Editorial
Thanks to all of you who have taken the trouble to get in
touch with us to say how pleased you are that BHCR is
again arriving in your email inbox.
What a week it has been.
Continuing cash crisis, banks going bust. Banks being
bailed out, governments being bailed out. Governments
across the planet bailing out financial institutions and
trying to act in a coordinated way.
What does all this mean for care providers and their
staff?
Interestingly, we at Brunswicks think that all this turmoil
may result in a less aggressive approach to regulation.
Does that sound odd?
Let me explain; for the country to prosper and generate
wealth there needs to be a balance between many,
many things – including access to funds, carrying out
regulatory activity and so forth. Alarm has gripped
banks, stock exchanges and public servants, leaving
business and commerce to do what it can to weather
the storm.
As we move away from ‘panic’ to a more reasonable
and reasoned and reasoning environment Government
will begin to see just how much of a burden and a brake
on progress regulation has become in the UK in 2008.
There can only be one rational response – ease the
burden.
Not to do so will run risk of seeing the economy
plunging deeper into recession.
The week also saw a change to those responsible for
the sector following the Prime
Minister’s reshuffle – Ivan Lewis MP
is replaced by Phil Hope MP as
Minister of State with responsibility
for care services.
Abuse
1. MPS Urges Doctors To Remain Vigilant
For Signs Of Elder Abuse
5 October 2008—Medical News Today
With the elderly community set to be celebrated on
International Day of Older Persons (1 October), a
leading professional indemnity provider urged its
members to remain alert to potential indicators that
senior citizens have been abused.
The Medical Protection Society (MPS) said it issued
the advice partly because there is a greater tendency
in the media, and society generally, to focus on
abuse of children, rather than that of older people,
which often remains invisible.
Dr Stephanie Bown, MPS director of communications
and policy, said: "Statistics suggest a clinician could
encounter at least one victim of elder abuse for every
20 to 40 older people they see.”
2. Changes to the POVA Scheme from Winter
2008
From winter 2008 (the exact date will be notified by
DoH) there will be changes to the POVA scheme as
part of the transition to the new vetting and barring
scheme.
Subject to parliamentary approval, employers must
send referrals to the Independent Safeguarding Authority
(ISA) which will take barring decisions. If ISA
asks for information on a case, employers and the
Commission for Social Care Inspection must provide
it. Employer’s duties to check against the POVA list
before a person starts work remains unchanged.
Full details of the changes can be obtained from the
DOH website at the following address:
http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/
Vulnerableadults/DH_088153
Business News
Nothing to report
Care Homes
3. Care home gran, 101, must move rules
judge
4 October 2008 - Daily Mail
Care home woman, 101, must move
2 October 2008 - Guide 2 Care
The family of the sole resident of a Teesside care
home has lost a battle to prevent her being moved
from Parkview Care Home, but relatives of 101-yearold
Sarah Rutter argued that a move could kill
her. She was being cared for by 19 staff at a cost of
£7,400 a week as she had been the only resident
since July.
Ed. The case was discussed by a range of people
on BBC Radio 4 You and Yours 12.00 noon,
09.10.08.
4. Wii solution to age old problem
4 October 2008 – BBC News
Residents at a care home in Lanarkshire have
ditched their early morning exercises in favour of taking
turns on the Nintendo Wii. The computer console
responds to body movements and it is hoped that this
will help combat the problem of elderly falls.
For full report click here
5. Report gave care home zero rating
30 September 2008 – BBC News
Oakfield, run by a charity in East Maudit near Wellingborough
has been given a zero rating after an unannounced
inspection. The home cares for adults with
learning disabilities and provides residential care for
18 people.
A new manager has now been appointed but said he
wanted to speak to the chairman of trustees before
commenting.
For full report click here
Case Reports
Law Reports
6. RBS v Harrison
The EAT held that entitlement to parental leave under
s.57A(1)(d) of the Employment Rights Act 1996 because
of the unexpected disruption or termination of
care arrangements for dependents, is not limited to
last minute unavailability or emergencies.
The issue that arose for consideration by the EAT
was as to the meaning of “necessary” and
“unexpected” in s.57A(1). RBS sought to argue that
as Mrs Harrison had been notified of the unavailability
of her childminder two weeks prior, the termination
could not be said to be unexpected. The EAT disagreed.
By a process of statutory interpretation, the
EAT stated that:
• that the passage of time between the employee’s
discovery of the forthcoming disruption of care
arrangements and that disruption taking effect
was to be considered as part of the question
whether it was “necessary” for an employee to
take the take off (s.57A(1))
• the word “unexpected” does not involve a time
element. There was no warrant for the insertion of
the words “sudden” or “in emergency” into s.57A
(1)(d)
[Thanks to Sian Reeves, pupil barrister at 1 Temple
Gardens, for providing this summary]
7. R (St Helens Borough Council) v Manchester
PCT and another
This is the case we referred to last week under
‘CASES in the news’. May LJ said that there is a
dividing line between health care and community
care, but no gap. We will keep an eye out for the full
report.
