Mills & Reeve: Health and Care Update

Court of Protection ready to make adverse costs orders, if the conduct of proceedings found to be ‘so poor, so incompetent’

Commissioners and local authorities would be well advised to take note of the Court of Protection’s decision in the case of London Borough of Lambeth v MCS and Lambeth CCG and the cost consequences of "disorganised thinking, planning and management".

The case concerns the conduct of the local authority and the CCG’s failure to progress the repatriation of a Colombian woman (MCS) who suffered a hypoxic brain injury, following a cardiac arrest in 2014. There was no dispute that MCS lacked capacity, nor was there any dispute that it was in MCS’s best interests to return to Colombia in accordance with her wishes. 

Instead, MCS remained at London’s Royal Hospital for Neurodisability for over three years until her return to Colombia in January 2018, some four years after her brain injury. An ending described by the judge as "Finally, a happy ending to a tragic story".

A read of both decisions makes it obvious that the court was "deeply critical of the manner in which this case was handled both before and after the institution of proceedings". 

Proceedings were only instigated because no constructive progress was being made to repatriate MCS – a "situation which could and should have been avoided".

By the end of 2014 or early 2015 at the latest, MCS was ready for discharge but "enquiries lacked focus or persistence". The judge went as far as to describe the enquiries as “ineffectual, even amateur”.

The judge’s acerbic comments on the two statutory bodies’ failings are set out at paragraph nine of the first decision and paragraph three of the second decision. 

In particular, he said “whilst I have no doubt that the Applicant and/or Second Respondent believe they worked tirelessly, the bald fact is that they did not….Apparent ‘unexplained difficulties in dealing with the Colombian authorities and organisations’ were not subsequently born out…. too little intelligent professional focus was brought to bear….To submit that the CCG was ‘throughout commendably assiduous’ in seeking the return to Colombia is about as misplaced and offensive a submission as could possibly be contemplated. The judgment records, order after order which was not complied with.”

Costs order in the Court of Protection

Proceedings in the Court of Protection "almost never" attract an enquiry into the issue of costs as the general principles do not sit easily within the parameters of the court, commented the judge. However, there will "occasionally" be cases where the court will depart from the general rule. The judge, in this case, concluded "without hesitation" that the circumstances of this case are "so poor and so extreme" to justify an adverse costs order against the local authority and the CCG.

A time for reflection

This decision serves as a reminder to local authorities and CCGs that courts are willing to make adverse costs orders, if the court finds the failings are "so poor, so extreme". Asserting that efforts have been stymied by the "novelty of the situation" is no defence – the expectation is to bring an increased level of "intelligent professional focus" to conclude matters. You have been warned!

Do get in touch if you have novel or tricky cases that you would like support with – we have an experienced and friendly team ready to help.

Jill Mason, Partner

Court of Appeal dismisses damages claim by patient who killed her mother

A recent decision of the Court of Appeal confirms that damages claims will not be permitted where the doctrine of illegality applies. 

In Henderson v Dorset Healthcare University NHS Foundation Trust, the claimant patient sought to recover damages for injury and losses sustained by her as a result of killing her mother during a serious psychotic episode.

It was accepted by the NHS Trust, responsible for providing her care, that the tragic event would not have happened but for the Trust’s breaches of duty in failing to respond in an appropriate way to her mental collapse.

The Trust contended, however, that the patient’s claim for damages (which included damages for post-traumatic stress disorder, consequent on the killing of her mother, and a claim for the partial loss of her share in her mother’s estate due to the provisions of the Forfeiture Act 1982) should be defeated on the grounds of illegality.

Although it was considered that the patient’s illness meant that her culpability for the killing “fell towards the lower end of the spectrum of personal responsibility”, the Court of Appeal nonetheless considered itself bound by earlier cases to find, as the immediate cause of the damage was the criminal act of the claimant herself, she was barred a matter of public policy from claiming the heads of loss sought by her and her claim was accordingly dismissed. 

We regularly advise clients on patient matters and our specialist team will be delighted to assist with any queries.

Sarah Garrood, Principal Associate

September is proving to be a high profile month for mental health policy

Earlier this month saw the Private Members’ Bill, Mental Health Units (Use of Force) Bill 2017-19, start its passage through the House of Lords with its second reading, having finished its journey through the House of Commons in July 2018.

Alongside this Bill we have the review of the Mental Capacity Act, Mental Health Act, the House of Commons Library briefing on mental health policy in England and the publication of two national reports on NHS mental health services.

The first is NHS Resolution’s Learning from suicide related claims and the second is CQC’s Review of sexual safety on mental health wards. Both reports include recommendations for mental health service providers and contain good practice guidance.

The Bill aims to place the requirements for use of force on a statutory footing, including requiring mental health units to record any use of force, have a written policy and commit to reducing their use of force.

