Health Sector News – Review of June 2020

Please find below the June 2020 edition of our Healthcare update bringing you some of the most topical legal news stories from the last month.

Blake Morgan continues to offer its full support to all those working in the healthcare sector and is happy to provide any advice and assistance as and when required.

Please do also keep up to date with our latest articles and blogs on legal issues arising by going to the dedicated section of Blake Morgan’s website.

Readers may also be aware that the Welsh NHS Confederation also produces some very interesting articles and news items, which can be found here.

COVID-19 related healthcare news

Revised Regulations in England to deal with COVID-19

On 1 June 2020, changes were brought into force by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 which introduced some easing of some of the restrictions originally imposed in England in three core areas – schools, retail, and social contact. These regulations make the following changes:

• Groups of up to six people will be able to meet outdoors from Monday 1 June, including in gardens and other private outdoor spaces, provided strict social distancing guidelines are followed.
• Children in Reception, Year 1 and Year 6 will be able to return to school on 1 June, and nurseries and other early years settings will be reopened.
• From 15 June secondary schools, sixth forms and colleges will begin to provide some face-to-face contact time for Years 10 and 12 and the equivalent groups in further education.
• Outdoor markets and car showrooms will be able to reopen from 1 June, provided they meet COVID-19 secure guidelines to protect shoppers and workers.
• It remains the case that those from different households must continue to stay 2 metres apart. And it remains the case that people should not spend time inside the homes of their friends and families, other than to access the garden or use the toilet.
• Those who are shielding should continue to do so.

The regulations were followed up on 12 June 2020 by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 easing lockdown restrictions further, making the following changes:

• From 15 June 2020 places of worship will be allowed to reopen for individual prayer in line with social distancing guidelines.
• If an individual lives alone or is a single parent with dependent children i.e. if there is only one adult in the home, they can expand their support network so that it includes one other household of any size. This is called making a ‘support bubble’ and enables people to meet indoors or out, be less than 2 metres apart and stay overnight in these circumstances.
• Travel to outdoor open spaces, irrespective of distance, is permitted as long as you can return the same night and do not put others at risk.
• From 15 June all non-essential retail shops are permitted to reopen provided they follow government guidelines to keep staff and customers as safe as possible.
• Employers should also display a notice visibly in their shop windows or outside their store to show their employees, customers and other visitors that they have followed COVID-19 guidance.
• From 15 June 2020 the public must wear a face covering when travelling in England on a bus or coach; train or tram; ferry or hovercraft or other vessel; aircraft; or cable car.
• Failure to wear a face mask could result in a fine of £100, or £50 if you pay the fine within 14 days

On 23 June 2020 the Prime Minister announced the following changes that will come into force in England from the 4 July 2020:

• Pubs, restaurants and hairdressers will be able to reopen, provided they adhere to COVID secure guidelines.
• Two households will be able to meet up in any setting with social distancing measures.
• People can now enjoy staycations in England with the reopening of accommodation sites.
• Some leisure facilities and tourist attractions may also reopen, if they can do so safely – this includes outdoor gyms and playgrounds, cinemas, museums, galleries, theme parks and arcades, as well as libraries, social clubs, places of worship and community centres.
• Where it is not possible to stay two metres apart, guidance will allow people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission.
• Venues such as nightclubs, soft-play areas, indoor gyms, swimming pools, water parks, bowling alleys and spas will need to remain closed for the time being.

Revised Regulations in Wales to deal with COVID-19

On 1 June 2020, changes were brought into force by The Health Protection (Coronavirus, Restrictions) (Wales) (Amendment) (No. 5) Regulations 2020 which set out the following:

