Health commissioning blog


November 13, 2014 2:10 PM | Posted by Fawlk, Catherine | Permalink

Last month the Department of Health published guidance on how the Secretary of State may exercise his powers to provide financial assistance to NHS Foundation Trusts and NHS Trusts. It covers:

  • the range of finance available from the Secretary of State and financial assistance;
  • the processes for requesting financial assistance for both FTs and NHS Trusts;
  • the criteria that the Secretary of State must apply when deciding whether and how to provide financial assistance; and
  • the terms and conditions that may be applied to the different types of finance, financial assistance available.

The guidance covers all forms of financial assistance including loans and the provision of public dividend capital (“PDC”) but not grants for which separate guidance is to be provided.

The full range of finance that may be made available to FTs and NHS Trusts and some of the considerations that the Secretary of State will take into account in deciding whether to provide financial assistance are as follows:

  • Loans in the Normal Course of Business – these are loans which are generally provided to fund capital expenditure and/or genuine short term working capital requirements when internal funds for the purpose cannot be generated in the short term but the NHS Trust or FT can show longer term viability and ability to repay.
  • Loans or PDC to support FTs and NHS Trusts in financial difficulty subject to the development of a recovery plan (“Recovery Plan”) designed to underpin recovery and future sustainability of an FT or NHS Trust.
  • Interim support – transitional financial support to FTs or NHS Trusts in financial difficulty (either in the form of loans or PDC) where necessary to support the continued delivery of services for a period during which assessment of the underlying problem is carried out. Normally, Interim Support is a pre-cursor to longer term planned investment support, turn-around or reconfiguration. It may include support to develop the Recovery Plan where an FT or an NHS Trust cannot do so from its own resources. It may also include additional support where merger or acquisition proposals are being developed.
  • Planned Term Support – longer term financial support to be provided where there is a clear and robust Recovery Plan to return to a sustainable position over a realistic and reasonable time frame. Other than in exceptional circumstances, Planned Term Support will only be agreed if Monitor for FTs or the NHS Trust Development Authority (“NHSTDA”), for NHS Trusts, supports the application. The advice of NHS England and the CQC may also be sought before Planned Term Support is provided. Decisions for Planned Term Support are also based on the ability of an FT or NHS Trust to make the necessary changes outside Special Administration.
  • PDC may be provided to an FT or NHS Trust where it requires finance to ensure viability that where a Loan in the Normal Course of Business is not considered sustainable.
  • PDC or loans may be provided to FTs or NHS Trusts by means of centrally led initiatives of the Secretary of State to supply finance for strategic investments which deliver benefits to the public but which do not qualify for, or may not be made available on equivalent terms, to a Loan in the Normal Course of Business. Examples given in the Guidance are strategic investments which deliver benefits to the health system as a whole or investments in a potentially valuable, but unproven service delivery model or technology.
  • Special Administration – where the Secretary of State has accepted the recommendations of a Special Administrator’s report in relation to an FT or NHS Trust, he/she may use powers under section 40 (power of the Secretary of State to provide financial assistance) to provide financial assistance to implement the recommendations of that report for that FT or NHS Trust. In addition, finance may be provided directly to the NHSTDA or Monitor to fund other types of intervention where appropriate.
  • Guarantees of payment of any amount due under an externally financed development agreement.

The Department of Health has set up the Independent Trust Financing Facility (“ITFF”) to provide independent professional advice to the Secretary of State about decisions on the provision of financial assistance in the Normal Course of Business. The guidance states that advice of the ITFF will normally be sought by the Department of Health in all cases of Interim Support. The guidance states that the ITFF will not provide advice on Planned Term Support or for FTs or NHS Trusts in Special Administration.

Monitor and the NHSTDA may be required to support the ITFF in advising on how to protect the value of taxpayers investment in FTs or NHS Trusts respectively. The guidance also states that the ITFF may ask Monitor or the NHSTDA to advise on individual investments and actions to be taken to mitigate any identified risk of such investments.

The Department of Health will consider applications for funding based on the Guidance, an investment appraisal, generally expected principles used by financial institutions and reflect the principles and rules in “Managing Public Money” guidance issued by HM Treasury.

