04/09/2018

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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Training Events

Inquests

Acute and emergency care

Mental Health

Children

Primary Care

Clinical Risk/Patient Safety

Prison Health

Commissioning

Providers

Employment/HR

Public Health

Finance

Regulation

Independent Healthcare

Social care

Information sharing/data

 General

 

If someone forwarded you this email you can sign up for your own free copy here delivered directly to your inbox.   

Bevan Brittan Free Training Events 

Key topics for Social Care Providers. We have specialist insight into the challenges and opportunities for the sector arising from political policy, funding and financing, innovation, new models of care, workforce issues and regulation. We have invited industry experts to join us in reviewing and debating current issues for social care providers. Please register your interest in attending by clicking on the following links: 

Annual Mental Health Seminar

Key topics at the Annual Mental Health Seminars include:

  • Strategic issues in mental health;
  • Case law update;
  • Serious incidents in a modern healthcare world;
  • Collaboration between mental health and housing; and
  • Mental healthcare for adults in emergency departments.

Please register your interest in attending by clicking on the following links: 

Court of Protections Seminars

Key topics at the Annual Court of Protection Seminars include:

  • Safeguarding – Care Act vs. CoP;
  • Case law update;
  • Liberty Protection Safeguards and DoLS update;
  • What to do when someone is not acting in best interests; and
  • Mediation in the CoP.

Please register your interest in attending by clicking on the following links: 

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. You can sign up to watch the training sessions remotely via our webinar facility.  Just ask Claire Bentley.  

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 

Closing five emergency departments in England between 2009 and 2011: the closED controlled interrupted time-series analysis This study finds that the closure of emergency departments does not lead to more deaths. The research, which analysed five emergency departments in England that were downgraded between 2009 and 2011, found there was no impact on death rates upward or downward, despite patients having to travel further to access emergency care.

News

Record numbers of people getting urgent NHS help over the phone. 20,000 people every day are now getting urgent health advice from a doctor, nurse, paramedic or other clinical professional over the phone, according to latest NHS data.

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 

Guidance for health services for children and young people with Special Educational Needs and Disability (SEND). This quick guide is intended to help local areas develop their transition processes for young people with special educational needs and disability (SEND) from childhood to adulthood.

Information sharing advice for safeguarding practitioners. Guidance on information sharing for people who provide safeguarding services to children, young people, parents and carers.

Commissioning for transition to adult services for young people with Special Educational Needs and Disability (SEND).This quick guide aims to help health commissioners and providers tackle the challenges involved in implementing the joint commissioning of services for children and young people with special educational needs and disability (SEND) introduced by Part 3 of the Children and Families Act 2014.

Each baby counts: themed report on anaesthetic care, including lessons identified from Each Baby Counts babies born 2015 to 2017 Launched in 2014, the Each Baby Counts programme aims to reduce the number of babies who die or are left severely disabled as a result of incidents occurring during term labour by 50 per cent by 2020. In 2017, the College published a landmark report that found that 76 per cent of babies in its study might have had a different outcome with different care. The report included recommendations highlighting critical factors in the care of the many of these babies that could prevent these incidents in the future. Detailed analysis of the anaesthetic care given to the mothers of 49 babies reported to Each Baby Counts between 2015 and 2017 has been completed. This special report is part of a wider set of findings and recommendations, to be published in autumn 2018.

Evaluation of the implementation of the Saving Babies’ Lives Care Bundle in early adopter NHS trusts in England This independent evaluation, commissioned by NHS England, shows clinical improvements such as better monitoring of a baby’s growth and movement in pregnancy, as well as better monitoring in labour, led to maternity staff helping to save more than 160 babies’ lives across 19 maternity units. The report found that stillbirths fell by a fifth at the maternity units where national guidance, known as the Saving Babies Lives Care Bundle, had been implemented. The best practice guidance is now being introduced across the country and has the potential if these findings were replicated, to prevent an estimated 600 stillbirths.

The Government's Response to the Joint Committee for Human Rights 2nd 2018. A Department of Health and Social Care paper responds to the report of 2 March 2018 by the Joint Committee for Human Rights about a remedial order which will: address an incompatibility in the Human Fertilisation and Embryology Act 2008; and allow an individual to apply for a parental order, which transfers legal parenthood after a surrogacy arrangement. The paper includes a revised remedial order.

News

Hundreds of children wait more than a year for specialist help. More than 500 children and young people assessed as needing Tier 3 child and adolescent mental health services had waited more than a year to start treatment New data from Freedom of Information requests shows nearly half of the 11,000 young people assessed as needing care waited more than 18 weeks NHS warned long waits are “unacceptable” and ministers need to commit new funding to meet rising demand.

Supreme Court to hear case on 16-17 year olds, capacity and confinement. In what has been described as the first case before the Supreme Court to consider how the Mental Capacity Act 2005 applies in relation to the 16-17 year-old age group and how it interacts with the common law concept of parental responsibility, permission has been granted to the Official Solicitor to appeal a ruling that a person with parental responsibility can consent to the confinement of their child in that age bracket where that child has impaired capacity.

