H E A LT H C A R E
NEWSBRIE F
The Jackson Reforms
one year on
The
importance of
being compliant
Hospital chains: unlocking
hidden value to improve patient
outcomes
Restricting the persistent
litigant
CCG governance lessons learned
Monitor’s latest procurement
guidance published
Is saying sorry good enough?
Is the stethoscope becoming
obsolete?
w ww. h em p so n s. c o . u k
@ h em p s on s l e g a l
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2 014
Healthcare Newsbrief
Contents
Welcome to the June 2014 edition of
Hempsons’ Health Care News Brief.
2 Healthcare newsbrief
April 2013 saw the inception of the biggest
shake up to civil justice in recent memory.
One year on, James Birch reviews their
impact and asks whether the Jackson
Reforms achieved their aims?
3The Jackson Reforms
one year on?
4The importance of
being compliant
6
Hospital chains: unlocking hidden value to improve patient outcomes
8 Restricting the persistent litigant
10CCG governance lessons learned
12Monitor’s latest procurement guidance
published
14Is saying sorry good
enough?
15 Is the stethoscope becoming obsolete?
Victoria Yuan explains the importance for
all NHS Trusts of being able to demonstrate
compliance with the principles of competition
law, given the serious consequences of
a breach, which stretch beyond a Trust’s
balance sheet.
Corporate and commercial partner Christian
Dingwall reviews the latest thinking behind
hospital chains, and how they might be used
in the future as a means of improving quality
across the NHS.
Sharon Cooney describes a case in which a
Civil Restraint Order was obtained against
a persistent Claimant. The High Court
confirmed that the civil rights of a litigant in
person could be restrained without infringing
upon his Article 6 rights under the European
Convention on Human Rights (‘ECHR’).
Carol Mosedale looks back over the first 12
months of Clinical Commissioning Groups,
and highlights some key governance lessons,
especially in light of the potential for cocommissioning of primary care with NHS
England.
2 Healthcare Newsbrief Now that Monitor has published its final
substantive guidance on the provisions of
the NHS (Procurement, Patient Choice and
Competition) (No.2) Regulations 2013 (the
“s.75 Regulations”), Oliver Crich and Victoria
Yuan summarise the guidance.
The Health Secretary, Jeremy Hunt, has said
that doctors and nurses must ‘say sorry’
when mistakes are made in order to end
the culture of defensiveness in parts of the
NHS. The NHSLA has released a guidance
document which further emphasises this
message by reassuring clinicians that saying
sorry is not an admission of liability but is the
right thing to do. Sajeda Adam provides an
overview.
And finally, Lucy Cannon investigates whether
the stethoscope, now almost 200 years old, is
nearing obsolescence. The advent of point of
care ultrasound devices would appear on the
face of it to be the way forwards, but it seems
the stethoscope still has a few years’ service
left yet.
The Jackson Reforms one year on?
April 2013 saw the inception of the biggest shake up to
civil justice in recent memory. More than one year on, have
the Jackson Reforms achieved their aims?
The anticipated reforms heralded by Lord Justice Jackson
took effect from 1 April 2013. It had been expected that the
majority of the reforms would focus on costs management.
However the changes have been far wider reaching, creating
a new civil litigation landscape in which the Courts have
adopted a much stricter regime with an almost zero tolerance
policy for non-compliance with rules and Orders.
Structural changes
Perhaps the most significant reform for the NHS and other
public bodies is the ending of Claimant solicitors’ rights to
recover CFA success fees and ATE insurance premiums from
Defendants and QOCS (‘qualified one way costs shifting’).
Since the 1999 Woolf reforms Claimant solicitors who secure
compensation for their clients have been able to add ‘success
fees’ to their costs claims (sometimes 100% of their normal
costs) and recover these from the Defendant. Defendants have
also been required effectively to refund the insurance policy
premiums that have been incurred by Claimants pursuing a
‘no win no fee’ case.
