Mills & Reeve: Health and Care Update

NHSX Covid -19 tracing app: What are the issues?

For a great insight into the data protection and technological issues around the NHSX App please do take a look at this blog from our new Partner, Jagvinder Singh Kang.

The Court of Protection must not be placed in ‘lockdown’

Key messages from the Vice President.

In his letter dated 4 May 2020, the Vice President of the Court of Protection, Mr Justice Hayden, responds to views expressed that the added pressures on society in the face of the Covid-19 pandemic health crisis must mean a relaxation of the protection of individuals’ rights under the Mental Capacity Act 2005 he says:

“The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.” [emphasis original]

The Vice President has made it clear that any suggestion that the adherence to proper legal process and appropriate authorisation of an individual’s deprivation of liberty may need to take a backseat to other pressing welfare priorities is “…entirely misconceived”.

Mr Justice Hayden confirms that there has been a “…striking and troubling drop in the number of Section 21A (MCA 2005) applications” to the court as well as a “…significant reduction in referrals to advocacy services” during the current crisis.

The Vice President in his correspondence, dated 4 and 11 May 2020, to stakeholders and practitioners alike can be read in full here and here.

We set out some the headline points as follows:

1. The Vice President’s view that individual assessment of capacity can be conducted ‘remotely’ with both competence and fairness in the vast majority of cases with the “key” involvement of carers and an individual’s (P) family.

2. The announcement on 23 March 2020 of the formation of the COP Hive Group where the Vice President refers to the work done by the group so far in summary as follows:

“The group has met three times since its formation, with regular communication between members between meetings.  Its immediate focus was upon developing guidance for remote hearings, promulgated on 31 March 2020; That guidance is being kept under review, mindful of the need to balance the changing demands of the situation with not swamping already overloaded practitioners (and judges) with too many documents. The group has also had sight of, and via the Vice – President, approved the guidance on advocacy at remote hearings prepared by the Court of Protection Bar Association (6 April 2020) reflecting the very specific demands imposed upon both practitioners and the judiciary by the constraints of remote hearings.”

        You can read an earlier article by one of my colleagues’, Katrina McCrory, about the first fully contested remote hearing in which we were involved at the onset of the current crisis.

3. The need for the court to achieve a transparent process while sitting remotely.

4. The need to try to continue to ensure the involvement and participation of P in the court process.

To conclude, I think it is particularly important to refer to the following wording contained in the Vice President’s correspondence when he refers to those who are subject to litigation in the CoP:

“The protection afforded to this group of people by the Mental Capacity Act 2005 is constructed in a way which promotes autonomy, guards liberty and seeks to identify best interests.  It requires to be said, in terms which permit of no ambiguity, that these principles have, if anything, enhanced importance in times of national emergency.” 

Associated Guidance

Guidance from Ms Lorraine Currie, professional lead for Shropshire Council (who is referred to in Mr Justice Hayden’s correspondence) can be accessed follows:

1. Measures to manage DoLS authorisations during Covid-19; and
2. Assessing mental capacity in different ways during Covid-19.  

Additionally the Court of Protection Bar Association guidance on Effective Remote Hearings dated 8 April 2020 can be accessed here.

The healthcare team is extensively involved in CoP proceedings principally acting on behalf of NHS commissioners and both public and private sector providers of health and care  – don’t hesitate to get in touch if we can be of any help or assistance.

Kevin Duce

CQC’s first insight report on the impact of COVID on the adult social care sector

Taking its toll on staff and the financial viability of the sector.

Care staff working in the ASC sector report low morale, feeling ‘undervalued compared to their healthcare counterparts’ with some registered care home managers reported suffering from ‘burn out and extreme anxiety’. The regulator’s report also states that inspections teams are dealing with “…an increase in care home managers suffering from distress due to multiple deaths and financial worries.”

And this was a sector under pressure even before the pandemic...

The regulator’s COVID insight report is the first in a series of reports assessing the impact on the health and social care sector.

Focusing on adult social care, the report reviews data on outbreaks, deaths and availability of PPE and, in particular, highlights the impact of the crisis on staff wellbeing and the financial viability of ASC services.

According to its report, the financial concerns for ASC services were highlighted in the CQC’s Market Oversight report in March 2020 where it explained that:

“…any further shocks to the labour market would be expected to increase the existing level of market fragility, place more pressure on local authority finances and possibly increase unmet care needs.”

There are also reports of some providers ‘struggling’ financially with the cost of PPE, including having to pay ‘inflated costs’ to source what they ‘desperately’ need is an issue for the sector.