Independent Inquiry into Child Sexual Abuse fined £200,000 for revealing identities of possible abuse victims in mass email. The Information Commissioner's Office has fined the Independent Inquiry into Child Sexual Abuse (IICSA) £200,000 for sending an email to 90 addresses in February 2017 that exposed the identities of dozens of victims, after finding that the IICSA had promised to protect sensitive personal information, and had also been slow to react and replies to the email which had exacerbated the breach.

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 

Draft Health Service Safety Investigations Bill: a new capability for investigating patient safety incidents. This report sets out the Committee's findings on the government’s plans to establish the Health Service Safety Investigations Body (HSSIB). It supports the planned 'safe space' approach to investigating incidents where patient safety has been compromised, as this gives greater confidence to health care professionals in alerting authorities to potential safety problems. However, it calls on the government to reconsider plans that would allow HSSIB to accredit NHS trusts and foundation trusts to conduct internal 'safe space' investigations, citing the likely conflict of interest. Instead, funding of the new body should be sufficient to allow comprehensive investigation, advice and assistance across the health network.

Always events evaluation. NHS England, in collaboration with Picker and the Institute for Healthcare Improvement (IHI), has been leading an initiative to support trusts to reliably integrate always events into their routine care processes. This report outlines the key learning from trusts that have piloted an always event and have sought to spread the approach to other areas in their organisation.

Maternal request caesarean This report, the result of a nationwide Freedom of Information Act request, shows that the majority of NHS trusts in the UK make the process of requesting a caesarean lengthy, difficult or inconsistent adding anxiety and distress to women at a vulnerable time.

Radiology review: a national review of radiology reporting within the NHS in England. This review of NHS radiology services in England by the Care Quality Commission has found significant variation in the timescales for reporting on radiology examinations and a wide range of arrangements to monitor and manage backlogs of unreported images at NHS hospital trusts. It calls for action to address reporting delays and keep people safe from harm.

Lessons learned review : Putting patients and the public at the heart of what we do. This paper sets out the proposals of the NMC for learning lessons from their handling of fitness to practise concerns about midwives at Furness General Hospital. It also takes into account the key learning they have identified from the Gosport Independent Inquiry.

Each baby counts: themed report on anaesthetic care, including lessons identified from Each Baby Counts babies born 2015 to 2017 Launched in 2014, the Each Baby Counts programme aims to reduce the number of babies who die or are left severely disabled as a result of incidents occurring during term labour by 50 per cent by 2020. In 2017, the College published a landmark report that found that 76 per cent of babies in its study might have had a different outcome with different care. The report included recommendations highlighting critical factors in the care of the many of these babies that could prevent these incidents in the future. Detailed analysis of the anaesthetic care given to the mothers of 49 babies reported to Each Baby Counts between 2015 and 2017 has been completed. This special report is part of a wider set of findings and recommendations, to be published in autumn 2018.

Evaluation of the implementation of the Saving Babies’ Lives Care Bundle in early adopter NHS trusts in England This independent evaluation, commissioned by NHS England, shows clinical improvements such as better monitoring of a baby’s growth and movement in pregnancy, as well as better monitoring in labour, led to maternity staff helping to save more than 160 babies’ lives across 19 maternity units. The report found that stillbirths fell by a fifth at the maternity units where national guidance, known as the Saving Babies Lives Care Bundle, had been implemented. The best practice guidance is now being introduced across the country and has the potential if these findings were replicated, to prevent an estimated 600 stillbirths.

Consultations

Cerebral palsy in adults: Draft guidance consultation. NICE has published a draft guideline on the care and support adults with cerebral palsy should receive.

Cases 

Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. A judge had not erred in his evaluation of the evidence when concluding that an NHS trust registrar had not acted negligently when failing to recognise on an ultrasound scan that a mother had failed to deliver part of her placenta following the birth of her child.

Ecila Henderson (A protected party, by her litigation friend the official solicitor) v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841 Although an NHS trust was responsible for the negligent care of a patient with paranoid schizophrenia, which had caused her to suffer a psychotic episode and kill her mother, leading to her conviction for manslaughter by reason of diminished responsibility, the court was bound by Clunis v Camden and Islington HA [1998] Q.B. 978  and Gray v Thames Trains Ltd [2009] UKHL 33 to reject the patient's damages claims against the trust on the ground that they were barred by the doctrine of illegality.

Hadiza Bawa- Garba (Appellant) v General Medical Council (Respondent) & (1) British Medical Association (2) Professional Standards Authority for Health and Social Care (3) British Associations of Physicians of Indian Origin (Interveners)  [2018] EWCA Civ 1879 In considering whether, following a junior doctor's conviction for gross negligence manslaughter arising from the death of a six-year-old child under her care, her fitness to practise had been impaired, the GMC's Medical Practitioners Tribunal had been entitled to impose the sanction of suspending her for one year, rather than erasing her name from the medical register, where she was a competent and useful doctor, who presented no material continuing danger to the public, and could provide considerable useful future service to society.