The guidance also provides that, where appropriate, other terms and conditions may be applied to Loans or PDC. Where the Trust is in receipt of Interim or Planned Term Support, the Secretary of State may also require a Trust Board to agree terms and conditions governing its operational management including implementing specific strategies to reduce costs and release cash. These could include: the adoption of a shared services solution, surplus land disposal or adopting agreed procurement strategies.

November 13, 2014 2:07 PM | Posted by Richards, Tania | Permalink
In the latest bulletin for CCGs, NHS England confirm that the deadline for all constitution amendments has been extended to 6 January 2015. The decision has been made to allow CCGs time to fully engage their membership regarding constitution amendments. NHS England has set out the procedure for making an amendment in the Model wording for amendments to Clinical Commissioning Groups’ constitutions.

NHS England has also set out in a letter the suggested form of words for constitutional amendments following the legislative reform order that enabled CCGs and NHS England to form joint committees from 1 October.
November 13, 2014 12:58 PM | Posted by Fawlk, Catherine | Permalink
Earlier last month I blogged on the subject of NHS England’s co-commissioning plans, and this week NHS England has published Next steps towards primary care co-commissioning document. The document sets out further information on the choices and options around co-commissioning to give CCGs an opportunity to choose afresh what co-commissioning model they wish to assume for their local health economy. The document also provides clarity around each of the models in terms of opportunities and limitations and the steps towards implementing co-commissioning arrangements, including the timeline and approvals process.

The document is accompanied by a suite of practical resources and tools to support local implementation of co-commissioning arrangements. In addition, the document confirms that the national framework for the handling of conflicts of interest management for primary care co-commissioning is under development in partnership with NHS Clinical Commissioners. While there is already conflicts of interest guidance and a code of conduct in place for CCGs and GPs in commissioning roles, NHS England is strengthening this in recognition that co-commissioning is likely to increase the frequency and range of potential conflicts of interest – especially for delegated arrangements. The conflicts of interest framework will be published as statutory guidance in accordance with section 14Z8 of the NHS Act 2006 (as amended by the Health and Social Care Act 2012) in December 2014.
November 6, 2014 3:23 PM | Posted by Shah, Surbhi | Permalink

The employee (a consultant) was diagnosed with Asperger’s syndrome, which was linked to the communication deficiencies but not the clinical deficiencies. Refusing to allow him to return to work as a consultant was not disability discrimination under section 15 Equality Act 2010 because it was a proportionate means of achieving a legitimate aim nor was it a breach of the duty to make reasonable adjustments, since any reasonable adjustments relating to the Asperger’s syndrome would not deal with the clinical deficiencies and would not therefore allow the Trust to employ him as a consultant.

Islam v Abertawe Bro Morgannwg Local Health Board EAT 12 June 2014 

October 23, 2014 11:16 AM | Posted by Grey, Philip | Permalink

In The Queen (on the application of United Company Rusal PLC) -v- London Metal Exchange, the Court of Appeal has overturned a High Court judgment from earlier this year, which had appeared to increase the obligations on public bodies carrying out consultations. The facts of the case relate to the international trade in metals, but the principles set out are of direct relevance to any NHS body carrying out a consultation.

The High Court had ruled that the consultation in this case was unlawful, because the London Metal Exchange had consulted on one option only. It had not included in the consultation an alternative option which it had reviewed but decided not to adopt. The general rule has always been that a “one-option” consultation is lawful, but that in exceptional circumstances fairness would require the consulting body to include other options. The language of the High Court ruling had appeared to greatly widen the cases in which such “exceptional” circumstances would exist. The Court of Appeal has firmly rejected the High Court judge’s reasoning and restated the principle that a “one-option” consultation is lawful. The judgment concludes with the following broad statement of principle: “The duty [on the public body] to provide sufficient information does not in general extend to providing options or information about proposals which it is not making unless there are very specific reasons for doing so.”

