1)(b) of the NHS Act)
was not such a need.
There was no public law failing in the CCG's decision not to fund
alternative accommodation on the basis that it was likely to be
available through a housing provider or a housing authority. W had
capacity to make the relevant decisions and she had indicated her
willingness to explore alternative options. All bodies concerned
had been willing to assist her to find accommodation away from the
West Midlands. Effectively, there had been a standoff brought about
by W. She had declined offers of assistance in seeking alternative
accommodation unless the offer included an acceptance on the part
of the CCG to provide it or fund it. In the meantime, and contrary
to her own best interests, she continued to decline any assistance
with her care. The CCG was entitled to conclude either that W had
no reasonable requirement for accommodation provided or funded by
the NHS, or that it was not necessary to provide it (or both).
There was every reason to suppose that, with W's co-operation,
suitable alternative accommodation would be found for her.
If you wish to discuss any queries you may have around
regulation please contact
Stuart Marchant.
Back to top
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
Raising concerns: Guidance for nurses and
midwives. Raising concerns provides guidance for nurses and
midwives on raising concerns. It sets out broad principles that
will help them think through the issues and take appropriate action
in the public interest.
Bevan Brittan Articles
Quality Regulation: Ensuring you are Well-Led - meeting the
Governance, Quality and Workforce challenges. 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.
Bevan Brittan Events
Inquest Update Seminar 18 June 2015 : 10:00 - 13:00
(registration opens at 09:30 and the event will be followed by
networking lunch) Location: Bevan Brittan, Fleet Place House, 2 Fleet Place,
Holborn Viaduct, London, EC4M 7RF. Bevan Brittan’s Inquest
Update will provide a review of recent case law and guidance from
the Chief Coroner as well as an update on the progress and effect
of the implementation of the Coroners and Justice Act 2009. This
session is a great opportunity to join an interactive session and
share experiences.
If you wish to discuss any clinical risk or health and safety
issues please contact
Joanna Lloyd or
Stuart Marchant. Back to top
Publications/Guidance
Public Contracts Regulations 2015 – Statutory
guidance for contracting authorities and suppliers on paying
undisputed invoices in 30 days down the supply chain. Updated
statutory guidance to contracting authorities on the payment of
valid and undisputed invoices within 30 days.
If you wish to discuss the issue of commissioning please contact David Owens.
Back to top
Emergency CarePublications/Guidance
Acute care collaboration. NHS England is
inviting expressions of interest from all providers of acute
services, including small hospitals, that are interested in
developing new ways of delivering and improving their local acute
services. The aim of these new vanguard sites is to enhance the
viability of local hospitals through new formal shared working
arrangements between clinical specialists at different hospitals,
and to improve efficiency by sharing back office administration and
management between different sites. Detailed information and
guidance for the process on selecting sites is in Registering interest to join the New Care Models
Programme: New models of acute care collaboration. The closing
date for applications is 31 July 2015.
Rip off the sticking plaster now: Enabling the
local implementation of sustainable urgent and emergency care
models in 2015/16. Without immediate action, the NHS is set for
a winter crisis in 2015/16. NHS organisations need to take rapid
action now if they are to implement solutions that will prevent
this from happening. Planning and policy guidance have been issued
in disparate documents across a number of months, and have been
affected by the electoral cycle. This NHS Confederation report
collates the guidance and urges immediate action from NHS
organisations, national bodies and the incoming Government.
Consultations
Standards for the non-specialist emergency surgical
care of children. The Royal College of Surgeons is seeking
views on draft new standards for services delivering emergency
surgical care for children and young people up to the age of 19
years. The document is intended for use by commissioners, service
managers, and clinicians. The aim of the standards is to ensure
emergency surgical services for young people meet expected levels
of quality and attain excellent outcomes in relation to governance,
organisation of care, patient experience, training and service
delivery. The consultation closes on 26 June 2015.
Bevan Brittan Articles
Acute Care Collaboration Vanguards. NHS England has launched
the Acute Care Collaboration Vanguard Programme for smaller acute
hospitals to develop and test innovative ways of delivering high
quality acute care for patients. Organisations and partnerships
have until 31 July 2015 to submit an Expression of Interest in
becoming a Vanguard site for new models of acute care
collaboration.
If you wish to discuss the issue of emergency care please
contact
Claire Bentley. Back to top
Employment/HR
Publications and Guidance
International recruitment: quick guides for
employers. This range of quick guides to international
recruitment for employers has been updated to reflect changes to
new immigration rules that came into effect on 6 April 2015. These
resources have been designed to help employers gain a concise
understanding of some important elements of the international
recruitment process.
