briefing

September 2011

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Health Legal Update

Introduction .........................................................................................................................................2

NHS management: procurement .............................................................................................3 UK Government response to EU consultation on modernisation of procurement policy published3

NHS management: DNA patents ..............................................................................................4 The NHS and DNA patents .....................................................................................................................................................4

Real estate.............................................................................................................................................5 What's happening to private sewers in England and Wales?...............................................................................5

Construction ........................................................................................................................................5 Construction contracts: all change from 1 October 2011......................................................................................5

Regulatory matters ..........................................................................................................................6 Court upholds decision to strike off paramedic for supplying out of date class A drugs.....................6 Junior doctors must only work in approved practice settings for first 12 months after qualification...............................................................................................................................................................................................................7 GMC reforms to create the Medical Practitioners Tribunal Service ................................................................7

Any willing provider........................................................................................................................8 Co-operation and Competition Panel publishes report on ‘Any willing provider’ policy in routine elective care ....................................................................................................................................................................................8

Patient choice......................................................................................................................................9 The DH publishes operational guidance on extending patient choice of provider ..................................9

Regulation of prescribing..........................................................................................................11 Home Office launches consultation on proposed consolidation of Misuse of Drugs Regulations 2001............................................................................................................................................................................................................ 11

Allocation of funding....................................................................................................................12 Consultation on the allocation of additional funding to local authorities for Local HealthWatch and PCT deprivation of liberty safeguards ........................................................................................................................... 12

Employment......................................................................................................................................12 Discriminatory effect of NHS pension scheme upheld as objectively justified by High Court........ 12 Court holds right to a fair trial not engaged in respect of disciplinary hearing.................................... 13

Patient matters: children...........................................................................................................13 Munro review of child protection: Government response published ........................................................... 13 The family courts: media access and reporting guidance published............................................................ 14

Safeguarding.....................................................................................................................................14 Referrals to the Independent Safeguarding Authority of those posing a threat to the vulnerable need to be prompt..................................................................................................................................................................... 14

Funding of treatment and care..............................................................................................15

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Supreme Court considers the need to ration resources in care planning................................................ 15

Charges for overseas visitors..................................................................................................16 DH publishes updated guidance on implementing the overseas visitors’ hospital charging regulations.................................................................................................................................................................................... 16

Health and safety ...........................................................................................................................17 Court of Appeal affirms that occupiers owe a duty of reasonable care and not an absolute duty to prevent injury to visitors ..................................................................................................................................................... 17

DOLS......................................................................................................................................................17 Variation in the use of the Deprivation of Liberty Safeguards (DOLS)........................................................ 17 Council loses appeal against the awarding of costs in a DOLS case.............................................................. 18

Mental Capacity Act ......................................................................................................................19 Court of protection prefers evidence of treating professionals to expert when assessing capacity19

Mental Health Act ..........................................................................................................................20 DH publishes consultation response to proposed changes to the Mental Health Act in the event of a pandemic influenza outbreak ............................................................................................................................................ 20 DH publishes guidance on the procedure for the transfer from custody of children and young people under the Mental Health Act 1983 .................................................................................................................. 20

Mental health tribunals ..............................................................................................................21 First-tier Tribunal (Mental Health) Stakeholder Bulletin July 2011 ............................................................ 21 First-tier Tribunal (Mental Health) to be heard in public ................................................................................... 22 The Law Society publishes practice note for lawyers on representation before mental health tribunals ........................................................................................................................................................................................ 22

Mental health: high security ....................................................................................................22 Equality impact assessment of exclusive mental health legal services contracts in high security hospitals......................................................................................................................................................................................... 22 High security psychiatric services guidance and directions come into force......................................... 23

Complaints .........................................................................................................................................23 Commons Health Committee concludes that the NHS complaints system needs an overhaul ..... 23

Introduction This month’s edition contains a timely reminder that the Government’s amendments to the Health and Social Care Bill effectively endorse competition through the onus placed on clinical commissioning groups (as they are now officially to be called) to promote patient choice. Competition has always been inherent in choice. A market with choice is a market with competition, unless of course the participants conspire to rig the market - but that’s not going to happen, because amendments previously made to the Bill require Monitor to curb anti-competitive practices. As we said at the time, is a duty to root out anti-competitive behaviour really different in practice from promoting competition? In this issue we look at the Cooperation and Competition Panel’s report on the “Any Willing Provider” policy and review the DH’s new guidance on promoting patient choice. One of the difficult parts of the Health and Social Care Bill’s proposals for foundation trusts (FT) was the prospect of an FT insolvency regime based on the Insolvency Act, which is the legislation governing what happens to insolvent companies. However, the latest Government-sponsored amendments propose to replace those sections with a managed process very similar to the trust special administration provisions already in the NHS Act. The only significant difference is that the special administrators will be appointed to the failing FT, which will either be rescued or dissolved (so it will not matter that it cannot be converted into an NHS trust). If you assume that these provisions will find their way into the Bill if it becomes law, this means FT directors will not have to worry about

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Insolvency Act measures, such as “wrongful trading”, or directors’ disqualification orders (a particular concern for “portfolio” non-executive directors and those with executive directorships as their day jobs). For anyone that missed it, at the end of July the DH published further cluster guidance for PCTs. The guidance unfortunately shies away from specifying a single governance model for PCT clusters and makes no mention of the legal requirement that PCTs retain their PECs so that they can have properly constituted PCT boards. If you work for an FT and are interested in keeping up to date with best practice in governance, you might also be interested in the Postgraduate Certificate in Healthcare Governance we help to run at Manchester Business School, which was commissioned by the Foundation Trust Network. Applications are still open for an October 2011 start. As always, we invite you look at the Healthcare Resource Centre, Health Broadcast Centre, our seminar programme and The King's Fund.

Tim Winn Partner +44(0)121 456 8335 tim.winn@mills-reeve.com

NHS management: procurement UK Government response to EU consultation on modernisation of procurement policy

published Readers may well be aware that the European Commission is currently consulting on the modernisation of public procurement policy with a view to updating the current European Union (EU) Directives. The UK Government has recently published the UK's response to this consultation, the highlights of which are as follows:

o a warning note is sounded about the conflict between (1) using procurement policy to achieve societal and wider policy objectives, and (2) allowing authorities to achieve value for money and achieve their purchasing objectives;

o the regime should be made more friendly to small and medium-sized bidders;

o a proposal is made that contracts could be directly awarded for a fixed period of up to three years to employee-led organisations or mutuals, to allow employees to gain experience of running public services prior to being required to take part in a fully competitive procurement process;

o Part B services should remain separate from the Part A services regime and there should be no extension of the rules currently applicable to Part B procurements;

o definition of contracting authorities, the catch all provision that a body subject to "management supervision" by another contracting authority should be clarified so that it does not catch organisations where the Government or other public body merely retains some light touch oversight, or long-stop step-in rights, but provides no funding or general management control;

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o a call for increased financial thresholds beyond which the EU procurement rules should apply;

o procurement procedures should be improved to reduce timescales and bureaucracy; the option of using the negotiated procedure with notice should be made generally available; and

o selection and award criteria should be made more flexible; particularly, it should be possible to examine past performance, skills and qualifications at a later stage rather than simply at selection/pre-qualification questionnaire (PQQ) stage.

