14/03/2018
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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Bevan Brittan Free Training Events
A Practical Approach to the General Data Protection Regulations ("GDPR") for the NHS
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:-
- 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.
Acute and emergency care
Publications/guidance
Reducing emergency admissions. The NAO report examines progress that the DHSC, NHS England, NHS Improvement and other stakeholders are making in reducing the impact of emergency admissions on acute hospitals. The report takes a whole-system approach, and looks at action across acute, primary, community and social care systems.
Reducing emergency admissions. The report examines progress that the Department, NHS England, NHS Improvement and other stakeholders are making in reducing the impact of emergency admissions on acute hospitals. The report takes a whole-system approach, and looks at action across acute, primary, community and social care systems rather than focusing on A&E departments alone. It builds on our 2013 report on Emergency admissions to hospital: managing the demand and our 2016 report on Discharging older patients from hospital, which also examined the pressures on the whole health and social care system.
NHS combined performance summary. This monthly release aims to provide users with an overview of NHS performance statistics in key areas. It finds that the past 12 months has shown continued growth in the demand on NHS services with rises in A&E attendances and referrals.
If you wish to discuss any queries you may have around acute and emergency care please contact Claire Bentley.
Children
Publications/guidance
Response to Transforming children and young people's mental health provision: a green paper. In response to a joint Department of Health and Social Care and Department for Education consultation on a green paper setting out measures to improve mental health support for children and young people, the Professional Standards Authority calls for practitioners working in healthcare to be registered either through statutory regulation or the Accredited Registers programme. It expresses agreement with the view that schools and colleges have a frontline role to play, and that it is critical that appropriate oversight is in place for those working with children and young people with mental health conditions.
Best start in life: cost-effective commissioning. This guidance aims to help local commissioners provide cost-effective interventions for pregnant women and children aged up to five. The accompanying return on investment tool pulls together evidence on the effectiveness and associated costs for a number of interventions aimed at providing children with the best start in life.
Supporting the public health nursing workforce: health visitors and school nurses delivering public health for children and young people (0-19). Guidance for employers. This guidance is for all employers of health visiting and school nursing teams to help support recruitment and retention of health visitors and school nurses, to sustain the quality and consistency of local services. This guidance should be read in conjunction with the Standards for Employers of Public Health Teams in England. This document provides additional specific guidance on health visiting and school nursing services.
Consultations
Working Together to Safeguard Children: revisions to statutory guidance Summary of responses received, along with the government’s response outlining the next steps.
If you wish to discuss any queries you may have around children please contact Deborah Jeremiah.
Clinical Risk/Patient Safety
Publications/Guidance
Surveying complainants. The 2013 Francis Inquiry highlighted the need to recognise the importance of patient complaints, and the need to create robust systems and cultures that are able to deal with and learn from them. Working with NHS England and the PHSO, the Picker Institute has developed a model survey to measure complainants' experiences across health and social care, building on 'My Expectations', a set of quality standards for complaint handling devised by the PHSO and Healthwatch England.
Clinical Negligence Fixed Costs Working Group. A new Civil Justice Council working group has been set up to consider fixed costs in clinical negligence claims with a value of £25,000 or less. The working group will be chaired by Andrew Parker, with David Marshall as vice chair. The Group's terms of reference have also been set out.
A Royal Commission on the NHS: the remit. This report sets out how a Royal Commission can ensure the NHS delivers the best outcomes on a sustainable financial basis over the coming decades. It outlines what the remit and priorities of such a Commission should be.
Cases
David John Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB). The claimant had failed to establish on the balance of probabilities that damage to the blood supply of his colon had been caused by surgery rather than by natural causes. His expert had not offered a clear explanation of the likely mechanism of surgical injury, and the delay of four days before the onset of symptoms did not fit with an acute event during surgery. The court commented on the agendas to be sent to experts to produce their joint statement.
Barton v Wright Hassall LLP [2018] UKSC 12. The Supreme Court set out the approach to be taken to applications under CPR r.6.15(2) for an order validating service of a claim form which had not been properly served.
