Health commissioning blog


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.

December 18, 2014 2:52 PM | Posted by Fawlk, Catherine | Permalink

Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the Regulations”) which creates a fit and proper person requirement for directors of NHS bodies (“FPPR”) came into force on 27 November 2014.

CQC guidance on Regulation 5, to which NHS bodies are required by the Regulations to have regard in meeting the FPPR, was issued on the same date.

NHS bodies for the purpose of Regulation 5 are NHS trusts, NHS foundation trusts and some special health authorities that provide care and treatment and are regulated by the CQC.

Subject to Parliamentary approval, the FPPR will extend to all providers of care and treatment from 1 April 2015.

Regulation 5 applies to executive and non-executive directors and any other person performing the functions of or equivalent or similar functions to a director.

Regulation 5(3) provides that providers must not appoint or have in place a director unless they:

  • are of good character;
  • have the qualifications, competence, skills or experience necessary for the office; and
  • are capable by reason of their health (once reasonable adjustments have been made) of performing the tasks intrinsic to their office.

Additionally, Regulation 5(3) provides that directors:

  • must not have been responsible for, be privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing the service elsewhere, which if provided in England would be a regulated activity; and
  • none of the grounds of unfitness referred to in Schedule 4 Part 1 (which includes being bankrupt, being on the children’s or adults’ barred list, or being prohibited by enactment from being a director of carrying out a regulated activity) must apply.

It is the serious misconduct or mismanagement test that has attracted the most attention as the terms used mean that the test is wide ranging and uncertain in scope. The CQC guidance adds rather than detracts to this uncertainty by stating that, “serious misconduct or mismanagement means behaviour that would constitute a breach of any legislation or enactment which the [CQC] deems relevant to meeting these regulations.” There is also no indication of how far back providers need to look when considering serious misconduct.

The CQC will examine whether NHS bodies are meeting the FPPR using information which it receives and through its inspections.

The CQC guidance requires the chair of the NHS provider to declare that “appropriate checks have been undertaken in reaching a judgement that all directors are deemed to be fit and none meet any of the unfit criteria”.

The CQC will focus in its inspections, on whether providers have the appropriate systems and processes in place to enable it to assess whether the FPPR is met. Although the CQC may impose a condition on a provider’s registration, the primary responsibility to ensure that the FPPR is met is on the provider. Regulation 5(6) requiring NHS bodies to “take such necessary and appropriate action” to ensure that the office or post is held by an individual who meets the FPPR.

NHS trusts and foundation trusts need to look carefully at their recruitment and appraisal processes for directors as well as whether they have the means of taking appropriate action should any of their directors not meet the FPPR.

December 4, 2014 2:17 PM | Posted by Shah, Surbhi | Permalink

ACAS has published their latest statistics on how Early Conciliation (EC) is working. Since May 2014 anyone wishing to make a claim against the Employment Tribunal is required to notify ACAS with the intention of allowing the parties the opportunity to resolve the dispute without the need for a claim. The EC update provides an early indication of the number of notifications made during the first six months and the number of employees and employers agreeing to EC and the proportion of cases that are settled following EC or that then go on to the Employment Tribunal.

The headlines are:

  • In the period April 2014 – September 2014, ACAS received notification in 37,404 cases, of which 1,156 notifications cover multiple employees covering 8,142 individuals
  • 10% of employees reject the offer of EC
  • 10% of employers decline to participate in EC when contacted by ACAS
  • 18% of ECs result in a COT3 settlement
  • 9,918 cases did not result in a tribunal claim being issued. That is 58% of all notifications received in the period April 2014 – September 2014. This will include cases where the agreement reached in conciliation is implemented without the need for a formal COT3 agreement
  • Of the 4,198 cases which resulted in tribunal claims being issued, 989 were settled by ACAS

Early indications are that unless a case has good prospects of succeeding, employees are unlikely to issue a claim and employers should wait to see if the employee is willing to incur the tribunal fee before issuing a claim.

December 4, 2014 2:13 PM | Posted by Elsegood, Simon | Permalink

Many CCGs’ SLAs with CSUs will shortly be coming to an end and NHS England has already signalled that these should not be extended beyond April 2016. Commissioning support must be openly procured to secure best value and to comply with EU procurement law. There is a significant risk of challenge (with costs attached) if CCGs do not do so. Using the Framework is the quickest and simplest way of complying with the law and getting the best value. NHS England encourages as many CCGs as possible to use the Lead Provider Framework.

NHS England has published a simple handbook containing sample tender forms and good practice specifications to help CCGs buy from the framework. NHS England says that it will help CCGs to work through these documents when the CCG is clear about what and when it is going to procure. The documents are available at www.england.nhs.uk/lpf.

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.

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.