Mills & Reeve: Health and Care Update

Religious observations for adults lacking capacity

A new decision from the Court of Protection provides helpful guidance on religious observation for those adults lacking capacity. The judgment in Re IH (Observance of Muslim Practice) will be of interest to providers and commissioners involved in the placement and funding of care packages for adults who lack capacity and where issues relating to religious beliefs and values feature. While each case has to be assessed on its facts, this case provides helpful guidance.

Facts and the issues

The case concerns the religious customs and rituals of a Muslim family. IH has been raised by his family as a Muslim but due to his profound learning disability resides in a supported living environment which is provided by the local authority but funded by the clinical commissioning group. The issues relate to IH’s general observance of religious custom and practice while in his supported care home. Specifically, the adherence to fasting during Ramadan and the trimming of body hair in accordance with Islamic cultural and religious practice.

Issues of capacity were not disputed within these proceedings.

The court was focused on what was in IH’s best interests – it had regard to the statutory guidance within the Mental Capacity Act 2005, the guidance offered by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James and expert evidence on religious and cultural practices within Muslim life.

There was consensus amongst the parties to the proceedings that it was not in IH’s best interests for him to be expected to fast during the month of Ramadan. This was because the absence of food/ water would be likely to cause him stress, or distress; it could have caused him to become irritable and/or aggressive increasing the risks to staff and himself. There was also some minor anxiety that fasting and/or mild dehydration would increase the side effects of any one of his multiple medications.

As to the court’s determination in respect of the trimming of body hair, the judge concluded it was not in IH’s best interests – paragraphs 33 and 34 of the judgment set out some helpful points of principle to be followed in such cases.

“33. Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P's access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. While no specific protection in this regard appears to be offered by the UNHR Convention on the Rights of Persons with Disability, the rights enshrined in the ECHR (above) "are for everyone, including the most disabled members of our community".

"34. The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable "the beliefs and values" of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values. This is illustrated in the instant case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or the significance of the source and/or preparation of the food. The Local Authority recognise the need to respect IH's religion.”

Key takeaways for providers and commissioners  

• Ensure care packages for persons lacking capacity take into account religious observance and customs.
• Ensure that religious practices/rituals are assessed to ensure that there is a benefit to the incapacitated adult balanced against any avoidable risks associated with the ritual to both the incapacitated adult and his or her carers.

Do get in touch if you have any tricky best interests cases, we have a friendly and knowledgeable team.

Helen Burnell, Principal Associate

Guidance for employers dealing with whistleblowers making protected disclosure

A recent Court of Appeal decision has reminded us that employers should not allow views about whistleblowers to cloud their judgement – the comments were made in an appeal which involved a hospital doctor who had been dismissed for making complaints about unsafe working conditions. To find out more, you can read a recent post on our sister blog, hr law live.

The future of mental capacity and deprivation of liberty - a report on the Law Commission's three year review

The Commission’s report and draft Bill has been published so we now await the new Government’s response to the recommendations.

For those of you who have yet to get up to speed with the 47 recommendations and the Law Commission’s replacement scheme for DoLS – the Liberty Protection Safeguards - 39 Essex Chambers has published a special report on the Commission’s Mental Capacity and Deprivation of Liberty report. The special report includes a detailed summary of the key aspects of the new Liberty Protection Safeguards scheme, an overview of the draft Bill and the new provisions to the Mental Capacity Act.

You can read the special report here and you can also catch up with the audio and slides from Alex Ruck Keene’s briefing.

Do get in touch if you have any questions about the newly proposed Liberty Protection Safeguards - but with the general election in full flow we will have to await the new Government’s response.

Helen Burnell, Principal Associate

Updated guidance for NHS providers on the new off-payroll working rules

Since 6 April 2017, the new off payroll working rules have changed the way the public sector engages contractors who provide services through personal service companies (PSCs) and other relevant intermediaries. The tax rule change has shifted the responsibility for determining whether or not the individual providing the services is an employee for tax purposes from the PSC/relevant intermediary to the public authority. If the determination is that the individual is an employee for tax purposes and the public authority is the ‘fee payer’ under the off-payroll working rules (i.e. it contracts with the PSC/relevant intermediary directly and not through a third party, such as an agency), the public authority must operate PAYE to deduct tax and National Insurance contributions at source from payments to the PSC/relevant intermediary. Our earlier blog post sets out further information on the new rules.

In its latest update published on 30 May 2017, NHS Improvement has revised its previous guidance to NHS providers that all locum, agency and bank staff should be put on the payroll. Their updated guidance recognises that this blanket approach was “not accurate” and emphasises that providers have a legal obligation to consider the individual circumstances of the person providing the services in each case.  

