Archive for the ‘Health’ Category
Wednesday, October 19th, 2011
Early in 2012, the NHS Constitution will be amended again, to add:
- An expectation that staff raise concerns at the earliest possible opportunity
- Clarity around the legal rights of staff when raising such concerns
There may also be an independent authority for staff to turn to when they feel that their organisation is not listening or responding appropriately.
NHS employers will need to review and update their existing whistleblowing policy in light of these changes, and we can expect a surge of whistleblowing employment tribunal claims.
The Constitution was published in January 2009, to be reviewed every 10 years, but was revised in March 2010 to add further patient “rights” eg to treatment within 18 weeks. Our experience is that the more the language of “rights” is used, the more people litigate when expectations are not met.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
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Tags: employment, employment tribunal, legal rights of staff, NHS constitution, whistleblowers
Posted in Employment, Health, NHS | No Comments »
Wednesday, October 19th, 2011
The annual report on NHS complaints handling by the Parliamentary and Health Service Ombudsman, Ann Abraham, published today (18 October), makes for familiar reading.
The NHS Constitution promises that mistakes will be acknowledged, and things put right quickly and effectively, but all too often the process of dealing with complaints is another unhappy experience for all involved, and last year the Ombudsman recommended £500,000 in compensation for poor complaints handling. The litigation that followed would have been much more costly.
Particularly eye catching in the report, and extensively covered by the media, is the issue of GP practices removing patients from their list after a complaint, which comes at a particularly bad time as greater control over the health service is handed over to GPs.
Alongside the proposed new duty of candour, the ever rising gap between expectations and resource limited delivery, will make dealing with complaints effectively more difficult and more important than ever.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Tags: Ann Abraham, complaints, Duty of candour, GPs, NHS, NHS complaints handling, parliamentary and health service ombudsman
Posted in Health, NHS | No Comments »
Tuesday, October 11th, 2011
The Department of Health reaffirmed the Government’s commitment to increasing openness within the NHS by launching a consultation which aims to explore how it might impose a contractual ‘duty of candour’ on providers.
The consultation proposes to introduce obligations for providers to always be open with patients about incidents where things go wrong into the NHS Standard Contracts for acute, community, ambulance and mental health services.
Sanctions could include, amongst others, a deduction in the annual contract value, independent investigation or a written apology to the patient from the organisation’s Chief Executive.
The duty is purported to have the potential to support the development of stronger commissioner-provider relationships and to improve quality. However, it isn’t yet clear how the duty would interact with or improve upon existing duties to let patients know when things go wrong or whether patients would gain any additional support or direct benefit from the existence of a statutory, as opposed to a non-statutory, duty.
If you would like to contribute to the consultation click here.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Rating: 7.0/10 (1 vote cast)
Tags: acute trusts, ambulance services, browne jacobson, Duty of candour, Emily Birkett, government, Government consultation, health, health consultation, mental health services, NHS, NHS standard contracts, patient relationship, patient well being
Posted in Health, NHS | No Comments »
Tuesday, October 11th, 2011
2012/13 will see various changes to PbR, as announced in this Dear colleague letter.
PbR will be expanded to include adult mental health services. Service users will be allocated to care categories (or “clusters”) and each cluster will be allocated a unit price (agreed locally for 2012/13). Draft mental health PbR guidance has also been published (feedback is required by 4 November).
The letter also details various other proposals for 2012/13, including:
- more “best practice tariffs”;
- certain currencies and tariffs being mandated, and the introduction of some new non-mandatory currencies;
- acute providers being responsible for 30 day post-discharge support for a small number of conditions; and an update to the ICD-10 disease classification system.
A “sense check” on the revised tariff is underway. This will be followed later this year by road testing of the tariff and associated PbR guidance.
Provider organisations will always be wary of changes to PbR. Mental health providers will be relieved that there should be a cost-neutral impact for 2012/13.
Posted by Oliver Pritchard, who specialises in health and social care sectors for both public & private sector clients; corporate acquisitions & disposals; corporate governance; director’s duties; shareholders’ agreements and GP consortia.