News
Review launched to respond to patient concerns about NHS treatments. DHSC has announced a review into how the health system responds to reports from patients about side effects from three NHS treatments: the hormone pregnancy test Primodos; vaginal mesh implants; and the anti-epilepsy drug sodium valproate. Baroness Julia Cumberlege will lead the review. She will consider: whether any further action is needed relating to the complaints around these treatments; the processes followed by the NHS and its regulators when patients report a problem; and how to make sure communication between the different groups involved is good.
Test case argues NHS trusts should ensure junior doctors have breaks. In a test case, supported by the British Medical Association, Dr Sarah Hallett argues NHS trusts should monitor junior doctors and ensure they have a 30-minute break for every four hours they work. She is seeking declarations she says will ensure trainees are properly monitored and given breaks according to their contracts. Lawyers representing the Royal Derby Hospitals NHS Foundation Trust told the High Court that the potential cost to the NHS as a whole would be significant if her claim succeeds.
Hospital says patient died 'due to dangerous overcrowding of A&E'
Medical Protection Society claims that legal bar for convicting healthcare professionals of manslaughter is "too low". In response to a government review into the use of gross negligence manslaughter in healthcare following the handling of the case of Hadiza Bawa-Garba, a junior doctor who was struck off the medical register in January 2018 after a 2015 conviction for gross negligence manslaughter, the Medical Protection Society has warned that the legal bar for convicting healthcare professionals of manslaughter is currently "too low". It argues that medical manslaughter cases are very complex, and that a feature of the law in England and Wales is that intent, carelessness, or recklessness is not required for a conviction.
Bevan Brittan Updates
Court of Appeal overturns Health Ombudsman's decision on GP medical care. The Court of Appeal has handed down judgment in Miller v Health Service Commissioner for England [2018] EWCA Civ 144 in an important decision concerning the scope of the Health Service Ombudsman's power to investigate complaints about clinical judgement.
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
If you wish to discuss any clinical risk or patient safety issues please contact Joanna Lloyd, Catherine Radford or Penelope Radcliffe.
Commissioning
Publications/Guidance
Accountable Care Organisations. This Commons Library briefing paper looks at the introduction of Accountable Care Organisations (ACOs) in the NHS in England, the development of the ACO policy, and comment on its potential impact. The proposed introduction of ACOs in the NHS in England has generated some commentary as to a potential increase in private sector involvement, in part due to the model’s origin in the American healthcare system. This briefing paper explores these issues, as well as the future roles of CCGs and GPs in an ACO system.
Best start in life: cost-effective commissioning. This guidance aims to help local commissioners provide cost-effective interventions for pregnant women and children aged up to five. The accompanying return on investment tool pulls together evidence on the effectiveness and associated costs for a number of interventions aimed at providing children with the best start in life.
National framework for NHS continuing healthcare and NHS-funded nursing care October 2018 (Revised). The DHSC have published a revised National Framework for NHS continuing healthcare and NHS funded nursing care that will take effect on 1 October 2018. There is also 'NHS continuing healthcare: checklist (from Oct 2018)', 'NHS continuing healthcare: decision support tool (from Oct 2018)' and 'NHS continuing healthcare: fast track pathway tool (from Oct 2018).
DHSC have also announced that the NHS-funded nursing care standard weekly rate per patient will increase by 2% from the current rate of £155.05 to £158.16 for 2018 to 2019, while the higher rate of NHS-funded nursing care will increase by 2% from the current rate of £213.32 to £217.59 pw for 2018 to 2019.
Prescribed Specialised Services Advisory Group recommendations to Ministers. PSSAG annually provides recommendations to ministers on which health services should be considered to be specialised and be nationally commissioned by NHS England, rather than locally commissioned by clinical commissioning groups. The 2018 report sets out the proposals considered by PSSAG at its May and October 2017 meetings, and outlines its recommendations for each of these proposals.
Technical guidance for Refreshing NHS Plans 2018/19. Details the operational planning technical guidance annexes that support the submission of commissioner and provider templates contained in January's operational planning guidance. it states that "all commissioners and all providers are required to submit a full suite of operating plan returns to the deadlines in the national timetable and also adhere to the contract variation deadlines and processes. The suite of documents in the technical planning guidance has been updated as necessary to support the submission of templates, to ensure plans are completed on a consistent basis and to a high standard".