The commission is now formulating new legislation, which we expect will be available by the end of 2011. Please feel free to post your comments on our Procurement Portal blog. For further information or advice please contact Jenny Beresford-Jones on 0121 456 8361.

NHS management: DNA patents The NHS and DNA patents The Human Genetics Commission (HGC) recently published a report on Intellectual Property and DNA Diagnostics which has triggered newspaper reports with the headlines that NHS hospitals face DNA patent law suits (see for example The Telegraph). The report revolves around the patenting of DNA sequences and DNA marker tests and the subsequent use of these patents by public sector health workers in diagnostic tests. Currently NHS laboratories often use patented DNA marker tests for diagnostics without a licence and this constitutes an infringement of intellectual property (IP) rights, although currently enforcement action is rare due to the cost and the relatively rare diseases for which the NHS uses such tests. What the HGC report and the newspaper fail to make clear is that this kind of use will only be an infringement if the patent is registered in the UK and unlicensed use is made in the UK. Companies with DNA sequence patents in the US seem more willing to litigate matters, but they will only be able to enforce their US patents in the US. Companies in the UK are currently cautious about taking action against hospitals to enforce their patents due to the potential public backlash and the high cost of litigation. However DNA biomarker tests are increasingly being developed for more common diseases, such as breast and cervical cancer, and it is likely that companies will then be more proactive about enforcing their rights as the value of their product will be higher. This will create a greater tension between the industry’s desire to exploit the fruits of their investment and the routine infringement by NHS laboratories. This is not a debate about whether the patenting itself is inherently wrong or ethical, but what public sector workers and the NHS should do once there is a registered IP right which is enforceable in this country; laboratories will need to consider carefully whether they require a licence to carry out diagnostic tests for patients. Given the structure of the NHS and DH, it may be difficult to keep an overview of what licences have been granted and which are required to carry out diagnostic testing or research. The HGC has made a number of recommendations in its report urging policymakers in the public sector and the industry to address the issue. The HGC recommended, for example, that the DH establishes an IP monitoring function for DNA markers and that licensing guidelines are developed for public sector workers. At a national level, the HGC recommended that support should be given to senior management in the NHS to develop capacity to manage IP issues in this area as it is currently unclear who is responsible within the NHS for the practical implementation of policy in this area.

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It remains to be seen what developments follow from the HGC recommendations, although it is advisable for NHS bodies to start reviewing whether licences are required for any DNA marker testing they are carrying out. For further information or advice please contact Isabel Napper on 01223 222379.

Real estate What's happening to private sewers in England and Wales? Under new water industry regulations, The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011, sewerage undertakers are to be responsible for all private sewers and lateral drains linking into the public sewerage system. Landowners and developers happy for their existing private system to be adopted need not do anything; the transfer of sewers and lateral drains will happen automatically on 1 October this year. Associated pumping stations will transfer within the following five years. Any private owner wishing to retain their apparatus must appeal the adoption. Ofwat has published guidance for the handling of appeals which should be published shortly. For those with a section 104 agreement in place, adoption will continue to be governed by existing agreements up until the automatic transfer. From then on, the section 104 agreements (section 104 of the Water Industry Act 1991) are treated as terminated in respect of the adopted sewers and lateral drains except that sewerage undertakers will continue to benefit from any security that has been given. There are exemptions. Highway drains and sewers and the private sewerage systems owned by railway undertakers will not transfer. Nor, if authorities follow an opt-out procedure, will sewers and lateral drains within state and Crown-owned land. This article was taken from Mills & Reeve's bi-monthly electronic newsletter, Hot Property, which contains news and views on general real estate matters. If you would like to receive future editions of Hot Property, please email newsletter@mills-reeve.com with your request and details. For further information or advice please contact David Stead on 01223 222508.

Construction Construction contracts: all change from 1 October 2011 Major changes to the way the construction industry works are taking place on 1 October 2011. At the moment, adjudication applies to all construction contracts provided that they are in writing. From 1 October 2011 it will apply to all construction contracts whether they are written or oral. The other major change is to payment provisions. At the moment if there is a construction contract in writing and if a paying party does not wish to pay money otherwise due, then it must serve a withholding notice. The timeframe for service of a withholding notice is tight. From 1 October 2011, regardless of whether the construction contract is written or oral, new payment provisions will apply. The new provisions provide:

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o That the paying party or receiving party (depending on the wording of the contract) may serve a payment notice not later than five days after the due date for payment. This must state the sum considered due for payment and the basis on which that sum is calculated.

o The receiving party may serve a default notice if the paying party does not serve a payment notice. Again this must state the sum considered due for payment and the basis on which that sum is calculated.

o The sum stated in either the payment notice or the default notice is known as the notified sum.

o If the paying party does not want to pay the notified sum it must serve a pay less notice within a timeframe which will vary from contract to contract.

There are other changes coming into effect on 1 October 2011 which will also affect the way the construction industry works. The construction and engineering team will be holding a free seminar on these important changes in a number of our offices in early October. Information on the dates and locations of the seminar can be found here. For further information or advice please contact Alison Garrett on 01223 222207.

Regulatory matters Court upholds decision to strike off paramedic for supplying out of date class A drugs The case of James Rice v Health Professions Council was an appeal to the High Court against the decision of the Conduct and Competence Committee (CCC) of the Health Professions Council (HPC) made on 7 May 2010, by which it directed that Mr Rice, a registered paramedic, be struck off the HPC register. The case centred on Mr Rice who provided, upon request, out-of-date Diamorphine to a friend (SR) for pain relief. SR subsequently died. On 18 April 2008, Mr Rice was charged with supplying a quantity of Diamorphine, a class A drug, and tried in the Crown Court. A jury found Mr Rice not guilty and he was acquitted. The decision before the CCC however, was that Mr Rice’s fitness to practise was impaired by reason of his misconduct and that the allegation was well-founded. They struck him off the register. Mr Rice challenged the conclusions of misconduct and impairment of fitness to practice and also the decision as to sanction. Mr Rice argued firstly that the panel misread and misunderstood the information put forward on his behalf; secondly that the panel did not consider all the evidence that was supplied to it at the hearing; and thirdly that it misunderstood the explanation that he gave for his actions. Mr Justice Lindblom rejected the appeal and in his judgment highlighted key reasons for doing so. Although Mr Rice was acquitted in the criminal court, this did not automatically exonerate him in front of the CCC, and in fact the CCC had a duty to form its own view in deciding whether the allegation was well-founded. Further, the standard of proof was a factor being on the balance of probabilities compared to the higher criminal standard of beyond reasonable doubt. Further, the court must show deference to the CCC panel because they are the specialist tribunal, they had the advantage of hearing from material witnesses on either side and they are better placed to understand the professional standards required of individuals practising within the health professions. Finally, Mr Justice Lindblom was satisfied that the panel’s process in reaching its decisions was sound and there was no reason to question or overturn them. In short, the purpose of fitness to practice panel proceedings such as these is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are deemed fit for practice. In this

