The health and social care sector has had a busy few months, as the new NHS structure beds in and the government consults on further changes to that will impact on health and social care services.
Meanwhile, local authorities and NHS organisations have been challenged by service users and providers in respect of how services are delivered and commissioned.
This post is a round up of legal news in the sector from March to August 2013.
1 April 2013 changes
On 1 April 2013, Primary Care Trusts (PCTs) and Strategic Health Authorities were abolished. In their place, clinical commissioning groups (CCGs) (consortia of GP practices) became responsible for commissioning secondary care services. NHS England (formerly the NHS Commissioning Board) is now responsible for certain centrally commissioned services. Local authorities have also assumed responsibility for public health functions from the PCTs, which has included the transfer of staff and contracts from the former PCTs. For more information, see Key changes under the Health and Social Care Act 2012: a quick guide.
On 24 April 2013, the DoH published guidance for local authorities on changes to secondary legislation arising from the Health and Social Care Act 2012.
In accordance with the duties to promote integration in the Health and Social Care Act 2012, on 9 August 2013, the Local Government Association and NHS England published a statement on the health and social care Integration Transformation Fund, aimed at aligning health and social care services in local areas.
Investigations into alleged breaches of NHS procurement regulations and guidance from Monitor
The procurement of health services remains a key issue for the government. The last couple of months have seen the start of two investigations by Monitor into alleged breaches of the NHS (Procurement, Patient Choice and Competition) Regulations (No 2) 2013 (SI 2013/500) (NHS Procurement Regulations). The investigations will look at procurement decisions taken by NHS England in respect of the selection of providers of surgery services in Yorkshire and Humber and Greater Manchester.
Monitor published its final enforcement guidance in respect of licence breaches on 3 April 2013. Monitor’s consultation on its proposed enforcement guidance under the NHS Procurement Regulations closed on 15 July 2013, and its consultation on its role as concurrent competition regulator closed on 25 June 2013.
On 13 June 2013, Monitor and NHS England published an engagement document seeking views on the 2014/15 National Tariff, the reimbursement framework for NHS funded services. The statutory consultation on the final proposals is scheduled for autumn 2013.
Government support for procurement activity in the NHS
In recognition of the growth of procurement activity in the NHS and the need to find £1.5 billion in efficiency savings by the end of 2015-16, the Department of Health has published its Procurement Development Programme aimed at increasing expertise as well as efficiency and productivity. The Programme includes plans to establish a Centre of Procurement Development, incorporating an Academy of Procurement Excellence which will provide a centre for networking, learning and knowledge management.
The Procurement Development Programme highlighted the scarcity of skilled procurement professionals in the health sector. NHS England’s strategy for commissioning support services aims to assist CCGs and other commissioners of NHS services to source high quality commissioning support services, and to build and strengthen this sector through investment and the development of key relationships, and production of best practice processes and guidance.
Access to care services and funding of social care
On 24 June 2013, the DoH updated its statutory charging guidance in respect of charges for residential and non-residential care.
On 27 June 2013, the DoH published its draft proposals and implementing regulations for the introduction of national eligibility criteria for access to care and support services for adults. The draft regulations are for discussion by a working group but will be the subject of a formal consultation when the Care Bill 2012-13 is enacted.
On 18 July 2013, the government issued a consultation on its proposals to reform the funding of care. Currently, an individual could use up most of their capital to pay for long term care. The government proposes to increase the capital asset threshold at which an individual would have to fund their own care from £23,250 to £123,000. A total cap of £75,000 towards costs of care is also proposed.
The proposals, if adopted, would inform the provisions contained in the Care Bill 2012-13 which sets out new obligations on funding care, including the ability for individuals to enter into deferred payment agreements, which are not currently available from every authority.
For more information on the Care Bill, see Opinion, The Care Bill 2013: Tinkering round the edges of a bottomless pit?.