Making sense of integrated care systems, integrated care partnerships and accountable care organisations in the NHS in England. NHS England has recently changed the name of accountable care systems to integrated care systems, which describes more accurately the work being done in the 10 areas of England operating in this way. This updated long read from the King's Fund looks at work under way in these systems and at NHS England’s proposals for an accountable care organisation contract.
Learning from the vanguards: supporting people and communities to stay well. This briefing from NHS Clinical Commissioners explores how the vanguards have sought to design health and care services around the needs of people who use them, focusing on the outcomes that matter to people and tailoring care to their needs and goals. It also explores how the vanguards have adopted community- and asset-based approaches to consider the broadest possible influencers on health and care.
Legislation
Responsibilities and Standing Rules, and Care and Support (Miscellaneous Amendments) Regulations 2018 (SI 2018/283). These regulations, which mainly come into force on 1 April 2018, amend SI 2012/2996, SI 2014/2821 and SI 2014/2827 which provide for a range of matters relating to the functions and commissioning responsibilities of the National Health Service Commissioning Board (NHS England) and CCGs. In particular, it updates references to the NHS Continuing Healthcare framework in light of the new CHC Framework that comes in on 1 October 2018.
Consultations
2017-19 NHS Standard Contract: updated March 2018. A National Variation to the NHS standard contract (last updated in January 2018) is now required because of the General Data Protection Regulation (GDPR) coming into force on 25 May 2018. NHS England is now seeking views on proposals for in-year National Variations to the full length and shorter forms of the contract. The closing date for comments is 3 April 2018.
If you wish to discuss the issue of commissioning please contact David Owens.
Employment/HR
Publications/guidance
Supporting the public health nursing workforce: health visitors and school nurses delivering public health for children and young people (0-19). Guidance for employers. This guidance is for all employers of health visiting and school nursing teams to help support recruitment and retention of health visitors and school nurses, to sustain the quality and consistency of local services. This guidance should be read in conjunction with the Standards for Employers of Public Health Teams in England. This document provides additional specific guidance on health visiting and school nursing services.
Language testing for healthcare professionals. This briefing sets out the English language testing requirements for overseas health care professionals in the UK. It summarises the context and history of the tests and changes introduced since 2010.
Employing members of the armed forces in the NHS. This briefing collates employer views from across the NHS and combines them with existing research from the private sector to develop an evidence base that highlights the benefits of employing reservists and the wider armed forces community at a local level.
Using your apprenticeship levy. This briefing looks at how NHS organisations can successfully tap in to the apprenticeship levy and the wider benefits of providing apprenticeships and how they can help to address workforce supply challenges.
NHS staff survey 2017. The results of the 2017 staff survey show that NHS staff feel under pressure but are feeling better supported by their managers. While staff are satisfied with the quality of care they are providing, the results also highlight areas of concern, with satisfaction in pay falling and one in six staff experiencing physical violence at work.
NHS 111 workforce blueprint: workforce survey. This report provides recommendations developed following a survey of the NHS 111 workforce in 2016 to help managers ensure that staff satisfaction is addressed and that staff are properly supported and able to provide the best care for patients. It is accompanied by a range of guidance documents to help support the development and wellbeing of the NHS 111 workforce.
NHS workforce race equality: a case for diverse boards. This report highlights the importance of diversity in NHS board membership and provides guidance on working towards creating inclusive cultures.
NHS reality check: update 2018. This report outlines the findings of a survey of more than 1,500 NHS doctors which explored their experience of delivering care in the UK health service. It finds that doctors reported that conditions had got worse and NHS staff, who have benefited from some of the best medical education in the world, were not able to provide the standard of care they had been trained to deliver.
Employee engagement, sickness absence and agency spend in NHS trusts This report, commissioned by NHS England from The King's Fund, outlines how improved staff engagement is linked to lower staff sickness absence and reduced agency staffing costs. It aims to support NHS organisations to build cultures of continuous improvement.