Ryan v Resende [2018] EWHC 2145 (QB) Mr Justice Goose allowed the claimant’s appeal and granted permission for it to rely on a care expert. The judgment shows the necessity of having evidence to  counter an argument that a certain expert is not needed and other experts can provide the necessary information. The new evidence allowed on appeal played a significant part in the decision to allow the appeal.

Swift v Carpenter [2018] EWHC 2060. The Court was asked to consider accommodation claims in the context of negative discount rates and confirmed that the High Court remains bound by Roberts v Johnstone, see para 132-137.

Mercel Hislop v Laura Perde : Kundan Kaur v Committee (For the time being) of Ramgarhia Board Leicester [2018] EWCA Civ 1726.  In cases falling under the fixed costs regime in CPR Pt 45 IIIA, a claimant was not entitled to standard or indemnity costs where a defendant accepted a Part 36 offer out of time but before trial. The fixed costs regime continued to apply until the eventual date of acceptance.

News

Surgeons' 'toxic' rows added to mortality rate, says report

High Court: No duty on solicitors to alert other side to errors. Ruling in Woodward v Phoenix Healthcare Distribution Ltd (Ch D), a case where a claim form was served on the defendant's law firm instead of the defendant itself, Judge Hodge QC has said that litigation solicitors are not under a duty to alert their opponents to errors which they have not caused, and that failing to draw attention to mistakes did not amount to "technical game playing".

CQC calls for action to address variation in radiology reporting timescales. A national review by the Care Quality Commission (CQC), has found significant variation in the timescales for reporting on radiology examinations and a wide range of arrangements in place to monitor and manage backlogs of unreported images at NHS hospital trusts across the country.

NHS Resolution presses ahead with mediation as litigation decreases but claims costs continue to rise

CA: Accepting part 36 offer late does not displace fixed-costs regime

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. You can sign up to watch the training sessions remotely via our webinar facility.  Just ask Claire Bentley. 

Bevan Brittan Updates 

Patient Safety: Another step forward (Joint Committee reports on Health Service safety investigation draft legislation). The report on the proposed legislation which will establish the Health Service Safety Investigations Body (HSSIB) has been published by the Joint Committee of the Houses of Parliament. While its views will not be last word in the legislative process, they are still an influential factor. This report will be of interest to all stakeholders involved in patient safety issues. Overall, the Joint Committee endorsed the purpose of the draft legislation confirming that the HSSIB will play an important role in improving patient safety. In particular the Committee highlighted the concept of the 'safe space' as a framework to allow healthcare staff to contribute to investigations into patient safety incidents in the knowledge that information given will not be disclosed except in limited circumstances. Simon Lindsay summarises some of the key recommendations.

Improving communication between NHS trusts and bereaved families. New guidance from NHS England sets out how healthcare professionals can improve their engagement with bereaved families and learn from their mistakes. It has been published in response to the CQC report Learning, candour and accountability: A review of the way NHS trusts review and investigate the deaths of patients in England.  

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 

Commissioning for transition to adult services for young people with Special Educational Needs and Disability (SEND).This quick guide aims to help health commissioners and providers tackle the challenges involved in implementing the joint commissioning of services for children and young people with special educational needs and disability (SEND) introduced by Part 3 of the Children and Families Act 2014.

Model contracts and contract variations: Dental services NHS England has set out the terms and conditions of the model contract that will be used when commissioning General Dental Services (GDS) contracts and Personal Dental Services (PDS) agreements.

Delegated commissioning application process and checklist for 2019/20 NHS England has published a checklist and finance template to be completed jointly by the CCG and the relevant NHS England director of commissioning operations when CCGs apply for full delegation.

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

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Employment/HR  

Publications/guidance 

Government response to 'The nursing workforce' report from the Health and Social Care Select Committee This paper is the government's response to the House of Commons Health and Social Care Select Committee's second report of session 2017 to 2019.

An immigration system that works for science and innovation: Eighth Report of Session 2017-18. A Science and Technology Committee report explores its proposed immigration proposal for the science and innovation community. The proposal is based on several principles, including the need: to support individuals with different types and levels of skill, and who are at different career stages, as well as their dependents; to readily recruit highly skilled people, wherever they are from, without being subject to an annual limit; and to enable further travel, outside the UK, for research purposes, without it affecting an individual's ability to apply for indefinite leave to remain.

Leadership in today's NHS: delivering the impossible. Leaders in today's NHS operate in a climate of extreme pressure. Staffing vacancies are rife, there are widespread challenges in meeting financial and performance targets and demands on services continue to increase. This report, jointly published with NHS Providers, asks what can be done to support current leaders and encourage future ones.

