spring 2014 hilldickinson.com/health NHS England ‘never events’ Page 5 A practical guide to saying sorry Page 10 Social media - uses and abuses Page 12 >>> continues on page 2 healthcare updateOn Wednesday 19 March 2014, the Supreme Court allowed two appeals, which concerned the test for determining whether arrangements for the care of a person who lacks capacity can amount to a deprivation of liberty The cases Cheshire West concerned P, a 39 yearold man who has cerebral palsy and Down’s Syndrome. P lacks capacity and lives in a staffed small group home. He has evidenced challenging behaviour, such as accessing his incontinence pads and putting them into his mouth. To stop him from reaching them, he was put into an all-in-one ‘baby grow’. P also requires one-to-one support and intervention. At first instance, the Court of Protection ruled that P was being deprived of his liberty. However, the Court of Appeal reversed this judgment. In the Court of Appeal judgment, it was said that what might be a deprivation of liberty for one person may not be a deprivation for another. Consequently, a number of factors were suggested for determining whether there had been a deprivation. These included the relative normality of the arrangements (where the comparator would be a person similarly disabled), the purposes of the arrangements and whether the person objects to the arrangement. P&Q (also referred to as MIG & MEG) concerned two sisters, now in their twenties, one of whom lived in a foster home with the other living in a residential unit. The Court of Protection held that their arrangements were in their best interests and did not constitute a deprivation of liberty. The Court of Appeal agreed. On Wednesday 19 March 2014, the Supreme Court allowed two appeals, which concerned the test for determining whether arrangements for the care of a person who lacks capacity can amount to a deprivation of liberty. A gilded cage is still a cage: P -v- Cheshire West and Chester Council and another; P and Q -v- Surrey County Council 2 Welcome Welcome to the spring edition of Hill Dickinson’s healthcare update newsletter, which we hope you will find of interest. In this issue, we take a look at two recent decisions from the Supreme Court concerning the test for determining whether arrangements for the care of a person who lacks capacity amount to a deprivation of liberty. We also highlight reputation management and tell you all about our new specialist ‘brand protection’ and ‘reputation protection’ teams, alongside a look at the recent changes at the CQC and what’s in store over the next year. Lee-Anne Crossman and Katie Mickleburgh consider how the burgeoning popularity of social media is affecting the workplace and your reputation, while we look at The Community Right to Bid and ask: how is it likely to affect the NHS? We hope you enjoy the read! Rebecca Fitzpatrick [email protected] Partner Gill Lloyd [email protected] Associate The Supreme Court decision The Supreme Court allowed the appeals and ruled that P, MIG and MEG had been deprived of their liberty. In the Cheshire West case, it did so unanimously. In the P&Q case, it did so by a majority of four to three. In her leading judgment, Lady Hale rejected the Court of Appeal’s approach in Cheshire West for determining whether or not someone was being deprived of their liberty. She stated that, since disabled people enjoy the same rights as everyone else, what constitutes a deprivation of liberty for an able bodied person is also a deprivation for a disabled person. As such, it is not relevant that a mentally disabled person’s surroundings are ‘relatively’ normal; that he or she does not object to the placement; or that the arrangements are an appropriate means of achieving the best outcome for the person. These factors may justify a deprivation of liberty - but they do not determine whether there has been a deprivation in the first place… that would be putting the cart before the horse. Instead, Lady Hale stated that the test for identifying a deprivation of liberty is whether the person is under continuous supervision and control and not free to leave. The possible consequences Under the Deprivation of Liberty Safeguards (DOLS) regime, vulnerable people who are being deprived of their liberty, otherwise than under the Mental Health Act 1983, enjoy statutory legal protection. This protection includes a requirement on the relevant managing authority (a hospital or care home) to obtain authorisation for the deprivation from the supervisory body. It also means that many more people may be deprived of their liberty in their own home (e.g. a supported living arrangement) and an application will need to be made to the Court of Protection for authorisation. What happens now? The objective nature of Lady Hale’s test means that even the most benevolent arrangements will amount to a deprivation where there is continuous supervision and control, and where the person is not free to leave. It is irrelevant whether or not the person objects to the arrangements or has tried to leave. The quality of care or treatment is not relevant to this question, for, as Lady Hale put it, ‘a gilded cage is still a cage’. Any providers and commissioners responsible for a person who lacks capacity, whether this is in hospital, a care home or in their own home, need to review the arrangements and assess whether or not the person is under continuous supervision and control and not free to leave that place, i.e. move somewhere else. If they are, then authorisation for deprivation of liberty needs to be obtained urgently from the relevant local authority as supervisory body or the Court of Protection. How local authorities and the court will cope with what will inevitably be a large increase in applications remains to be seen. The House of Lords Committee has recently considered the effectiveness of the Mental Capacity Act and DOLS and has recommended that the Government replace the DOLS regime. However, there is no indication as yet as to how this may be done and the current requirements must be complied with. If you would like to discuss or require advice on deprivation of liberty issues please contact: Sharon Thomas [email protected] Rebecca Fitzpatrick [email protected] We have MCA/DOLS training packages that offer further advice in this area. Please contact Rebecca Fitzpatrick for further information. >>> continued from page 1 healthcare update spring 2014 3 Litigation is unfortunately now a fact of life for most organisations. Few will avoid it completely. Whether it’s defending accusations in an employment tribunal, industrial action, regulatory investigation or personal injury claim, protecting your organisation’s reputation or suing over a breach of contract, every business needs a strategy to deal with the reporting that inevitably surrounds the legal process. Magnus Boyd explains the problem and offers hints and tips on what your organisation might need. On the front foot Organisations are too often reluctant to protect their legal rights - even when they have a strong case. This can be because they are concerned about how they will be characterised by the press and about the potential for unwanted media attention. However, these effects can be mitigated. Litigators, with experience and understanding of the media and how journalists investigate and report stories, are able to support the organisation throughout the litigation. This allows decisions about pursuing litigation in appropriate circumstances to be taken based on fact rather than fear. Keeping mum? Although it is tempting to say as little as possible during the legal process, even silence can cause harm and it can be a simple lack of information that convicts an organisation in the public eye, rather than the legal process itself. Silence may be seen as the ‘least bad’ option if organisations feel uncomfortable about managing the messages surrounding litigation, but in doing so even fundamental questions can go unanswered - such as, ‘why it’s necessary to take action’ and ‘what is at stake’. Managing media attention proactively prior to and during the course of a legal dispute or regulatory investigation is crucial to protecting the organisation’s reputation… regardless of the outcome of the litigation. Managing litigation communications Managing litigation communications includes taking steps such as: (i) counteracting negative publicity and getting an organisation’s viewpoint into the public domain; (ii) safeguarding balance and fairness in the media’s coverage; (iii) helping the press and the public understand complex legal issues; and (iv) coordinating the reporting surrounding an investigation. Communications around the litigation may also need managing and this includes taking steps such as presenting the decision to litigate to the stakeholders involved. It can also include managing media interest during a trial or investigation hearing and, once the litigation is dealt with, picking up the pieces, restoring the organisation’s reputation and building bridges. Result In my experience, collaborative legal and communication experience can be used to support the litigation, protect reputation and manage the public’s perception of the outcome - whatever that might be. Fear of losing the public relations battle often deters businesses from asserting their legal rights and protecting themselves. Organisations feel at the mercy of regulators, disgruntled patients or ex-employees with an axe to grind, even when they behaved properly and should have nothing to fear from litigation. In these circumstances, they shouldn’t let the ‘tale’ wag the dog! Magnus Boyd [email protected] Magnus is hosting a ‘stop press’ practical overview of reputation protection for NHS bodies on 20 May at our Liverpool office. Please email [email protected] for further details. Image is everything and reputation matters Hill Dickinson launches specialist ‘brand protection’ and ‘reputation protection’ teams Branding strategy is big business that adds significant value to an organisation, driving understanding of value in a product, company or even a public body and, perhaps most importantly, defining customer and indeed patient loyalty and the marketing power of that brand. The creation and maintenance of this reputational asset is therefore imperative to protect revenue and rights. This can be achieved by ensuring that the correct intellectual property and commercial assurances have been obtained from conception. The teams bring together leading legal advisers in the sector and are well known for providing brands with a strategic overview of their portfolio - as well as identifying risk or opportunities that can get overlooked when using multiple firms. The teams cover all legal areas that will arise over the life cycle of a brand, including: clearance, registration, exploitation, enforcement and prosecution. The ‘reputation protection’ team comprises expert advisers in defamation and privacy law who provide discreet, commercial and strategic advice. With increasingly invasive reporting and the importance of social media, attacks on reputation are more complex and more damaging. The legal advisors have a clear understanding of the print and broadcast media and are equally experienced in protecting reputations online and in social media, managing crises in the short term and preventing damage to reputations in the longerterm. Brand protection Louise Millington-Roberts louise.millington-roberts @hilldickinson.com Reputation protection Hanna Basha [email protected] Reputation management: don’t let the ‘tale’ wag the dog 4 In this article, Jenna Tsai considers what else will change at the independent regulator of health and adult social care in England during 2014. The CQC is undergoing a period of root and branch reform following its broad reaching consultation: ‘A New Start’1 which ran between June and August 2013. Reflecting upon the aftermath of the Mid Staffordshire NHS Foundation Public Inquiry, events at Winterbourne View and reviews of its own internal processes and systems, the CQC has already made a number of steps to change the way it works. Three prominent chief inspectors have already been appointed in each of its three new pillars (hospitals, adult social care and general practice) and the CQC’s new hospital inspection programme entered its second phase in January 2014. The new mantra The CQC’s new mantra will be to ask five key questions about services. They are: 1. Safe 2. Caring 3. Effective 4. Well-led 5. Responsive to people’s needs They intend to issue guidance about the potential answers to each of these questions, so that it is clear for providers and service users alike what ‘good’ care looks like in practice within each of its three new pillars. Although ‘A New Start’ suggested ‘fundamental’ new standards of care, beneath which no care provided by any organisation should ever fall, the indication is that these ‘example standards’ will be refined before they are included in the new regulations and given legal force later this year. New methods of inspection Pillar one: hospitals By April 2014, it is expected that the CQC will have finalised its new methods of inspection and regulation of NHS acute and mental health trusts, including the use of its new ratings of: • Outstanding • Good • Requires improvement • Inadequate Early indications are that, during each inspection, the CQC will examine certain ‘core’ services (including accident and emergency departments, medical care including older people’s care, surgery, intensive/critical care, maternity, paediatrics, palliative care and outpatients) with much larger inspection teams over a number of days. There will also be a number of stakeholder and listening events coupled with both announced and unannounced inspections. The CQC will then provide a judgment on each of the core services, together with a rating for the whole trust, in respect of the five key questions (listed above). This approach will allow the public to see how a trust is doing overall, as well as drilling down into specific services. By December 2015, the CQC intends to have inspected every NHS acute trust using its new methodology. Thereafter it is anticipated that there will be a risk-based approach to determine the frequency of future inspections so that, for example, an outstanding hospital could go three years between inspections if no concerns are raised about its performance in the interim. Pillars two and three: adult social care and general practice Between January 2014 and October 2014, similar changes will be made to inspections in these areas, together with new regulations. The CQC has promised that the approach to regulation will be tailored to the nuances of each sector whilst still answering the same five key questions. The chief inspectors of adult social care and general practice will be working with providers, the public and other stakeholders in order to achieve this aim. Holding key stakeholders to account The CQC has committed to ensuring that named directors or leaders of organisations will be held to account for poor quality care - not just those involved in delivering or managing care ‘on the ground’. More rigorous registration process A more robust assessment of any provider seeking registration with the CQC is expected with greater scrutiny of those assuming management positions within any proposed new provider of care. It is expected that a statutory duty of candour will become a new CQC registration requirement later this year. This will allow the CQC to take enforcement action, including prosecution, where a registered provider has failed to notify a service user or other relevant person that it believes the treatment or care they have provided has caused death or serious injury and where there is an absence of an explanation and apology. A new start The CQC have emphasised their determination to build a ‘… high performing organisation that is well-run and well-led’. This is a tall order - but the CQC is clearly willing to take on the challenge and is not afraid to embark on significant changes to bring about this vision. Jenna Tsai [email protected] We are hosting a seminar on CQC registered providers later this year. Please email [email protected] to be added to the invite list. 1See http://www.cqc.org.uk/public/sharing-your-experience/consultations/consultation-changes-way-we-inspect-regulate-and-monito All change at the CQC Find out what’s in store over the next year 5 healthcare update spring 2014 NHS England publish more data than ever on ‘never events’ to help learn lessons and improve patient safety NHS England has, for the first time, published provisional quarterly data on the number of ‘never events’ occurring at each hospital trust in England. The data is available on the NHS England website and will be updated every month from April 2014. What are ‘never events’? ‘Never events’ are defined as ‘serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by healthcare providers’. A list of the 25 types of incidents that are considered to be ‘never events’ can be found at: www. england.nhs.uk/ourwork/patientsafety/ never-events Data The data is published in the following formats: • a table of the overall number of ‘never events’ reported per month; • a table of the number of each type of never event reported (together with a more detailed breakdown of the types of incident that fall under each never event category – so, for example, detailing the type of object retained under the ‘retained foreign object post-operation’ category); and • a breakdown of the number and types of never event incident reported by each organisation. The provisional data shows: • 102 NHS trusts had at least one ‘never event’ between April and September last year; • there were 37 instances of wrongsite surgery in the same period and 70 incidents of foreign objects being mistakenly left inside patients; and • the incidence rate is less than 0.005% or one ‘never event’ in every 20,000 procedures. The data shows that the number of ‘never events’ recorded is broadly similar to last year. As the NHS continues to strive for openness and honesty, NHS England expects that the reporting of these incidents will continue to increase. Professor Don Berwick, the US expert who earlier this year led a landmark review into patient safety in England, said: ‘Blame and punishment have no productive role in the scientifically proper pursuit of safety. But openness and transparency do. They are the front door to learning and improvement. I applaud NHS England for this important step toward better knowledge and better support to both staff and patients.’ NHS England plans to continue to develop new, easier-to-use reporting and alert systems. A ‘Surgical Safety Task Force’ is also undertaking an indepth review of surgical ‘never events’ and is due to report in early 2014. Key proposals will focus on the adoption of a more systematic approach to surgical safety and will include standardising operating theatre procedures - as well as education and training - and ensuring that professional and organisational incentives support safe procedures and working cultures. Dr Mike Durkin, national director of patient safety at NHS England, says: ‘By making this detailed data fully open to public scrutiny, we are fulfilling a key recommendation of the Francis Review, but more importantly we are making a big step towards further reducing these events. As Professor Don Berwick made clear in his report on patient safety earlier this year, these incidents can only be truly minimised if we talk about them in an open and honest way, and all work together to make sure every effort is being made to stop whatever went wrong from happening again.’ From a litigation perspective, the occurrence of a ‘never event’ is very likely to represent a breach of the duty of care. Providers will therefore need to ensure that risk management procedures are suitably robust to prevent these incidents from occurring, wherever possible. Learning lessons from the published data will also help with this. If you require any further information, please contact: Charlotte McHugh [email protected] 6 Coronial reform: have you memorised a) At a glance: the differences between Part 1 of the Coroners and Justice Act 2009 and the Coroners Act 1988 Provision Main difference Duty to investigate certain deaths New concept of ‘investigation’. Investigation of death ‘in prison’ has been altered to death ‘in custody or state detention’. State detention has a broader definition and includes detention in immigration detention centres and secure mental health hospitals. Requirement of a jury The mandatory requirement for a coroner to sit with a jury has been removed where a death in state detention was suspected to be from natural causes. Assembling a jury Broadly the same as existing provisions. Determination and findings by the jury The jury spokesman will announce how many of the jurors agreed with the determination or finding. Determination and findings to be made New concept of ‘determination’. Short ‘finding’ to allow registration of death. No ‘verdicts’ or ‘inquisitions’ – coroner will now complete a ‘conclusion of the inquest’. Where Article 2 is engaged the determination must cover circumstances of the death. Post-mortem examinations The post-mortem examination can now be used to enable the senior coroner to determine whether the duty to investigate a death arises. Investigations lasting more than one year Investigations lasting more than one year must be reported to the Chief Coroner. Appointment of a coroner Coroners are required to be legally qualified. Provision of staff and accommodation Inquests may be heard anywhere in England and Wales, providing greater flexibility if suitable accommodation is not available in the coroner’s area. Powers of coroner New statutory duty to require evidence to be produced or given. Rule 43 has been put on a statutory footing and strengthened (requiring coroners to report actions to prevent future deaths to the relevant person). Offences New offences relating to witnesses, including the failure to comply with a notice to produce evidence, altering evidence, preventing evidence from being given, destroying or concealing documents and giving false evidence. The common law powers to summons witnesses, require evidence to be given and punishments for contempt of court will remain ‘Interested person’ Interested persons definition has been expanded to capture the role of bodies such as the IPCC. 7 healthcare update spring 2014 memorised them yet? b) At a glance: the differences between the Coroners Rules 1984, Investigation Regulations 2013 and Inquest Rules 2013 Provision Main difference Inquest to be held in public There is a new requirement for the opening of an inquest and any pre-inquest review hearings to be held in public. There are exceptions to this requirement including where the coroner decides it is not in the interests of justice or national security to hold the hearing in public. Coroner to notify persons of inquest arrangements The coroner must now notify, all relevant interested persons of the date, time and place of the inquest within a week of setting the hearing date. Notice to a person whose conduct is likely to be called into question There is no longer a specific requirement to notify as the person will be a relevant interested person and will therefore be notified of the inquest arrangements as above. Adjournment where person whose conduct is called into question is not present Not required as the person will be a relevant interested person and will therefore be notified of the inquest arrangements as above. Coroner to notify persons as to the resumption of, and alteration of arrangements for, adjourned inquest The coroner is now required to notify interested persons ‘as soon as reasonably practicable’ of the decision to adjourn and the date the inquest is to be resumed. Previously the coroner had to give ‘reasonable notice’ of the date. There is a new requirement to adjourn and notify the Director of Public Prosecutions if during the course of the inquest it appears that the death was due to a homicide offence. Documentary evidence (previously Rule 37) This provision has been expanded to allow written evidence to be submitted not only when the maker cannot attend but also when he or she will not attend (even though there may not be a justified reason for non-attendance). Notes of evidence Coroners no longer need to keep notes of evidence. Instead, coroners will need to keep a recording of any inquest hearing. Summing-up and direction to the jury No substantive change, although there is a preferred reordering, with directions as to the law first and a summary of the evidence second. Prevention of future deaths New regulations are to be read in conjunction with paragraph 7 (1) of schedule 5 of the Coroners and Justice Act 2009 which largely replicates the old Rule 43. All reports must now be sent to the Chief Coroner rather than the Lord Chancellor. The Chief Coroner may then publish the report and responses or a summary of them. Joanna Trewin [email protected] Kristina Taylor [email protected] 8 What does this decision mean for your organisation? Over the last three years, the Information Commissioner has issued £1.3 million of fines to NHS bodies in respect of serious breaches of the Data Protection Act 1998 (the Act). Some particularly memorable examples include the sensitive personal data of tens of thousands of patients and staff being found on hard drives sold on an online auction website, patient records being abandoned by an NHS body moving out of its offices and sensitive personal data of dozens of vulnerable adults being inadvertently faxed to an unknown member of the public. The latter of the three examples above occurred at Central London Community Healthcare NHS Trust in 2011. The Trust reported the breach to the Information Commissioner - who responded by issuing a monetary penalty notice of £90,000. However, the Trust decided to appeal to the First-tier Tribunal (which upheld the fine) and then appealed again to the Upper Tribunal. Unlike the Commissioner or the First-tier Tribunal, the Upper Tribunal is a superior court of record, capable of setting legal precedents and had not previously considered the Commissioner’s use of his powers to impose monetary penalties. Therefore, when the Trust’s appeal reached an Upper Tribunal hearing before Judge Wikeley in October last year, its analysis of the Commissioner’s use of fines was eagerly awaited. Outcome of the appeal The Trust raised four main questions regarding the Commissioner’s decision to issue a fine: 1. Does the Commissioner have the power to impose a fine where the Trust had ‘self-reported’ its breach and cooperated with his investigation? Section 55A(3A) of the Act provides that fines cannot be imposed following an ‘assessment’ by the Commissioner. The Trust claimed that its report and cooperation brought it within this exception. However, Judge Wikeley found that this statutory ‘carve out’ only applied in relation to compulsory assessments and consensual good practice audits, neither of which applied in this case. Indeed, if the Trust’s argument was accepted, even deliberate privacy breaches could go unpunished so long as the responsible data controller confessed to the breach and cooperated with the Commissioner. 2. Had the Commissioner failed to properly exercise his discretion by imposing a monetary penalty without more explicitly considering other options? Judge Wikeley refused to endorse a narrow, forensic analysis of the evidence of the Commissioner’s decision-making process and emphasised the need to look at the ‘bigger picture’. A serious privacy breach had occurred and it was open to the Commissioner, and the First-tier Tribunal, in reviewing his decision, to deem a monetary penalty appropriate. 3. Did the Commissioner’s offer of an early payment discount amount to an unwarranted obstruction of the Trust’s right to appeal? The Commissioner had offered the Trust a 20% discount for paying the fine within 28 days. However, the Trust was only willing to accept this offer if it was on the understanding that it could still appeal the fine and claim a refund if it succeeded, which was rejected by the Commissioner. On this point, Judge Wikeley considered that the Trust was ‘trying to have its cake (benefit from a discount) and eat it (exercise a right to appeal)’.He compared the policy to the use of similar discounts in relation to motoring offences and plea bargains in the criminal courts. He also found there to be a significant public interest in disincentivising data controllers from mounting ill-founded appeals. The Commissioner’s discount scheme was found to be lawful, straightforward and transparent. 