The Court of Appeal’s ruling also restated the following general principles:

  • In challenges to the lawfulness of a consultation, the court should only interfere if there is a clear reason on the facts of the case for holding that the consultation is unfair.
  • The application of the duty of fairness is intensely case-sensitive: what is fair and what is unfair will always depend on the facts of the individual case.
  • The courts will allow the consulting body a wide degree of discretion as to the options on which to consult. The consulting body’s obligation “is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”

This is a helpful case for NHS bodies as it reinforces their right to consult on proposals they have worked up and considered in detail and, where in their view only one appropriate option exists, to consult on that option only.

However, we sound two notes of caution. First, consulting on a single option does not equate to taking a decision, and then consulting on it. A consultation will be unfair, and liable to be quashed by the courts, if an NHS body decides that it will do something and then consults. The correct approach is to identify the preferred option/s, and to consult on the basis that this is what you want to do, while keeping an open mind. You must be prepared to change your mind and take a different approach having considered the consultation feedback. Secondly, consultation is just one part of the NHS’s obligation to involve the public. Commissioners and providers have slightly differing duties, but a common factor is to involve the public from the earliest stages of service redesign, long before the formal public consultation commences.

For further information or advice please contact on 01223 222463.

October 16, 2014 9:47 AM | Posted by Fawlk, Catherine | Permalink

At the end of September, NHS England wrote to CCGs and area teams setting out in its “Proposed next steps towards primary care co-commissioning: an overview” slides its proposed three main models of co-commissioning, guidance and a timetable for implementation.

The  three main models are:

Model 1:  Greater involvement in primary care commissioning decisions within NHS England

This model envisages closer collaboration between CCGs and their area teams on decision making in primary care commissioning. As such, no new governance arrangements or special approval process will be required.

Model 2:  Joint commissioning between CCGs and their area team

Under this model CCGs will assume joint commissioning responsibilities with their area team.

This will require CCGs to  amend their constitutions to establish joint committees.  The amended constitution will require the approval of members of the CCG and NHS England. Its proposed next steps slides state that a suggested model constitutional amendment is to be made available by NHS England after 1st October 2014 (when the legislative reform order giving CCGs the power to form joint committees with NHS England came into force).  

NHS England will also need to be assured that joint commissioning proposals comply with the governance and financial framework for joint committees or committees in common which is being developed by NHS England in collaboration with CCGs and other key stakeholders.

Model 3:  Delegated arrangements for CCGs to take full responsibility for commissioning from NHS England

Under this model, NHS England will delegate primary care commissioning to CCGs but as liability for such commissioning will remain with NHS England it will require assurance that such delegated arrangements do effectively discharge its statutory duty.

The CCGs will also need to satisfy NHS England as part of the approvals process as to how they will handle the increased number of conflicts of interests that are likely to arise for CCGs’ governing bodies and GPs in commissioning roles.  Again, NHS England’s proposed next steps slides state that work is underway to clarify expectations on how conflicts of interest will be managed. 

CCGs will also need to amend their constitutions to incorporate delegated commissioning arrangements.

Timetable for implementation

The proposed next steps slides include an implementation timetable. CCGs are invited (following working their members and area team to submit proposals to their regional office for joint commissioning on 30th January 2015 and for delegated commissioning on 5th January 2015. Amendments to CCG constitutions that relate solely to joint or delegated commissioning arrangements will be accepted at these points too. It is envisaged that any such arrangements approved by NHS England will come into force on 1st April 2015.

Scope of co-commissioning

NHS England is of the view that only general practice services should be within the scope of joint and delegated arrangements for primary care co-commissioning for 2015/16. It states that there may be scope in future years, after full engagement with the relevant professional groups, for commissioning of dental, community pharmacy and eye health to be included within the scope of such arrangements.

Currently, NHS England does not plan to allow revalidation and performer’s lists or individual practice or performance management aspects of contract management to be delegated as it senses that there is no appetite from CCGs to take on these functions. But this may change if CCGs change their minds.