Latest update on the SCC scheme / Mencap decision. Following on from the Court of Appeal's decision in Royal Mencap in July (please click here for our briefing), HMRC has issued an update to social care providers, which appears to reverse their previous guidance that providers who have signed up to the Social Care Compliance Scheme (SCCS) could adopt a 'wait and see' approach to National Minimum Wage (NMW) 'sleep in' payments.  HMRC have now said that the SCC scheme will continue to operate in full, with all the original timeframes of the scheme remaining in place, so that employers will have to complete their self-review and declaration to HMRC within 12 months of their application or 31 December 2018, whichever is sooner.  However, HMRC has said that the review under the SCCS should be carried out taking into consideration the Judgment of the Court of Appeal in Royal Mencap which set out that only time spent awake and undertaking work will 'count' for NMW purposes. We understand that leave to appeal the Royal Mencap decision was sought on 8 August 2018. We are currently advising clients on dealing with NMW payments in the light of the Royal Mencap decision and the latest policy update from HMRC.  Please contact Mike Smith for further information or assistance.

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

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Finance 

Publications/guidance 

Fiscal sustainability report. This report sets out long-term projections for spending, revenue and financial transactions, and assesses whether there is a sustainable path for public sector debt. It warns that the extra £20 billion promised to the health budget and an ageing population will add to the burden of public sector spending over the next 50 years.

News

Brexit ‘more likely to weaken’ health funding. The Government’s ability to boost health spending through a post-Brexit ‘dividend’ has been called into question, in a report by the Office for Budget Responsibility. Doubts over ministers’ plans to increase funding to the NHS over the next five years have been highlighted by the OBR as part of its latest fiscal sustainability report.

If you wish to discuss any queries you may have around finance please contact Claire Bentley.   

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Independent Healthcare  

Publications/Guidance  

Private hospital judged 'inadequate' for safety. A private mental health hospital which treats NHS funded patients including children has been judged inadequate for safety by CQC inspectors.

Bevan Brittan Events 

Key topics for Social Care Providers. We have specialist insight into the challenges and opportunities for the sector arising from political policy, funding and financing, innovation, new models of care, workforce issues and regulation. We have invited industry experts to join us in reviewing and debating current issues for social care providers. Please register your interest in attending by clicking on the following links: 

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

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Information sharing/data  

Publications/Guidance  

National data opt-out programme. The national data opt-out is a new service that allows people to opt out of their confidential patient information being used for research and planning.

NHS data security: protecting patient records Using Freedom of Information legislation, 68 NHS trusts were asked for information on patient records which were reported 'missing' over 2017/18 financial year. This revealed that nearly 10,000 patient records were lost over this period.

Information sharing advice for safeguarding practitioners. Guidance on information sharing for people who provide safeguarding services to children, young people, parents and carers.

NHS population screening: data requests and research. Role and remit of NHS population screening programmes’ research advisory committees.

News

Independent Inquiry into Child Sexual Abuse fined £200,000 for revealing identities of possible abuse victims in mass email. The Information Commissioner's Office has fined the Independent Inquiry into Child Sexual Abuse (IICSA) £200,000 for sending an email to 90 addresses in February 2017 that exposed the identities of dozens of victims, after finding that the IICSA had promised to protect sensitive personal information, and had also been slow to react and replies to the email which had exacerbated the breach.

Bevan Brittan Updates

Information sharing – Advice for practitioners providing safeguarding services to children, young people, parents and carers.

If you wish to discuss any queries you may have around information sharing please contact Jane Bennett.  

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Inquests

Bevan Brittan Updates

High court decision means more inquests will return suicide conclusions

If you wish to discuss any queries you may have around inquests please contact Clementine Robertshaw or  Will Pickles  

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Mental Health 

Publications/Guidance 

Government Response to the Consultation on Transforming Children and Young People's Mental Health Provision: a Green Paper and Next Steps. A joint Department of Health and Social Care and Department for Education command paper sets out the Government response to the green paper on Transforming Children and Young People's Mental Health Provision. The Government intends to trial in new trailblazer areas by the end of 2019: ways to support all schools and colleges to identify and train a Designated Senior Lead for mental health; Mental Health Support Teams, which will be supervised by NHS children and young people's mental health staff; and a four week waiting time for access to specialist NHS children and young people's mental health services

E-cigarettes. A parliamentary report reviews the current evidence base on the harmfulness of e-cigarettes compared to conventional cigarettes and looks at the current policies on e-cigarettes, including in NHS mental health units and in prisons. The report concludes that e-cigarettes should not be treated in the same way as conventional cigarettes.

Women in crisis: how women and girls are being failed by the Mental Health Act This report sets out growing evidence that being detained under the Mental Health Act 1983 can be detrimental to women's and girls' wellbeing, with little attention paid to their particular needs, including their experiences of trauma. This can have devastating consequences, as shown by previously unpublished figures on self-inflicted deaths outlined in this report.

The 'So what, what next?' project: supporting people with a learning disability, autism or both to use their skills and interests to play a part in the community The 'So what, what next?' project was designed by the Transforming Care empowerment steering group to look at ways of supporting people with a learning disability or autism who have recently been discharged from hospital to explore their skills and passions and to find ways to contribute these to their local communities. This report outlines the findings and learning from the project.

Ordinary residence guide: determining local authority responsibilities under the Care Act and the Mental Health Act This guide is applicable to all adults whose care is commissioned in an area that is different from where they hold ordinary residence, including those whose services are governed by the Mental Health Act.

