15/02/2019

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

 

Adult Care

Housing and disabled people: what should local authorities do?
The EHRC has published a toolkit for local authorities on their responsibilities towards disabled people.

City council faces judicial review challenge over day centre closure
Campaigners have launched a judicial review challenge over a decision by Birmingham City Council to close a day centre used by people with a range of physical and learning disabilities.

Ask Listen Do – Making conversations count in health, social care and education: Tips for health, social care and education organisations and practitioners
NHS England has published tips for health, social care and education organisations and practitioners with the aim of making feedback, concerns and complaints easier for people with a learning disability or autism.

PHE inquiry into the fall in numbers of people in alcohol treatment: findings
Alcohol treatment commissioners and providers can use this report to understand what was behind the fall in the numbers of people in treatment for alcohol dependence in England since 2013 to 2014. The findings can be used to inform local commissioning and service development plans for increasing the numbers of people in alcohol treatment.

Learning Disability Newsletter: Winter 2018-19
In this edition of the learning disability newsletter you can find out about supporting children and young people, sharing health information, Ask Listen Do, and lots more.

A fair, supportive society: summary report
This report, commissioned by NHS England, highlights that some of the most vulnerable people in society – those with learning disabilities – will die 15-20 years sooner on average than the general population. Much of the government action needed to improve life expectancy for people with disabilities is likely to reduce health inequalities for everyone. The report recommends that action should focus on the ‘social determinants of health’, particularly addressing poverty, poor housing, discrimination and bullying.

Community mental health survey 2018
Results of the latest survey from CQC which looked at the experiences of people receiving community mental health services.

Consultations

CQC to review the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism
The health secretary has asked CQC to review the use of restrictive interventions in settings that provide inpatient and residential care for people with mental health problems, a learning disability or autism.

Legislation

Parliamentary briefing: Mental Capacity (Amendment) Bill - House of Lords report stage
Law Society latest briefing note.  A Law Society briefing on the Mental Capacity (Amendment) Bill 2017 highlights a number of concerns about the Bill and recommends that it should be amended to avoid the unlawful treatment of the vulnerable individuals who receive care and treatment under conditions of detention.

The Mental Health Units (Use of Force) Bill
A new law restricting and monitoring the use of force against patients in mental health units has been given royal ascent after an eight-year battle by the family of a young man who died after being excessively restrained.

Bevan Brittan Updates 

Raising Standards of Safeguarding Practice Across the Voluntary Sector - Deborah Jeremiah

DoLS Reforms and care home providers
The Mental Capacity (Amendment) Bill 2018 (the Bill) is before Parliament. If it is passed it will result in very significant changes for the independent social care sector and will place a much greater administrative and financial burden on them than the current DoLS scheme. Care home managers will have important new responsibilities for arranging consultations and assessments.

Case Summary: Buckinghamshire County Council v RT [2018] EWCOP 12 (23 April 2018)
This case will be of interest to commissioners, providers and social workers who work with young people subject to a deprivation of liberty who do not have capacity, who may shortly be approaching their 18th birthday.

Case Summary: Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018)
This case will be interest to commissioners, providers and social workers who are involved in care planning for children and young people subject to care proceedings, where it is possible that the care regime may involve a deprivation of liberty. It is the latest in a line of cases which appear, on their face, to reduce the likelihood of a child or young person being considered to be deprived of their liberty.

Case Summary: University College London Hospitals v KG [2018] EWCOP 29
This case will be of interest to commissioners, providers and care co-ordinators involved with patients receiving novel and experimental treatments.

Case Summary: Re P (Sexual Relations and Contraception): A Local Authority v P [2018] EWCOP 10
This case will be of interest to commissioners and providers who care for vulnerable service users who may not have the capacity to consent to sexual relations, contact, or contraception.

Case Summary: Re KT, DR, KH and DC [2018] EWCOP 1
This case will be of interest to Commissioners and Providers who have made and/or are processing Re X streamlined applications where there is no identifiable Rule 1.2 Representative.

Why black men are more likely to be detained: Consideration of significant racial disparity in mental healthcare - Sumayyah Malna

CCTV in care packages. Our team has prepared a comprehensive knowledge pack which offers guidance to commissioners, providers and care co-ordinators, using CCTV in care environments, with service users who lack capacity to consent to their care regime. If you would like more information click here.

How can we help?

Early Intervention Scheme and Triage
Our EIS allows us to help commissioners, providers and care co-ordinators identify packages of care and treatment interventions, for people who lack capacity, that need an appropriate legal framework. If you would like more information click here.

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Clinical Risk/Patient Safety and Litigation

Cases

Barry Frederick Hewes v (1) West Hertfordshire Hospitals NHS Trust (2) East of England Ambulance Service NHS Trust (3) Pankaj Tanna (2018) QBD (Foskett J) [2018] EWHC 2715 (QB)
A master had erred in granting summary judgment at a point in proceedings when the parties had not exchanged expert evidence. There would be few cases where a summary judgment application could properly be contemplated before the relevant experts' reports had been exchanged and, in most cases, until after the experts had discussed the case and produced a joint statement.