Summary

There is recognition by NHS England in its proposed next steps slides, both that one size does not fit all and also that the degree to which CCGs may want to engage in the commissioning of primary care services varies. CCGs that do not currently want to undertake primary care co-commissioning may choose to do so in future years or to change the co-commissioning model that they use. The proposed next steps slides make it clear that if CCGs want to undertake delegated commissioning arrangements in 2016/17, their proposals must be submitted by 1 June 2015 for delegated budgets to be included in their allocations for 2016/17. It seems that however much CCGs manage to influence these proposals, primary care co-commissioning is here to stay should CCGs wish to use it.   

October 10, 2014 1:59 PM | Posted by Knowles, Stuart | Permalink
Clinical commissioners are to help develop the care.data programme into the ‘pathfinder stage’. The programme will be rolled out in 265 GP surgeries in the CCG areas of Leeds North, West and South, Somerset, West Hampshire and Blackburn with Darwen.

CCG pathfinders will be supported in testing different types of communication with patients, explaining the benefits and risks of data sharing, and making clear their right to opt out from having their confidential information shared for indirect care.

NHS England confirms that as part of the pathfinder stage, “a variety of communications will be tested with patients which will include an individually addressed letter sent directly to every individual or household from their pathfinder GP surgery, a leaflet and other explanatory materials, as well as e-mails and texts where the surgery also uses these channels”. Under the care.data programme coded medical details held by the GP will be brought together with hospital data at the Health and Social Care Information Centre (HSCIC).

The pathfinder stage has been developed and agreed with advice from the BMA and the RCGP’s joint GP IT Committee. Dame Fiona Caldicott’s Independent Information Governance Oversight Panel (IIGOP) has agreed to work with NHS England’s pathfinder programme on the quality assurance of the processes which are being developed to identify, work with and monitor the first four areas trialling the care.data programme.

It will be interesting to see what the level of opt-out is and how this affects the integrity of the data.

Tim Kelsey, NHS England National Director for Patients and Information, said: “There are huge benefits to be had from this programme and this is our opportunity to make sure we get it absolutely right.”

“Since February we have been listening to the views of the public, GPs and other important stakeholders to hear their concerns about data sharing. “We have heard, loud and clear, that we need to be clearer about the care.data programme and that we need to provide more support to GPs to communicate the benefits and the risks of data sharing with their patients, including their right to opt out.”

For more information about the care.data pathfinder programme please go to NHS England’s web page
October 10, 2014 1:50 PM | Posted by Richards, Tania | Permalink
The NHS Alliance and the Foundation Trust Network have formed a new partnership bringing together healthcare representatives from primary care and secondary care with a view to breaking down silos and tensions that have historically stymied efforts to introduce innovations, reports the National Health Executive.

The new partnership aims to share best practice and case studies to help facilitate integrated thinking and integrated care and ultimately streamline health and care pathways for patients. The group are planning to publish a short series of papers to capture the findings of the first six months’ collaborative working. The first joint paper is expected in mid - November.

Rick Stern, chief executive of NHS Alliance said: “Some of the most critical issues facing the future of the healthcare system involve the ability of different parts of the system to work together. Central to the fragmentation of care is the divide between primary care and the hospital. A strategic partnership between NHS Alliance and the Foundation Trust Network is an attempt to look anew at the things that have kept us apart and offer some fresh perspectives on the potential for working together and deliver better patient care across our communities. Primary care and secondary care have seen each other as competitors for a diminishing NHS budget, protecting vested professional and organisational interests, rather than working towards common goals for patients”.

For more information on the integrated care collaboration please go to the Foundation Trust Network and the NHS Alliance web sites.
October 10, 2014 10:38 AM | Posted by Shah, Surbhi | Permalink
This was the question considered in the case of Howorth v North Lancashire Teaching Primary Care Trust. Mrs Howorth was employed by the North Lancashire Primary Care NHS Trust as a health visitor. In December 2006, Mrs Howorth was diagnosed with depression, was prescribed anti-depressant medication and went on sick leave.

On 2 July 2008, Mrs Howorth went to a supermarket where she left without paying for her goods, forced her way from the store, and drove away after trapping one person, who attempted to restrain her, with her car door and with a shopper on her car bonnet. Mrs Howorth said she had no recollection of any of these incidents. Correspondence from her colleagues showed that this was entirely out of character, and the employment tribunal found that during the disciplinary process, the PCT accepted that her actions were involuntary and that the medical evidence supported a diagnosis of automatism.

