Health and Social Care Update - February 2018

Policy and law relevant to those involved in health and social care work.

15/02/2018

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. 

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Training Events

Mental Health

Acute and emergency care

Primary Care

Children

Procurement

Clinical Risk/Patient Safety

Providers

Commissioning

Public Health

Employment/HR

Regulation

Finance

Social care 

Independent Healthcare

General 

Information sharing/data

 

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Bevan Brittan Free Training Events

A Practical Approach to the General Data Protection Regulations ("GDPR") for the NHS
London - Tuesday 13 March 2018, 09:30
Bristol - Wednesday 14 March 2018, 09:30
Birmingham - Tuesday 20 March 2018, 09:30

Health Technology and Transformation- Risk and Market Issues
London Monday 19 March 2018, 16:00

Clinical Risk Webinars

Bevan Brittan Clinical Risk/Medical Law Training - These are internal hour long lunch time training sessions that are attended by our team of solicitors. If you are a client and would like to come along and join our team at these sessions just ask Claire Bentley.

You can attend in our London, Bristol or Birmingham office. If you are unable to get to one of our offices you can also sign up to watch the training sessions remotely via our webinar facility. The  lunchtime training sessions coming up are:-  

  • Defending pressure sore claims - 27 February 12.30pm - 2pm
  • Mental Health Update - 27 March 12.30pm - 2pm

In addition to our free training programme, we also provide bespoke knowledge transfer sessions on a range of healthcare law topics. If you wish to discuss any queries you may have around training or webinars please contact Claire Bentley.  

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Acute and emergency care

Publications/guidance 

In and out of hospital. This Red Cross report proposes automatic home assessments and other simple interventions for older and vulnerable people to reduce avoidable hospital admissions. The report contains analysis of first-hand accounts of frontline health and care workers who argue that there are too many missed opportunities to prevent many of these admissions.

NHS winter pressures in England 2017/18. This Commons Library briefing summarises the current data on winter pressures in the NHS, including ambulance handover delays, bed occupancy, norovirus bed closures, and diverts between accident and emergency departments.

A&E performance reaches a new low. This King's Fund blog looks at what the latest national data say about how A&E departments are coping compared with previous winters.

Black alerts: for emergencies only? This King's Fund blog considers whether the frequency of black alerts this winter is putting staff and patients under unsustainable pressure.

No hospital is an island – learning from the acute care collaborations. This report covers the learning from 13 acute care collaborations that were established in September 2015 as part of the new care models programme. It highlights six common strategies that have emerged, including the way clinical practices are being standardised; how vanguards are making better use of clinical support services; and how the skills of healthcare professionals are being used more creatively and flexibly. 

If you wish to discuss any queries you may have around acute and emergency care please contact Claire Bentley.  

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Children

Publications/guidance 

Transition from child and adolescent mental health services to adult mental health services This report outlines the findings of an investigation into the transition between mental health services for young people and those for adults.

Cases

Re A-F (Children) [2018] EWHC 138 (Fam) The President of the Family Division gave guidance on the circumstances in which ECHR art.5 would be engaged in relation to a child in the care of the local authority, and the processes and procedures necessary to ensure there was no breach.

News

Isaiah Haastrup: baby's life support can be withdrawn. Mr Justice MacDonald has ruled that doctors at King's College hospital in London can withdraw the life support of 11-month old Isaiah Haastrup against his parents' wishes. Lawyers for the NHS foundation trust told that court that "overwhelming medical evidence" demonstrated that withdrawing life-sustaining medical treatment was in the best interests of the child. Isaiah's parents wished for treatment to be continued in the hope that they would be able to take their son home.  

Health Secretary orders review of parents' registering rights after miscarriage. Secretary of State for Health and Social Care Jeremy Hunt has ordered a review to examine whether existing legislation should be changed to give new rights to parents who experience a late miscarriage, where currently parents have the right to register only babies following a 24 weeks gestation or more, which are defined as stillborn. It also focuses on how the NHS could improve access to gynaecological, maternity and bereavement care to help parents recover from late miscarriage.

Bevan Brittan Updates

Children and Young People's Mental Health: The Vision for Change in Service Provision

The transition between Children and Adult Mental Health Services – How can you improve?

If you wish to discuss any queries you may have around children please contact Deborah Jeremiah.   

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Clinical Risk/Patient Safety

Publications/Guidance  

2017 survey of women's experiences of maternity care. This report finds that, overall, women reported positive experiences of maternity care in 2017 and there were small incremental improvements in results across almost every survey question. While there have been general improvements overall, the results highlight the need for better communication from health professionals and greater patient choice.

5 years on: responses to Francis: changes in board leadership and governance in acute hospitals in England since 2013. This report, written in partnership with the University of Manchester and the Nuffield Trust, reveals that hospital boards are giving care quality and safety a high priority, and many invested significantly in nurse and medical staff after the Francis Report. However, some hospital boards feel quality assurance is a pressure, as the demands of multiple external regulators are burdensome, threatening to distract from a focus on the actual work of service improvement.

Investigation into clinical correspondence handling in the NHS. The NAO has investigated how NHS England has handled a backlog of 374,000 items of unprocessed clinical correspondence . 2 February 2018

Revised Never Events policy and framework. The Never Events policy and framework sets out the NHS’s policy on Never Events. It explains what they are and how staff providing and commissioning NHS-funded services should identify, investigate and manage the response to them. It is relevant to all NHS-funded care.

Fatigue and sleep deprivation – the impact of different working patterns on doctors. This BMA briefing highlights why doctors are at risk of fatigue and the acute and long-term impacts this can have. It also presents a framework for how Government, organisations and doctors themselves can manage this risk.  

