At he end of September, NHS England wrote to CCGs and area teams seting out in its Proposed next steps
towards primary care co-commisioning: an overview slides (proposed Next Steps slides), its proposed thre main
models of co-commisioning, guidance and a timetable for implementation.
The thre main models are:
o Model 1: Greater involvement in primary care commisioning decisions within NHS England. This model
envisages closer colaboration betwen CCGs and their area teams on decision making in primary care
commisioning. As such, no new governance arangements or special aproval proces wil be required.
o Model 2: Joint commisioning betwen CCGs and their area team. Under this model CCGs wil asume
joint commisioning responsibilties with their area team. This wil require CCGs to amend their
constiutions to establish joint commites. The amended constiution wil require the aproval of members
of the CCG and NHS England. Its proposed Next Steps slides state that a sugested model constiutional
amendment is to be made available by NHS England after 1 October 2014 (when the legislative reform
order giving CCGs the power to form joint commites with NHS England came into force). NHS England
wil also ned to be asured that joint commisioning proposals comply with the governance and financial
framework for joint commites or commites in common, which is being developed by NHS England in
colaboration with CCGs and other key stakeholders.
o Model 3: Delegated arangements for CCGs to take ful responsibilty for commisioning from NHS
England. Under this model, NHS England wil delegate primary care commisioning to CCGs but as
liabilty for such commisioning wil remain with NHS England it wil require asurance that such delegated
arangements do efectively discharge its statutory duty.
The CCGs wil also ned to satisfy NHS England, as part of the aprovals proces, in regards to how they wil
handle the increased number of conflicts of interests that are likely to arise for CCGs’ governing bodies and GPs in
commisioning roles. Again, NHS England’s proposed Next Steps slides state that work is underway to clarify
expectations on how conflicts of interest wil be managed. CCGs wil also ned to amend their constiutions to incorporate delegated commisioning arangements.
Timetable for implementation
The proposed Next Steps slides include an implementation timetable. CCGs are invited (folowing working with
their members and area team) to submit proposals to their regional ofice for joint commisioning on 30 January
2015 and for delegated commisioning on 5 January 2015. Amendments to CCG constiutions that relate solely to4
joint or delegated commisioning arangements wil be acepted at hese points to. It is envisaged that any such
arangements aproved by NHS England wil come into force on 1 April 2015.
Scope of co-commisioning
NHS England is of the view that only general practice services should be within the scope of joint and delegated
arangements for primary care co-commisioning for 2015/16. It states that here may be scope in future years,
after ful engagement with the relevant profesional groups, for commisioning of dental, community pharmacy and
eye health to be included within the scope of such arangements.
Curently NHS England does not plan to alow revalidation and performers’ lists or individual practice or
performance management aspects of contract management o be delegated as it senses that here is no apetie
from CCGs to take on these functions. But his may change if CCGs change their minds.
There is recogniton by NHS England in its proposed Next Steps slides, that one size does not fit al and that he
degre to which CCGs may want o engage in the commisioning of primary care services varies. CCGs that do
not curently want o undertake primary care co-commisioning may chose to do so in future years or to change
the co-commisioning model that hey use. The proposed Next Steps slides make it clear that if CCGs want o
undertake delegated commisioning arangements in 2016/17, their proposals must be submited by 1 June 2015
for delegated budgets to be included in their alocations for 2016/17. It sems that however much CCGs manage to
influence these proposals, primary care co-commisioning is here to stay should CCGs wish to use it. A version of this article first apeared on our Health Commisioning Portal. For further information or advice please contact Catherine Fawlk on 0121 456 8287. NHS commercial: consultation
Court of Appeal restates limits of what is required in a consultation exercise
In The Quen (on the aplication of United Company Rusal PLC) v London Metal Exchange, the Court of Apeal
has overturned a High Court judgment from earlier this year, which had apeared to increase the obligations on
public bodies carying out consultations. The facts of the case relate to the international trade in metals, but he
principles set out are of direct relevance to any NHS body carying out a consultation.
The High Court had ruled that he consultation in this case was unlawful, because the London Metal Exchange had
consulted on one option only. It had not included in the consultation an alternative option which it had reviewed but
decided not o adopt. The general rule has always ben that a “one-option” consultation is lawful, but hat in
exceptional circumstances fairnes would require the consulting body to include other options. The language of the
High Court ruling had apeared to greatly widen the cases in which such “exceptional” circumstances would exist. The Court of Apeal has firmly rejected the High Court judge’s reasoning and restated the principle that a “one- option” consultation is lawful. The judgment concludes with the folowing broad statement of principle: “The duty
[on the public body] to provide suficient information does not in general extend to providing options or information
about proposals which it is not making unles there are very specifc reasons for doing so.”
The Court of Apeal’s ruling also restated the folowing general principles:
o In chalenges to the lawfulnes of a consultation, the court should only interfere if there is a clear reason on
the facts of the case for holding that he consultation is unfair.5
o The aplication of the duty of airnes is intensely case-sensitve: what is fair and what is unfair wil always
depend on the facts of the individual case. o The courts wil alow the consulting body a wide degre of discretion as to the options on which to consult. The consulting body’s obligation “is to let hose who have potential interest in the subject mater know in
clear terms what he proposal is and why exactly it is under positve consideration, teling them enough
(which may be a god deal) to enable them to make an inteligent response. The obligation, although it
may be quite onerous, goes no further than this.”