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case, factors of public confidence assumed a significant importance in the disciplinary process. Mr Rice failed to understand how serious his actions had been and had failed to appreciate what the consequences of those actions might be. This can only have led the CCC to decide that Mr Rice’s behaviour was fundamentally incompatible with his remaining on the register of paramedics and severe as that might be it was both appropriate and proportionate. For further information or advice please contact Fiona Hawker on 0121 456 8284.

Junior doctors must only work in approved practice settings for first 12 months after

qualification In 2007 through an amendment to the Medical Act 1983 (part II, section 44D), the new registration framework for doctors was introduced. Newly fully registered doctors are required to undertake the first 12 months of their employment in an approved practice setting (APS) and crucially may only practice medicine in the UK if they do so in such a setting. APSs are those identified by the General Medical Council (GMC) as appropriate for newly registered practitioners and must provide governance arrangements such as appraisals and supervision. On completion of the 12 months, doctors must apply to have the restriction removed. The requirement to work in an APS for 12 months also applies to doctors returning to the profession after a long absence from practising in the UK. This issue came to light recently when a junior doctor, a core medical trainee 1 in anaesthetics, was reported to the GMC by a pharmacist for prescribing painkillers to a colleague who had severe back pain. The junior doctor had written out a private prescription whereas he was only allowed to prescribe painkillers for a patient in an approved practice setting. The pharmacist discovered the restriction on his practice when he looked at the prescribing doctor’s GMC registration details. The GMC investigated this case and they decided not to take any further action. However, this case has alerted junior doctors to the change in the registration framework for doctors. A list of approved practice settings is provided by the GMC on their website and the relevant explanatory pages can be found here. For further information or advice please contact Fiona Hawker on 0121 456 8284.

GMC reforms to create the Medical Practitioners Tribunal Service The General Medical Council (GMC) has been given the go ahead by the GMC’s Council to establish the Medical Practitioners Tribunal Service (MPTS). Part of the MPTS’ function will be the day to day operational management of adjudications and will begin the separation of the hearings department from the investigation limb of the organisation. An external body will shortly begin the process of appointing a senior judicial figure who will oversee the appointment and performance management of panel members. The service is intended to begin in 2012 and is part of reforms which also include the move to hold all hearings in Manchester. During a three month consultation period, 76 per cent of those who responded supported the implementation of the MPTS. However, in responding to the planned reforms, the Medical Defence Union (MDU) said that whilst they are

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pleased the GMC is working towards “separation”, they do not think the proposal goes far enough and “greater safeguards” are required to ensure the tribunals are entirely separate from the GMC. The reforms also included other initiatives including the appointment of legally qualified chairs and removing the need for a legal advisor. Commenting on the GMC’s Council’s decision, the Chief Executive Niall Dickson said: “this is a major reform and will signal clearly the need for panel hearings to be autonomous and to be seen to be autonomous.” The Medical Protection Society also welcomed the decision for the GMC to establish the MPTS, though Medical Director, Dr Priya Singh, cautioned: “we recognise the importance of gaining costs efficiencies from the fitness to practise system, but this cannot be at the expense of fairness to doctors.” For further information or advice please contact Fiona Hawker on 0121 456 8284.

Any willing provider Co-operation and Competition Panel publishes report on ‘Any willing provider’ policy in

routine elective care The Co-operation and Competition Panel (CCP) has recently published a report on the Any willing provider policy in routine elective care in which it criticises PCT commissioners for various tactics used to manage demand including restricting patient choice, activity caps and minimum waiting times.

It makes the following nine recommendations:

o Commissioners review their existing practices in relation to restrictions on patient choice and competition, and take steps to bring themselves into compliance with the principles and rules.

o Commissioners be required to approve any such restrictions at board level and annually publish (eg, as part of their annual report or statement of commissioning intentions) details of any restrictions on patient choice they have adopted, the underlying rationale for the restriction, an analysis of its impact and terms of the restriction, including the period for which it will operate.

o Commissioners also be required to:

o publish the approach they have adopted to activity planning with providers in their locality; and

o when imposing waiting time requirements on providers, publish on the home page of their website clear information about the minimum waiting time imposed by the PCT on each provider.

o Strategic health authorities (SHAs) and in future the NHS Commissioning Board (NCB) implement oversight arrangements to ensure that commissioners are not restricting patient choice and competition in routine elective care against patients’ and taxpayers’ interests.

o The DH:

o requires commissioners to ensure that referral management centres (RMC) implement the choose and book system effectively and share with all local providers the scripts and any other communications used by RMC staff when referring patients to a provider for routine elective care; and

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o requires commissioners to copy to all local providers any information they supply to GPs concerning providers.

o DH takes action to ensure that SHAs and commissioners are implementing payment by results in accordance with the code of conduct for payment by results and national guidance, including ensuring that commissioners publish the details of any locally adopted variations to the national tariff.

o The DH, in developing accreditation arrangements for future commissioners, requires that commissioners demonstrate to the NCB an understanding of the policies and rules concerning patient choice and competition, and a commitment to complying with their obligations under these policies and rules. Compliance with the policies and rules concerning patient choice and competition should also be made a condition of continued accreditation.

o DH reviews the rationale for the activity planning provisions in the standard acute contract, and if these provisions remain necessary, assess whether amendments could be made to make these provisions less susceptible to being used to restrict patient choice and competition.

o DH reviews the way in which the market forces factor is incorporated into the tariff for routine elective care, and assesses whether the incentives that the current arrangements create for PCTs to restrict patient choice are outweighed by other considerations.

For further information or advice please contact Tania Richards on 01223 222476.