On legal advice, Mrs Howorth pleaded guilty and was subsequently given a 12-month conditional discharge, although she was found guilty of theft, two counts of battery and one of dangerous driving. As a consequence of these convictions, she was disciplined and on 18 November 2009, she was summarily dismissed. She appealed her dismissal without success. The dismissal was the subject of her claim to the Employment Tribunal. The Employment Tribunal found that the PCT’’s failure to consider alternatives to dismissal was a failure to make reasonable adjustments. However at the remedy hearing, they also found that no adjustment could have succeeded in keeping Mrs Howorth in work. On appeal, the Employment Appeal Tribunal held that the Employment Tribunal had made an error of law, given that no adjustment could have succeeded, there could be no failure to make a reasonable adjustment.
September 30, 2014 1:59 PM | Posted by Elsegood, Simon | Permalink

Earlier this month Monitor published its guidelines for providers of NHS-funded services on how Monitor will apply the patient choice and competition rules. These can be found here. Monitor has also published some helpful hypothetical scenarios showing how it applies this guidance, which can be found here. The scenarios cover market sharing, price fixing, bid rigging, other types of anti-competitive agreements, abuse of dominance and integrated care.

In summary, arrangements between providers (and possibly commissioners) that are on the face of it anti-competitive may nonetheless be permitted if they improve the provision of healthcare services, are necessary for that improvement and do allow the elimination of competition for the provision of those services. In other words, they will be allowed if they are necessary for the provision of better services to patients. Monitor and the Competition & Markets Authority (the CMA) enforce competition law in the healthcare sector. In particular Monitor advises the CMA on patient benefits. Therefore it is important for providers to understand this guidance. Also a provider’s NHS provider licence requires that it complies with the principles of the law prohibiting anti-competitive agreements, and compliance with this licence is regulated by Monitor.

September 30, 2014 10:53 AM | Posted by Richards, Tania | Permalink

Any of you taking a peek at the draft new UK Public Procurement Regulations for implementing the new EU Public Procurement Directive, which were published for consultation by the Cabinet Office on Friday 19 September will note there’s some extra breathing space for NHS commissioners in the form of a delayed effective date.

The light touch regime under the new Public Contract Regulations 2015 will not apply to the procurement of contracts for NHS health care services falling within the scope of the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 (PPCCR) until the later date of 18 April 2016.

The light touch regime replaces the current Part B Services regime that applies alongside the PCCR 2013.

In short, CCGs and NHS England will continue to follow the existing Part B Services regime and the PPCCR until 18 April 2016. Thereafter, the light touch regime for health and social services under the new Directive will replace the existing Part B services regime and will apply in addition to the continued application of the PPCCR.

We understand that practical guidance on the light touch regime will be published shortly.
Anyone wishing to respond to the Cabinet Office consultation has a relatively short period of time in which to do so as the consultation ends on 17 October 2014. These can be found on the gov.uk website.

September 26, 2014 11:23 AM | Posted by Grey, Philip | Permalink

There will be very few readers who don't have some involvement in reconfigurations and the necessary consultation exercises. There has been a run of court cases in recent years, in healthcare and other sectors, where the fairness and lawfulness of consultations have been challenged. We have already commented on many of these. Even those cases that don't involve the NHS provide valuable lessons for how to protect your own processes from legal challenge.

The latest judgment concerns the reorganisation of criminal legal aid by the Ministry of Justice ("MoJ"). In the case of London Criminal Law Solicitors Association and Criminal Law Solicitors Association -v- The Lord Chancellor, the High Court has ruled that an MoJ consultation was unfair and quashed the resulting decisions.

A couple of statistics serve to illustrate the controversial nature of the proposed changes:

• an immediate fee cut of 8.75% followed by a further 8.75% cut next year;
• a proposal to offer 525 contracts for legal aid work, when currently 1600 firms provide such work.