Workforce planning in the NHS. This King's Fund report looks at past experience with NHS workforce planning and the challenges facing workforce planning in the future, in the light of changing health care needs and the need to deliver the future care models outlines in the NHS five year forward view. The report focuses on three areas key to providing integrated care: mental health, primary care and community nursing.
Medical union to seek legal advice on treatment of
young doctors. The British Medical Association is seeking legal
advice on the treatment of young doctors by their NHS employers,
amid concerns that it may be in breach of the Human Rights Act
1998. Junior doctors usually have little to no say over when and
where they work, or when they take their holidays. Although they
work on average 46 to 47 hours a week, this can include spells in
which they are contracted to work 12 days in a row.
PM on plans for a seven-day NHS. The Prime
Minster has given a speech setting out his plans for "a 7-day NHS,
safe in our hands - for every generation to come". He confirmed his
pre-election pledge to increase budgets by at least £8bn a year by
2020 and promised to recruit 5,000 new GPs.
Bevan Brittan Articles
Employment news round up, May 2015 . Anne Palmer provides the first News Round Up of the
new financial year, and covers: new restrictions on zero hours
contracts now in force (along with a number of other changes which
are effective this month); the new 'IP' process for dismissing and
disciplining local authority 'protected officers'; the latest in
the ongoing holiday pay saga; what the new government has in store
for employment law; and, finally, the latest on the Fit for Work
scheme – check whether your area is covered on the 'roll out'
map.
Managing Misconduct Ashley Norman looks at two recent cases which provide helpful clarification on two potentially knotty problems which may arise during disciplinary proceedings: (1) what happens if an employee raises a grievance during a disciplinary process; and (2) are employers entitled to rely warnings which have been given in bad faith?
What's not to 'like'? Social media and the workplace. The impact of social media on working life has been steadily increasing in recent years, and it is now an issue which employers ignore at their peril. Jodie Sinclair outlines five key issues and practical steps to consider in relation to social media and the workplace.
If you wish to discuss any
employment issues please contact Julian
Hoskins or
James Gutteridge. Back to top
Foundation Trusts
News
Foundation trusts face challenging year as
pressures mount. Monitor reports that FTs treated 10.7m
emergency in-patients between April 2014 and March 2015, a 574,000
increase on the previous year. In addition, there was also a
significant increase in non-emergency patients. However, this
increase in demand for care, combined with an over-reliance on
expensive agency staff and the need to make cost savings, is
putting trusts under sustained and exceptional pressure. Overall,
the 152 FTs missed a number of national waiting times targets for
A&E, routine operations and some cancer treatments for the
entire year. The sector also ended 2014/15 in deficit (-£349m) for
the first time, in a further sign of the increased pressures upon
services.
If you wish to discuss any issues relating to
foundation trusts please contact
Vincent Buscemi. Back to top
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
Information sharing protocol. Ofsted has
published a protocol for sharing of pre-publication reports and
other information regarding services for children and vulnerable
adults.
Bevan Brittan Articles
Data sharing: The blurred line between protecting patient data and
protecting patients Fear of making costly mistakes
in respect of data sharing has led to passivity and in some cases
fatal inaction by a number of health sector bodies. This has been
highlighted recently by a number of high profile incidents in the
context of health and social care, meaning that data sharing is now
firmly in the limelight.
If you wish to discuss any of the items raised in the above
section please contact Jane Bennett. Back to top
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
Learning disabilities census report - Further analysis,
2015. This report, published by the Health and Social Care
Information Centre, gives a snapshot of the experiences of people
with learning disabilities who are inpatients in either NHS or
independent services, and provides a new insight into regional
variations of care. The publication includes information about: the
use of antipsychotic medication, and the frequency of experiences
of self-harm; accidents; physical assault; restraint and seclusion.
It also reports on: the length of stay and distance from home; the
number of patients with an agreed care plan; the reason for the
patient being in inpatient care; and how many patients have been
receiving continuous inpatient care since the census in 2013. This
information was published at a national level in January 2015, but
is here broken to down to NHS Area Team level for the first
time.
Cases
Re MN [2015] EWCA Civ 411. The Court of
Protection held that, when making decisions on behalf of
incapacitated adults, the court was limited to the available
options and could not compel a public authority to agree to a care
plan which it was unwilling to implement. The court should
avoid making declaratory orders, and said that it needed to learn
from the revolution that had taken place in the family justice
system so as to take a firm grip of case management. Simon Lindsay
has prepared an update on this looking at the practical
implications of this case. This is available on the Bevan Brittan
Mental Health Extranet. For more information please contact
Claire Bentley.