Patient choice The DH publishes operational guidance on extending patient choice of provider In response to Liberating the NHS: greater choice and control, the DH has issued operational guidance to commissioners and providers on the implementation of the Government’s commitment to extend patient choice of provider. Choice for patients can manifest itself in the way care is provided or in the ability to control budgets and self-manage conditions. The NHS Future Forum supported the concept of patient choice of any qualified provider (AQP). In its response to the listening exercise, the Government has stated that it would maintain its commitment to extending a patient’s choice of AQP, with phased implementation over the next few years, and focusing on the services where patients say they want more choice. AQP means that when patients are referred for a particular service, they are able to choose from a list of qualified providers who meet NHS service quality requirements, prices and normal contractual obligations. The Government proposes to extend AQP beyond the existing routine elective procedure. The guidance sets out how patient choice of AQP will be extended between the present time and April 2013. The key principles of the AQP approach are:

o providers qualify and register to provide services via an assurance process that tests providers’ fitness to offer NHS-funded services;

o commissioners set local pathways and referral protocols which providers must accept;

o referring clinicians offer patients a choice of qualified providers; and

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o competition is based on quality, not price; providers are paid a fixed price determined by a national or local tariff.

There will be a phased implementation of patient choice of AQP beginning with a limited set of community and mental health services. The DH has identified a list of potential services for priority implementation which includes musculo-skeletal services for back and neck pain, adult hearing services in the community, continence services, diagnostic tests closer to home, wheelchair services for children; podiatry services, venous leg ulcer and wound healing; and adult primary care psychological therapies.

PCT clusters, supported by pathfinder clinical commissioning groups, should select three or more services for implementation in 2012/13 from this list. (They may choose other services which are higher local priorities if there is a clear case to do so. Shadow health and wellbeing boards will be a key forum for discussing such priorities). The timetable for commissioners is as follows:

o by 30 September 2011, all PCT clusters must have engaged their local communities on local priorities for extending choice of provider;

o by 31 October 2011, feedback from this engagement should have been used to identify three or more community or mental health services for implementation;

o by November 2011, PCT clusters will have developed an implementation pack for each service on the national list; and

o by September 2012 clusters should have implemented patient choice of AQP for those services.

Strategic health authorities will oversee the development of patient choice of AQP. The qualification process will ensure that all providers offer safe, good quality care. A provider should be qualified if they:

o are registered with CQC and licensed by Monitor (from 2013, where required) or meet equivalent assurance requirements;

o will meet the terms and conditions of the NHS Standard Contract;

o accept NHS prices;

o can provide assurances that they are capable of delivering the agreed service requirements and comply with referral protocols; and

o reach agreement with local commissioners on supporting schedules to the standard contract including any local referral thresholds or patient protocols.

Providers will be listed on a directory for patients and general practitioners. PCT clusters must register qualified providers for payment purposes and will hold providers to account for monitoring quality via the NHS Standard Contract. The DH is developing a further list of services to consider for patient choice of AQP implementation in 2013/4. The list may include, maternity (antenatal education and breastfeeding support), speech and language therapy, long

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term conditions self management support, community chemotherapy (including home chemotherapy), primary care psychological therapies (CAHMS), and adult wheelchair services. The next steps are that the DH will begin working with selected PCT clusters to develop implementation packs and PCT clusters must begin local engagement as set out above. For further information or advice please contact Jane Williams on 0121 456 8421.

Regulation of prescribing Home Office launches consultation on proposed consolidation of Misuse of Drugs

Regulations 2001 The Home Office’s consultation on the proposed consolidation of Misuse of Drugs Regulations 2001 includes proposals relating to the Government’s response to the remaining Shipman enquiry recommendations. The aim of the consultation is to seek views on the Government’s proposals to consolidate the 2001 regulations and to conduct a review of provisions under the regulations to ensure that the regulatory framework for controlled drugs is effective and reflects current policy. Responses to the consultation should be received by 28 October 2011. The proposals have been developed by the Home Office in consultation with the DH. The proposed amendments include the following:

o to include paramedics and operating department practitioners in the list of healthcare professionals who must present a requisition in order to obtain controlled drugs from a supplier;

o to extend authority to registered midwife ward managers to supply or offer to supply controlled drugs to patients in the case of drugs supplied to them by a person responsible for dispensing and supplying of medicines in a hospital, the authority is already available to senior registered nurses in charge of a ward;

o to make it mandatory for veterinary practitioners to include their Royal College of Veterinary Surgeon number on prescriptions for schedules 2 and 3 controlled drugs (except temazepan);

o to clarify that regulation 15(3), which enables a prescription for schedules 2 and 3 controlled drugs for the treatment of a patient in hospital to be written on the patient’s bed card, is not applicable to prisons and that a 2001 regulation compliant prescription needs to be completed; and

o to extend the authorities currently applicable to senior registered nurses in charge of wards to include senior registered nurses in charge of prison health centres.

General proposals

o to include prisons in the 2001 regulations;

o amendments to allow ambulance trusts to posses and supply controlled drugs to paramedics employed by the trust; and

o amendments to enable the emergency sale or supply of phenobarbitone or phenobarbitone sodium. Responses to the consultation should arrive no later than 28 October 2011.

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For further information or advice please contact Jacqueline Haines on 0121 456 8453.

Allocation of funding Consultation on the allocation of additional funding to local authorities for Local

HealthWatch and PCT deprivation of liberty safeguards The DH is seeking views from stakeholders on options for distributing additional funding to local authorities for Local Healthwatch, NHS Complaints Advocacy and PCT deprivation of liberty safeguards. Following the passage of the Health and Social Care Bill, the DH will need to allocate funding for certain duties which will be passed from the NHS and DH to local authorities. The consultation is seeking views on allocation options for the following duties:

o Local HealthWatch signposting element;

o NHS Complaints Advocacy; and

o PCT Deprivation of Liberty Safeguards.

Allocation options for the Independent Mental Health Advocates will be looked at prior to the 2013 settlement.

Responses to the consultation should be received by 24 October 2001. For further information or advice please contact Jacqueline Haines on 0121 456 8453.

Employment Discriminatory effect of NHS pension scheme upheld as objectively justified by High Court In the case of R (on the application of Cockburn) v Secretary of State for Health, the High Court has ruled that a provision of the NHS Pension Scheme Regulations 1995, which treated men differently from women, can be objectively justified under the European Convention on Human Rights (ECHR). The claimant's challenge related to a provision of the regulations regarding his entitlement to a widower's pension. The effect of the regulations was that his late wife's service prior to 6 April 1988 (she joined the NHS pension scheme in 1982) was discounted. It was accepted that these years of service would not have been discounted had the claimant been a woman applying for entitlement to a late husband's pension. The claimant relied on Article 14 of the ECHR, which contains a prohibition against discrimination. The High Court considered the justification for the discriminatory effect of the regulation and upheld its legality. The court considered that the Secretary of State, in enacting the regulations, was entitled to have regard to the costs that removing the discriminatory provision would entail, which would have to be borne by current members of the NHS pension scheme or the taxpayer. These costs were estimated to have been between £730 to £905 million. Further the court found that a number of provisions had been enacted to reduce the discriminatory effect of the regulations, for example, that the claimant could have purchased survivor’s pension cover and members of the scheme could transfer their accrued rights to a new section of the scheme which provided for non-discriminatory pension entitlement. For further information or advice please contact Fiona Hargreaves 0121 456 8466.