In addition, the CQC have heard concerns over insurance companies informing providers that, if they knowingly took COVID-19 positive patients, they would be in breach of their insurance.

Equally, some providers needing to renew their insurance have been unable to do so – with the “…risk that they may have to move residents elsewhere if this can’t be found.”

At a recent LaingBuisson webinar on risk and liability where we heard from Philip Dearn, Healthcare Practice Leader at Marsh he explained:

"Unfortunately for the care sector in particular covid-19 is having a very negative impact from an insurance buying perspective and as many providers look at future ways of managing risk and the business impact of the pandemic this creates another unwanted challenge.”

Dearn suggested that some insurers were looking at premium increases of as much as 50 percent – providers would do well to have early conversations with their insurers.  

On an upward note, Kate Terroni, CQC’s Chief Inspector of Adult Social Care, said:

“There are excellent examples across the country of good joined-up care between health and social care professionals working together to keep people safe.

… We’ve also heard of CCGs working with local authorities to provide all local care homes with an iPad and video conferencing so that GPs can do virtual ward rounds in addition to physical visits. 

However, some providers are telling us that community health support has been reduced as the coronavirus response has resulted in resources being diverted elsewhere. As acute services start to move towards a more stable position, the community health offer –both to care homes and people who have care and support needs met in their own homes –must be a priority.”

Amanda Narkiewicz

Stepchange: mentally healthy universities

To coincide with Mental Health Awareness Week, Universities UK has published a refreshed call for action and framework guidance document, Stepchange: mentally healthy universities. Gary Attle, UK education and research sector lead takes a look at the refreshed framework, commenting that a university needs to develop its institutional-wide approach in collaboration with relevant external health and care organisations.

Six principles for working with the NHS are set out:

• Establish strategic links between health and higher education to consider joint needs assessments, integrated services and improved data sharing.
• Include higher education population in healthcare system needs assessments and commissioning.
• Promote better understanding of student and staff needs.
• Encourage effective working between universities and the healthcare system, including primary care, emergency care, secondary care, specialised care and the voluntary sector.
• Improve data sharing through agreements.
• Consider hosting, co-hosting or co-commissioning services.

Supporting these principles, university health system partnerships are referenced in Greater Manchester, Liverpool, Sheffield, North London and Bristol.

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.

Jill Mason

Injunctions in the Court of Protection – if there was any doubt remaining?

I have to confess that having dealt with CoP proceedings for a number of years, I had always proceeded on the basis of my own understanding that the court does have power to grant injunctions in its own proceedings.

If there was any doubt about that, this has now been dispelled by Mr Justice Keehan in his judgment in the case of SF (Injunctive relief).

The unequivocal answer is yes. The CoP does have power to grant injunctions in its own proceedings as stated in the judgment:

“31. The fact that Hayden J., now Vice – President of the Court of Protection, and a judge with the huge experience of Cobb J. take the view that the Court of Protection does have the power to grant injunctions to support and ensure compliance with its best interests decisions and its orders is very persuasive.

32. Having had the benefit of counsel’s submissions and the time to reflect on the authorities cited to me, I am now persuaded that the Court of Protection does indeed have power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.”

In his 15 page judgment, Mr Justice Keehan clearly and succinctly sets out the law and his discussions and confirms at paragraph 33 why he arrives at his decision as follows:

1. Section 47 (1) of the Mental Capacity Act 2025 (MCA) is drafted in wide and unambiguous terms.

2. It must follow that the CoP has the power which may be exercised by the High Court pursuant to section 37 of the Senior Court Act 1981.

3. He states that his conclusion is fortified by the terms of section 17(1)(c) of the MCA which permits the court to prohibit contact between a named person and P.

4. He states that he is further fortified in his view by the provisions of sections 16(2)(5) of the MCA which are drafted in wide terms and enable the court to “…make such further orders or give such directions … as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…made by it under subsection (2)”.

5. The CoP Rules 2017, Rule 21 and Practice Direction 21A, make provision for the enforcement of orders made by CoP including committal to prison for proven breaches of court orders.  

In addition, it is perhaps significant to note that Rule 21.9  sets out the requirement for a Penal Notice to be attached to judgments and orders and states as follows:

“ 1. A judgment or order which restrains a party from doing an act or requires an act to be done must, if disobedience is to be dealt with by proceedings for contempt of court, have a penal notice endorsed on it …”  

In my view, that Practice Direction must have been written in contemplation of the CoP having an existing jurisdiction to grant injunctive relief in proceedings.

What was the issue in SF?