News
Test case argues NHS trusts should ensure junior doctors have breaks. In a test case, supported by the British Medical Association, Dr Sarah Hallett argues NHS trusts should monitor junior doctors and ensure they have a 30-minute break for every four hours they work. She is seeking declarations she says will ensure trainees are properly monitored and given breaks according to their contracts. Lawyers representing the Royal Derby Hospitals NHS Foundation Trust told the High Court that the potential cost to the NHS as a whole would be significant if her claim succeeds.
Bevan Brittan Updates
If you wish to discuss any employment issues please contact Julian Hoskins or James Gutteridge.
Independent Healthcare
Publications/Guidance
Accountable Care Organisations. This Commons Library briefing paper looks at the introduction of Accountable Care Organisations (ACOs) in the NHS in England, the development of the ACO policy, and comment on its potential impact. The proposed introduction of ACOs in the NHS in England has generated some commentary as to a potential increase in private sector involvement, in part due to the model’s origin in the American healthcare
Bevan Brittan Events
Bevan Brittan Digital Forum: Route to Market Issues and Opportunities. 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. system. This briefing paper explores these issues, as well as the future roles of CCGs and GPs in an ACO system.
If you wish to discuss any queries you may have around independent healthcare please contact Vincent Buscemi.
Information Sharing/data
Consultations
Data sharing between NHS Digital and the Home Office: call for evidence. This consultation seeks views on the impact of data-sharing arrangements under the memorandum of understanding on the health and health care-seeking behaviour of migrants. The consultation closes on 30 March 2018.
Bevan Brittan Updates
Public Procurement and GDPR in practice. A couple of practical questions on Public Procurement and GDPR.
Bevan Brittan events
A Practical Approach to the General Data Protection Regulations ("GDPR") for the NHS
Birmingham - Tuesday 20 March 2018, 09:30
If you wish to discuss any issues raised in this section please contact Jane Bennett.
Inquests
Cases
Douglas v Ministry of Justice [2018] EWHC B2 (Costs). The Master considered the issue of the recoverability of costs of attending an inquest.
R (Parkinson) v HM Senior Coroner for Kent (2018) (Unreported, Admin Ct). The court did not appoint a claimant's solicitor as his litigation friend where there was no current evidence that the claimant lacked the mental capacity to conduct his own litigation. Although he had suffered from psychotic depression the year before, leading a psychiatrist to determine that he had lacked capacity, a specialist mental capacity assessor had found that his mental state had since improved and that he possessed the capacity to make his own legal decisions.
News
Chief coroner calls taxi-rank burial policy unlawful The Chief Coroner of England and Wales, Judge Mark Lucraft QC, has criticised a policy from Mary Hassell, the senior coroner for inner north London, which applies a "cab rank" rule for burials by refusing to prioritise them on religious grounds. Giving evidence to the High Court, Judge Lucraft said that the policy could be deemed to be discriminatory and in breach of the Human Rights Act 1998. He added that cases should be prioritised where urgent.
If you wish to discuss any issues raised in this section please contact Ceri Catton or Will Pickles.
Mental Health
Publications/Guidance
Response to Transforming children and young people's mental health provision: a green paper. In response to a joint Department of Health and Social Care and Department for Education consultation on a green paper setting out measures to improve mental health support for children and young people, the Professional Standards Authority calls for practitioners working in healthcare to be registered either through statutory regulation or the Accredited Registers programme. It expresses agreement with the view that schools and colleges have a frontline role to play, and that it is critical that appropriate oversight is in place for those working with children and young people with mental health conditions.
Mental health rehabilitation inpatient services. This briefing looks at mental health rehabilitation inpatient services, including ward types, bed numbers and use by clinical commissioning groups and NHS trusts. It voices concerns about the high number of patient allocated beds situated a long way from the patient’s home.
Guidance and principles for Aftercare Services under s117 MHA. London ADASS has collaborated to produce a document aiming to provide pan-London guidance and good practice principles for agreeing responsibility for after care services and funding responsibilities under s.117 of the Mental Health Act 1983 and the Care Act 2014. The document clarifies responsibility for funding and providing s.117 services and is intended to compliment any existing procedures.
