Somewhat surprisingly, the question of the responsibility of NHS bodies/local authorities to provide s.49 MCA reports at no cost to the parties has not been the subject of a reported judgement until now!
Alex Ruck Keene reports
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Somewhat surprisingly, the question of the responsibility of NHS bodies/local authorities to provide s.49 MCA reports at no cost to the parties has not been the subject of a reported judgement until now!
Alex Ruck Keene reports
EMASB - Information Curator's insight:
In RS v LCC & Ors  EWCOP 56, District Judge Bellamy has now stepped into the breach, although, as he noted, the difficult questions arising the provision of s.49 reports and their consequences for public bodies may ultimately have to be considered elsewhere.
The detailed facts of the case are not relevant. Suffice it to say to say that, during the course of a s.21A application, the court required a s.49 report to be provided by the mental health Trust responsible for P, addressing her capacity “as the gateway to the jurisdiction of the court.” The relevant NHS Trust declined to provide the report, both on the basis that it was impossible to provide it, and – more fundamentally – that it was inappropriate for the evidence sought to be provided by way of an order under s.49. The Trust’s objections were both specific to the nature of the evidence sought and more generally directed to the application of s.49 in respect of individuals for whom they already had a clinical responsibility. The Trust advanced 10 reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49. As District Judge Bellamy then addressed each of these reasons in turn, it is convenient to set out each of the objections together with his conclusions on each point in turn:
(1) The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.
Conclusion: While I note the argument there is no such distinction [i.e. between patients and non-patients] drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.
There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.
Conclusion: The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.
(3) A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.
Conclusion: A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.
The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.
Conclusion: The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.
(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.
Conclusion: The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.
(6) The request was a publicly funded body into proceedings of which it has no involvement.
Conclusion: The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.
(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.
Conclusion: The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.
A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.
Conclusion: While this is noted the answer to 7 would seem to cover this.
(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover:
Conclusion: I have already dealt with this in 7 above.
(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.
Conclusion: As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.
District Judge Bellamy therefore declined to vary or alter the principle behind the original order directing the s.49 report, although he noted that: “it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.”
On the very specific facts of this case, an immediate question comes to my mind as to why District Judge Bellamy did not seek a report (under s.49) from a Special Visitor. If the issue to be addressed was that of P’s capacity, and the court felt that it needed independent expertise in order, the obvious route to obtain that evidence is undoubtedly that provided for by the Special Visitor route. There may well have been reasons not apparent on the face of the judgment why such a course was not open to him, and, if so, then the course adopted would appear to have been both proportionate and reasonable. The conclusion that a public body cannot seek to recoup the costs of preparation of such a report is also undoubtedly correct.
The case, though, does raise a wider point about the importance of s.49 reports that may be at risk of being lost in the (understandable) concerns expressed by public bodies as to the time and resources that may be required where they are directed to provide such reports. The Court of Protection is a strange beast. It is regularly said to be inquisitorial in its jurisdiction: see, e.g. Re G  EWCOP 1361 at paragraph 26. However, by comparison with the Family Division/Family Court, which is also said to discharge an inquisitorial jurisdiction, the Court is strangely underpowered – there is, in particular, no equivalent to a children’s guardian (whether a consequence is that the role of litigation friend in the COP is being distorted is something I am working on at present). If COP judges are to be put in a position where they are able properly to assess the questions of P’s capacity and best interests, it is crucial that they are, themselves, able to identify and call for such evidence as they see fit. Section 49 is therefore vital, both as regards the ability to call for reports from (Special) Visitors and for evidence from NHS bodies/local authorities. There is undoubtedly a price to be paid in consequence by such bodies, but, societally, it is a small one to pay for the proper determination of such cases.
Sir Stephen Bubb, the Chief Executive of ACEVO (Association of Chief executives of Voluntary Organisations), published his final report "Time for a Change"
Organisations), published his final report Time for a Change: The Challenge Ahead on 22 February 2016, almost 5 years after the showing of a Panorama programme that exposed the abuse and neglect of residents at Winterbourne View. In the aftermath of the programme the Government made a promise to move everyone with learning disabilities and/ or autism inappropriately housed in a hospital out of those settings by June 2014.
Despite Government’s promise the deadline was missed and almost three and a half years later there had been barely any change. As a result of the ensuing criticism Sir Stephen was asked by the National Health Service England (NHSE) to chair a steering group to examine services for people with learning disabilities and/or autism. His first report, Winterbourne View – Time for Change was delivered in November 2014.
In that report he made a number of recommendations, the key priorities being: The closure of inappropriate institutions and the ramping up of community provision; and that Government legislate for a Charter of Rights for people with learning disabilities and their families.
Both of these were accepted by NHS England and by the Government. In his final report Sir Stephen considers the steps that have been taken by the Government since his last report and concludes that progress has been made in the last year. He reports that the NHSE has announced a major programme to move people with learning disabilities out of hospital and into their communities and that in October 2015 the
Transforming Care Programme published a national plan for services for people with learning disabilities and/or autism entitled ‘Building the Right Support’. By 2019 the Transforming Care Programme intends to reduce the number of inpatient beds by up to 50% nationally and develop community–based services to prevent people from being admitted to hospital and to ensure that there are meaningful alternatives to hospital-based care across the country.
Sir Stephen is nevertheless critical of the progress. He believes that the scale of the problem has been underestimated, pointing to research suggesting that 3,500 people are currently in hospital-based settings; which is 900 more than stated by the government programme. In his view 10,000 extra members of trained staff will be needed to support people in their own community.
The report makes two key recommendations. An independent evaluation of this programme. He suggested that a real-time, independent evaluation commissioned by the Department of Health with the commitment to publish all interim and final evaluation reports; A Learning Disabilities Commissioner be appointed who would have a statutory duty to promote and protect the rights of all people with learning disabilities and/or autism in England’.
Specifically Sir Stephen questions whether the amount of £15 million that has been made available by NHSE to Transforming Care Partnerships for capital projects will be sufficient. The review calls on NHSE and DH to explain publically how this fund will be administered and, given £15 million is unlikely to be adequate, how it will ensure that sufficient continuing investment is available as the rate of people being discharged increases over the next 3 years. In recommending that a learning Disabilities Commissioner be appointed he points out that the Government has yet to introduce the recommended legislation on rights.
He refers to the Government’s response to the Green Paper ‘No voice unheard, no right ignored’ which does not commit to legislative change to enshrine in law rights for people with a learning disability. He comments that “nearly five years after the scandal at Winterbourne View Hospital we are still waiting to see any changes – it is time that someone is given the job that needs doing, which is making life better for all children and adults with learning disabilities and ensuring their rights are respected and enhanced, and their views taken seriously.” The report also calls on the Transforming Care Programme to consider the accreditation of training in Positive Behavioural Support with a view to establishing an appropriate body to manage the design of a PBS Standard and tiered accreditation systems for individuals and organisations delivering and receiving PBS. It highlights the risk to those with learning disabilities and/or autism of the capping of
housing benefits to Local Housing Allowance Rates that is to start in April 2016. He recommends that the Government makes an explicit exemption for supported housing. The findings in Sir Stephen’s report are supported by a report published on the same day by the Royal College of Nursing (RCN) which says that many people with learning disabilities are still unable to receive the care and support they need because of issues with staffing services and strategy. Sir Stephen accepts that “there is a commitment to closures and to developing community care [on the part of the Government] and that there is a step change in the attitudes of the national partners responsible for setting the agenda.” He believes however that “failing to deliver this new programme is simply not an option” and that “success will be recognised only when the closure of hospitals is made possible by the development of community based services, with people who have learning disabilities, their families and carers at the centre of the design.” He believes that the Transforming Care Programme can achieve changes on the ground but cautions that the challenge has been underestimated before.
39 Essex Chambers - Beverley Taylor
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The Department of Health is seeking views on proposed changes to the death certification process in England and Wales.
This consultation seeks views on proposed changes to the death certification process and accompanying draft regulations. These changes include the introduction of independent medical examiners who will confirm cause of all deaths that do not need to be investigated by a coroner. The consultation also seeks views about making changes to cremation regulations – the current role of the medical referee, who authorises cremations at a crematorium, will be abolished when medical examiners are introduced. In this consultation the Ministry of Justice seeks views on introducing a statutory duty on registered medical practitioners to report deaths in prescribed circumstances to the coroner for investigation. The Welsh Government has devolved powers for appointing medical examiners and the funding mechanism for medical examiner services in Wales; an additional consultation will be published in Wales in due course.
Ways to respond
Respond online or Email to: firstname.lastname@example.org
Write to: Improving the Process of Death Certification in England and Wales Consultation Death Certification Reforms Programme Team Department of Health Room 2N15 Quarry House Quarry Hill Leeds LS2 7UE
Tim Hill and Laura Wilmshurst Eversheds LLP report:
Unfortunately, deaths in care homes are a relatively common occurrence. As such, it’s not difficult to understand why care providers are regularly required to assist a Coroner’s investigation or attend inquests as a Properly Interested Person (PIP) regarding the death of a service user.
Attending an inquest can be a very daunting experience for all parties, especially care providers and staff who have worked closely with the deceased. Care providers are likely to have a number of different roles to fulfil including: the management and collation of documentation for the Coroner, the liaising and supporting of any staff involved, communicating with the family of the deceased and dealing with any negative PR (before, during and after any inquest). In addition, it is now common place for the family to seek to lay the blame at the care providers’ door. Care providers therefore need to exercise caution when engaging with the inquest process.
As a care provider, we’ve set out below some of the key information you should know about the inquest procedure.
What is an Inquest?
An inquest is a public inquiry to examine witnesses on oath who can give any relevant evidence or information in order to establish who the deceased was, and how, when and where they came by their death. The inquest’s task is to establish material facts: there are no parties, sides, prosecution or defence. An inquest is not a trial and the apportionment of blame is not a finding for an inquest to make.
Inquests are held at Coroner’s courts, in public before a duly appointed Coroner. Coroners are independent judicial office holders who are appointed by a local authority within the Coroner’s area. Coroners are usually lawyers, but they are sometimes doctors. All Coroner’s in England and Wales report to the Chief Coroner, His Honour, Judge Peter Thornton QC.
The costs of all inquests are met by the local authority for that area, this includes any costs incurred by a Coroner throughout the inquest procedure including travel, expert’s fees etc.
When is one held?
Less than half of all deaths are reported to a Coroner. However, doctors or the police should report deaths to a Coroner’s office if one or more of the below applies:
no doctor saw the deceased during his or her last illness;
a doctor is not available to certify the death;
the death was due to violence or neglect;
the cause of death is unknown;
the death was sudden and unexplained;
the death was unnatural;
the death occurred at work;
the death was in other suspicious circumstances; or
the deceased died while in prison, police custody or another type of state detention.