For claims issued after 1 April 2013 that recoverability no
longer exists. However, this is balanced by an increase in
some damages and the introduction of rules removing the
right of successful Defendants to recover legal costs from
unsuccessful Claimants.
Whilst there was a rush of claims in the run-up to 1 April 2013
(Claimant lawyers wanted to make sure they could claim
their success fees!), it is still too early to tell whether the new
recoverability rules will result in significant savings for public
bodies, although the expectation is that eventually they will.
Practical changes
Costs budgeting is intended to involve the Court early (rather
than right at the end of the case) to prevent costs from
spiralling out of control. At various stages the parties must
tell the Court what costs have been incurred and what further
costs they are likely to incur. The Court then approves a
budget for the various stages of the litigation.
It is too early to say whether this change will reduce costs,
but the widely publicised case of Mitchell v News Group
3 Healthcare Newsbrief Newspapers demonstrates the new regime in action. The
Claimant’s solicitors were late in filing their costs budget
and sought to rely on ‘pressure of work’ and ‘staff shortage’
arguments to avoid sanction from the Court.
The Court rejected those arguments and decided that the
Claimant’s costs budget should be limited to Court fees only.
As a result Mr Mitchell was precluded from recovering any
other legal costs from his opponent (even if successful). His
attempt to persuade the Court to grant ‘relief from sanction’
failed. Many similar decisions have followed Mitchell. There is
a concern that this new stringent and inflexible emphasis on
procedural compliance is compromising fairness and justice
itself. Those arguments will run and run.
Ultimately, the message from Jackson and Mitchell is clear.
The right to pursue litigation and potentially recover damages
and costs has changed. Parties are now compelled to strictly
comply with the Court’s rules and Orders. Parties who fail to
comply will suffer the consequences.
The Jackson Five: What you need to know
•Claimant’s costs should come down but it is still a little
early to say how much and which of the changes is likely
to be the real driver behind this in practice.
•Don’t assume that the Court won’t be prepared to make
what would previously have been regarded as an ‘unfair’
decision. We have seen an immediate change in attitude
and this is the best way to ensure meaningful change.
• Diarise deadlines immediately and ensure that an
appropriate system of reminders is in place. Make any
applications to extend deadlines before the deadline
itself. Although by no means guaranteed to succeed, any
application is far more likely to be successful if made
in advance of the procedural deadline. Remind experts
and witnesses of their duties in light of the Court’s new
stricter approach.
• Don’t rely on ‘pressure of work’ excuses for noncompliance with deadlines. We have seen from Mitchell
that the Courts will simply take a zero tolerance approach
in this situation.
• Don’t dismiss Alternative Dispute Resolution. LJ Jackson
concluded that greater encouragement should be given
for this, particularly for low value claims.
James Birch, Solicitor
e: j.birch@hempsons.co.uk
t: 0161 234 2484
www.hempsons.co.uk@hempsonslegal
The importance of being compliant
Additionally, the CMA has identified ‘NHS mergers’ as the hot
topic for 2014. The Health and Social Care Act 2012 has made
clear the application of competition law to the NHS. As a result
of that Act, NHS organisations at every level and in their every
interaction with patients, suppliers, competitors and regulators
must now comply with competition law.
This article focuses on compliance of competition rules
by Foundation Trusts (FTs) and NHS Trusts. An effective
compliance strategy enables an organisation to minimise the
risk of competition law infringements, and the costs resulting
from anti-competitive behaviour.
What is compliance?
In 2012, the European Commission published guidance on
compliance with competition law. It identified the three main
features of compliance:
a) Organisations have freedom to decide how they wish to
comply with competition law. There are no prescribed rules
b) The benefits of an active and supportive compliance
programme boost staff morale and enhance the organisation’s
reputation
c) Compliance with competition law reduces risk of breaches
and fines.
In essence, the Commission advocates a credible internal
compliance programme that is supported by the organisation’s
management and its leaders in order to establish an effective
compliance culture.