Disciplinary cases
8. IVF doctor accused of ‘money grabbing’
1 October 2008 - The times
Mohammed Taranissi, 53, who recovered costs of
£1m from HFEA when it wrongly raided one of his
clinics is before the GMC accused of misconduct –
one woman accused doctors at Mr Taranissi’s clinic
of “psychological blackmail”, but not him.
Cases in the news
9. Purdy
Suicide ban ‘breaches right to privacy’
3 October 2008 - The Times
Debbie Purdy, an MS sufferer went to the High Court
to establish the extent to which her husband would
be allowed to help her to die when she chooses the
time. She wants to be sure he will not be prosecuted.
10. Care home woman, 101, must move
3 October 2008 – BBC News
Woman, 101, in care home battle
29 September 2008 – BBC News
Sarah Rutter, the sole resident of Parkview care
home in Thornaby, was the subject of a battle between
Stockton Council and her family. The Council
is in the process of closing the home, but her family
initially won a High Court injunction preventing her
being moved, saying the move could kill her.
The battle has been lost by the family but an injunction
taken out prevents any action being taken and an
appeal is being lodged.
For 1st report click here
For 2nd report click here
11. Rosepark owners face court again
1 October 2008 – BBC News
Thomas Balmer, Anne Balmer and their son Alan
Balmer are to face criminal charges for a third time
over the blaze of Rosepark Care Home in Uddingston,
Lanarkshire in January 2004.
A preliminary hearing is due on 30 October at the
High Court in Glasgow and follows the decision of the
Appeal Court in July 2008 that the Crown could not
proceed with a prosecution against the Rosepark
Care Home firm because the partnership had been
dissolved.
For full report click here
Children
12. Improving care for children with long
term health needs
2 October 2008
DoH outlined proposals to improve the quality of care
for children with complex, long term health needs as
they launched the consultation on the National
Framework for Assessing Children's Continuing Care.
The Children's Continuing Care Framework proposes
to create a tailor made package of care for each child
or young person who will need care over an extended
period of time due to disability, accident or illness.
The package will support the child's parents or carers
to manage their care at home or in other settings
such as school and will include support from the
NHS, Education and Social Services.
The National Framework will assist Primary Care
Trusts (PCTs) and Local Authorities to obtain a complete
picture of a child's health needs so that decisions
on funding care packages can be made according
to the same set of criteria across the country.
Copies of the consultation can be found at http://
www.dh.gov.uk/children
13. Children are still being treated on adult
psychiatric wards, says report
1 October 2008 - The Times
Child mental health care warning
30 September 2008 – BBC News
Sir Al Aynsley-Green used his powers to force PCTs
to disclose what has been going on in clinics and psychiatric
wards – only 15% of trusts have complied
with Government’s commitment that all young people
would be treated in special units and not with adults.
For BBC report click here
14. Children's web watchdog launched
29 September 2008 – BBC News
The UK Council for Child Internet Safety (UKCCIS)
has launched a new internet watchdog to protect
children from "harmful" web content, such as cyberbullying
and violent video games.
It brings together social networking sites and technology
firms and the aim is to teach children about web
dangers, target harmful net content and establish a
code of conduct for sites featuring material uploaded
by users.
For full report click here
Conferences & Courses
To follow next week
Consultations
15. A Consultation on the NHS Constitution
Closing Date: 17 October 2008
This consultation seeks views on a proposed NHS
constitution that aims to empower both staff and patients,
containing clear pledges on the ways in which
the NHS will strive to go beyond the stated rights to
improve the working environment.
For full consultation click here
16. CSCI: Give us your views on Comprehensive
Area Assessment
Closing Date: 20 October 2008
This is a second consultation on the Comprehensive
Area Assessment (CAA) that has been launched.
The CAA is the framework due to be launched in
April 2009. This will assess how well councils deliver
all local services to their residents.
For full consultation click here
17. Responsible officers and their duties relating
to the medical profession - consultation
document
Closing Date: 24 October 2008
The White Paper 'Trust, Assurance and Safety' set
out an ambitious programme for the reform of professional
regulation including the creation of responsible
officers, who will be senior doctors with personal responsibility
for evaluating the conduct and performance
of doctors and making recommendations on
their fitness to practise as part of revalidation.
For full consultation click here
18. Changes to Arrangements for Regulating
NHS Bodies in Relation to Healthcareassociated
Infections for 2009-10: A consultation
for the NHS
Closing Date: 20 October 2008
A consultation seeking views on proposals for regulations
on the registration requirement for healthcareassociated
infections, a revised code of practice for
the prevention and control of healthcare-associated
infections and enforcement policies.
For full consultation click here
19. Public consultation on NHS plans
Closing Date: 31 October 2008
A public consultation outlining proposed improvements
for the next five years by Leicestershire NHS
Partnership Trust.