4. Had the Commissioner given insufficient credit to the Trust for various mitigating features? The Trust argued that the impact of the fine on public services and its report to and cooperation with the Commissioner were mitigating factors that were not given enough weight in setting the fine at £90,000. However, the Commissioner pointed out that the fine was less than one-fifth of the maximum allowed (£500,000) and had been calibrated to reflect the nature of the contravention and its effect on data subjects. Judge Wikeley accepted the First-tier Tribunal’s finding that the amount of the fine was reasonable. The Trust therefore failed on all four counts to challenge the Commissioner’s use of his powers. Key guidance for trusts While the Upper Tribunal’s decision does not change the status quo, it does nonetheless provide useful guidance to NHS bodies facing the prospect of a monetary penalty. Where a serious privacy breach is accepted and the level of the fine appears to be reasonable, the prospect of paying a lower fine and avoiding legal costs means that NHS bodies are (to adopt Judge Wikeley’s terminology) incentivised to have their cake (pay) rather than eat it (appeal). However, with the average monetary penalty at over £100,000 and entailing significant reputational damage, accepting a reduced fine will not always be the best option. This is particularly the case where there are reasonable grounds to argue that, although a breach has occurred, it was not likely to cause substantial damage or distress - data controllers have succeeded in challenging substantial fines on this basis in the past. An ounce of prevention is worth a pound of cure Ultimately, when it comes to data protection, it perhaps goes without saying that the most obvious lesson to be learned from cases such as these is to take appropriate technical and organisational measures so as to minimise the risk of serious privacy breaches occurring in the first place. Our specialist team can help you with this. For further information, please contact: Richard Parker [email protected] Upper Tribunal approves Information Commissioner’s practice of fining the NHS for data protection breaches Pay up or appeal healthcare update spring 2014 9 The new information age continues to pose challenges for all organisations, big and small, private or public. As more and more data is shared, organisations are subject to strict regulations on how they must hold and use that information and there are severe penalties for those who fall foul of the rules. The current law surrounding who holds what information, how it is used, stored, destroyed and passed on to others is the subject of detailed legislation and guidance set out in the Data Protection Act 1998. However, a new European Data Protection regulation looks set to make the law around data protection for organisations in this country and the rest of Europe even tougher. Do you know what is coming? Organisations will be required to explain their use of personal data in detail to customers and patients and to seek prior consent to that use. As with the new NHS ‘Care.Data’ project, it will only be possible to collect the minimum amount of data required for a specific purpose and organisations will have to be transparent about what data they are collecting and why. They will also have to train and appoint or hire, data protection officers to ensure that the regulation is properly applied at every level. Data security breaches will have to be notified to the Information Commissioner and potentially to each individual whose data is lost or stolen, with all the attendant adverse publicity that such notification is bound to attract. While the exact date on which the law will change is yet to be confirmed, all organisations need to be gearing up now, so that they can demonstrate that they are maintaining information properly, implementing appropriate security measures and communicating appropriately with those whose information they are gathering. Organisations that fail to comply with the new regulation could be subject to a fine of up to 2% of their global annual turnover (not profit) or €100 million – whichever is greater. While such draconian penalties will be for the most serious breaches, the Commission has made it clear that robust regulation is the order of the day and relatively minor breaches will also attract meaningful sanctions. What should you be doing now? 1. The first step is to conduct a data protection audit for every stage of the life cycle of information within the organisation: from how and why data is obtained, how it is stored and protected and how and when it is destroyed. 2. Policies should be drafted and training implemented so that everyone within the organisation is sufficiently guided and aware and able to perform their tasks appropriately. Ensure that you have access to data protection expertise both internally and externally. In the event of a data security loss or other breach you may well need to obtain legal help at short notice. 3. Ensure that everyone in the organisation, from top level executives and directors down, is suitably aware of the importance of data security. Make sure that insurance is in place to cover the cost of dealing with potential breaches. Privacy impact assessments can help address the risks, help educate staff about their responsibilities and provide a valuable metric against which to monitor and assess staff compliance at a practical level. An impact assessment not only reduces the risk of a security breach occurring, but also can provide valuable mitigation in the event of a breach that incurs a penalty. When? The regulation is likely to come into force in 2016. Unfortunately, implementing its requirements will demand additional budget and resources at a time when there is little sign of growth to help pay for them. In the circumstances, it would be more cost effective for many organisations to begin the implementation process now, at a level and pace that can be absorbed. In a survey commissioned by the Information Commissioner, 61% of private organisations believed that data protection compliance had added value to their activities and 83% believed that it had improved customers’ trust – the currency against which all other assets are valued. Data Protection Regulation is an opportunity to be seized now. Magnus Boyd [email protected] When the going gets tough! Data protection regulation – set to get tougher 10 How should an apology be given? It is most important to patients that they or their relatives receive a clear explanation and a prompt verbal apology where mistakes have been made. A written apology should also be given, which clearly states that the healthcare organisation is sorry for the suffering and distress resulting from the incident. Where possible this should include details of the learning which the organisation will implement to improve services and prevent errors from recurring. This information should also be fed back to the clinicians and staff to ensure that improvements are made and followed up. Who should provide the explanation or apology? Staff may be unclear about who should talk to patients when things go wrong and what they should say. They may be concerned that they will cause upset, exacerbate the situation or create a legal liability for their employer. The NHS LA suggests that your local policies should include provision for identifying a nominated person to give verbal and written apologies in each case. The decision about who is the appropriate person should consider seniority, relationship to the patient, experience and expertise. Front line staff must feel empowered to communicate effectively with patients and their families where something has gone wrong. It is often appropriate for the clinician involved to provide an apology and explanation to the patient, their family and carers. You should ensure that your staff are trained on the duty of candour, your ‘Being Open’ policy and are confident in raising concerns and giving explanations. Do we act differently if the patient makes a formal complaint or claim? A patient is entitled to bring a complaint and all organisations should have complaints policies and procedures in place. Patients should be informed of their ability to bring a complaint and given appropriate support to do so. The decision to take legal action may be determined not only by the original injury, but also by insensitive handling and poor communication after the event. It is therefore important to ensure that the apology is given in a truthful and open manner at the earliest opportunity. Where investigations are on-going, it is helpful to explain that new information may emerge and that patients, their families and carers will be kept upto- date with the progress of an investigation. It will often be the role of the chief executive to sign off all responses to complaints. It is important that patients and families feel that their concerns have been taken seriously and that apologies and explanations are provided from the highest level. It is also important that your chief executive is aware of complaints made about their organisation, improvements made and can spot areas of change needed. How should we use information gathered from complaints/ identified incidents? Providers have obligations to monitor incidents and identify any patterns of poor care. Boards should scrutinise complaints received and use that information for service improvement. Robust board leadership, oversight and insistence on visibility of patient and staff feedback will support the NHS to create a safety and learning culture. Ensure that areas for improvement are identified, that improvements are made within the organisation and that you share learning wherever possible. This will require a coherent approach to collate the information gathered from incidents, complaints and claims as well as the lessons learnt from them. Is an apology the same as an admission? The NHS LA is clear that saying sorry ‘… is not an admission of legal liability; it is the right thing to do’. The guidance confirms that they will not withhold cover for a claim because an apology or explanation has been given. An effective and meaningful apology can be given without it amounting to an admission of legal liability. See the ‘Top Tips’ on page 11 for further guidance. Apologies and explanations A practical guide to saying sorry The NHS LA has long advocated that it is appropriate to apologise when things go wrong, providing a full explanation in response. The latest guidance - ‘Saying Sorry’ - which can be found on their website (nhsla.com - under ‘claims publications’) includes useful advice for healthcare providers on when and how apologies should be made. ‘Saying sorry when things go wrong is vital for the patient, their family and carers, as well as to support learning and improve safety. Of those that have suffered harm as a result of their healthcare, 50% wanted an apology and explanation. Patients, their families and carers should receive a meaningful apology – one that is a sincere expression of sorrow or regret for the harm that has occurred.’ Should NHS LA approval be sought for apologies and explanations where something has gone wrong? If you are due to provide a patient or appropriate representative with information which would render it impossible to defend any subsequent legal claim, then the NHS LA will be happy to discuss that with you. If in doubt, we suggest that you contact your designated team leader or one of the NHS LA team at Hill Dickinson who will be happy to discuss the case with you. Staff support The guidance encourages an environment in which all staff are encouraged to report patient safety incidents. This applies whether they are directly employed or where they are independent contractors of NHS care. A key corollary of this is to ensure that staff feel supported throughout any investigation process, not forgetting that they too can be traumatised by their involvement. Managers should be mindful of this when staff are asked to participate in investigations. Consideration should also be given to whether those involved in the treatment should attend meetings with patients and their families. On occasions, the patient may prefer that a particular professional is not present for a discussion. In that case, a personal written apology may be provided if appropriate. Charlotte McHugh [email protected] Jonathan Heap [email protected] 11 healthcare update spring 2014 Top tips – letters of apology • Simple things can make a big difference: check that you are writing to the correct person, at the right address and that spelling is checked carefully. • Be aware of the timing of responses, particularly around a birthday or anniversary of deceased patients. • The language should be pitched appropriately for the recipient. Do they require additional support, such as an independent patient advocate or a translator? • If they have asked specific questions, make sure they are each answered, or a timescale committed to for doing so. Avoid medical jargon or acronyms. • The more you can include about lessons learned the better. Your response will be more meaningful if you can highlight changes in practice or other tangible improvements. What steps have been taken to stop it happening to another patient? • The clinicians will be best placed to say what has changed ‘on the ground’ as a consequence of your investigation. Their input is especially valuable where treatment is on-going. • Avoid vague or overly formal language which doesn’t actually admit anything, such as ‘I am sorry you think…’. If there has been a mistake, you should accept it and apologise in clear terms. • A joined up approach is essential. What has already been said? Discussions around the time of an adverse event should be recorded in the patient records. Any subsequent meetings should be ‘minuted’ and followed up by letter. • The patient should be given a single point of contact for any questions or requests they might have. 12 Internet and social media usage has increased substantially over the last decade, revolutionising both the workplace and how individuals communicate. Social media such as Twitter and Facebook enable individuals and organisations to raise their profiles instantaneously and inexpensively and also encourage staff engagement. NHS Employers recently issued a briefing entitled ‘Increasing staff engagement with social media’ - staff engagement, it says, has never been more important as the NHS implements the biggest reforms since its inception and looks to change the ‘poor cultures’ highlighted by Robert Francis QC in his report last year. In the press release accompanying his report, he stated: ‘All staff should be empowered to be open and transparent when it comes to the well- being of the people in their care. The NHS can provide great care and the system and the people in it should make sure that happens everywhere. The recommendations I am making… represent not the end but the beginning of a journey towards a healthier culture in the NHS where patients are the first and foremost consideration of the system and all those who work in it.’ Using social media is therefore actively promoted in the NHS, as it offers staff an opportunity to observe who is doing a good job and what is being said about them and their services. It also provides access to a wide range of perspectives and information. What about the risks? Despite the positive effects, encouraging the use of social media is not without risk. Commentators argue that use of social media is democracy in motion and an essential tool to freedom of expression. However, recent cases prove that it can get individuals and even whole organisations into trouble. The Royal College of General Practitioners, General Medical Council and Nursing and Midwifery Council have each published social media guidance for their members. The guidance makes it clear that medical professionals are expected to behave in as appropriate a manner ‘online’, as they would do ‘offline’. Although social media creates a new platform for employees, it is important to remember that established principles apply. For example, an employer can be liable for its employees’ discriminatory or defamatory comments made online or for the consequences of an employee disclosing confidential information (such as patient details) over the internet. Cyber-bullying is also a concern and includes bullying and/or harassing a colleague on-line, whether the comments are posted inside or outside of work. Organisations should also be mindful of potential whistleblowing issues and the risk of online medical advice, if clinicians accept ‘friend’ requests from patients on Facebook for example. These risks should be considered in conjunction with the guidance available, and organisations should ensure they have steps in place to adequately address these issues. Defending your reputation The reputation of an organisation, or even the healthcare profession as a whole, can easily be damaged via social media. Employers must be able to take action where necessary against either employees or an external threat to defend their position. Robust policies and disciplinary processes The British Medical Association highlights an employment example in its publication Using social media: practical and ethical guidance for doctors and medical students: ‘In 2009, a group of doctors and nurses were suspended for taking part in ‘The Lying Down Game’, an internet craze where participants take pictures of themselves lying face down in unusual places and upload them onto Facebook. The group were reported to hospital management after pictures of them lying on resuscitation trolleys, ward floors and the ambulance helipad were spotted on the site. The pictures broke hospital regulations and breached NHS and Trust Codes of Conduct. The medical director for the Trust stated that the group faced disciplinary action because they expected high standards of behaviour from their staff and such breaches were taken very seriously.’ Managing situations like these requires a robust social media policy – seeking to educate employees about what the organisation regards as acceptable parameters of use both in and outside of work. Such policies set the basis upon which employers will then deal with employees who do behave inappropriately on-line. Like any policy, this must be communicated to staff - as it is no good having a policy that no one knows about - and it should be applied consistently. Applying the policy should go hand-inhand with a fair investigation into any suspected misconduct. Other policies (such as disciplinary policies, dignity at work policies and so on) should be amended to include reference to the use of social media. Social media - uses and abuses Lee-Anne Crossman and Katie Mickleburgh consider how the burgeoning popularity of social media is affecting the workplace and your reputation! Legal action By your employees: There is always the risk that disgruntled employees may claim unfair dismissal or unlawful discrimination following a disciplinary process in connection with the use of social media or possible detriment as a result of whistleblowing for example. We can provide pragmatic advice to ensure that such situations are managed properly and sensitively. By your organisation: Whatever users might think, comments made on social media are subject to both the criminal and civil law. If sufficiently serious, an organisation may consider responding to comments with legal action or may have to defend the comments made on its behalf by an employee. However, careful consideration needs to be given to any impact this might have for the organisation’s reputation. If sufficiently serious, a police complaint may be appropriate. Several successful high profile prosecutions have been brought for offences under ‘Malicious Communications’ legislation or contempt of court. Referring comments to the police can be advantageous to either highlight that such comments will not be tolerated, that an allegation is untrue, or to firmly distance the organisation from its employees’ comments. Civil action in privacy or harassment may also be taken by individuals and an employer may wish to support an employee in doing so. In privacy cases, the cause of action is misuse of private information based on values enshrined in Human Rights legislation (the Article 8 right to a private life). The Protection from Harassment Act 1997 provides protection to victims of harassment, which includes stalking, racial abuse and bullying. Harassing a person means alarming them or causing distress and there must be ‘a course of conduct’ involving conduct on at least two occasions (which can be easy to identify online). Another option to tackle certain social media comments is a defamation action. Neither the NHS nor government