Mills & Reeve: Health and Care Update

New NHS patient safety strategy: The ‘golden thread’

The idea of the ‘golden thread’ isn’t new; Theseus followed a golden thread given to him by Ariadne to find his way out of the Minotaur’s cave in Greek mythology – and it has been used in many ways since then.

The Secretary of State asked NHS England and NHS Improvement to develop a new Strategy for Patient Safety as a ‘golden thread’ running through healthcare. A consultation was launched in December 2018 with a set of ideas – in excess of 500 responses were received from organisations and individuals (staff, patients and carers). The final strategy – the first of its kind was launched at the Patient Safety Congress earlier this month.

Described by Aidan Fowler, NHS National Director of Patient Safety in his foreword as a “collective intent” to improve safety recognising that improvements are required in the way we learn, treat staff and involve patients. The intent is that it will be adapted over time with an update published annually every summer.

This strategy will sit alongside the NHS Long Term Plan and the LTP implementation framework published in June. There is also a cross reference to the independent sector at pages 43 and 44 of the strategy document.

Getting patient safety right could save 1,000 extra lives and £100 million in care costs each year from 2023/24

Simply put the strategy is about: “maximising the things that go right and minimising the things that go wrong” for people that are experiencing healthcare. The strategy describes how the NHS will improve patient safety over the next five to ten years.

Getting the foundations for safer care right can be summed up using this simple formula: patient safety culture + patient safety system = safer care.

Three strategic aims will support the development of the patient safety culture and the patient safety system

So, the three “Is” are:

• Insight (pages 19 – 33): improving understanding of patient safety using multiple sources of patient safety intelligence

Within this strand of work, the new Patient Safety Incident Response Framework will replace the 2015 Serious Incident Framework – a framework that organisations have struggled to deliver according to national reviews, patients, families, carers and staff and an engagement programme in 2018.

The new PSIRF proposals include:

“A risk based approach:… organisations should develop a patient safety incident review and investigation strategy to allow them to use a range of proportionate and effective learning responses to incidents. The proposal is to explore basing the selection of incidents for investigation on the opportunity they give for learning...”.

“Governance and oversight: taking a different approach…emphasising the role of provider boards and leaders in overseeing individual investigations”.

New digital technologies are to be employed to support learning with National Reporting and Learning System / Strategic Executive Information System to be replaced with a new system.

This section also references the medical examiner system, the Healthcare Safety Investigation Branch and Getting It Right First Time.

• Involvement (pages 34 -44): up-skilling patients, staff and partners to improve patient safety

This is about creating new “patient safety partners” (PSPs), a recommendation made by Don Berwick’s when he said, “patients and their carers should be present, powerful and involved at all levels of healthcare organisations from wards to trust boards”. The aim is to have two PSPs by April 2021 in all safety related clinical governance committees.

Other initiatives are the development of a network of patient safety specialists in local systems and plans for a universal patient safety syllabus and training programme for the whole of the NHS – and arguably “it will have more impact than any other action this strategy”.  

There is also a commitment to better align patient safety standards between the NHS and independent sector healthcare with the adaptation of a “whole systems approach” to safety.

• Improvement (pages 45 – 61): designing and supporting programmes that deliver effective change in the most important areas

The strategy looks at a number of areas including medicines safety, maternal and neonatal safety, preventing deterioration and sepsis and mental health safety.

The graphic below summarises the NHS Patient Safety Strategy

Delivering the strategy – how?

The strategy document includes a matrix identifying the objectives, who will deliver this and by when at pages 64 – 72. There are actions for local systems, the national patient safety team, Health Education England, NHS England and NHS Improvement. For example, local systems are to set out in their LTP implementation plans how they will work to embed the principles of a patient safety culture and how they will implement the new PSIRF.

Chief executives and boards must ensure that they establish nonpunitive environments and systems for reporting errors within their health and care organisation – of critical importance will be developing the “just culture” of safety. The health and care system has seen a shift in culture in recent years to one that is more just, open and transparent – this has been supported by improved practice around whistleblowing and speaking-up culture.