Mental Capacity Guidance Note: Deprivation of liberty in the hospital setting. The law governing the deprivation of a person’s liberty in a hospital can be complex. In every case it involves (or should involve) consideration of the question of what amounts to a deprivation of liberty for the purposes of domestic legislation and Article 5 of the European Convention of Human Rights. In very many cases, it involves the interface of two statutory regimes (the Mental Health Act 1983 and the Mental Capacity Act 2005).
Choice in mental health care. Updated NHS England guidance for commissioners, GPs and providers on implementing patients’ legal rights to choose the provider and team for their mental health care.
Wellbeing and mental health: applying All Our Health. DHSC has published examples to help healthcare professionals make interventions to promote physical health and wellbeing in mental health.
Our invisible addicts. This report highlights the need for clinical services to focus more on the needs of older people as growing numbers of baby-boomers seek help for substance misuse. It makes a series of recommendations including the need to enhance training at all levels – such as training more addictions psychiatrists and old–age psychiatrists to manage the specific needs of older substance misusers.
Are we listening? A review of children and young people's mental health services. This report argues that too many children and young people find themselves at ‘crisis point’ before accessing mental health services because health care, education and other public services are not working together as effectively as they could to protect and support their best interests. It calls for leadership from the Department of Health and Social Care on ensuring greater collaboration across government in order to prioritise the mental health needs of children and young people in England.
Cases
R (Parkinson) v HM Senior Coroner for Kent (2018) (Unreported, Admin Ct). The court did not appoint a claimant's solicitor as his litigation friend where there was no current evidence that the claimant lacked the mental capacity to conduct his own litigation. Although he had suffered from psychotic depression the year before, leading a psychiatrist to determine that he had lacked capacity, a specialist mental capacity assessor had found that his mental state had since improved and that he possessed the capacity to make his own legal decisions.
AB v HT [2018] EWCOP 2. Hearing to determine whether the Patient had the capacity to make decisions as to her care, residence and the contact she has with other people, and also to marry.
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.
Primary Care
Publications/Guidance
Quality patient referrals: Right service, right time. The Royal College of GPs recommends that referral management centres, which are primarily designed to reduce GP total referral numbers to hospital should not be introduced; and where they already exist, it must be demonstrated that they are safe for patients and cost-effective to the whole NHS. The report cites a 'dearth of evidence' that referral management centres are cost-effective, stating that they are ultimately more expensive to run than other systems designed to improve and maintain the quality of GP referrals.
Older people living with frailty: Frequently asked questions. The 2017/18 GP contract aims to respond positively to frailty and the challenges it poses through routine frailty identification for patients who are 65 and over and targeting a small number of key interventions (falls assessment and medicines review) at those most at risk of adverse events including hospitalisation, nursing home admission and death. NHS England has put together these answers to the most frequently asked questions about supporting older people living with frailty.
Cases
Miller v Health Service Commissioner for England [2018] EWCA Civ 144. The court has quashed the Parliamentary and Health Service Ombudsman's decision that two GPs had provided unacceptable care to a patient. The court ruled that the decision was procedurally unfair because the GPs had been given no opportunity to comment on the complaint before the Ombudsman decided to conduct an investigation. The investigation was also biased by pre-determination, and the Ombudsman had adopted a standard of review which was unreasonable, irrational and unlawful because it was not capable of being clearly and consistently applied.
Bevan Brittan Updates
Court of Appeal overturns Health Ombudsman's decision on GP medical care. The Court of Appeal has handed down judgment in Miller v Health Service Commissioner for England [2018] EWCA Civ 144 in an important decision concerning the scope of the Health Service Ombudsman's power to investigate complaints about clinical judgement.
If you wish to discuss any queries you may have around primary care please contact Vincent Buscemi.
Procurement
Publications/Guidance
Guidance on how to support the Future Operating Model (FOM) and deliver savings to Trusts. This document encourages Trusts to consider and utilise the Termination for Convenience clause in Sch.1 of the latest version of the standard NHS Terms & Conditions, which provides the Trust with the ability to terminate the contract at its convenience.