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Court holds right to a fair trial not engaged in respect of disciplinary hearing In the case of Mattu v University Hospitals of Coventry and Warwickshire, the claimant (C) applied to set aside his dismissal. C was employed as a non-invasive cardiology and general medicine consultant and was suspended on disciplinary grounds. The trust arranged for him to undergo training before he returned to work, and C requested a six month period to be spent on research, possibly in the USA. The trust did not consider this necessary and rejected this request. C failed to agree to an action plan and eventually his conduct was investigated. The matter progressed to a disciplinary hearing, and C requested that this be adjourned. The trust had agreed to six previous adjournments and refused this final request. When the hearing eventually proceeded, C was dismissed. It was found he had failed to follow reasonable instructions and had acted in an unmanageable way. C issued High Court proceedings citing breach of contract as the trust failed to adjourn the hearing at his request. The court rejected this argument. C also claimed that his Article 6 rights to a fair trial were engaged because the dismissal prevented him practising his profession, and that the disciplinary hearing therefore "determined his civil rights", so that under Article 6 the disciplinary panel ought to have been independent (ie, not solely drawn from the trust). The court therefore considered whether the disciplinary hearing did determine C's civil rights. C argued that dismissal would have the same effect as striking him off the medical register, or barring him from employment in a monopoly provider, namely the NHS. The court rejected this contention and found that C remained a fully qualified medical professional; his right to practise his profession remained. GMC proceedings would not be altered by the dismissal, and it remained open to C to seek employment in either a public or private body. At worst, C's ability to remain in his current employment was affected. But unlike the right to practise one's profession, doing a particular job is not a civil right, and is not protected by Article 6. The court reiterated sentiments expressed by previous tribunals that dismissal by a trust's chief executive or other employee would not constitute an independent or impartial arbiter, as required by Article 6. However, as Article 6 was not engaged in the first place this did not affect the outcome of this case. For further information or advice please contact Jog Hundle on 0121 456 8206, Martin Brewer on 0121 456 8357 or Stuart Craig on 01223 222280.

Patient matters: children Munro review of child protection: Government response published On 13 July 2011, the Department for Education published the Government’s response to Professor Munro’s review of child protection. They agreed with all 15 recommendations. The Government will take forward further detailed work with key partners. It will set up a co-produced work programme between the Department for Education, the DH, NHS bodies, local authorities, professional bodies and practitioners to ensure continued improvement of safeguarding arrangements in health reform. This will include building on the DH’s work to date on the practical implications of NHS reform for safeguarding children. NHS and local authority chief executives will wish to consider the implications of the Government response and the proposed further partnership working across sectors. Other key headlines from the Government are that they will:

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o oversee a radical reduction in the amount of regulation through the revision of the statutory framework to place greater emphasis on direct work with children, young people and families;

o amend statutory guidance, by December 2011, to remove prescribed timescales and the distinction between core and initial assessments;

o support and work with the Social Work Reform Board, the College of Social Work and the Association of Directors of Children’s Services to develop the knowledge and skills of the profession;

o implement a new inspection framework that has at its heart the experiences of children and young people;

o ensure greater transparency and co-ordination of local arrangements to deliver an early help offer to children, young people and families;

o create a chief social worker to advise them on social work practice and the effectiveness of the help being given to children and young people; and

o carefully plan the transition to enable systems review methodology to be used by Local Safeguarding Children’s Boards when serious case reviews are undertaken.

For further information or advice please contact Ruth Creed on 0121 456 8323 or Charlotte Mawdesley on 0121 456 8402.

The family courts: media access and reporting guidance published The issue of family justice and the reporting of cases has been an area of real tension. There are concerns about “secret justice” set against legitimate expectations of privacy and confidentiality for the family, especially the child. In July 2011, a document entitled The family courts: media access and reporting was produced as a result of discussions between the Lord Chief Justice and a group of lawyers and journalists. This sets out the current law on the family courts and media access and reporting. It provides practical guidance for journalists, judges and practitioners on what can and cannot be done. The guidance refers to the case of Re Ward (A Child) (2010) which Mills & Reeve were involved in. In that case, Munby J found that information which would otherwise have been restricted did not engage the private interests of anyone other than the Ward family, who were the party seeking permission to publish the information. The judge also decided that expert witnesses in the case could not remain anonymous. For further information or advice please contact Ruth Creed on 0121 456 8323 and Helen Burnell on 020 7648 9237.

Safeguarding Referrals to the Independent Safeguarding Authority of those posing a threat to the

vulnerable need to be prompt Recent high profile cases, such as the abuse of vulnerable adults at Winterbourne Hospital and the abuse perpetrated at the Little Stars nursery, have highlighted the need for prompt referrals to be made to the Independent Safeguarding Authority (ISA).

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The ISA can make independent barring decisions in relation to individuals who have harmed (or present a risk of harm to) children or vulnerable adults. A bar by the ISA prevents people from working or volunteering with either of these vulnerable groups. Employers and regulatory bodies (particularly those in the NHS, care and education sectors) are under a legal duty to refer people to the ISA who they have dismissed or removed from working with vulnerable people because of the harm they have caused or the risk they pose. This applies equally to paid staff and volunteers. Additionally, where there is significant concern that harm is taking place or could take place, the employer can also refer the person to the ISA. It is a criminal offence for a barred person to apply to work or work with the vulnerable group from which they are barred, or for an employer to knowingly employ them. ISA’s Chief Executive, Adrian McAllister said: "it is important that employers understand their referral responsibilities and there is increasing evidence that referrals to the ISA are a key consideration in safeguarding decisions. The events at Winterbourne and Little Stars only serve to highlight the need for employers to further strengthen their safeguarding procedures". For further information or advice please contact Charlotte Mawdesley on 0121 456 8402.