NHSI advises that “an assessment of whether or not IR35 applies should be carried out in a fact-specific way; that is, it should be applied on a case-by-case basis, rather than by a broader classification of roles.” Such assessment must be fair, accurate and take into account all relevant factors, including representations provided by the individual concerned. NHSI expects providers to ensure that all locum, agency and bank staff are taxed appropriately following a careful assessment of their individual circumstances, in accordance with their legal obligations.

The guidance highlights HMRC’s online tool to help providers determine whether an individual should be considered employed for tax purposes (but points out that the tool does not negate the need for careful case-by-case scrutiny). You can access the link to HMRC’s tool here.

Do get in touch with Jog Hundle or Stuart Craig if you have any questions about complying with your IR35 obligations – as failure to correctly assess the worker contract (and/or comply with certain other obligations under the new rules) could result in additional tax liabilities for providers.

Deaths reported to coroners in 2016 - numbers creeping up

The 2016 annual coroners’ statistics are the highest to date with 241,211 deaths reported to coroners in England and Wales. This is an increase of two per cent from 2015 reflecting the increase in the number of deaths under Deprivation of Liberty Safeguard (DoLS) authorisations reported to coroners. It is worth noting that the number of inquests opened in 2016 increased by 18 per cent – mainly driven by the increase in deaths while subject to DoLS with all such deaths requiring an inquest. However the recent law change now removes the DoLS inquest duty. From 3 April 2017, coroners will no longer be required to hold an inquest automatically if a person dies while subject to a DoLS.

Coroners’ statistics 2016 – other key findings?

The report contains lots of interesting statistics and charts these include:

• Deaths in state detention (excluding DoLS) saw an increase of 19 per cent, with the largest increase seen in deaths while detained under the Mental Health Act (252 - up by 34 per cent) and deaths in prison (298 - up by 14 per cent). See Figure 3 on page 14.
• 40,504 inquests conclusions were recorded in 2016, up by 14 per cent from 2015 figures – in part, a reflection of the number of inquests opened but noted to be the highest number of inquest conclusions recorded since the statistical series began in 1995.
• Looking at inquest conclusions, the short form accounts for almost 68 per cent of all conclusions recorded with natural causes (39 per cent), accident and misadventure (19 per cent) and suicide (9 per cent).
• The majority of conclusions relating to deaths of individuals subject to DoLS authorisations was natural causes (94%).
• There is a wide variation in the number of inquests opened (as a proportion of deaths reported to coroners) ranging from eight per cent in Stoke-on-Trent and North Staffordshire to 40 per cent in North Tyneside.

It will be interesting to review the coroner statistics for 2017 given the changes the Policing and Crime Act 2017 (section 178) make to coroners’ investigations into deaths occurring on or after 3 April 2017 in deprivation of liberty cases.

Jill Mason, Partner

To share or not to share – patient sensitive information

Can ‘Vanguards’ do it?

NHS England recently published Next Steps on the NHS Five Year Forward View. Vanguards are referenced throughout this document. As they develop the question arises as to whether and, if so, how, autonomous trusts within vanguards can share patient sensitive information. More to the point, can they share such information electronically? Can vital patient information from one trust be made immediately available at the point of care by another trust? You would think so, but it is not so simple!

Many of the vanguards are credited within the NHS for containing organisations already at the cutting edge of health and social care. More efficient and effective sharing of patient information must be the ‘sine qua non’ for better, safer and more efficient delivery of care. These vanguards have a reputation for developing new approaches to better meet the needs of local communities.

But, in the era of public anxiety about data sharing and confidentiality, organisations must have actively considered and recorded a clear lawful basis for sharing and back this up by an information sharing agreement to protect themselves and patients. Technical and commercial issues must be addressed and agreed. The application of the Data Protection Act 1998 and the EU General Data Protection Regulation must be addressed.

In our view, they can be. Regulators (such as the ICO) can be properly assured that best practice is in hand. With proper planning and advice vanguards (and other health and care providers) should be able to put proper systems and protections in place to make it happen and deliver better, safer and integrated health care.

Want to know more about how you can do it? Contact Stuart Knowles or David Hall.

Surgeons back reforms for “an equal focus” on patient safety in both the NHS and private healthcare

On 17 May 2017 the Royal College of Surgeons published a three page open letter calling for a review of patient safety standards and transparency in private hospitals following the trial of Ian Paterson.

This is not the first time that there has been a call for greater transparency about the quality of healthcare in the private sector – the issue was raised in a report, Patient Safety in private hospitals – the known and the unknown risks by the Centre for Health and the Public Interest, a health think tank, back in August 2014. The Royal College expressed concern about “poorer public availability of patient safety and clinical data from private hospitals”.

The Royal College’s call for review of private sector transparency and safety standards, specifically seeks that the private sector should be:

• Expected to report similar patient safety data as the NHS, including data on unexpected deaths, never events, and serious injuries.
• Better at taking part in clinical audits (which they suggest could become a condition of all NHS and private organisations’ registration with the Care Quality Commission).