Guidance to doctors working under system pressure. The GMC's Chief Executive sets out guidance for doctors dealing with the current high-demand across the health service.

Consultations

Consultation on safe and effective staffing in health and social care. A Scottish Government publication summarises responses to its consultation on proposals to introduce legislation that would require organisations providing health and social care to apply workforce planning methodologies and tools, ensure that workload and workforce planning is underpinned by key methodology, and provide assurance regarding safe and effective staffing. Responses highlighted that a focus on achieving better outcomes should be at the heart of the legislation, and that the main area of divergence was around whether legislation should span social care, given existing statutory frameworks that operate in these settings.

Cases  

London Organising Committee of the Olympic and Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB). The claimant had been fundamentally dishonest in making a claim for damages to which he was not entitled. Some documents had been forged in support of that claim. The “substantial injustice” exception could not be applied. The court set out the correct approach to applications under the Criminal Justice and Courts Act 2015 s.57 to have a personal injury claim dismissed for fundamental dishonesty. 

Tracy Hassell v Hillingdon Hospitals NHS Foundation Trust.  Tracy Hassell, left paralysed when spinal surgery went wrong, has been awarded £4.4 million the judge ruled the spinal orthopaedic surgeon did not properly explain the risks of the procedure and that Ms Hassell had not given informed consent.

General Medical Council v Dr Bawa -Garba [2018] EWHC 76 (Admin) Following a doctor's conviction for manslaughter by gross negligence, the jury having reached a verdict that her "truly exceptionally bad" failings had contributed to a child's death, the appropriate sanction to maintain public confidence in the medical profession was to erase the doctor's name from the register. In deciding instead to suspend her registration for one year, the Medical Practitioners Tribunal had erred in reaching its own view of her personal culpability and given insufficient weight to the verdict.  Following this case Jeremy Hunt has announced a review of medical manslaughter

News  

Health service leaders call for compensation payouts that could bankrupt the NHS to be capped. In a letter to the Lord High Chancellor of Great Britain, David Gauke, the NHS Confederation, the British Medical Association and the Academy of Medical Royal Colleges have called for limits on compensation paid to patients who suffered injuries through medical errors, where the cost of such payouts has almost doubled since 2011 at a potential cost of £65 billion and many doctors felt compelled to practise defensive medicine for fear of being sued.

Lawyers who target the NHS banned from advertising or setting up shop in hospitals. NHS hospitals will no longer provide office or advertising space for law firms or claims management companies who encourage patients or their families to take the NHS to court. Every effort must also be made to ensure lawyers and claims managers don’t approach patients or their families in hospital to drum up business without being asked first.

Vaginal mesh: England review into scale of harm. The government has agreed to carry out a full audit of how many women in England have suffered complications as a result of vaginal mesh implants.

1990s medical negligence cases costing the UK millions

Compensation culture fault of "clumsy" legal system. Speaking to the Personal Injuries Bar Association annual lecture, Supreme Court Judge Lord Sumption argued that the UK's compensation culture is the fault of the legal system which is "clumsy and inefficient" and not the public. He notes that if the law entitles a victim to compensation "it ill becomes us to criticise him for knowing it and claiming".

Most women report better experiences of maternity care The results of the 2017 maternity survey show that women are reporting a more positive experience of maternity care and treatment. 

Webinars  

Bevan Brittan Clinical Risk/Medical Law Training - These are internal hour long lunch time training sessions that are attended by our team of solicitors. If you are a client and would like to come along and join our team at these sessions just ask Claire Bentley. You can attend in our London, Bristol or Birmingham office. If you are unable to get to one of our offices you can also sign up to watch the training sessions remotely via our webinar facility. The  lunchtime training sessions coming up are:-  

  • Defending pressure sore claims - 27 February 12.30pm - 2pm
  • Mental Health Update - 27 March 12.30pm - 2pm

If you wish to discuss any clinical risk or patient safety issues please contact Joanna Lloyd, Catherine Radford or Penelope Radcliffe

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Commissioning  

Publications/Guidance  

Refreshing NHS Plans for 2018/19. Joint NHS England/NHS Improvement guidance setting out the expectations for commissioners and providers in updating their operational plans for 2018/19.

Learning from the vanguards: staff at the heart of new care models. This briefing from the LGA, NHS Clinical Commissioners, NHS Providers and NHS Confederationlooks at what the vanguards set out to achieve when it comes to involving and engaging staff in the new care models. It highlights the work some of the vanguards have been doing and shares the lessons that other organisations and partnerships can take from the vanguards’ experiences.

Commissioner Sustainability Fund and financial control totals for 2018/19: guidance. NHS England has published details of a targeted fund to support those CCGs that would otherwise be unable to live within their means for 2018/19.

NHS continuing healthcare: Effective commissioning approaches. NHS Clinical Commissioners have issued a report that suggests ways in which the provision of NHS continuing healthcare (CHC) in local areas can be improved for the benefit of patients and commissioners. It shares some of the approaches that have been developed by local CCGs which have proved to be effective in delivering their CHC commitments. The report identifies six national actions that NHSCC believe will support the local delivery of CHC.

Joint framework: commissioning and regulating together – a practical guide for staff. This framework, produced in partnership with NHS England and NHS Clinical Commissioners, aims to help staff working in the CQC, NHS England and clinical commissioning groups reduce duplication in the regulation and oversight of general practice.