How can we assist

We deliver risk management programmes and training so please do not hesitate to contact us to discuss this new strategy.

Jill Mason, Partner and Head of Health & Care

New guidance to help trusts deal with investigations and disciplinary procedures

What can HR teams and NHS Trust boards learn from the Amin Abdullah case.

NHS Improvement chair, Dido Harding has written to trust chairs and chief executives detailing the findings of an independent analysis by an advisory group following the very tragic death of Amin Abdullah in 2016. The letter includes guidance relating to the management and oversight of local investigation and disciplinary procedures and a call to action to review the guidance against current procedures and make adjustments to ensure your health and care organisation is in line with best practice.

The new national guidance on NHS disciplinary processes cover seven themes – implementing these across the NHS will contribute to ensuring we treat people fairly and protect their wellbeing.

The seven dos of investigation and disciplinary procedures:

1. Adhering to best practice

(a) “The development and application of local investigation and disciplinary procedures should be informed and underpinned by the provisions of current best practice, principally that which is detailed in the Acas ‘code of practice on disciplinary and grievance procedures’ and other non-statutory Acas guidance; the GMC’s ‘principles of a good investigation’; and the NMC’s ‘best practice guidance on local investigations’ (when published)."

(b) "All measures should be taken to ensure that complete independence and objectivity is maintained at every stage of an investigation and disciplinary procedure, and that identified or perceived conflicts of interest are acknowledged and appropriately mitigated (this may require the sourcing of independent external advice and expertise)."

2. Applying a rigorous decision-making methodology

(a) "Consistent with the application of ‘just culture’ principles, which recognise that it is not always appropriate or necessary to invoke formal management action in response to a concern or incident, a comprehensive and consistent decision-making methodology should be applied that provides for full and careful consideration of context and prevailing factors when determining next steps."

(b) "In all decision-making that relates to the application of sanctions, the principle of plurality should be adopted, such that important decisions which have potentially serious consequences are very well informed, reviewed from multiple perspectives, and never taken by one person alone."

3. Ensuring people are fully trained and competent to carry out their role

(a) "Individuals should not be appointed as case managers, case investigators or panel members unless they have received related up to date training and, through such training, are able to demonstrate the aptitude and competencies (in areas such as awareness of relevant aspects of best practice and principles of natural justice, and appreciation of race and cultural considerations) required to undertake these roles."

4. Assigning sufficient resources

(a) "Before commencing investigation and disciplinary procedures, appointed case managers, case investigators and other individuals charged with specific responsibilities should be provided with the resources that will fully support the timely and thorough completion of these procedures. Within the overall context of ‘resourcing’, the extent to which individuals charged with such responsibilities (especially members of disciplinary panels) are truly independent should also be considered."

5. Decisions relating to the implementation of suspensions/exclusions

(a) "Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, time bound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction."

6. Safeguarding people’s health and wellbeing

(a) "Concern for the health and welfare of people involved in investigation and disciplinary procedures should be paramount and continually assessed. Appropriate professional occupational health assessments and intervention should be made available to any person who either requests or is identified as requiring such support."

(b) "A communication plan should be established with people who are the subject of an investigation or disciplinary procedure, with the plan forming part of the associated terms of reference. The underlying principle should be that all communication, in whatever form it takes, is timely; comprehensive; unambiguous; sensitive; and compassionate."

(c) "Where a person who is the subject of an investigation or disciplinary procedure suffers any form of serious harm, whether physical or mental, this should be treated as a ‘never event’ which therefore is the subject of an immediate independent investigation commissioned and received by the board. Further, prompt action should be taken in response to the identified harm and its causes."

7. Board-level oversight

(a) "Mechanisms should be established by which comprehensive data relating to investigation and disciplinary procedures is collated, recorded, and regularly and openly reported at board level. Associated data collation and reporting should include, for example: numbers of procedures; reasons for those procedures; adherence to process; justification for any suspensions/exclusions; decision-making relating to outcomes; impact on patient care and employees; and lessons learnt."