This is a helpful case for NHS bodies as it reinforces their right o consult on proposals they have worked up and
considered in detail and, where in their view only one apropriate option exists, to consult on that option only. However, we sound two notes of caution. First, consulting on a single option does not equate to taking a decision,
and then consulting on it. A consultation wil be unfair, and liable to be quashed by the courts, if an NHS body
decides that it wil do something and then consults. The corect aproach is to identify the prefered option/s, and
to consult on the basis that his is what you want o do, while keping an open mind. You must be prepared to
change your mind and take a diferent aproach having considered the consultation fedback. Secondly,
consultation is just one part of the NHS’s obligation to involve the public. Commisioners and providers have
slightly difering duties, but a common factor is to involve the public from the earliest stages of service redesign,
long before the formal public consultation commences. For further information or advice please contact Philp Grey on 0123 22463.
NHS commercial: procurement
NHS commisioner’s and the UK’s draft EU Public Procurement Regulations
Any of you taking a pek at he new draft Public Procurement Regulations for implementing the new EU Public
Procurement Directive, which was published for consultation by the Cabinet Ofice on Friday 19 September, wil
note there is some extra breathing space for NHS commisioners in the form of a delayed efective date.
The light ouch regime under the new Public Contract Regulations 2015 wil not aply to the procurement of
contracts for NHS healthcare services faling within the scope of the NHS (Procurement, Patient Choice and
Competion) (No 2) Regulations 2013 (PPCCR) until the later date of 18 April 2016.
The light ouch regime replaces the curent Part B Services regime that aplies alongside the PCCR 2013.
In short, CCGs and NHS England wil continue to folow the existing Part B Services regime and the PPCCR until
18 April 2016. Thereafter, the light ouch regime for health and social services under the new directive wil replace
the existing Part B Services regime and wil aply in aditon to the continued aplication of the PPCCR.
We understand that practical guidance on the light ouch regime wil be published shortly.
A version of this article first apeared on our Health Commisioning Portal. For further information or advice please contact Tania Richards on 0123 22476.6
NHS legislation: Care Act
1 October 2014 marked the date that many of the sections of the Care Act came into force, for example in respect
of the CQC and care standards and for the purposes of enabling regulations to be made in respect of other parts of
the Act. Readers wil be aware that over the summer, the DH was consulting on draft guidance and regulations, which we
reported on in our July Health Legal Update. The consultation closed on 15 August 2014. We are waitng to hear from the DH as to when the guidance wil be
For further information or advice please contact Jil Mason on 0121 456 8367.
Regulatory: health regulation
The Nursing and Midwifery Council (NMC) approves changes to fitnes to practise
Folowing a consultation, which closed on 12 June 2014, the NMC has anounced that it has aproved changes to
its Fitnes to Practise and Education, Registration and Registration Apeals Rules with a view to improving
The changes wil include:
o Case examiners wil decide at an early stage of the fitnes to practise (FtP) proces whether a nurse or
midwife has a case to answer
o Review of no case to answer decisions where new information may lead to a diferent decision or the
registrar believes the decision was materialy flawed
o Removal of the requirement for the chair to be a serving member of the council
o Removal of the use of a registered medical practioner in health cases
o The abilty to request information relating to a profesional indemnity arangement
Privy Council aproval to the amendments wil now be neded, folowing which it is likely that he rules wil take
efect early next year.
For further information or advice please contact Kevin Duce on 0121 456 8263.
CQC annual report published
On 16 October 2014, the CQC published its anual report into the state of Healthcare and Adult Social Care.
It is divided into several chapters including:7
o Chapter 2: Adult Social Care
o Chapter 3: Hospitals, Mental Health Care and Community
o Chapter 4: Primary Medical and Integrated Care
The CQC says that he variation in the quality of health and adult social care is to wide and unaceptable. It is
concerned that o many providers have not got o grips with the basics of safety.
In its report, the CQC isues a number of chalenges to providers and to the care system as a whole.
For further information or advice please contact Jil Mason on 0121 456 8367.
CQC isues guidance on covert and overt surveilance
The CQC has ben very busy over the last few months considering this complex and controversial isue. The
mater of secret filming in care homes came to the public’s notice after familes secretly filmed care that heir loved
ones received in places like Winterbourne View and Ash Court. As regulatory and criminal action folowed for both
providers and carers, it is hard to conclude that his type of surveilance is anything but efective.