• Provisions enabling a marriage or civil partnership where a party to the marriage or civil partnership is terminally ill.
• A relaxation to the requirement to stay at home unless you have a reasonable excuse to enable people to be outside for any purpose within their local area.
• A relaxation to the prohibition on gathering which allows persons from no more than two households to gather outdoors.
• For the purposes of the regulations ‘local area’ is defined as within 5 miles of a person’s home. However it is recognised that those in rural areas may need to travel further than this.
• Persons can leave their local area if they have a “reasonable excuse” to do so – this includes:
  • going to work or using public services that are not available locally
  • to visit family or close friends on compassionate grounds if necessary
  • attending court appearances or satisfying bail conditions
  • providing or receiving care or assistance
  • donating blood
  • working or volunteering to provide charitable services
  • attending solemnization of marriage or forming of civil partnership where a party is seriously ill and not expected to recover
  • attend a funeral as a person responsible for arranging or invited by the person responsible for arranging the funeral or as the carer of a person attending
  • visit a cemetery, burial ground etc. to pay respects to a deceased person
  • visit a library
  • worship leaders to visit their place of worship
  • move home where this cannot be postponed (you may also view a property if it is unoccupied and has been empty for at least three days, or it has been thoroughly cleaned) and
  • avoid injury or illness, or escape a risk of harm.
• Members of two separate households are permitted to meet outdoors at any one time. This will include meeting in private outdoor spaces such as gardens.
• Non-essential businesses are permitted to open from 22 June 2020 in accordance with social distancing guidelines subject to regularly updated guidance regarding businesses that must remain closed for now.

On 29 June 2020 the First Minister announced the following changes that will come into force from the 6 July 2020:

• Two households would be allowed to ‘join up’ to form an extended household. This will mean people can have physical contact, exercise, cook and eat together, and also stay in each other’s homes.
• People can only be in one extended household which cannot be changed once arranged.
• If anyone in an extended household develops symptoms the entire household will need to self-isolate.
• Current travel restrictions i.e. ‘local area’ restrictions of 5 miles, will be lifted.

Local Government and Social Care Ombudsman to resume taking online complaints

From the 29 June 2020, the Local Government and Social Care Ombudsman will be taking on new complaints and resuming existing cases through its website.

Those cases that required local authority or care provider input were previously put on hold in March due to the COVID-19 pandemic in an effort to protect frontline services.

The helpline was reopened in May on a reduced basis in order to provide general advice to the public and had recently resumed existing investigations with councils who were able to deal with the complaints on top of other essential pandemic services.

Click here for more information.

Wales – Health and Social Care (Quality and Engagement) (Wales) Act 2020

The Health and Social Care (Quality and Engagement) (Wales) Bill, introduced by Vaughan Gething AM on 17 March 2019, received Royal Assent on the 1 June 2020.

The Act is envisaged to be used as mechanism for improving the quality of health services and protecting the health, care and well-being of the current and future population of Wales. The Act is not yet in force and Welsh Government have indicated that they are working to implement it in Spring 2022. We will keep you updated on developments in future newsletters.

Following the Parliamentary Review of Health and Social Care in Wales 2018, and the Welsh Government plan ‘A Healthier Wales: our Plan for Health and Social Care’, the Act aims to realise the Welsh Governments’ ambition of bringing together the health and social care system in a way that is designed and delivered around the needs and preferences of individuals, and emphasising the importance of engagement with citizens. Improvement in quality so that the system will be both fit for purpose and achieves value is the primary goal, underpinning the provisions in the Act of: duty of quality; citizen voice, duty of candour and the opportunity of NHS Trusts to have a Vice Chair.

These are the four main objectives of the Act:

• to strengthen the existing duty of quality on NHS bodies and extend this to Welsh Ministers in relation to their health service functions;
• to establish an organisational duty of candour on providers of NHS services in Wales (including primary care providers who provide NHS services), requiring them to be open and honest with patients and service users as soon as they are aware that things have gone wrong , or may have gone wrong, with their care or treatment;
• to strengthen the voice of citizens, by replacing Community Health Councils with a new, all-Wales Citizen Voice Body (the CVB), to represent the views and interests of people across health and social care; and
• to enable the appointment of vice chairs for NHS trusts, bringing them into line with health boards.

Additionally the Act provides the Welsh Ministers with powers to make regulations which will set out the procedure to be followed by an NHS body when the duty of candour has been triggered and to make supplementary, incidental or consequential provisions, and/or transitory, transitional or saving provisions, to bring into force or give full effect to the provisions of the Act if the Welsh Ministers consider it necessary or expedient.

A summary of the Act can be accessed here and Vaughan Gething’s statement can be accessed here.

Legal challenge over PPE contract award

The Government is facing a challenge launched by The Good Law Project in relation to the £108 million contract for PPE which was awarded to a pest control company. The not-for-profit membership organisation launched judicial review proceedings on 15 June 2020.

