Welcome to the latest edition of Healthline. We hope that you will find the following articles interesting and helpful. If you have any comments about any of the articles or want to make a suggestion in relation to the topic of a future article, please get in touch with Claire Bentley.


Homelessness : new duty to refer for NHS staff

Julia Jones explores the new legal duty to refer patients who may be homeless or at risk of homelessness to a local authority and ways in which health organisations can seek to reduce homelessness.

Read more

Provision of mental health care to patients presenting at the emergency department

In November the Healthcare Safety Investigation Branch published its full report following its investigation into the provision of care to patients who present at emergency departments with mental health problems. Toby de Mellow reviews the report findings and the HSIB’s Safety Recommendations, Observations and Actions.

Read more

Making Decisions on Clinically Assisted Nutrition and Hydration

Ruth Atkinson-Wilks reviews this useful guidance which will assist healthcare professionals in the making of difficult and complex decisions regarding the use of CANH for incapacitated patients.

Read more

Bevan Brittan Health and Social Care Publications

We produce a range of publications that are aimed at health and social care professionals. Please click here if you would like your name added to the distribution list for our health and social care publications.  

Read more


Homelessness: new duty to refer for NHS staff

Julia Jones on the legal and practical issues linked to the health sector’s role in tackling homelessness.

Many NHS bodies already work to ensure that vulnerable people who come into contact with their services receive the right support if they are homeless or at risk of homelessness. In this article we explore:-

  • the new legal duty to refer patients who may be homeless or threatened with homelessness to a local housing authority; and
  • ways in which health organisations can seek to reduce homelessness.

The legal framework

On 1 October 2018, the Homelessness Reduction Act 2017 introduced a new legal duty on specified public services. For health, those services are:-

  • accident and emergency services in a hospital;
  • urgent treatment centres; or
  • in-patient treatment of any kind.

The duty is to refer patients considered to be homeless or threatened with homelessness to a local housing authority. The basic legal requirement for a referral is the individual’s consent, contact details and the agreed reason for the referral (generally that they are homeless or threatened with homelessness). The local housing authority will then contact the patient and determine whether they require support.

Where an individual does not consent, or if the new duty to refer does not apply to the particular service, existing safeguarding responsibilities should be considered.

Why it is important to get it right

There are clear evidence-based links between health and homelessness. Mental or physical health can be a contributing factor leading to homelessness, and homelessness can lead to poor mental and physical health. Either way, homeless people are likely to access health services more frequently.

Health professionals can play an important role in improving health outcomes for those who are already experiencing homelessness. They can also help prevent people becoming homeless in the first place by helping them to access preventative services.

Tackling homelessness will improve the health and wellbeing of patients, which should in turn reduce demand for health services.

What practical steps can be taken?

Some practical examples of steps to tackle homelessness from a health perspective include:

  • providing training and guidance to staff on recognising the signs of homelessness and risk factors. Specific guidance has been issued by the Department of Health and Social Care entitled “Homelessness: duty to refer – for NHS staff”;.
  • ensuring staff are familiar with the legal duty to refer patients who may be homeless or are threatened with homelessness to a Local Housing Authority;
  • developing a referral form and duty to refer health services checklist. Example documents are available from the Faculty for Homeless and Inclusion in Health. Note that the referral must be accepted in any form by the Local Authority as long certain specified details are included (individual’s name, consent and reason for the referral);
  • an individual should be asked which local authority they wish to be referred to. Staff can use the this link for contact details of Local Housing Authorities;
  • including in safeguarding policies the duty to refer and ensuring that staff are aware of their duties in circumstances where somebody does not consent to the referral;
  • providing feedback to commissioners regarding homelessness and considering whether you could become involved in a Homeless Health Needs Audit which gathers information about the health needs of people experiencing homelessness in your area;
  • encouraging staff to consider whether a patient needs any additional support to help them access services. If additional support is needed, this should be highlighted on the referral information or contact with the local housing authority who may take extra steps with the assessment process.
  • even if a health service is providing other services which fall outside those included within the scope of the duty to refer, it is good practice to review referral pathways to local authorities to ensure that these are robust. It is still possible for referrals to be made to local authorities for assistance where an individual is homeless or at risk of homelessness.