Bevan Brittan Updates
Public Procurement and GDPR in practice. A couple of practical questions on Public Procurement and GDPR.
If you wish to discuss any queries you may have around procurement please contact Vincent Buscemi.
Providers
Publications/guidance
Highly specialised services 2017. This report provides information on services that fall under the highly specialised services portfolio. It outlines which NHS providers deliver these services, how they are funded and the commissioning arrangements for devolved nations.
If you wish to discuss any queries you may have around providers please contact Vincent Buscemi.
Public Health
Publications/Guidance
Chief Medical Officer annual report 2017: Health impacts of all pollution – What do we know? Professor Dame Sally Davies's ninth independent report as CMO discusses the threat to health posed by pollution to people living in England.
Tackling multiple unhealthy risk factors: emerging lessons from practice. This Ling's Fund report shares learning and insight from services that are using innovative ways to address the problem of multiple unhealthy risk factors in their populations. It draws on interviews and information from eight case studies in local authorities and the NHS and updates the evidence base on tackling multiple unhealthy risk factors. The report makes recommendations on how services can develop and share evidence, and how DHSC and PHE can support further innovation in such services.
Adding extra years to life and extra life to those years – Local government guide to healthy ageing. This LGA publication contains examples of how partnership working between local government, the NHS, the voluntary sector and the communities can tackle long-term conditions and make sure that those in old age are able to maintain their health, wellbeing and independence for as long as possible.
Supporting the public health nursing workforce: health visitors and school nurses delivering public health for children and young people (0-19). Guidance for employers. This guidance is for all employers of health visiting and school nursing teams to help support recruitment and retention of health visitors and school nurses, to sustain the quality and consistency of local services. This guidance should be read in conjunction with the Standards for Employers of Public Health Teams in England. This document provides additional specific guidance on health visiting and school nursing services.
Consultations
Cost effectiveness methodology for vaccination programmes. DHSC is seeking views on recommendations in the Cost-Effectiveness Methodology for Vaccination Programmes & Procurement (CEMIPP) report. The CEMIPP group was set up by the Government to consider whether the method for appraising cost effectiveness of vaccination programmes should change. Their report is complex and technical so this consultation is primarily aimed at specialists with an interest in health economics. The consultation seeks views and further evidence to inform the Government’s decision on this report. The closing date for comments is 21 May 2018.
If you wish to discuss any queries you may have around public health please contact Claire Bentley.
Regulation
Publications/Guidance
Care Quality Commission: regulating health and social care: Twenty-Fourth Report of Session 2017-19. A Public Accounts Committee report on the Care Quality Commission (CQC) concludes that action is needed on publication of reports, staffing assumptions, intelligence-gathering and more. The Committee states the CQC does not make inspection reports available to the public quickly enough following an inspection and it needs to improve how it interacts with and regulates GP practices.
Legislation
Branded Health Service Medicines (Costs) Regulations 2018 (SI 2018/345). These regulations, which come into force on 1 April 2018, provide for a statutory scheme which (a) controls the maximum price which may be charged for the supply of branded health service medicines; and (b) requires certain manufacturers and suppliers of branded health service medicines to pay to the Secretary of State 7.8% of their net sales income received for the supply of those medicines. In making these changes the Government intends to better align the way the statutory scheme and voluntary 2014 Pharmaceutical Price Regulation Scheme (PPRS) work, to move towards a more level playing field between companies in the two schemes. Reforming the statutory scheme will also enable the Department to put more effective pricing and enforcement controls in place, whilst increasing the levels of savings of health service medicines covered by the scheme. These Regulations do not apply to members of the 2014 PPRS.
National Health Service (Dental Charges) (Amendment) Regulations 2018 (SI 2018/336). These regulations amend the Dental Charges Regulations 2005 (SI 2005/3477) to implement an above inflation uplift to dental charges from 1 April 2018.