As soon as a death is reported to a Coroner, he or she must establish whether further investigation is required to establish the key facts surrounding the death (detailed further below). The Coroner may refer the death to another organisation for investigation if the Coroner thinks it is appropriate to do so, such as the Police, the Health and Safety Executive (HSE), the Care Quality Commission (CQC) or the Independent Police Complaints Commission. In circumstances where a Coroner has referred a death for investigation by another organisation, any inquest will be adjourned until the conclusion of that investigation. This is because the Coroner will want to use the conclusions and results of that investigation to assist him or her in reaching conclusions for the inquest.
If an inquest is required, it should normally take place within six months of the death being reported to the Coroner. A Coroner must report all inquests which are still ongoing after 12 months to the Chief Coroner explaining the reason for the delay.
In some circumstances, particularly for more complex inquests, the Coroner may hold a Pre-Inquest Review (also referred to as PIRs). A PIR is a hearing prior to the inquest to determine any legal issues or discussions regarding the scope of the inquest (see below). All interested parties will have the opportunity to raise any issues, including what you consider the inquest should cover.
What is the purpose of an inquest?
The purpose of any inquest is to ascertain the factual answers to the following questions:
Who is the deceased? – The Coroner is required to establish the identity of the deceased
When did the death occur? – The Coroner must establish a time of death or where a specific time cannot be determined a range of time as to when the death most likely occurred
Where did the death occur? – A place of death will need to be recorded by the Coroner.
How did it occur?– The Coroner is required to ascertain how the deceased came by their death.
As intimated above, an inquest is different from other types of court hearing as there is no prosecution or defence. The sole purpose of the inquest is to discover the facts of the case in order to answer the above questions. There is no apportionment of blame and it is not possible for a Coroner to find a person or organisation responsible for the death. However, if evidence comes to light during the inquest, which suggests that someone or some organisation may be criminally responsible for the death, the Coroner will adjourn the inquest and pass all the evidence to the Police or other prosecuting authority.
Questions 1 to 3 (Who, when and where) are usually relatively straight forward for the Coroner to answer. It is the final question of “how” which presents the most challenge and what determines the overall scope of the inquest.
There are two types of inquest which will govern the Coroner’s approach to the final question:
“Article 2” inquests
In some limited circumstances, Article 2 of the Human Rights Act (the right to life) will apply to the inquest. Under Article 2, case law has established a “general duty” on the state (i.e. public bodies – hospitals, local authority etc) to protect life. Consequently, in circumstances where the Coroner identifies evidence of a breach of that duty by the state, an Article 2 inquest will be held.
For Article 2 inquests, “how” should be interpreted widely as “by what means and in what circumstances”. This is due to a higher investigative duty being placed on the state to investigate the circumstances surrounding the death. That could include investigation into decisions made by public bodies many months prior to the death.
Inquests which Article 2 does not apply are referred to as Jamieson inquest. At a Jamieson inquest the final question of “how” is given a much narrower interpretation as “by what means”. The inquest still has a duty to fully investigate the death, but any investigation will concentrate on the immediate circumstances surrounding the death.
What conclusions can be reached
At the end of an inquest, once all evidence has been heard, the Coroner will come to a conclusion. The conclusion includes the legal determination (the answers to the four questions - who, when, where and how). When recording the cause of death a Coroner may make use of any of the following terms:
accidental or misadventure;
still birth; or
open (this is used when the evidence heard means no conclusion can be reached)
A Coroner may also make use of a narrative conclusion which would set out a brief “narrative” of the conclusions he or she has reached. Usually this will set out the facts in slightly more detail and explain the Coroner’s reasoning.
Prevention of Future Death Reports
Coroners are under a statutory duty to make reports to a person, organisation, local authority or government department or agency where he or she believes that action should be taken to prevent future deaths, these are commonly referred to as PFDs. Each year around 600 PFDs are made by Coroners in England and Wales, but numbers are on the rise. If you are subject to a PFD you must respond to the Coroner within the allotted time.
Current trends and conclusions
The proportion of deaths reported to Coroner’s has been relatively consistent over the last 10 years, within the range of 42% and 47% of all deaths. However, the number of PFDs being reported is on the increase. A recent change in procedure means that all PFDs must now be reported and published online, including any responses. In practical terms, this means that they are now receiving more media attention than before.
As an organisation, knowledge and understanding of the inquest procedures is key. Ultimately, the evidence heard before an inquest is public and therefore capable of being reported in the press and being used as evidence in any civil actions. Unfortunately, we now live in a highly litigious society and it has become common place for the family of the deceased to seek compensation from care providers following an inquest.
Organisations should therefore take the time to consider their approach and exercise caution during the inquest process. If in doubt, you should consider legal representation in order to protect your interests.
Article By Eversheds LLP - Tim Hill and Surekha Gollapudi
Sherwood Rise Limited was fined £300,000 for corporate manslaughter on Friday 5 February 2016 following the death of a resident in 2012. This concludes an investigation which commenced after an elderly resident was found to be dehydrated and malnourished at the Autumn Grange care home in Nottingham after concerns about standards of care were raised by staff. The resident passed away after being moved to a different care home following an adverse inspection report from the Care Quality Commission.
The CQC report made the following observations:
“The staff we spoke with were not confident about people’s care needs and we were not confident about the arrangements in place to meet these needs.”
“People were not protected from the risks of inadequate nutrition and dehydration.”
“During the inspection we saw multiple examples of neglectful care in practice and in records.”
At the same hearing, a director of Sherwood Rise Limited was sentenced to three years and two months imprisonment for gross negligence manslaughter and a further employee was sentenced to one year imprisonment (suspended) for a health and safety offence. Charges brought against other directors for gross negligence manslaughter were dropped at earlier hearings.
Sherwood Rise Limited is classed as a micro organisation under the new Guideline and despite no longer operating at the time of sentencing and having a significantly reduced turnover it appears that the band was rigidly applied following the company’s guilty plea.
Separately, the healthcare sector has seen the collapse of a corporate manslaughter trial following the death of a woman shortly after she gave birth to her second child. In the first prosecution of an NHS trust under the Corporate Manslaughter and Corporate Homicide Act 2008, the Judge ruled that the Maidstone and Tunbridge Wells NHS Trust had no case to answer after hearing the prosecution evidence. A locum anaesthetist was also found to have no case to answer in respect of a gross negligence manslaughter charge. A third defendant (the anaesthetist with primary responsibility for the patient) left the jurisdiction during the investigation and so did not face trial.
These cases highlight the increased scrutiny being placed on the healthcare sector by the regulator and by the press. When coupled with the increased penalties set out within the new Sentencing Council Guideline where large organisations with a turnover of £50 million or more can be fined up to £20 million for corporate manslaughter (with organisations significantly over this threshold being fined proportionately more), healthcare clients should seek early advice following an incident to understand the potential implications.
Court appointed deputies to receive new and improved report forms for health and welfare decisions and property and financial decisions.
EMASB - Information Curator's insight:
On Tuesday 1 March 2016, the Office of the Public Guardian (OPG) will introduce new and improved deputy report forms.
Property and financial decisions (OPG102) and health and welfare decisions (OPG104), will replace the existing combined form.
Deputies will now receive specific forms tailored to their deputyship order. Following user testing, the new forms are clearer with improved guidance designed to make them easier to complete.
We’re also introducing a shorter version of the OPG102, known as the OPG103. Existing property and finance deputies assessed under minimal supervision will be asked to complete the OPG103, when they report for the first time.
All other deputies, both new and old, will be asked to complete either the OPG102 or OPG104 depending on their court order.
OPG, responsible for supervising and supporting deputies, has increased safeguarding measures with a dedicated section in the property and financial decisions form.
In section 4 of property and financial decisions, deputies will be asked to detail the level of contact they have with their client, how the client’s care is funded and whether the client is receiving all their entitled benefits.
We’ve identified these key areas as early indicators that a client may be at risk of neglect or a red flag that the client is not receiving adequate support. If there are any inconsistencies, we can act quickly and investigate further.
Also, in section 5 of health and welfare decisions, deputies will need to provide information on the client’s care arrangements, and health and social activities. Again, this is to identify whether the client is receiving the appropriate level of support.
Public Guardian Alan Eccles, said:
“We have a duty of care to our deputies and their clients, and the redesign of the form addresses the needs of both groups. Deputies now have tailored report forms to suit their needs with a new look and feel, which makes for a more straightforward process.
“With additional questions and the introduction of the new safeguarding section, we can better support the deputies who need it the most, while protecting vulnerable members of society.”
As part of the new forms, professional and public authority deputies will be asked for more information about their fees and charges, using the new professional fees insert (OPG105) or the public authority deputy fees insert (OPG106).
We’ll also provide separate supporting guidance for each deputy report form, OPG102A or OPG103A for property and financial decisions and OPG104A for health and welfare decisions. They’ll be available on GOV.UK from 1 March 2016.
Property and finance deputies will have to complete an OPG102 or OPG103 each year, and health and welfare deputies will have to complete an OPG104 each year. Deputies with both orders have to complete the OPG102 or OPG103 and OPG104 each year.
From Tuesday 1 March 2016 until Thursday 1 September 2016, deputies can use either the old or new version of these forms to complete and submit a deputy report. However, after Thursday 1 September 2016, we’ll no longer accept the old version of the form.
Decisions about the treatment of patients who lack capacity are very difficult for healthcare providers, especially where it involves life-sustaining treatment"
This is demonstrated by the Court of Protection’s very recent judgment in St George’s Healthcare NHS Trust v P and Q  EWCOP 42.
EMASB - Information Curator's insight:
ARTICLE BY CLYDE & CO .
The case concerned the Trust’s application for a declaration that it would be lawful to withdraw the provision of renal replacement therapy (RRT) to P who was thought to be in a Persistent Vegetative State (PVS). It would be an “inexorable and inevitable” consequence that P would pass away shortly after the RRT was withdrawn.
P’s family opposed the application, maintaining that P was in fact in a Minimally Conscious State (MCS) and that, consequently, treatment should continue.
The Court weighed the burdens of ongoing treatment against the benefits of continued living. Specifically, the Court considered the preservation of life, P’s responses to his family and friends, and the possibility that continued treatment may improve P’s awareness. Set against this were factors such as the potentially undignified and painful nature of the treatment, the lack of any independence and the fact that P was highly unlikely to make any meaningful functional recovery.
The Court concluded that the balance fell in favour of preserving P’s life through continued provision of treatment. This was on the basis that he was in MCS rather than PVS. He appeared to gain pleasure and comfort from the contact with his family, and did not appear to be in any pain.
Guidance for healthcare organisations
Whilst not criticising the treating clinicians (and noting a reported 40% rate of misdiagnosis of PVS), the Court identified this case as being “another stark example of the absolute necessity for a structured assessment to have occurred before any application is even contemplated (sic)”.
It is suggested in the judgement that, if a “further and proper” assessment had been conducted, the application (and therefore costs thereof) could have been avoided and the “widening … gulf” between the Trust and the family could potentially have been lessened.
