Health Sector News – Review of December 2019

Blake Morgan’s Health Sector legal experts have put together a round-up of the latest news within the area.

Welcome to the review of the December edition of Health Sector News, a digest of legal issues hitting the headlines in the health sector.

Health and Social Care (Quality and Engagement) (Wales) Bill 2019

The Welsh Government proposed the Health and Social Care (Quality and Engagement) (Wales) Bill on 17 June 2019 and the proposed amendments to the Bill are now being scrutinised by the Health, Social Care and Sport Committee, amongst others.

The Bill provides for three main changes to healthcare in Wales:

• Seeks to improve the quality of healthcare services
• Introduces a duty of candour
• Establishes a Citizen Voice Body

Welsh Ministers, Local Health Boards, NHS Trusts and Special Health Authorities would be placed under a duty to exercise their functions, in relation to health services, with a view to improving the quality of health services. They would have to publish an annual report on the steps taken to comply with such duty including an assessment of how their steps have achieved an improvement in services.

NHS bodies would be subject to a duty of candour where (1) a patient has suffered an adverse outcome and (2) the provision of health was or may have been a factor in the patient suffering that outcome. Where a duty of candour has been triggered, the NHS body must notify the patient of this, and provide the patient with a point of contact and the enquiries the NHS body has made into the circumstances of what happened to the patient. The Bill provides that secondary legislation will flesh out the specifics of the duty, however any such legislation must make provision for an apology to be offered by the NHS body.

The Bill proposes to establish a Citizen Voice Body for Health and Social Care, Wales (‘the Body’), which is intended to represent the interests of the public in relation to health and social services. The Body would need to seek out the public’s views and make appropriate representations to NHS bodies and local authorities. The Body would also be able to advocate of behalf of individuals wishing to complain about certain services. The Body would replace Community Health Councils.

The Bill has been considered by the Health, Social Care and Sport Committee, the Finance Committee and the Constitutional and Legislative Affairs Committee who have each provided a report. The general principles of the Bill were agreed and the Bill has now entered Stage 2 of the proceedings where the Committees will consider proposed amendments to the Bill.

To view the Bill as original proposed, see here.

To view the progress of the Bill please go to here.

Law Society response to the NICE Quality Standard consultation

The Law Society has provided its response to NICE’s Quality Standard consultation which covers decision making for those 16 and over, using health and social care services who may lack capacity (now or in the future) to make their own decisions. Four quality standards were proposed by NICE:

• People aged 16 and over who may lack capacity to make decisions should receive support that reflects their individual circumstances and meets their particular needs;
• People aged 16 and over at risk of losing capacity to make decisions and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review;
• People aged 16 and over who are assessed as lacking capacity to make a decision, have a clear record of the practicable steps taken to support them and the reasons why they lack capacity; and
• People aged 16 and over who lack capacity to make a decision have their wishes and feelings reflected in best interest decisions made on their behalf.

The Law Society agrees that the four quality statements accurately reflect the key areas for quality improvement (though some minor amendments are recommended), however the Law Society’s support is conditional on the quality statements reflecting the particular position of those aged 16 to 17, as presently there are parallel decision-making routes for this age group for medical treatment based on the Mental Capacity 2005 or parental responsibility. The Law Society considers it necessary that this is resolved prior to finalising the Quality Standards in order for compliance with the quality statements to be appropriately monitored.

The Law Society also believes that it is not just commissioners who need to be aware of Health and Welfare Lasting Power of Attorneys (HW LPA), but that those who make the decisions on the front line should be aware of how HW LPAs interrelate with other forms of advance care planning, such as an advance decision to refuse treatments.

The Law Society also recommends that three additional quality statements are adopted:

• Where are person aged 16 or over lacks capacity to make relevant decisions, appropriate advance care planning is undertaking in relation to healthcare interventions which may be required;
• Cases that require determination by the Court of Protection are brought appropriately to the Court of Protection; and
• Decision-makers have regard to the current version of the Mental Capacity Act Code of Practice when making decisions.

To view the Law Society’s response, visit here.

To view NICE’s Quality Standard consultation please see here.

Statement by the Welsh Government – Continuing NHS healthcare Framework for Wales

The Minister for Health and Social Services, Vaughan Gething AM has released a written statement following a consultation on the Continuing NHS Healthcare Framework in Wales. The consultation sought stakeholders’ thoughts on proposed amendments to the existing 2014 Framework and the Decision Support Tool which is used as part of the assessment of whether a person is eligible to receive Continuing Health Care services.

The Welsh Government intends to set up working groups shortly to consider how to address concerns surrounding individuals’ ability to exercise control over their own care. There is a view to delivering health and social care as one integrated service, therefore the Welsh Government will review legislative barriers which prevent local health boards and local authorities using pooled funds to deliver integrated health and social care, and consider the feasibility of introducing independent user trusts to support individuals to manage their health and social needs.