The plan is to change the partnership trust into a
foundation trust, which would be accountable to local
people and involve them in decision-making.
For full consultation click here
20. Consultation on Legislating for Sure Start
Children's Centres
Closing Date: 6 November 2008
This consultation is seeking views on proposals to
give Sure Start Children's Centres a specific statutory
legal basis, as part of the forthcoming Education and
Skills Bill.
For full consultation click here
21. Consultation on direct payments regulations
Closing Date: 11 November 2008
Direct payments are crucial to achieving the Government's
aim to increase independence, choice and
control for service users and their carers. The Health
and Social Care Act 2008 extends the availability of
direct payments to those people who lack the capacity
to consent. In addition, Government is reviewing
the current exclusions from receiving direct payments.
Government is now consulting on regulations relating
to these two changes.
For full consultation click here
22. Consultation on a Regime for Unsustainable
NHS Providers
Closing Date: 3 December 2008
Following publication of 'Developing an NHS Performance
Regime' in 06.08, the DoH has announced proposals
detailing the steps that would be taken if an
organisation failed, either for clinical or organisational
reasons.
The regime aims to:
* underpin the NHS performance regime;
* ensure the public receive high-quality services by
supporting quality regulation;
* reinforce the NHS Foundation Trust regime; and
* protect patients and staff from failing services.
The 'Consultation on a Regime for Unsustainable
NHS Providers' picks up at the point where an organisation
has failed to turn its performance
around. The regime is the last step for providers
who are subject to previous recovery actions by
Monitor or the NHS performance regime. It proposes
that a 'Trust Special Administrator' would be appointed
to take control of the Trust to ensure that it
continues to provide safe and effective services for
patients. They would also be required to produce a
report and consult swiftly on proposals for the future
of the trust.
For full consultation click here
23. Consultation on public, patients', and
other interested parties' views on additional
uses of patient data
Closing Date: 12 December 2008
NHS Connecting for Health is gathering people’s
views to help it make important decisions about the
ways the NHS can use information it collects about
patients.
Patient data is mainly used to provide care and treatment
but can also have additional uses such as research,
auditing the quality and safety of care, management
planning, etc. This consultation is focusing
on additional uses.
For full report click here
24. NICE: Current consultations
To browse through consultations go to http://
www.nice.org.uk/page.aspx?o=consultations.current
CSCI/Care Quality Commission
(w.e.f. 2009), CSSIW,
Healthcare Commission &
Scottish Care Commission
25. Care of all kinds gets a ‘super-watchdog’
3 October 2008 - The Times
Long report of interview of Baroness Barbara Young
–chairman of the new Care Quality Commission
which became a legal entity on 01.10.08 and now
exists in shadow form.
CQC will incorporate CSCI, Healthcare Commission
and Mental Health Act Commission and is expected
to become operational on 01.04.09.
She hopes to ‘fame’ best providers as well as
‘naming and shaming’ the worst.
Ed. There is no doubting the chairman’s commitment
to quality and ‘making care better for you’-
CQC’s strapline – however, we have heard it before.
Time was that the sector was told that good
care would be ‘celebrated’ and the best practice
cascaded down to all providers. It hasn’t happened.
Still, Baroness Young is different and, its a big
AND, if CQC is allowed by Government to exist
for longer than a couple of years she might just
be able to deliver.
26. “How we inspect
We are making changes to the regulation and
inspection of social care services”
A new publication from CSCI – just six sides long setting
out the process of inspection of care services.
27. Joint Inspection Visits with the Mental
Welfare Commission
3 October 2008 – SCRC
The Scottish Care Commission has started to carry
out unannounced visits to some 30 care homes
across Scotland to examine various issues of consent
in relation to the administration of medicines to elderly
people. They hope conclude their inspections by
Spring 2009.
For full report click here
28. Website network to improve care for older
people
2 October 2008 – SCRC
The Scottish Care Commission is trying to encourage
health and social care staff to use the innovative
learning network which allows them to share expertise
on the care of older people.
For full report click here
29. Guidance on Influenza Vaccine Administration
in Care Homes
1 October 2008 – SCRC
The Scottish Care Commission has updated its health
guidance on Influenza Vaccine Administration in Care
Homes for Winter 2008-09. This covers administration
by district/practice nurses employed by the care
home.
For full report click here
30. Directions to the Appointments Commission
in relation to the Care Quality Commission
2008
30 September 2008 – DoH
Directions came into force on 30 September 2008
which give the Appointments Commission
responsibility to carry out the Secretary of
State's functions in relation to the appointment of non
executive members of the Care Quality Commission.
For full report click here
31. CSCI acts to cancel Southampton care
home's registration
29 September 2008 – CSCI
The Commission for Social Care Inspection has obtained
a court order to cancel the registration of The
Briars Retirement Home, in Thorold Road, Bitterne
Park, Southampton.
The residential care home cannot legally continue to
operate.