They also call for better regulation of cosmetic surgery which happens “almost entirely in the private sector”, including legislation to enable the General Medical Council to annotate the medical register with details of which surgeons are qualified to undertake cosmetic surgery.

The College makes it clear in its letter that it is “not suggesting” there is evidence of “less safe care” in the private sector compared with the NHS but that it is less transparent on reporting patient safety incidents.

We have now seen that Ian Paterson has been sentenced to 15 years imprisonment.

Post 8 June we will see what steps the Government take in light of these events. We will keep readers updated.

Jill Mason, Partner

NHS Continuing Healthcare under review by National Audit Office

The National Audit Office has announced that it will be conducting an investigation into continuing healthcare.

This latest review will be of interest to NHS Clinical Commissioning Groups who have primary responsibility for NHS Continuing Healthcare funding. NHS CHC is funded by the NHS and is not means tested; unlike social care support provided by local authorities for which a financial charge may be made to individuals, depending on their income and savings.

To qualify for NHS CHC funding individuals have to be assessed by CCGs according to a “legally prescribed decision making process” and under pinned by the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care to determine whether the individual has a ‘primary health need’. Typically NHS CHC provision might take the form of a care home placement or a package of care in the individual's own home or elsewhere. If an individual is eligible for care in their home this might include services from a community nurse or specialist therapist and associated social care needs such as personal care and domestic tasks. In a care home, the NHS pays for care home fees, including board and accommodation.

NAO’s investigation scheduled for Summer 2017

The investigation will set out the facts relating to NHS CHC in terms of :

• Who is eligible
• The number of people applying
• What the processes are and how long they take
• The financial costs to the NHS
• Equity of access

NHS CHC is widely acknowledged as a complex area - CCGs, local authorities and practitioners alike will be keen to hear the outcome of this review. In the meantime, do get in touch if you have any NHS CHC questions – we have an experienced and friendly team at hand.

Jill Mason, Partner

Assisted dying case back in court on 17 July 2017

The Noel Conway v Ministry of Justice case has been listed for a full five day hearing starting in July – according to Dignity in Dying who are supporting Mr Conway’s case. This is not the first case that has attempted to change the law to allow assisted dying. Noel Conway’s case follows a line of cases involving broadly similar issues including the highly publicised cases of Tony Nicklinson and AM which readers may be familiar with. Mr Conway suffers from motor neurone disease and his wish is to decide the timing and manner of his death when he is in his final six months of life.

We will update you following the outcome of the hearing.

Helen Burnell, Principal Associate

Top tips from ICO on keeping personal data safe in community pharmacy settings

The ICO has published its findings from its work relating to community pharmacies – these findings are intended to promote good data protection practices and guidance for the community pharmacy sector. While there was a wide variation across individual pharmacy organisations, the ICO found that “generally staff and organisations have a good awareness of the requirement to keep personal data safe and confidential and are motivated to do so”.

The study sets out the areas where community pharmacies are doing well, as well as highlighting the common problems and areas for improvement, and includes further guidance and advice to help organisations improve their information governance and data protection practices.

With the expansion of services being offered by the community pharmacy sector, and the recognition that community pharmacies and their staff process a “significant amount of highly sensitive personal data” getting data protection practices right is of paramount importance. Failure to do so can lead to serious consequences from an ICO investigation to reputational damage and serious loss of business.

One of the main observations was that it was “rare for an organisation to be consistently successful” in all the areas of data processing. Ongoing training was identified as one of the hardest to achieve successfully in smaller settings where resources may be more limited, but was highlighted as a key area of focus to ensure staff are not breaching the Data Protection Act.

Recommendations for improvement  

• Ensure that all computers that are processing sensitive personal data and connected to a network are upgraded to a supported operating system.
• Ensure no networked computers are unprotected from cyber-attacks or malware.
• Implement a mechanism for “safe haven” procedures to maximise the secure use of fax machines where there are no other alternatives and their use remains necessary.
• Rollout the use of individual user logons for all systems that contain patient identifiable data to enable a full audit trail of view and change events to a patient’s record.
• NHS Smart Cards should only be used by the registered holder.
• Policies and procedures need to be in place to:
  • control the removal of personal data from the pharmacy
  • monitor staff for compliance with standards
  • identify which records are to be retained and destroyed securely
  • ensure compliance with marketing consent legislation and the relevant record keeping required  

What’s next?

The latest cyber-attack on hospitals and GP services is a reflection of how much bigger and more sophisticated these attacks have become. The threat to patient safety is real. Do get in touch if you would like support with getting your information governance policies up to date including in-house training.

Dawn Brathwaite, Partner