Conclusions and next steps

It is clear that tackling homelessness needs  to be on the agenda for health professionals and an integrated approach to health and social care is likely to result in improved outcomes for patients. The impact of the new duty. This will be monitored by local authorities who are required to collect data on referrals and sources of referrals. The duty may be extended in time to cover more health services, as GP services, for example, are not currently included. 

Our team of specialists can advise on a range of issues including safeguarding, information governance and dealing with serious incidents. If you require any further information or support in this regard, please do contact me or your usual Bevan Brittan contact.

Back to top



Provision of Mental Health Care to Patients Presenting at the Emergency Department

On 23 November 2018, the Healthcare Safety Investigation Branch (‘HSIB’) published its full report following its investigation into the provision of care to patients who present at emergency departments with mental health problems.

What is the HSIB?

The HSIB was formed in April 2017.  Their purpose is to improve safety through effective and independent investigations that do not apportion blame or liability. It both supports and guides NHS organisations on investigations, and also conducts its own safety investigations. The HSIB is funded by the Department of Health and is hosted by NHS Improvement. However, it operates independently from those bodies and from other organisations such as the Care Quality Commission (CQC) and the NHS organisations themselves. It seeks to conduct thorough, independent, impartial and timely investigations into clinical incidents. It has an overarching objective to make safety recommendations with the aim of improving patient safety. The HSIB investigates approximately thirty incidents each year. Its investigations do not replace local investigations, but instead are focused on looking at wider opportunities to learn from incidents where harm has occurred.

Background to the report

In September 2017, the HSIB was made aware of a case involving a woman who had experienced a mental health crisis. Having presented to her general practitioner, the ambulance service and the emergency department of her local hospital, she subsequently took her own life. The HSIB’s initial investigation into this matter reviewed the care pathway of the woman during the two years before her death. In January 2018, the HSIB released its Interim Bulletin on the topic which confirmed that it intended to conduct a full investigation, as the following safety issues had been identified:

  • the appropriateness of assessment tools to identify patients at risk;
  • difficulties in how patient information was shared within the emergency department;
  • the acknowledgement that the emergency department may not be a place of safety for a patient experiencing a mental health crisis; and
  • appropriate access to psychiatric liaison services.

The initial investigation found that when adult patients experiencing a mental health crisis present at an emergency department, their condition can be difficult to assess for a variety of reasons. Once a patient was at the emergency department, it appeared that a lack of timely access to an appropriately trained mental health professional might have severe consequences on the outcome and duration of their treatment, and might also impact on the care of other patients. The HSIB conducted a review of national reporting data, which revealed that the woman’s mental health pathway was not an isolated incidence of suicide following access to an emergency department. It acknowledged that, despite various initiatives designed to encourage patients to use sources of urgent mental health care rather than emergency departments, many patients with mental health problems continue to present at emergency departments. As such, the initial investigation identified disparities across the NHS in England regarding the level of risk assessment for adult patients with mental health problems on presentation at emergency departments and also disparities in their subsequent care management.

Within the interim bulletin, the HSIB indicated that its full investigation would explore the systemic safety issues highlighted around the assessment and care of adult mental health patients who present at emergency departments. In addition, it would seek to identify;

  • improvements in how the mental health care needs of adult patients can be effectively assessed; and
  • how subsequent treatment can be appropriately and safely managed after presentation at the emergency department.

What prompted the HSIB’s investigations?

Diane, a 57-year-old woman with a history of mental health problems, was in the care of the community mental health service. She had a diagnosis of mixed anxiety, depression and agoraphobia with an appropriate prescription of medication. As her mental state fluctuated, she experienced increasing levels of anxiety, self-harmed and expressed thoughts of suicide. Over a two year period she had received treatment from her GP, the local crisis resolution and home treatment team, the ambulance service and the emergency department of the local district general hospital.

