Health commissioning blog


March 31, 2015 5:16 PM | Posted by Fawlk, Catherine | Permalink

The National Health Service (General Medical Services Contracts and Personal Medical Services Agreements) (Amendment) Regulations 2015 (the Regulations) come into force on 1 April 2015. The Regulations introduce new mandatory contractual terms that must be included in general medical service (GMS) contracts and personal medical services (PMS) agreements made between NHS England and GMS or PMS contractors (contractors).

Which terms are being introduced and why?

  • All patients under the age of 75 must be provided with a named, accountable GP. This term requires contractors to assign an accountable GP for every patient under the age of 75, except where the patient does not want one to be assigned to them. The accountable GP will take lead responsibility for coordination of all services provided to the patient at the contractor’s practice. Introduction of this mandatory term follows on from the introduction, in 2014, of a named, accountable GP for those patients aged 75 and over.
  • Provision of NHS Primary Medical Services to certain armed forces personnel. This term enables a contractor to accept a member of HM armed forces as a patient for a maximum of two years, if authorised in writing by the Defence Medical Services and the contractor is satisfied that he/she is living or working within the contractor’s practice area. Currently, patients who join HM armed forces are removed from the list of GPs providing NHS primary medical services.
  • Publication of earnings information. This term requires contractors to publish details of mean net earnings of GPs who are party to a GMS contract or PMS agreement, or who are employed or engaged by the contractor, whether on a full time or part time basis for a specified minimum period, in their practice for the previous financial year. This information must be published annually for the preceding financial year on the practice website (or on the NHS Choices website where the practice does not have a website) and in the practice leaflet. Contractors will also be required to publish the number of full and part time GPs associated with the published figures.
  • Extension of the scope of online access to medical records and improvement in online appointment booking. This term requires a contractor to provide patients with online access to their medical records except in certain limited circumstances. In addition, it also requires the contractor to act to increase the number of appointments available for its registered patients to book online where this is necessary to meet the reasonable needs of those patients.
  • Mandatory contractual terms requiring:
    • Contractors to establish and maintain a Patient Participation Group for the purposes of obtaining, reviewing and acting on feedback from the contractor’s registered patients about the services provided by the contractor.
    • Contractors to offer alcohol screening to newly registered patients over the age of 16 and to offer appropriate interventions to any such patient who is identified as drinking at increasing, higher or dependent levels

      Currently, contractors have the option to establish a Patient Participation Group or offer alcohol screening as both are directed enhanced services.
  • Provision of information on out-of-hours services. This term introduces a requirement on contractors who provide out-of-hours services to their registered patients to comply with any requests for information about the provision of such services which are made by or on behalf of NHS England.
  • NHS contracts and NHS disputes. Currently, contractors can chose whether their GMS contract or PMS agreement is to be either an NHS contract or a non-NHS contract. Disputes arising from an NHS contract are determined by the NHS Litigation Authority. Disputes arising from non-NHS contracts are determined through the courts unless the contractor opts to use the NHS disputes procedure. Contractors may alter the status of their contract if they wish.

    Currently, if the holder of an NHS contract changes the status of the contract to non-NHS contract any disputes relating to the period when the contract was an NHS contract may not be determined by the NHS Litigation Authority. This new term provides in effect, that disputes under a GMS/PMS contract or agreement that is not an NHS contract, but which relate to a time when the contract was an NHS contract, may be referred to the NHS dispute resolution procedure by either the contractor or NHS England.