Where next. Taking stock.

HR teams and trust boards need to review their health and care organisations current procedures and processes against the updated guidance, making sure it reconciles with the seven principles.

Dido Harding specifically draws trust chairs and chief executives attention to item seven: board-level oversight and asks them to consider how their organisation overseas investigations and disciplinary procedures.

In addition, for cases currently being considered and all future cases, Harding asks teams to consider five questions (and, where necessary take corrective action). The questions are set out in her letter of 24 May 2019, covering issues such as whether there is sufficient understanding of the issues or concerns, and the circumstances relating to them, to justify the initiation of formal action and whether the application of a formal procedure represent a proportionate and justifiable response in the circumstances.

Do get in touch with Jog Hundle or Stuart Craig if you would like to discuss issues relating to investigation and disciplinary procedures and training for your Boards and senior managers.

NHS workforce: promoting utopian thinking on race equality standards

The NHS’s Chief People Officer, Prerana Issar says NHS organisations “need to do more” and “at pace” to improve workforce race inequality. Black, Asian and minority ethnic staff constitute almost a fifth of the total NHS workforce, yet they are still more likely to face unfair treatment and discrimination in the workplace.

In new guidance, published on 3 July, NHS England and NHS Improvement’s NHS Workforce Race Equality Standard strategy: A fair experience for all: Closing the ethnicity gap in rates of disciplinary action across the NHS workforce presents the NHS with the opportunity to make a real difference in this area.

The document is described as an evolving guide to help support local commissioner and provider practices in promoting workforce race equality. The focus is to reduce the disproportionate ethnicity gap in entry into the formal disciplinary process – and to reduce the overall rate of unnecessary disciplinary action across the NHS.

“Stretching but achievable goals” for the NHS by 2022

A set of national aspirational goals have been set for the “expected rate of improvement” in closing the gap in the likelihood of BAME and white staff entering the formal disciplinary process within NHS trusts for 2020, 2021 and 2022. These national goals relate to all NHS trusts, CCGs and national healthcare arm’s length bodies.

Supporting the delivery of this ambition, the guidance is upon both sharing good practice, as well as supporting the transformation of cultures within organisations to those that are underpinned by learning and compassion. In addition, the guidance reiterates NHSE/I’s recommendations released last month that all NHS boards should consider how they oversee investigations and disciplinary procedures following the Amin Abdullah case.

Stepping up interventions to leverage improvement

The guidance has outlined a helpful set of interventions, but good leadership, accountability and a person-centred approach with a focus on safeguarding people’s health and well-being will help the NHS community reach the “goal of a fully inclusive and fair NHS for all staff”.

Progress in this area will be published as part of the annual WRES data collection and publication.

A key step for all NHS employers is to train and support managers in identifying and resolving workplace issues before they escalate, underpinned by an understanding of wider cultural approaches.

Jog Hundle, Partner

Next steps on the implementation on the NHS Long Term Plan

Last month brought the publication of the NHS Long Term Plan Implementation Framework which kick starts the process of “strategic system planning”.

But what does this mean? Simply put: it sets out the approach Sustainability and Transformation Partnerships and Integrated Care Systems are asked to take to create their five-year strategic plans based on “realistic workforce assumptions” and deliver all the commitments within the Long Term Plan.

The expectation is that these plans cover off issues, such as what service changes will be taken forward and how local systems will be developed paying attention to workforce, digital and estates, and how financial balance will be delivered. But the framework does allow local systems the freedom to respond to local needs and priorities. The framework articulates 10 principles that systems plans must cover – this is set out in chapter one.

So what about delivering the new service models fit for the 21^st century? The service changes outlined in chapter two are described as “foundational commitments” within the Long Term Plan and must feature in the system plans. We now have 1259 Primary Care Networks covering all patients in England as from 1 July – described as the most significant reform to general practice.

Going forward system plans will be grouped into a national implementation programme for the Long Term Plan in December 2019, taking account of the Spending Review in the autumn with final plans due in November 2019 covering the period 2019/20 to 2023/24.