bodies generally, can make claims for defamation, only individuals within those organisations can. However, in certain circumstances trusts will be able to use the law to protect their reputations and advice should always be sought. NHS bodies may have to take action to defend statements made by an employee for which they are vicariously liable. In this context, it is important to differentiate and appreciate the difference between a defamatory comment, which is not allowed, and whistle-blowing, to which different considerations apply (the two may be confused and we can advise you on this). By third parties: If a defamation action is pursued against an organisation and/ or one of its employees, the organisation may defend comments made by the employee on their behalf, or take action to protect its own or its employee’s reputation against another’s comments. The law in this area has recently changed, as the Defamation Act 2013 (the Act) and Defamation (Operators of Websites) Regulations 2013 came into force on 1 January 2014. To prove defamation an individual must show that a statement’s publication has caused or is likely to cause ‘serious harm’ to reputation. Businesses must show they have suffered or are likely to suffer ‘serious financial loss’. The Regulations detail a procedure for website operators to follow to escape liability for defamatory comments posted on their site. If that procedure is not followed, the operator may be pursued even if they are not the author of the comments. Section 6 of the Act is important for healthcare professionals and organisations who are involved in either editing or writing in scientific or academic journals. It deals with peerreviewed statements and offers some protection in this area by introducing a qualified privilege defence in certain circumstances. If the requirements of section 6 are satisfied, privilege will also apply to the publication of a fair and accurate copy, extract from, or summary of the statement or assessment, unless it is shown to have been made with malice. Striking a balance Whilst actively embracing social media can reap great rewards, organisations should not forget the inherent danger of a medium that essentially publishes people’s innermost thoughts to the world instantly. People will often say things via social media that they would not dream of saying face to face, something which is often complicated by the fact that many are lulled into a false sense of security - believing that posts cannot be disseminated beyond their intended audience, or that the criminal and civil law does not apply to them. There is a lot to be gained by organisations and individuals alike, from having a good social media strategy and actively involving their employees in it. Employers should aim for a balance between protecting legitimate business interests and not unnecessarily interfering in employees’ private lives as an unduly restrictive policy could lead to staff disengagement - a common-sense approach should prevail. Employers should also be prepared to take legal action - where needed - to protect the reputation of their organisation and/or the individuals who work for them; or to defend the comments made by their employees and our specialist teams are on hand to help you with this. Lee-Anne Crossman [email protected] Katie Mickleburgh [email protected] The event on 1 October at our Manchester office will discuss this area. Please email [email protected] hilldickinson.com to be added to the invitation list. 13 healthcare update spring 2014 14 Judgment in the ‘forced C-section case’ sets right public speculation. Joanna Crichton examines the judgment in light of the recent public speculation. You may recall the recent media storm surrounding the alleged ‘forced C-section’ case, with headlines such as ‘Italian woman “suffering like an animal”’, and “Social services condemned for forcibly removing unborn child from woman”. They relate to the highly controversial case of AA, which came before the Court of Protection on 23 August 2012, and involved an urgent application for a best interest’s declaration in relation to a proposed caesarean section1. Although the judgment has not been appealed, in December 2013 Mr Justice Mostyn, sitting as judge in the Court of Protection, took the unusual step of authorising its release to ‘inform and clarify recent public comments’. Background AA, an Italian national, who suffered from profound mental health problems described as ‘psychotic in nature’, arrived in the UK in June 2012 for work related reasons. However, she was admitted to hospital due to her mental health condition and later detained under section 3 of the Mental Health Act 1983. At the time of the application, AA (who was already the mother of two children who had been taken into care) was 39 weeks pregnant with her third child and was under the care of Mid-Essex Hospital Services NHS Trust (the Trust). AA’s two older children had been delivered by caesarean section and it was considered to be in her best interests that her third delivery also be by way of C-section. AA opposed this and, as she had been assessed as lacking the capacity to make decisions with regards to the medical treatment associated with the delivery of her baby, the Trust made an urgent application to the Court of Protection for a declaration as to her best interests. The application was supported by evidence from a consultant obstetrician and AA’s own treating psychiatrist. In particular, the Court heard that the risk of a ruptured womb if AA attempted a vaginal delivery was significant - as much as 1%. The application was listed for a hearing on 23 August 2012 and AA was represented by the official solicitor, who instructed Queen’s Counsel for the hearing. The official solicitor did not seek an adjournment or oppose the application, agreeing that the proposed delivery by C-section was in AA’s best interests. There were also issues raised in relation to AA’s post-natal treatment and the best interests of the child following the birth. Decision The Court of Protection approved the Trust’s application, agreeing that the C-section was in AA’s best interests. The court granted a declaration that AA lacked capacity in relation to the treatment decision and that it was in her best interests for her baby to be delivered by C-section the following day, with the use of reasonable restraint if necessary and appropriate. Mr Justice Mostyn felt that the risk of a ruptured womb was ‘clear’ and that it was in the best interests of AA’s mental health for her child to be born alive and healthy. Comment This judgment has confirmed what many suspected – that the media ‘angle’ was a far cry from the reality of the situation faced by the Trust, who made a reasoned decision on the basis of the mother’s medical and wider best interests, correctly applying the existing legislative regime and applicable case law. There is no doubt that such decisions, often taken in emergency situations, are difficult and involve a complex balancing exercise - but the patient’s best interests should, as in this case, be uppermost in the minds of those involved. Our expertise Our specialist team have extensive experience in cases where there is a dispute as to ‘best interests’. We recently facilitated an out of hours application to the Court of Protection, heard at 01:30 in the morning, in relation to a C-section for a needlephobic lady. Meanwhile, in another case, we advised in relation to an urgent best interests decision concerning a woman with learning difficulties who urgently required a C-section. What our clients say Carolyn Kural, legal services manager at Mid Cheshire Hospitals NHS Foundation Trust, says: ‘We recently needed urgent legal advice regarding a patient with severe learning disabilities who had transferred into our area. She was 32 weeks pregnant and required an emergency caesarean. We were grateful to Hill Dickinson for the expert legal advice they were able to provide to us at very short notice and this enabled us to achieve a happy outcome for both mother and baby.’ We are a Chambers UK 2014 top rated firm in this field, with our mental health and social care team described as: ‘A well-known, efficient Court of Protection team where even the secretaries and administrative staff are effective.’ If you have any queries regarding this case or a similar issue arises within your organisation and you need the right advice quickly, we can help. For further information, please contact: Joanna Crichton [email protected] 1Re AA  EWHC 4378 (COP) ‘Best Interests’ treatment - how we can help your trust with difficult, time sensitive decisions What is it? In brief, the Community Right to Bid gives certain organisations with a local connection - such as parish councils, neighbourhood forums and not-forprofit organisations - the right to apply to their local authority to have an asset listed as an ‘asset of community value’. Without getting into the technical legal definitions, the asset could be anything from a library, to a football ground, to a public house - and it may be in private or public ownership. To be designated as ‘an asset of community value’, the local authority must be satisfied that the principal use of the asset furthers the community’s social well-being or social interests and is likely to continue to do so in the future. Social interests may include cultural, recreational or sporting interests. Certain assets are exempt from the legislation - including homes, hotels and Church of England land holdings. If an asset meets the criteria and the correct application procedure is followed, then the local authority must include it on their maintained List of Assets of Community Value. If the owner of a listed asset decides to dispose of it, the local authority must be informed. If the organisation who nominated the asset want to buy it (they have six weeks to decide), they can call for the local authority to trigger a