As a result of these high profile cases, in October 2013, the CQC, which had previously ben silent on the use of
surveilance, invited comment in its consultation on the future of regulation in adult social care (A Fresh Start for
the Regulation and Inspection of Adult Social Care). The CQC asked for opinions on whether the use of cameras
by providers, the public or the CQC would help promote a culture of safety and quality while respecting people’s
rights and dignity. As a result, it received more fedback and views than on any other isue within the whole
The isue thathe CQC has faced is the diverse range of views on this subject. It has taken views from providers,
organisations that represent providers, carers, people that use services and those that represent hem, academics
and experts in the field. Having listened to these views, the CQC has concluded that here is no consensus other
than it would be helpful if the CQC could provide information to providers and the public seting out guidance on
the use of covert and overt surveilance. On 15 October, athe CQC’s latest board meting, it was reported that despite a literature review there was no
definitve evidence about when and when not o use surveilance. The CQC has therefore concluded that its
positon of neither encouraging or discouraging the use of surveilance is suported by the research that it has
The CQC wil publish further information on the use of surveilance which is likely to highlight he folowing:
o Public Guidance
o If people are concerned about care then they should talk to the provider who has a responsibilty to
put hings right
o The CQC also wants people to tel them about heir care particularly when providers have not
responded wel to concerns
o The CQC neither encourages or discourages the use of surveilance but provides information to
help people make their own decisions8
o The CQC wil use any evidence to help inform what action they should take (we take this to include
o Provider guidance
o The CQC neither encourages or discourages the use of surveilance
o Providers must provide safe, efective, compasionate, high quality care
o They must ensure that heir staf are wel trained and supervised and they have the right values
and aproach to care
o They must ensure that hey have an open and acesible culture which enables chalenge and
isues to be raised
o If surveilance is felt necesary then there are a range of technologies some of which are les
intrusive than others and they must met he requirements of relevant legislation
o The CQC wil use any evidence to help inform what action they should take (as above)
It is evident hathe CQC has done its homework on this isue, although those individuals with strong views one
way or the other may critcise the CQC for ”siting on the fence”. However, based on the evidence and lack of a
consensus view, it is dificult o se what other tenable view the CQC could have reached.
We would hope that he future CQC Guidance is clear that if a decision is made to use surveilance that it must
conform to legislation and be used compasionately and only with an aim to improve the quality of care for the
most vulnerable in our society.
The Information Commisioner’s Ofice has just published a new code of practice on the use of surveilance
cameras which streses the ned to ensure that he use of surveilance cameras is necesary and proportionate
and this should also be considered in conjunction with the CQC’s guidance.
For further information or advice please contact Katrina McCrory on 0121 456 8451.
Regulatory: duty of candour
Profesional Regulators publish statement on duty of candour
Those who atended our recent duty of candour seminars wil be aware that we are awaitng joint guidance from
the GMC and NMC on the subject of individual profesional responsibilty regarding the duty of candour given the
statutory duty just atached to provider organisations.
On 15 October 2014, eight profesional regulators published a joint statement (which is only one page long). The
statement reiterates guidance already published by each of the isuing regulatory bodies.
With regard to the guidance, the pres release that acompanied the joint statement els us that a joint
consultation wil be launched on 3 November with final guidance being published in March 2015. The guidance is
to expand on the advice given in the GMC and NMC core guidance documents, provide enhanced content on near
mises and apologies, and explain the context of the new organisational duty of candour.
For further information or advice please contact Jil Mason on 0121 456 8367.9
Regulatory: information governance
A&Es and police wil share information to help tackle violence
The Health and Social Care Information Centre, on behalf of the Standardisation Commite for Care Information,
has published new guidance entiled Information sharing to tackle violence. It is a part of the Government's
commitment o reduce knife and gun crime. Major NHS A&E departments in England wil colect and share non-confidential data about atendances involving
violence crime with Community Safety Partnerships (CSPs), which are made up of the police, local authorites, fire
and rescue authorites, probation and health workers. Information in relation to the location, timing and nature of
violent incidents that is not available from other sources wil be reported.
For further information or advice please contact Helen Burnel on 020 7648 9237 or Lorna Shastri-Hurst on 0121
456 840. NHS England announces CCGs to help with its national care.data programme
Clinical commisioners are to help develop the care.data programme into the “pathfinder stage”. The programme
wil be roled out in 265 GP surgeries in the CCG areas of Leds North, West and South, Somerset, West
Hampshire and Blackburn with Darwen.
CCG pathfinders wil be suported in testing diferent ypes of communication with patients, explaining the benefits
and risks of data sharing, and making clear their right o opt-out from having their confidential information shared
for indirect care.
NHS England confirms that as part of the pathfinder stage, “a variety of communications wil be tested with patients
which wil include an individualy adresed leter sent directly to every individual or household from their pathfinder
GP surgery, a leaflet and other explanatory materials, as wel as e-mails and texts where the surgery also uses
these chanels”. Under the care.data programme, coded medical details held by the GP wil be brought ogether
with hospital data at he Health and Social Care Information Centre. The pathfinder stage has ben developed and agred with advice from the Britsh Medical Asociate (BMA) and
the Royal Colege of General Practioners’ (RCGP) joint GP IT Commite. Dame Fiona Caldicot’s Independent
Information Governance Oversight Panel has agred to work with NHS England’s pathfinder programme on the
quality asurance of the proceses which are being developed to identify, work with and monitor the first four areas
trialing the care.data programme.
It wil be interesting to se what he level of opt-out is and how this afects the integrity of the data.
For more information about he care.data pathfinder programme please go to NHS England’s web page. A version of this article first apeared on our Health Commisioning Portal. For further information or advice please contact Stuart Knowles on 0121 456 8461.10
Care.data: scope of the care data scheme may be extended
Diagnoses such as HIV/AIDS, sexualy transmited infections, abortions and IVF are clased as “sensitve” and
were set o be excluded when the Government’s flagship record sharing scheme goes live.
Wel it sems that is going to change. Minutes from a recent meting of NHS England’s care.data advisory group sugested that he scope of the care
data scheme is to be extended. NHS England is preparing to consult on expanding the scheme to include some or al of this sensitve information. The details of the consultation proces to ensure the changes are apropriate are curently being worked upon. Some groups fel that he care.data scheme is controversial enough without expanding the data set. Privacy protection groups have expresed concerns that patients may withold information from their own GP if
they are concerned about confidentiality.