Funding of treatment and care Supreme Court considers the need to ration resources in care planning The Supreme Court recently considered a case about the use of limited resources to meet need, where the proposed care package was strongly opposed by the service user. In R (McDonald) v Royal Borough of Kensington and Chelsea, the court considered the case of Elaine McDonald, a former ballerina, who is disabled following a number of strokes. Ms McDonald also has a bladder condition which means she needs to urinate several times during the night. She had sought, as part of her care package, the services of a carer to help her get from bed to the toilet during the night. Her local council, responsible for meeting her community care needs, compiled a care plan that identified her need as being one for safe urination at night. The council concluded it could meet this need by providing Ms McDonald with incontinence pads instead of a carer to take her to the toilet. This was estimated to save the council over £20,000 per year. Ms McDonald challenged the council’s care plan in judicial review proceedings. The case was recently considered by the Supreme Court and the case led to a sharp division of opinion between some of the members of the court. Ms McDonald raised two main arguments. Firstly she argued that the council was bound by an earlier assessment which identified her need as a need to get to the toilet. The majority of the Supreme Court held, on the facts of this case, that in fact the council had re-assessed the need and was entitled to define the need in wider terms (ie, a need for safe night time urination, instead of a need to get to the toilet at night). Defining the need in these wider terms made available the option of incontinence pads to meet the need. Clearly, had her need still been “to get to the toilet”, it could not have been met by provision of pads. Secondly she argued that the decision to meet the need by providing incontinence pads breached her Article 8 convention right which provides for respect for private life. The majority of the Supreme Court also decided this issue in favour of the council. The court held that deciding to meet the need by providing incontinence pads was not a breach of Article 8 and it was also suggested that even if it was a breach, it was a breach that could be justified by reference to the significant cost saving.

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Other arguments raised in the case centred on the disability discrimination legislation. It was contended on behalf of Ms McDonald that the duty to promote equality of opportunity between disabled persons and other persons needed to be expressly considered when making care planning decisions, with the implicit suggestion that had the duty been considered, the care offered to Ms McDonald would not have been incontinence pads. The court said this argument was “hopeless”. When public bodies are discharging functions (eg, care planning functions) that are by nature specifically concerned with the needs of disabled people, express reference to disability equality duties adds nothing. The court expressed its sympathy for Ms McDonald’s position. However, confirmation that resources can be considered when making care planning decisions will be welcomed by those professionals charged with the difficult job of making limited resources meet the needs of many. The court’s refusal to accept the arguments based on disability discrimination legislation are also welcome, relieving professionals from the obligation to expressly consider the statutory discrimination principles, which most professionals concerned with the care of disabled people would say are already built into daily practice. This was clearly a difficult case which troubled some members of the Supreme Court. Professionals involved in care planning will be all too aware of the difficult decisions that have to be made to match resources against patient expectations. For further information or advice please contact Lee Parkhill on 0121 456 8420 or Jill Mason on 0121 456 8367.

Charges for overseas visitors DH publishes updated guidance on implementing the overseas visitors’ hospital charging

regulations The DH has updated its guidance for NHS bodies carrying out their duties under the NHS (Charges to Overseas Visitors) Regulations 2011 which enables them to make and recover charges for NHS hospital treatment from those overseas visitors not exempt from those charges. The amended regulations came into force on 1 August 2011. The guidance supersedes the 2004 guidance. In summary, a person who is not “ordinarily resident” in the UK falls within the definition of an overseas visitor and may therefore incur a charge for treatment. The guidance stresses that a person does not become ordinarily resident in the UK simply by:

o having British nationality;

o holding a British passport;

o being registered with a GP;

o having an NHS number;

o owning property in the UK; or

o having paid national insurance contributions and taxes in the UK. Rather, the test of whether a person is ordinarily resident is a question of fact, which requires a number of factors to be taken into account.

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It should be borne in mind that the charging regulations place a legal obligation on NHS bodies, as opposed to a legal right to establish whether a person is an overseas visitor to whom charges apply or whether they are exempt from charges. The guidance also stresses that when the charges apply, the relevant NHS body must charge the person for the cost of the NHS services. Many NHS bodies will already have a designated person to oversee the implementation of the charging regulations, but for those that do not, the DH strongly recommends that someone is appointed to fulfil that role. The guidance also stresses that this person needs to be of sufficient seniority to be able to resolve complex and sensitive issues. The guidance also stresses the human rights obligations owed by NHS bodies which means that treatment considered to be immediately necessary should never be withheld from chargeable overseas visitors pending payment (although charges will still apply) unless the service is exempt from charges (such as treatment inside an accident and emergency department). The guidance also emphasises that NHS bodies need to notify the overseas healthcare team at the Department of Work and Pensions of the details of the European health insurance card held by visitors from any of our European Economic Area partners or Switzerland whenever they provide services to such a visitor. This enables the UK to recover the cost of treating these patients. Please note that the guidance does not cover treatment provided by a general practitioner, dentist or optician. For further information or advice please contact Jacqueline Haines on 0121 456 8453.

Health and safety Court of Appeal affirms that occupiers owe a duty of reasonable care and not an absolute

duty to prevent injury to visitors A recent decision of the Court of Appeal emphasises that both under the Occupiers Liability Act 1957 and under the common law, the duty on the occupier of premises is to exercise “reasonable care”. It is not an absolute duty to prevent visitors to those premises from being injured. In Hufton v Somerset County Council (2011), the court rejected a claim for damages brought by a 15 year-old school girl who suffered a significant knee injury after slipping in a wet patch on the floor of her school hall. The school had prepared a written risk assessment that identified the need for the fire exit doors, one of two entrances to the hall, to be blocked up on wet days. When it rained, the system was implemented by putting up a sign on the doors and by stationing prefects in the vicinity to prevent the use of the fire exit. On the day of the accident, it did not start to rain until after the pupils had gone outside for their 20 minute morning break and unfortunately, the sign had not been put up prior to some of the pupils returning into the school. The court however found that the council was not at fault because the school had a “reasonable” system in place to prevent the hall floor from getting wet. The case therefore highlights that where an organisation can show that it has undertaken a thorough risk assessment and put all appropriate measures in place to implement the same, claims arising from accidents on their premises can be successfully defended. For further information or advice please contact Sarah Garrood on 01603 693291.

DOLS Variation in the use of the Deprivation of Liberty Safeguards (DOLS) Further to our report in our April edition of the Health Legal Update, a recent report by the NHS Information Centre in relation to the use of DOLS in 2010-11, Mental Capacity Act 2005, Deprivation of Liberty Safeguards

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assessments (England) second report on annual data, 2010/11, has revealed that the legislation is being applied inconsistently across England. This report presents the first two full years of comparable data about the use of DOLS. The report found that people in some parts of the country were three times more likely to be subject to a DOLS application than others. In the East Midlands there were 46 DOLS orders per 100,000 people, compared to only 13 per 100,000 in the East of England. In total 8,982 applications were made (compared to 7,157 in 2009/10). Of these, 4,951 applications were approved (compared to 3,297 in 2009/10), which is a 46 per cent approval rate. More detailed analysis of this year's report shows that of those applications that were granted, more than half (55 per cent) concerned a person who lacked mental capacity due to dementia. A spokesperson for the Care Quality Commission (CQC) has commented that “training is quite sporadic in some places.” He emphasised that commissioners have a responsibility to make sure that DOLS is properly understood by staff at all levels. Mills & Reeve offers generic and bespoke “clinic” sessions on DOLS issues, to ensure your organisation is consistent and compliant with the DOLS code of practice and the wider Mental Capacity Act. Please get in touch for further details. For further information or advice please contact Charlotte Mawdesley on 0121 456 8402.