The application to the court followed concerns that
led to the launch of a Police investigation last week
whereby CSCI inspectors found that some of the
residents needed urgent nursing care.
For full report click here
Ireland, Scotland & Wales
Ireland
32. Mental health services criticised
3 October 2008 – BBC News
The Bamford Review has found that mental health
treatment in Northern Ireland has not improved much
six years after a major review of services began.
The Review examined services for people with mental
illness and learning disabilities.
For full report click here
33. NI to scrap prescription charges
29 September 2008 – BBC News
Northern Ireland’s Health Minister, Michael
McGimpsey has announced plans to abolish prescription
charges by April 2010.
January 2009 will see the charge reduced to £3 per
prescription until April 2010. Prescription charges in
Wales have been abolished, with Scotland following
suit shortly. This means that England is the only
country in the UK to retain the charges.
For full report click here
Scotland
34. Joint Inspection Visits with the Mental
Welfare Commission
3 October 2008 – SCRC
For full report see CSCI etc.... - item 27
35. NHS records left despite warnings
3 October 2008 – BBC News
NHS Tayside ignored warnings to clear a former hospital
of patient information in spite of repeated warnings
by an NHS worker. The worker checked the site
after a break-in in 2005 and reported that items including
equipment, pictures of patients, school health
records, other patient information and staff payroll
details were found in wards which had already been
cleared.
NHS Tayside said it had learned many lessons from
what had happened.
For full report click here
36. New rules to protect patient data
3 October 2008 – BBC News
Scottish NHS boards warned that they must enforce
new rules to protect the personal information of patients.
The move comes after a series of blunders in
which patient records were lost or left lying in disused
hospitals.
Health Secretary Nicola Sturgeon has accepted the
recommendations made in a report compiled by NHS
Quality Improvement Scotland.
For full report click here
37. Cash boost for end of life care
2 October 2008 – BBC News
The Scottish Government has announced that an extra
£3m a year will be spent to improve services for
the terminally ill.
The announcement followed a report in August by
Audit Scotland which found inconsistencies across
the region in the way “palliative care” is currently provided.
For full report click here
38. Website network to improve care for older
people
2 October 2008 – SCRC
For full report see CSCI etc.... - item 28
39. Guidance on Influenza Vaccine Administration
in Care Homes
1 October 2008 – SCRC
For full report see CSCI etc.... - item 29
40. NHS patients in top-up drugs bid
1 October 2008 – BBC News
Nicola Sturgeon, Scotland’s health secretary has
said the current rules that ban Scottish patients from
paying for medicines whilst accessing NHS services
need to be clarified.
She pledged a review of the guidelines on "copayments"
after a report into the case by Holyrood's
petitions committee, as the report called for more
clarity on whether cancer patients can receive non-
NHS drugs.
For full report click here
Wales
41. Free prescription end 'nonsense'
5 October 2008 – BBC News
The Welsh Assembly Government has rejected
claims by a newspaper that free NHS prescriptions in
Wales could end because of the cost. The Government
said the claims were “absolute nonsense”.
For full report click here
42. 'Arms length' NHS board rejected
1 October 2008 – BBC News
Welsh health minister, Edwina Hart, has announced
she will chair a new NHS Wales advisory board despite
suggestions that an “arms length body” would
be more appropriate.
She has been accused of a “personal takeover” as a
result.
For full report click here
43. OAP champion urges involvement
1 October 2008 – BBC News
Ruth Marks, Wales’s “champion” for the elderly has
revealed her first report on the UN International Day
for Older People. She took up the role as older people's
commissioner for Wales in April and promised to
ensure a greater role in policy-making for pensioners.
Her role is to raise awareness of the policy implications
of an ageing society, to challenge discrimination
and promote a positive image of ageing.
For full report click here
Learning Disabilities
44. Disabled band scores film first
4 October 2008 – BBC News
A documentary about the punk band Heavy Load has
been premiered in London. The band includes musicians
with and without learning disabilities and follows
them as they record their first album.
It also charts the band's efforts to break into the
mainstream, from fundraising gigs to playing tough
pubs.
For full report click here
45. Foundation for People with Learning Disabilities
2 October 2008
The Annual Review of the Mental Health Foundation,
incorporating the Foundation for People with Learning
Disabilities, has now been released in an eco friendly
hard copy as well as a free download.
To down load please vis i t : h t t p : / /
www.learni n g d i s a b i l i t i e s . o r g . u k / p u b l i c a t i o n s / ?
EntryId5=31146&q=0%C2%ACannual%C2%AC
46. Mental Capacity Act Guide
Foundation for People with Learning Disabilities
2 October 2008
We recently launched a guide to help people make
sense of the Mental Capacity Act and what it means
for people dealing with their banks. The easy-read
booklet entitled “Banking on good decisions” can be
ordered either from our website or by getting in touch
with our Customer Services team at 0207 803 1101
or customerservices@mhf.org.uk
47. NHS pledge over learning problems
28 September 2008 – BBC News
The East of England Strategic Health Authority has
announced its commitment to improve access to
healthcare for people with learning disabilities. The
decision is the result of a consultation that found
those with learning disabilities found it difficult to access
NHS services.