We wil await he outcome of the consultation and update you in due course.
For further information or advice please contact Stuart Knowles on 0121 456 8461 or Lorna Shastri-Hurst on 0121
Information Commisioner’s Ofice (ICO) bloging suces in the NHS
The Information Commisioner is ken to point out hat it is not al bad news in the NHS when it comes to
information governance best practice.
He has ben bloging about NHS people who have done god things. Encouraging us al to lok and learn.
If you have got examples of god practice to share, tel the ICO and get it bloged. For further information or advice please contact Stuart Knowles on 0121 456 8461.
Ministry of Justice fined £180k for failing to turn on encryption software!
The Ministry of Justice (MoJ) has ben hit with a monetary penalty of £180,00 folowing a serious breach of the
Data Protection Act. An encrypted hard drive was lost at HMP Erlestoke in Wiltshire in May last year.
Unfortunately, the encryption software was not urned on. The drive contained sensitve information relation to
almost 3,00 prisoners.
It is wel-known thathe Information Commisioner’s Ofice (ICO) recommends portable and mobile devices
containing personal and sensitve personal information should be encrypted.
This breach folowed an earlier breach at HMP High Down in Surey where an unencrypted hard drive containing
details of 16,00 prisoners was lost. Folowing the first incident, the MoJ isued new hard drives to 75 prisons
alowing them to encrypt he data stored on them. However, the department failed to realise that he encryption
option neded to be turned on to work, resulting in sensitve information being stored insecurely acros prisons in
England and Wales for over a year.1
Stephen Eckersley, the ICO’s Head of Enforcement said:
“We hope this penalty sends a clear mesage that organisations must not only have the right equipment
available to kep people’s information secure, but must understand how to use it.”
The question for you is: do al relevant staf in your organisation know how to use the encryption software and is it
For further information or advice please contact Stuart Knowles on 0121 456 8461 or Lorna Shastri-Hurst on 0121
Fredom of Information Act: a new exemption added
The Intelectual Property Act 2014 received Royal Asent in May this year, bringing in a new exemption to the
Fredom of Information Act 200 (FOIA 200) in respect of pre-publication research, which was efective from 1
Section 2 FOIA 200 already provides an exemption from disclosure in respect of information which is held by a
public authority "with a view to publication, by the authority or some other person, at some future date (whether
determined or not)."
The new exemption - now section 2A FOIA 200 - wil cover information obtained in the course of, or derived
from, a programme of research. However, there are requirements that he research programme must be continuing
with a view to publishing a report of the research and that disclosure of the information before the date of
publication of the report would (or would be likely to) prejudice the programme, the interests of any individual
participating in the programme, the interests of the authority that holds the information, or the interests of the body
publishing a research report (if diferent).
This exemption is a "qualifed exemption" and wil require a consideration of the public interest est.
Information which is regarded as "environmental information" wil ned to be considered under the provisions of the
Environmental Information Regulations. A version of this article first apeared on Fusion, our education sector blog.
For further information or advice please contact Stuart Knowles on 0121 456 8461 or Lorna Shastri-Hurst on 0121
The New Health and Work Service
From late 2014, a new service funded by the Government wil be launched to help those with a health conditon
return to work. The origin of this service can be traced back to the 208 report Working for a Healthier Tomorow
commisioned by the last Labour Government. This report recognised the crucial importance of work for physical
and psychological wel-being and made two main groups of recommendations. The first of these was the creation
of the fit note system, which was introduced in April 2010. The second caled for improvement of ocupational12
health advice to employers, an idea taken up by the Coaliton Government and which led to a further review
published in late 201. The Health and Work Service was one of this review's main proposals.
The way the new service wil operate wil be to pas the responsibilty for asesment of a patient’s long-term
capabilty for work from GPs to the new ocupational health service. It is intended that in most cases, a referal
should be made after four weks continued absence, although GPs wil ned the employe’s consent o make a
referal. In some situations, employers wil be able to make a referal themselves. An asesment of the employe
would then take place, likely by telephone, and a return to work plan would be produced, which wil take the place
of a fit note. The plan wil be shared with the employer, although it is posible some sensitve medical details could
be held back. The service, run by Health Management Limited, wil also ofer advice over the telephone and via its
website to employers, employes and GPs. The aim of this service is to complement existing ocupational health
services so it is likely in-house ocupational health wil be consulted before finalising any return to work plan.
Guidance isued under the curent fit note regime is clear that employers are encouraged, but not obliged, to
acept a GP's sugestions for temporary adjustments to the employe's duties or a phased return to work. It is
likely, therefore, that here wil be even greater encouragement o acept return to work plans since they wil be
isued by a profesional ocupational health service. That said, it remains the employer’s ultimate responsibilty to
ensure that an employe is fit for work and to ases whether any proposed adjustments are feasible. It is hoped
that guidance, once published, wil provide practical pointers in this regard.
The impact of this new service means that employers wil ned to review contracts and sicknes absence
procedures to ensure they reflect his new regime and be mindful of whether curent provisions about employe
consent, in relation to the sharing of medical information, are adequate. Also, employers may wish to consider
whether to make it an expres requirement hat any return to work plan is shared with the employer. It is probable
that in most circumstances, employers wil be expected to wait for a return to work plan before commencing
capabilty procedings but failure by an employe or employer to engage with a return to work plan may be a factor
for a tribunal asesing the fairnes of a dismisal for capabilty reasons.