The organisation claims the awarding of the contract has raised a number of questions, including the procedure adopted which involved the award of the contract without prior publication of a call for competition. Such a procedure is only available where such “extreme urgency” in the awarding of the contract was unforeseeable.

Other healthcare news

Consultation begins on revision and expansion of Caldicott principles

The National Data Guardian for Health and Social Care (NDG) has opened consultation and is seeking views on the Caldicott Principles and appointment of Caldicott guardians.

The Caldicott principles are fundamental principles, stemming from the Caldicott Report 1997, that NHS organisations and local authorities with adult social care responsibilities must follow in order to protect information that can identify patients, such as their names and medical records.

The current principles (as revised in 2013):

• Justify the purpose for using confidential information
• Don’t use personal confidential data unless absolutely necessary
• Use the minimum necessary personal confidential data
• Access to personal confidential data should be on a strict need-to-know basis
• Everyone with access to personal confidential data should be aware of their responsibilities
• Understand and comply with the law; and
• The duty to share information can be as important as the duty to protect patient confidentiality.

Every NHS organisation and each obliged local authority has had to have a Caldicott Guardian since 1998 and 2002 respectively – senior individuals who are responsible for ensuring the principles are upheld within their own organisations.

The last review of the principles held in 2013 found them to be clear and simple and had become well-established. The review also introduced the seventh principle and found that guardians still played an important role in upholding the principles.

In this most recent consultation the NDG are now seeking views on:

• Proposed revisions to the seven existing Caldicott Principles
• Proposed extension of the Caldicott Principles through the introduction of an additional principle which makes clear that patients’ and service users’ expectations must be considered and informed when confidential information is used
• The proposal that the NDG uses their statutory power to issue guidance about organisations appointing Caldicott Guardians to uphold the Caldicott Principles.

The NDG confirmed that this review is not in response to the COVID-19 pandemic but rather as a result of over two years of work.

The consultation will close in September 2020.

For more detailed information about the proposed changes to the Caldicott principles please see here.

Government offers contracts to develop new antibiotics to treat deadliest diseases

A world-first scheme is now underway that will provide antibiotics to NHS patients suffering from deadly infections.

Two contracts are being offered to pay pharmaceutical companies at the start of their work for access to innovative antibiotics, providing an incentive to bring new classes of drugs to patients in the UK for the first time in 30 years.

This new scheme will operate as a subscription-style payment model and will pay pharmaceutical companies upfront for access to antibiotics products based on their value to the NHS, instead of how much is used.

Suppliers can register interest for the scheme on the NHS eTendering Service from 15 June 2020.

For more information please see here.

Survivors win over £46 million for abuse in children’s homes

The Shirley Oaks Survivors Association (SOSA) has secured compensation in excess of £46 million for 1340 people who suffered abuse in homes over many decades.

SOSA was founded in 2014 by Raymond Stevenson and his business partner Lucia Hinton, in order to represent individuals who had been sent to live in the Shirley Oaks children’s home in Croydon, the biggest in the country until its closure in the 1980s. Almost 1800 people contacted SOSA describing physical, racial and sexual abuse suffered by them in such homes, under the control of Lambeth Council, with around 70% having lived at Shirley Oaks.

The compensation has been paid to victims who suffered over a span of decades from the 1930s to the 1990s, with the oldest victims receiving compensation being in their 90s.

There are still over 600 applications to be reviewed and survivors continue to come forward. Campaigners believe the overall compensation bill could double.

For more information about SOSA and the compensation scheme please see here.

‘Ordinary residence’ determination results in legal challenge against the Secretary of State for Health

Legal action against the Government has been launched by Worcestershire County Council over a dispute as to which council should be providing after care services under the Mental Health Act 1983 to someone detained on two occasions. R (Worcestershire County Council) v Secretary of State for Health and Social Care and Swindon Borough Council (‘the Worcestershire case’).

The Department for Health and Social Care (DHSC) has recently published a number of determinations following a dispute between two local authorities regarding after-care, and referral to the Secretary of State of the dispute by one of the council’s involved, including Ordinary Residence 7: 2020 which states the following:

“…the Secretary of State concluded that X was ordinarily resident in Council A’s area at the relevant time for the purposes of determining responsibility for the provision of after-care under section 117 of the MHA 1983.