Oliver Pritchard
0115 976 6292
opritchard@brownejacobson.com
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Tags: adult mental health, browne jacobson, health, mental health, mental health providers, mental health services, NHS, payment by results, pbr
Posted in Health, NHS, Social Care | No Comments »
Monday, October 10th, 2011
On 1 October 2011 a ban came in to force on the sale of tobacco products from vending machines in England. Displays of tobacco advertisements on vending machines are also banned.
A person found guilty of selling tobacco from a vending machine will face prosecution, and if convicted in the Magistrates court could be ordered to pay a fine of up to £2,500.
The ban is intended to reduce smoking among young people. This will particularly affect 11-15 year olds, who apparently regularly use vending machines as their source of cigarettes.
There is clear public support for a ban on the sale of tobacco from vending machines. However, the tobacco industry argues that vending machines could be modified to require tokens or ID cards, rather than having an outright ban. Nevertheless, you may be in the 65% of people who are in favour of a ban? ( according to a YouGov survey commissioned by ASH).
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: advertising, advertising ban, ASH, Brands, browne jacobson, cigarette advertising, cigarette advertising ban, cigarette sales, Fiona Carter, health, tobacco advertising, tobacco advertising ban, tobacco industry, tobacco sales, underage smokers, underage smoking
Posted in Advertising & Marketing, Health, Regulatory | No Comments »
Wednesday, October 5th, 2011
The Government has announced that the length of service needed for the right to bring an ordinary unfair dismissal claim will increase from one year to two, from April 2012. It claims the move will reduce the number of unfair dismissal claims brought against employers each year by 2,000. The move has been welcomed by the CBI, but are unfair dismissal claims by employees with between one and two year’s service really the problem for employers? Of more concern to employers must surely be unfounded allegations of discrimination (for which there is no service requirement), which often require long and costly employment tribunal hearings to defend.
The qualifying period of service for claiming unfair dismissal used to be two years, before it was successfully challenged in Europe in the late 1990’s as being indirectly discriminatory against women. It will be interesting to see if such a challenge is brought following this latest announcement, and whether such a challenge would stand up.
Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Tom McLaughlin
020 7337 1033
tmclaughlin@brownejacobson.com
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Tags: browne jacobson, CBI, Claims, discrimination, employment, employment tirbunal, government, length of service, qualifying service, Tom McLaughlin, unfair dismissal, unfair dismissal claim
Posted in Employment, Health, Retail | No Comments »
Wednesday, September 28th, 2011
“M” is a 52 year old woman who suffered permanent brain damage in 2003, leaving her in a “minimally conscious state”. A judge today refused a request from her family for treatment (including nutrition and hydration) to be withdrawn to allow her to die, as she would not have wanted to live like this.
Where a person cannot make a decision for themselves, it must be made in their best interests. This can include what the person would have wanted, but unless they have made a valid advance decision (or appointed an Attorney) that is not decisive. The court recognised the family’s good intentions, but said that M still has positive experiences, and held she should continue to receive treatment.
This is not like Tony Bland’s case (in 1993), where ongoing treatment would have been futile as he was in a persistent vegetative state. The judge emphasised the need for accurate diagnosis and that decisions in these cases must still be referred to the court every time.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: court, health, M, Tony Bland, withdraw treatment
Posted in Health | No Comments »
Monday, September 19th, 2011
A “Dear Colleague” letter (15 September 2011) provides a useful update on the development of the clinical senates and networks recommended by the NHS Future Forum. The letter also provides further clarity on the different roles these networks and senates are likely to fulfil, and invites interested parties to engage in their development.
It seems that clinical networks will usually be specific to a particular patient/professional group or disease, and will support improvements in pathways and outcomes. Clinical senates (of which there are likely to be about 15) will involve a range of experts, professionals and others from across health and social care, and will offer advice about quality improvements or reforms across geographical areas.
The stated intention is that these organisations will help, rather than constrain, commissioners. However, the suggestion that the senates may also be involved in the quality aspects of a clinical commissioning group’s authorisation or annual assessment may set alarm bells ringing.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Tags: browne jacobson, clinical network, clinical senate, clinical senates, clinical senates NHS Future Forum, Emily Birkett, health, NHS, Social Care
Posted in Health, NHS, Social Care | No Comments »
Friday, September 16th, 2011
A series of strikes are scheduled as a result of the proposals to increase member contributions to public sector pension schemes
The publication of the final Hutton report earlier this year brought with it rumblings of discontentment amongst recipients and future recipients of the various public sector schemes to which it outlined reforms including the NHS pension scheme
The Government clarified that although it accepted all of Hutton’s 27 recommendations for reform, implementation would only occur following consultation with unions and members. The first consultations have been opened for a number of public sector pension schemes and they relate to increasing member contributions with effect from April 2012.