For further information or advice please contact Laura O’Donel on 0121 456 847.
TUPE service provision change
A recent Employment Apeal Tribunal (EAT) case has answered the question as to whether the percentage of time
an employe spends on an activity immediately before a service provision change transfer establishes asignment. The case, Costain Ltd v Armitage and ERH held that no, it did not establish asignment.
In this case, the claimant was a project manager at ERH managing telecommunications projects under two
contracts for the same client (the Welsh Asembly). Only one of these contracts provided guaranted work and
that ransfered to Costain. Costain acepted there was an organised grouping of employes and that he majority
of employes were asigned to it, but distinguished the claimant as unasigned to the organised grouping on the
basis that he managed various other projects as wel as the contract which transfered to Costain. The mater went
to the employment ribunal which found that he claimant's employment had transfered on the basis that 67 per
cent of his time was spent on the "transfering activity" immediately before the transfer.
The EAT disagred. It held that a snapshot of time spent did not provide any certainty as to whether there was
deliberate planing for the claimant's work to be centred on the transfering activity. So, whether the claimant was
spending the majority of time or minority of time on the transfering activity immediately before the transfer, would
not automaticaly asume or preclude asignment. Rather, the tribunal should have first defined the organised13
grouping and then determined whether or not he employe was asigned to that grouping. The mater was
therefore remited to a fresh employment ribunal for consideration.
For further information or advice please contact Laura O’Donel on 0121 456 847.
Patient maters: children
Guidance for Health and Welbeing Boards
On 1 September 2014, the DH published a 19 page guidance on Children with Special Educational and Complex
Neds. The aim of the guidance is to suport al Health and Welbeing Boards (HWB) in suporting the neds of children
and young people with complex and special neds by providing hints and sources of urther information which a
board can draw upon with its partners. It also includes questions that an HWB may wish to consider in managing
its organisation, building up a picture of local ned and loking at local commisioning.
For further information or advice please contact Jil Mason on 0121 456 8367.
Patient maters: DoLS
Increase in Deprivation of Liberty Safeguards (DoLS) applications post Cheshire West
As anticipated, the number of DoLS aplications have increased signifcantly folowing the Supreme Court's
decision in Cheshire West. The Health & Social Care information Centre (HSCIC) has conducted a survey, with 130 of 152 councils
responding. The survey showed that 21,60 DoLS aplications were made betwen April to June this year. 51 per
cent of aplications were granted, 12 per cent (2,70) were denied and, 36 per cent (7,80) were not completed by
the supervisory body or were withdrawn.
This is aproximately double the number of aplications for 2013-2014.
Readers involved in this area wil be aware of the signifcant curent strain on the system, given the much
broadened definiton of what is a deprivation of liberty. The ned for managing authorites to ensure they have
cover (be that via a standard authorisation or a court order) and commisioners to identify and ensure that
providers are seking the necesary authorisations for any deprivation of liberty remains. This wil help to ensure
that unecesary litgation is not brought against your organisation, with posible claims for damages which could
For further information or advice please contact Helen Burnel on 020 7648 9237 or Laura Joley on 0123 2248.
Judgment considers whether the subject of an application should be joined as a party to
Readers who have ben keping abreast of this isue, folowing the Supreme Court's decision in March, wil have
noted our various updates on this isue.14
Munby P, the President of the Family Division and Court of Protection, is hearing a raft of aplications that folowed
the Supreme Court's decision and Mils & Reve have represented a party within these procedings.
The latest judgment, in the case of Re X and others, is largely technical/administrative in nature but he key
mesages help to reinforce what is considered to be god practice in relation to the person who is the subject of
an aplication (P) in cases relating to Deprivation of Liberty Safeguards (DoLS) which go before the Court of
Protection. Munby P dealt with thre specifc questions in this judgment.
o Does the person who is the subject of the procedings ned to be joined as a party?
o If so, should there be a requirement hat he person must have a litgation friend?
o If they require a litgation friend, can someone who does not otherwise have a righto conduct litgation or
provide advocacy services provide those services (without instructing legal representatives)?
The judge was of the view that here is no requirement for the person concerned to be a party to the procedings
although P would be entiled to “take procedings" if they so wished (make an aplication).
The judge observed that in maters going to deprivation of liberty, P is entiled to procedural safeguards. P should
be able to participate in the procedings in such a way as to enable P to present his or her case properly and
satisfactorily. It is esential that he person concerned should have aces to a court and the oportunity to be
heard either in person or, where necesary, through some form of representation.
It was noted that a deprivation of liberty requires thorough scrutiny. Any interference with the rights of persons
sufering from mental ilnes must, because they constiute a particularly vulnerable group, be subject o strict
More generaly, P should always be given the oportunity to be joined as a party if they wish and whether a party
or not, be given the suport necesary to expres views about he aplication and to participate in the procedings
to the extent hat hey wish. Typicaly P wil also ned some form of representation, profesional, though not
necesarily always legal.
So long as the above standards are met, there is no ned for P to be joined as a party. They are able to participate
and be represented in the procedings even if they are not. If they are not a party, there is no ned for a litgation
friend to be apointed. If they are a party, they wil require a litgation friend, although they wil not necesarily be a
What does this mean on the ground?