Challenges to local authority decisions on care home fees and caps on community care
The last two months have seen two interesting cases deriving from local authority attempts to reduce spending on care services:
- In R (South Tyneside Care Home Owners Association) V South Tyneside Council [2013] EWHC 1827, the High Court ruled that the Council had incorrectly considered the actual costs of providing care when seeking to amend its fee structure for care homes. In addition, the new fee model did not take into account inflation. The case is a stark reminder of the difficult position local authorities find themselves in when attempting to reconcile reducing budgets with increasing care costs.
- In R (D) v Worcestershire County Council [2013] EWHC 2490, the High Court refused a judicial review claim against the Council in respect of the way in which it put in place a policy of capping weekly expenditure on adult community care at the net weekly cost of a care home placement for that individual’s assessed eligible needs. The Court found that the Council had carried out its consultation properly and had complied with the public sector equality duty.
Access to health information
In light of the changes to the structures of the NHS, and in response to certain high profile security breaches, a number of initiatives have considered the security of personal data in the NHS.
On 26 March 2013, the Ministry of Justice published a consultation on extended the powers of the Information Commissioner to carry out compulsory assessments of NHS bodies’ compliance with data protection legislation. On 2 April 2013, the Information Commissioner published FAQs on changes to the NHS with a view to ensuring those taking over responsibility for certain NHS functions understood their responsibilities under the Data Protection Act 1998 and the Freedom of Information Act 2000.
On 26 April 2013, the DoH published an independent report on how patient information is shared across the health system. The report recommends improved access for patients to their personal data, including an audit trail of everyone who has accessed that person’s data. The report also highlights the need for clear information sharing protocols to facilitate legitimate data sharing and to prevent inappropriate access.
The Information Commissioner also reported that NHS England will introduce a new system for collecting and analysing data called care.data. Care.data is intended to inform clinical decision-making and thereby improve patient care.
Social care and children’s services
On 12 April 2013, the DoH published updated guidance on ordinary residence to reflect the NHS reforms which took effect from 1 April.
On 11 April 2013, Directions were made in respect of the arrangements to be made by relevant bodies in respect of Local Healthwatch Organisations. Contracts between local authorities and their Local Healthwatch should reflect the Directions.
On 15 March 2013, the DfE updated its statutory guidance on securing sufficient accommodation for looked after children under section 22G of the Children Act 1989.
On 21 March 2013, the Care Planning, Placement and Case Review (England) Miscellaneous Amendments) Regulations 2013 (SI 2013/706) were made. The amendments aim to ensure that local authorities address the particular needs of looked after children who are on remand.
In R (X) v London Borough of Tower Hamlets [2013] EWHC 480, the High Court held that a policy which paid less to foster carers who were related to the child than to those who weren’t was unlawful and discriminatory.
Cases brought under Article 8 of the ECHR
The last few months have seen some interesting cases brought under Article 8 of the European Convention of Human Rights in the area of social care.
In Re B (a child) [2013] UKSC 30, the Supreme Court held that the removal of a child at birth and the making of a care order due to the likelihood of future psychological or emotional harm was a proportionate response and not a breach of Article 8.
In A and S (Children) v Lancashire County Council [2013] EWHC 851 (Fam), the High Court ruled that Lancashire County Council should pay the legal costs of two statutory orphans following multiple breaches of their rights under Article 8. The case is a sad reminder of the duties owed to those who are freed for adoption but for whom adoptive families are not found.
In Bedford v Bedfordshire County Council [2013] EWHC 1717 (QB), the High Court held that a local authority was not liable under Article 8 for a criminal assault committed by a child in care who escaped while on a supervised visit. The local authority had put in place care for the attacker that it reasonably considered appropriate.
Delivery of health and social care services by social enterprises
Several projects involving spin out organisations have been in the areas of health and social care. On 1 August 2013, the Local Government Association published guidance and case studies on new models of delivery and working for local authorities.
As part of its strategy for promoting value for money in contracts for public services, the Cabinet Office’s Centre for Social Impact Bonds provides support for organisations looking to use this model which enables the public authority to pay providers only when defined social outcomes are achieved. The Centre has published guidance and a template contract for social impact bonds. For more information, see Opinion, Commissioning for outcomes and social impact bonds: New models for delivering public services.