Cases
Oyesanya v General Medical Council [2018] EWHC 338 (Admin). The court refused a medical practitioner's application to quash his immediate suspension under s.38 of the Medical Act 1983. The court ruled that an order for immediate suspension was valid even if the underlying direction for suspension was overturned on appeal and the only limit on that and protection for the medical practitioner, was the power to ask the High Court under s.38(8) to terminate the immediate suspension.
General Dental Council v Souhani (2018) (Unreported, Admin Ct). The court ruled that there had been excessive and unjustified delay by the General Dental Council in examining the case of a dentist whose registration had been subject to conditions for over 18 months. His compliance with the conditions was not an excuse for the Council to be given a further year to progress his case. The court granted a six-month extension of the conditions; if the Council required more time it would have to apply to the court and demonstrate reasonable progress.
Basson v General Medical Council (2018) (Unreported, Admin Ct). The court held that the medical practitioners' tribunal had been right to find that the conduct of a general practitioner who had touched the underside of a female patient's leg when taking her blood pressure and commented on her skirt being short had been sexually motivated. The fact that the GP was an honest witness who could not remember the incident did not mean that his conduct had not been sexually motivated.
Ayodele v Nursing and Midwifery Council (Unreported, Admin Ct). The court held that the Nursing and Midwifery Council's fitness to practise panel's decision that a nurse had injected a patient in the thigh contrary to the manufacturer's instructions had not been wrong or unfair by reason of procedural irregularity, and the panel had been entitled on the evidence to find the primary facts proved.
Bevan Brittan Events
Bevan Brittan Digital Forum: Route to Market Issues and Opportunities. 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.
Social Care
Publications/Guidance
Government Response to the Competition and Markets Authority's 'Care homes market study, final report'. This response sets out DHSC's response to the CMA’s final report of its market study into residential and nursing care homes for older people, that was published in November 2017. DHSC has accepted, or accepted in principle, all of the CMA’s recommendations. It states that the Government will publish a Green Paper by Summer 2018, setting out plans for improving care and support for older people and how to tackle the challenge of an ageing population. The CMA’s findings about how the care home market is operating are a critical contribution to the Green Paper, particularly in relation to the sustainability of current arrangements. Ahead of the Green Paper, it will continue to work with the CMA and the adult social care sector to implement the CMA’s recommendations to improve consumer information and protections.
Care aware. A new CQC survey which polled over 1,000 adults who were responsible for choosing care in a care home or at home over the last three years, has found that choosing adult social care in England is one of the biggest sources of stress compared to other key life events.
Guidance for supporting older people with hearing loss in care settings: A guide for managers and staff. Action for Hearing Loss has produced this guide to help staff working in longer-term care settings provide high-quality care and support to older people with hearing loss. It covers all types of care settings for older people, including nursing, residential, dementia and extra care.
Challenges can fuel change – A VODG contribution to Civil Society Futures. This discussion paper outlines what social care providers believe are the future hopes for the sector as well as the barriers that block progress. Based on the views of VODG members, the paper argues that voluntary social care organisations must adapt to be sustainable. The publication contributes the national independent inquiry into English civil society, Civil Society Futures.
Long-term sustainability of the NHS and adult social care: Government response. The Lords Select Committee report on the long-term sustainability of the NHS and adult social care made 34 recommendations in the areas of: service transformation; funding the NHS and adult social care; innovation technology and productivity; public health, prevention and patient responsibility; and lasting political consensus. The Government’s response states that significant efficiencies will be needed to make the NHS and social care system sustainable for the long term.
People's experience in adult social care services: improving the experience of care and support for people using adult social care services (NICE guideline NG86). This NICE guideline covers the care and support of adults receiving social care in their own homes, residential care and community settings. It aims to help people understand what care they can expect and to improve their experience by supporting them to make decisions about their care.
National Audit of Intermediate Care. Intermediate care provides alternative, community based services to better meet the needs of older people and enable more efficient patient flows through the health and social care system. The National Audit aims to take a whole system view of the effectiveness of intermediate care, to develop quality standards and patient outcome measures and to assess local performance against the agreed, national standards. This 2017 audit by NHS Benchmarking highlights key progress in intermediate care with more than 91% of service users maintaining or reducing their dependency across all services plus reduced average wait times.