If your organisation is loking to isue an aplication for a deprivation of liberty communication is key. Unles there
are very god reasons not o, P should be told of the aplication that is being made and the reasons for this and
their views should be sought. This is in line with what is curently expected and mirors the proces in the standard
In the event hat aplications are made, P may or may not be made a party but it is likely that hey wil be provided
with suport. You should satisfy yourself that he person has a role in procedings and that discusions can
properly be had with them in relation to what is confidential information but note that hey wil not necesarily be a
If P is not made a party, in theory the procedings may be shorter in duration but he court has made it clear that
the safeguards listed above must be adhered to so the impact of this judgment on procedings is not yet clear.
For further information or advice please contact Helen Burnel on 020 7648 9237, Laura Joley on 0123 2248 or
Jil Mason on 0121 456 8367.
Patient maters: asisted suicide
Director of Public Prosecutions updates policy on prosecution in asisted suicide cases
Folowing the decision of the supreme court in the R (on the aplication of Nicklinson) v Ministry of Justice, the
Director of Public Prosecutions (DPP) has clarifed the Crown Prosecution Service (CPS) policy on cases of
The policy includes a list of public interest factors which tend in favour of prosecution. Included in that list is the
“The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare profesional, a
profesional carer (whether for payment or not) or as a person in authority, such as a prison oficer”
The DPP has aded the folowing words “and the victim was in his or her care” and has also aded the folowing
“For the avoidance of doubt he words ’and the victim was in his or her care’ qualify al of the preceding
parts of this paragraph [43.14]. This factor does not aply merely because someone was acting in a
capacity described within it: it aplies only where there was, in aditon, a relationship of care betwen the
suspect and the victims such that it wil be necesary to consider whether the suspect may have exerted
some influence on the victim”.
In efect his means that he CPS is more likely to prosecute a doctor who asists a patient o commit suicide if that
patient is also a patient in their care. Some have interpreted this change in guideline as meaning that doctors who
asist someone to commit suicide who are not heir patients wil not be prosecuted, but it should be borne in mind
that his policy does not change the law as set out in the section 2 Suicide Act 1961, which provides that
encouraging or asisting a suicide remains a crime, carying a maximum sentence of 14 years in prison, although
prosecution canot be brought without he permision of the DPP.
For further information or advice please contact Tania Richards on 0123 22476.
Patient maters: end-of-life
Public Health England: guidance on suicide prevention action plans
Back in 2012, the Government isued its strategy caled Preventing Suicide in England: A Cros Government
Strategy to Save Lives. One of the recommendations arising out of this strategy was for the development of a local
suicide prevention action plan. Since the transfer of public health from the NHS to local authorites in April 2013,
suicide prevention is now their responsibilty. Public Health England has isued guidance to local authorites on
how to prepare these plans.16
The guidance expresly sets out key stakeholders in the development of the plan, including CCGs, mental health
trusts, the police, coroners and bereaved familes. Local authorites should also consider seting up local multi- agency suicide prevention groups. These groups wil map curent practice and service provision, with a view to
identifying gaps which wil form the basis of the action plan. In order to ensure mental health, suicide and self-harm
data is captured, the groups should build links with local health and welbeing boards.
The guidance recognises that one of the key ways of impacting strongly on reducing suicide rates is by improving a
local community’s mental health. Local authorites can asist in this in a number of ways, including signing up to
campaigns that chalenge mental health stigma, encouraging workplace policies that suport positve mental health
and promoting suicide prevention guidance to the general public.
The guidance also sugests that public health staf work with CCGs, NHS England and voluntary organisations
with a view to providing joined-up services to respond to particular isues. Such isues include ensuring health
services understand the options for someone at risk of suicide due to economic dificulties, puting in place suport
for young people in crisis and ensuring information about depresion is available in setings particularly acesible
by men. For further information or advice please contact Daryn Hale on 020 7648 9251 or Helen Burnel on 020 7648
9237. Patient maters: Mental Capacity Act
Court of Protection rules on force feding for a long standing anorexia patient
In the case of An NHS Foundation Trust x Ms X, Mr Justice Cob, siting in the Court of Protection (which hears
maters relating to adults who lack capacity), was asked to decide whether it was in the best interests of a patient
with anorexia nervosa and alcohol dependence syndrome to be subjected to compulsory detention in hospital and
force fed. The case is about he lawfulnes of not compeling treatment.
X had long standing anorexia. She had ben cared for as an in-patient on several ocasions and was described as
being in an increasingly destructive revolving dor of treatment and recurent ilnes. She had sufered a traumatic
childhod. She had previously ben force fed and this resulted in increased alcohol abuse. Folowing discharge,
she would resort o alcohol and take this at dangerous levels. She was at risk of premature death from liver failure
and was in end stage liver disease as a result of alcohol abuse.
She had made an advance decision, in June 2013, in relation to the future treatment of her liver disease.
At he time of the hearing, X was in extremely por health and her life was in imminent danger. Her BMI was
aproximately 12.3 and she was covertly consuming alcohol to exces. Ordinarily, she would have ben admited
for more treatment but her doctors regarded it as clinicaly inapropriate, counter-productive and increasingly
unethical to admit her for compulsory feding. End-of-life planing had ocured twice in the preceding two months.