For full report click here
Legislation Update
Nothing to report
Mental Capacity
48. Deprivation of Liberty
The standard form documentation was expected to
become available in September 08 – it is now hoped
that it will be available later this month.
We will notify you when we notice new info.
Mental Health
49. The 2007/08 national survey of investment
in mental health services
29 September 2008 – DoH
This is the Department of Health’s sixth annual report
presenting the results of the finance mapping exercise
carried out as part of the autumn review process.
It includes details of the level of investment in adult
mental health services in England for 2007/08 and
compares it with recorded results in the five previous
years.
For full report click here
Miscellaneous
50. ‘Assisted suicide abroad would mean a
two-tier death service’
4 October 2008 - The Times
In a two page article Baroness Warnock has said it
would be wrong to grant immunity from prosecution
to relatives who help the terminally ill to die abroad.
51. Palliative care receives boost in Scotland
3 October 2008 - Health Service Journal
Scottish health secretary Nicola Sturgeon yesterday
announced annual funding of £3m to support palliative
and end of life care as she launched Living and
Dying Well, a national action plan that sets out a new
direction for palliative care in Scotland.
52. Top researchers appointed to lead the
way in health and social care research
3 October 2008
A directory listing 100 of the most prestigious health
and social care researchers has been published by
the National Institute for Health Research.
The Directory lists Senior Investigators who have
been chosen to support the people making the most
outstanding contribution to patient and peoplefocused
health research. In addition to their research,
Senior Investigators will give new leadership
to the NIHR Faculty, expert advice to the Director of
the NIHR, act as NIHR ambassadors and promote
clinical and applied people-focused research in health
and social care.
The NIHR Senior Investigator Directory can be
v i e w e d a t : h t t p : / / w w w . n i h r . a c . u k /
faculty_senior_investigators.aspx
53. Care workers net £7m lottery win
1 October 2008 - news.bbc.co.uk
Nine care home workers in east London have won a
share of a £7m lottery jackpot. The winners work in
Upminster, East London, who call themselves A1
Carers, have vowed to continue working at the care
home despite the win.
Ed. I wonder if they might buy the care home
which they work in!
54. Health is global: a UK Government strategy
2008-13
30 September 2008 – DoH
A strategy outlining a set of principles and actions
that the UK Government will focus on over the next
five years to improve the health of people across the
world, including the UK.
The strategy also highlights the importance of coherence
and consistency in government policy and identifies
ways to work even more effectively with our
partners to deliver better health outcomes.
For full report click here
55. Human rights in healthcare: reports from
learning events
30 September 2008 – DoH
Reports from three human rights in healthcare learning
events that were held nationally. The reports give
an overview of the learning event and highlights key
learning and discussion from the event.
For full report click here
56. Overview of the Department's management
boards and committees
30 September 2008 – DoH
The Department of Health is managed by the Departmental
Board within the strategic framework set by
Ministers and focuses on the biggest strategic crosscutting
issues and risks for the Department and its
work programmes.
For full report click here
57. Help the Aged and Age Concern merger
moves closer
30 September 2008 – NCF
Help the Aged and Age Concern England charities
will be merging in April 2009 after a decision was
taken at separate Board of Trustee meetings.
A chair for the new organization was appointed on 3
September 2008.
For full report click here
NHS
58. Patients ‘at risk’ from flawed £12bn IT
system
5 October 2008 - The Sunday Times
There are so many flaws in the NHS National IT project
that seriously ill patients are at risk of wrong diagnosis
according to an internal document assessing
the system at the first hospital to use it – Royal Free
Hampstead NHS Trust.
59. Dying patient forced to pay £20,000 for
NHS care
5 October 2008 - The Sunday Times
Carole Simmons, 59, died the third person who is
known to have been forced to pay for her NHS care
after paying for unavailable medicine privately. The
NHS withdrew all care and support.
60. Concerns over hospital's hygiene
3 October 2008 – BBC News
The Healthcare Commission has raised concerns
about cleanliness and hygiene after an unannounced
visit to Derriford Hospital in Plymouth.
It found that the hospital trust did not meet its duty for
providing a clean and appropriate environment and
was also failing in its management systems for tackling
hospital bugs.
For full report click here
61. 'Cash for unhealthy to visit GP'
3 October 2008 – BBC News
North East Essex primary care trust is considering a
pilot scheme which would provide cash incentives to
encourage the unhealthiest people to visit their GP.
The trust says the plans could save the NHS thousands
of pounds by preventing conditions such as
heart disease but critics said that the NHS should not
be using scarce resources effectively to bribe people
to live healthily.
For full report click here
62. NHS data handling to be tightened
2 October 2008 - E-Health Insider
David Nicholson, CEO of NHS, is reported to have
written to all NHS Trusts asking them to check that
their trust has fully implemented the DoH policy on
encryption of removable data.