The announcement of these changes followed a consultation process, in which the criminal solicitors profession was asked to respond to a wide range of questions. The profession's representative bodies had commissioned independent research into issues relating to capability and capacity within the legal aid market. They argued that solicitors responding to the consultation would be doing so "in the dark" without the benefit of the research and asked for a delay in the process for that research to be completed. The MoJ refused this request. As well as this, the professions did not have available to them (and were not even made aware of) a report from KPMG, which was completed after the conclusion of the consultation and largely informed the MoJ's decisions. Having seen that report, the claimants argued that the assumptions made in it were flawed, or at least open to challenge. They argued that the opportunity should have been given to consultees to see and comment on this report.

The Court agreed with those submissions, but considered with some care the degree of unfairness required before it should interfere and rule a consultation unlawful. The judge was greatly influenced by the enormous impact that the changes would have on many firms and individuals, stating: "The impact of a decision is a material factor in deciding what fairness demands or requires in any particular case." He approved an earlier judgment which stated: "Sufficient information to enable an intelligent response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis on which the decision is likely to be taken."

The lesson of the case is this: commissioners need to consider with care the level of background detail they are required to disclose as part of any consultation exercise. You do not have to automatically disclose all of the reports and analysis you obtain, but you should carefully consider if not doing so could be considered unfair. This is a judgment that needs to be made on a case by case basis and, if finely balanced, you should seek advice.

September 19, 2014 3:17 PM | Posted by Fawlk, Catherine | Permalink

The Legislative Reform (Clinical Commissioning Groups) Order 2014 amends the NHS Act 2006 (2006 Act) so that from 1 October 2014:

(a) two or more Clinical Commissioning Groups (CCGs) will be able to form joint committees to exercise any of their commissioning functions jointly; and

(b) one or more CCGs and NHS England will be able to form joint committees to exercise the functions of a CCG.

CCGs being able to form joint committees

Currently although the 2006 Act allows CCGs to exercise their commissioning functions jointly, there is no provision in the 2006 Act to enable CCGs to exercise functions jointly by means of a joint committee. This means that CCGs are unable to set up a binding joint decision making body. CCGs who want to exercise their functions jointly have been creating “committees in common” to exercise their functions jointly. But as such committees do not have the authority to make decisions, CCG representatives sitting on them need to go back to the CCG appointing them for separate ratifications of matters discussed at the committee.

The inability of CCGs to form joint committees has created practical problems for CCGs when working together when jointly commissioning services and in areas such as continuing healthcare.

CCG/(s) and NHS England forming joint committees to jointly exercise functions of a CCG/(s)

Currently under the 2006 Act, NHS England may, at the request of a CCG/CCGs, exercise any of the CCG/(s) functions where requested by the CCG/(s).

The 2006 Act does not currently provide for a CCG/(s) and NHS England to create a joint committee to carry out CCG functions jointly. Paradoxically the 2006 Act does allow NHS England to form a joint committee with a range of other bodies (including CCGs) for the exercise of its functions.

Joint committees between CCGs and NHS England for the exercise of CCGs’ functions could be used to assist in joint decision making when there is a need to reconfigure services that cut across both NHS England and CCG commissioned services.

Allowing CCGs to create a joint decision making body either with other CCGs or NHS England will remove administrative burdens, allow CCGs greater flexibility in their commissioning arrangements, in discharging their functions and allow them to operate more efficiently and effectively in the future.

September 15, 2014 3:39 PM | Posted by Richard, Tania | Permalink

A National Audit Office (NAO) report, Funding healthcare: Making allocations to local areas looks at how the Department of Health (DH) and NHS England (NHSE) allocate funds to local commissioners of healthcare. Since the reforms to the health system in 2013 the three groups of commissioners (clinical commissioning groups (CCGs), NHS England area teams and local authorities) receive separate funding allocations to commission services for their local populations.

The audit finds a ‘wide variation’ in the allocation of £79 billion in central funding to local commissioners which in 2014-15 terms is equivalent to £1,400 per person.