This guidance and the facts of this case show how complicated it can be to work through this type of situation and demonstrates the lengths to which Trusts are expected to go before making a Court application. It is important that healthcare organisations take time to consider what information the Court will require (if such an application is necessary). Where the withdrawal of life sustaining treatment is concerned, expert evidence and/or further assessments must be sought prior to making any application, particularly where there is a family dispute.
Has the Care Act granted an amnesty on care home fees? Jonathan Auburn reports.
EMASB - Information Curator's insight:
Jonathan Auburn , a Barrister at 11 KBW reviews the Care Act
Where a local authority has paid for an individual’s care home fees, and then seeks to take action to recover those monies, then the local authority is limited in how far back in time it can go in its claim. Prior to the Care Act, this was always taken as the normal limitation period for debt actions of six years. However, the Care Act provision on this issue looks rather different.
Section 69 of the Care Act 2014 provides for recovery of debts arising from care home fees which have been paid for by local authorities. Section 69(3)(b) applies to sums that fell due before the Act came into force on 1 April 2015, and sets the limitation period for those debts at three years, not six.
Why would Parliament set the limitation period thus, when care fees are recovered by way of ordinary civil debt claim, which attracted the usual limitation period of six years? That was always the limitation period applied to such fees recovery claims.
If Parliament had meant to halve the limitation period for these claims, this would have been mentioned during the consultation or Bill stage, surely?
It appears that the DoH believed that section 69(3) would bring no substantive change, and would simply keep the limitation period as it was.
The DoH’s October 2014 Care and Support Statutory Guidance states at page 387:
“23.25. … for any debts that have accrued prior to the commencement of the Care Act 2014 the time period for recovering that debt continues to be three years as previously set out under Section 56 of the National Assistance Act 1948 as any change to this would be retrospective and unfair. For any new debts that occur after the commencement of the Care Act 2014, the time period to recover debts has been extended to six years …” [emphasis added]
And further at page 439:
“Timing of debt recovery
“11. … For any debts that have accrued prior to the commencement of the Care Act 2014 the time period for recovering that debt continues to be three years as previously set out under Section 56 of the National Assistance Act 1948 as any change to this would be retrospective and unfair. For any new debts that occur after the commencement of the Care Act 2014, the time period to recover debts has been extended to six years …” [emphasis added]
The DoH’s subsequent guidance document “Update on final Orders under the Care Act 2014”, states at paragraph 20:
“20. Regarding transitional matters in relation to debt recovery, we will also clarify that:
- For debts that have accrued prior to the commencement of the Care Act 2014 and that would otherwise have been recovered under section 56 of the 1948 Act, the time period for recovering that debt continues to be three years from the date on which the sum in question became due, as previously set out under section 56 of the 1948 Act … [emphasis added]
This couldn’t be a simple mistake by the Parliamentary drafter’s office, could it?
If it was, they may perhaps have been confused by the pre-Care Act provision, Section 56(2) of the National Assistance Act 1948, which provides –
“(1) Without prejudice to any other method of recovery, any sum due under this Act ... to a local authority (other than a sum due under an order made under section 43 of this Act) shall be recoverable summarily as a civil debt.
“(2) Notwithstanding anything in any Act, proceedings for the recovery of any sum in the manner provided by the last foregoing subsection may be brought at any time within three years after the sum became due.” [emphasis added]
True it is that subsection (2) referred to a three year period. But that was not the general limitation period. The Limitation Act period of 6 years for debt claims still applied. Section 56 did not mean that the general limitation period was only three years. That three year period was for a very specific and limited alternative form of recovery, namely summary enforcement of civil debts. The opening words of Section 56 expressly reserved the other methods.
Summary recovery / enforcement of civil debts is no stranger to the statute books. The term “recoverable summarily as a civil debt” appears in a huge number of statutes. These all relate to summary enforcement in the magistrates’ court. The matter was explained in Bulley (Officer of Revenue and Customs) v Hemmer Investments Ltd  EWHC 938 (Ch). The issue also arose in Zissis v Lukomski  EWCA Civ 341, para 58, per Brooke LJ.
The mechanism for summary recovery / enforcement of civil debts is provided for in the Magistrates’ Court Act 1980, sections 58 and 150. It is an action in that court brought on complaint and heard summarily. Also see section 127 of the same Act. One can understand why, for this very particular form of action, a shorter limitation period was appropriate.
As for section 69 of the Care Act 2014, could it be that those drafting this provision misread the old provision (section 56 of the 1948 Act), tried to replicate the then existing legal position, and got it wrong? If that is what happened, then in doing so Parliament halved the existing limitation period of six years, and may have granted a form of amnesty on debts accrued from 2009 to 2012, where the sums fell due before the Act came into force on 1 April 2015.
Finally, there is an obscure provision in Article 3(4) of the Care Act 2014 (Transitional Provision) Order 2015 (SI 2015/995) which could, on one reading, retain the limitation period from previous legislation, and seek to achieve a result the reverse of that provided for by primary legislation. However it is by no means clear that this is what the Order is seeking, nor that it achieves such an aim.
If the above is right, then local authorities may need to issue proceedings for outstanding care home debts as quickly as possible.
Jonathan Auburn is a barrister at 11 KBW specialising in public law, local government, community care and related areas. He can be contacted on email@example.com or twitter @jonauburn11kbw
EMASB - Information Curator's insight:
Eighty-six courts and tribunals in England and Wales – representing almost a fifth of the total – are to be closed, the Ministry of Justice has confirmed.
In a written ministerial statement, Shailesh Vara, the Minister for the Courts and Legal Aid, claimed that the court and tribunal estate needed to be updated and many of the buildings were expensive to maintain but unsuitable for modern technology.
Vara added that the courts affected were used for just over a third of their available hearing time.
The Courts Minister insisted that the Government was committed to modernising the way in which in justice was accessed and delivered, with more than £700m to be invested over the next four years.
Vara said: “Court closures are difficult decisions; local communities have strong allegiances to their local courts and I understand their concerns. But changes to the estate are vital if we are to modernise a system which everybody accepts is unwieldy, inefficient, slow, expensive to maintain and unduly bureaucratic.”
The Government’s formal response to a consultation begun in July 2015 means that just five of the courts originally earmarked for closure have won a reprieve.
Sixty-four sites will close as proposed in the original consultation. A further 22 closures are to take place but with changes to the original proposals, the minister said.
More than 2,100 separate responses to the consultation were received, along with 13 petitions containing over 10,000 signatures.
The Law Society, which opposed the closure of 59 of the 91 courts earmarked for closure, expressed disappointment that the Government was pressing ahead with the closures.
President Jonathan Smithers said: “The majority of these closures will make it more difficult for a significant number of people to get to court, disproportionately affecting people living in rural areas, those with disabilities and lower income families.
“Combined with increases in court fees and reductions in eligibility for legal aid, many of the closures will serve to deepen the inequalities in the justice system between those who can and cannot afford to pay.”
The MoJ’s consultation had prompted a strong response from certain local authorities.
Marie Kelly-Stone, Head of Legal Services at Dartford Borough Council, wrote to the Ministry to say there was a “general feeling of dismay” among the various council departments who used Dartford Magistrates’ Court. The Leader of Bridgend County Borough Council meanwhile urged the MoJ to rethink proposals to close its local court, amid concerns over access and the potential for increased costs for the authority’s legal team. Neither court has escaped from closure.
The five courts to be retained are: St Helens County Court; Stockport Magistrates’ Court and County Court; West Cumbria Magistrates’ Court and County Court; Bath Magistrates’ Court, County Court and Family Court; and Carmarthen Civil, Family, Tribunal and Probate Hearing Centre.
The Divisional Court has ruled (in R (P and A) v Secretary of State for Justice  EWHC 89 (Admin)) that the criminal records disclosure scheme used in England and Wales is “arbitrary” and unlawful.
EMASB - Information Curator's insight:
Kingsley Napley -Article by Matthew Perry and Jonathan Blunden
This article considers the ruling from both a criminal and an employment law perspective. To give some context to the ruling, a brief summary of the statutory scheme for disclosing criminal records in England and Wales may be helpful.
Criminal records checks
Under the Rehabilitation of Offenders Act 1974, convictions, cautions, reprimands and warnings become “spent” after a certain period of time.An individual is under no legal obligation to voluntarily disclose to a prospective employer “spent” convictions, cautions, etc. However, if an individual applies for an “excepted position”, then the prospective employer is entitled to ask for details of both spent and unspent convictions, cautions and so on. Given the limits of voluntary disclosure (in that a prospective employer would be relying on the prospective employee to give honest disclosure) the employer will usually obtain such information by a criminal records check through the Disclosure and Barring Service (DBS).
“Excepted positions” are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended). In general terms, these jobs relate to roles that involve regular contact with children or vulnerable adults.Three types of criminal records check are issued by the DBS: standard, enhanced, and enhanced with barred list. All three types of check provide details of convictions, cautions, warnings or reprimands held on the Police National Computer (PNC). The two types of enhanced checks also provide details of certain non-conviction information, for instance details of arrests recorded on the PNC.
Alterations to the statutory scheme
The above statutory scheme had been altered in 2013 following the judgments of the Court of Appeal and the Supreme Court in R (T) v Chief Constable of Greater Manchester Police  UKSC 35.
The standard or enhanced certificates issued by the DBS used to list all the individual’s previous convictions. The revised scheme (implemented by The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 to address the Supreme Court’s ruling in 2013) created in effect a filtering process so that single convictions for non-violent, non-sexual offences that did not lead to a suspended or custodial sentence would not be disclosed after 11 years or five and a half years if the person was under 18 at the time of the offence. The new filtering process did not apply if a person had more than one conviction - regardless of the seriousness of the relevant offences or the circumstances in which they were committed.
The Divisional Court’s ruling in R (P and A)
The challenge in R (P and A) concerned this revised scheme and in particular the amended provision in section 113A(6) of the Police Act 1997. The claimants argued that “to set the bar at one single conviction is arbitrary and is not either "in accordance with the law" nor is it necessary or proportionate within the second limb of the test set out in article 8.2” (at ).
McCombe LJ, with whom Carr J agreed, declared that the revised scheme was unlawful under Article 8 (i.e. the right to a private and family life). After considering the Supreme Court’s ruling in R (T), McCombe LJ said that “when the rules are capable of producing such questionable results, on their margins, there ought (as it seems to me) to be some machinery for testing the proportionality of the interference if the scheme is to be "in accordance with the law"” (at ). McCombe LJ therefore held that it was not justifiable or necessary for any individual to have minor offences disclosed indefinitely simply because there is more than one minor offence on their records.McCombe LJ asked the government to make submissions to address the faults in the statutory scheme prior to the court making its final order. The scheme will continue to operate on the 2013 revised scheme basis until this final order.The Home Office are considering whether there are grounds to seek leave to appeal.