This consultation is only the first issued in respect of the 27 recommendations and the reaction amongst unions and members to these initial consultations signifies that there could be a lot more strikes ahead. It remains to be seen whether the Government determine that financial pressures and the “need” for reform of the public sector schemes will outweigh the upheaval to public services as a result of the planned strikes.
Posted by Victoria Leybourn, who specialises in advising companies and trustees in all aspects of pensions law and local authorities and contractors on their obligations regarding public sector pension schemes.
Victoria Leybourn
0115 976 6160
vleybourn@brownejacobson.com
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Tags: browne jacobson, government, Hutton report, NHS, NHS pension scheme, pension schemes, Pensions, Public Sector, public sector pensions, public sector strike, public sector strike action, Victoria Leybourn
Posted in Employment, Health, Pensions, Public Sector | No Comments »
Friday, September 2nd, 2011
Amendments to the health and social care bill, published 1 September 2011, set out the proposed “continuity of services” regime for foundation trusts (FTs) in the event of their financial failure.
Previously ministers could de-authorise FTs and they would revert to ministerial control. Now Monitor will be expected to intervene proactively at the first signs of difficulty.
Where early intervention proved unsuccessful a “trust special administrator” could be appointed to take over the trust’s affairs to secure the continued provision of NHS services in line with the commissioners requirements and where withdrawal of the services would have an adverse effect on the health of patients or significantly increase health inequalities.
The proposals also allow Monitor to make an order to dissolve a failing FT and to transfer its property and liabilities to another FT or to the Secretary of State.
The scope of these powers is likely to be of great interest to potential funders of FTs who urgently need to understand the extent to which their investment would be protected in an insolvency scenario.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: continuity of services, foundation trusts, Health and Social Care Bill, Monitor, NHS, Secretary of State
Posted in Health | No Comments »
Friday, August 12th, 2011
The Department of Health has set out key details on the development and authorisation process for clinical commissioning groups (CCGs) in a draft guidance document leaked yesterday.
Developing clinical commissioning groups: towards authorisation sets out 6 key competency domains that CCGs will be required to meet. These include a strong clinical and professional focus, proper constitutional and governance arrangements and evidence of clear and credible plans for carrying out their functions.
It indicates that CCGs will undergo a risk assessment between October – December 2011 and paves the way for CCGs to begin making applications for authorisation to the NHS Commissioning Board from summer 2012.
The draft guidance gives the first clear indication as to the competency boundaries but acknowledges that it is simply the “early thinking on the authorisation process”. Whilst the broad principles have been set the substance of the criteria is yet to be developed and remains subject to further guidance and policy changes as the CCGs progress towards authorisation.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Rating: 1.0/10 (1 vote cast)
Tags: CCG's, clinical commissioning groups, Department for Health, NHS commissioning board, risk assessments
Posted in Health | No Comments »
Friday, August 5th, 2011
The Department of Health yesterday issued the first part of the long awaited guidance on the future ownership and management of the existing PCT estate.
The guidance specifies five core principles underpinning the final arrangements of where the estate is to go:
- Protecting assets and maintaining future flexibility
- Ensuring efficiency
- Supporting the provision of safe, fit for purpose buildings
- Ensuring value for money
- Observing effective estate management
The specific guidance deals with those premises providing community services (community properties). These may transfer to aspirant community foundation trusts, other NHS trusts and foundation trusts (recipient trusts) who occupy more than 50% of the lettable area of a property. We will have to wait for further guidance on surplus land, administrative premises and, perhaps most interestingly, LIFT and PFI premises.
The timetable in the guidance seems extremely tight. PCTs must review and provisionally agree lists of transferring properties with affected recipient trusts by 14 September 2011. Whilst the work carried out for the transforming community services transfers earlier this year will assist, this is still a lot of work and negotiation - particularly as the recipient trusts have to be ‘willing’ recipients.