NHS regulators
As the concurrent healthcare regulator with the CMA, Monitor
has the power to enforce competition law against FT’s. It also
has separate powers to enforce the competition conditions in
FTs’ Provider Licence.
NHS Trusts operating under the auspices of the NHS Trust
Development Authority (TDA) must also abide by competition
law principles. Although NHS Trusts are exempt from the
requirements to hold a licence, in order to ensure fairness and
coherence across the sector, the TDA requires them to comply
with the choice and competition conditions in the Provider
Licence.
Strands of competition law
The first step to compliance is for all Trusts to improve their
understanding of competition law to help them to shape their
long term strategy and ensure that competing Trusts are not
breaching competition law to another Trust’s commercial
disadvantage.
“
“
On 1 April 2014, the Competition and Markets Authority
(CMA) became the UK’s key regulator for competition law
as the unified successor of the Office for Fair Trading and
the Competition Commission. Its Chief Executive, Alex
Chisholm, sent a clear message that the CMA is focussing
on nurturing a culture of compliance as its new regulatory
strategy.
In order to understand compliance
with competition law, it is necessary to
distinguish between the rules governing
merger control1 and behavioural
competition law².
Compliance with merger control regime
The NHS is perhaps more familiar with the merger control
regime as a result of high profile merger cases such as
Bournemouth/Poole3 and Frimley Park/Wexham . Compliance
with the merger control regime usually means that the parties
to a proposed transaction need to undertake self assessment
to determine whether it triggers the jurisdictional threshold
for CMA clearance and to cooperate with the authorities in a
helpful and timely fashion during the merger notification and
investigation processes.
1These are derived from EU Merger Control Regulations and are enshrined in the UK through the Enterprise Act 2002
2These stem from the Treaty on the Functioning of the EU and implemented by the Competition Act 1998 (CA98) in the UK.
3The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Poole Hospital NHS Foundation Trust
4Heatherwood and Wexham Park Hospitals NHS Foundation Trust / Frimley Park Hospital NHS Foundation Trust
4 Healthcare Newsbrief The mostly likely scenarios where a Trust may fall foul of
competition rules include sharing sensitive information during a
collaboration with other Trusts and agreeing to share the market
during tenders for commissioner contracts.
“
“
It is imperative for NHS providers to
understand and be demonstrably
compliant with competition law in its
day-to-day activities and interaction with
competitors rather than just during major
transactions.
Often, breaches of competition law are discovered by the
CMA either through whistleblowers, third party complaints or
its own market intelligence. It is likely that Monitor is working
closely with the CMA to gather information and is supporting
the CMA in its investigations. The CMA has been given stronger
investigative powers than its predecessors and has made clear
that it intends to increase the use of these investigative powers
to uncover harmful practices.
The risk of non compliance for a Trust is potentially
catastrophic: Monitor may levy financial penalties of up to 10%
of a Trust’s annual turnover and directors engaging in the most
serious forms of anti-competitive practices may face civil and
criminal charges. The CMA has been vocal in its intention to
increase the use of penalties such as competition (director)
disqualification orders to deter anti-competitive behaviour.
5 Healthcare Newsbrief Practical steps Trusts can take to be competition law
compliant
A compliant approach needs to be embedded in an
organisation from the top down. Management and leaders must
set an example to the team that competition law simply has
to be accepted as part of the overall risk management, legal
obligations and licence condition compliance.
This can be achieved by having a comprehensive and
structured compliance training programme for the Board and
decision markers. It is noted that the CMA has previously
reduced penalties for organisations where they can
demonstrate that active steps have been taken to comply with
competition law, although it does not absolve an organisation
from its breach.
The next steps
Compliance with competition law is business critical. Breaches
of competition law attract serious consequences stretching
beyond a Trust’s balance sheet. The CMA’s emphasis on
cultivating a competition law compliant society is as relevant
to NHS providers as they are to multinational conglomerations.
Trusts must take note of this.