SF was a young lady of 20 who had autism and learning disabilities and lived in a supported living placement.

In September 2019, her care and support provider became aware that she was communicating with a number of men via social media and the internet and that some of these men were visiting the placement and having sexual relations with her. 

Only one of these men, at the time of the proceedings had been identified – and he was joined as party to the proceedings, referred to as “VK”. He was joined for determination of the limited issue of his continued contact with SF and his sexual relations with her.

The local authority applied for an injunction against VK to prohibit him from attending SF’s accommodation. In the context of this application, the question of whether the court had the power to grant the required injunction against VK in SF’s best interests was raised.

It is perhaps trite to say that the court accepted that SF lacked specific capacity in a number of areas and that it had jurisdiction to make best interest decisions on her behalf.  Although strangely, the judgment makes no reference to SF lacking capacity to make decisions about the contact she has with others, including capacity to consent to sexual relations.

The judgment does refer to previous cases where the CoP granted injunctive relief to protect vulnerable incapacitous adults from harm and sexual exploitation by others (paragraphs 25-29). You will note that those previous cases were presided over by Mr Justices Hayden and Cobb.

Supporting you

The healthcare team is extensively involved in CoP proceedings principally acting on behalf of NHS commissioners and providers  – don’t hesitate to get in touch if we can be of any help or assistance.

Kevin Duce

'Covid-secure' in non-clinical settings

Yesterday (11 May), the Government published Our plan to rebuild: The UK Government’s COVID-19 recovery strategy. The document, which contains an outline plan for a three stage phased reopening of the country, explains that we are entering stage two of that plan, and that businesses not required to close by law should be open and that people unable to work from home should be encouraged to return to work.  

Employers, who have a statutory duty to exercise all reasonably practicable steps to ensure the health, safety and wellbeing of their employees, must now ensure that workplace health and safety arrangements include arrangements that minimise the transmission of coronavirus. Failure to do so will be in breach of the statutory duty, which is a criminal offence.  

The Government has published the COVID-19 Secure guidelines to assist employers in this task.  The guidelines consist of eight separate documents, each corresponding to a different workplace environment.

Each is reported to have been produced "…in consultation with industry experts to help ensure the various categories of workplaces to which they relate are as safe as possible".  The Government claims the guidelines are based on sound evidence:  "…from what has worked elsewhere in the world, and the best available scientific theory."

The eight workplaces for which guidelines have already been published are as follows:  

• Construction and other outdoor work
• Factories, plants and warehouses
• Homes 
• Labs and research facilities
• Offices and contact centres
• Restaurants offering takeaway or delivery
• Shops and branches
• Vehicles

Health and care organisations

There is no specific guideline provided for health and care providers, which have, of course, remained operational to date.  However, there will be some aspects of a care operator’s organisation that may by analogy now be covered by this guideline. For example, all hospitals will have a significant number of office areas, operate labs and use vehicles daily.  They may also still be operating catering / retail facilities. Those areas will now need to have regard to these new guidelines.

Although the guidelines are detailed, they are still ‘high level’ and so not a 'one-stop' solution.  They should form the basis for any safe system of work, but they will not replace the need for an employer to conduct its own assessment of risk or to come up with and implement its own safe system of work tailored to its unique operational circumstances.  For example, the guidelines do not help an employer determine how frequent cleaning should be, or what ‘safe’ arrangements for essential face-to-face working look like;  mechanisms for achieving the stated objectives, such as staggering work hours to reduce employee contact or providing pop-up wash stations to facilitate increased hand washing, are not always mentioned. 

The main thrust of the Government’s approach is to maintain social distancing in the workplace.  That will apply equally to healthcare staff when they are outside of the clinical environment.

As regards Personal Protective Equipment, save for in clinical settings, like a hospital, or a small handful of other roles for which Public Health England advises use of PPE, (for example, first responders and immigration enforcement officers), its use as a tool to minimise transmission of COVID-19 is not recommended by the guidelines, which state:

“Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19.  Unless you are in a situation where the risk of COVID-19 transmission is very high, your risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited.  However, if your risk assessment does show that PPE is required, then you must provide this PPE free of charge to workers who need it. Any PPE provided must fit properly.”

It is worth noting, though, that certain cleaning tasks will require the availability of certain PPE (see separate published guidelines, on cleaning, here).

HSE have produced guidance to assist with practical controls which employers might introduce and also to assist employers to consult effectively with their workforce. You can view the guidance here. We recommend considering these in conjunction with the COVID-19 guidelines. 