Posted by Thomas Howard, who specialises in commercial property with extensive experience of advising health clients on all property related matters and advising commercial clients on site acquisitions and disposals.
Thomas Howard
0121 237 3951
thoward@brownejacobson.com
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Tags: department of health, health, PCT estates, PCTs, primary care trusts
Posted in Health, Property | No Comments »
Thursday, June 30th, 2011
In his report following the death of Victoria Climbie, Lord Laming speculated that medical staff felt uncomfortable investigating evidence of deliberate harm to children. He found that when the possibility of non-accidental injury was raised by one doctor, it was often not picked up by others because of poor handover of responsibility.
It was clear to Laming that the quality of information exchange was often poor, systems were crude and information failed to be passed between hospitals in close proximity to each other.
This matches our own experiences dealing with health and social care professionals who have child protection concerns.
The GMC is currently consulting on new guidance that may help clear this up.
The guidance proposes that any doctor who suspects child abuse must raise the alarm immediately and tell parents what action they will be taking. Doctors acting reasonably in response to concerns about abuse or neglect will not be subject to censure. Consultation on the guidance runs until Friday 14 October 2011.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
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Tags: abuse, child protection, consultation, GMC, Lord Laming, neglect, Victoria Climbie
Posted in Health, Social Care | No Comments »
Friday, June 17th, 2011
Hard on the heels of last week’s high profile judgment that Hillingdon Borough Council unlawfully deprived Steven Neary of his liberty by keeping him in a secure unit away from his father, another local authority has fallen foul of the Court of Protection in a judgment published today.
In this anonymised case, C (an 18 year old man with autism) was in a residential special school, and his complex and challenging behaviour was managed by use of a padded seclusion room among other things.
The Court found that the circumstances of his care at the school amounted to an unlawful deprivation of his liberty. As with Steven Neary, despite the best of intentions of the care staff involved, there was no proper scrutiny of the situation until the Court was involved, and such cases, and the publicity they get, can only mean more cases will go to Court.
Posted by Ben Troke, who specialises in clinical negligence; health law; access to NHS and social care and funding; Court of Protection / Mental Capacity Act; Deprivation of Liberty Safeguards; NHS Constitution and patient rights.
Ben Troke
0115 976 6263
btroke@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: deprivation of liberty, hillingdon, local authority, neary, Social Care
Posted in Health, Local Authorities, Social Care | No Comments »
Wednesday, June 15th, 2011
David Cameron has confirmed that the Government would accept the majority of the NHS Future Forum’s recommendations to the Health and Social Care Bill.
These include: reinstating the Secretary of State’s legal responsibility for the NHS; greater powers for health and wellbeing boards and a bigger role for patients within them; Monitor to have a focus on protecting patient interests rather than competition; additional safeguards against price competition and “cherry picking” and every commissioning group will have a governing body.
The Prime Minister accepted that some commissioning groups may not meet the 2013 deadline but stated that all GP practices would be members of either an authorised clinical commissioning group or a ‘shadow’ commissioning group by April 2013. The overall message from the Government is therefore clear, it has listened and amended and there is now no reason for the pace of change to slow.
We will be holding a seminar on the future of NHS Commissioning on 20 July in our Birmingham office. Click here to find out more and book a place.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0115 976 6175
ebirkett@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: GP commissioning, health, Health and Social Care Bill, nhs commissioining, nhs future forum
Posted in Health | No Comments »
Monday, June 13th, 2011
The NHS Future Forum has released its long awaited report on its two month ‘listening exercise’ into the proposals set out in the Health and Social Care Bill this afternoon.
The Forum announced a number of recommendations which included: Consortia should have a governing body which holds meetings in public and consults publicly on commissioning plans; a duty on Monitor to support choice, integration and collaboration; a duty on the National Commissioning Board and Monitor to actively promote the NHS constitution; an obligation on consortia to consult a clinical senate of health professionals on certain decisions and a choice mandate for which the NCB would be accountable.
The Forum also acknowledged that some consortia would not be ready for the 2013 deadline.
David Cameron has already conceded that concessions will need to be made.