Council loses appeal against the awarding of costs in a DOLS case In Manchester City Council v G and Ors, Manchester City Council lost its appeal against the awarding of costs against it following the decision in the case of “G”. In that case, the Court of Protection found that the city council had acted unlawfully in depriving G of his liberty by removing him from his carer and placing him in a residential unit. The ensuing safeguarding investigation was inconclusive but it was argued it was in G’s best interests to remain at the unit. His sister obtained a declaration that he was being unlawfully deprived of his liberty and the court eventually decided that G should return to live with his carer. The carer and G’s sister sought to recover their costs and the court ordered that the city council should pay those costs incurred up to the first day of the hearing (as there should have been an application to the Court of Protection in any event, but it should have been made by the city council rather than the carer and G’s sister). The city council appealed on the basis that it is not usual for costs orders to be made in the Court of Protection. The appeal was dismissed on the basis that the city council had acted in such a way that their conduct could be seen as misconduct and gives rise to a costs order. For further information or advice please contact Jill Weston on 0121 456 8450.

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Mental Capacity Act Court of protection prefers evidence of treating professionals to expert when assessing

capacity In the recent case of PH v Local Authority (2011) (which is unreported at the time of writing), the Court of Protection ruled that a sufferer of Huntingdon’s Disease (HD) lacked capacity to make a decision as to his residence and care. In reaching this decision, the court preferred evidence given by those who had day-to-day care of P, rather than the evidence given by an expert consultant neuro-psychiatrist with a particular expertise in HD. After P had been admitted to a residential home, the local authority carried out the assessments required under Schedule A1 of the Mental Capacity Act 2005 and gave a standard authorisation for P’s ongoing detention. P challenged the conclusion that he met the capacity and best interests’ requirements necessary for a standard authorisation and applied to the court, under section 21A of the Act, for an order terminating the authorisation. Evidence as to whether or not P had the capacity to make decisions concerning his residence and care was given by a number of parties, including an expert consultant neuro-physician who was an expert in HD, and who gave evidence that P did have capacity concerning residence. However, the court found that the neuro-psychiatrist’s report was somewhat superficial – as it was based solely on a single 90-minute interview with P - and that this was detrimental to his evidence. Evidence was also given by three clinicians who had treated P, as well as P’s social worker, who all agreed that he lacked capacity. Two of these witnesses had known P before he was admitted, and gave evidence that his lack of capacity pre-dated his admission. The clinician witnesses had valuable expertise in HD which, coupled with their much greater experience of P as a patient, justified the court attaching greater weight to their combined views. Furthermore, P’s social worker’s opinion demanded very great respect. All four of these witnesses contributed to the evidence that P lacked the capacity to make decisions regarding his future residence. Baker J stated that “in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be very likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important.” The court subsequently held that P lacked a true awareness of his need for personal care, and did not meet three of the four components of the functional test set out in section 3(1) of the Act. The court therefore made a declaration under section 15 of the Act that P lacked capacity in relation to the question of whether he should be accommodated in the residential home for the purposes of being given care and treatment. It also declared that he lacked capacity to make a decision as to his residence and care, and this declaration would remain in force for six months to enable all practicable steps to be taken to assist P in acquiring capacity. This case underlines the importance of detailed, properly recorded capacity assessments whenever capacity is an issue. It demonstrates that the evidence of clinicians with day-to-day care of a patient will carry significant weight if the issue of capacity comes before the courts. For further information or advice please contact Philip Grey on 01223 222463.

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Mental Health Act DH publishes consultation response to proposed changes to the Mental Health Act in the

event of a pandemic influenza outbreak On 29 July 2011, the DH published a consultation response detailing a range of temporary changes to the Mental Health Act 1983 (the MHA) which could be introduced, if necessary, in the event of an influenza pandemic which had a severe impact on health and social care services. The full list of potential temporary changes which would require legislative change was finalised following a consultation exercise in autumn 2009 and can be found at annex C of Pandemic Influenza and the Mental Health Act 1983 - Response to Consultation on Proposed Changes to the Mental Health Act 1983 and its Associated Secondary Legislation. The aim of the temporary changes is to ensure that mental health professionals could continue to operate the provisions of the MHA in the best interests of the health and safety of patients and for the protection of others in what would be truly exceptional circumstances. NHS managers have been asked to ensure that the issues identified in the consultation response document are included in their pandemic preparedness plans. For further information or advice please contact Ruth Creed on 0121 456 8323.

DH publishes guidance on the procedure for the transfer from custody of children and

young people under the Mental Health Act 1983 This guidance details the procedure for transferring to and from hospital under the Mental Health Act 1983 (MHA) of any child or young person who is detained in custody in pursuance of any sentence or order for detention, remanded in custody or who is otherwise detained in custody. The procedure for the transfer from custody of children and young people (CYP) to and from hospital under the MHA aims to help colleagues to work together more effectively in order to ensure timely transfer of mentally disordered young people and avoid unacceptable delays. With the recent expansion in the number of secure psychiatric beds for CYP nationally, the guidance document states “good practice indicates that transfers should be completed within seven days”. The document is largely based upon the procedure for adults; however there are two important differences:

o parents should be involved as much as possible in decisions about the hospitalisation of their children; and

o CYP are on the whole more vulnerable because of their youth and lack of maturity. It is not acceptable that they remain in a custodial setting without the health oversight and expertise that their mental disorder requires. This is the rationale behind the expectation of the shorter time frame of seven days to affect the transfer. The guidance also contains information on which body has responsibility for the transfer of CYP. Although the commissioning body responsibility for secure forensic services for CYP lies with the National Commissioning Group (NCG), the “appropriate PCT” for CYP in custody in England, in the case of transfers to hospital under ss47 and 48 Mental Health Act 1983 is:

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o the PCT where the CYP was registered with a GP prior to being placed in custody;

o in the absence of prior general practitioner (GP) registration, the PCT in whose area the CYP “habitually resided” before entering custody;

o if the CYP is not registered with a GP and has no determinable prior residence, the PCT in whose area the (alleged) offence took place;

o if the CYP is usually resident outside the UK, the PCT in whose area the secure estate accommodation lies; or

o where the CYP's last known or habitual residence was in Wales, practitioners should contact the Welsh Health Specialised Services Committee for guidance.