NHS continuing healthcare funding: Thirteenth Report of Session 2017-19. House of Commons Committee of Public Accounts A Committee of Public Accounts report calls on the Government to improve the complex NHS continuing healthcare (CHC) funding process, which is plagued with delays and poor-quality assessments. It states that there is an "unacceptable" variation between areas in the number of people assessed as eligible to receive CHC funding, caused partly by clinical commissioning groups interpreting the assessment criteria inconsistently.   

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

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Employment/HR 

Publications/guidance 

NHS agency staffing and the impact of recent interventions This briefing summarises a seminar given by Chris Mullin, Chief Economist at the Department of Health and Social Care, on the levers that have been used to control spending on agency staff in the NHS. It explores some of the reasons for the increased use of agency staff and shares reflections on how recent interventions have impacted on agency staff spending so far.  

Written evidence for 2018–19 pay round These documents contain the Department's written evidence submitted to the Review Body on Doctors' and Dentists' Renumeration (DDRB) and the NHS Pay Review Body (NHSPRB) for the 2018–19 pay round.

The nursing workforce: Second Report of Session 2017-19. A Health Committee report on the nursing workforce states that too little attention has been given to retaining nurses in the NHS, which has resulted in more nurses now leaving than joining the professional register. It notes there are many causes for this shortfall, including workload pressures, poor access to continuing professional development (CPD), pay and a general sense of not feeling valued. It calls for Health Education England to reverse cuts to CPD budgets and that nursing remains on the Shortage Occupation List.

Fatigue and sleep deprivation – the impact of different working patterns on doctors. This BMA briefing highlights why doctors are at risk of fatigue and the acute and long-term impacts this can have. It also presents a framework for how Government, organisations and doctors themselves can manage this risk.

Safe staffing in learning disability services Improvement guide. A guide to help standardise staffing decisions for learning disability services in community and inpatient settings.

Safe, sustainable and productive staffing in mental health services Improvement guide. Improvement resource to help standardise safe, sustainable and productive staffing decisions in mental health services.

Safe, sustainable and productive staffing in maternity services Improvement guide. Improvement resource to help standardise safe, sustainable and productive staffing decisions in maternity services.

Safe staffing for adult inpatients in acute care Improvement guide. A guide to help standardise staffing decisions in adult inpatient wards in acute hospitals.

Safe, sustainable and productive staffing in district nursing services Improvement guide. Improvement resource to help standardise safe, sustainable and productive staffing decisions in the district nursing service.

News

New recruitment figures reveal staffing ‘crisis’ in the NHS  

Bevan Brittan Updates

Terminating Locum Consultants who are not appointed at AAC

Employment Eye

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

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Finance 

Publications/Guidance

NHS England Refreshing NHS plans for 2018/19. This guidance, published jointly with NHS Improvement, sets out the plans for the NHS in light of the November 2017 budget announcements. It outlines how additional funding will impact on frontline services such as primary care and A&E services. It also sets out plans for the development of accountable care systems into integrated care systems. The guidance is accompanied by revised clinical commissioning group allocations for 2018/19.

NHS Counter Fraud Authority and supplemental directions 2017 These directions set out the functions and reporting requirements of the NHS Counter Fraud Authority. The accompanying directions to NHS trusts and special health authorities describe their role in the prevention, detection and investigation of fraud in the health service, following the establishment of the NHS Counter Fraud Authority. 

Sustainability and transformation in the NHS. The NAO finds that additional funding, aimed to help the NHS get on a financially sustainable footing, has been spent on coping with existing pressures. The report makes a number of recommendations to the Department of Health and Social Care, NHS England and NHS Improvement, which include moving further and faster towards aligning nationwide incentives, regulation and processes, as well as reassessing how best to allocate the sustainability and transformation funding.

NHS continuing healthcare funding. NHS continuing healthcare funding intended to help some of the most vulnerable people in society is not reaching people who need it say MPS.

PFI and PF2. This NAO briefing presents information on: the rationale, costs and benefits of the Private Finance Initiative (PFI); the use and impact of PFI, and ability to make savings from operational contracts; and the introduction of PF2. There are currently over 700 operational PFI and PF2 deals, with a capital value of around £60bn. Annual charges for these deals amounted to £10.3bn in 2016-17; even if no new deals are entered into, future charges which continue until the 2040s amount to £199bn. The briefing was prepared prior to the announcement on 15 January 2018 that the construction company Carillion was in liquidation.

News

Health surcharge for non-EU migrants doubles. The Government is to announce that the health surcharge charged to non-EU migrants who want to live in the UK for six months or more to work, study, or join family, so that they can access NHS care, will double from £200 to £400 per year. The rate for students and those on the Youth Mobility Scheme for people aged 18 to 30 is also to increase from £150 to £300.

If you wish to discuss any health and safety issues raised in this section please contact Claire Bentley.    

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Independent Healthcare 

Publications/Guidance 

PFI and PF2. This NAO briefing presents information on: the rationale, costs and benefits of the Private Finance Initiative (PFI); the use and impact of PFI, and ability to make savings from operational contracts; and the introduction of PF2. There are currently over 700 operational PFI and PF2 deals, with a capital value of around £60bn. Annual charges for these deals amounted to £10.3bn in 2016-17; even if no new deals are entered into, future charges which continue until the 2040s amount to £199bn. The briefing was prepared prior to the announcement on 15 January 2018 that the construction company Carillion was in liquidation.

How to get better private finance deals for infrastructure. The Institute for Government argues that if the Government wants to increase the volume of private investment in infrastructure it needs to publish a clear plan for future projects that addresses investors’ concerns about who will ultimately pay for them. It contends that persistent uncertainty will reduce the number of investors willing to bid, which will lead to inferior contract terms and ultimately higher costs for taxpayers and consumers. It also finds Whitehall needs more civil servants with the commercial skills to negotiate and manage private finance deals effectively – current civil service capability is not sufficient to meet the Government’s objective of substantially increasing private investment in infrastructure. The Government must increase the number of project finance specialists able to manage the specific contractual issues that come with private finance.