Any employer wishing to depart from the guidelines will need good reason for doing so and will need to be able to demonstrate that any alternative arrangement is fit for purpose.

If you would like bespoke health and safety advice or would like to discuss anything in the new guidelines do get in touch with Samuel Lindsay or Duncan Astill. 

New medical devices regime delayed to May 2021

EU legislation to introduce a new regulatory system for general medical devices (the Medical Devices Regulation) was to have taken effect from 26 May 2020. However, a delay of 12 months was thought appropriate to reduce pressure on regulators and businesses, and to avoid the interruption of medical equipment supply chains, during the current crisis. 

Delaying legislation in the form of a short amending Regulation has passed through the necessary procedures at lightning speed. The new system will become mandatory for general medical devices from 26 May 2021.

As well as putting back the date for full roll-out of the new system, the legislation provides support for emergency approvals of products necessary for combating the pandemic.

For further information, head over to our sister blog, Life science law.

Reporting when a healthcare professional contracts COVID-19

The Health & Safety Executive have published guidance on the application of the Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) during the current pandemic.

A report under RIDDOR is required when:

• an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This is a dangerous occurrence and does not need the worker to actually contract COVID-19 – possible exposure is enough. Lapses in control measures, such a failure in PPE or non-compliance with procedure is enough.
• a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This will be most likely be the case for health and care workers who contract the disease after caring for an individual with known disease.
• a worker dies as a result of occupational exposure to coronavirus. Where a report has already been made following a worker contracting the disease, a further report under Regulation 6 will be required.

Not reporting is a criminal offence and applies to all employers.

Duncan Astill

Guidance from the Department: Coronavirus Act 2020 status

It is some six weeks since the emergency legislation received Royal Assent having been fast tracked through Parliament over three days.

As readers will know it provides for a relaxation of a number of provisions involving the healthcare sector during the coronavirus outbreak.

Today the Department of Health and Social Care published a table setting out the status of the provisions in the Act, detailing whether each of the sections of the Act are in force and for the months to come and whether they are suspended or revived.

Here’s a heads up on some of the key provisions

• Mental health and mental capacity – a number of the temporary modifications are not yet in force in relation to England.
• Health service indemnification – these provisions are still in force.
• NHS and local authority care and support – this covers NHS Continuing Healthcare (still in force) and local authority duties around the provision of adult social care (the Care Act easements) and these came into force on 31 March.
• Registration of deaths and stillbirths including confirmatory medical certificates not required for cremations came into force on 26 March. 
• Inquests and the suspension to hold an inquest with a jury remain in force.
• Temporary continuity: education, training and childcare – still in force.
• Powers in relation to transportation, storage and disposal of dead bodies etc – also remain in force.

Support for care homes: re-use of medicines during the COVID-19 pandemic

The Department has issued new guidance for care homes and hospices about using medicines labelled for one patient who no longer needs them for another patient: Coronavirus (COVID-19): re-use of medicines in a care home or hospice. The recommendation has been made to help ease pressure on medicines supply during the coronavirus outbreak.

The guidance sets out the standard operating procedure (SOP) for running a medicines re-use scheme – it provides “a framework to run a safe and effective medicines re-use scheme that is in the best interest of patients”.

SOP: key points to note

• The scheme only applies for the duration of the COVID-19 pandemic.
• A risk assessment must be carried out on an individual medicine basis – three factors must be considered during the assessment:
  • No other stocks of the medicine are available in an appropriate time frame (as informed by the supplying pharmacy) and there is an immediate patient need for the medicine.
  • No suitable alternatives for an individual patient are available in a timely manner i.e. a new prescription cannot be issued, and the medicine(s) supplied against it in the conventional manner quickly enough.
  • The benefits of using a medicine that is no longer needed by the person for whom it was originally prescribed or bought, outweigh any risks for an individual patient receiving that unused medicine.
• Each medicine, including controlled drugs, must be checked that it is suitable for re-use and by a registered healthcare professional.
• Records should be kept, including details of the registered healthcare professional who performed the check on suitability for reuse (Annex B includes a template log for care homes and hospices)
• Re-use should only be within a single care home/hospice setting and should not be transferred to another care home or hospice, even those within the same parent organisation.
• Written permission from all patients must be obtained before a decision can be made to re-use a medicine.
• Once a decision has been made to re-use a medicine, then medicines re-use pathway (summarised in the flow chart in section 4, page 12 of the SOP) should be followed.

A lot to digest – do get in touch with Amanda Narkiewicz if you have any questions about adopting the new scheme in your care home setting.