14/11/2019

A quarterly update summarising recent Government publications, legislation, cases and other developments relevant to those involved in the care sector:

 

 

Litigation and Legislation

Counsel fee not fixed for claim which left protocol
Senior costs judge, Master Brown, has rejected an appeal from the defendant in Dover v Finsbury Food Group Plc to restrict costs to the fixed £150 after the case dropped out of the pre-action protocol. Instead he upheld the decision of a costs officer to award £500. He held that the relevant provisions permitted recovery of counsel's fee for advising in conference as a disbursement.

The Electronic Working Pilot Scheme in the Senior Courts Costs Office comes into force on the 7th October. There are some useful links on the working of the scheme.

Medical practitioners: new duty to notify deaths - Joanna Lloyd

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Information sharing/data

Consultations

Draft Issues Paper on the Use of Big Data Analytics in Insurance
A consultation on the draft Issues Paper on the Use of Big Data Analytics in Insurance focuses the use of personal and other data by insurers as a result of digitalisation. It looks at the use of algorithms and advanced analytics capabilities by insurers to make decisions based on patterns, trends and linkages and the availability to insurers of new alternative data sources, otherwise known as "big data analytics" (BDA).

Inclusive by default As more public services are delivered digitally, there is an imperative to tackle the causes of digital exclusion
This report finds a lack of skills, motivation and the right infrastructure are some of the key factors that make digital exclusion more likely. In addition to providing alternative routes for those unable to access digital public services, it is essential that these barriers are overcome. Designing accessible services, community support and partnerships across sectors are tools that can help to make digital public services inclusive by default.

 

Bevan Brittan Updates

Digital duties: Monitoring Officers must ensure good governance over data and social media

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Risk Management

Bevan Brittan Updates

The First 72 Hours After a Health or Social Care Crisis

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Innovation

Health care's climate footprint: how the health sector contributes to the global climate crisis and opportunities for action
According to this report, if the global health care sector were a country it would be the fifth-largest greenhouse gas emitter on the planet. The report finds that health care’s footprint is equivalent to 4.4 per cent of global net emissions and that fossil fuel combustion makes up well over half of health care’s global climate footprint. The report makes the case for a transformation of the health care sector that aligns it with the Paris Agreement goal of limiting climate change to 1.5 degrees celsius.

Bringing Innovation Into Healthcare: Quickening the Pace of Change - Vincent Buscemi

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Mental Health 

State of Care - CQC
Summary key points:

  • Some people are struggling to get access to the mental health services they need, when they need them.
  • There is pressure on all health and care services in England.
  • More and better community services are needed to help people avoid crisis situations.
  • The challenge for government, Parliament, commissioners, national organisations and providers is to change the way services work together so that the right services are being commissioned to deliver what people need in their local area.
  • Innovation is at the heart of some of the high quality care we see – sometimes this is technological and specialised, or it might be the way in which services use smarter workforce planning to meet people’s care needs.

Deprivation of liberty safeguards: a practical guide
Law Society guidance for solicitors and people working in health and social care on the law relating to deprivation of liberty safeguards (DoLS). The guidance, which sets out how to identify when a deprivation of liberty may be taking place, includes fictional case studies to explain the law following Cheshire West and Chester Council v P (SC) and a list of questions for front-line practitioners. Individual quick reference guides are published alongside the guidance and relate specifically to the identification of deprivation of liberty in a hospital setting, a psychiatric setting, a care home setting, a supported living setting, a home setting and with respect to under 18s.

Guidance note: Using the inherent jurisdiction in relation to adults
39 Essex Chambers useful guidance note on the inherent jurisdiction

 

Cases

D (A Child) [2019] UKSC 42
It was not within the scope of the operation of parental responsibility for parents to consent to living arrangements for a 16 or 17-year-old child who lacked capacity if those arrangements would otherwise amount to a deprivation of liberty within the meaning of ECHR art.5. See cases

The Hospital v JJ [2019] EWCOP 41 [2019] EWCA Civ 1558
The court held that there was reason to believe that the P lacked capacity in relation to the issues concerning his treatment and considered that it was in his best interests that he be treated in accordance with the plan that has been laid out by the Trust. The court was also satisfied that it was necessary and proportionate, and in the P's best interests to make the order that reasonable restraint can be used in order to administer treatment. See cases

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Social Care

Adult social care: the Government’s ongoing policy review and anticipated Green Paper (England)
Published Wednesday, August 14, 2019 This House of Commons Library briefing paper considers the Government’s ongoing review of social care policy, in particular how it is funded by individuals and the public sector in England. The Government said in March 2017 it would publish a consultative Green Paper on this topic, but in July 2019 the Financial Times reported that the new Prime Minister may decide that a White Paper setting out the Government’s new policies should be published instead.