moratorium lasting up to six months during which the owner cannot complete the sale. During this period, the community organisation has time to develop a proposal and raise funds in order to bid for the asset. How does this affect the NHS? The potential effect on the NHS is clear, as communities may be keen to list hospitals or surgeries as assets, particularly in rural communities which may be vulnerable to services being withdrawn in the search for efficiency savings and in the case of historically interesting buildings, such as Victorianera hospitals. That said, the legislation does not provide a right to buy… but rather a right to bid. The landowner is still free to market the property and invite best offers, one of which may be from the community organisation. There is no obligation to engage with the community organisation regarding their plans for the asset, although a willingness to do so may well be present amongst local NHS leaders. In practical terms, there may be a slight delay to completing a sale, but the six month moratorium could include the 40 working day period for which the property should be listed on the Register of Surplus Public Sector Land, on the e-PIMS website, prior to open market disposal. NHS organisations are still able to sell their assets at open market value and if the purchaser is an organisation who will put the building to community use, then it is difficult to see how the legislation could be detrimental to the NHS and its interests. Rebecca Wakefield [email protected] 15 healthcare update spring 2014 The Community Right to Bid: how is it likely to affect the NHS? The Community Right to Bid was introduced in the Localism Act 2011. The policy behind the legislation was to give power and autonomy to communities to increase their involvement in local issues and assets. 16 The ‘Teckal’ exemption The ‘in-house’ Teckal exemption means that, in certain circumstances (including where a public body obtains services from ‘in-house’ sources), a contract let by a public body will not be deemed to be a contract for the purposes of the public procurement regime - such that the open advertising and tendering rules will not apply. It is becoming much more widely understood and applied and therefore a viable option for NHS bodies to consider, albeit NHS Trusts (as opposed to FTs) face greater hurdles to be able to actively participate as a shareholder in a Teckal company. However, in a number of recent cases, a less rigid approach has been utilised to promote public-public cooperation. Extending Teckal? The idea of public cooperation, as between a number of public bodies, was considered in some detail in the Hamburg Waste Case. In this case, a number of German public authorities entered into arrangements with each other regarding waste collection and disposal without awarding contracts pursuant to any form of competitive process or forming a Teckal company as the vehicle through which the venture would be operated. However, on its particular facts the court held that a contract can be made between two public bodies where: (i) the contract may be for pecuniary interest, but only insofar as it was to cover direct costs incurred (i.e. no profit); (ii) the contract is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest (involving the performance of a public task which both public bodies are required to perform); (iii) the contract was solely concluded by public bodies without the participation of any private undertaking; and (iv) it does not distort competition between private operators by placing a private undertaking at an advantage. It was held that, if these criteria were met, the contract would not be subject to procurement rules. At first, this was seen as a green light to public bodies to enter into less rigid shared services arrangements and an extension of the Teckal principles. However, in practice, applying the judgment to specific circumstances has proven difficult. These issues were raised again in the Lecce Case - which involved a contract awarded by an Italian health body, to an Italian university, to work together to run a study into the vulnerability of hospital buildings to seismic activity. No competitive process was undertaken by the health body. A local engineering organisation complained that this was a contract which ought to have been let competitively. The court felt that this case could be distinguished from the Hamburg Waste Case for the following reasons: (i) notwithstanding the fact that there was no profit element involved, it constituted a contract for pecuniary interest nonetheless and was therefore subject to procurement; and (ii) it determined that the services being provided by the university would normally be undertaken by engineers and architects in the private sector and as they did not, in reality, constitute academic research they were not therefore one of the university’s public functions. The court determined that the contract ought to have gone to the market to identify a provider of the services it required. Most recently, these issues were considered again in the Kreis Duren Case. Here, a number of local authorities in Germany entered into a complex web of contracts with each other for the provision of cleaning services for their respective buildings. One was, in fact, a wholly owned subsidiary of one of the other authorities (i.e. a Teckal-compliant company). However, in doing so, they were required to terminate a pre-existing arrangement with a private sector provider, Piepenbrock Dienstleistungen GmbH & Co. Piepenbrock subsequently complained that the contract which was entered into should have been awarded pursuant to a competitively tendered process. The court found, again on the very specific facts of this case, that: (i) notwithstanding the fact that the consideration was structured very deliberately only to cover costs, the contract still constituted a contract for a pecuniary interest which was subject to procurement; (ii) the argument put that this was a case of genuine public-public cooperation (and therefore fitting squarely into the criteria set out Shared services – not to be entered into lightly Traditional NHS shared service models (where a number of NHS Trusts and Foundation Trusts work together to coordinate their non-core, non-clinical support services such as IT and HR for convenience and cost purposes) are coming under closer scrutiny. This is due to a series of recent EU court judgments and the codification of concepts from case-law (e.g. Teckal) into the soon to be introduced EU Public Procurement Directives (which will in turn update the Public Contracts Regulations 2006). Why? The requirement to use a common seal by public bodies created by statute or Royal Charter originates in common law. For those who are not familiar with the term, ‘common law’ is law made by judges deciding cases. There is no time limit on the relevance of common law, so, for example, a decision made by a judge in the 1400s can still be applicable today. Common law is subject to amendment by decisions of higher courts or by statutes passing through Parliament. It used to be the case that everyone used a seal, but they fell increasingly out of use as ownership of land became more common. The Law of Property (Miscellaneous Provisions) Act 1989 finally ended this for individuals. For companies, a similar provision was initially made in the Companies Act 1989, although companies are still at liberty to establish themselves with a common seal if they wish (e.g. NHS Property Services Limited has chosen to use a common seal). No similar abolition was made in relation to public bodies and so the requirement remains. The NHS Act 2006 contains various references to NHS England, NHS Trusts, NHS Foundation Trusts and CCGs using a common seal. When? Generally, for public bodies, all deeds (e.g. leases or transfers of land) should be executed under seal. Contracts may also be executed under seal in various circumstances and organisations will need to check their standing orders and standing financial instructions, as it is often the case that contracts over a certain value should be executed under seal. How? The common seal should usually be held in the safe custody of the board secretary. The use of the seal should be authorised by the trust board and this may include the approval of the business case at board level. The trust should keep a record of the use of the seal and most trusts report to the board once a quarter or twice a year on the use of the seal. The common seal should be affixed to a document in the presence of two officers of the trust who should counter-sign to confirm that the seal has been affixed. The identity of those two officers is usually by dictated by the standing orders, which generally provide that it should be the chair or chief executive and another executive director. Standing orders will often say that the other director should be the director of finance or it may say it should be a director from a different department to that which has handled the transaction. Some standing orders may refer to ‘board members’ being able to countersign which leaves open the possibility that this could include a non-executive director. Giving non-executive directors this power may not be good practice - due to their lack of lack of executive decision making powers. Whilst use of the seal may be old fashioned, it ensures appropriate oversight and scrutiny of legal documents entered into by public bodies and is good governance practice. The recent reforms in the NHS may have provided an opportunity to modernise the law in this arena, but it appears that there are no plans by the government to do so in the future. Rebecca Wakefield [email protected] 17 healthcare update spring 2014 When, why and how the common seal should be used Increasingly clients are requesting clarity on when, why and how the common seal should be used to execute deeds and contracts. in