The ruling of the Divisional Court is to be welcomed. The revised filtering scheme was blunt and disproportionate. In particular, the revised scheme continued to unnecessarily blight individuals who had the misfortune of acquiring more than one minor conviction. This is illustrated by the circumstances of one of the claimants in the present case - known as “P”.
P had been charged in August 1999 with shoplifting a 99p book. She had been bailed to appear before a magistrates’ court 18 days later, but failed to attend and was therefore convicted of a second offence under the Bail Act 1976. In November 1999, she was given a conditional discharge in respect of both offences.
P’s offences related to a very limited time in her life when she was suffering from an acute and undiagnosed mental illness. She now wishes to work as a teaching assistant and has sought voluntary positions in schools. However with each application she was required to disclose her two convictions.From a criminal justice perspective, such disclosure would seem to be unnecessary from the perspective of protecting vulnerable members of society (in this case children). Moreover, it is needlessly punitive. P was in effect prevented from rehabilitating.
From an employer’s perspective (particularly for those that recruit individuals into excepted positions) this case reemphasises the need to focus on other methods of assessing a candidates suitability for a role such as verifying qualifications, rigorously taking up and checking references and utilising probation periods, in addition to the usual criminal record checks. Arguably, in any event, such information is likely to be a more reliable indicator of the suitability of a candidate than spent convictions for more minor offences dating back many years.
`Improving Healthcare Provision – the Lessons of Social Media` - suggests that many of the characteristics of social media, and the fact that the general population have become very used to the technology and format, made it ideal for meeting some of the pressing challenges that health systems…particularly in primary care.
EMASB - Information Curator's insight:
Marie Ennis O'Connor explains - [Social Media Consultant, Digital Media Strategist, Writer, Keynote Speaker].
The article has generated a lot of interest and discussion around the applicability of social media and social media-inspired approaches to healthcare. In all of this I think one fact is inescapable – social media is a juggernaut that has already re-shaped out lives and will continue to do so.
Affecting the way most deal with their health
We already have generations that are more likely to go online to answer general health questions then ask a doctor and studies that show nearly half of the population in general claim that information found using social media affects the way they deal with their health.
So things in healthcare are changing as far as the patients are concerned but also – and much less reported – the healthcare profession is changing its view of social media as a being useful in everyday work. And I think this a portent of things to come.
Recent US research from Demi & Cooper Advertising and DC Interactive Group revealed that 60 per cent of doctors say social media improves the quality of care delivered to patient.
That’s a pretty big endorsement of the role social media – and, of course, the smartphone which is the preferred method of access to social media – can play in improving the effectiveness of healthcare and has profound implications for providers and payers.
And behind the scenes there is evidence that healthcare professionals are buying into the idea that social media may help improve their professionalism. Research from EMR Thoughts revealed two thirds of doctors are using social media for professional purposes, often preferring engaging in an open forum in preference to a physician-only online community.
Could it be that a certain level of transparency spurred by social media is becoming accepted, not to say deemed to be advantageous in the medical profession, and that healthcare professionals are behaving just like the rest of us whatever our chosen line of work?
And there is plenty of evidence to say that they are. MedTech Media points out that 31 per cent of health care professionals use social media for professional networking whilst some studies show the most popular activity on social media for physicians is following what colleagues are sharing and discussing.
That appears to be pretty much in accord with what their patients want as, according to Mediabistro, 54 per cent are very comfortable with their providers seeking advice from online communities to better treat their conditions.
And there are many more reasons why healthcare professionals are seeing the sense in engaging with social media. Infographics Archive points out that 60 per cent of social media users are the most likely to trust social media posts and activity by doctors over any other group, giving doctors the opportunity to increase their reach and influence and do good in the process.
And there are implications for the planning of healthcare provisions with more Demi & Cooper Advertising and DC Interactive data showing 41 per cent of people claiming social media would affect their choice of a specific doctor, hospital, or medical facility.
Changing patient mind-set
And if we are to get any better indication of the patient mind-set change that social media is producing Fluency Media recently found that, already, 30 per cent of adults are likely to share information about their health on social media sites with other patients compared to 47 per cent with doctors, 43 per cent with hospitals, 38 per cent with a health insurance company and 32 per cent with a drug company.
The figures that support evidence of inexorable change are endless but, I believe, it’d be a mistake to currently confuse the core expertise of medical knowledge with the context in which it is practiced. But where choice is available, the latter is certainly changing rapidly.
Medicine is a social activity
How long it takes to start infiltrating the core of medical thought is anyone’s guess. Medicine is a social activity that has to manage resources and respond in everything from basic research to primary provision to the demands of society and so has to be close coupled to social change.
If social media is already deemed by the medical profession to be improving the quality of care delivered to a patient it surely cannot be long before, for instance, research potential of social media itself changes healthcare practice along with the rest of our lives.
Resources to improve, develop and sustain social work across the mental health sector.
EMASB - Information Curator's insight:
These 3 documents are part of the ‘Social Work for Better Mental Health’ initiative. They will help to improve social work across the mental health sector and to make sure the value of social work in improving mental wellbeing is recognised.
The documents include:an overview of the strategy and importance of social work in mental health servicesan assessment of social work in a mental health contextguidance about how to get and use feedback on mental health social work practice from service users, carers and family
These documents were developed by the mental health social work sector, following the publication of ‘The Role of the Social Worker in Adult Mental Health’ in 2014.Social work for better mental health - a strategic statement
How are we doing? A self assessment and improvement resource
MP Norman Lamb likens rise of over 20% in the unexpected deaths of mentally ill people in NHS care to Mid Staffs scandal and calls for investigation
EMASB - Information Curator's insight:
Denis Campbell - Health Policy Editor, The Guardian Reports:
A sudden spike in the number of mental health patients dying unexpectedly in NHS care has prompted calls for a wide-ranging investigation into “threadbare” services that are “struggling to cope”.
New NHS figures show that the number of deaths annually among mental health patients in England has risen 21% over the last three years from 1,412 to 1,713.
The number of those killing themselves or trying to do so has also increased, by 26% from 595 in 2012-13 to 751 in 2014-15. It covers both those being treated as inpatients for serious mental health problems and also those who are being cared for while still living at home.
Figures obtained by Norman Lamb, the Liberal Democrat MP, show that the overall number of “serious incidents” – involving unexpected or avoidable deaths, serious harm, injury and abuse – has climbed 34% to 8,139 a year. They have become so common that one trust, North East London foundation trust, had a total of 633 last year – almost two a day.
Lamb, the mental health minister in the coalition until last May, made the comparison with the Mid Staffordshire scandal in which patients died as a result of poor care.
Thousands are being trained to offer timely help to those at risk, including teenagers, corporate lawyers and fire fighters
“Significant numbers of unexpected deaths at the Mid Staffs NHS trust caused an outcry and these figures should cause the same because they show a dramatic increase in the number of people losing their lives,” Lamb said.
“NHS England and the government should set up an investigation into the causes of this as these figures involve tragedies for families around the country and the human impact is intense.”
Underfunding of sometimes threadbare mental health services which are struggling to cope with rising demand for care is to blame, Lamb claimed.
The way the NHS collects such figures has changed since 2014-15. But figures for the first six months of 2015-16 show a continued upward trend, with 1,132 serious incidents recorded as involving an unexpected or potentially avoidable death.
Paul Farmer, chief executive of the charity Mind and also the chair of NHS England’s mental health task force, said that even if better reporting partly explained the rises, “the figures give us real cause for concern”.
“We know, for example, that suicides among people in touch with crisis resolution and home treatment teams – which are there to support people in crisis to stay in their own homes rather than be admitted to hospital – have increased significantly.
“These teams have in recent years been starved of funding and in some cases have been disbanded altogether or else merged into community teams, losing their specialist function, at a time of rising demand,” Farmer added.
Every unexpected death should be investigated so that lessons can be learned to prevent future loss of life, he urged.
But Prof Sir Simon Wessely, president of the Royal College of Psychiatrists, said the apparent dramatic increases were due primarily to staff and trusts reporting more such events when they happen.
By almost every metric, the number of people with mental health problems in the UK has surged in recent years, leaving NHS services simply unable to deal with the volumes. The numbers of people in contact with mental health services has jumped by more than 40% over the past decade, while the number of antidepressant prescriptions have surged by more than 100% in the same period.
But the government has been accused of cutting millions of pounds from mental health funding. An attempt to concentrate efforts on talking therapies by increasing the numbers of psychotherapists has produced mixed results.
Many long-term patients describe a byzantine system of long waiting times, lack of psychiatrists, over reliance on pills as an easy solution and a sense of limbo for all but the most severe cases.
Matters have not been helped by the fact that limited staffing numbers have fallen even further in recent years. The number of specialist mental health nurses has fallen more than 10% over the past five years, the Guardian has learned.
Labour attacks government over ‘shocking’ English figures, which show workforce shrank as demand for services surged
The loss of one in 10 of the entire mental health nursing workforce in England has occurred mainly in hospitals and mental health units treating some of the sickest patients, official NHS figures show.
Figures from the NHS’s health and social care information centre, obtained through a parliamentary question, show that the number of qualified nurses working in psychiatry dropped by 10.8% from 41,320 in 2010 to 36,870 in 2015.
While the number working in community psychiatry services has fallen only slightly from 15,986 to 15,826, those listed as working in “other psychiatry” – mainly hospital units – went down from 25,334 to 21,044.
“These shocking figures raise serious concerns about the future of our mental health services,” said Luciana Berger,the shadow minister for mental health. “At a time when there is growing demand and staff are being asked to do more for less, cuts to the number of nurses working in mental health are completely unacceptable.”
NHS England declined to comment directly on Lamb’s figures. A spokeswoman said: “Reporting of incidents is intentionally up right across the NHS, including mental health, as part of our national effort to encourage transparency and a culture of learning.
“That’s the lesson from the airlines - openness is a precondition for safety and improvement. That’s as true for mental health services as it is for maternity care or surgical operations.”
Rachel Carter - Community Care Reports:
There has been a year-on-year increase in the number of newly qualified social workers in adult social care, figures show
The number of newly qualified social workers in adults’ services has risen by more than a quarter in the past two years, figures show. There was an increase of 12% in 2015-16, on top of a 14% rise the previous year. The figures were collected by Skills for Care and published in the second annual report from Lyn Romeo, chief social worker for adults. Romeo told Community Care the figures could reflect a rise in the number of adult social work posts available nationally.
Figures published in January showed the number of social work posts filled in adult social services departments rose from 16,100 in 2014 to 16,500 in 2015, an increase of 2.5%. However, 12% of all adult social worker posts were unfilled in 2015. This is a sharp rise on previous years when vacancy rates were between 7.2% and 8%.
‘Shift in demand’ Romeo said: “The shift in demand resulting from the Care Act and Deprivation of Liberty Safeguards has meant there is a need for more qualified social workers in adult social care, so more social workers qualifying off courses have had the opportunity to take up posts.
