Mills & Reeve: Health and Care Update

A more muscular Information Commissioner's Office!

Whilst I do not wish to bore you with stories and ‘pix’ from my recent holiday, one image has stuck in my mind. Beamed around the world were pictures of ICO enforcement officers going into Cambridge Analytica. A dawn raid looking every inch like FBI agents (without guns, I think).

I was reminded about this by recent reports of a former housing worker convicted of data protection offences recently at St Albans Crown Court. The data involved a confidential report identifying a vulnerable victim. The report was sent to 83 people. Safeguarding was involved.

What is clear is that the ICO was not prepared to accept such a brazen flouting of the rules and unlawful activity. The Commissioner prosecuted a week-long trial. The total fine might only be £600 but the former housing worker faces £3,500 in costs.

Whilst this prosecution may only be of passing interest; I wonder whether the ICO is getting a bit more ‘macho’ – just in time for the EU General Data Protection Regulation?

Stuart Knowles, Consultant

Welcome clarification on the issue of false imprisonment in a hospital setting

The High Court has provided a helpful reminder of the criteria when considering liability in false imprisonment claims.

The High Court’s latest decision in Ali v Heart of England NHS Foundation Trust and G4S Secure Solutions provides that liability will only follow where the language and actions have gone beyond the simple giving of information to the police to decide what action they would take on it.

In this case the High Court heard an appeal from a County Court judgment. 

Mr Ali claimed damages for negligence against the NHS Trust and G4S and claimed damages for false imprisonment against G4S. The judge rejected both claims and Mr Ali appealed the dismissal of the false imprisonment claim against G4S.

Background facts and the County Court decision

Mr Ali’s three-year-old daughter (A) had been admitted to hospital with suspected pneumonia. While in hospital Mr and Mrs Ali were concerned that staff were not monitoring or treating their daughter and wished to remove A from hospital. Mr Ali was advised not to as A needed to remain in hospital to be monitored and treated if necessary. It is reported that Mr Ali persisted and, in accordance with hospital procedures, a nurse called security staff employed by G4S. The security staff could not persuade Mr Ali to allow A to remain in hospital and Mr and Mrs Ali started leaving the hospital car park with A in their car.  

A member of the hospital’s security staff, Mr Akram, called the police and told them “one of our warders reported a parent taking a child off the ward that’s got a child protection order on it” but that was wrong: there was no such thing in place regarding A.

The police responded by stopping Mr Ali’s car and they arrested him on suspicion of kidnapping and detained him. In due course, the police discovered that there was no child protection order in place and they de-arrested Mr Ali. However, he was then re-arrested on neglect charges. He had been detained for 20 hours before being released without charge.

The judge rejected the Mr Ali’s claim for negligence and false imprisonment.

Specifically on the false imprisonment claim. He found that the security guard had merely given “information to the police on which they could act or not as they saw fit. There was nothing in the information given by him that amounted to a direction or a procuring or a direct request or direct encouragement that the police should act by arresting Mr Ali.”

On appeal, the High Court’s decision

The appeal was advanced on two grounds:

• The judge erred in law in holding that G4S was not liable for false imprisonment and concluding that there was nothing in the information given by Mr Akram to the police which amounted to a direction or procuring or direct request or direct encouragement that the police should act by arresting the Mr Ali.
• The judge failed to give adequate reasons for his decision and that there was an absence of words or action going beyond the simple provision of information for the police to decide what action they would take on it.

The High Court:

• Was not persuaded with Mr Ali’s renewed arguments and dismissed his appeal on the basis that the County Court judge had applied the correct test and arrived at the correct answer.
• Decided that the judge had not erred in law in holding that the security company was not liable for false imprisonment. The key question was whether Mr Akram’s language and actions did or did not do more than lay information before the police. And in these circumstances, he did not: what was said amounted to the mere provision of information, Mr Akram did not expressly ask the police to arrest Mr Ali.  

A person who merely gives information in good faith (albeit mistakenly) does not commit the tort of false imprisonment. To be liable they have to go beyond that by directly requesting or directly encouraging officers to arrest.

Do get in touch with Helen Burnell or Ruth Minnis if you require support with matters.

Consultation on extending the ‘right to have’ for personal health budgets and integrated personal budgets

The DHSC and NHS England have published a consultation on extending the legal ‘right to have’ a personal health budget  (PHB) or an integrated personal budget.

