05/08/2019

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

 

 

Claims

Dealing with abuse claims in a care setting
Any incident or allegation of abuse in a care setting is inevitably going to be emotive and highly charged. How local authorities, insurers and their legal teams deal with such incidents or allegations can make a crucial difference, both to the welfare of the individual (which must be the prime concern) and the outcome of the case itself.

Rejection by the Supreme Court to extend duty of care by local authorities to children suffering harm from third parties

Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392
The Court of Appeal (Sir Terence Etherton MR, Hamblen and Holroyde LJJ) provided general guidance on the approach to be taken to sentencing an expert witness whose practice of completing expert reports placed them in contempt of court or who lied when questioned about such reports.

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Insurance

Check insurance and indemnity cover, GMC tells doctors
The General Medical Council (GMC) has updated its guidance for doctors on insurance and indemnity to coincide with new state-backed clinical negligence schemes that has launched for GPs across England and Wales.

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Coroner's Inquests

Approaching causation in the Coroner’s Court

Coroners' investigations and inquests
This briefing paper deals with the law in England and Wales.

Independent review of gross negligence manslaughter and culpable homicide
Leslie Hamilton and his working group have published their independent review into how the laws on gross negligence manslaughter and culpable homicide are applied to medical practice.

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Information Sharing/Data

Have you checked your data retention policies?

Adult Social Care Data and Cyber Security Programme Report
This report identifies the common, key risks that provider services face. In addition, it considers the effectiveness of existing support for providers and the changes needed nationally and locally to systems and support in order to maintain cyber security and good information governance

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Adult Social Care and Mental Health

Capacity and sexual relations
Laura Pearce and Hannah Taylor explore how the courts seek to strike the right balance between promoting autonomy for this basic human right and protection in the face of a potentially very vulnerable context.

Liberty Protection Safeguards to come into force on 1 October 2020

Minister of State for Care, Caroline Dinenage, has provided an update on the implementation of the new deprivation of liberty framework

Out with the DOLS, in with the LPS
Over the last year, Parliament has been considering The Mental Capacity (Amendment) Bill which seeks to replace the current DoLS scheme with a new framework called the Liberty Protection Safeguards (“LPS”).

New advance care planning guide
A new guide E helps managers of care services to support people to prepare for a time when they do not have the capacity to make their own decisions.

Parity of Esteem – Delivering Physical Health Equality for those with Serious Mental Health Needs
This publication gives an overview of the work the RCN is doing to address the mortality gap between people with serious mental illness and the rest of the population as well as our work towards establishing parity of esteem between mental and physical health.

Handling sharps in adult social care
QC has published a new medicines FAQ on handling sharps in adult social care to help providers understand their health and safety responsibilities as an employer in relation to the handling of needles, including when providing support in people’s own homes.

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Children

Safeguarding Partners: Are you ready for 29 June 2019?
New safeguarding partner arrangements are replacing Local Safeguarding Children's Boards ("LSCBs") and the deadline for publishing details of new arrangements is 29 June.  The new arrangements need to cover a number of requirements set out in the statutory guidance, Working Together to Safeguard Children (July 2018).

Who are they?  Where are they? Children locked up
1,465 children in England were securely detained in March 2018, at an estimated cost of over £300 million a year.  This report calls on government to have proper oversight and accountability for vulnerable ‘locked up’ children, to ensure that they are not overlooked or forgotten.

‘Far less than they deserve: Children with learning disabilities or autism living in mental health hospitals’
The report shows how too many children are being admitted to secure hospitals unnecessarily – in some cases are spending months and years of their childhood in institutions when they should be in their community. It warns that the current system of support for those with learning disabilities or autism is letting down some of the most vulnerable children in the country.

Segregation in mental health wards for children and young people and in wards for people with a learning disability or autism This is the interim report of a review commissioned by the Secretary of State for Health and Social Care. It calls for an independent review of every person who is being held in segregation in mental health wards for children and young people and in wards for people with a learning disability or autism.

Statutory funding for children's hospice and palliative care charities in England 2018/19 This survey of 27 children’s hospices in England shows that NHS and local council cuts are hitting lifeline care for seriously ill children. The report calls on NHS England to keep its promise to protect the Children’s Hospice Grant – and go further by increasing it to £25 million per year.

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Regulatory

CQC notifications – increased scrutiny of safety culture

Planning for a possible no-deal EU Exit: information for the health and care sector
Guidance for industry and organisations involved in health and care about contingency plans for a no-deal Brexit.

Council pays out over £40,000 for ‘mistakes’ in respite centre closure
LocalGov | 14 May 2019
Southampton City Council has paid thousands of pounds in compensation after an Ombudsman ruled that the authority had caused ‘avoidable distress’ when it closed a respite centre.

People living in care homes – frequently asked questions
These frequently asked questions have been developed to support Clinical Commissioning Groups (CCGs) to implement the NHS England guidance for people living in care homes and will be of interest to care home operators.

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Employment/HR

Women and Equalities Committee report on non-disclosure agreements in discrimination cases
A report addressing as the 'widespread and commonplace' use of non-disclosure agreements in the settlement of discrimination cases. It expresses concerns about the tendency for employers to use such agreements routinely to cover up allegations of unlawful discrimination or harassment rather than investigate them, and makes recommendations to the Government aimed at discouraging such practices.

Where are we on holiday pay?
Following the recent Court of Appeal decision in Flowers and others v East of England Ambulance NHS Trust, Sarah Lamont summarises the important case law on the calculation of holiday pay.

Recording Working Time
Julian Hoskins reports on the case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche in relation to recording working time.

Sleeping in, losing out: a survey of care staff on sleep-in shifts
This report on care staff on overnight shifts looks at ‘sleep-in’ conditions and finds that some staff were abused physically and verbally, including being punched and threatened with knives.

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Finance

Independent review of local government spending need and funding
This report identifies a funding gap of over £50 billion over the next six years for councils in England. It estimates that by 2025, 78 per cent of the 36 county authorities’ spending will relate to four key service areas: adult social care, children’s services, public health and education services.

Bevan Brittan wins independent sector award at the HealthInvestor Awards

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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.