YAH v Medway NHS Foundation Trust [2018] EWHC 2964 (QB)
A mother, who had brought a claim for psychiatric injury following the birth of her baby at a hospital, could be classified as a primary victim and so there was no requirement to show that her injury had been caused by shock. The injury was not too remote from the hospital's admitted negligence to prevent recovery of damages.

News

Investigation launched into doctors' reports that settlements stop them speaking out on safety concerns
An investigation has been launched following reports that settlement agreements between trusts and employees are deliberately misleading departing staff into believing they could face financial penalties for whistle-blowing, despite a ban on "gagging clauses" in severance deals having been introduced in 2013.

Litigation

Setting the Personal Injury Discount Rate: A Call for Evidence
A Ministry of Justice consultation seeks views to obtain evidence to inform the decisions to be taken by the Lord Chancellor in the first review of the personal injury discount rate. Comments by 30 January 2019.

Bevan Brittan Updates 

Managing adverse events - when things go wrong - Stuart Marchant

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Childrens' Care

Funding and provision of local authorities’ children’s services inquiry
The MHCLG Committee has launched a new inquiry into funding and provision of local authorities’ children’s services. The inquiry will investigate what impact public spending has had on the provision of care services, and the approaches local authorities have taken in addressing funding constraints. Deadline for written submissions was Tuesday 18 December 2018 via the written submission form.

Bevan Brittan Updates 

Consent for the provision of medical treatment to Looked After Children - Eleanor Derry

How should local authorities capture new local safeguarding arrangements?
There have been significant changes to safeguarding legislation recently, but it's fair to say that the impact of the changes has probably not yet been felt. However, the deadline for publishing the new arrangements – 29 June 2019 - is now only six months away.

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Employment/HR

Brexit and the health and social care workforce in the UK
This report reveals that the NHS could be short of 51,000 nurses by the end of the Brexit transition period. The report, commissioned by the Cavendish Coalition representing 36 health and social care organisations, also highlights the increasingly crucial role that EU nationals are playing in UK social care services.

The health care workforce in England: make or break?
In advance of the publication of the NHS long-term plan, this briefing highlights the scale of workforce challenges now facing the health service and the threat this poses to the delivery and quality of care over the next ten years. It sets out the reasons why the long-term plan and supporting workforce strategy must address the urgent and mounting challenges facing the health care workforce.

Improving staff retention: flexible working
Offering flexible working opportunities can help employers attract and retain staff. This guide explores how to build a business case for flexible working and includes best practice, practical tips and resources to help you implement flexible working successfully. A number of case studies illustrate the range of flexible working arrangements already in place across the NHS.

Inspire, attract and recruit: an interactive toolkit to support your workforce supply
This toolkit provides guidance, good practice, checklists, top tips, questions and leading examples from across the NHS, to help employers take stock of what may need to be done to sustain a workforce pipeline. It aims to provide practical information on understanding audiences, how to attract the right people and ensuring employees have the best on-boarding experience.

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Finance

Budget 2018: what it means for health and social care
In this joint piece with the Health Foundation and Nuffield Trust, the Kings Fund analyses what was announced in the 2018 Budget and what it means for health and social care.

Record NHS funding to give patients a better alternative to hospital
New funding for primary and community healthcare by 2023/4 under the NHS Long Term Plan.

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Independent Healthcare

Publications/Guidance

Care homes: short guide to consumer rights for residents
Information on consumer rights for residents in care homes and their families or other representatives.

Care homes: consumer law advice for providers
Advice to help care home providers understand their obligations under consumer law when dealing with residents and their representatives.

Health care and adult social care in England: 2017 to 2018
This report analyses inspection and ratings data from 2016 to 2017 to provide an assessment of the state of health care and adult social care in England.

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Information Sharing/Data

Making NHS data work for everyone
This report looks at the access and use of data held by the NHS for product and service development purposes by the private sector. The private sector can provide skills and know-how to develop data-driven tools, while the NHS makes the data available alongside medical expertise - described as the 'value exchange'. However, there is a lack of clarity over what a fair value exchange looks like. Combined with the lack of national strategy on types of partnerships that could be developed, this has led to a messy patchwork on the ground.

Our data-driven future in healthcare: people and partnerships at the heart of health related technologies
This report states that a radical culture change in the NHS, and across the health data and medical technology community, is needed to make sure that the NHS can deliver the benefits of new health technologies that use patient data for care, and to retain public trust.

News

ICO fines medical insurer £175,000 after rogue employee steals customer records to sell on the dark web

Publications/Guidance 

Information governance and technology resources
Resources to help health and care professionals use new technologies safely and securely to protect confidential patient information

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Regulation

News

Regulators missed chance to stop care scandal - report

Stronger protection from violence for NHS staff
The NHS violence reduction strategy includes measures to better protect staff and prosecute offenders more easily.

Bevan Brittan Updates

Allied Healthcare - continuity of care for service users
This alert highlights the implications for authorities in the event that Allied Healthcare enters into a formal insolvency process and the matters authorities should be considering now to ensure continuity of care for service users.

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

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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.