“The particular demographic of the social work workforce could also be a factor – a lot of people have been around for quite a long time and are now moving towards retirement.” Romeo added that some employers had reported that they felt the quality of newly qualified social workers was better than previous years. She said: “Employers are much more confident about the quality of NQSWs coming into their local authority. There’s still not a consistent level of quality everywhere and that is something we need to think about going forward, but it is improving and confidence is increasing.”
‘Challenge and enthusiasm’ Rob Mitchell, principal social worker for adults’ at Calderdale Council, said his local authority had seen the value of investing in newly qualified social workers. He said: “Within my council we have ring-fenced posts for NQSWs for several years now. We have found that NQSWs are knowledgeable, skilled and value driven in their approach and their application of the Mental Capacity Act and human rights is often exceptional. “All NQSWs are supported through their ASYE, have a reduced and protected caseload, receive mentorship from an experienced social worker and receive extensive support through HEI providers to build their portfolio and reflect on the impact they have as social workers. “Investing in NQSWs has helped our service become closer to the people we serve – they’ve brought challenge, enthusiasm and a huge desire for social justice back into the profession.” Community Care has previously reported concerns among local authorities that problems recruiting social workers had hampered Care Act progress. The most pressing concerns surrounded experienced social workers trained as best interests assessor (BIAs) or approved mental health professional roles (AMHP).
Click this link to see a copy of Lyn Romeo's 2n Annual Report - March 2016
Gilles de la Tourette syndrome (TS) is a neurological condition which affects approximately 1% of the school age population. To put that into perspective, if Wembley stadium were full that would be 900 people, which makes TS far more common than most people believe.
People with Tourette’s syndrome have ‘tics’, which are involuntary and difficult to control. Tics can involve movements (motor tics) or sounds (vocal tics), and are highly varied. For example, a tic could be a simple action like an eye blink, or it could be a sequence of complex movements and/or sounds. Some people are able to suppress their tics for a short amount of time, however, this can be uncomfortable (like trying not to blink, or hold in a sneeze).
Suppressing tics can require a large amount of effort, which can make it difficult to concentrate on other things; it can also lead to a feeling of tics building up and may result in more occurring later on in the day. This can be particularly difficult for school aged children, and is one of the key reasons why raising awareness and understanding of TS is so important. It’s a myth that people with TS can just stop their tics, although some people with TS can supress them for a short amount of time this does not make them go away. However, for about 70-80% of people with TS their tics will naturally decrease as they get older .
Causes of Tourette’s syndrome The exact cause of TS is not yet fully understood, but it does seem to run in families . Most people with TS will have a close relative who also currently experiences tics, or has done so in the past. There are also specific regions of the brain which seem to be slightly different in people with TS , and there are differences in some types of chemical messengers known as neurotransmitters .
Finding the cause of TS is a difficult task, which is made more complicated by the fact that TS is a disorder which is often accompanied by other conditions. In fact up to 88% of people with TS will also have at least one other diagnosis such as Obsessive Compulsive Disorder (OCD) or Attention Deficit Hyperactivity Disorder (ADHD) .
Despite this advances in science (like improved brain scanning techniques) are helping us to understand how TS develops. Discovering the neurological basis of TS has been hugely important in disproving some previous myths about the condition, for example, that people with TS have unresolved underlying psychological conflicts or are possessed. Both of which are clearly untrue! Tourette’s syndrome swear and swearing A common misconception about TS is that it involves swearing or making inappropriate comments. While Coprolalia (the use of obscene or unacceptable language) is a type of tic associated with Tourette’s syndrome, only 10% of people with TS have it. Due to some of the media coverage of TS, and the distinctiveness of this type of tic, many people think that it is much more common.
Are tics serious? Tics can seem humorous, but to someone with TS they are often a source of embarrassment and unwanted attention. It’s important to remember that tics are not intentional actions. They are involuntary and can be surprising, even to the person with TS. Tics can also be physically painful; this is because some tics may involve repetitive actions or self-abusive behaviours such as hitting or scratching. The majority of people with TS typically prefer their tics to be ignored; but there can be times when it’s ok to laugh. This will depend on the person and your relationship to them, but if in doubt ask what they are comfortable with.
For an insight into the humorous and creative side of tics I strongly recommend exploring the world of Tourette’s Hero (Jessica Thom) and following her on twitter for insightful commentary about living the TS and for ‘daily outbursts’ like “Al Murray wants your vote more than he wants a tortoise”. TS is a complex and multi-dimensional disorder which effects people worldwide. It can have a significant impact on quality of life in a number of areas, including in educational and social settings. These are areas in which a little understanding could go a long way in reducing stigma and misconceptions, and that can only be a good thing.
Kat Dyke (@kat_s_dyke) is a PhD student within the School of Psychology. (firstname.lastname@example.org) …………………………………………………………………………………………………………………… If you’d like to find out more about TS please explore the following websites. Tourette’s action: http://www.tourettes-action.org.uk/ NHS: http://www.nhs.uk/Conditions/Tourette-syndrome/Pages/Introduction.asp
 Bagheri, M. M., Kerbeshian, J. A. C. O. B., & Burd, L. A. R. R. Y. (1999). Recognition and management of Tourette’s syndrome and tic disorders.American family physician, 59(8), 2263-72.
 Lennington, J. B., Coppola, G., & Fernandez, T. V. (2015). Genetics of Tourette Syndrome. In Movement Disorder Genetics (pp. 169-189). Springer International Publishing.
 Felling, R. J., & Singer, H. S. (2011). Neurobiology of Tourette syndrome: current status and need for further investigation. The Journal of Neuroscience, 31(35), 12387-12395.
 Jackson, G. M., Draper, A., Dyke, K., Pépés, S. E., & Jackson, S. R. (2015). Inhibition, Disinhibition, and the Control of Action in Tourette Syndrome. Trends in cognitive sciences, 19(11), 655-665.
 Freeman, R. D., Fast, D. K., Burd, L., Kerbeshian, J., Robertson, M. M., & Sandor, P. (2000). An international perspective on Tourette syndrome: selected findings from 3500 individuals in 22 countries. Developmental Medicine & Child Neurology, 42(7), 436-447.
'Unprecedented' ruling places responsibility on Jeremy Hunt and Michael Gove to find workable solution to representation issues
Andy McNicoll - Community Care Reports:
A Court of Protection judgment has piled pressure on ministers to release funding to ensure vulnerable people in deprivation of liberty cases have access to appropriate representation.
In the case of JM & others, Mr Justice Charles placed responsibility on health secretary Jeremy Hunt and justice secretary Michael Gove for ensuring sufficient resources are available so each person whose deprivation of liberty is considered by the Court of Protection has appropriate representation. The move was branded “unprecedented” by legal experts.
Shortage of representatives
Councils must apply to the Court of Protection to authorise any deprivation of liberty in community settings, such as supported living, where the person lacks capacity to consent to their care arrangements. An independent representative must be appointed if the person does not have a family member or friend who is suitable to represent them.
Paid advocates can fill the role but the funding pressures on advocacy services, combined with a surge in demand triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling on deprivation of liberty in March 2014, has led to longstanding problems securing representatives for cases reaching court.
In JM & others, the judge ordered Hunt and Gove be added as parties in four test cases where no appropriate representative could be found for reasons that included a lack of funding for advocacy services. He also suggested all future similar cases should be adjourned until a workable solution is found.
The government argued that councils were responsible for commissioning adequate advocacy provision locally. However, the judge said the government had sought to duck its responsibilities and pass them on to local authorities while ignoring the realities of the pressures facing frontline services.
“This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty,” he said.
The judge ordered the secretaries of state to find a solution to the shortage of available representatives. He set out a number of potential options. These included:
The government could contract advocacy providers directly to supply a pool of people who could be appointed as representatives in these cases.
The government could provide local authorities with more funding to allow them to boost the capacity of the advocacy services they contract with.
The government could make changes to legal aid.
Further to these, or alternatively, the government could take a case back to the Supreme Court and invite it to overturn the Cheshire West ruling.
The fallout from Cheshire West
The judgment is the latest fallout from Cheshire West. The Supreme Court ruling effectively lowered the threshold of what constitutes deprivation of liberty in care. In doing so, it triggered a surge in the number of cases requiring authorisation.
Deprivation of liberty in care homes or hospitals is authorised via the deprivation of liberty safeguards (DoLS). Deprivation of liberty in community placements, such as supported living, must be authorised by the Court of Protection.
After the Cheshire West ruling, the Association of Directors of Adult Social Services predicted councils would need to refer around 30,000 community placements to the Court of Protection a year to comply. Research published by Community Care last year found councils made just 1.6% of the court applications they felt were needed in 2014-15.
Mr Justice Charles acknowledged that the Cheshire West ruling left agencies forced to find resources to meet major burdens at a “time of austerity”.
He said: “The provision of any such resources is highly likely, if not inevitably, to be at the cost of something else that can also be said to be important, and in the case of local authorities it is highly likely, if not inevitable, that it would be at the expense of the resources available to them to fund the placement and care of vulnerable people.
“This is an unhappy prospect but, whilst the Cheshire West conclusion remains authoritative, it is one that has to be faced by central and local government.”
The Law Society labelled today’s judgment “unprecedented”. Jonathan Smithers, the society’s president, said: “We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.
“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”
A government spokesman said: “We are carefully considering the judgment and will respond to the findings in due course.”
Eversheds LLP - Tim Hill and Laura Wilmshurst.
Care homes will regularly have contact with the Care Quality Commission (“CQC”) and their local safeguarding team. However, when an incident occurs which warrants investigation, the relationship can shift. Both the Police and regulators have various powers that they may use to assist with their investigations. How and when these powers are used can be an area of confusion. Each investigation is unique and there is no one typical approach. Various factors will impact and shape how an investigation progresses, for instance, where there have been historic concerns about an organisation, this might lead to a more robust approach being taken by those investigating. Therefore, whilst no one can predict how an investigation will unfold, this article highlights key areas to consider during any investigation, as well as some suggestions on how to approach what is a very challenging situation.
A key consideration throughout any investigation is the need for good communication. This includes communication with the Police and/or regulator. However, it extends beyond this to include employees, service users and their families. This is an aspect that is often forgotten and can lead to confusion and resentment. Depending on why the investigation may have been instigated, it is highly likely that the home will continue to operate. Therefore, having confused and concerned employees and service users will inhibit the operation of the home. Moreover, this will make a further incident more likely to happen as processes and procedures might get missed.
Depending on the nature of the incident the duty of candour as contained within Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Irrespective of whether this duty is engaged, careful consideration should be given to how those affected by the incident and their relatives are kept informed of what has happened and how this communication continues as the investigation evolves.
