On your marks!

Jeremy Hunt, when he held the position of Health & Social Care Secretary, published a letter to independent hospitals on 8 May 2018 urging them to “get their house in order and improve safety.”  One of the triggers for this was the Care Quality Commission (CQC) identifying that a third of independent hospitals “required improvement” as they demonstrated poor practice and unsafe care.

The Independent Healthcare Providers Network (IHPN) has now produced a Medical Practitioners Assurance Framework (2019) which has been described by Chair, Sir Bruce Keogh as the equivalent of firing “a starting gun …to improve care and confidence in the private sector.” A link to this framework is provided here

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Duty of candour prosecutions – is silence golden?

The statutory duty of candour has been hailed the greatest reform in patient rights in the modern era. It was brought in under the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 as amended, in response to the Mid Staffordshire Inquiry.

The regulation 20 duty of candour requirements are detailed and specific.  There is an overriding obligation to be open and transparent, coupled with clear requirements to notify patients and/or their families where there is any unintended or unexpected incident, whether this amounts to an error or not.  This notification must be prompt. Whilst the requirements are dependent upon the level of harm sustained, the underlying principles governing the provisions are focussed on ensuring that patients are kept properly informed and that errors and/or other unintended consequences are not ‘brushed under the carpet’.

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Liberty Protection Safeguards – the new ‘gilded cage’

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019 and the Deprivation of Liberty Safeguards (DoLS) will be replaced with the Liberty Protection Safeguards (LPS).  The DHSC has confirmed that the intention is for  the LPS system is to come into force on 1 October 2020.

Under the new LPS, just as with the DoLS, there is no statutory definition of deprivation of liberty and it is given the same meaning as it has under Article 5(1) of the European Convention on Human Rights (ECHR).  Guidance is to be given in the LPS code of practice about the type of arrangements that would give rise to a deprivation of liberty. Progress is being made and the final draft of the Code is expected to be prepared by Spring 2020.

The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference with or breaches of Article 8 ECHR (right to private and family life).

The acid test for what restrictions constitute a deprivation of liberty will continue to be whether a person is under ‘continuous supervision and control and not free to leave’, as per the Supreme Court ruling in P v Cheshire West [2014] UKSC 19.

What has changed?

  • The LPS apply to any setting (and will include supported living, private and domestic settings, unlike before) so authorities will no longer need to apply to the Court of Protection for individuals not in a care home or hospital.
  • The LPS will be extended to all those aged 16 or above (DoLS only applied to those aged 18 or over).
  • A responsible body will be able to authorise arrangements that give rise to a deprivation of liberty (in any setting or more than one setting):-
    1. Where the arrangements are in an NHS hospital this will be the “hospital manager” (the trust or health board).
    2. Where the arrangements are mainly in an independent hospital, the responsible body will be the “responsible local authority” in England and the equivalent health board in Wales.
    3. In cases of NHS continuing health care, the relevant clinical commissioning group or health board.
    4. In all other cases the responsible local authority.
  • Before a responsible body can authorise the arrangements, the following three conditions must be satisfied:-
    1. The person lacks the capacity to consent to the arrangements.
    2. The person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983.
    3. The arrangements are necessary to prevent harm to the cared for person and proportionate in relation to the likelihood and seriousness of harm to the cared for person.
  • Before arrangements can be authorised the responsible body must consult with defined individuals to try and ascertain the cared for person’s wishes or feelings about the arrangements.
  • A pre-authorisation review must be carried out by person who is not involved in the day-to-day care or providing treatment to the person.
  • If there are any challenges/objections then an Approved Mental Capacity Professional will be appointed provide an additional level of scrutiny to make the process more workable and proportionate.
  • Authorisation can have effect immediately or up to 28 days after.
  • Unlike DoLS, under the LPS authorisation can be renewed. Initial authorisation will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained, provided that the authorisation conditions continue to be satisfied.
  • The responsible body must arrange a programme of regular (as well as statutory) reviews.

Appeals

The Court of Protection will continue to have jurisdiction to hear any challenges, including whether the LPS apply to the arrangements, whether the authorisation conditions are met and the duration of the authorisation. The court can also vary or terminate the authorisation or direct the responsible body to vary the authorisation.

Commentary

It is inevitable that there will be an increase in the number of applications in the care home setting to which the new LPS regime will apply and the impact will be significant. Care homes will need to implement transitional arrangements for current DoLS authorisations and familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.

In circumstances where the arrangements are wholly or partly carried out in a care home, the responsible body will have to decide whether to arrange the necessary assessments or whether the care home manager should do so. The responsible body can delegate tasks in relation to renewal to a care home manager in relation to care home arrangements.

The responsible body/care home manager must ensure that the detention arrangements do not go beyond the scope of the authorisation. The Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers has not been taken forward but the government has taken the view that the tort of false imprisonment should provide an adequate remedy, by way of civil claim, against private care providers responsible for the deprivation. It is likely that this will be revisited as such cases arise.


Written by Jane Lang and Aliyah Hussain at BLM

Think tank proposes free personal care for the over 65s to be funded by tax rise

In light of the government’s promise to publish a Green Paper on social care, the Institute of Public Policy Research has proposed in a new report a 2p tax rise in order to fund free help for elderly.  This would include help with basic tasks such as getting up and eating, as well as funding full time care for complex needs such as dementia.

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NHS Procurement Rules under attack

An online campaign survey has revealed huge support for an overhaul of the current procurement requirements within the NHS and to free the NHS from overly rigid procurement requirements.

A survey run by 38 Degrees asked “to what extent do you agree that the law should be changed so that contracts to run NHS services no longer have to be put up for auction?” In response to this, 89% expressed that they strongly agreed.

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Local Government and Social Care Ombudsman good practice guide for care providers

The Local Government and Social Care Ombudsman (“the Ombudsman”) is a statutory body which investigates individual complaints about all adult social care providers for the last 10 years.  Its work includes investigating care homes and domiciliary care, and care that is funded privately.   

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