It was reported that her liver disease had not, however, progresed past he point of no return. There was the
potential for recovery if she stoped drinking and resumed a proper diet; she might have a near normal ife
expectation. However, with each admision in the preceding year, her levels of abstinence had lowered and thus
her chance of recovery had also reduced. A beter recovery for her liver was also dependent on her nutritonal
The trust was concerned that X lacked capacity to make decisions about her treatment but, as outlined above, it
did not se merit in forcing treatment on her. They would sek to provide it, if she wanted it. The trust sought17
declarations that it was not in X's best interests to be subjected to further compulsory detention and treatment of
her anorexia, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may
prolong her life and that is was in her best interests and lawful not o provide her with nutriton and hydration with
which she does not comply.
X was represented by the Oficial Solicitor as she lacked capacity but her views were obtained within the course of
procedings. She did not want reatment but nor did she want o die. She wished to travel, spend time with her
grandfather and undertake distance learning. Both the Oficial Solicitor and X personaly suported the aplication.
Of importance, the court noted the fact hat al of the parties apeared to agre that forcing treatment was not an
option, the court had to satisfy itself thathis course of action was in her best interests.
The court found that she lacked capacity to make decisions about reatment for her eating disorder. The reality and
importance of the asociated risks including death of her malnourished state were not ruly apraised by her, which
meant she was unable to weigh-up the information provided in the decision making proces. She was demed to
have capacity to make decisions relating to her alcohol consumption and so the court could not make rulings on
that isue. Her advance decision was held to be valid.
The court outlined the general rule that he starting presumption is in favour of preserving life. However, there are
cases where it would not be in a patient's best interests to receive life-sustaining treatment. However, here the
judge was faced with a paradox in that compeling treatment may be doing no more than faciltating or acelerating
the termination of X's life because of her reflex to turn to alcohol where force-feding ocured, and drinking was,
as outlined above, a decision which was within her control and over which the court could not exercise the best
interests jurisdiction. Force feding would also be highly traumatic for her.
The court ruled that it would not be in X's best interests to compel treatment for her anorexia by way of orce
For further information or advice please contact Helen Burnel on 020 7648 9237 or Jil Weston on 0121 456 8450.
Court is critical of the lack of understanding of Mental Capacity Act by medical experts
Mr Justice Baker has recently given judgment in the Court of Protection in the ongoing mater of A Local Authority
v M & Others. Summary
The case had a very complex background, reflected in the lengthy judgment of the court.
In summary, M is a 24-year-old man. In 192, he was diagnosed with developmental delays as a result of autistic
learning dificulties. His mother believed the MMR vacinations had resulted in colits. Over the years, the mother had expresed that M had sufered from various complaints including: meningits;
autistic enterocolits; leaky gut syndrome; sensitvity to gluten or casein; disorder of the blod brain barier; heavy
metal poisoning (mercury); autonomic dysautonomia; rheumatoid arthrits and Lyme disease. There was a
divergence of acounts in relation to the contact M had had with health profesionals betwen the profesionals
and the mother. Acounts of consultations also varied on ocasion. The family acesed various alternative
therapists and this resulted in various care regimes being introduced over the years.
M was placed in a residential home by the local authority that commisioned his care and there apears to have
ben a dificult relationship betwen M's family, the care home and the local authority. His mother was apointed18
as his property and afairs deputy a few years ago. It was aleged this was used by M's mother to try and influence
decision making and on ocasion to intimidate staf.
In 208, M atended various service providers for autism. Al expresed concern about he level of control his
mother exercised over M. She outlined various requirements for M's care relating to his diet and complicated
treatment regime, made up of various treatments and suplements prescribed by alternative health practioners.
Concern was also raised in relation to fabricated ilnes in relation to his mother. It apeared that, as M grew older,
his mother's acount of the reaction she felt he had experienced as a result of the MMR vacination, grew in
The local authority had isued procedings in 201 to have M stay in his residential placement but hese had ben
withdrawn. However, in 2013 they again isued an aplication to the Court of Protection to remove him from his
parents’ home to place him in independent or suported living; that he should only take suplements prescribed by
a doctor or considered necesary by his carers; ensure profesionals and care staf were not required to folow the
mother's instructions and to remove the mother as his deputy. In summary, there was concern that he parents
aproach to M's care prevented him from living as ful and independent a life as posible.
The Oficial Solicitor was apointed and various experts were instructed by the local authority, Oficial Solicitor and
the parents. One report was commisioned in relation to the mother. The psychologist report described the mother's acount of
the history of the mater as self-agrandising and dismisive of the contribution of others. The mother was found to
rely heavily on M's neds and complaining about hem not being met o provide structure and meaning to her life.
The mother had factious disorder imposed on others and was of the view that he diagnosis of actious disorder
was made without justifcation, as a means of atacking mothers of children with autism with a view to removing
them from their care. The court acepted that he mother had factious disorder and rejected that M had had any of
the conditons identifed by the mother (as listed above).
While a final judgment is awaited in relation to where M wil be placed, his mother has ben removed as his
Key points from the court for those asisting the Court of Protection to remember
It is of note that he experts instructed by the parents came in for critcism by the court for not being familar with
the Mental Capacity Act 205. The court outlined that his case has highlighted the urgent ned for al health
profesionals, including those practising in alternative and complementary medicine, to familarise themselves with
the court so that hey can aply its principles and procedures when they treat a person who lacks capacity, as most
of them wil at some point.