News

Stephen Hawking to take Health Secretary to court over "back door privatisation" of NHS. A judicial review has been granted to Professor Steven Hawking and a team of doctors over Secretary of State for Health and Social Care Jeremy Hunt's plan to introduce so-called Accountable Care Organisations, which, they argue, could lead to most of a local area's NHS services being provided for under a single budget run by one organisation, and allow for greater privatisation of the NHS. They claim that an act of parliament is required, allowing scrutiny of the proposals, before the policy is implemented and any changes to regulations are made.

NHS told to stop handing over patient data to Home Office for immigration enforcement. Sarah Wollaston, chair of the Health Select Committee, has written to NHS Digital saying it must withdraw from a deal with the Home Office to trace immigrants through their personal details, after finding that it had failed to consider the public interest in maintaining the fundamental principle of patient confidentiality or the ethical implications of sacrificing it, and that the policy also endangered public health.

If you wish to discuss any queries you may have around independent healthcare please contact Vincent Buscemi.   

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Information Sharing/data  

Publications/Guidance 

NHS and social care data: off-shoring and the use of public cloud services This guidance sets out expectations for health and care organisations who want to use cloud services or data off-shoring to store patient information. It aims to ensure that organisations know how to use these solutions safely and securely, particularly in relation to the introduction of GDPR. The standards will enable NHS organisations to benefit from the flexibility and cost savings associated with the use of cloud facilities. 

2017/18 Data Security and Protection Requirements. Guidance from the Department of Health and Social Care explains what all health and care organisations will be expected to do to demonstrate that they are putting into practice the 10 data security standards recommended by the National Data Guardian. It also includes more details about the assurance framework for April 2018 onwards.

Social workers and information technology This report outlines the findings of a survey of 786 social care professionals and finds that 98 per cent had experienced difficulty with sharing information digitally. The survey results highlight an appetite for the opportunities provided by technology but also significant barriers around digital skills, systems design and guidance on information sharing.

Security of network and information systems: government response to public consultation. This document outlines the government's response to a public consultation on cybersecurity in the UK. Critical industries and services in the UK are now being urged to boost cybersecurity or otherwise risk being fined up to £17 million. Sector-specific regulators will also be appointed to ensure that essential services are protected. The response is accompanied by guidance published by the National Cyber Security Centre for dealing with any cybersecurity breaches.

News

NHS Digital publishes guidance on data off-shoring and cloud computing for health and social care

Bevan Brittan Updates

The General Data Protection Regulations ("GDPR"): A Practical Approach Following Implementation

Bevan Brittan events

A Practical Approach to the General Data Protection Regulations ("GDPR") for the NHS
London - Tuesday 13 March 2018, 09:30
Bristol - Wednesday 14 March 2018, 09:30
Birmingham - Tuesday 20 March 2018, 09:30

If you wish to discuss any issues raised in this section please contact Jane Bennett.  

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Mental Health

Publications/Guidance

How can we help people with eating disorders? In the first episode of NICEtalks, we hear from Jess Parker who explains what life is really like with an eating disorder and from Professor Christopher Fairburn from Oxford's Department of Psychiatry.

How can we help people with eating disorders? In the first episode of NICEtalks, we hear from Jess Parker who explains what life is really like with an eating disorder and from Professor Christopher Fairburn from Oxford's Department of Psychiatry.

Discrimination at the heart of the NHS This report examines the performance of the NHS against the new treatment standards, introduced in 2016, for early intervention in psychosis. Responses to an FOI request to 45 mental health trusts finds that the majority are not able to offer early intervention in psychosis due to a shortage of resources and trained staff.

Suicide prevention: policy and strategy This briefing examines suicide prevention policies and strategies throughout the UK. It outlines national and local approaches to prevention policy by considering the strategies of the UK Government, as well as the devolved administrations, through the lens of various policy perspectives.

Brexit and mental health This briefing outlines the possible implications of Brexit for the mental health sector. It focuses on the analysis relating to future workforce supply and legislation, research, regulation, cross border health care and public health.

Supporting mental health for all. This report finds that the prevalence of mental ill health is significantly higher in LGBT+ communities and for disabled people, deaf people and offenders. It argues that these health inequalities are compounded by services that do not understand and meet the specific needs of these groups.

Independent Review of the Mental Health Act The review will consider and make recommendations on improving legislation and practice around the Mental Health Act.

Safe staffing in learning disability services Improvement guide. A guide to help standardise staffing decisions for learning disability services in community and inpatient settings.

Safe, sustainable and productive staffing in mental health services Improvement guide. Improvement resource to help standardise safe, sustainable and productive staffing decisions in mental health services.

Provision of mental health care to adults in the emergency department This report outlines the broader lessons to be learnt from an investigation of the care pathway of a mental health patient who died by suicide. It also discusses systemic safety issues around the assessment and care of adult patients with mental health problems who present at emergency departments.

Transition from child and adolescent mental health services to adult mental health services This report outlines the findings of an investigation into the transition between mental health services for young people and those for adults.

Mental Health and Deaths in Prison: Interim Report: Government Response to the Committee's Seventh Report of Session 2016 -17: Second Special Report of Session 2017-19. A Joint Committee on Human Rights special report sets out the Government's response to its report "Mental Health and Deaths in Prison" (HC Paper No.893, Session 2016/17).