The ongoing drive to personalise the delivery of health and care service continues apace, seeking to provide individuals with mechanisms to enable them to control and tailor their own health and care services to their own highly specific circumstances.  In the case of integrated personal budgets across both health and social care, the aim is to achieve this whilst simultaneously reducing the need for multiple assessments and management of separate budgets.  The consultation document also notes recent evidence that PHBs have reduced the costs of NHS Continuing Healthcare home care packages by an average of 17%.

Presently the ‘right to have’ a PHB – which is only a ‘right’ to the extent that the commissioning body does not conclude that it would be inappropriate for services to be secured in this way – is limited to those offered adult NHS Continuing Healthcare or children’s continuing care packages although CCGs can, of course, offer PHBs to other groups, if appropriate.

The consultation is seeking views on several issues including the extension of the ‘right’ to five other groups:

• People with ongoing social care needs who also make regular and ongoing use of relevant NHS services.
• People eligible for Section 117 aftercare services and people of all ages with ongoing mental health needs who make regular and ongoing use of community based NHS mental health services.
• People leaving the Armed Forces who are eligible for ongoing NHS services.
• People with a learning disability, autism or both, who are eligible for ongoing NHS care.
• People who access wheelchair services whose posture and mobility needs impact upon their wider health and social care needs.

Views are sought specifically on:

• Whether you agree that the groups identified should be prioritised;
• Whether you believe these groups would benefit from a personal health budget or an integrated personal budget or not;
• Whether the right should be extended to a right to a direct payment; and
• Whether there are other groups or individuals in areas of the system not identified, who you believe could benefit from a personal health budget or an integrated personal budget.

Views and comments are invited by 8 June 2018.

Jane Williams, Senior Associate

Treatment by deception – can you ever do it?

The Court of Protection ruled (in 2016 although the judgment was only reported in March 2018) that, in certain circumstances, it would approve covert treatment for a patient on the basis of best interests. 

In the case of Re AB Mr Justice Mostyn comments that it is unusual for the CoP to be asked to decide that it is in a patient’s best interests to deceive them about their treatment – the facts of this case are very unusual and one that Mr Justice Mostyn has not come across before. However he commented that he is “not so sure that the situation is in fact likely to be that uncommon”.

The case

The CoP were asked to approve a treatment regime for AB, which involved the administration of medication to her on the basis of active deception.

AB required treatment for HIV in the form of anti-retroviral drugs. She contracted the disease in 2000 and willingly and consensually engaged with treatment until 2008 when there was a major deterioration in her mental health condition. AB suffered from a serious psychoaffective disorder. 

She was assessed as being unlikely to recover from her psychiatric condition in the foreseeable future. AB suffers from powerful delusions, which prevent her from addressing many aspects of normal life rationally. For example, she does not believe that, now, she is HIV positive amongst other delusional beliefs. 

Importantly, were AB to learn that she was being “secretly and clandestinely administered with anti-retroviral treatment” the evidence was that she would be “exceedingly aggrieved” and she would choose not to take the treatment.

It was assessed that, if this happened, within a relatively short period of time her immune system would be seriously compromised and she would be exposed to the risk of death.

The decision

AB was deemed to lack capacity in relation to engaging in anti-retroviral treatment.

The judge outlined his duty to consider not only AB’s actual wishes and feelings but her hypothetical wishes and feelings which would be likely to influence her decision, if she had capacity. He indicated he was satisfied, having regard to her consent to treatment up to 2008, that if she had capacity she would unquestionably consent to anti-retroviral treatment.

The judge further emphasised that, like so many aspects of litigation, the test all depends upon the particular facts that the court is presented with and, in this case, he had no hesitation in concluding that virtually no weight should be given to AB’s present wishes and feelings. In this case, he placed considerable weight on her past wishes, as demonstrated by the evidence, and on her hypothetical wishes, in which he was in no doubt would be in favour of the treatment.

The judge acknowledged that “it might seem, a strong step for the court to take: to authorise a course of medication that involves deception”. However, on the facts of this case, he was clear this course of action would ensure AB’s best interests and that the treatment will likely save her.

The final order was to provide, however, that if the truth emerged to AB and she moved to a position of active resistance to her treatment then the matter would have to be reviewed by the court, as it would not be a one-off administration of treatment, but would be a daily administration of treatment.

In what circumstances would a court approve a deception?

The judgment does not indicate when a court application would be required. However, readers familiar with this area will be aware of obligations under the Mental Capacity and Mental Health Act Codes of Practice.

Interestingly, there was no discussion within the judgment about AB’s treatment being considered under section 63 or a deprivation of liberty authorisation and, this we anticipate is likely to reflect whatever statutory regime she was detained under; but in the usual way, treating teams will need to consider all obligations relating to covert medication and/or restraint in order to establish whether such treatment can be given and if so, under which regime.