Approaches to social care funding. The Health Foundation and the King’s Fund are undertaking work exploring options for the future funding of social care. This paper considers five different approaches to funding social care for older people in England, and sets out the implications of each.
Communities and health. There is a long history to draw on and much expertise of working with communities for health, but the approaches that are used are understood in many different ways and can be confusing. While this King's Fund article cannot do justice to the full range of approaches, it is a starting point for those wishing to understand more. It provides a reading list for those who want to explore this topic further.
National Minimum Wage: sleep in care. This briefing summarises recent developments relating to payment of the National Minimum Wage for sleep-in care duties for social care staff.
Financial sustainability of local authorities 2018. This report finds that despite greater freedoms to increase Council Tax bills and one-off short-term funding from government, local authorities are struggling to juggle higher demands and cost pressures against significant central government funding cuts of nearly 50 per cent since 2010–11. It warns that if local authorities with social care responsibilities keep using their reserves at current rates, one in ten could have exhausted them within three years.
Cases
R (Juttla) v Hertfordshire Valleys CCG; Hertfordshire CC (Interested Party) [2018] EWHC 267 (Admin). The court has granted an application for judicial review of a CCG's decision to remove £600,000 annual funding from a respite service for children with complex medical needs. The CCG had been placed in formal "financial turnaround" which required it to make significant savings to achieve financial balance. It was accepted that without the CCG's funding, the respite service would close. The CCG considered when making its decision that arrangements could be made for respite care to be continued elsewhere in the county for the children affected by the closure. The court held that the proposal to withdraw most of the service's funding amounted to a substantial variation of a health service, giving rise to the duty to consult the Council under reg. 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013/218). The CCG had breached that duty. Its decision to withdraw the respite service's funding was made on an incorrect legal basis with the consequence that it had not complied with its legal obligations under reg.23.
Consultations
People's experience using adult social care services. NICE is seeking comments about the five key areas for quality improvement which have the greatest potential to improve the quality of care in this area. The closing date for comments is 19 March 2018.
News
Councils urged to check their care charging procedures following Ombudsman investigations. The LGSCO has reminded local authorities of their obligations to families when placing people in care homes, after two North Yorkshire families paid over the odds for relatives’ care because the county council gave them inaccurate information. In both cases, the council told the families they would have to make arrangements to pay additional 'top up fees' directly with the care home rather than with the council, contrary to statutory guidelines.
If you wish to discuss any queries you may have around social care please contact Stuart Marchant
General
Publications/Guidance
Public satisfaction with the NHS and social care in 2017. The latest British Social Attitudes survey funds that public satisfaction with the NHS overall has dropped sharply in the past year and dissatisfaction is at its highest level since 2007.
Voice for Justice UK’s campaign about gender reassignment. The Department of Health and Social Care’s response to the Voice for Justice UK's campaign.
How is the NHS performing? March 2018 quarterly monitoring report. The King's Fund's 25th report finds that more patients are facing long waits for hospital treatment, with those experiencing the longest waits often most in need of treatment. With demand for services continuing to rise it's very unlikely that meeting waiting time targets will become more achievable, with implications for how the NHS protects patients waiting the longest.
News
High Court grants legal challenge against deal to hand over patient data to immigration officials. The High Court has granted a legal challenge put forward by Migrants Rights Net (MRN), a UK charity advocating for the rights of migrants, against a NHS-Home Office deal to hand over patient names, addresses and date of birth to immigration officials on request. The British Medical Association has warned that the deal was "already having a real effect on patients" and their trust in their doctors.
Proposal for a Draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018. A Joint Committee on Human Rights report on the draft Human Fertilisation and Embryology Act 2008 (Remedial) Order welcomes the Government's decision to use the remedial order to address discrepancies raised in Re Z (A Child) (Surrogate Father: Parental Order) with respect to the distinction between single parents and couples and the resulting incompatibility of the Human Fertilisation and Embryology Act 2008 with the right to private and family life and to non discrimination, but raises a number of significant concerns about the Government's drafting approach.
Decision to extend blood pressure drugs to more patients 'should not be taken lightly', says RCGP
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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