However, the official Government response is not due until tomorrow and so it remains unclear which recommendations will be accepted and what the final timeline for transporting the NHS into the future will be.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0115 976 6175
ebirkett@brownejacobson.com
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Tags: health, Health and Social Care Bill, NHS, nhs future forum
Posted in Health | No Comments »
Friday, May 27th, 2011
Today Paul Burstow, Care Services Minister, has announced that responsibility for commissioning health services for children and young people in secure Children’s homes and secure training centres is to pass to the NHS. Until now each secure home or centre has commissioned its own health services.
At first glance this makes practical sense. The NHS has had this role for young offender institutions and prisons since 2006. Claims that this will help ensure consistency between each establishment, and continuity of care once the individual leave the secure establishment, seem plausible.
But where precisely within the NHS will this responsibility sit, and for how long? Will it rest with soon-to-be-abolished PCTs or SHAs? Will it then pass to soon-to-be-established GP consortia, or the National Commissioning Board?
There is great uncertainty about the future of health commissioning generally due to the lack of detail in the Health and Social Care Bill, and exacerbated by recent political friction which casts doubt of how much of the bill will survive into law. The practical implementation of today’s announcement will be watched closely for clues as to the future.
Posted by Chris Webb-Jenkins, who specialises in defending claims against education and care providers and their insurers; risk management, stress, information management and child protection issues.
Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com
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Tags: care services minister, Commissioning, National Commissioning Board, NHS, Paul Burstow, secure home, young offenders insitutions
Posted in Health, NHS, Social Care | No Comments »
Friday, May 20th, 2011
Paul Burstow the Care Services Minister has announced that as part of the governments review on adult social care, Adult Safeguarding Boards (ASB’s) will now be mandatory and will be placed on a statutory footing. ASB’s are made up of key agencies including social services, police, heath and other groups involved in the protection of vulnerable adults.
It is intended that the ASBs will provide vital leadership and improve the level of protection afforded to vulnerable adults in much the same way as Local Safeguarding Children’s Boards do for children. To improve consistency across the country, the government has also laid down the six guiding principles of empowerment, protection, prevention, proportionality, partnership and accountability which should inform local arrangements and govern the actions of the ASB’s.
This measure will help address concerns that the safeguarding of vulnerable adults comes a distant second place when measured against the provision, law, guidance and support aimed at children. Getting ASBs on a statutory footing is a strong step in progressing the vulnerable adult agenda.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: adult safeguarding boards, care services minister, government, local safeguarding childrens' boards, Paul Burstow, social services
Posted in Health, Social Care | No Comments »
Thursday, March 31st, 2011
This week the High Court found in favour of a teacher who alleged he was wrongfully arrested following an allegation of assault by a pupil. Regardless of his willingness to attend a police station for questioning the police chose to arrest him. No further action was taken following the arrest.
Whilst the court’s agreed that the arrest was wrongful, it does not follow that the CRB check will be clear. It is often the case that police include arrest information on CRB disclosures regardless of outcome, putting the onus on employers to make the decision on suitability. The Protection Freedoms Bill offers a token improvement by giving individuals the right to request a review of the disclosure. If the courts wanted to ensure that the police took CRB disclosures more seriously, they should have imposed a duty to act reasonably when deciding the Desmond case in December.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: CRB checks, Education, employment, Social Care, The protections Freedom Bill
Posted in Education, Employment, Health, Social Care | No Comments »
Monday, March 28th, 2011
The latest verdict of think tank the King’s Fund claims that, unless GPs are put under greater pressure to work with local authorities providing jointly-planned services, the government’s health reforms risk failing vulnerable groups.
The report criticises joint working plans under the Health and Social Care Bill, claiming they could undermine services for people with mental health problems, learning disabilities, and multiple long-term conditions, all of whom require jointly-planned services.
GPs have not traditionally had a role in tackling health inequalities; the key concern is that as councils take responsibility for public health, GPs will shun areas of care for vulnerable groups and effective joint working will fail.
The report recommends that GP performance management regimes are aligned with council targets, and that GPs should take on a new role as care co-ordinators, pointing patients towards wider forms of social care.
The effect of the reforms remains to be seen but the Government has a way to go to dispel such fears.
Posted by Dai Durbridge, who specialises safeguarding of children and vulnerable adults in education, social care and health settings; defending claims against education, social care and health providers.
Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: gp, GP commissioning, Health and Social Care Bill, kings fund, local authorities
Posted in Government bodies, Health, Local Authorities, NHS, Public Sector | No Comments »