63. Secretary of State agrees new posts at
Appointments Commission
2 October 2008
The Secretary of State for Health has made three
appointments to the board of the Appointments Commission.
Mrs Betty Thayer and Mrs Jill Robertson have been
appointed as new non-executive directors.
Mrs Margaret Scott has been appointed to the combined
role of Commissioner and non-executive director.
The Remuneration payable is £33,249 for Commissioner
/ non-executive director and £7,765 for nonexecutive
directors.
64. Mixed fortunes for London trusts
2 October 2008 – BBC News
The Audit Commission has found that London NHS
trusts are actually the best and worst in England
when it comes to managing their finances. Of the 20
worst performing trusts across England, 11 were in
London and half of the 14 best performing trusts were
also from the same area.
The commission's annual review of 302 trusts found
282 met minimum standards for the way in which
they managed their finances in 2007-2008. The survey
rated trusts on how well they planned, managed
and safeguarded their finances, among other criteria.
For full report click here
65. NHS told 'do better over finance'
1 October 2008 – BBC News
The Audit Commission’s review of 302 trusts found
that 282 were meeting minimum standards in balancing
their books, managing finances and getting value
for money. The remaining 20 had to improve. The
Commission’s review also found that patients should
be getting a better deal.
For full report click here
66. Human Rights in Healthcare: Reports
from learning events
1 October 2008 – DoH
These are three reports from national human rights in
healthcare learning events. They provide an overview
of the events and highlight key learning and discussions.
For full report click here
67. Corporate Manslaughter and the NHS:
Speech by Maria Eagle
30 September 2008 – Ministry of Justice
A transcript of the speech made by Justice Minister
Maria Eagle at an NHS Confederation event in London
on 30 September 2008. She spoke about the
impact of the Corporate Manslaughter Act on the
NHS.
For full report go to http://www.justice.gov.uk/news/
sp300908a.htm
68. How England helps the Welsh NHS
1 October 2008 – BBC News
Article on how NHS trusts compare on the English/
Welsh borders.
For full report click here
69. More single rooms in NHS - Tories
29 September 2008 – BBC News
The Conservative party has promised to raise the
number of single rooms in NHS hospitals to help
tackle infections and improve patient experiences.
The plan, as announced by health spokesman, Andrew
Lansley to create 45,000 extra single rooms by
the end of the first term of a Tory government will cost
about £1.5bn.
For full report click here
Nursing
70. New leaders for the NMC
Prof. Tony Hazell has been appointed in principle to
lead the Nursing & Midwifery Council; he is currently
a member of the Health Professions Council – a post
held since 2002.
Graham Smith has joined the NMC as interim Chief
Executive, to remain in post until a permanent CEO
has been appointed.
Older People
71. Health and Care Services for Older People:
Overview report on research to support
the national service framework for older people
2 October 2008 – DoH
Summary report showing key findings from a group
of 16 studies on older people’s use of services. The
aim of the initiative was to inform and assess the implementation
of the national service framework for
older people.
For full report click here
72. Health revolution means more golden
oldies reach 100
30 Sept 2008 The Times
One in 15 Britons now in their mid-eighties will live to
be more than 100 as a result of improved nutrition
and medical treatment, according to official figures.
Parliament
73. Ivan Lewis has been replaced as Care
Services Minister by Phil Hope
Phil Hope was elected MP for Corby and East Northamptonshire
in 1997 and was appointed Minister for
the Third sector in June 2007. Previous to this, he
served as Parliamentary Under Secretary of State for
Skills, Parliamentary Private Secretary to John Prescott,
the Deputy Prime Minister and to Nick Raynsford
as Minister of State for Housing and Planning. Phil
was appointed Parliamentary Under-Secretary of
State at the Office of the Deputy Prime Minister in
June 2003 with responsibility for building regulations,
regulatory and public sector reform, e-local government,
the Fire Service College and the Local Government
Pension Scheme. At ODPM he also supported
the Minister for Local Government, regional governance
and fire, Nick Raynsford.
http://www.cabinetoffice.gov.uk/about_the_cabinet_office/
phil_hope.aspx
“As announced a few weeks ago, this new heading
will get underway shortly and become a regular
feature. I am delighted to report that I have
concluded discussions with PLMR, a political lobbying
and media relations business with a particular
focus on the social care and health sectors.
From later this month there will be a
monthly ‘round up’ of what has been taking place
in Parliament.”
Social Care
74. Review of Health and Social Care Burdens
3 October 2008 – DoH
A document providing the Department of Health's
formal response to the review by the lifting the burdens
task force on the burdens placed on local government
as a result of its relationship with the department.
For full report click here
75. Top researchers appointed to lead the
way in health and social care
3 October 2008 – NCF
The National Institute for Health Research has published
a directory listing 100 of the most prestigious
health and social care researchers.