RE G (An Adult by her Litigation Friend the Official Solicitor (Costs)) sub nom G (An Adult) v (1) Associated Newspapers Ltd (2) Redbridge LBC [2015] EWCA Civ 446. The OS had taken an overly rigid stance to an order limiting media contact with an elderly lady for whom he was acting as litigation friend in personal welfare proceedings in the Court of Protection, and had no grounds for challenging an adverse costs order when a newspaper applied to be joined as a party to the proceedings so as to maintain contact with the lady. While the joinder application failed, the newspaper had succeeded in clarifying a point of principle.
News
Theresa May pledges £15m to keep mentally ill
people out of police cells. The Government has set out
proposals to provide up to £15m in alternatives to police cells for
people detained under the Mental Health Act 2007. Under a new
Police and Sentencing Bill, to be announced in the Queen's Speech,
the law will be changed so those under the age of 18 are never
taken to police cells if detained under the Mental Health Act 2007
ss.135 and 136.
If you wish to discuss any of the items raised in the above
section please contact
Simon Lindsay or
Stuart Marchant. Back to top
Primary Care
Publications/Guidance
Performance of new alternative providers of primary
care services in England: an observational study. A new study
by researchers at Imperial College London, published in the Journal
of the Royal Society of Medicine, has found that alternative
providers of primary care in the NHS do not perform as well as
traditional GP practices. Alternative providers, including private
companies and voluntary organisations, have been contracted to
offer primary care in the NHS since 2004 under reforms designed to
increase competition. These providers performed worse than
traditional GP practices on 15 out of 17 indicators after adjusting
for the characteristics of the practices and the populations they
serve.
Facing the future together for child health.
The Royal College of Paediatrics and Child Health, the Royal
College of General Practitioners and the Royal College of Nursing
have developed a new set of standards that apply across the
unscheduled care pathway and aim to improve health care and
outcomes for children and young people with acute illness.
Healthcare professionals are warning that unless there is an
overhaul of unscheduled care services, there is a risk that growing
demand will result in poorer outcomes for children; in order to
deal with these pressures, and to improve child health outcomes,
not only do unscheduled care services need more investment but
there also needs to be a shake-up of how services are designed,
with more children being cared for outside the hospital, in the
community and closer to their home. This paper sets out three
overarching principles and 11 standards that are designed to
improve healthcare services for children and ensure that specialist
child health expertise and support are available to strengthen
primary care services, supporting GPs to care for children safely
in the community. The Colleges have jointly developed an implementation plan to support the
implementation of the standards across the UK.
News
GP out-of-hours reforms linked to more emergency
admissions for children. A study published in Annals of Family
Medicine, funded by the National Institute for Health Research,
concludes that government reforms of GP working practices in 2004
were associated with a rise in potentially avoidable emergency
admissions for children. The reforms altered GP contractual hours,
allowing GPs to opt out of providing care out of surgery hours. A
financially incentivised scheme aimed at improving quality of care
provided mainly to adults was also introduced, which possibly
detracted focused care from children. The study by Imperial College
London found that the GP contract was associated with an 8%
increase in short stay admissions for potentially avoidable chronic
conditions. Over half of the 7.8m unplanned admissions from 2000 to
2012 were short stay admissions for potentially avoidable
infectious and chronic conditions.
Over 55 million patients in England can now book GP
appointments, order repeat prescriptions and access summary
information in their medical record online – according to latest
figures. Data published by the Health and Social Care
Information Centre (HSCIC) shows that the number of GPs offering
appointments, repeat prescriptions and access to summary
information in medical records online has tripled in the first
three months of the year with almost every GP surgery in England
offering the service. Over 97% of patients in England can now take
advantage of online services, a huge increase from the 3% in April
2014.
If you wish to discuss any queries you may have around primary
care please contact
David Owens. Back to top
Public Health
Publications/Guidance
Heatwave Plan for England. PHE and the DH have
issued the latest Heatwave Plan for England that aims to prepare
for, alert people to, and prevent, the major avoidable effects on
health during periods of severe heat in England. It recommends a
series of steps to reduce the risks to health from prolonged
exposure to severe heat for: the NHS, local authorities, social
care, and other public agencies; professionals working with people
at risk; and individuals, local communities and voluntary
groups.
If you wish to discuss any queries you may have around public
health please contact Olwen
Dutton. Back to top
Regulation
Publications/Guidance
Memorandum of Understanding between Monitor and the
General Medical Council. A memorandum of understanding sets out
a framework to support the working relationship between Monitor and
the General Medical Council. The working relationship supports a
co-ordinated regulatory system for healthcare in England which
exists to ensure the health sector works well for patients,
promotes patient safety and delivers quality healthcare.