Do get in touch with Helen Burnell or Jill Weston if you require support on a best interests matter.

Revised framework for NHS Continuing Healthcare and NHS Funded Nursing Care published and effective from 1 October 2018

The Department of Health and Social Care has published the next incarnation of the National Framework for NHS CHC and NHS FNC which will, in six months’ time, supersede the 2012 versions. It sets out the future policy direction with a greater focus on moving assessments outside of an acute setting.

As before, the revised National Framework incorporates Practice Guidance to support staff delivering NHS CHC and is published alongside the checklist, decision support tool and fast track pathway tool. This 2018 National Framework has been written in conjunction with the Department, NHS England and local authorities and follows an extensive period of external engagement.

The 2018 framework

In broad terms, the National Framework seeks to provide greater clarity to individuals and staff, through a new structure and reflects legislative changes such as the Care Act 2014 since the 2012 version of the Framework was published.

The intention is to clarify five key policy areas, including:

• Setting out that the majority of CHC assessments should take place outside of acute hospital settings.
• Providing additional advice for staff on when individuals do and do not need to be screened for CHC in order to reduce unnecessary assessment processes.
• Clarifying that the main purpose of three and 12 month reviews is to review the appropriateness of the care package, rather than reassess eligibility.
• Introducing new principles for CCGs regarding the local resolution process for situations where individuals request a review of an eligibility decision.
• Providing clearer guidance, including dedicated sections, on: the roles of CCGs and local authorities, NHS FNC, inter-agency disputes, well-managed needs, and the Fast Track Pathway Tool.

DHSC has stated that none of the 2018 amendments and clarifications to the National Framework are intended to change the eligibility criteria for CHC.

All those involved with CHC should read the 2018 National Framework before the implementation date of 1 October. The expectations of commissioners, providers and local authorities are all summarised – we highlight a few areas of focus for CCGs and providers.

For CCGs

They should consider how the processes in the new Framework relate to what is currently in place, and should align their processes accordingly. They should consider whether their responsibilities under the Framework require clearer arrangements to be made with provider and other organisations, and should ensure that that these are built into commissioning processes.

For providers

They need to consider whether their current practice and processes fit with any delegated responsibilities outlined within the 2018 Framework.

Do get in touch if your CCG or provider organisation requires support with CHC and/or getting ready for 1 October.

We will be running training sessions on the new Framework; do get in touch if you would like to book in some training.

Jill Weston, Principal Associate

 

House of Commons Public Accounts Committee report on NHS Continuing Healthcare

Having taken evidence from a variety of witnesses, including Simon Stevens, back in November the Committee produced its report on 10 January 2018. That evidence is summarised in chapters one and two.

The report sets the scene by explaining that the number of people eligible for CHC funding has grown by an average of 6.4 per cent over the last four years – for the period 2015-16, almost 160,000 people received or were assessed as eligible for CHC funding.

The report contains five conclusions and recommendations:

1. Too many people are waiting too long to find out if they are eligible for CHC and to receive the essential care they need – the national framework provides that most people should not wait more than 28 days for a decision. But in 2015-16 almost 25,000 assessments (one third of assessments) took longer.

PAC recommendation: NHS England needs to hold CCGs to account for delays in assessments and needs to find out the extent of further delays by CCGs in providing care packages once funding is agreed, and taking remedial action where needed.

2. Some patients are not receiving the care that they are entitled to because they are not made aware of the funding available or because the system is too difficult for them to navigate.

PAC recommendation: NHS England and the Department of Health and Social Care need to improve awareness of CHC amongst patients, their families and health and social care professionals. The Committee request that the Department and NHS England report back by April 2018 on how awareness has been raised.

3. Patient's likelihood of getting CHC funding depends too much on local interpretation of assessment criteria, due to poor quality assessment tools and inadequate training. The number of people assessed as eligible for CHC ranged from 28 to 356 people per 50,000 population in 2015-16.

PAC recommendation: the Department and NHS England to report back by April 2018 on:

    - what action they have taken to improve the quality of assessment tools and training for staff carrying out assessments; and

    - how it plans to monitor the impact of these changes on reducing variation between CCGs.

4. NHS England is not adequately carrying out its responsibility to ensure that CCGs are complying with the legal requirement to provide CHC to those that are eligible.

PAC recommendation: NHS England need to establish a consistent oversight process, using the new data available, to ensure eligibility decisions are being made consistently both within and across CCGs, including by setting out what criteria they will use to identify and investigate outliers and undertake an annual sample audit.