The Directory lists Senior Investigators who were
chosen to support the people making the most outstanding
contribution to patient and people-focused
health research.
For full report click here
76. Does anyone care about fairness in adult
social care?
29 September 2008 – NCF
Key proposals are reviewed in adult social care of the
last ten years from an equity perspective and uses
the analysis to argue that we can develop practical
policies that are informed by clearly stated equity
principles which serve to ensure that the most disadvantaged
groups of people are treated more fairly.
For full report click here
Workforce
Nothing to report
Deprivation of Liberty—
Part 2
7. HOW MAY DEPRIVATION OF LIBERTY BE
APPLIED FOR AND AUTHORISED?
A managing authority is responsible for applying
for authorisation of deprivation of liberty. In
the case of an NHS hospital the managing authority
will be the NHS body running the relevant
hospital. In the case of a care home or private
hospital it will be the registered provider.
A supervisory body is responsible for considering
requests for authorisations. For hospitals,
this will be the PCT which commissions the care
or treatment or the PCT for the area in which the
hospital is situated. In Wales, the supervisory
body will be the Welsh Ministers or a Local Hospital
Board unless a PCT commissions the care
or treatment, in which case the PCT will be the
supervising body.
In the case of care homes, the supervisory body
will be the local authority for the area in which the
person is normally resident or, if the person is not
ordinarily resident in the area of any local authority,
the supervisory body will be the local authority
for the area in which the care home is situated.
8. WHAT ARE THE CATEGORIES OF AUTHORISATION?
Normally, standard authorisation will be appropriate.
This will cover the situation where someone
is likely to be placed in a care home or hospital
within 28 days.
Keith M Lewin
Chris Smith
A standard pre-printed form (not available at the
time of preparation of this article – reference will
be given in a future edition of this publication) will
to be used setting out the medical and personal
history of the relevant person including care plans
and needs assessments.
Where the managing authority believes that it is
appropriate to deprive someone of his liberty before
the standard authorisation process can be
completed the managing authority itself must give
authority and then subsequently obtain standard
authorisation within seven calendar days.
9. WHO SHOULD BE INFORMED IF AN APPLICATION
HAS BEEN MADE?
The managing authority should normally inform
the person’s family, friends and carers and
any IMCA involved unless it is impractical or inappropriate.
10. WHAT IS THE ROLE OF AN IMCA?
This is an Independent Mental Capacity Advocate
(not to be confused with any other form of advocate).
If the supervisory body is informed that
there is no family or friends, nobody appropriate to
consult, then an IMCA must be appointed immediately
in order to represent the person.
IMCAs have the right to make submissions, to
receive copies of any assessments and/or communications
from the supervisory body. Additionally,
they are entitled to make applications to the
Court of Protection.
11.WHAT IS THE ASSESSMENT PROCESS FOR
STANDARD AUTHORISATION?
The supervisory body must obtain relevant assessments
which must be completed within 21
days from receipt of request for standard applications.
These are:
• age assessment
• no refusals assessment (i.e. is there any conflict
with any other existing authority for decision-
making for that person, for example, an
advance decision about welfare)
• mental capacity assessment
• mental health assessment
• eligibility assessment
• best interest assessment
12.WHAT ARE THE RESTRICTIONS ON SELECTION
OF ASSESSORS?
There must be a minimum of two assessors and
the mental health and best interests assessor
must be different people. An assessor must not
have a financial interest in the person’s care and
must not be a relative of the person being assessed.
Additionally, the ‘best interests’ assessor may be
an employee of the supervisory body or managing
authority but must not be involved in the care or
treatment of the person nor in decisions.
13. WHAT IS THE PROCEDURE ONCE ASSESSMENTS
COMPLETE?
If all the assessments conclude that the person
meets the requirements for authorisation, the supervisory
body must give standard authorisation;
otherwise, the supervisory body cannot give authorisation.
In the event that standard authorisation is granted,
it must be recorded in writing, and provide the information
specified in the standard documentation
(again, not available at the time of writing). The
supervising body must also appoint a representative
for the person.
Thereafter, the managing authority must take all
practicable steps to ensure that the person understands
the effect of the authorisation and that
there is the right to challenge the authorisation in
the Court of Protection.
14.HOW LONG WILL THE AUTHORISATION
LAST?
It should last for the shortest possible period and a
deprivation of liberty authorisation will never give
authority to treat people, nor to do anything else
which would normally require consent.
Ordinarily, the supervising body will specify the
duration of the depravation of liberty which may
not, in any event, exceed 12 months and may not
be longer than necessary.
Before any ‘current authorisation’ expires, the
managing authority may seek a further authorisation
for up to 12 months, provided it is established,
on the basis of further assessment, that the requirements
continue to be met.
15.IN WHAT CIRCUMSTANCES ARE URGENT AUTHORISATIONS
APPROPRIATE?