Ordinary residence: anonymised determinations 2017. How the department arrives at decisions in health and social care sector disputes.

Learning disabilities and CQC inspection reports In 2014 an interim analysis examined the main Care Quality Commission (CQC) inspection reports of 63 trusts and reported relatively few mentions of people with learning disabilities in these reports. Subsequently, the CQC has changed its inspection regime to include specific questions and follow-up questions regarding the care and treatment of people with learning disabilities in acute hospitals. This report examines the CQC inspection reports written since these questions were introduced to see if the changes have had an impact upon the information included about people with learning disabilities.

Bliss conducted research among parents to find out more about how the neonatal unit impacts a person's mental health. New research conducted by Bliss has revealed that 80 per cent of parents whose babies were admitted into neonatal care think that their mental health suffered after their experience. 35 per cent of parents reported that their mental health was “significantly worse” after their time on the neonatal unit.

Guidance on co-locating mental health therapists in primary care. This guidance document has been created to assist GPs, practice managers and commissioners who are integrating mental health therapists into primary care pathways by providing information on how to do this.

Cases

Paul Sherratt (For & on behalf of the members of the family of Georgina Beevers Deceased) v Chief Constable of Greater Manchester [2018] EWHC 1746 (QB) The police owed a duty of care to a woman who had committed suicide after the woman's mother had made a 999 call expressing concerns about her daughter's welfare. The police had assumed responsibility for the woman's welfare because of the 999 call handler's assurances to the mother that officers would attend the daughter's property and arrange for her transfer to hospital, and because the mother had relied on that assurance to her detriment.

Ecila Henderson (A protected party, by her litigation friend the official solicitor) v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841 Although an NHS trust was responsible for the negligent care of a patient with paranoid schizophrenia, which had caused her to suffer a psychotic episode and kill her mother, leading to her conviction for manslaughter by reason of diminished responsibility, the court was bound by Clunis v Camden and Islington HA [1998] Q.B. 978 and Gray v Thames Trains Ltd [2009] UKHL 33 to reject the patient's damages claims against the trust on the ground that they were barred by the doctrine of illegality.

Y v A Healthcare NHS Trust & Ors [2018] EWCOP 18 17/8/2018 The Applicant was seeking ​a declaration that, notwithstanding her husband's incapacity and his inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death. The declaration was granted.

A-F (Children) (No 2) [2018] EWHC 2129 (Fam) 9/8/2018 ​Sir James Munby ruled that proceedings in relation to 16 and 17 year children who were subject to care orders and DOLs should remain in the Family Court and not be transferred to the Court of Protection.

An NHS Trust & Ors v Y (by his litigation friend, the Official Solicitor) & Anor [2018] UKSC 46 30/7/2018 ​Appeal against a decision that it was not necessary to obtain a court order before CANH could be withdrawn. Appeal dismissed.

Re RD (Deprivation or restriction of liberty) sub nom Northumberland County Council v (1) MD (2) FD (3) RD (By her children's guardian) [2018] EWFC 47. The regime imposed on a 14-year-old girl, subject to an interim care order, at a rural residential placement did not possess the degree or intensity of complete control or supervision so as to amount to a deprivation of her liberty engaging her ECHR art.5 rights.

News

Mental health therapists in GP practices could be the norm Health chiefs have drawn up new guidance to encourage doctors to place mental health therapists in practice surgeries – bringing more mental and physical health services under one roof.

Hundreds of children wait more than a year for specialist help. More than 500 children and young people assessed as needing Tier 3 child and adolescent mental health services had waited more than a year to start treatment New data from Freedom of Information requests shows nearly half of the 11,000 young people assessed as needing care waited more than 18 weeks NHS warned long waits are “unacceptable” and ministers need to commit new funding to meet rising demand.

Ban on E-cigarettes in mental health units ‘unacceptable’, say MPs.

Supreme Court to hear case on 16-17 year olds, capacity and confinement. In what has been described as the first case before the Supreme Court to consider how the Mental Capacity Act 2005 applies in relation to the 16-17 year-old age group and how it interacts with the common law concept of parental responsibility, permission has been granted to the Official Solicitor to appeal a ruling that a person with parental responsibility can consent to the confinement of their child in that age bracket where that child has impaired capacity.

Thirty two women died after experiencing restraint over a five year period, according to new figures obtained by Agenda, the alliance for women and girls at risk. The data, on patients detained under the Mental Health Act, suggests women were more likely to have restraint-related deaths than men between 2012/13 and 2016/17.

Bevan Brittan Events 

BEVAN BRITTAN'S ANNUAL MENTAL HEALTH SEMINARS AND ANNUAL COURT OF PROTECTION SEMINARS  

Back by popular demand, we are very pleased to announce that we will be running our free annual Mental Health seminars in October and annual Court of Protection Seminars in November.