Similarly, employees should be notified of what has happened. This will help avoid speculation. Moreover, the communication can remind employees of their contractual obligation to keep matters confidential and not to discuss what has happened outside of their employment. This is particularly important as there may be press interest and whilst employees may try and assist by making comment, this may cause difficulties, in particular if it has not been possible to speak to family members fully yet. Employees should therefore be advised of who to contact if they receive any enquiries from the media and/or enquiries more generally about the situation. Depending on what has happened it might be appropriate to have two separate individuals dealing with the different enquiries or a single person.
Where a particularly traumatic event has taken place, this can be managed proactively through the provision of counselling services. This can involve professional counsellors attending the home, as well as the provision of telephone hotlines. Everyone responds to an incident differently, therefore, having an ongoing telephone hotline provision accommodates those who are more greatly affected by the incident later.
Managing communication with the investigating parties is also key. Having a designated individual who is responsible for managing information and document requests will mean that these are responded to promptly. This will also ensure that there is clarity on what has been requested and what has been provided.
It is important that evidence is gathered as soon as possible following an incident. This includes obtaining witness statements, but also collating relevant documentation. As an organisation you are likely to have a greater understanding of the key materials, than those who are conducting the investigation. Therefore, where requests for material seem to be very wide simply due to the investigator perhaps being unclear on what they need, it may be appropriate to engage with them and discuss what it is they are looking for.
The Police and different regulators have varying powers of entry and seizure. They should therefore not be obstructed. However, if you feel you are able to assist them in the process, as above it may be appropriate to discuss what they are looking for. Such conversations are not always appropriate and they should not be conducted with the aim of defeating the request, for instance diverting attention from one set of documents to another.
As highlighted above, it is important to keep track of what original material has been taken and what has been copied; as well as by whom and when. It is too easy for documentation to be provided and then no record kept of this. This information might contain key materials in any investigation that your insurers and/or lawyers need to know about to advise you.
In the course of any investigation there is likely to be cause for interviews with service users and employees. Subject to there being no suspicion of a criminal offence being committed by those individuals, these will be done on a voluntary basis. No one can be forced by an organisation to attend a voluntary interview, however, it can be highlighted that co-operation would assist the investigation.
These interviews might seem very daunting, especially when the individual is advised that the statement will be taken in a Section 9 of the Criminal Justice Act 1967 compliant format. Moreover, if an individual were to make a false statement then they could be charged with perjury and/or perverting the course of justice. These offences are not brought regularly. Nonetheless, the process can seem very daunting.
Appropriate support should be provided to those taking part in voluntary interviews. For instance, making accommodation, if appropriate, that these can take place at the home or giving time off to those who have been requested to attend. Additionally, those being interviewed individually may be allowed to have a friend or colleague (who has no involvement in the incident) sit in with them. It may be that the individual would like someone from HR to attend with them. These requests may be declined. However, making these requests as soon as possible will mean that individuals have time to prepare themselves and feel at ease with the process.
Whilst individuals can be spoken to and the organisation can take their own statements, individuals must not be told what to say at interview. They should be open and honest with those interviewing them.
Should an individual not want to participate in a voluntary interview, then a regulator may consider using their powers to compel them to answer questions. These powers are often described as Section 20 powers which originate from the Health and Safety at Work etc Act 1974. The CQC; Health and Safety Executive (HSE) and Local Authority Inspectors can require an individual to answer questions, but this information then cannot be used against them in their individual capacity.
Interviews under Caution
Where an organisation or individual is suspected of committing an offence, an interview under caution will almost always be conducted. Attendance at an interview under caution can be daunting and obtaining legal representation is strongly recommended. In the case of organisations all too often the importance of the interview under caution is not fully appreciated. However, this is the opportunity to put forward any defence. Once the interview under caution has passed, an adverse inference can be drawn regarding any defence later advanced.
There are different ways of approaching an interview under caution. For an organisation, one individual may be nominated to speak on its behalf. Alternatively a pre-prepared statement might be drafted on behalf of the organisation. This approach may be used where there is a large organisation and it would not be possible for a single individual to answer all the questions and issues outlined in the advance disclosure. However, it is not a case of one size fits all. The approach to be taken needs to be carefully considered in light of all the information available.
Managing investigations by the Police and/or regulators is a difficult and time consuming process. This article touches on some of the investigation methods and powers that those bodies have. However, each investigation will be unique to the specific facts.
One consideration for organisations is the need for an effective crisis management plan. The plan should contain details of who to contact in each circumstance and how to proceed with investigating the incident. Having a plan ensures that not only is the investigation being managed, but also that issues such as effective communication and counselling are engaged early so that employees and service users are reassured throughout the process.
Commissioning clinical health services: Most Capable Provider versus Light Touch Regime?
Currently, the commissioning of health services by Clinical Commissioning Groups and NHS England is regulated by the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (2013 Regulations) and Monitor’s accompanying guidance. However, readers in the health sector will probably be aware that, on 18 April 2016, the commissioning of these services will instead become fully subject (as other types of health service are already) to the so-called “Light Touch Regime” in the Public Contracts Regulations 2015 (PCR 2015).
This raises questions around the future of “Most Capable Provider” (MCP) commissioning processes, the possibility of which is envisaged by the 2013 Regulations. While we as yet have no guidance from the Government around how the PCR 2015 and the 2013 Regulations will work together from 18 April 2016, it is difficult to see a future for commissioning processes which involve anything short of full, OJEU-advertised competition for health services (where their value exceeds the “Light Touch Regime” threshold of £589,148).
Who or what is the Most Capable Provider (MCP)?
MCP is an unofficial expression, but one which is used commonly by commissioners. Monitor’s 2014 guidance has blessed the MCP process as one route to compliance with the 2013 Regulations. It tends to refer either to:
A competitive process (generally featuring dialogue or negotiation) involving the selection of potential providers from a limited pool who are either identified by the commissioner as being possible suppliers following a research or consultation exercise, or who might have responded to an advertisement or engagement event (but possibly with a limited geographic reach) and are therefore interested in participating.
What is basically a negotiated procedure with a single provider identified by the commissioner as obviously being the most capable of providing a particular service in a particular locality.
What is the Light Touch Regime?
This procurement route is set out in the PCR 2015, at Regulation 74 onwards. It applies to the procurement of health services whose value equals or exceeds the threshold of £589,148. The process has been called “light touch” as it does not require one of the official procurement processes to be followed. However, as a minimum it does require advertisement in the OJEU and the running of a transparent and non-discriminatory process that treats providers equally. The Crown Commercial Service has issued guidance around how to design a compliant Light Touch Regime process.
What is the conflict between the Light Touch Regime and the 2013 Regulations?
In essence, the difficulty is that the Light Touch Regime requires competition where the contract value exceeds the threshold. Conversely, the 2013 Regulations may, but on the other hand may not, require competition in the same circumstances. This is because the 2013 Regulations require commissioners to act with a view to securing the needs of service users and to improving quality and efficiency in so doing, including through integration (Regulation 2). Commissioners must choose the provider(s) “most capable” of delivering the Regulation 2 objectives, and who provide best value for money in doing so. Therefore, if this requires competition, so be it; on the other hand, it might not.
By way of illustration, Regulation 3 requires commissioners to procure services from the provider offering best value, including by enabling providers to compete. However, these obligations appear alongside others, with none taking precedence. For example:
The obligation to consider integration seems at odds with the obligation to enable competition.
Commissioners’ Regulation 2 duties (ie, to secure the needs of the people who use the services, and to improve quality and efficiency) are just as unequivocal.
If, therefore, commissioners will have no choice after April 18 2016 as to whether to advertise a contract, then this would seem at odds with the “balanced judgement” approach advocated by Monitor’s 2014 guidance on the 2013 Regulations.
A related issue is that the 2013 Regulations oblige commissioners to act transparently, and to treat providers equally and in a non-discriminatory way. This clearly “borrows” certain expressions from EU public procurement law. In the EU context, these expressions mean that some level of competition is required. However, the fact that the Monitor Guidance envisages a “balanced judgement” approach (which need not necessarily involve competition) supports a view that these obligations are not intended to mean the same thing in both sets of rules. That said, any inconsistency as between the application of the 2013 Regulations and EU law would, we suspect, be resolved in favour of EU law (and of competition).
Further, Regulation 5 states that:
“A relevant body may award a new contract for the provision of health care services for the purposes of the NHS to a single provider without advertising an intention to seek offers from providers in relation to that contract where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider.”
This could be understood to mean that the only situation where competition can be avoided is where there is only one possible provider. Clearly, this would be a major conflict with Light Touch Regime, which requires advertisement of all above-threshold contracts regardless of how many potential providers exist. However, when read alongside Regulations 2 and 3 it seems that Regulation 5 should instead be read as setting out just one example of a situation where competition is not required. Again, adopting this (more flexible) interpretation would seem consistent with Monitor’s 2014 guidance and create less of a conflict with the Light Touch Regime.
Certainly the trend in recent case law and guidance seems to be to focus on the 2014 Monitor guidance as the highest authority on how the 2013 Regulations are intended to work. See, for example, our discussion of the recent case of QSRC v NHS England. Here, although this was the first decision to consider the 2013 Regulations, the Court’s findings largely turned on the interpretation of Monitor’s 2014 guidance and whether NHS England had followed this, rather than on a line-by-line reading of the 2013 Regulations.
The Light Touch Regime in the PCR 2015 implements parallel provisions in the new European Public Contracts Directive, and were a Court to be asked to judge which set of regulations should be applied, it is likely that it would come down heavily on the side of the Light Touch Regime over the (purely national) measures in the 2013 Regulations. As such, our view is that from 18 April 2016 commissioners will need to advertise in the OJEU health services contracts that are over-threshold, and follow the CCS guidance around the design of a compliant Light Touch Regime process. In the interim period we hope that a steer from the government or Monitor will shed some light on what otherwise risks remaining a very grey area, even after 18 April.
Watchdog is considering information received on Norfolk council. Local authority disputes claims of unlawful care
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Andy McNicoll - Community Care Reports:
Disability campaigners have reported Norfolk County Council to the Care Quality Commission for ‘disregarding’ its statutory duties under the Care Act 2014.
Equal Lives, which represents more than 50 user-led groups in the county, wants the regulator to investigate what it claims are ‘systemic’ failures in care and support planning.
The group says eligibility thresholds have been raised and care package reviews are being used to reduce, or completely withdraw, support for people regardless of need. It also claims the decision to remove ‘wellbeing’ payments for personal budget holders last year has had a “devastating impact” on service users’ lives.
Section 1 of the Care Act requires local authorities to promote wellbeing through their adult social care functions. The statutory guidance underpinning the act also says care package reviews “must not be used to arbitrarily reduce a care and support package”.Council disputes claims
Equal Lives claims the local authority is breaching these duties and has submitted evidence from eight cases to the CQC.
The council told Community Care it “disputes any suggestion” of unlawful care but said it took the issues raised by Equal Lives “extremely seriously” and would review decision-making.
The CQC is considering the information received from Equal Lives. The watchdog has not inspected a local authority since 2010 but the Care Act allows the government to order it to do so in exceptional circumstances. The power has not been used since the act came into force last year.
