Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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On the 9th October Jonathan Marron, Director General of Community & Social Care shared a letter with adult social care providers via CQC setting out actions to help adult social care get ready for Brexit on 31 October 2019.
The letter sets out steps the Department of Health and Social Care (DHSC) has been taking to get ready for Brexit on 31 October 2019, and to provide some practical information on what adult social care providers can do to support their preparations.
The DHSC’s approach to continuity of supply for adult social care has followed the same principles as their contingency approach for the NHS but seeks to recognise that the structure of the adult social care market is fundamentally different to the NHS and that there are therefore differences. The DHSC states that for medicines, clinical consumables and medical devices, their stockpiles cover people within both the NHS and the adult social care system. For non-medical supplies, they have been working with major suppliers on their contingency plans regardless of whether they supply directly to NHS services or adult social care providers.
The DHSC have recommended that adult social care providers take the following steps which continue to be in line with existing guidance for the adult social care sector:
Medicines, medical products, food and other goods and services
If providers experience a disruption the DHSC are recommending:
The DHSC has established the National Supply Disruption Response (NSDR). This will include a 24/7 call centre that will coordinate between suppliers, health services, adult social care organisations and central Government. It will specifically monitor the supply situation and coordinate actions to address supply disruption incidents that occur after Brexit where normal procedures are unable to provide a resolution and offer logistics trouble-shooting to suppliers whose consignments are stuck in border disruption.
Workforce and service users
DHSC’s general advice is that, given the market has been aware of Brexit and its potential implications for some time now, organisations may wish to consider limiting their response to any contractual performance or pricing issues raised. Requests to increase pricing should be underpinned by evidence of the additional costs being incurred, and organisations may wish to consider limiting additional payments to those exceptions that sit outside of the normal balance of risk assumed by the contract.
A point well made by the DHSC is that contractual positions with respect to force majeure will depend upon the circumstances and relevant contract clauses in each case. In most cases, however, it will be difficult for suppliers to make a case for relief of performance (under force majeure provisions) or frustration of contract as the likely consequences of Brexit have been widely aired in public for some time – and accordingly suppliers have had ample time to plan for the continuation of service, and the performance of contracts should still be possible in most cases.
In relation to contracts, providers should consider:
Monica Macheng, Partner and Lead on Social Care, Bevan Brittan LLP
Monica is an experienced corporate lawyer advising a diverse client base ranging from of SMEs to listed companies on corporate projects of all sizes across a number of sectors including social care. Monica advises on all corporate matters including mergers and acquisitions, disposals, exit strategies, private equity transactions, transaction due diligence, joint ventures, reorganisations and demergers, corporate structures and company law compliance issues including, establishing companies, LLPs and partnerships, changes in constitution or governance and the roles, rights and duties of directors, shareholders and LLP members.