  • Responsibility for out-of-area patients. Currently, a GMS/PMS contractor is unable to remove a patient from their list of registered patients on the ground of the patient’s medical condition. This new mandatory term allows contractors who have registered patients from outside of their practice area to remove them from their list if there is a change in the patient’s medical condition which means it is, in the opinion of the contractor, no longer clinically appropriate or practical to continue to provide services to them on a basis which does not include home visits.
  • Friends and family test. The requirement that a contractor gives patients the opportunity to provide anonymous feedback about the service received from the practice through the friends and family test was introduced in October 2014. Practices were required to report the results of their friends and family test to NHS England and publish the results of completed tests at a local level,(although NHS England guidance was not specific about the manner of publication). The amended term dealing with the friends and family test effectively removes the requirement for a contractor to publish the results of completed tests at local level.
  • Practice leaflet. Finally, the amended Regulations now require that contractors include in their practice leaflet information on the new mandatory contractual terms namely the Patient Participation Group and the alcohol screening service.
March 18, 2015 2:41 PM | Posted by Richards, Tania | Permalink

The Public Contracts Regulations 2015 (Regulations) were recently published and came into effect on 26 February. The 2015 Regulations are of importance to the all in the NHS (whether buying goods and services or bidding) and the independent and third sector when bidding for NHS work.

From 26 February, the old distinction between “Part A” and “Part B” services disappears and is replaced by the new ‘light touch’ regime. Under the light touch, all health, social and some other services contracts within the Common Procurement Vocabulary codes set out at Schedule 3 of the 2015 Regulations must be advertised in the OJEU in accordance with Regulation 74, if valued at over EUR 750,000 (currently £625,050). Note, however, that this “light touch” regime does not (yet) apply if the contract is for health services within the scope of the NHS Procurement Regulations. While the majority of former “Part B” services fall within “light touch”, don’t assume this as there are some notable exceptions (including no catch all “other services” category). Those services which are not expressly identified in Schedule 3 will now be subject to the full regime.

The introduction of the light touch regime is delayed until April 2016, however, for NHS commissioners (Clinical Commissioning Groups and NHS England) when commissioning NHS health care services (i.e. those covered by the Section 75 of the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013). This is in order to provide time to set out how the two regimes might work together. Amongst a number of other tensions between the regimes, how, in particular, will Monitor’s guidance on the Section 75 Regulations (which is very clear that these do not establish competition as the default process), apply once the light touch regime (which requires the contract be advertised in the OJEU if over EUR 750,00) is in place?

It is as yet unclear how the tension between the two regimes can be resolved; Commissioners can only wait - and hope - that by the time April 2016 dawns and with the further bedding down of the Section 75 Regulations, there will be some clear and practical guidance available which will not leave Commissioners facing even more uncertainty and confusion but which helps them to make robust and compliant commissioning decisions. That said, with less than 50 days to go before the general election and Labour’s promise to repeal aspects of the Health and Social Care Act and make the NHS the preferred provider of services with a statutory exemption for the NHS from EU procurement and competition law, the future is far from certain. Although Labour’s plans to exempt the NHS from EU rules is disputed by health think tank, the King’s Fund in a briefing published today.

All procurements commenced (i.e. advertised) on or after 26 February will fall under the new regime. Procurements commenced before that date will continue to be regulated by the Public Contracts Regulations 2006.

We have produced a range of resources including a handy user guide to the Public Contracts Regulations 2015 and a user-friendly 2015 Regulations timescale tracker; to help navigate your way around the new procurement landscape. You can register to receive procurement updates and seminar invitations at www.mills-reeve.com/signup.

March 12, 2015 4:00 PM | Posted by Richards, Tania | Permalink

Since the decision of the Supreme Court in P v Cheshire West and Chester Council (& Ors) and P and Q v Surrey County Council (Cheshire West), there has been a vast increase in the number of people deprived of their liberty by the state.

Many CCGs are reviewing their NHS Continuing Healthcare packages to determine whether the care packages amount to a deprivation of liberty under the new test. Where the patient’s care package is not delivered in a care home or hospital (such as supported living) an application will need to be made to the Court of Protection for an Order approving the care plan.

We have developed some fixed price options for assisting CCGs with applications to the Court of Protection and we can also offer training for staff on identifying care packages which require an application.

For further information on managing applications to the Court of Protection and our fixed price options, please contact on 01223 222448 or on 0207 6489237.