Mental Health Seminar

Key topics at the Annual Mental Health Seminars include:

  • Strategic issues in mental health;
  • Case law update;
  • Serious incidents in a modern healthcare world;
  • Collaboration between mental health and housing; and
  • Mental healthcare for adults in emergency departments.

Please register your interest in attending by clicking on the following links: 

Court of Protections Seminars - SAVE THE DATE  

Key topics at the Annual Court of Protection Seminars include:

  • Safeguarding – Care Act vs. CoP;
  • Case law update;;
  • Liberty Protection Safeguards and DoLS update;
  • What to do when someone is not acting in best interests; and
  • Mediation in the CoP.

Please register your interest in attending by clicking on the following links: 

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.   

Bevan Brittan Updates 

The role of the 'IMCA' and the Local Authority. This article explains the role of the IMCA and importantly when you need to refer or consult with an IMCA as part of the decision making process with regards to a service user's care. This is particularly important as local authorities and the NHS are under a statutory duty to involve IMCA's in certain situations. Who has the duty to make a referral for an IMCA depends on the decision being taken, but the duty generally falls to the person who has responsibility for the decision in either the Local Authority or Healthcare setting.

Bevan Brittan advises clinicians in landmark end-of-life judgment. The Supreme Court has ruled that legal permission will no longer always be needed to withdraw treatment from patients in a permanent vegetative state. 

Case Summary: An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) [2018] UKSC 46

The DOLS Replacement Bill: A Quick Guide. On 3 July 2018, a Bill to amend the Mental Capacity Act ("the Bill") was introduced into the House of Lords for a first reading. This is likely to have a significant impact on healthcare providers in the public and private sectors, as well as on commissioners in health and social care. The detail still has some way to go before it gets to the statute book, but Ruth Atkinson-Wilks looks at the overarching themes that are going to feature most prominently.

An Overview of the Joint Committee on Human Rights' Report Regarding the Reform of the Deprivation of Liberty Safeguards. On 29 June 2018, the Joint Committee on Human Rights ("the JCHR") published its report following a Consultation on the Law Commission's proposals to reform the Deprivation of Liberty Safeguards ("DOLS"). Bevan Brittan LLP had provided a response to the JCHR as part of this consultation and we were pleased to see that our response has been referred to in the JCHR's Report.

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

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Primary Care  

Publications/Guidance  

Information for primary care staff providing healthcare for overseas visitors from the European Economic Area This guidance explains how the cost of providing healthcare for overseas visitors from the European Economic Area can be reclaimed from the visitor’s country of residence and what primary care staff can do to support hospitals in recovering costs from these visitors.

Patient participation groups: what you need to know about GP online services This guide for patient participation group members provides tips on how to engage their local GP practice in registering more patients for online services.

Through the eyes of GP trainees: workforce of the future Two years ago we conducted a survey of GP trainees as part of our work on understanding the pressures in general practice. We’ve now conducted a second survey looking at trainees’ intended working patterns once they qualify, so we can try to understand more about the choices they are likely to make and why.

Expansion of electronic prescribing at GPs and pharmacies Regulations will be changed to replace paper prescriptions with electronic ones, saving the NHS money and saving time for patients and staff.

Patient Participation Groups – What you need to know about GP online services. A guide for GP online services Patient Participation Group (PPG) members which gives some top tips on how to engage their practice in registering more patients for online services.

GP Patient Survey 2018. NHS England together with Ipsos MORI, have published the latest Official Statistics from the GP Patient Survey. The survey provides information on patients’ overall experience of primary care services and their overall experience of accessing these services.

News

Social prescribing schemes across England to receive £4.5 million The funding will allow GPs to refer more patients to social activities and other types of support to improve health and wellbeing and reduce demand on NHS services.

If you wish to discuss any issues involving primary care please contact Vincent Buscemi.  

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Prison Health

Continuity of care for prisoners who need substance misuse treatment An audit toolkit and guidance on data recording, for prison treatment providers and commissioners.

Prison health is public health - RCGP launches new position statement on care in secure environments. The Royal College of GPs has published a position statement that sets out how 'equivalence of care' between secure and non-secure settings should be defined – something that has previously been unclear. According to the College's Secure Environments Group, people in prison should be 'afforded provision of or access to appropriate services or treatment,' which are 'at least consistent in range and quality with that available to the wider community'. The position is clear that 'equivalence' does not mean that care provision in secure environments should be 'the same' as that provided in the community.

If you wish to discuss any prison health issues please contact Will Pickles.  

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Providers  

Publications/guidance 

CCG roles where Integrated Care Providers (ICPs) are established. This document has been produced to reflect changes in terminology and to clarify the policy positions around: whether Integrated Care Providers (ICPs) are allowed to manage third party contracts; and the handling of Individual Funding Requests.