“
“
Compliance with behavioural competition law
Under the CA98, Trusts must not engage in anti-competitive
behaviours. The two types of anti-competitive behaviours are:
(a) Participating in anti-competitive agreements, decisions or
concerted practices, such as market sharing or bid rigging
(b) Engaging in a conduct which amounts to an abuse of
a dominant position in a market, for example, limiting or
restricting supply or innovation of healthcare to the prejudice of
patients.
Trusts are advised to take active steps
to educate their members of competition
law rules and implement an effective
compliance programme both to
demonstrate compliance to regulators and
to avoid breaching competition law.
Hempsons has developed a comprehensive competition
compliance programme and toolkit to help the NHS to be
competition law compliant. Contact Victoria Yuan
(v.yuan@hempsons.co.uk) or Lindsay Draffan
(l.draffan@hempsons.co.uk) for more information.
Victoria Yuan, Solicitor
e: v.yuan@hempsons.co.uk
t: 020 7484 7640
www.hempsons.co.uk@hempsonslegal
Hospital chains: unlocking hidden
value to improve patient outcomes
Specifically the review will consider:
• The arrangements which could enable local and non-geographical networks of hospitals or services to be established under a single leadership team
• A new framework for NHS providers who are certified as outstanding and the go-to people for turnaround projects and extended management responsibilities
• Management contracts so that outstanding leadership
teams can take on a more formal relationship with other
providers
• T
he extension of the buddying and mentoring schemes in
the special measures hospital programme
• Improving incentives for the best NHS hospital trusts to
take on turnaround projects and extended management
responsibilities.
“
“
The aim is not just to improve quality and
safety, but to develop 7-day services and
to centralise services where this will
improve outcomes.
The review is expected to produce a progress report in June
2014 and aims to submit its findings and recommendations to
the Secretary of State by end September 2014.
Hempsons has worked with clients to explore factors that may
facilitate or inhibit NHS hospital chains, and the organisational
models that may be appropriate for them. At first glance the
6 Healthcare Newsbrief foundation trust model may seem to run counter to the concept
of hospital chains. Potential inhibitors are:
• Localism – the membership model for most foundation
trusts is largely based on local constituencies
• Centralised management – foundation trusts are highly
restricted in their inability to delegate decision-making
beyond the board of directors
• Autonomy – each foundation trust is an independent
corporate body which is incapable of ownership or
direction by a third party
• Governance – a high performing foundation trust’s risk
rating may be sensitive to the distressed balance sheet
and performance metrics of a potential partner in a
hospital chain
• Competition – foundation trusts are treated as economic
entities for the purpose of merger law regulated by the
Competition and Markets Authority (CMA) under the
Enterprise Act and there is a low threshold for a change of
control that would trigger a merger inquiry by the CMA.
The traditional NHS model of corporate growth has been by
way of merger or acquisition between adjacent neighbours –
typically a large foundation trust acquires a smaller neighbour.
“
“
The Secretary of State has commissioned a review, led by
Sir David Dalton, into how leading NHS organisations can
establish hospital chains to expand their reach and deliver
more for patients.
But a foundation trust is likely to reach a
maximum size beyond which one or more
potential inhibitors will prevent it from
further growth by accretion of neighbours.
Hospital chains are likely to require innovative service and
organisational models. And in seeking standardisation of the
highest quality of care, there may be some loss of localism and
autonomy. NHS England’s Chief Executive Simon Stevens has
indicated that there is a future for smaller, local hospitals, but
that may be at the cost of losing local independence.
In the NHS context, the hidden value is likely to be the quality,
compassion and volume of care: a successful NHS organisation
will understand how to improve patient outcomes in another
hospital or service line, which (for whatever reason) are beyond
the reach of its current management. In a recent interview
with the HSJ (reported 27 May 2014) Sir David indentified the
requirement for a system – dubbed “credentialing” – to accredit
a list of excellent providers who would be the go to candidates
to take on ownership or management of challenged trusts.