the Hamburg Waste case) was thrown out by the court, on the basis that the service did not relate to a public task which they were both required to undertake, it was simply a case of delegating a responsibility from one body to another (which on the face of it, is subject to procurement); and (iii) the Teckal argument failed because the contracting parties to the actual contract under consideration were not in a relationship satisfying the Teckal control requirements (the ultimate provider behind the scenes was instead controlled by one of the other authorities). Kreis Duren was required to award their cleaning contract by way of a public procurement process. Conclusion The traditional ‘working together’ ethos in the NHS in relation to the shared provision of back office support services needs to be examined carefully, on a case by case basis, to ensure that procurement requirements are not being circumvented, albeit inadvertently. The new Public Procurement Directive, once implemented in the UK (expected towards the end of 2014) will make the application of the ‘in-house’/ Teckal exemption and public-public cooperation much clearer - with rules that can be understood and complied with. However, we would still recommend taking advice before entering into a public-public agreement. If you need further information please contact: Mark Fitzgibbon [email protected] When should a healthcare professional seek advice from independent defence organisations or take their own legal advice? In brief: • Allegations of a crime. • Interviews under police caution. • Referral to a healthcare professional’s regulatory body (e.g. GMC or NMC). • Allegations relating to a healthcare professional’s capability and/or conduct. • Private work. • Conflict with their employing NHS body. • Conflicts between NHS witnesses. • Independent legal advice or support. Allegations of clinical negligence and NHS Litigation Authority indemnity Members of the NHS Litigation Authority (NHS LA), including the NHS body, and their employees are indemnified by the NHS LA (under the Clinical Negligence Scheme for Trusts (CNST)), in respect of claims for clinical negligence which occurred on or after 1 April 1995 and which arise out of events in the context of NHS employment. The NHS body is the defendant in the proceedings, not the healthcare staff personally. Therefore, any payment that is awarded in damages following a clinical negligence claimclaim will be paid by the NHS LA and not the individual employee. All associated legal costs will be paid for by the NHS LA. There is no requirement for a healthcare professional to contact their defence organisation if they are involved as a factual witness in a clinical negligence claim – although there is nothing to stop them from doing so if they require more support. For claims arising out of treatment provided in the private sector, the claim is brought against the healthcare professional personally and the costs of litigation and settlement are funded through their own defence organisation and not the NHS LA. Inquests and funding In most inquests, NHS bodies will not ordinarily require legal representation and will support their own witnesses, as an inquest is simply a fact finding exercise to determine who died, and when, where and how they came by their medical cause of death. In more complex cases, the NHS body may require legal representation. The cost of an NHS body obtaining legal representation in relation to an inquest is ordinarily funded by the NHS body itself to protect its corporate interests, such as any allegations of system failure or to protect the NHS body’s reputation. Whilst the lawyers will represent the NHS body, not individuals, in most cases, the lawyer will also provide support for the witnesses employed by the NHS body. However, in some cases this is not possible. Healthcare professionals should seek advice from their defence organisation at the earliest opportunity where: • an allegation of a crime has been made – for example, manslaughter by gross negligence; • the police invite the healthcare professional to attend an interview under Police caution; • a referral has been made to a healthcare professional’s regulatory body (e.g. GMC or NMC); • it is connected with a healthcare professional’s private work and not their employment with an NHS body; • there is a legal conflict of interest with their employing NHS body – for example, a RCA or SUI investigation has identified failings which the healthcare professional does not accept. If the healthcare professional accepts the findings of the NHS body’s investigation, and has learnt lessons arising from it, then the NHS body’s lawyer will ordinarily be able to act for the individual; • there is a legal conflict of interest in the evidence between NHS witnesses – for example, a nurse states they informed a doctor of a patient’s deterioration but the doctor denies having been told this; and • the healthcare professional simply wishes to access independent legal advice or support. 18 Any healthcare professional can be called to give evidence at an inquest. They may also face allegations of clinical negligence or be accused of misconduct or a criminal offence. Inquests, legal conflicts of interests and indemnity through defence organisations 19 healthcare update spring 2014 The NHS body’s lawyer is under a professional obligation to act in the best interests of the NHS body as a whole. These interests may not fully represent those of a particular healthcare professional and it can often be in the individual healthcare professional’s best interests to seek their own advice, independent of the NHS body, so that steps can be taken to protect that individual – for example, expert evidence to support their position. Defence organisation cover Any healthcare professional may need to obtain their own representation, from junior doctors, to nurses, allied health professionals and senior clinicians. Legal advice may be required following an allegation that may or may not be founded or evidence based. It is very important that all healthcare professionals have appropriate defence organisation cover in place to cover the costs of any legal representation that might be required to protect their personal position. The sooner defence organisation cover is obtained the better! Cover is not provided retrospectively; therefore, healthcare professionals will only be indemnified for the legal expenses in relation to incidents occurring on or after the date the cover begins. If the incident occurred prior to the date of commencement of the cover, this will not be included and a healthcare professional will have to fund their own legal expenses out of their own pocket! Joanna Trewin [email protected] healthcare update spring 2014 hilldickinson.com/health Liverpool Manchester London Sheffield Piraeus Singapore Monaco Hong Kong ® For further details, please contact: Richard Watson Head of Health and NHSLA +44 (0)151 600 8331 [email protected] Lawford Martin Head of Healthcare and Healthcare Property +44 (0)161 817 7311 [email protected] The editorial team: Rebecca Fitzpatrick Partner +44 (0)161 817 7296 [email protected] Gill Lloyd Associate +44 (0)151 600 8212 [email protected] About Hill Dickinson The Hill Dickinson Group offers a comprehensive range of legal services from offices in Liverpool, Manchester, London, Sheffield, Piraeus, Singapore, Monaco and Hong Kong. Collectively the firms have over 175 partners and a complement of more than 1350 staff. The information and any commentary contained in this newsletter are for general purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. Whilst every effort has been made when producing this newsletter, no liability is accepted for any error or omission. If you have a particular query or issue, we would strongly advise you to contact a member of the health practice, who will be happy to provide specific advice, rather than relying on the information or comments in this newsletter. Hill Dickinson LLP is a limited liability partnership Programme 09:30 Registration 10:00 Session one 11:30 Coffee break 11:45 Session two 13:00 Lunch 13:45 Session three 15:15 Coffee break 15:30 Session four 16:30 Close Topics will include: • NHS LA • Liability • Human Rights Act • Anatomy of a claim • Confidentiality and disclosure • Investigating a claim • Funding • NHS complaints procedure • CRU Hill Dickinson NHS claims handler course We would like to invite you to join us at our comprehensive one day course of interactive training for NHS staff handling both legal claims and complaints. Delegates will gain a fundamental understanding of the legal process involved in handling NHS legal claims and complaints, general guidance on the NHS LA’s requirements and advice as to how to undertake necessary investigations. The cost will be £750 plus VAT. Managing negligence claims in the NHS Are you new to claims management or have you returned to claims management after a career break? If so, then sign yourself up to Hill Dickinson’s ‘NHS Claims Handler Course’. This is a one day interactive course during which you will gain a fundamental understanding of the legal process involved in handling NHS legal claims and complaints. The course is run by associate Joanne Hughes, who has over 10 years’ experience in defending clinical negligence claims for the NHS. Joanne will provide you with general guidance on the NHS LA’s requirements and how to undertake investigations. During the day, you will also be introduced to the areas of liability, the Human Rights Act, confidentiality and disclosure, complaints and CRU. The cost of the course is £750 plus VAT and includes all materials and refreshments throughout the day. The course is run out of our Liverpool, Manchester and Sheffield offices each year. If you are interested in signing up for the next course, please contact either [email protected], or [email protected] , who will providefurther details.