Where next ?

This table from the framework sets out the timescales in tabular form:

The framework includes resources to help with formulating the system plans – in addition, over the summer, there will be a programme of national and regional opportunities for systems to understand the support and resources that will be available to them over the planning period, and over the next five years.

The framework provides that local systems should work with their regional teams to work out what extra support they need to develop their local plans and plans should be developed in house. Additional support will be provided from national teams and commissioning support units.

For further details on the framework, the Healthcare Financial Management Association have produced a helpful summary paper which you can read here.

ICS autumn seminars

We are running a series of free ICS seminars across our national offices in the autumn:

• 22 October Birmingham
• 12 September Cambridge
• 24 September Manchester

If you would like to receive an invitation or register your interest, please email events@mills-reeve.com

Charlotte Lewis, Senior Associate and Rhian Vandrill, Partner

Enter the Court of Appeal: clarity on determining mental capacity in the vulnerable

Reconciling an individual’s dignity, self-determination against the need for protection and support is a fine balance. This latest decision looks at the factors relevant to determining if a vulnerable adult has capacity to make decisions about where to live, consent to sexual relations and use of social media.

On 11 June 2019 the Court of Appeal handed down its judgment in B v A Local Authority which addressed two important questions which will be of interest to health and care professionals working in a range of settings.

We hear from the CoA on two questions:

1. The factors relevant when determining mental capacity to:
   1. decide to use social media;
   2. consent to sexual relations; and
   3. decide on residence.
2. The approach to take when a declaration of capacity to make one decision conflicts with the declaration of capacity to make another decision.

Background

B is a 31- year-old woman with a learning disability. She frequently uses social media to communicate with strangers sharing intimate photographs, engaging in sex chats and searching for boyfriends who she quickly meets in person. Through this activity she met Mr C, a man in his seventies convicted of multiple sexual offences and subject to a Sexual Harm Prevention Order. Although advised of the risks, B refused to believe his offending history. She wishes to live with him and have his baby.

On 21 February 2019 the trial judge made declarations in relation to B’s capacity to make decisions which included her residence, care, contact with others, sexual relations and social media usage. He set out “relevant information” for decisions in respect of such issues.

This was an appeal by B (through her litigation friend, the Official Solicitor) and a cross appeal by the local authority.

What did the court say about:

Relevant factors?

The Official Solicitor did not challenge the trial judge’s declarations regarding B’s capacity; instead they objected to his reasoning. They argued he had erred in his formulation of the relevant information (guidance) which B needs to be able to understand, retain and use or weigh for the purposes of making the decision to use social media, to access the internet and to consent to sexual relations.

The judgment notes that it is a basic principle that an appeal is against an order and not just the reasoning of the judge in support of the order (which is not objected to). In addition, it does not matter if the guidance is a long or short list, it is simply guidance to be expanded or contracted or adapted to the facts of the particular case.

The appeal of B was ultimately dismissed.

Conflicts between declarations of capacity?

The trial judge decided that B had capacity to make decisions in relation to residence, i.e. to live with Mr C. However, the trial judge had also decided that she lacked the capacity to make other decisions, including the persons with whom she had contact with and consent to sexual relations. The local authority argued this made their care for and treatment of B practically impossible.

The Court of Appeal acknowledge that the Mental Capacity Act requires a decision specific assessment of capacity and the trial judge himself noted this can sometimes produce anomalous results. However, they concluded that it is important to take into account all relevant information. For example, in deciding that B had capacity to decide whether to live with Mr C, it was relevant that she did not have capacity to decide the persons who she has contact with.

The appeal of the local authority was ultimately upheld.

Comment

The judgment reminds us of the difficulty in reconciling a person’s right to autonomy when they are also vulnerable and need protection. We must not discriminate against those suffering from a mental disability by imposing too high a test of capacity.

Also, we must absolutely avoid deciding whether an individual has capacity simply by whether they make a good or bad decision.