Bevan Brittan Articles
Quality Regulation: Ensuring you are Well-Led - meeting the
Governance, Quality and Workforce challenges. 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.
Health and Social Care Regulatory Due Diligence Support Our team is at the forefront of major regulatory changes affecting the health and social care sector and has extensive experience of advising clients on a wide range of regulatory issues including specialist transactional due diligence.
If you wish to discuss any queries you may have around
regulation please contact
Stuart Marchant. Back to top
General
Publications/Guidance
Every patient a research patient? Evaluating the
current state of research in the NHS. This Cancer Research
UK-commissioned report from the University of Birmingham finds that
daily pressures on the NHS are having a serious impact on its
ability to support world-leading research into cancer. The report,
led by Hilary Brown of the Health Services Management Centre and
based on interviews with clinicians, nurses and administrators
involved in NHS clinical cancer research, revealed pockets of
excellence in clinical research, but also showed how escalating
pressures to deliver routine NHS services are squeezing out time
for hospital staff to do vital research. It also highlights how
financial pressures are affecting research infrastructure and the
capacity of host organisations to fund additional research
costs.
Do patients choose hospitals that improve their health? This paper from the Centre for Health Economics looks at how patients in the English NHS choose which hospital to attend for planned surgery. It focuses on two key aspects of hospital choice: the extent to which patients are more likely to choose hospitals which are expected to achieve larger improvements in patients’ health; and whether patients’ response to quality differs with their morbidity, as measured by pre-operative health status, and other characteristics such as age or income deprivation. It finds that health improvements are more important for the choice of hospital than readmission or mortality rates. However, patients’ reaction to quality information is generally limited: even for large changes in quality patients would only be willing to travel few kilometres more. But because the market for hip replacement surgery is large, individual hospitals can attract a substantial number of extra patients if they can improve their quality.
Social networking guidance. This guidance, which underpins the Code, covers the need to use social media and social networking sites responsibly. It is not intended to cover every social media situation that a nurse or midwife may face, however it sets out broad principles to enable them to think through issues and act professionally, ensuring public protection at all times.
Enhanced Services business rules v5.0. The Health and Social Care Information Centre (HSCIC) has published the 2015/16 enhanced services business rules for dementia, learning disabilities, rotavirus and pneumococcal.
Legislation
Queen's Speech 2015. The Queen has outlined the
Government’s legislative programme for the next year, on the State
Opening of Parliament. Items of particular interest to the health
sector include:
Health and Social Care Bill: will
implementing the National Health Service's own five-year plan, by
increasing the health budget, integrating healthcare and social
care, and ensuring the National Health Service works on a seven day
basis. Measures will be introduced to improve access to general
practitioners and to mental healthcare. Policing and Criminal Justice
Bill: includes reform of legislation on the detention of people
under ss.135 and 136 of the Mental Health Act 1983 to ensure better
outcomes for those experiencing a mental health crisis.
consultation on proposals for a Bill
of Rights to replace the Human Rights Act.
Her Majesty also announced:
changes to the House of Commons'
Standing Orders so that decisions affecting England, or England and
Wales, can be taken only with the consent of the majority of
Members of Parliament representing constituencies in those parts of
the UK;
early legislation on an in-out
referendum on membership of the European Union before the end of
2017;
Charities (Protection and Social
Investment) Bill that will give charities a new power to make
social investments (pursuing both a financial and social return),
along with clear duties when so doing.
For further details, see the Government's Background briefing notes.
News
Scaling up improvement. The Health Foundation
is inviting bids for a share of £3m funding to support up to seven
projects that aim to improve health care delivery and/or the way
people manage their own health care, through redesign of processes,
practices and services. Projects need to show how ideas,
interventions and approaches that have been tested and shown to
improve care at a small scale can be delivered at a larger scale.
Applications are encouraged from any health or health and social
care provider organisation in the UK where services are free at the
point of delivery. The closing date for the first stage of the
application process is 2 June 2015.
How professional are medical students? A survey to
find out more about the professional values of the UK’s medical
students.
Medical union to seek legal advice on treatment of
young doctors. The British Medical Association is seeking legal
advice on the treatment of young doctors by their NHS employers,
amid concerns that it may be in breach of the Human Rights Act
1998. Junior doctors usually have little to no say over when and
where they work, or when they take their holidays. Although they
work on average 46 to 47 hours a week, this can include spells in
which they are contracted to work 12 days in a row.
If you wish to discuss the issue of emergency care please
contact
Claire Bentley. Back to top