March 5, 2015 10:48 AM | Posted by Richards, Tania | Permalink

After an extensive review of whistleblowing in the NHS, Sir Robert Francis has published his Freedom to Speak Up Review (the Review). Perhaps not unexpectedly he has concluded, after considering information submitted by individuals and organisations in writing and in person, that although many whistleblowing cases are handled well by NHS organisations, too many are not, which he believes has and continues to have a disproportionate impact on individuals who are deterred from speaking up by the fear of adverse consequences or the belief that nothing will be done to address the issues raised. Francis concludes that ultimately this places patients at risk. He recommends that all NHS organisations implement the principles and actions set out in the Review to effect necessary changes to the way in which individuals raise concerns and the way in which these are dealt with.

The Secretary of State for Health has accepted all of the actions highlighted in the Review, and has agreed that further consultation will be undertaken, where appropriate, to work out how these actions can be implemented.

Francis highlights 20 principles, together with a series of related action points, which fall under the following five overarching themes:

  • Culture change
  • Improved handling of cases
  • Measures to support good practice
  • Particular measures for vulnerable groups
  • Extending legal protection

Francis emphasises that boards must lead on effecting a culture change, to move away from a “blame culture” and “foster a culture of safety and learning, in which all staff feel safe to raise concerns”. Noting that whistleblowers do not always know who to turn to, Francis recommends that each organisation establish a full time independent “Freedom to Speak Up Guardian”. The guardian would give independent support and advice to staff who want to raise concerns, raise them at board level and hold the board to account should it fail to focus on a patient safety issue. The Secretary of State for Health has said that each organisation should act now to make this appointment. The Review also recommends that organisations nominate non-executive directors to take specific roles in relation to receiving concerns and that a manager in each department is nominated to receive reports.

Francis envisages that this culture can be achieved through training staff in how to raise and address concerns (such training to be devised by Health Education England and NHS England), as well as taking a proactive stance in addressing bullying and performance issues. Whilst he has rejected calls for the establishment of an external body to investigate complaints, he emphasises that investigations must be prompt, swift, proportionate and blame free. Investigators must have the necessary expertise and, critically, have the time to investigate the matter without having to fit it around their day job. He is critical of lengthy periods of suspension and special leave concluding that these measures leave whistleblowers isolated and susceptible to mental health issues. He recommends that suspension and special leave should only be considered when there is a risk to patient or staff safety, there is concern about criminal wrong doing or tampering with the evidence. Instead he recommends that consideration be given to redeployment to other sites or non-patient facing roles. Further, he cautions against moving whistleblowers who have raised concerns about colleagues from their roles, as this may be seen as a deterrent to raising concerns.

Whilst he notes that he has not reviewed any recent settlement agreements which prevent (or “gag”) individuals from blowing the whistle, he also notes that confidentiality clauses can be worrying for individuals. He recommends that confidentiality clauses should only be included when they are in the public interest (although the meaning of this is not clear) and that the chief executive should review all agreements to satisfy themselves that this has been complied with.

Nationally, Francis recommends that a role of Independent National Officer (INO) be established to provide national oversight and review of the treatment of NHS whistleblowers. They may provide advice to organisations and the Freedom to Speak Up guardians. The INO is not intended to have binding powers, although Francis envisages that they will work with regulators and recommendations may become binding via regulatory mechanisms. Recommendations are also made to strengthen legal protections for whistleblowers so as to protect them from victimisation when applying for new employment, expand the list of prescribed bodies/persons with whom disclosures can be raised and for the establishment of a scheme to enable whistleblowers to find new employment in the NHS.

Francis has recommended that regulators should regard departure from good practice, as set out in the Review, as relevant to whether an organisation is safe and well-led. Organisations will need to update policies and procedures as a result of the Review. If we can assist with this, please let us know.

For further information or advice please contact on 0121 456 8206 or on 01223 222280.