Ruth Minnis, Principal Associate

Ambulance Trust appeal in Flowers litigation dismissed

The Court of Appeal has dismissed an appeal by the East of England Ambulance Service NHS Trust and ruled that regularly worked voluntary overtime should be reflected in the calculation of its workers' holiday pay.

The Ambulance Trust has applied for permission to appeal to the Supreme Court.

To find out more about the Court of Appeal decision, head over to our sister blog, hr law live. 

Must disciplinary proceedings await the outcome of criminal investigations?

A recent Court of Appeal decision provides welcome clarification about when internal disciplinary proceedings should await the outcome of a parallel criminal investigation.

In an appeal in which Mills & Reeve represented the employer, the Court of Appeal has said that in most cases an employer will be contractually entitled to proceed unless the employee can show that there is a “real danger” that continuing would result in a miscarriage of justice.

The appeal concerned a number of complex issues surrounding the suspension of a doctor on issues concerning patient safety, which will only arise in the context of the NHS. However the issue the employer faced in deciding whether to postpone the disciplinary hearing to await the outcome of a police investigation is of wider interest.

The court also provided guidance about how to assess whether a decision to proceed with disciplinary proceedings, up to and including dismissing the employee, could amount to a breach of the implied duty of trust and confidence – and so entitle the employee in question to apply for an injunction.

For more detailed analysis of the decision, head over to our sister blog hr law live.

Government launches further consultation on capping public sector exit payments

After three years on the shelf, the Government has dusted off its plans to restrict termination payments in the public sector to £95,000. Its latest consultation on these plans, published on 10 April, proposes broadly similar arrangements to those last canvassed in 2016, though there have been some refinements. The consultation closes on 3 July.

What organisations are covered by the proposals?

The Government has published a list of bodies which will be in the scope of these new rules. They will apply across the whole of the NHS (including NHS Trusts, special health authorities and clinical commissioning groups) as well as most of central and local government.

How will the cap be calculated?

The basic rule is that all payments made “in consequence of termination of employment” will be included in the calculation of the cap, whether these are paid directly to an employee or to a third party for their benefit. This will include the cost to a pension scheme of paying an unreduced pension to someone who takes early retirement, even if no payment needs to be made into the scheme to purchase such a benefit.

However some payments will be excluded from the cap. These include death in service and invalidity payments, holiday pay, and payments made in compliance with court or tribunal orders. Contractual notice pay will also be excluded, provided it does not exceed a quarter of the departing employee’s annual salary. This last exclusion amounts to a change from the earlier versions of these proposals, which would have included all notice pay in the calculation of the cap.

Is there power to relax these restrictions?

In the case of the NHS, the power to relax the restrictions can only be exercised by a minister. As the Government puts it in its draft guidance notes: “this safeguard is in place for use in exceptional situations, including where imposing the cap would cause genuine hardship”.

When will these proposals be implemented?

The short answer is that we do not know: no implementation timetable has yet been published. However given the consultation deadline, it seems a reasonable assumption that the new measures will not take effect before April next year, particularly given that further legislation may be required to relieve public sector employers of any contractual obligation to confer pension benefits valued in excess of the cap.

Jog Hundle, Partner

Limited freedom of movement: a new status to plug the gap in the event of a no-deal Brexit

The vote last night in the House of Commons to reject a no-deal Brexit may result in additional concern for health and care staff and their employers.

It is worth noting that in the event of a no-deal the Government intends to plug the gap for EU citizens entering the UK after 29 March 2018.

The current proposal is that after a no-deal Brexit all EEA and Swiss nationals will continue to be able to visit the UK without the need for a visa. Leave to enter will be granted automatically on production of a valid passport or national identity card. Once present in the UK, EEA/Swiss nationals will be permitted to remain for up to three months without the need for further documentation. They will also be able to work and study whilst here.