Actions for adult social care providers to prepare for Brexit
What adult social care providers and local authorities need to do to prepare for a no-deal Brexit.


What should be done to fix the crisis in social care?
This briefing lists five priorities for the government following an assessment of the evidence and analysis of the costs of reform. The priorities include stabilising and sustaining the current system and providing social protection against care costs.

Study identifies benefits of ‘housing with care’
So-called housing with care services can improve people’s quality of life and help reduce their use of health services.

Adult Social Care Providers EU Exit Planning Update - Monica Macheng

 

Case law

R v BUPA Care Homes (BNH) LTD [2019] EWCA Crim 1691
A fine imposed on a subsidiary company for an offence under the Health and Safety at Work etc. Act 1974 s.3(1) was reduced where the sentencing judge had improperly taken into account the parent company's turnover and resources when applying an uplift to the starting point reached under the Sentencing Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences.

 

Bevan Brittan Updates

CQC Challenge Success Stories

Care Quality Commission's State of Care report - Monica Macheng

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Children

A quality framework for children and young people in need of care and protection
The Care Inspectorate publishes an updated version of its quality framework for children and young people in need of care and protection. In particular, changes have been made to the six point scale definitions so that they align fully with the Care Inspectorate quality framework. Alongside publication of the updated framework, the Care Inspectorate has launched an interactive resource to support community planning partnerships through a joint inspection of their services for children and young people in need of care and protection.

Vulnerable witnesses and parties within civil proceedings: Current position and recommendations for change
The Civil Justice Council has launched a consultation on vulnerable people in civil court proceedings with the publication of its consultation paper. The consultation papers contains seven recommendations for witnesses or parties who may be vulnerable. While the Court Rules currently require a litigation friend in proceedings by or against children or protected parties who lack mental capacity to conduct proceedings, there are no specific provisions dealing with vulnerable witnesses or parties who have mental capacity.

 

News

An NHS children’s mental health unit has been closed down by the Care Quality Commission after being rated “inadequate” earlier this week
A child and adolescent mental health ward run by Tees, Esk and Wear Valley’s Foundation Trust has been closed after the CQC took enforcement action to protect the safety of patients. 

Child gender clinic to be sued over its "experimental" treatments
England's first NHS child gender clinic is being threatened with legal action by the mother of a 15-year-old patient and a nurse who worked at the service, over its use of "experimental" hormone-blocking treatments for children as young as 11. They have accused the Tavistock and Portman NHS Trust, which runs the gender identity development service in north London, of misleading families about the nature of the treatment.   

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Employment

The state of the adult social care sector and workforce in England
This report provides a comprehensive analysis of the adult social care workforce in England and the characteristics of the 1.49 million people working in it. Topics covered include: employment information, recruitment and retention, demographics, pay, qualification rates and future workforce forecasts.

Does learning disability nursing need the maintenance grant back?
David Maguire considers the impact of scrapping student nursing bursaries on the learning disability nursing workforce.

RCN puts pressure on government to fix nurse shortages
The RCN is urging patients and the public to sign a petition calling on the government to fix the nursing workforce crisis in England.

 

Bevan Brittan Updates

Employment Eye - Alert: Settled Status Scheme: how settled is it…?

Employment Eye - Alert: junior doctors win landmark appeal over rest breaks

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Bevan Brittan provides support for independent sector providers across the healthcare, adult, social care and the children's social care and education sectors. For more than a decade we have been consistently ranked by Chambers UK Guide as a leading firm in Healthcare. The Legal 500 2018, Insurance Individual (London) award has been won by our Senior Partner, Joanne Easterbrook.

For more information please contact Adrian Neale or Carlton Sadler.