Latest update on the SCC scheme / Mencap decision. Following on from the Court of Appeal's decision in Royal Mencap in July (please click here for our briefing), HMRC has issued an update to social care providers, which appears to reverse their previous guidance that providers who have signed up to the Social Care Compliance Scheme (SCCS) could adopt a 'wait and see' approach to National Minimum Wage (NMW) 'sleep in' payments.  HMRC have now said that the SCC scheme will continue to operate in full, with all the original timeframes of the scheme remaining in place, so that employers will have to complete their self-review and declaration to HMRC within 12 months of their application or 31 December 2018, whichever is sooner.  However, HMRC has said that the review under the SCCS should be carried out taking into consideration the Judgment of the Court of Appeal in Royal Mencap which set out that only time spent awake and undertaking work will 'count' for NMW purposes. We understand that leave to appeal the Royal Mencap decision was sought on 8 August 2018. We are currently advising clients on dealing with NMW payments in the light of the Royal Mencap decision and the latest policy update from HMRC.  Please contact Mike Smith for further information or assistance.

Bevan Brittan Events 

Key topics for Social Care Providers. We have specialist insight into the challenges and opportunities for the sector arising from political policy, funding and financing, innovation, new models of care, workforce issues and regulation. We have invited industry experts to join us in reviewing and debating current issues for social care providers. Please register your interest in attending by clicking on the following links: 

Bevan Brittan Updates

Bevan Brittan successfully defends provider from prosecution. Bevan Brittan LLP recently acted for a private care home provider in relation to enforcement action taken by the Care Quality Commission ("CQC").

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

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Public Health 

Publications/Guidance  

Local action on health inequalities: understanding and reducing ethnic inequalities in health This guidance aims to support local and national action on ethnic inequalities in health. It provides: a summary of information and data by ethnic group in England; examples of practical approaches to address ethnic inequalities in health; case studies of local action to address ethnic health inequalities.

Understanding and reducing ethnic inequalities in health New guidance from Public Health England aims to support local and national action on ethnic inequalities in health.

Government response to the House of Commons Science and Technology Committee’s third report of session 2017-19, Genomics and genome editing in the NHS This response report shows how the government is working in partnership to make sure the UK continues to realise the full potential of genomics for patient and public benefit.

Public Health England: health and justice annual review 2017/18 This report outlines health trends in prisons and other prescribed places of detention. It focuses on some aspects of the work of Public Health England's National Health and Justice Team. This includes prison health care in England, people in prison with specific needs and protecting health, including responding to seasonal flu.

Hospital vending machines: helping people make healthier choices Obesity-related illness costs the NHS around £6.1 billion per year and vending machines in hospitals can support healthy consumption habits among NHS staff, patients and visitors. This trial at Leeds Teaching Hospitals NHS Trust used 17 cold drink and mixed-snack vending machines to test whether changing the availability or positioning of products within the vending machines could encourage healthier choices and whether this approach was economically viable.   

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

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Regulation  

Cases 

Hadiza Bawa- Garba (Appellant) v General Medical Council (Respondent) & (1) British Medical Association (2) Professional Standards Authority for Health and Social Care (3) British Associations of Physicians of Indian Origin (Interveners)  [2018] EWCA Civ 1879 In considering whether, following a junior doctor's conviction for gross negligence manslaughter arising from the death of a six-year-old child under her care, her fitness to practise had been impaired, the GMC's Medical Practitioners Tribunal had been entitled to impose the sanction of suspending her for one year, rather than erasing her name from the medical register, where she was a competent and useful doctor, who presented no material continuing danger to the public, and could provide considerable useful future service to society.  

News

Private hospital judged 'inadequate' for safety. A private mental health hospital which treats NHS funded patients including children has been judged inadequate for safety by CQC inspectors.

Bevan Brittan Updates

Bevan Brittan successfully defends provider from prosecution. Bevan Brittan LLP recently acted for a private care home provider in relation to enforcement action taken by the Care Quality Commission ("CQC").

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

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Social Care  

Publications/Guidance  

Sustainability and transformation partnerships This briefing, aimed at those leading STPs, focuses on the improvements in quality of care that pharmacists and their teams bring to care home residents, care home providers and the NHS. It highlights how pharmacists in care homes can improve medicines safety, reduce admissions to hospital and support end-of-life care.

Beyond social care: keeping later life positive In the light of the forthcoming government. Green Paper on adult social care in England, this report looks at how consumers engage with social care in practice. Around one in ten older people with care needs now face care costs of more than £100,000. Yet only one in ten adults aged 55 or over say they've put aside money to pay for care needs as they get older. The system must recognise that people are unlikely to plan for their care and should be designed to act quickly and effectively at times of crisis – when many people interact with the care system for the first time.

Medicines management for people receiving social care in the community. This quality standard covers assessing whether people need help with their medicines and deciding on the support people need to manage their medicines. It also covers the communication required between health and social care staff to ensure people have the medicines support they need. It describes high-quality care in priority areas for improvement.

Exploring education and training in relation to older people’s health and social care This report evaluates the education and training landscape for the workforce that cares for older people in the UK. Produced with the Dunhill Medical Trust, the report argues for the need for tailored training, more continuing professional development and more recognition and incentives for those choosing a career in health and social care for older people.