Mental Health Act – The rise in the use of the MHA to detain people in England. This report looks at causes for the rise in use of the Mental Health Act (MHA) to detain people.

Independent Review of the Mental Health Act 1983 - Law Society response. The Law Society has responded to the government’s Independent Review of the Mental Health Act 1983. The response contains high-level observations of what the Society considers to be the most serious problems with the Act, now over 30 years old. 

Wellbeing in mental health: applying All Our Health. PHE has updated its guidance that enables healthcare professionals make improvements against wider factors that affect health and wellbeing in mental health.

Deprivation of Liberty Safeguards forms and guidance: Form 3B: renewal with capacity assessment. Updated form and guidance for local authorities in their role as supervisory body for the Mental Capacity Act Deprivation of Liberty Safeguards (DoLS).

Administrative Court judicial review guide. Detailed legal guidance on bringing a judicial review case in the Administrative Court. It is designed to make it easier for parties to conduct judicial reviews in the Administrative Court, by drawing together into one place the relevant statutory provisions, rules of procedure, practice directions, and case law on procedural aspects of judicial review. It provides general guidance as to how litigation in the Administrative Court should be conducted in order to achieve the overriding objective of dealing with cases justly and at proportionate cost.

Dear Colleague letter re MM and PJ Court of Appeal hearing and judgments. This letter contains a briefing prepared specifically in relation to those patients with a diagnosis of learning disability and autism who are part of the Transforming Care programme but is also relevant for patients with a mental illness or personality disorder diagnosis.

Independent Review of the Mental Health Act 1983 - Law Society response. The Law Society has responded to the government’s Independent Review of the Mental Health Act 1983. The response contains high-level observations of what the Society considers to be the most serious problems with the Act, now over 30 years old.

Funding and staffing of NHS mental health providers: still waiting for parity. The spending gap between NHS acute hospitals and NHS mental health providers widened further last year, according to a report from the King’s Fund.  

News

Blanket ban on smoking in mental health hospitals declared "lawful". In A v NHS Greater Glasgow & Clyde Health Board, Lady Carmichael dismissed actions brought by two patients at secure psychiatric units who claimed that the blanket ban on smoking in hospital grounds breached their right to private and family life (ECHR art.8). Sitting in the Court of Session, Lady Carmichael said the ban was lawful, but held that the prohibition on lighters was unlawful.

Government concedes that PPI for mental health patients is to rise. Secretary of State for Work and Pensions Esther McVey has stated that the Government would not try to overturn a High Court judgment that blocked a change to the eligibility for personal independence payments (PPI) that prevented an award of an enhanced rate for claimants who could not take a familiar journey on their own if it was for reasons related to psychological distress.

Patients detained under Mental Health Act need stronger safeguards. In evidence to an independent review, the Law Society states that vulnerable people sectioned under the Mental Health Act 1983 are being administered medical treatment without consent, powers to hold patients for up to six months could breach human rights, and that there are not effective legal safeguards. It argues that powers that allow a doctor to enforce treatment without consent in the first three months of detention should be scrapped.

Judge backs ‘short-term’ fix to backlog of deprivation of liberty cases People in deprivation of liberty cases could be safeguarded by an expert report on their best interests if no one is available to represent them, a judge has ruled in a move that could help clear a backlog of more than 300 cases.

Landmark litigation over breach of transparency order in CoP. A man could be imprisoned after being accused of publishing private information from a Court of Protection (CoP) public hearing. Officials at the Office of the Public Guardian (OPG) want the court to commit the man to prison for contempt of court, arguing he has breached a judge's transparency order. Justice Williams, sitting in the High Court, heard preliminary issues and advised the man to seek legal advice. Barrister Emma Sutton, who represented the OPG, said it was the first time anyone had faced contempt proceedings as a result of being accused of breaching such an order and the first application of its kind by the OPG.

Blanket ban on smoking in mental health hospitals declared "lawful". In A v NHS Greater Glasgow & Clyde Health Board, Lady Carmichael dismissed actions brought by two patients at secure psychiatric units who claimed that the blanket ban on smoking in hospital grounds breached their right to private and family life (ECHR art.8). Sitting in the Court of Session, Lady Carmichael said the ban was lawful, but held that the prohibition on lighters was unlawful.  

Bevan Brittan Updates 

Case Summary: Re NB [2017] EWCOP 16

Children and Young People's Mental Health: The Vision for Change in Service Provision

The transition between Children and Adult Mental Health Services – How can you improve? 

Clinical Risk Webinars  

Bevan Brittan Clinical Risk/Medical Law Training - These are internal hour long lunch time training sessions that are attended by our team of solicitors. If you are a client and would like to come along and join our team at these sessions just ask Claire Bentley. You can attend in our London, Bristol or Birmingham office. If you are unable to get to one of our offices you can also sign up to watch the training sessions remotely via our webinar facility. The  lunchtime training sessions coming up are:-  

  • Mental Health Update - 27 March 12.30pm - 2pm

Bevan Brittan Mental Health Extranet

Would you like to access the Bevan Brittan Mental Health Extranet? - It is a secure online resource containing a discussion forum, knowledge bank and information about training events. If you would like access please contact Claire Bentley.  

If you wish to discuss any mental health issues please contact Simon Lindsay or Stuart Marchant.  

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Primary Care 

Publications/Guidance 

A design diagnosis: Reinvigorating the primary care estate. This report from the thinktank Reform finds that private sector finance can upgrade the primary care estate at value for money for the taxpayer. Private funding can help build bigger GP surgeries to provide better patient care.

GP Contract. NHS England has published guidance and links to further resources to support implementation of changes to General Medical Services (GMS), Personal Medical Services (PMS) and Alternative Provider Medical Services (APMS) contractual arrangements that will apply in England.