There will not be a one-size fits all solution for hospital chains,
but potential organisational models for a successful NHS
provider (Trust A) to realise hidden value in a challenged NHS
provider (Trust B) by way of hospital chains will include:
• B
uddying arrangement – relatively informal sharing of
operational best practice, but Trust A does not take on
Trust B management functions
• Interim management contract – similar to buddying
arrangements, depending on the degree of formality. Trust
A would provide management support (which may include
a limited number of managers on secondment) but it
would not itself provide a whole management team for
Trust B
• M
anagement contract – a significantly different
arrangement from interim management. Trust A
would contract with Trust B to provide the Board level
management team to run it
• F
ranchise agreement - A franchise contract would require
Trust A to take full operational control of Trust Board to
accept financial risks, up to an agreed level. Trust B would
operate in association with Trust A’s brand, but there
7 Healthcare Newsbrief would not be a transfer of assets to Trust A and Trust B
would continue as a separate corporate body
• Acquisition - an outright acquisition by Trust A of Trust B.
This model would definitely constitute a merger situation,
but if Trust A and Trust B are not contiguous or close
to each other, there would be a low risk of substantive
competition issues regarding a reduction in patient choice
and competition.
And hospital chains are not just for a successful NHS provider
to take on a challenged NHS provider.
“
There is no reason why two successful
providers should not partner or merge
to establish a hospital chain. Looking
to the future, by doing so they might be
taking a big step towards setting up a
regional or even national accountable care
organisation (ACO) that will be well placed
to bid for outcomes based commissioning
contracts.
“
In the context of commercial takeovers and buyouts, the
purchaser’s aim is to extract profit by unlocking hidden value:
the purchaser achieves a return on investment because he or
she has seen value in a business that the current owner has not
been able to find or realise.
The top level management role of the hospital chain ACO
would be quality and financial assurance, potentially liberating
its provider units from the current national regulators, and so
achieving a new form of localism and autonomy.
Christian Dingwall, Partner
e: c.dingwall@hempsons.co.uk
t: 020 7484 7525
www.hempsons.co.uk@hempsonslegal
Restricting the persistent litigant
What right does Article 6 of ECHR confer?
Article 6 is often more commonly known as the right to a fair
trial. It provides that an individual is entitled to a “fair and
public hearing” in the determination of their civil rights or
obligations or criminal charges. In order for Article 6 to be
engaged there must be a real and genuine dispute over rights
and obligations that are recognised by domestic law.
Case Summary
The Claimant, Mr Nowak, was formerly employed as an
anaesthetic nurse by the second defendant, Guy’s & St
Thomas’ NHS Foundation Trust (‘the Trust’) and was registered
with the first defendant, the Nursing and Midwifery Council
(‘the NMC’).
Mr Nowak was dismissed by the Trust in January 2012 and
was subsequently the subject of disciplinary proceedings
before the NMC. His claim arose from alleged breaches of the
Data Protection Act and Protection from Harassment Act and
claims that he had suffered bullying and harassment at work,
which caused him to become ill and take sick leave.
The NMC were investigating allegations that he had
fraudulently claimed sick pay and participated in a training
programme without the Trust’s permission. Mr Nowak issued
proceedings in October 2012. He subsequently made no less
than eight unsuccessful applications, all of which were made
over a five month period and found to be wholly without merit.
Following failure to comply with an “Unless Order” made on
5 March 2013, Mr Nowak’s Claim Form was struck out on 22
8 Healthcare Newsbrief March 2013. His application to set aside the Order of 5 March
2013 was unsuccessful. Even after the striking out of his
claim, Mr Nowak made a number of subsequent applications
to the Court, all of which were also dismissed without merit.
“
Grounds for making a Restraint Order
“
The High Court confirmed in July last year in the case
of Przemyslaw Nowak v Nursing and Midwifery Council
& Guys and St Thomas’ NHS Foundation Trust [2013]
EWHC 1932 (QB) that the civil rights of a litigant in person
could be restrained without infringing upon his Article 6
rights under the European Convention on Human Rights
(‘ECHR’).