For those who enter the UK after 29 March and wish to remain for more than three months, it plans to close the gap between the end of freedom of movement and the new post-Brexit immigration system with a new status, to be called European Temporary Leave to Remain. This is to be distinguished from the EU Settlement Scheme, which will be available for EEA and Swiss nationals and their families already living in the UK at the point of Brexit. If there is a deal, EU citizen’s and their families in the UK will need to apply for settled status or pre-settled status before the end of the agreed transitional period in December 2020.

To find out more, head over to our sister blog, hr law live. The Mills & Reeve Immigration Team can help in advising on Brexit-related immigration issues, providing support for EU staff, and assisting with settled status issues. Please get in touch with Tracy Yates if your organisation requires any advice in this area.

The Topol review: creating a digitally savvy health care workforce

The Topol Review led by cardiologist, geneticist and digital medicine researcher, Dr Eric Topol, looks at how to prepare the healthcare workforce to deliver the digital future. This independent report on behalf of the Secretary of State for Health and Social Care, makes recommendations that will enable NHS staff to make the most of innovative technologies such as genomics, digital medicine, artificial intelligence and robotics to improve services.

Ground breaking review debates how technology will impact the NHS workforce

The executive summary makes reference to the changing workforce, with millennials having new expectations and most seeking a good work-life balance through flexible careers. It adds that the NHS Long Term Plan identifies the need for more healthcare workers to respond to this increasing demand. And that health technologies “should not be seen as increasing costs, but rather as a new means of addressing the big healthcare challenges of the 21st century.”

The review anticipates how these healthcare technologies will impact the roles and functions of healthcare staff. It does not suggest that these technologies will replace healthcare professionals but will “augment them” giving more time for a deeper doctor-patient relationship, along with a reduction in doctor “burnout” that currently affects a significant proportion of clinicians.

Tackling the differences in digital literacy of the current workforce

This is a key theme in the review which highlights that “Within 20 years, 90% of all jobs in the NHS will requires some element of digital skills.” – and so “All staff will need digital and genomics literacy.” But the starting point would be to look at the digital literacy of the existing workforce.  

But with the introduction of digital and genomic technologies in healthcare, there are ethical considerations.

On technology and patient care, the review says that there must be mechanisms in place to ensure advanced technology does not “dehumanise care” and while automation will improve efficiency, “it should not replace human interaction”. So interesting comments on maintaining respect for human dignity – “users should know whether they are communicating with a person or a machine.”

Issues on patient safety are highlighted with the need to clinically evaluate digital healthcare technologies to avoid patient harm and remaining “faithful to the core ethical principle of medical care: ‘do no harm’.”

There is also commentary on data governance and the importance on having in place robust and legally enforceable, data governance structures, policies and practises without which the promises of digital healthcare technologies could be undermined.

But will it resolve the workforce crisis?

Possibly. We know that the NHS is overstretched and has a shortfall of 100,000 staff and only recently, a new report from the Health Foundation highlights that NHS staff numbers are failing to keep pace with demand and that there is ongoing deterioration in workforce numbers in critical areas, such as primary and community care, nursing and mental health. To close this gap will require a “Herculean effort” says the report. 

What does the review say?

The review provides advice on how these technologies and developments will change clinical roles; how staff can be prepared for that change, and therefore the changes required in the education and training of staff. It sets out how new technologies will be able to speed up processes like diagnostics, such as providing patients with quicker, better treatment and freeing up additional clinical time to provide further care.

But ultimately, for the NHS to benefit from digital technologies, there must be a focus on “building a digitally ready workforce that is fully engaged and has the skills” to adopt to new technologies in practice. But there is recognition that the health service needs leaders who can “inspire and implement sustainable, systemic change”. Equally, Boards require the expertise to make informed investments decisions, to drive improvement.

The recommendations aim to support the NHS Long Term Plan and inform the workforce implementation plan designed to improve the NHS over the next decade.

So, where next?

The challenge though for the NHS is the culture shift required in learning and innovation and the willingness of the workforce to embrace technology. But time is of the essence, with the review recognising that there will be a five-to-seven year time lag to full adoption. So there is no time to waste.

The Department of Health and Social Care will formally respond to the recommendations in due course.

Jog Hundle, Partner