According to the report the distribution of resources to local commissioners differs from their target funding allocations which are based on relative need. In 2014-15 over three-quarters of the local authorities and nearly two-fifths of CCGs are more than five percentage points above or below their fair share of funding per person. As an example, funding for CCGs ranges from £137 per person below target to £361 per person above target.

The report says that whilst the approach to resource allocation is ‘generally sound’ the challenging financial environment has made it difficult for the DH and NHSE to achieve a balance of fairness and financial stability in allocating funding.

Commenting on the report Amyas Morse, head of the National Audit Office says:

“Funding allocations have reflected, among other factors, a desire not to upset local health economies by taking funding away or even by increasing it by less than inflation. This has significantly slowed progress towards a fair distribution where funding fully reflects need across the country. The Department and NHS England need to consider carefully whether this approach is fast-moving enough to sustain hard-pressed local areas in the next few years.”

August 19, 2014 3:41 PM | Posted by Shah, Surbhi | Permalink
The Court of Appeal has given judgment in the case of Hainsworth v Ministry of Defence . While not an NHS specific case, it provides helpful clarification regarding the limits of the law on reasonable adjustments.
Mrs Hainsworth was a civilian employee of the British armed forces, based in Germany. She was not disabled, but her daughter has Down's syndrome. Mrs Hainsworth requested a transfer to the UK so that her daughter could attend specialist education and training facilities. Her request was refused. She brought a claim alleging that this refusal amounted to a breach of her employer’s duty to make reasonable adjustments.
The question for consideration was whether the duty to make reasonable adjustments extended to disabled persons associated with the employee. The court rejected Mrs Hainsworth’s appeal. They found that the wording of the Equality Act 2010 and Article 5 Equal Treatment Framework Directive  (© European Union, http://eurlex.europa.eu/1998-2014 ) is clear in that their provisions only apply to reasonable adjustments for the assistance
of disabled employees or prospective employees. The court said that any attempt to stretch this to cover a disabled person associated with an employee is "doomed to failure".
August 14, 2014 7:42 PM | Posted by Richards, Tania | Permalink

What does Rose v Thanet Clinical Commissioning Group tell us about the status of NICE guidelines in priority setting? Healthcare lawyer Jane Williams looks at Rose where the Administrative Court considered whether a CCG had acted unlawfully in failing to implement National Institute for Health and Care Excellence guidance even though it was under no statutory obligation to do so.  Read Jane’s briefing.

If your CCG has any queries on priority setting, policies or individual funding requests please do not hesitate to contact Jane Williams.

August 8, 2014 9:58 AM | Posted by Elsegood, Simon | Permalink

This week the final stage of the procurement process for the Lead Provider Framework for quality assessing providers of CSS was launched. NHS England has announced the 16 bidders who have made it through to the final assessment stage for a place on the Framework to offer end-to-end commissioning support services.

Due to launch in January 2015, the Lead Provider Framework will provide clinical commissioning groups with a small number of NHS- accredited firms they can use to run their commissioning process.

Nine of the successful bidders for end-to-end support services were commissioning support units (CSUs) and seven were non-NHS organisations that include a mixture of local authorities and private firms.

August 8, 2014 9:56 AM | Posted by Richards, Tania | Permalink

NHS bodies face escalating demand for services, increasing scrutiny of quality and flatline funding. From reviews of acute, community and mental health services to proposals to relocate or close a single service, clinical commissioning groups, trusts and foundation trusts are making daily decisions about which services to continue, which to commission and which to stop. 

Regulatory healthcare lawyer Philip Grey offers some practical tips for an effective, lawful consultation process in his National Health Executive article: Think before you speak: How to involve the public effectively when reconfiguring NHS services.  You can view Philip’s piece on the National Health Executive’s website.

Mills & Reeve has extensive experience of providing service reconfiguration advice. We can advise NHS bodies on: when they must consult the public, how they go about doing it and how they can protect themselves from legal challenge.  

If you have any questions on reconfiguring NHS services please do not hesitate to contact Philip Grey.