‘I fear my personal budget will be cut to the bare minimum’
“Before my personal budget I was in and out of hospital having blood transfusions…[Now] my personal budget has been wiped out,” he told Equal Lives..
“I still have 10 hours PA support but nothing else now…My worrying fear is my PA support will be cut to the bare minimum. If that happens I won’t be going out as much and will be stuck indoors. They need to talk to us. They need to realise how much of an impact the cuts are making not just me, but many of my friends.”
Mark Harrison, chief executive at Equal Lives, told Community Care: “The council has had to make huge savings but they’ve cut too fast and too deep and people have been left without the help they need.
“People who’ve received social care for years are now being bumped out of eligibility even if their needs have increased. And it’s ironic that wellbeing payments were cut in the year when the Care Act came into force, given wellbeing is absolutely at the heart of the act.
“Norfolk has gone from one of the leaders in personalisation and co-production to situations where we’ve got people queuing up in our advocacy system after having their support cut.”
Harold Bodmer, Norfolk County Council’s director of adult services, said: “We have a statutory duty to ensure vulnerable people’s care needs are met. The care we provide is as set out in the Care Act and we dispute any suggestion that we are not following this.
“However we take the issues raised by Equal Lives very seriously, and have arranged to meet with them to talk about these. It’s important we demonstrate we do things correctly so we will also look again at the individual cases they have raised and I will be commissioning external scrutiny of our processes and reviewing our decision-making to ensure people have access to the right personalised care. If anyone has any concerns about their care we would always encourage them to contact us.”
Bodmer, who will take over as president of the Association of Directors of Adult Social Services in April, said adult social care departments were under “huge pressure” across the country and Norfolk was no exception.
“We’ve restructured every aspect of our department over the past five years in order to make considerable savings and with the clear purpose of minimising the impact of the budget reductions on people who use our services.”
Andrea Sutcliffe, CQC’s chief inspector of adult social care, said: “We have received concerns from Equal Lives regarding the provision of adult social care services at Norfolk County Council. We are considering the information and will respond directly in due course.”
A group representing disabled people, Equal Lives, has called on the Care Quality Commission (CQC) to investigate Norfolk County Council for “systemic failures and disregarding its statutory duties under the Care Act”.
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he local authority disputed the claims and said it would seek a meeting with Equal Lives to talk about the issues raised.
In a complaint to the CQC, the organisation, which represents 50 user-led member groups across Norfolk, argued that the county council had failed to meet its statutory duty under the Act “because of the decision to cut too far and too deeply in 2014/15, the year the Care Act came into being.”
Equal Lives also said disabled people had been left without the support they needed to manage their social care and live independent lives by the decision of county councillors to remove well-being payments from personal budgets and to raise eligibility thresholds in 2014/2015.
This decision had had a “devastating impact” on service users’ lives, Equal Lives said.
The complaint to the CQC claimed that the council had made decisions that contravene the Act and statutory guidance in these areas:“Using reviews to make reductions in, or withdrawal of all, support, in ways which are unrelated to changes in need or circumstances;Removal of well‐being payments from personal budgets with no alternatives on offer;Exclusion of all transport from personal budgets in certain areas of the county;Raising of eligibility bar for social care without consultation so that disabled people who previously received services are no longer doing so;Restricting choice and control by having exclusive contracts with care agencies which service users have to use;Collapsing support planning by putting decision making about who gets an independent support plan in the hands of social workers and managers and then restricting their budgets so they cannot afford to commission them;Leaving disabled people without employment advice and support when they employ their own PAs resulting in greater risk and vulnerability. In the last year referrals to Equal Lives showed that 54% of new employers were not getting this support;Service users are experiencing cuts of over 50% to their personal budgets and in some cases have all funding removed.”
Equal Lives provided a number of case study examples to back its arguments.
Jonathan Moore, chair of Equal Lives, said: “Well-being runs through the Care Act. For Norfolk to remove these payments without offering alternatives was a reckless decision. This withdrawal of support mandated by law has left many disabled people living as prisoners in their own homes or leading second-class lives compared with the rest of society.”
Mark Harrison, the charity’s CEO, added: “In the year the Care Act came into being, Norfolk County Council cut too far and too deeply, leaving its service users without the basic care as demanded by Parliament.”
The council’s Policy and Resources Committee was due to meet this week (9 February) to discuss making further changes to adult social care over the next three years.
“These cuts would intensify the crisis for disabled and older people and mean the councillors are ignoring their statutory responsibilities under the social care legislation,” Equal Lives claimed.
In response Harold Bodmer, Executive Director for Adult Social Services at Norfolk County Council, said the care the council provided was as set out in the Care Act and it disputed any suggestion that it was not following this.
“However we take the issues raised by Equal Lives very seriously, and have arranged to meet with them to talk about these. It’s important we demonstrate we do things correctly so we will also look again at the individual cases they have raised and I will be commissioning external scrutiny of our processes and reviewing our decision-making to ensure people have access to the right personalised care,” he added.
Bodmer continued: “In light of budget cuts and growing demand, adult social care is under huge pressure. This is not only the case in Norfolk but across the country.
“We’ve restructured every aspect of our department over the past five years in order to make considerable savings and with the clear purpose of minimising the impact of the budget reductions on people who use our services. Indeed, between 2011 and 2014, no money was taken out of the budget for arranging care for individuals and our Promoting Independence Strategy is aimed to support people to have maximum choice and independence.”
The Court of Appeal was recently divided over the meaning of ‘nursing care by a registered nurse’ under s.49 of the Health and Social Care Act 2001. Richard Gordon QC, Emily MacKenzie and Tom Pascoe report.
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On 4 February 2016 the Court of Appeal handed down judgment in Forge Care Homes Ltd v Cardiff & Vale University Health Board  EWCA Civ 26. The case concerned the division of responsibility between the NHS and local authorities for ‘Funded Nursing Care’ (“FNC”) in Wales. FNC is provided to care home residents who require some nursing care, but nursing care is not their primary need.
Under s.49 of the Health and Social Care Act 2001, local authorities are prohibited from providing ‘nursing care by a registered nurse’. The purpose of this provision was to shift responsibility for nursing care from local authorities to the NHS.
In late 2013 the Welsh Local Health Boards (“LHBs”) set the weekly rate that they pay to care homes for FNC at £128.60 per patient. The rate was based on a consultant’s report which only counted time spent directly or indirectly on nursing tasks as ‘nursing care by a registered nurse’. Consequently, the cost of social care provided by nurses, such as washing and dressing, was excluded and fell to be funded by the care homes or the local authorities.
The care homes, supported by the local authorities, argued that the report was based on a misinterpretation of s.49. They contended that s.49 requires the LHBs to pay for the entire cost of nurses working in care homes. In March 2015, Hickinbottom J accepted that argument and quashed the LHBs’ decisions.
By a majority, the Court of Appeal overturned the decision of Hickinbottom J. Laws and Lloyd Jones LJJ held that the statutory definition of ‘nursing care by a registered nurse’ required the LHBs to atomise the tasks carried out by nurses. Section 49 thus only required the LHBs to pay for those tasks which need to be carried out by a nurse.
By contrast, Elias LJ held that s.49 must be applied in the context of regulations which require a suitable number of nurses to be present in a care home to meet residents’ health needs. Given that a nurse is available to meet health needs even when she is idle or providing social care, the LHBs are required to fund the full cost of the nurse’s presence. However, the local authorities should pay for any marginal costs of the nurse providing social care.
The Court of Appeal unanimously rejected the LHBs’ argument that they had a residual discretion, independent of s.49, to set the FNC rate under section 3 of the National Health Service (Wales) Act 2006. Further, it accepted the LHBs’ concession that nurses’ “stand-by” time should be included in the FNC rate.
Richard Gordon QC, Emily MacKenzie and Tom Pascoe are barristers at Brick Court Chambers and appeared for the local authorities.
The case of Speck has recently been published by the High Court. The background issue related to the provision of a "place of safety" under mental health legislation.
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Beachcroft LLP review the case.
SummaryThe case of Speck has recently been published by the High Court.The background issue related to the provision of a "place of safety" under mental health legislation.In refusing permission, the Court re-emphasised that in Article 2 inquests, whilst the Coroner has a discretion to investigate matters which may possibly have contributed to the death, his only duty is to investigate those matters which cause, or at least arguably appear to have caused or contributed to, the death.DAC Beachcroft acted for NHS England who were involved as the successor body for the former PCT
Case backgroundToni Speck ("TS") was detained by the police under s136 of the Mental Health Act 1983 ("the MHA"). The purpose of that detention was to take her to a "place of safety".A "place of safety" is defined under the MHA a including a hospital or a police station, amongst other places. She was taken to a police custody suite. Unfortunately, whilst detained, she died. There was expert dispute as to whether the cause of death was excited delirium or serotonin syndrome.An inquest was opened and there were a number of pre inquest hearings. In the course of these, the family of TS invited the coroner to consider a number of issues relating to the use of the police custody suite as a place of safety including: whether the custody suite was appropriate, whether there were suitable arrangements between the police and NHS and whether funding for places of safety was appropriate.Mr Rawlinson, on behalf of NHS England, resisted extending the scope of the inquest in this way arguing that these matters related to political issues such as policy and resource allocation. In addition, he argued that such matters were too remote to meet the test for causation. The Coroner accepted the arguments put forward by NHS England and refused to include those matters raised by the family as part of the scope for the inquest.It is that decision that the family judicially reviewed on the basis that it was disproportionate, perverse, procedurally improper and improperly determined.
Court's judgment: Scope of Article 2The Court considered the relevant case law on the scope of an Article 2 inquest.At paragraph 28, Holroyde J stated "It is in my judgment clear… that a coroner conducting an article 2 inquest has a discretion to investigate matters which may possibly have contributed to the death, but his only duty is to investigate those matters which caused, or at least arguably appear to have caused or contributed to, the death."The argument made on the behalf of the family, that the Coroner should listen to the evidence before making a decision as to what to include, was rejected by the Court.
Court's judgment: Health-based place of safety vs alternativesBetween the death of PS and the inquest, a decision was made to establish a local "health based place of safety" ("HBPOS"). On behalf of the family, it was argued that there was a duty to provide a HBPOS and that the failure to do so was a material breach of that duty.The Court rejected the argument that there was a duty for a HBPOS to be available stating that whilst it may have been desirable, there was no duty to provide this. Both the local police station as well as the local Accident and Emergency department were designated places of safety and as such, given that a HBPOS did not exist, the police fulfilled their duty when they took TS to the police station.It was also argued that increased national concern about police stations being used as a place of safety meant that there was a duty on "the local emanations of the state" to provide a HBPOS. This argument was rejected as having not statutory or other legal basis.In light of its rejection of the above arguments, the Court ruled that "the claimant was … unable to show, even arguably, that the fact that there was no HBPOS at the material time of in itself evidence of a breach of duty, causative of or contributing to the death of [TS], which the coroner was required, or had a discretion, to investigate"Taking all matters into account, the Court found that the decision of the Coroner to refuse to expand the scope of the inquest to include consideration of HBPOS was a lawful exercise of his discretion.