5. CCGs are required to make £855 million of efficiency savings in CHC and NHS Funded Nursing Care spending by 2020-21, but the committee are unclear how commissioning groups can do this without either increasing the threshold of those assessed as eligible, or by limiting the care packages available.

PAC recommendation: NHS England to provide, by April 2018, a costed breakdown of how these savings will be achieved and an assurance that they will not be achieved by restricting access to care for vulnerable patients.

Do get in touch if your CCG would like support with CHC funding applications.

Jill Weston, Principal Associate

New updated guidance on NHS service changes

On 29 March 2018 NHS England published yet more guidance on service change and consultation. 

Planning, assuring and delivering service change for patients: A good practice guide for commissioners on the NHS England assurance process for major service changes and reconfiguration supersedes the December 2013 guidance document (which was revised in October 2015).

The March 2018 document describes the features of a well-run NHS reconfiguration and service change exercise and the steps that NHS England requires commissioners and providers to undertake before any major reconfiguration process is delivered, including effective public involvement. There is a lot of new information contained in this new document.

Organisations, including NHS commissioners, usually CCGs, NHS providers and local authorities grappling with service changes and reconfiguration should read the whole guidance document which sets out the framework for decision-making.

The purpose of the guidance is explained in the Foreword:

“NHS England’s role is to support commissioners and their local partners, including providers, to develop clear, evidence based proposals for service change, and to undertake assurance to ensure they can progress, with due consideration for the government’s four tests of service change and NHS England’s test for proposed bed closures.”

It sets out how new proposals for change are tested through independent review and assurance by NHS England, taking into account the framework of Procurement, Patient Choice and Competition Regulations. The guidance sets out some of the key considerations for commissioners and their partners in designing service change including reconfiguration. Clinical Commissioning Groups (CCGs) are under a statutory duty to have regard to this guidance.

The Five Year Forward View sets out an expectation that, through Sustainability and Transformation Partnerships, clinical commissioners and their partners should think creatively about how service provision could be improved for their local populations and reduce health inequalities.”  

What’s new in the updated guidance

• The executive summary has 20 key messages for commissioners, providers and other interest groups who have a say in NHS changes.
• A more detailed overview of roles and responsibilities for service change looking at:

- what is service change;

- when is consultation with the local authority and public consultation required;

- who is the decision maker around service change; and

- which commissioners should make decisions on service change.   

• Details of NHS England’s assurance process for service change proposals is set out at chapters four and six. There is reference to a toolkit available from NHS England regional teams too. There is also emphasis on the high costs of “getting it wrong”.
• There are a number of helpful Annexes to the guidance document, specifically Annex 4 (which sets out sample questions from NHS England’s Stage 2 Assurance Checkpoint) and Annex 9 (which includes a table of best practice checks that should be undertaken together with details of the tests and example evidence).

Do get in touch if you require support with managing a service change – we have in recent times assisted both providers and commissioners navigate a clear path from inception to implementation.  

Jill Mason, Partner

General Data Protection Regulation and foundation trust membership – action required!

Together with NHS Providers Mills and Reeve have published a briefing note to explain how GDPR applies to membership databases and the action trusts should be taking before GDPR comes into force on 25 May 2018.

Required actions include appointing an experienced data protection officer, reviewing what data you need to hold and why (deleting the rest) and adding new clauses to your agreement with your membership services provider. You will also need to create new sign-up procedures for recruiting members and seek GDPR-compliant consent from existing members or roll out notices where consent is not required.

To find out what foundation trusts should be doing now read the briefing note here. If you need any further support on this, please contact Tim Winn.

Just culture – more from NHS Improvement

Last month NHS Improvement published a Just culture guide and Scenarios to support training in using a just culture guide.

NHS Improvement explain that the guide can be used at any stage of a patient safety investigation - it does not replace the need for a patient safety investigation and it should not be used routinely. It should only be used when there is already some suspicion that a member of staff requires some management to work safely.

Interestingly, the first scenario covers a “faulty” oxygen cylinder which is an issue HSIB are currently investigating.

Jill Mason, Partner

Serious incident investigations – update and refresh?

Last month NHS Improvement published The future of patient safety investigations.

Readers will recall that the current Serious incident framework was published back in 2015. NHS Improvement now seek input in revising this framework.

They have an engagement website and an online survey with 27 questions - you don’t have to answer all of them! 

The survey is open until 12 June 2018. The framework will then be redrafted over the summer.

Jill Mason, Partner