Judicial findings that cases which have
been struck out are ‘totally without merit’
can open the door to a restraint order.
Having ruled that a number of applications brought by Mr
Nowak were totally without merit, Mr Justice Leggatt indicated
that he was minded to make a civil restraint order. He
considered whether a civil restraint order was appropriate in
this case in accordance with Rule 2.3(1) of the Civil Procedure
Rules. The rules prescribe that one of three types of civil
restraint order may be made once the criteria set out in the
Practice Directions have been met; (i) a limited restraint order,
(ii) an extended restraint order, or (iii) general civil restraint
order.
The rationale for making such order is that a litigant who
makes claims or applications which have absolutely no merit
harms the administration of justice by wasting the limited time
and resources of the Courts. Coupled with this, the right of
access to the Court is not absolute. Consequently Mr Justice
Leggatt found that it is possible to impose restrictions on
would-be litigants so long as such restrictions are not so wide
ranging as to impair the rights protected by the ECHR and so
long as the principle of proportionality is applied.
Mr Justice Leggatt considered whether making an extended
civil restraint order would impinge upon Mr Nowak’s Article 6
rights, as he argued.
“
In making his order, Mr Justice Leggatt determined that a wider
order was required from the default extended restraint order and
so directed that Mr Nowak obtain permission from the Court
before issuing any claim or making any application against
either defendant in relation to any matter or against either party
in relation to any matter arising from the instant case.
The Court subsequently heard Mr Nowak’s appeal against a
procedural decision of the NMC in which he was unsuccessful
in his efforts.
9 Healthcare Newsbrief Key points
This is a helpful case in reinforcing the contention that
restrictions on access to the Courts by vexatious or persistent
litigants are compatible with Article 6.
Where a party to litigation issues a number
of applications which are found to be
totally without merit, particularly where
the behaviour is persistent, a civil restraint
order may be made restricting their access
to the Courts, although each case will turn
on their particular facts.
“
Decision
Mr Justice Leggatt decided that the Court had to satisfy itself
of three questions before an extended civil restraint order
could be made;
1.Satisfying the first ground set out in the Practice
Direction, the Court found that the litigant had
“persistently issued claims or made applications which
are totally without merit”. Bhanmjee v Forsdick held
that persistence in this context has an element of the
“irrational refusal to take “no” for an answer”.
2.Next the Court considered whether such an order was
necessary to protect the Court’s process from abuse. To
do this, the Judge undertook a risk assessment of
the case.
3.Having concluded there was a real risk of a further abuse
of the Court’s process, the proportionality of making such
an order was considered as the final ground and the least
restrictive order necessary was applied.
Ultimately this case shows that whilst the Court recognises that
careful consideration must be given not to fetter a person’s right
to a fair trial, such right is not absolute. Essentially the making
of a civil restraint order requires careful consideration of risk,
necessity and proportionality. This case demonstrates that the
Court is willing to take such a measure if the appropriate criteria
are met.
Sharon Cooney, Senior Solicitor
e: s.cooney@hempsons.co.uk
t: 020 7484 7519
www.hempsons.co.uk@hempsonslegal
CCG governance lessons learned
CCG governance is complex and unique to CCGs. CCGs are
structured differently from other organisations operating within
- and outside - the NHS. CCGs are membership organisations
but, unlike Foundation Trusts (FTs), their members are not
confined to individuals. CCGs’ members are their local GP
practices, which may be single-handed GPs, partnerships
or companies. Whereas NHS Trusts, FTs, Special Health
Authorities and NHS England (and previously Primary Care
Trusts (PCTs) and Strategic Health Authorities) all have Boards
with responsibility for exercising (or delegating) their functions,
CCGs do not. CCGs have Governing Bodies comprising
clinicians, lay members and others (as set out in their
Constitutions), which may have responsibility for exercising (or
delegating) some, all or none of their CCGs’ commissioning
functions.