Volunteering in general practice: Opportunities and insights. This King's Fund report explore ways in which volunteers are involved with, and are contributing to, general practice.

Divided we fall: getting the best out of general practice. This Nuffield Trust report explores how best to balance the proliferation of GP services prioritising speed and convenience with the traditional view of general practice based on deep knowledge, community-based understanding and continuity of care.

Joint framework: commissioning and regulating together – a practical guide for staff. This framework, produced in partnership with NHS England and NHS Clinical Commissioners, aims to help staff working in the CQC, NHS England and clinical commissioning groups reduce duplication in the regulation and oversight of general practice.

News

Lease incentives for GP practices. NHS England's General Practice Forward View committed to providing financial support to every GP practice that is a tenant in an NHS Property Services or Community Health Partnerships building to enter into a new lease. GP practices can claim for this financial support by completing the Lease Incentive Claim Form and submitting by 31 March 2018. 

If you wish to discuss any queries you may have around primary care please contact Vincent Buscemi

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Procurement 

Publications/Guidance 

Commercial capability – Contract management standards. CCS has published updated contract management principles, contract management framework summary; and contract management operating model overview. These are based on NAO contract management guidance and address recommendations in their latest related reports. The standards also reflect relevant Government Commercial Operating Standards Iteration ii 2016. Their design enables them to be used by government departments and wider public sector organisations for the management of their contracts.

Model services contract. CCS has published an updated version of the Model Services Contract that reflects developments in government policy, regulation and the market. The MSC forms a set of model terms and conditions for major services contracts that are published for use by government departments and many other public sector organisations. There are separate versions for England & Wales and for Scotland. There is also is a Statement of Changes showing what has changed and where from the previously issued version.

Out of contract: Time to move on from the 'love in' with outsourcing and PFI. The policy think tank the Smith Institute has published a report which urges the Government to end its 'love in' with outsourcing work to private firms amid claims of 'deep flaws' in many deals. The report says outsourcing contracts were poor value for money, carried huge social costs and often benefited overseas shareholders of multinational companies. In the wake of the collapse of construction giant Carillion, public delivery of services should be the 'norm'. It calls for a comprehensive examination and audit of all outsources and PFI deals. 

Bevan Brittan Events

Public Sector Procurement - The models of success. Bevan Brittan in conjunction with Turner & Townsend, are pleased to invite you to an engaging breakfast debate, the first in a series of public sector Breakfast Seminars for 2018, to be held on Wednesday 28th February 2018, at the Turner & Townsend London office

If you wish to discuss any queries you may have around procurement please contact Vincent Buscemi.   

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Providers 

Publications/guidance

Joint Working Protocol: When a hospital, services or facility closes at short notice. NHS England and its partners have published guidance to organisations when a hospital, service or facility closes unavoidably at short notice. The memorandum gives clear guidance and direction to any organisation involved in a short notice closure to take appropriate and timely action in supporting patients and making sure they get the care and treatment they deserve.

Refreshing NHS Plans for 2018/19. Joint NHS England/NHS Improvement guidance setting out the expectations for commissioners and providers in updating their operational plans for 2018/19.

Legislation

National Health Service (Quality Accounts) (Amendment) (No. 2) Regulations 2018 (SI 2018/59). These regulations, which come into force on 19 February 2018, amend SI 2010/279 so as to prescribe new information to be included in the Quality Accounts of an NHS trust and an NHS foundation trust but excluding all ambulance trusts. The new information prescribed by the 2017 Regulations relates to the deaths of patients. 

If you wish to discuss any queries you may have around providers please contact Vincent Buscemi.   

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Public Health 

Publications/Guidance 

NHS Health Check: stocktake and action plan. This PHE report provides a stocktake of the NHS Health Check programme as PHE approaches the end of the first 5-year cycle of the programme. It sets out the main areas for development by PHE, local authorities and the NHS to ensure we continue to get the most from the NHS Health Check programme in the next five years.

Policing and health collaboration in England and Wales: Landscape review. The links between health, offending and policing are complex but inextricable. Collaborative working between the police and health has a long history but is still not commonplace. This landscape review aims to consider the breadth of the subject, and also to look at emerging themes and to influence future approaches.

The standards for employers of public health teams in England. The LGA has published a set of standards to help ensure that the public health workforce is fit to practise. The Employer Standards are relevant to employers and workers with a role in the commissioning or delivery of public health functions. They set out clear expectations of good employers who want to enable all their staff, employed in the delivery of public health functions, to work effectively.

Teenage pregnancy prevention framework. This Public Health England framework aims to help local areas assess their teenage pregnancy prevention programmes to see what’s working well, identify any gaps and take a multi-agency whole-system approach to prevent unplanned pregnancies and support young people to develop healthy relationships.

The wellbeing of 15-year-olds: analysis of the What About YOUth? survey. This PHE report highlights associations between health behaviours, other self-rated life factors (such as bullying and body image) and wellbeing.

Government Response to the House of Commons Health Select Committee report on childhood obesity: Follow-up. Sets out the Government’s response to the conclusions and recommendations in the Health Select Committee’s report (March 2017) which found that the Government needs to take more robust action to tackle the impact of deep discounting and price promotions on the sales of unhealthy food and drink.

Consultations

Local authority public health prescribed activity – Call for evidence. The DHSC is seeking information about experience, case studies or research on the prescribing in regulations of local authority public health activity. It states that the Government remains committed to the primary legislative framework for public health which was established in 2012, and the existing regulations remain in force. However, the Government recognises that it is timely to take stock of the regulations to ensure the system is working as it should be and is fit for the future. The closing date for submissions is 17 April 2018.  