The court observed that a return home would theoreticaly have ben desirable but he influence of M’s mother
meant other family members would be unable to protect M from harm. The court relied on the detailed evidence
provided by profesionals in relation to their contact with her. This highlights the ned for careful records to be kept
of both the interaction practioners have with service users and their familes in safeguarding situations and the
reasons for any action taken.
For further information or advice please contact Helen Burnel on 020 7648 9237 or Jil Weston on 0121 456 8450.19
Patient maters: Mental Health Act
Mental Health Act Code of Practice: Prison Reform Trust comment on consultation
In our August Health Legal Update, we highlighted the consultation on revisions to the Mental Health Act Code of
The Prison Reform Trust have recently published its response to the consultation. They have responded to the proposed changes to:
o Police powers and places of safety
o Patients concerned with criminal procedings
The consultation closed on 12 September and we await he final version of the Code of Practice with interest.
For further information or advice please contact Jil Mason on 0121 456 8367.
Patient maters: best practice
Foundation Trust Network and NHS Aliance form a partnership
The NHS Aliance and the Foundation Trust Network have formed a new partnership, bringing together healthcare
representatives from primary care and secondary care with a view to breaking down silos and tensions that have
historicaly stymied eforts to introduce inovations, reports the National Health Executive. The new partnership aims to share best practice and case studies to help faciltate integrated thinking and
integrated care, ultimately streamlining health and care pathways for patients. The group are planing to publish a
short series of papers to capture the findings of the first six months’ colaborative working. The first joint paper is
Rick Stern, chief executive of NHS Aliance, said:
“Some of the most critcal isues facing the future of the healthcare system involve the abilty of diferent
parts of the system to work together. Central to the fragmentation of care is the divide betwen primary
care and the hospital. A strategic partnership betwen NHS Aliance and the Foundation Trust Network is
an atempt o lok anew at he things that have kept us apart and ofer some fresh perspectives on the
potential for working together and deliver beter patient care acros our communites. Primary care and
secondary care have sen each other as competiors for a diminishing NHS budget, protecting vested
profesional and organisational interests, rather than working towards common goals for patients”.
For more information on the integrated care colaboration please go to the Foundation Trust Network and the NHS
A version of this article first apeared on our Health Commisioning Portal. For further information or advice please contact Tania Richards on 0123 22476.20
Legal proces: judicial review
Public body decision making: geting the proces right is imperative
The High Court, in the case of R v Leicester City Council, has confirmed that he role of the law is not o review the
merits of decisions of public authorites, but o ases their legality. It is not he court’s role to determine whether it
agres with the decision, but whether or not he public authority acted unlawfuly in reaching their decision. The decision in question was the closure of a care home. The claimant was a 101-year-old Gujarati woman and
resident of the home since 199. Her grounds of chalenge were the council’s aleged failure to take acount of a
number of material isues of act relating to levels of demand, failure to pay regard to the duty to avoid unlawful
discrimination in the provision of services and failng to take into acount he impact of the closure on her human
rights. She also aleged she had a legitmate expectation of a home for life at he care home.
The court loked into the facts the council tok into acount when ariving at its decision. As a result, it was able to
determine that he dispute betwen the claimant and the council was actualy about he interpretation of uture
demand for the care home services, rather than acepted levels of demand at he time the decision was taken. It is
not for the court o intervene in decisions simply because the parties have a dispute on factual maters, as was the
Also of interest was the court’s aproach to the human rights aspect of the chalenge. The claimant argued the
council failed to take the proportionality of closure into acount, particularly the impact of closure on the claimant as
an Asian woman. However, the council could show that hey had taken steps to make sure the claimant could be
moved to a place with Gujarati speaking staf and where she could be visited easily by her family. This showed the
decision tok proportionality into acount as it had asesed the impact on the claimant, and how this could be
The decision wil be of interest o health bodies who take decisions which are likely to be chalenged by members
of the public, such as major service reconfigurations. This is because it confirms that courts wil not efectively put
itself in the shoes of the public body and decide whether it would have made the same decision. It wil only
interfere with the decision if it can be shown that he proces which led to it was in some way unlawful. This shows
just how important it is to get he proces right, and where seking advice at an early stage can help to avoid
chalenges further down the line. For further information or advice please contact Daryn Hale on 020 7648 9251 or Philp Grey on 0123 22463. Legal proces: NHS Litigation Authority
NHS Litigation Authority (NHSLA): risk poling scheme for trusts
The NHSLA has recently published two new sets of Membership Rules for their Liabilty to third parties and
Property expenses schemes:
o Liabilties to third parties scheme
o Property expenses scheme
For further information or advise please contact Jil Mason on 0121 456 8367.21
NHS Litigation Authority (NHSLA): review
On 16 October 2014, the DH published a Cal for Evidence for their Trienial Review of the NHSLA. This is part of their programme of review of al its arm’s length bodies. The review has two main stages:
o To provide a robust chalenge of the continuing ned for the NHSLA
o Consideration of the NHSLA’s governance, performance and capabilty as wel as exploring oportunites
The review wil cover the CNST, LTPS and PES schemes but not NCAS or the FHSU functions.
Eight questions have ben posed including:
o What more could the NHSLA do to improve patient safety and the quality of patient care?
o How might he NHSLA adapt its aproach to improve the quality of services for its members?
The timeframe is very short in that submisions must be received by 6 November 2014. For further information or advise please contact Jil Mason on 0121 456 8367.
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