The Welsh Government will also be producing a Continuing Health Care public information booklet. This will set out the steps an individual will go through in the Continuing Health Care assessment process including their rights at each stage and how they can access support and advice.

It is intended that the revised Continuing Health Care Framework, Decision Support Tool, Continuing Health Care Performance Framework and the public information booklet will be published in April 2020.

To view Vaughan Gething AM’s statement click here.

To view the consultation and responses please visit here.

Draft NHS England Standard Contract 2020/21

NHS England has published a draft revised NHS Standard Contract for 2020/21 for use by NHS commissioners to contract for all healthcare services other than primary care services.

Key policy changes include, to increase the proportion of women who receive continuity of care during their maternity care, to require emergency ambulance providers to source vehicles under nationally- specified supply contracts, and to increase the proportion of patients who access treatment for psychosis within two weeks.

The draft Standard Contract can be found on the NHS England website.

Stakeholders are invited to submit their comments by 31 January 2020.

NHS trusts are not charities rules High Court

The High Court has ruled that NHS Foundation Trusts are not to be treated as charities and are therefore not eligible for business rates relief following a legal claim by 17 Foundation Trusts. Should the trusts have been successful, the defendant Councils would have been liable to refund £1.5bn in business rates.

Whilst private hospitals registered as charities can apply for an 80% rebate on business rates, the NHS must pay business rates on its properties.

It was held that foundation trusts were not established for charitable purposes only under the National Health Service Act 2006 (“the Act”), and therefore are not charities pursuant to the Charities Act 2011. The principal purpose for which the trusts were established under the Act was to provide goods and services for the purpose of the health service in England, which is a charitable purpose, however the trusts also have the power to do anything necessary or expedient for the purposes of or in connection with its functions. The wide wording of these powers could refer to activities beyond its charitable objectives, therefore the trusts were not established for charitable purposes only. It was stated that the established purpose of an institution is key; if an institution is established for charitable and other purposes but only pursues its charitable objectives, it is not a charity.

To read the full judgment click here.

The National Health Service Litigation Authority (Safety and Learning) Directions 2019

The National Health Service Litigation Authority (Safety and Learning) Directions 2019 came into force in England on 5 December 2019, pursuant to the National Health Service Act 2006. The Directions enable the NHS Litigation Authority to carry out safety and learning functions as part of the administration of the indemnity schemes established under section 71 of the NHS Act 2006. The Directions allow the NHS Litigation Authority to disseminate information, provided that it is satisfied that in doing so there is likely to be improvements in the administration of the indemnity schemes and in the quality and safety of health care services. The Directions also direct the NHS Litigation Authority to promote and undertake research and allows the Litigation Authority to use financial incentives to encourage bodies covered by the indemnity schemes to improve the quality and safety of their services.

To view the Directions please go to the Government website, the National Health Service Litigation Authority (Safety and Learning) Directions 2019 section.

Court of Appeal decision: recoverability of surrogacy costs

The appeal hearing of a hospital trust was heard on 16 – 17 December 2019 to appeal the decision of the Court of Appeal which allowed the recovery of surrogacy expenses. The decision is expected imminently.

Facts: A woman (X) became infertile due to the negligence of a hospital trust and sought to recover the costs of intended commercial surrogacy in the US, and/or the costs of a non-commercial surrogacy in the UK, using both her own frozen eggs and donor eggs.

At first decision, the judge held that the claim for the expenses of the commercial surrogacy failed because commercial surrogacies are illegal in the UK under the Surrogacy Arrangements Act 1985, and are therefore contrary to public policy. A claim for the costs of a non-commercial surrogacy in the UK could succeed however damages would be limited to the surrogacies using X’s own eggs, as the loss she had suffered was the ability to have ‘her’ child, not ‘a’ child, therefore the expenses from the donor egg surrogacies would not be recoverable as they would not be restorative of X’s loss.

Court of Appeal decision: The Court of Appeal found in favour of X.

X was entitled to the costs of the commercial surrogacy in the US. She had not done anything illegal as commercial surrogacy is legal in California and by entering into such arrangement she had not committed any offence in the UK as the ban in the UK does not have extraterritorial effect. She should not be deprived of her claim when she had not committed any wrongdoing and the law does not require a bar to her claim on public policy grounds.

X was also entitled to the costs of the surrogacy using both her own eggs, and donor eggs. An award for the costs of the donor egg surrogacy was allowed as in today’s society it is not appropriate to discriminate between a child born from a donor egg versus a child born from one’s own egg. The distinction between own egg surrogacy and donor egg surrogacy would be artificial. There are now infinite varieties of forms of family life and the creation of these families are often as a result of the acceptance and use of donor eggs, and a child born by donor egg is no lesser part of the family.

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832; [2019] 3 W.L.R. 107; [2018] 12 WLUK 373 (CA (Civ Div))

This Health Sector newsletter was put together by Joanne Thompson and Rhian Davies.