She presented four times to the same emergency department following episodes of self-harm, and received different levels of care on each occasion. Her physical health was generally well attended to by the emergency department staff. It was noted that national guidelines recommend that those who have self-harmed should receive a psychosocial assessment from a specialist mental health professional. The liaison mental health service team was located close to the hospital and was commissioned to operate between 08:00hrs and 23:00hrs.  Diane was referred for assessment on the first two occasions but not thereafter. Consequently, the community mental health team was unaware of Diane’s crises when she attended the emergency department following self-harm on the last two occasions.

Six weeks after she had presented to the emergency department for the third time she received a visit from her care co-ordinator. After this visit, Diane reported that she had taken an overdose and she presented to her GP the following day, who advised her to go to the emergency department. Diane did not go there, however, and later that day her carer called 999.

Diane arrived at the emergency department by ambulance at 20:19hrs. Following prolonged pressure on services, the emergency department was on ‘black status’ and experiencing its busiest day of the month. After waiting for almost one hour, Diane was assessed and her self-harm was recorded. The clinical notes stated that she wanted to go home. Her physical health was attended to, but no referral was made to the liaison mental health team, and Diane left the department sometime in the early hours of the morning. Later that morning, she attended her GP practice for a repeat prescription but the GP was reluctant to prescribe and deferred the decision until later that day.

In the early afternoon, Diane left a note on the railway station platform before lying in the path of an oncoming train. Following treatment at the scene, she was airlifted to a major trauma unit where she died from her injuries.

What were the HSIB’s findings?

  1. Diane did not come to direct harm during treatment in the emergency department;
  2. Diane’s final two presentations at the emergency department represented missed opportunities to intervene and to take measures that might have helped to improve her mental state;
  3. The provision of liaison mental health services was variable across England and there was no consensus on commissioning models;
  4. Liaison mental health services had a positive influence on managing the care of patients in the emergency department and were most effective when services had a permanent integrated presence in the emergency department;
  5. The benefits of liaison mental health services were difficult to quantify in financial terms for commissioners. However, the HSIB found that they were broad and stemmed from the integration of mental health professionals in the general hospital and the consequent shift in attitudes towards understanding the complexities of mental health;
  6. The process for triage and initial assessment completed by emergency department nurses was effective at identifying physical health problems but that it lacked structure when assessing mental state;
  7. There was the potential for misunderstanding in the self-harm guidance around interpretation and use of the Australian mental health triage tool;
  8. The national guidance issued to emergency department staff for the initial assessment of people who have self-harmed lacked coherence between documents and did not consistently describe a detailed process; and
  9. In the absence of clear national guidance on the conduct of initial assessments, emergency departments continued to use locally developed, unvalidated tools of varying standards.

What were the HSIB’s Safety Recommendations, Observations and Actions?

The HSIB’s independent status ensures that its investigations are not conducted on behalf of families, staff, organisations or regulators. It makes Safety Recommendations to organisations that the HSIB considers are best placed to address identified risks both within and outside the NHS.

Safety Recommendations are directed to a specific individual or organisation for action. They are based on information derived from the investigation or other sources such as safety studies, and made with the intention of preventing future events that are similar in nature. Safety Observations may be made for wider learning within the NHS or may be directed to a specific individual or organisation for consideration. They are made when there is insufficient or incomplete information on which to make a definite recommendation for action, but where findings are deemed to warrant attention. Safety Actions are actions taken during the course of the investigation as a response to the issue under investigation.