February 19, 2015 9:06 AM | Posted by Winn, Tim | Permalink

The Department of Health launched a consultation in February on proposed amendments to the regulations that allow health bodies and local authorities to enter into partnership arrangements. The two most significant amendments are:

GP commissioning can be delegated to local authorities

This amendment would allow NHS England to enter into section 75 arrangements with local authorities for commissioning primary medical services, by adding section 83 of the National Health Service Act 2006 into the list of NHS functions in respect of which such arrangements may be made. One use of this provision could be to bring the primary medical services budget into a section 75 pooled fund. The consultation document contemplates that this might be a three-way arrangement between NHS England, local CCGs and the local authority, with a view to integrating out-of-hospital care commissioning. In this respect, the guidance builds on the concept of co-commissioning of GP services and the work already done on managing GP conflicts. The document goes on to ask whether respondents think that dentistry, ophthalmology and pharmacy commissioning would also benefit from being brought into the regulations, although that is not currently part of the proposal.

Better Care Fund consultation requirement

Under current regulations, CCGs and local authorities are required to consult persons who may be affected by proposed partnership arrangements. The amendments in the draft regulations set out in the consultation document remove this requirement in relation to BCF. This will come as a relief to CCGs and local authorities, given the short timetable to finalise their BCF arrangements.

The consultation closes on 8 March 2015.

February 9, 2015 3:41 PM | Posted by Fawlk, Catherine | Permalink

Clinical Commissioning Groups (CCGs) are required by virtue of the National Health Service Act 2006 to make arrangements for managing conflicts of interest and potential conflicts of interest to ensure that they do not effect or appear to effect the integrity of the CCG’s decision making processes.

In addition, Regulation 6(1) of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (the Procurement, Patient Choice and Competition Regulations) prohibits commissioners from awarding contracts for NHS healthcare services where conflicts, or potential conflicts between the interests involved in commissioning such services and the interests involved in providing them affect or appear to affect the integrity of the award of that contract.

The opportunity offered by NHS England to CCGs to take on responsibility for the co-commissioning of primary care means CCGs are exposing themselves to greater risk of conflicts of interest both real and perceived.

NHS England issued on 18 December 2014 revised guidance “Managing conflicts of interest: Statutory guidance for CCGs” which supersedes previous conflicts of interest guidance issued in March 2013. The revised statutory guidance specifically addresses conflicts of interest relating to the co-commissioning of primary medical care as well as conflicts of interest issues that may arise in connection with procurement.

The revised guidance also builds on guidance from other national bodies, in particular Monitor’s guidance on the Procurement, Patient Choice and Competition Regulations and also includes at Annex 5, ten key questions to act as a prompt for CCGs in considering key issues when reviewing their current arrangements for managing conflicts of interest.

CCGs may already have reviewed and amended provisions in their constitutions dealing with conflicts of interest to take account of the revised conflict of interest guidance, as part of the process for approval of amendments to their constitutions, particularly if they have chosen to engage in joint or delegated models of co-commissioning.

However, all CCGs must have regard to the revised guidance and be prepared to explain why they have not followed it. In addition, the revised guidance states that CCGs who take on delegated or joint commissioning, will be required through their audit committee chair and accountable officer, to provide direct formal attestation to NHS England that their CCG has complied with the revised guidance. In the future, such attestations will form part of an annual certification.

CCGs need to ensure that they identify and manage potential actual conflicts from the outset. Failure to do so could lead to a complaint to Monitor or a challenge in the courts that a conflict of interest has affected the integrity of any contract award, possibly resulting in the suspension of a procurement process, having to abandon and re-run it and possible damages claims. Challenges either through the courts or as a result of a complaint to Monitor are becoming increasingly common and even if unsuccessful, can result in delays, disruption and legal costs.

NHS England’s publication of the revised conflicts of interest guidance comes at a time when more than half of CCGs are reported to have submitted detailed plans to co-commission primary medical services and when CCGs will be considering what to do about community services as contracts entered into as part of the Transforming Community Services programme are about to expire. The revised guidance is a timely reminder that the management of conflicts of interest should be at the forefront of CCGs’ minds.