These should normally only be used in sudden
unforeseen circumstances. They may be helpful
in care planning (e.g. in avoiding delays in a transfer
to rehabilitation) but they can never be given
without a request for a standard authorisation being
made simultaneously.
They are not appropriate where there is no expectation
that a standard deprivation of liberty authorisation
will be needed (e.g. where a person is in an
accident and emergency unit and it is anticipated
that within a few hours or days will be moved into
a facility which for the person’ best interest will
entail a depravation of the person’s liberty).
If granted, an urgent authorisation must not exceed
seven days. In exceptional circumstances,
the managing authority may ask the supervising
body to extend for a maximum of a further
seven days.
An urgent authorisation automatically terminates
at the end of the period for which it was granted
(unless extended as above).
16. WHAT IS THE ROLE OF THE RELEVANT PERSON’S
REPRESENTATIVE ?
The supervisory body must appoint a relevant
person’s representative in each case where a
standard authorisation is granted. Essentially, it
is the representative’s role to maintain contact
with the relevant person and to support that person
in all matters relating to the deprivation of
liberty safeguards (e.g. triggering a review or
making applications to the Court of Protection).
In order to be eligible, a person must be over 18,
able to keep in contact with the person and willing
to be appointed.
There is no presumption that the relevant person’s
representative should be the same as the
person who is their nearest relative for the purposes
of the Mental Health Act 1983, as the roles
are not the same. A crucial factor to consider is
whether the relevant person appears to trust and
feel comfortable with the proposed representative.
17.WHEN SHOULD AN AUTHORISATION BE REVIEWED?
The managing authority has a clear duty to monitor
each case on an ongoing basis and must set
out in the care plan the roles and responsibilities
for monitoring and requesting a review.
There are four specific statutory grounds for a
review:
• The relevant person no longer meets the no
refusals, mental capacity, mental health or best
interests requirements
• The relevant person no longer meets the eligibility
requirement because they object to receiving
mental health treatment in hospital and
could be admitted under section 2 or section 3
of Mental Health Act 1983
• There has been a change in the relevant person’s
situation and it would be appropriate to
amend existing conditions or to add a new one
• The reason the person now meets the qualifying
requirements is different from the reason
given at the time the standard authorisation was
given.
18.WHAT HAPPENS IF IT IS SUSPECTED THAT
SOMEONE IS WRONGLY BEING DEPRIVED OF
LIBERTY?
Initially, this should be brought to the attention of
the managing authority. A standard form of letter
may be used (again, not yet available). The managing
authority must respond within 24 hours,
given the gravity of any deprivation of liberty. Often,
the issue may be resolved informally but, if
not, the managing authority should submit a request
for a standard authorisation to the supervisory
body.
If the managing authority fails to act, any concerned
person may apply directly to the supervisory
body who will appoint someone to carry out a
best interests assessment, assuming the complaint
is not frivolous or vexatious.
Once the assessment has been completed, the
supervisory body must notify the concerned third
party, the relevant person, the managing authority
and any IMCA involved. If dissatisfied, the concerned
person can refer the case to the Court of
Protection.
19. WHAT IS THE JURISDICTION OF THE COURT
OF PROTECTION?
The relevant person is entitled to the right of
speedy access to a court which can review the
lawfulness of actual or potential deprivation of liberty.
Such a challenge can be made both before
the authorisation is made and after it.
The court may vary or terminate any authorisation
or direct the supervisory body or the managing
authority to vary or terminate the authorisation.
20. HOW ARE APPLICATIONS TO THE COURT
OF PROTECTION FUNDED?
Legal aid will be available both for advice and representation.
Useful additional information is readily
available on the Office of the Public Guardian
website http://www.publicguardian.gov.uk/
21. HOW WILL THE SAFEGUARDS BE MONITORED?
Regulations will confer the responsibility for monitoring
on the Care Quality Commission which is
anticipated will be operational in April 2009. The
inspection body will have wide powers to require
supervisory bodies and managing authorities to
disclose records and other information to them.
22. WHAT STEPS SHOULD CARE HOMES & INDEPENDENT
HOSPITALS BE TAKING NOW IN
ORDER TO ENSURE COMPLIANCE?
• review all locked door/locked ward policies
• review statements of purpose/service user guides
• review policies/procedures in relation to the provision
of door keys to service users
• review care planning processes to incorporate consideration
of whether a person has capacity to consent
• arrange training for staff in relation to the new law
and the accompanying Code of Practice and implement
updated procedures
• inform insurers immediately if you become aware of
any circumstances which may lead to a claim for
damages for deprivation of liberty and specifically
check you have the broadest possible cover
• devise a protocol with placing authorities and local
authorities in relation to applications for authorisation
To discuss any issue arising from this article or
any care related legal issue contact the authors
Chris Smith and Keith Lewin, solicitors in the
specialist social care law firm Brunswicks LLP.
Chris and Keith can be contacted on 0870 766
8400 or by email to chris.smith@brunswicks.eu
and keith.lewin@brunswicks.eu