The role of responsible commissioner encompasses local commissioning procedures (ie, gate-keeping), providing assistance to healthcare staff in locating a bed, and paying the appropriate healthcare costs of the transferred CYP. While NCG units are funded from a top-sliced specialist NHS funding, PCTs remain responsible for assessments for the NCG units and for independent sector placements. Disputes over the identity of the responsible commissioner must not be allowed to delay or adversely affect treatment. The DH hopes that those involved in the process of transferring CYP to and from hospital under the MHA will pay close attention to this document to support them in enabling CYP in custody to have access to the same timely care and treatment as service users accessing mental health services in the community. For further information or advice please contact Charlotte Mawdesley on 0121 456 8402 or Jane Williams on 0121 456 8421.

Mental health tribunals First-tier Tribunal (Mental Health) Stakeholder Bulletin July 2011 On 29 July 2011, the Tribunal Service Mental Health (TSMH) issued its First-tier Tribunal (Mental Health) Stakeholder Bulletin. It contains the following headings:

o Contacting the tribunal: this refers to a new contacts sheet which is available on the website and regularly updated.

o Use of secure email: this is the preferred method of communication and details are provided on how to utilise it.

o Applications: some changes in acknowledging patients’ applications are being made. Where a patient is represented, the acknowledgment will only go to their solicitor.

o Forms used in the applications process: new application and referral forms are available on the website and should be used with immediate effect.

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o Case management requests (form CMR1): this form should be used if you wish to make a case management request to the tribunal.

o Secretary of State supplementary statements: they are entitled to file a supplementary statement commenting on any additional reports or documents sent to them but there is no obligation on them to do so.

o Reports processing team: when sending reports certain information needs to be put in the email subject

header field (patient’s name or initials, if server allows for this, the hearing date if known, restricted or non

restricted and patient number, if known).Decisions: the TSMH will no longer serve the decision on the responsible clinician or the approved mental health practitioner (only on the detaining authority (the hospital) and, in restricted cases, the mental health casework section).

o Feedback on the bulletin is invited. For further information or advice please contact Ruth Creed on 0121 456 8323.

First-tier Tribunal (Mental Health) to be heard in public You may recall that in the March 2011 Health Legal Update we reported that the Upper-tier Tribunal had decided, for the first time, that a patient could have their First-tier Tribunal (Mental Health) heard in public. The hearing for Mr Albert Haines, to determine whether he remains liable to be detained under the Mental Health Act 1983, has now been listed to take place on 27 and 28 September 2011 at 10.30am at Field House 15-25 Breams Buildings, London EC4A 1DZ. The hearing was announced on the Justice website. Members of the public and the press can attend. For further information or advice please contact Ruth Creed on 0121 456 8323.

The Law Society publishes practice note for lawyers on representation before mental

health tribunals The Law Society has published an updated practice note for lawyers who advise and represent patients at mental health tribunals. It includes relevant case law and covers client capacity, good tribunal practice, duties to clients and representing children and young people. Rather worryingly, the guidance says that those representing patients should act on their client’s instructions even if doing so is not in their best clinical interests. This is because they are concerned with their client’s best legal interests. See paragraph 5.2.1. Clinical teams caring for patients will be concerned with this approach. For further information or advice please contact Ruth Creed on 0121 456 8323.

Mental health: high security Equality impact assessment of exclusive mental health legal services contracts in high

security hospitals You may recall that the Legal Services Commission (LSC) carried out a tender in 2010. This resulted in a limited number of providers of mental health legal advice services being granted contracts to represent patients in the

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three high security hospitals (Ashworth, Broadmoor and Rampton). This policy was implemented on 15 November 2010. The tender and its outcome were challenged in a judicial review action. The LSC was asked to carry out further work to assess the impact of the tender with particular regard to the disability duty under section 49A of the Disability Discrimination Act 1995 (DDA) (see our previous update in the May 2011 Health Legal Update). In July 2011, the LSC produced a paper setting out in full their equality impact assessment (EIA). As a result of the EIA the LSC is making no immediate change to contracting arrangements in high security hospitals. However, it has outlined some other options and sought views on its conclusions. For further information or advice please contact Ruth Creed on 0121 456 8323.

High security psychiatric services guidance and directions come into force On 1 August 2011, The High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011 (the directions) came into force. New issues covered by the revised directions include:

o a duty upon the trusts to co-operate with each other in developing security arrangements;

o searching of patients involving the removal of clothing;

o specified employment opportunities; and

o provision of training. The DH has produced guidance to accompany these new directions which covers:

o general information about the directions (paragraphs 3 to 5);

o specific guidance about the implementation of certain requirements contained in the directions (paragraph 6); and

o general guidance on the manner in which policies (including procedures and protocols) should be produced, and promulgated to staff, within the high security hospitals (paragraphs 7 to 12).

For further information or advice please contact Ruth Creed on 0121 456 8323.

Complaints Commons Health Committee concludes that the NHS complaints system needs an overhaul The Commons Health Committee has issued its report on complaints and litigation. In short, the report concludes that the legal framework of the Health Service Ombudsman should be widened to enable her to review any complaint referred to her following rejection by a service provider. Currently she can only launch a formal investigation if she is satisfied in advance that there will be a “worthwhile outcome”. The report also found that there is an “unacceptably” wide variation in the operation of complaints procedures within the NHS. The committee’s enquiry found:

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o there is no national protocol for classification of reporting of complaints and reporting by foundation trusts is voluntary;

o it is unclear how complaints delivered by primary care providers will be handled following the introduction of the Health and Social Bill; and

o the NHS culture is still too defensive. The report also recommends that all providers of NHS care should “owe a duty of candour to their commissioners” as a result of which they should provide:

o reports of all complaints made to them by NHS patients;

o when complaints are upheld, complaint action plans should be implemented, as is the case with serious incidents requiring investigation (SIRIs); and

o they should produce progress reports of actions from complaint action plans. The enquiry also looked at litigation and concluded that the existing system of clinical negligence offers patients the best opportunities to obtain an award of appropriate compensation and does not support a switch to no fault compensation. In addition the committee suggested that the Government needs to “tread carefully” with regard to its proposals to reduce access to legal aid for most clinical negligence cases. The committee also suggests that the regulatory framework that governs the activities of claims management companies should be reviewed because it believes that current practice hinders complaint resolution for complaints as well as increasing the cost of litigation. For further information or advice please contact Jacqueline Haines on 0121 456 8453.

Editor Jacqueline Haines Senior Solicitor for Mills & Reeve LLP +44(0)121 456 8453 jacqueline.haines@mills-reeve.com

www.mills-reeve.com T +44(0)844 561 0011

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