On Thursday, Reform published Working welfare: a radically new approach to sickness and disability benefits. This is the second report of three in Reform’s series on sickness and disability benefits. It details the design of an improved sickness and disability benefit system, including the benefit rate, gateway and conditionality regimes.
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REFORM - Introduces their new publication:
The out-of-work benefits system for people with a health condition or disability is broken. In 2006 the then Labour Government saw the need for reform and announced its intention to tackle the “passive” system of Incapacity Benefit (IB) by introducing Employment and Support Allowance (ESA), believing that within a decade there could be a million fewer claimants. Instead, ESA replicated many of the problems of IB and has failed to achieve its objective of moving more disabled people into work. When ESA was introduced there were around 2.6 million people dependent on sickness benefits, today there are 2.5 million. In the quarter to May 2015, just 1 per cent of claimants in the ESA Work Related Activity Group (WRAG) – those deemed able to carry out activity to help them move towards work – left the benefit. The employment rate for disabled people in the UK is just 48 per cent, compared to 81 per cent for the rest of the working-age population.
Governments across developed nations are facing the same challenge and looking at ways of redesigning their systems to deliver better outcomes. Evidence shows that work is good for people’s health and wellbeing and being out of work is detrimental to it, including for many people with mental and physical disabilities. In the UK many disabled people want to work but are trapped on what remains a broadly passive system – almost three quarters of claimants who have had their Work Capability Assessment (WCA) are in the support group with no requirement to engage with, and little access to, support services. As the Organisation for Economic Cooperation and Development has argued: “what is needed is to bring the disability benefit scheme closer in all its aspects to existing unemployment benefit schemes”.
Shortly after becoming Secretary of State for Work and Pensions in 2010, Iain Duncan Smith announced his ambition to create “[a] welfare system that is fit for the 21st Century.” In 2015 he argued that Universal Credit (UC) “opens the way for us to re-think the relationship between sickness benefits and work.” This paper outlines the structural reforms that would maximise UC’s impact for people with health conditions. The package of reforms cover the benefit rate, gateway and conditionality. They are not about cost-saving, but building a more coherent, effective and personalised benefit system.
The difference in the benefit level for unemployed people compared to that for people with significant health conditions is sizeable – and under UC the gap will widen. For claimants with severely limiting health conditions the level of payment will not affect their chance of moving into work; for others non-financial incentives may be more powerful. Nonetheless, international evidence does show that the rate at which sickness benefits are set can have behavioural effects – particularly on claim duration. The Government should therefore set a single rate for out-of-work benefit. The savings from this rate reduction should be reinvested into Personal Independence Payment – which contributes to the additional costs incurred by someone with a long-term condition – and into support services.
Moving to a single out-of-work allowance is also a key precursor to a more personalised system focused on what a claimant can do. The current WCA combines an assessment of eligibility for benefits with an assessment of a claimant’s capacity for work. This much criticised model inadvertently encourages claimants to focus on demonstrating how sick they are, rather than engaging in an open conversation about what they might do with support. A single allowance enables the separation of these two things. Building on UC, the Government should implement a single online application for the benefit, including a ‘Proximity to the Labour Market Diagnostic’ to determine a claimant’s distance from work and a health questionnaire.
This questionnaire should determine whether a separate occupational health assessment is needed. If it is, this should be carried out by an appropriate health professional, with oversight from an occupational health specialist. Unlike the ‘pass/fail’ WCA model, the assessment should take a broad view of a claimant’s multiple health-related barriers to work, including ‘biopsychosocial’ factors. The claimant and health adviser should, where appropriate, jointly produce a rehabilitation plan, and this should come with a personal budget. Those with mild or moderate health conditions that, with support, could be managed should be expected to take reasonable rehabilitative steps – some level of conditionality should therefore be applied. Employment advisers must be appropriately trained to support those claimants, and given a high degree of discretion in how they apply that conditionality.
Achieving the radically different employment outcomes desired by the Government demands a radically different approach. The model proposed in this paper provides just that.
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Delays in discharging patients out of hospitals in England is a "major problem", a report on how to save £5bn of NHS's annual budget by 2020 says.
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Report by - Nick Triggle, Health Correspondent - BBC News.
Labour peer Lord Carter's report found nearly one in 10 beds was taken by someone medically fit to be released.
It said it was a "major problem" causing operations to be cancelled and resulting in the NHS paying private hospitals to see patients.
Union Unison said cuts to social care were a major cause of "bed-blocking".
Lord Carter identified the issue in a wider look at how £5bn could be saved by 2020.
His proposals called for better procurement and staff management, and savings to the drugs bill.
But delayed discharges are likely to be prove a more intractable problem as it is largely not down to the actions of hospitals.
Vulnerable and frail patients cannot be released if there is not the support in the community from home care workers or district nursing staff or a place in a care home.
While official statistics suggest about 5,500 patients a day are affected, the report said information provided by trusts estimates as many as 8,500 beds in acute trusts were being blocked.
It said if you take into account how much staffing and running a bed costs this works out at £900m a year.
But the true cost could be even higher. The report highlighted the growing trend to pay private hospitals to do NHS work, such as knee and hip operations, as a consequence of this.
Last year the NHS spent £11bn in the private sector - a rise of 11% on the previous year. Lord Carter said delayed discharges was likely to be a "contributory factor" in this.
Delayed discharges have also been blamed as one of the causes of growing waiting times in A&E as doctors struggle to find beds for patients who need to be admitted.
Meanwhile, Lord Carter said hospitals across England must end "stark" differences in spending and productivity, Lord Carter added.
He found the average cost of an inpatient treatment is £3,500 but said there was 20% variation between the most expensive trusts and the least expensive.'Major problem'
Lord Carter said: "My experience of the NHS and hospitals internationally is that high-quality patient care and sound financial management go hand in hand."Analysis: Savings target is just a start
Hospitals consume £55bn of health spending - about half the annual budget. So a £5bn efficiency target is very ambitious.
But as a sign of the mountain the health service has to climb in the coming years, consider this: it doesn't even go a quarter of the way to achieving the overall savings the health service is aiming for.
In return for the extra £8bn it is getting this Parliament, the NHS has pledged to save £22bn.
It means the rest will have to come from people improving their lifestyles (and so preventing ill-health), moving care out of hospitals and into the community (which is cheaper) and keeping tight control on salaries. It promises to be a tough few years.
Thousands are being trained to offer timely help to those at risk, including teenagers, corporate lawyers and firefighters
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Robert Booth, News Reporter at the Guardian reports:
Prevention is better than cure and that goes for mental health too, perhaps even more than other illnesses.
So, up and down the country, more is being done to make people aware of the risks and of what they can do to develop the psychological flexibility that can help avert mental illness.Schools.
More than 15,000 people working in English schools have been trained as mental health first aiders. Their role is to spot the warning signs, provide initial support and comfort, and help children access professional treatment. The scheme is organised by Mental Health First Aid England, a community interest companythat uses a programme first developed in Australia in 2001.
The scheme was piloted in 18 schools, colleges and youth clubs in north-east England, training teachers and carers to recognise symptoms of mental illnesses such as depression and social anxiety. One young person in 10 is estimated to experience some form of emotional or mental health problem each year, and problems often start early. Half of young adults with mental health disorders first experience difficulties before they are 15.
Some of Britain’s most dangerous prisoners are being offered meditation training to tackle their violent impulses as part of mindfulness-based stress reduction courses. A group of about 60 men in segregation units in the country’s eight highest security prisons have been offered access. It is estimated one in 10 prisoners suffer psychosis and two out of three have a personality disorder, so prisons focus on stopping these problems getting worse.
The charity Centre for Mental Health is working with prisons in Staffordshire to improve prisoners’ mental health by giving them employment and housing support for when they are released. Hope about the future is a key factor in avoiding mental health problems, the centre believes.
Stress-related illness accounts for half of long-term sickness absence among white-collar workers, so some employers in the City of London, which has some of the most stressful work environments in the country, have formed an alliance to make staff mental health an issue at board level.
Members include the Bank of England, the law firms Linklaters, Clifford Chance, and Slaughter and May, property firm Lend Lease and accountants KPMG. The prevention programme trains managers to spot signs of problems and to help employees get support.
“Training staff in mental health awareness, particularly line managers, is a key part of creating a culture where mental health becomes normalised and reaches parity of esteem with physical health,” said Poppy Jaman, programme director for City Mental Health Alliance.Counter-terrorism.
Some police working in the national programme to tackle violent extremism, Prevent, have been trained to identify mental health problems in people who they fear are at risk of being drawn into becoming terrorists.
Officers in the West Midlands counter-terrorism unit are among those trained to speed up diagnoses in situations in which an undiagnosed mental health problem could increase the likelihood of someone carrying out a terrorist act. The programme is based on the calculation that mental health problems are likely to increase the risk of radicalisation and terrorism in vulnerable people and that addressing those problems will reduce the risk.
“Police officers in particular will say a person has ‘mental health issues’ but then fail to be able to specify which one,” a briefing on the programme reported. If they can identify the problem, they can arrange treatment faster.
People working for the police, fire and ambulance services are more likely than the general population to have mental health problems, so they are being offered resilience courses by the mental health charity Mind.
The scheme is being funded by £4m from the fines levied on banks involved inrigging the Libor rate. The six-week course, taking a couple of hours a week, aims to equip workers with ways to cope with the “unique pressures” that come with their roles.
Police officers who investigate fatal road crashes, paramedics and fire fighters are among those who have undergone the course to better understand and cope with the stresses they face.
2015 marked the "fifth anniversary of the introduction of the Deprivation of Liberty Safeguards. It is both striking and concerning that over the last five years we have seen the same themes recurring including, until recently, persistently low numbers of applications for authorisation of the Safeguards.We are also concerned about the continuing lack of understanding and awareness of the MCA, which is a potential barrier to good practice.” Care Quality Commission DOLs Report 27th January 2015
EMASB - Information Curator's insight:
Chaired by Pete Morgan Chair PASAUK through expert sessions and case studies, this conference will discuss the Deprivation of Liberty Safeguards and where they sit following these new developments, ensuring compliance locally and implications of the Law Commission Review, moving forward to a new system of protective care 2014.
The Law Commission DoLs Review: Moving towards Protective CareHow can we ensure effective outcomes within the current DOLS system?DoLS identification, application and compliance Case Study: DoLs in the Hospital SettingBest Interests Assessment Practice: the challenges and strategies for practitioners Monitoring the Deprivation of Liberty SafeguardsTraining and educating frontline staff: ensuring all staff understand when an application is neededInterested in Exhibiting at this event?
This conference includes an exhibition for delegates to hear about, discover and takeaway details of new products and services.
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