August 8, 2014 9:53 AM | Posted by Richards, Tania | Permalink

A current hot topic is the statutory duty of candour which requires providers of health or social care to voluntarily “open up” about mistakes and failures. The duty will be introduced in October 2014. It will place a formal requirement on providers of health or social care to be open with their patients when they suffer harm related to care or treatment . Read our two-page briefing on the Government's proposals.  If you have any queries on the duty of candour please do not hesitate to contact Duncan Astill or Jill Mason.

July 24, 2014 2:30 PM | Posted by Fawlk, Catherine | Permalink

On 15th July 2014, the Ministry of Justice announced that the Information Commissioner’s Office (“ICO”) is to be given new powers by the end of the year to carry out compulsory data protection audits of public NHS bodies.

The ICO can already carry out consensual audits of NHS bodies, but has long argued that simply relying on organisations to agree to an audit is not sufficient to address the significant compliance problems within the NHS.

At present even after compulsory audits have been initiated by the ICO serving “an assessment notice” data controllers can still agree to consensual audits. According to the Ministry of Justice, no assessment notices have yet been served because all those who fall within the scope of the existing compulsory audit powers have agreed to an audit when asked to do so by the ICO.  This means that the mere existence of the power of compulsory audit has been enough to secure compliance.

This is also the way in which the ICO envisages using the new powers when introduced. Compulsory audits will only be carried out when a data controller has failed to respond to a request for a consensual audit or has refused consent without adequate reason. In addition, NHS bodies will be audited by the ICO when identified on a risk assessment basis.

What is the aim of compulsory audits?

Compulsory audit of NHS bodies is intended to allow the ICO to review their processes, policies and procedures to ensure compliance with the data protection principles.  The proposed power is not intended to be used for the investigation of individual breaches of the DPA.

What will it mean for NHS bodies?

The power would require NHS bodies to allow the ICO to enter their premises, direct the ICO to documents of a specified description, assist the ICO to view information using equipment on the premises and permit the ICO to observe the processing of any personal data which takes places on the premises.

The ICO have said that visits would not be unannounced and that it would conduct as much of the audit as possible off site in order that time on site would be limited to a maximum of three days.

The ICO would try to conduct a consensual audit in the first instance. 

More work for NHS bodies?

The ICO has responded to concerns that compulsory audits would place additional burdens on an already heavily regulated sector by stating that it is working closely with the Health and Social Care Information Centre in the development of the IG Toolkit to ensure that there is minimal duplication. The ICO has also stated that it is aware of the CQC Essential Standards and will continue to review its own procedures to ensure that they are consistent.

Who will the new power apply to?

The new power, when it is introduced, will extend to all those NHS bodies that are currently subject to the freedom of information legislation:  namely, public sector providers of NHS services such as NHS Foundation Trusts, GP practices, Clinical Commissioning Groups and the Health and Social Care Information Centre.  It will not initially extend to cover private and third sector providers of NHS services, although this will be kept under review.

It is hard to see private and third sector providers should be treated differently, when they operate in the same market, handle sensitive personal data that has the potential to cause real damage and harm if not processed in accordance with the DPA, and are also already required to comply with the DPA.

The new power - a good thing?

The new power seems to be a new tool in the ICO’s toolkit to encourage NHS bodies to ensure that their processes, policies and procedures comply with the data protection principles rather than a means of unearthing and enforcing breaches of the DPA.  As  a backstop for encouraging NHS bodies to get their DPA house in order, this must be a good thing. But surely a good thing that should apply to all providers of NHS services not just NHS bodies.

The Ministry of Justice consultation outcome:  Extension of the Information Commissioner’s powers under the Data Protection Act 1998

https://www.gov.uk/government/consultations/extension-of-the-information-commissioner-s-powers-under-the-data-protection-act-1998

Subscribe by email

> Register to receive our legal updates and briefings direct by email

> Subscribe to our blog updates by email

Please note that the "FeedBurner" subscription service for our blog is provided by a third party and Mills & Reeve LLP therefore accepts no responsibility or liability for this service. Please also refer to our full terms and conditions.

Legal advice
Call 0844 381 4046 to speak to one of our lawyers or email us with your query. 

Our leading team of over 200 dedicated health lawyers has supported our clients on every NHS reorganisation for the last 25 years.