Following a death or serious injuries following the use of force, the Bill would require mental health units to have regard to all relevant NHS and CQC guidance. This would have the effect of putting NHS England’s Serious Incident Framework on a statutory footing.

The timing of this Bill is significant

The use of force in mental health units is a big issue. But how big is it?

The Crisis Prevention institute found in 2016-17, that 3,652 patients were injured while being restrained during NHS treatment, that 13 per cent of trusts did not have a policy in place to reduce the use of restraint, that 97,000 restraints took place, with more than 2,600 staff assaulted by patients during interventions and that 46 people have died.

What has been identified in the second reading of the Bill is that the existing guidance is not having the impact the Government expected and that much more needs to be done. It is accepted that there is a need to move quickly on the publication of the statutory guidance and within 12 months of the Bill being passed. On drawing up of the guidance government plans to establish and consult an expert reference group, as well as a public consultation before it is published.

A date for the committee stage in the House of Lords has yet to be announced.

Jill Mason, Partner

CQC publishes report on sexual safety incidents on mental health wards

The Care Quality Commission have published its findings and recommendations following a review of sexual safety incidents on mental health wards.

The report starts with details of two lived experiences.

Its purpose was to:

• provide an overview of sexual safety incidents nationally;
• identify key themes; and
• enable the sector to come together to prevent incidents and to share good practice around upholding sexual safety and responding to incidents.

It was triggered by a mental health trust being slow to act in respect of a requirement notice issued in respect of mixed sex accommodation. This led CQC to examine how often mental health trusts report sexual incidents.

Analysis of the incidents are found at pages 8 – 12.

Learning and recommendations for action are found at pages 13-18. 

Their eight recommendations for action are set out at pages 20 – 21; they include:

• A need for national guidance on sexual safety on mental health wards.
• Clinical leaders in provider services should support best practice to prevent and respond proactively to sexual safety incidents.
• Staff working on mental health wards should have access to learning and development opportunities so they can better assess patient risk.
• The process for reporting and learning from sexual incidents on mental health wards should be strengthened.

Jill Mason, Partner

Royal College of Anaesthetists ‘fully accept’ recommendations made by HSIB

The 13 September 2018 saw the publication of the Healthcare Safety Investigation Branch’s latest report.

This one focuses on the administration of a nerve block to the wrong leg during orthopaedic surgery on a patient’s right ankle.  A popliteal nerve block was to be administered followed by a saphenous nerve block. The first block was administered correctly but the second was carried out on the left leg in error. A check was not carried out before administration of the second block.

HSIB make seven findings in respect of the national Stop Before You Block (SBYB) campaign and two safety recommendations. 

Chapter four discusses the treatment in detail with chapter five setting out their findings and analysis relating to both SBYB and distractions in the anaesthetic environment.

HSIB’s investigators make recommendations to the Royal College of Anaesthetists

• The RCoA establishes a specialist working group to evaluate current practices used to reduce wrong site block incidents. This group should consider how safety initiatives to reduce wrong site blocks can be standardised in anaesthesia training and practice. 
• The RCoA ensures any further work identified is subject to human factors-based testing and evaluation.

You can read the full report here and the RCoA’s press statement here.

Jill Mason, Partner

Review of suicide-related claims finds room for improvement across the NHS and mental health services

NHS Resolution has published a review of 101 claims relating to suicide between 2015 and 2017.

Key findings included:

• Risk assessments were often inaccurate, poorly documented and not updated regularly enough.
• Observation processes were inconsistent.
• Communication with families was poor.
• Evidence of poor quality serious incident (SI) investigations:
  • The family were involved in only 20 per cent of investigations; and
  • The recommendations were unlikely to stop similar events happening in the future.

Nine recommendations are made

• Referral to specialist substance misuse services should be considered for individuals presenting with an active diagnosis of substance misuse.
• There needs to be a systemic and systematic approach to communication, which ensures that important information regarding an individual is shared with appropriate parties. Trust boards should consider how communication is best enabled within their existing systems and prepare to adapt to new models of care, which should include working models to facilitate communication across services.
• Risk assessment should not occur in isolation. Risk assessment training should enable high quality clinical assessments and this training should be repeated every three years and should be reviewed regularly during clinical supervision.
• The head of nursing in every mental health trust should ensure that all staff undergo specific training in therapeutic observation.
• NHS Resolution should continue to support both local and national strategies for learning from deaths in custody.
• Department of Health and Social Care, Healthcare Safety Investigation Branch, NHS Improvement and Health Education England should consider creating a standardised and accredited training programme for all staff conducting SI investigations.
• Commissioners should take responsibility for ensuring that families and carers are included in all SI investigations.
• The following mechanisms to support staff are considered: 
  • SI investigator to keep staff members up to date and the trust legal team should inform them of whether they will be called to coroner’s court as soon as this information is known.
  • Formal follow up points to “check in” with staff involved in an SI.
  • A system for monitoring and alerting managers when staff have been involved in more than one SI in close succession.
• Addressing the inconsistencies of the prevent future deaths (PFD) process nationally.