Delegation
In our experience, the majority of CCGs have delegated their
commissioning functions to their Governing Bodies. Some
lawyers are taking a restrictive approach to the ability of
Governing Bodies to delegate those functions that have been
delegated to them by CCGs. In our view, Governing Bodies
have wide-ranging powers to delegate both their statutory
functions and the functions that have been delegated to them,
provided that CCG Constitutions are drafted appropriately.
Some CCGs have delegated their commissioning functions
to committees (of the CCGs) and not their Governing Bodies.
CCG Committees have different powers of delegation from
CCG Governing Bodies, and need to ensure that their
delegations are both lawful and in keeping with their powers
as set out in their CCGs’ Constitutions.
10 Healthcare Newsbrief “
“
It has been just over a year since the Health and
Social Care Act 2012 gave responsibility to CCGs
for commissioning health care services for their local
populations and in this article we look at some of the key
governance issues about which we have advised our CCG
clients over the past year.
Joint working
CCGs do not currently have the power to establish joint
committees (as PCTs did) with other CCGs. It has been
recognised that this is a gap in the legislation. Working with
clients over the past year, we have devised a governance
structure that enables CCGs to establish committees (known
as “committees-in-common”) that can make decisions on
behalf of two or more CCGs. Where CCGs wish to work
together to deliver service change across more than one CCG
area,
it is crucial that they can take joint
decisions on matters such as how they will
engage with members of the public and
local stakeholders
and, ultimately, which service change proposal is to
be implemented. The committee-in-common structure
enables CCGs to make such joint decisions – and has been
implemented by a number of CCGs working together to
achieve a large-scale service reconfiguration. It is a complex
area of governance; all CCGs involved need to work together
to implement the structure.
The legislation is to be amended to give CCGs the power to
form joint committees. It is important to note that this power
will enable two or more CCGs to set up a joint committee,
and not their Governing Bodies. Any joint committee that
is established using this new power will therefore, only, be
able to exercise functions of the CCGs i.e. functions that
have not been delegated to the CCGs’ Governing Bodies or
to committees or sub-committees of the CCGs. As, in our
experience, the majority of CCGs have delegated most of their
functions to their Governing Bodies, this new power will not
facilitate joint working between CCGs in the way that many
CCGs are expecting. CCGs may wish to consider re-visiting
their governance structure (as set out in their Constitutions),
in order to be able to take advantage of the new power, once
it comes into force. Subject to the parliamentary approval
process, the power for CCGs to establish joint committees will
come into force from 1 October 2014.
Conflicts of Interest
When the government introduced its major reforms and
proposed the creation of CCGs, it was with the intention of
getting clinicians more directly involved in the commissioning
process, in order to improve outcomes. As a result, many of
the individuals sitting on CCG Governing Bodies and executive
committees are local GPs (and other clinicians). In those
roles, the GPs are responsible for commissioning services in
the local community. The same GPs may, however, also be
responsible for the provision of services in the community. This
creates the potential for conflicts of interest to arise, which
must be managed appropriately to protect the integrity of the
commissioning system.
CCGs need to ensure that they have robust processes in place
to manage conflicts of interest so that they do not affect – and
are not perceived to affect – decision-making processes. CCGs
need to take steps to manage conflicts of interest:
•In order to comply with the law
•To ensure commissioning decisions can withstand
scrutiny and challenge
• So that the public and local stakeholders can have
confidence in the commissioning system
• T
o protect their reputations and the reputations of those
working for them
“
“
The scope for actual and potential conflicts
of interest to arise will significantly increase
as CCGs take on responsibility for cocommissioning primary care with NHS
England.