If you wish to discuss any queries you may have around public health please contact Claire Bentley

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Regulation 

Publications/Guidance

Regulation 5: Fit and proper persons – Directors.  Guidance for providers and CQC inspectors. The CQC has issued new guidance on Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The guidance says that bullying and victimisation of staff, and failing to take "appropriate action" over it, can result in dismissal under the fit and proper person test. The guidance applies to all registered providers, other than individuals and partnerships.

NHS Counter Fraud Authority and supplemental directions 2017. These directions set out the functions and reporting requirements of the NHS Counter Fraud Authority (NHSCFA), which was established on 1 November 2017 to carry out the Secretary of State’s counter fraud functions in relation to the health service in England. The directions to NHS Trusts and Special Health Authorities describe their role in the prevention, detection and investigation of fraud in the health service, following the establishment of the NHSCFA.

GMC response to Department of Health (England) consultation: Supporting professionalism, reforming regulation. The GMC states that it cannot, without legislative reform, streamline its processes to deliver a model of regulation that is as flexible and adaptable to the needs of the modern medical workforce as it should be. The regulator is currently forced to work under an historic patchwork of highly prescriptive legislation which results in systems that are slow, bureaucratic and burdensome. It calls for a new, high level legislative framework that delivers autonomy and flexibility so it and other regulators can better protect patients, support doctors, improve medical education and deliver for the wider health system across the UK. The GMC also says that it is prepared to be held more accountable to Parliament for any new powers it is given.

AvMA response to the Department of Health Consultation "Promoting professionalism, reforming regulation". In response to a Department of Health consultation on plans to reform the regulation of health care professionals, Action Against Medical Accidents (AvMA) welcomes the aim of a more flexible system of professional regulations but highlights the importance of ensuring that legislative changes do not lead to even greater inconsistency between regulators and decline in overall standards

Consultations

Regulation of independent health care providers: consultation This consultation seeks views on proposed changes to the way in which independent health care providers are regulated. The proposed changes cover the quality ratings and methods used to monitor, inspect and rate services. The consultation will close on 23 March 2018.    

Cases

General Medical Council v Dr Bawa -Garba [2018] EWHC 76 (Admin) Following a doctor's conviction for manslaughter by gross negligence, the jury having reached a verdict that her "truly exceptionally bad" failings had contributed to a child's death, the appropriate sanction to maintain public confidence in the medical profession was to erase the doctor's name from the register. In deciding instead to suspend her registration for one year, the Medical Practitioners Tribunal had erred in reaching its own view of her personal culpability and given insufficient weight to the verdict.  Following this case Jeremy Hunt has announced a review of medical manslaughter

Bevan Brittan Events

Health Technology and Transformation - Risk and Market Issues. Following the success of our recent event "Health Technology and Transformation – The Regulatory Framework", we decided to run a series of events bringing together industry leaders, regulators and support services working in the digital healthtech industry to identify and address opportunities, and stress factors. Each of the events will be focused on a different thematic area for which we will be joined by specialised speakers Our inaugural event for 2018 will take place at the Bevan Brittan London office on 19th March 2018 and will focus on risk and market issues including a comprehensive industry case study.

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

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Social Care 

Publications/Guidance 

The adult social care workforce in England. A report from the National Audit Office considers the Department of Health and Social Care’s role in overseeing the adult social care workforce and assesses whether the size and structure of the care workforce are adequate to meet users’ needs for care now and in the future, in the face of financial challenges and a competitive labour market.

Guide to Personal Health Budgets 2018. This report from Shared Lives Plus in partnership with NHS England demonstrates how voluntary, community and social enterprise organisations are driving innovation and supporting personal health budget expansion across the country, working in partnership with statutory services to provide a range of advice, support and care services, which fit around the lives of the people and community they are designed to support.

Social care: the forthcoming Green Paper on older people (England) This briefing paper provides background information on the forthcoming Green Paper for social care for older people. It outlines the key confirmed contents of the Green Paper and discusses how the Green Paper will work alongside a separate parallel programme on the social care needs of working age adults.

Reimagining community services – Making the most of our assets. This King's Fund report looks at the current organisation of community health services and considers how the health and social care system needs to change to meet the needs of populations now and in the future. It covers services commissioned by local authorities as well as the NHS, and also related services delivered by the third sector, the private sector, carers and families. It finds that the most promising possibilities in the short term are through sustainability and transformation partnerships and accountable care systems, where plans have already been developed to strengthen community services and improve population health. More work is needed to ensure that all STPs offer a credible basis for improving care for their populations and strengthening services in the community, drawing on the design principles set out in this report.

Social care and NHS winter pressures. This LGA briefing, prepared to inform a House of Lords debate, flags up the key measures taken by local authorities and the LGA to improve preparedness for winter. It notes that there cannot be a sustainable NHS without a sustainable adult social care system. Adequately funding social care will deliver benefits for local communities and savings for the public purse.

Meeting the health and wellbeing needs of young carers. The Children and Families Act 2014 and the Care Act 2014 place a legal duty on local authorities to identify young carers and carry out both a needs assessment and a transition assessment to consider the impact on the child and whole family. These case studies from the LGA highlight the good work being done by councils to minimise the impact of young carers' responsibilities.

A place to call home: Impact & analysis. The Older People’s Commissioner for Wales has found that the Welsh Government has failed to take the action it promised in a number of key areas to drive up the quality of life of older people living in care homes in Wales. The report sets out the findings of a programme of follow-up work undertaken by the Commissioner during 2017 to assess whether public bodies have delivered upon the commitments they made when the Commissioner published the findings of her Care Home Review in 2014, which showed that too many older people living in care homes in Wales have an unacceptable quality of life.