More detail relating to inquests, conclusions and PFD reports can be found at pages 22 – 24.

Five clinical themes of substance misuse, communication, risk assessment, observations and prison health can be found at pages 38 – 87.

There is also a short section on staffing levels, continuity of care, joint working and clinical environment at pages 83- 87.

Part 2 of the report considers SI reports (pages 88 – 131). It considers root causes and why they were not really root causes, basic mistakes in reports, provides examples of how recommendations could be improved and considers better sharing of learning.

Some striking quotes within the report

Bereaved parent – “It’s like a bit of me has died along with him”.

Psychiatrist – “I can vividly remember each patient that I have cared for that has gone on to take their life. They haunt you, flashing into your thoughts when you are having breakfast or watching a film. They fade with time, but they are still there, an ever present reminder of the part of our job nobody likes to talk about”.

Do take a look at our website for further information on inquests. 

We offer bespoke training on both inquests and serious incident investigations; so please do not hesitate to get in touch if you are interested in finding out more.

Jill Mason, Partner

Time saving measure for primary care and secondary care providers – but will it work?

A new agreement to scan and store GP records and hospital patient records on Amazon’s Web Services cloud platform has been revealed.

The agreement between NHS Business Services Authority (an Arm’s Length Body of the Department of Health and Social Care) and AWS would see GP “Lloyd George” files and hospital patient records uploaded to AWS’s cloud platform. A move which sees a growing number of healthcare providers using AWS’s utility-based cloud services to process, store, and transmit protected health information.

News of the arm’s length body’s latest initiative has received a lukewarm response from NHS IT officials who told the Health Service Journal that “scanning large volumes of historical paper records was not a good use of scant IT funding, with only select files, such as images, usually needed for future treatment.” 

In an interview with the HSJ, Martin Kelsall the director of primary care services at NHSBSA told the journal that “the scanning service was not about digitising records as much as freeing up space taken by paper records and cutting costs.”

We understand the authority is currently working with a provider in the South West of England and a clinical commissioning group in the North East of England scanning patient records and GP records.

Stuart Knowles, consultant

West Midland health and care providers to benefit from the 5G pilot

We learnt earlier this week that Government funding to the tune of £50m is coming to Birmingham, Coventry and Wolverhampton, to fund part of the 5G Test-bed and Trials Programme.

The benefits of 5G are essentially speed and capacity: it is billed as being able to transmit more data per second, which translates to faster and more capable mobile data compared with 4G. 

5G offers something for most sectors including the health and care sector. To find what 5G has to offer the sector, head over to our technology law blog.

Health digital economy to get new code of conduct

On Wednesday, the Department of Health and Social Care published a code of conduct for data-driven health and care technology following concerns that the current system is overly complex and confusing.

Launching the new code at the Health and Care Innovation Expo in Manchester, Health minister Lord O’Shaughnessy explained the code has 10 principles setting out how the Government will make it easier for companies to work with the NHS and what the NHS expects in return.

The stated aim is to make it easier for data-driven technology suppliers to understand what is needed from them, and to help health and care providers choose safe, effective, secure technology to improve the services they provide.

The UK currently does not have a trusted, “Kitemark”, scheme for digital health and care products. Although the code acknowledges the NHS Apps Library represented a first attempt to apply this type of approach to technology products. However, the Government recognise the need for “a more rigorous and sophisticated” approach.

The code is voluntary but organisations are encouraged to sign up to the code before the final version is agreed and published in December. There is a questionnaire for innovators and suppliers of digital technology, health and care providers, and other organisations in the sector to complete.

Alongside the code, the Government is conducting a formal review of the regulatory framework and assessing commercial models used in technology partnerships. 

Stuart Knowles, Consultant

Mental health continues to be an area of focus for universities

As universities prepare to welcome the next student intake, making students aware of the range of support available to them, including mental health support, will be high on their list of priorities for induction.

The anniversary of the Step Change guidance issued by Universities UK (UUK) is a good time for universities to review how far they have come with embedding good mental health practice across all their activities.

One area highlighted by the UUK Step Change Framework is working in partnership with local NHS mental health services to:

• develop regular high level links;
• develop local strategies and action plans on student mental health;
• encourage an integrated approach of university support services with local primary care and mental health services; and
• ensure signposting.

As a firm we have substantial experience in both the higher education and healthcare sectors and appreciate the importance of these issues from a range of perspectives.

To find out more, head over to our sister blog fusion.