Latest update on the SCC scheme / Mencap decision. Following on from the Court of Appeal's decision in Royal Mencap in July (please click here for our briefing), HMRC has issued an update to social care providers, which appears to reverse their previous guidance that providers who have signed up to the Social Care Compliance Scheme (SCCS) could adopt a 'wait and see' approach to National Minimum Wage (NMW) 'sleep in' payments.  HMRC have now said that the SCC scheme will continue to operate in full, with all the original timeframes of the scheme remaining in place, so that employers will have to complete their self-review and declaration to HMRC within 12 months of their application or 31 December 2018, whichever is sooner.  However, HMRC has said that the review under the SCCS should be carried out taking into consideration the Judgment of the Court of Appeal in Royal Mencap which set out that only time spent awake and undertaking work will 'count' for NMW purposes. We understand that leave to appeal the Royal Mencap decision was sought on 8 August 2018. We are currently advising clients on dealing with NMW payments in the light of the Royal Mencap decision and the latest policy update from HMRC.  Please contact Mike Smith for further information or assistance.

Consultations

People's experience using adult social care services: quality standard consultation. This quality standard is now open for consultation. It covers the experience of adults using social care services in all settings, including people's 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. The closing date for comments is 16 August 2018.

News

Councils' delayed transfers of care reductions 'saved NHS £60m.' Councils have saved the NHS nearly £60m by dramatically reducing the number of days patients are delayed in hospitals due to a lack of social care availability, according to new research.

Bevan Brittan Events 

Key topics for Social Care Providers. We have specialist insight into the challenges and opportunities for the sector arising from political policy, funding and financing, innovation, new models of care, workforce issues and regulation. We have invited industry experts to join us in reviewing and debating current issues for social care providers. Please register your interest in attending by clicking on the following links: 

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

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General  

Publications/Guidance  

NHS visitor and migrant cost recovery programme Guidance and resources for NHS organisations and frontline staff.

Abortion: clarification of time limit The Chief Medical Officer has written to doctors clarifying the time limit for termination of pregnancy under the Abortion Act 1967.

How the NHS charges overseas visitors for NHS hospital care. This summary sets out the changes that were made to the way the NHS charges overseas visitors for NHS hospital care following the NHS (Charges to Overseas Visitors) Regulations 2015.

Upfront charging operational framework to support identification and charging of overseas visitors. This document supplements the existing guidance on implementing the overseas visitor charging regulations, and has been developed with input from NHS Improvement. It sets out a framework on the practical steps and key considerations necessary for providers to implement cost recovery and meet the legal requirement to charge upfront.

Overseas charging regulations: equality analyses. Three analyses of the impact of the National Health Service (Charges to Overseas Visitors) Regulations 2015.

JCVI statement: extending the HPV vaccination programme – conclusions. Conclusions on extending the human papillomavirus infection (HPV) vaccination programme to adolescent boys in the UK.

Overseas NHS visitors: amending and extending the charging regulations Assessment of impact of amendments to the National Health Service (Charges to Overseas Visitors) Regulations 2015 (the charging regulations).

Understanding and reducing ethnic inequalities in health. New guidance from Public Health England aims to support local and national action on ethnic inequalities in health.

E-cigarettes This report reviews the current evidence base on the harmfulness of e-cigarettes compared to conventional cigarettes and looks at the current policies on e-cigarettes, including in NHS mental health units and in prisons. The Committee concludes that e-cigarettes should not be treated in the same way as conventional cigarettes.

Changing the system: major trauma patients and their outcomes in the NHS (England) 2008–17 This independent report, commissioned by NHS England, found that the creation of major traumas centres led to the survival of an additional 1,600 patients with the most severe and complicated injuries thanks to top teams of surgeons, doctors and clinical staff. Patients also spent fewer days in hospital and had improved quality of life after receiving critical care.

Information for the health and care sector about planning for a potential no-deal Brexit. A collection of information and guidance relating to health and care organisations and industry.

Exploring education and training in relation to older people’s health and social care This report evaluates the education and training landscape for the workforce that cares for older people in the UK. Produced with the Dunhill Medical Trust, the report argues for the need for tailored training, more continuing professional development and more recognition and incentives for those choosing a career in health and social care for older people.

News

New system of consent for organ and tissue donation announced Hundreds of lives will be saved each year under plans to change the law to a new system of consent.

Woman wins right to work and medical treatment as she fights deportation. A seriously ill Nigerian woman has won rights to work and have access to NHS care following a Court of Appeal hearing on her immigration status. The case was brought by Kehinde, who couldn't afford the medication she requires to stay alive after the Home Office triggered the Immigration Rules para.322(5) to try to deport her. Lord Justice Irwin and Lord Justice Holroyde agreed that they were setting a legal precedent, telling the Home Office it was wrong to deprive her of access to essential services and said she could immediately return to her job.

Bevan Brittan Updates

State aid after Brexit. The publication on 23 August of a guidance note in connection with the possibility of a 'no-deal' Brexit in March 2019 has not only given some guidance as to what the position in relation to State aid will be if no deal is reached, but also indicates the Government's approach to State aid post Brexit in any event.

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

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