  • Safety Recommendations

Following the conclusion of its investigation, the HSIB made the following Safety Recommendations:

  1. Recommendation 2018/017: that NHS England should ensure that there is a sustainable funding model to support 24/7 urgent and emergency mental health liaison services in acute general hospitals with emergency departments.
  2. Recommendation 2018/018: that the National Institute for Health and Care Excellence should review and amend guidance for the management of self-harm in the emergency department.
  3. Recommendation 2018/019: that the Royal College of Emergency Medicine, in conjunction with the Royal College of Psychiatrists, should develop and disseminate national guidance for emergency department practitioners to standardise the initial assessment of a person presenting following a mental health emergency.
  4. Recommendation 2018/020: that the Care Quality Commission should review and update its inspections criteria for emergency departments to ensure equal weight is given to the quality of care provided to people with urgent mental health problems as they do to people with urgent physical health. This would be consistent with its commitment to parity of esteem for mental health.
  • Safety Observations

In addition to its recommendations, the HSIB made the following Safety Observations:

  1. The data regarding mental health presentations is not sufficiently robust to allow for demand for mental health services to be adequately assessed and for the impact of service provision to be measured.
  2. The initial assessment of patients on arrival at an emergency department may benefit from the inclusion of key factors from the Royal College of Emergency Medicine’s Best Practice Guideline The Patient Who Absconds, dated 2018.
  • Safety Action

To conclude its investigation, the HSIB highlighted the following Safety Action:

  1. The National Institute for Health and Care Excellence has changed the wording of clinical guideline CG16 as follows, to reflect the findings of the HSIB’s investigation:

‘ Consideration should be given to introducing the Australian Mental Health Triage Scale, as it is a comprehensive assessment scale that provides an effective process for rating clinical urgency so that patients are seen in a timely manner.

Do not use the Australian Mental Health Triage Scale to predict future suicide or repetition of self-harm’.

Our team of specialists has vast experience in advising on all aspects of strategy, compliance, enforcement and litigation. We understand the challenges you face, how competing legal obligations interact and how to minimise your exposure to risk. We provide practical advice working to protect patients, staff and healthcare organisations. For further information or to discuss any aspect of this article, please contact Toby de Mellow, Solicitor.

Useful Publications

Patient Safety: Another step forward (Joint Committee reports on Health Service safety investigation draft legislation) – Simon Lindsay

Investigation into the provision of mental health care to patients presenting at the emergency department

HSIB interim Bulletin

Back to top



Making Decisions on Clinically Assisted Nutrition and Hydration – New Guidance from the British Medical Association and Royal College of Physicians

What is Clinically-assisted nutrition and hydration?

Clinically-assisted nutrition and hydration (“CANH”) is a medical treatment that refers to the use of all forms of tube feeding. In July 2018, the Supreme Court’s judgment in An NHS Trust v Y held that court approval to withdraw CANH from persons who lack capacity to make this decision is no longer required providing that;

  • there is agreement that withdrawal is in the patient’s best interests; and
  • the Mental Capacity Act 2005 (“MCA”) and good practice guidance are followed.

Guidance from the British Medical Association and Royal College of Physicians

In the wake of this significant judgment, the British Medical Association and Royal College of Physicians have published detailed and useful guidance to assist clinicians in making decisions regarding CANH. The guidance covers decisions to start, re-start, continue or withdraw CANH for incapacitated patients who are not imminently dying, in circumstances where CANH is the primary life-sustaining treatment. It is separated into two key sections:-

  1. general guidance on decisions relating to CANH; and,
  2. guidance on specific scenarios (e,g. neurodegenerative conditions).

The guidance is well-drafted and we expect that it will be useful for clinicians seeking an overview of the current legal position on CANH. In particular, the guidance provides a useful overview of who has responsibility for making relevant decisions regarding CANH. If an incapacitated patient has made a valid and applicable advance decision to refuse treatment (“ADRT”) and this ADRT covers CANH and the current clinical situation, then the ADRT must be respected with the patient being the decision-maker. If the patient has appointed a lasting power of attorney (“LPA”) for health and welfare with the power to consent to, or refuse, life-sustaining treatment and the LPA has been registered with the Office of the Public Guardian, then the LPA is the responsible for decisions regarding CANH. In order for health professionals to assure themselves of this, the guidance recommends that they should request the original LPA document or a certified copy to check that it does provide the LPA with authority to make decisions regarding CANH. The guidance also reminds health professionals that an LPA does not have the power to insist on treatments that healthcare professionals do not deem to be clinically indicated. The LPA is required to follow the principles of the MCA and act in the patient’s best interests when making decisions.