I have concluded that this is incorrect, and that Council B has, or retains, the responsibility for the provision of after-care for X.”

These determinations set out the Secretary of State’s position which has been revised to take account of the decision of the Supreme Court in R (Cornwall Council) v Secretary of State for Health [2015] UKSC 46.

A Worcestershire Council spokesperson stated that “The determination creates a level of uncertainty as to the legal position in identifying which local authority is responsible for meeting section 117 after-care duties and is contrary to the Secretary of State’s own statutory guidance on this issue.”

Statutory guidance has been issued setting out DHSC’s position on the determination of ordinary residence disputes pending the outcome of the Worcestershire case which can be accessed here.

This guidance should be read alongside DHSC’s guidance to local authorities on ordinary residence in Chapter 19 of the Care Act 2014 Care and Support statutory guidance. The Secretary of State indicates that in making ordinary residence determinations, the content of the care and support statutory guidance, particularly paragraphs 19.62 to 19.68, does not represent his current position and will be updated in due course.

In the absence of exceptional circumstances in a particular case, no new determinations will be made on cases which raise similar issues to the Worcestershire case after 2 June 2020, until the outcome of the case is known.

The case is on-going and we will report the outcome in future editions.

For more information please see the Community Care website.

Liberty Protection Safeguards 2021? Don’t prioritise preparations!

The Mental Capacity (Amendment) Act 2019 (the Act) received the Royal Assent on 16 May 2019 and will abolish the Deprivation of Liberty Safeguards (DoLS) replacing DoLS with a new system, the Liberty Protection Safeguards (LPS).

The UK Government announced in the summer of 2019 that the LPS would be implemented from 1 October 2020. The new draft statutory Code of Practice and Regulations to accompany the Act were expected towards the end of 2019, with the final versions agreed by Parliament in the spring of 2020. These England or Wales specific Regulations will set out how the detail of LPS would work in practice covering issues such as transitional arrangements, regulation of LPS and training for Approved Mental Capacity Professionals. Consultation is required on both the Code and Regulations for a period of at least 12 weeks, after which the responses would need to be taken into account before a final versions are laid before Parliament.

The advent of Brexit, the Parliamentary election in December 2019 and now the Coronavirus pandemic have significantly impacted planning and the draft Code and Regulations have not yet emerged. The 1 October 2020 implementation date now appears to be an impossibility.

Community Care have recently reported that the UK Government has contacted local authorities and other sector bodies telling them “not to prioritise” implementing LPS with the 1 October 2020 go-live date now an impossibility, stating that:

“.., the organisations chiefly responsible for implementing the LPS – councils, care providers, clinical commissioning groups and NHS trusts – are in the front line of managing the COVID-19 pandemic and face an autumn of managing a recovery or, potentially, dealing with a second spike in the Coronavirus.

A Department of Health and Social Care spokesperson said: “We are aware of the pressures the pandemic is putting on the health and social care sector and are not asking the sector to prioritise LPS preparation during this time.””

For more information, please see here.

In the meantime the existing DoLS scheme set out in under the Mental Capacity Act 2005 and its accompanying Code of Practice and England or Wales specific Regulations will continue to apply.

Second costs provider added to panel by NHS Resolution

After a “highly competitive retender” NHS Resolution has added a second costs provider to its mediation panel in a move to increase activity in this area.

The process saw the existing panel members reappointed, and will now be joined by St John’s Building Limited in mediating costs disputes.

The mediation service was launched in 2016 however has experienced “low take-up” for costs disputes, only completing 22 meditations between December 2016 and March 2019.

A report evaluating the scheme commissioned by NHS Resolutions stated that “These low figures may be attributable in part to the recovery of the costs of mediation. Under the service, in contrast to meditations for substantive issues such as liability and quantum, the legal costs associated with the mediation are not recoverable for the mediation of costs disputes. Each party will share the costs of the mediator’s fees equally and will bear their own costs of preparation for and attending the mediation.” However the report also concluded that while there was a place for mediation in high value, complex disputes, traditions such as without prejudice discussions have also proven effective in cost disputes.

This newsletter is co-authored by Joanne Thompson and Rachael Thomas.