January 22, 2015 3:44 PM | Posted by Richards, Tania | Permalink

Since 5 January 2015, GP practices have been able to register new patients who live out of area without home visiting responsibilities or out-of-hours services when the patient is unable to attend their registered practice. NHS England, through its area teams, remains responsible for ensuring that patients who choose to register out of area can continue to access urgent care during core hours if they cannot reasonably be expected to attend their registered practice. When a patient needs to access urgent medical care during the out-of-hours period when at home, this continues to be the responsibility of the CCG in whose area they live.

NHS England’s area teams, GP practices and CCGs will need to review the guidance and consider the implications for implementation and arrangements for extending patient choice of GP practice.

January 22, 2015 3:34 PM | Posted by Shah, Surbhi | Permalink

In the case of Balogun v South London and Maudsley NHS Foundation Trust the claimant, a registered mental health nurse, was dismissed for gross misconduct after it was found that she had slapped a patient. The employment tribunal (ET) found that the dismissal was unfair because the Trust had not "discharged the burden of showing a potentially fair reason for dismissal", the Trust had not interviewed the service user in accordance with its disciplinary procedure and Polkey did not apply.

The employment appeal tribunal (EAT) found that:-

  1. The principal reason for dismissal was misconduct and that the failure by the claimant to admit this misconduct "was an additional, subsidiary, reason for the dismissal". In any event, the EAT stated that the former reason related to the conduct of the employee.
  2. The Trust's explanation for not complying with its disciplinary procedure because it wanted to protect the service user as a vulnerable patient and not wanting to prejudice the police investigation were important factors that should have been taken into account when deciding whether the Trust had acted reasonably.
  3. The Employment Judge in finding that there was a "possibility that the outcome would have been different in the absence of the defects involves an implicit finding that there was a possibility that the outcome would have been the same ". That is, the claimant would have been dismissed for gross misconduct even had the correct procedure been followed (Polkey principle).

The EAT remitted the matter to a fresh ET to re-consider the case to consider whether the Trust had acted within the band of reasonable responses in dismissing the claimant and, if a Polkey reduction is relevant.

January 8, 2015 2:04 PM | Posted by Elsegood, Simon | Permalink

Firstly, Happy New Year to you all!

A new year always gives us a little time to ponder on what the future might hold for the year ahead. Along with the rest of the NHS, Monitor has been thinking about how to reduce the growing demands on A&E.

Monitor has recently published the results of its investigation into how other comparable health systems work. Monitor found three specific service models in use abroad that might be able to offer benefits if used more widely by the NHS:

  • patients who need urgent treatment at night or weekends first contacting an out-of-hours GP, based in a specialist clinic that is often co-located with an A&E department. Fewer than half the number of patients per thousand (around 120 per year) in the Netherlands attend A&E compared with England (around 278 per year). This already happens, for example, in Cambridgeshire where patients undergo a triage from a qualified nurse and can access out-of-hours GP services, some of which are co-located in A&E.
  • a 3-tier network of maternity care with more structured links between maternity and paediatric services and agreed protocols for transfers. Under this approach the lowest-risk mothers-to-be give birth close to home, while higher-risk patients are treated at more specialist units, for example with neonatal intensive care beds or facilities for premature babies. The NHS already uses this sort of “risk-tiering” approach in services like stroke and A&E, but the report says the NHS could learn from the experience of Stockholm in Sweden, and Ontario in Canada.
  • patients who have complex care needs, but live in rural areas, using technology such as video links to access highly specialist care from the kind of expert doctors that might not be available at their local hospital. This is happening in areas such as Surrey, where a telestroke service currently operates.

Monitor has already identified some local models of out-of-hours care that are working well, so no doubt it will be pushing for these to be rolled out more widely during 2015.

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