In circumstances where there is no ADRT and no LPA appointed, decisions regarding CANH for incapacitated patients must be made by the clinical team on the patient’s behalf, based on their best interests and having followed the best interests process as set out in the MCA. This includes consulting with anyone named by the patient as someone to be consulted on such matters. This includes those engaged in caring for the patient or interested in their welfare, along with any court-appointed deputy if there is one. If there is no one acting in any of these categories, then an Independent Mental Capacity Advocate must be consulted. The clinical team will also need to take into account the patient’s individual circumstances and past and present wishes, feelings, beliefs and values. The guidance confirms that there is a role for speech and language therapists in encouraging and supporting the patient to be involved in this process. It also highlights the increasing legal emphasis on patient-centred decisions and self-determination.

In terms of overall responsibility within the clinical team, the guidance states that this will fall to;

  • the named consultant (if the patient is in hospital);
  • the named consultant or senior doctor if the patient is in a hospice or a palliative care unit; or
  • the patient’s GP (supported by the case manager or equivalent at the CCG) if they are residing in a care home or at home.

The guidance asserts that the extensiveness of best interests assessments, safeguards, documentation and external scrutiny with regards to the CANH should be proportionate to the consequences of the decision in each case. This means that the more severe the consequences, the greater the scrutiny that will be required. In identifying the consequences of the decision consideration should be given to the patient’s prognosis and the certainty surrounding this along with the impact of making a ‘wrong’ decision regarding CANH, such as withdrawing CANH too soon or continuing it for too long.

A detailed record of the best interests’ assessment process should be kept as part of the medical records, in a form that is easily accessible for review and audit. The guidance provides a model profroma for this.

The guidance requires a second opinion to be sought if there is a proposal to stop or not to start CANH where the patient is not imminently facing death. The second opinion clinician should be able to act independently and ideally should not be part of the current treating team. The second opinion should be provided by way of a report following a review of the patient.

Where a decision is made that it is in a patient’s best interests to receive CANH, this decision must be reviewed at least every 6 months (or 12 months where the patient has been in a stable condition over a long period of time). Reviews may need to happen more frequently if the clinical situation changes significantly.

In the event that there is not an agreement regarding CANH and the best interests of the patient or the decision is ‘finely balanced’, consideration should be given to whether further case conferences, clinical opinions or the use of medical mediation services could assist. As a last resort, an application may need to be made by the responsible commissioning body to the Court of Protection to obtain a court decision on the matter.


In summary, we would urge healthcare professionals to review this new guidance. Our view is that it will be a very useful resource in the making of difficult and complex decisions regarding the use of CANH for incapacitated patients.

Our team of specialists can advise on this issue generally and the guidance. If you would like to discuss this in more detail, please do contact Ruth Atkinson-Wilks or your usual Bevan Brittan contact.

Back to top

Our use of cookies

We use necessary cookies to make our site work. We'd also like to set optional analytics cookies to help us improve it. We won't set optional cookies unless you enable them. Using this tool will set a cookie on your device to remember your preferences. For more detailed information about the cookies we use, see our Cookies page.

Necessary cookies

Necessary cookies enable core functionality such as security, network management, and accessibility. You may disable these by changing your browser settings, but this may affect how the website functions.

Analytics cookies

We'd like to set Google Analytics cookies to help us to improve our website by collection and reporting information on how you use it. The cookies collect information in a way that does not directly identify anyone.
For more information on how these cookies work, please see our Cookies page.