Growing innovative models of health, care and support for adults. This SCIE briefing explains that innovative, often small-scale models of health, social care and support for adults could be scaled up to benefit as many people as possible. The challenge is to make scaling up successful. The briefing is based on research conducted during the spring of 2017 by Nesta, SCIE, Shared Lives Plus and PPL. It includes real life stories.

Consultations

Joint inquiry launched on long-term funding of adult social care. Announces that the CLG and Health Committees have launched a joint inquiry on the long-term funding and provision of adult social care to feed in to the Government's forthcoming Green Paper. The inquiry seeks to identify funding reforms that will command broad consensus to allow progress in ensuring the long-term sustainability of both the health and care systems. The Committees are inviting written submissions on: How to fund social care sustainably for the long term (beyond 2020), bearing in mind in particular the interdependence of the health and social care systems; and The mechanism for reaching political and public consensus on a solution. The deadline for submissions is 7 March 2018.

News

Clarity for councils about way Ombudsman will investigate financial assessment complaints. The Local Government and Social Care Ombudsman has confirmed that councils cannot take personal injury awards into account when carrying out financial assessments for social care packages, following the High Court's decision in R (ZYN) v Walsall MBC (2014) EWHC 1918 (Admin). This follows an investigation into Wokingham BC, where the LGSCO upheld a complaint that the Council had failed to assess Ms K’s daughter’s finances properly by failing to disregard the daughter’s personal injury payment.

If you wish to discuss any queries you may have around social care please contact Stuart Marchant 

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General 

Publications/Guidance 

How have public attitudes to the NHS changed over the past three decades? What can data from 34 years of the British Social Attitudes survey tell us about the public's relationship with the NHS and how it is viewed alongside other publicly funded services? We reflect on the top four issues.

Naylor review: government response. The government's response to Sir Robert Naylor’s review of NHS property and estates.

Brexit and the impact on patient access to medicines and medical technologies. This briefing explores how UK and EU citizens could be affected by the disruption in trade that could result from the UK’s exit from the EU, as well as in the event of lack of cooperation in the regulation of medicines and devices between the EU and the UK post Brexit. 

Adoption and spread of innovation in the NHS. This King's Fund report aims to make a pragmatic contribution to the discussion of how to speed up the adoption of service innovation in the NHS. It draws on eight examples of the successful spread of innovation supported by academic health science networks.

High impact change model: managing transfers of care. This change model, developed with the Association of Directors of Adult Social Services, outlines a practical approach to managing patient flow and hospital discharge. It identifies eight system changes that will have the greatest impact on reducing delayed discharge. The resource supplements the model by bringing together examples of work being undertaken across the country, for each of the eight system changes.

Teenage pregnancy prevention framework. This framework aims to help local areas assess their teenage pregnancy prevention programmes to see what’s working well and identify any gaps. It will support local services to take a multi-agency whole-system approach to prevent unplanned pregnancies and support young people to develop healthy relationships. The framework is accompanied by a presentation and data reports which will help to inform local authority commissioning decisions.

Tips on writing an effective questionnaire. Writing a questionnaire to get the views of patients, the public or NHS staff can be challenging.

Thinking on its own: AI in the NHS. This report illustrates the areas where artificial intelligence (AI) could help the NHS become more efficient and deliver better outcomes for patients. It also highlights the main barriers to the implementation of this technology and suggests some potential solutions.

News 

Government acts to protect essential services from cyber attack  The UK's most critical industries, including, energy, transport, water and health, are being warned to boost cyber security or face fines of up to £17 million. New regulators will be able to access critical industries to make sure plans are as robust as possible. A simple, straightforward reporting system will be set up to make it easy to report cyber breaches and IT failures so they can be quickly identified and acted upon.

Society intervenes in crucial third-party capture case The Law Society has been granted permission to intervene in the case of Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd which has wide implications for solicitors and the personal injury sector. The two-day hearing, which will begin in the Supreme Court in February 2018, will consider the case of an defendant insurer that contacted injured parties directly after notification via the RTA claims portal and settled claims in a way that did not provide for fixed costs to be paid to their solicitors under the scheme.

Senior judge states that setting rules on assisted dying is for politicians. Lord Thomas of Cwmgiedd has told a seminar organised by the Policy Exchange think tank that judges should not rule on some matters of social and public policy and that politicians have given them too much power to decide sensitive issues such as assisted suicide. He cautioned judges to be "very, very careful" about speaking out in public on subjects on which they chose to intervene.

Terminally ill man granted assisted dying appeal. Following the High Court's refusal to permit doctors to help him end his life, terminally ill Noel Conway, who has a form of motor neurone disease, has been granted permission to appeal the decision by the Court of Appeal. Mr Conway is seeking a declaration that the Suicide Act 1961 is incompatible with ECHR art.8. The full appeal will be heard at a later date.

NHS business support provider to procure £100m legal services panel. NHS Shared Business Services (NHS SBS) is to procure a new legal services framework, to be made available to a wide range of NHS bodies and other public sector organisations including local authorities, worth up to £100 million over the length of the contract. The agreement will replace an existing arrangement that runs until 30 November 2017 and has 22 law firms as suppliers.

Bevan Brittan Updates 

Caring for the health of migrants 

New models of care in new forms

Bevan Brittan Events

Health Technology and Transformation - Risk and Market Issues. London Monday 19 March 2018, 16:00

If you wish to discuss any issues raised in this section please contact Claire Bentley

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