11 Healthcare Newsbrief CCGs need to ensure that:
•They have processes in place to secure that their
members, employees, Governing Body members
and committee members declare actual and potential
conflicts of interest and these are appropriately recorded
•Their Governing Body or an appropriate committee
can be quorate for the purposes of making decisions in
relation to procurements
• There is an appropriate level of clinical input into
decision-making – with arrangements in place to enable
individuals with relevant clinical expertise to be coopted onto the Governing Body or to become members
of a committee where required (and permitted by their
Constitution)
• They create a record, in relation to each contract for
health care services that they enter into, of how they
managed any conflict of interest that arose (as required
by legislation).
Next steps
We recommend that CCGs review their Constitutions to
ensure that these give them the maximum flexibility to
delegate their functions, within their statutory powers. Some
CCGs are purporting to exercise their powers in ways that
may not be permitted by their Constitutions, leaving their
decisions vulnerable to challenge. CCGs should also review
their processes for managing conflicts of interest (both in their
Constitutions and their conflict of interest policies).
Carol Mosedale, Solicitor
e: c.mosedale@hempsons.co.uk
t: 01423 724007
www.hempsons.co.uk@hempsonslegal
Monitor’s latest procurement
guidance published
The guidance steers commissioners through the principles
of fair procurement, avoiding anti-competitive behaviour and
the protection of patient choice. In addition, Monitor has
also published revised enforcement guidance outlining its
investigation and enforcement processes for alleged breaches
of the s.75 regulations.
The s.75 Regulations create a framework for decision making
that requires the commissioner to honour patient choice and
to secure high quality, efficient NHS health care services that
meet patients’ needs.
The guidance is ‘principles based’ and provides examples
of practical considerations that commissioners need to
take into account. If commissioners can demonstrate that
they have considered these and have applied the relevant
elements of the guidance when making their decisions, this
will be indicative of compliance with the s.75 Regulations. It
is recognised that each commissioning decision needs to be
made on a ‘case by case’ basis to meet the needs of patients
and local populations by providing safe, efficient, joined up
and value for money health care.
“
There remains a debate on what is meant
in the guidance and s.75 Regulations by
the expression “single capable provider”
and commissioners will have to make a
decision on a case by case basis as to
whether they are required or whether it is
appropriate to put services out to tender.
“
“
12 Healthcare Newsbrief Commissioners have to apply the s.75 Regulations to
their own activities. They also have ultimate responsibility
for ensuring that any third parties (e.g. local authorities/
commissioning support units) engaged by them, to provide
support or advice, also adhere to the principles of the s.75
Regulations. Commissioners may also consider whether it is
appropriate to incorporate s.75 Regulations’ principles into
any agreement for the provision of commissioning
support services.
“
Monitor has published its final substantive guidance on
the provisions of the NHS (Procurement, Patient Choice
and Competition) (No.2) Regulations 2013 (the “s.75
Regulations”). The s.75 Regulations apply to CCGs and
NHS England.
It is clear that where appropriate, Monitor
intends for commissioners to comply with
the s.75 Regulations without incurring
additional costs or management time.
For example, where the commissioner has prepared joint
strategic needs assessments and joint health and wellbeing
strategies, these can be used to show that it has considered
the current and future needs of the population and to
demonstrate compliance with Regulation 2 – the procurement
objective.
The guidance addresses commissioners’ objectives and each
regulation in detail. The guidance reiterates that it is advisable
for commissioners to maintain a robust paper trail to evidence
how each element of each commissioning decision is arrived
at. Monitor suggests that when making commissioning
decisions, commissioners ask themselves the following
questions (which are designed to ensure that such decisions
are fair, transparent and in patients’ best interests).
What are the needs of the health care service users?
2.How good are current services? How can the services be
improved?
3.How can the commissioner ensure that the services are
provided in a more joined-up way?
4.Could services be improved by giving patients a choice
of provider to and/or by enabling providers to compete?
5.How can the commissioner identify the most capable
provider or providers of the services?
6.Are the commissioner’s actions transparent? Do people
know what decisions the commissioner is taking and the
reasons why they are being taken?
7.How can the commissioner make sure that providers
have a fair opportunity to express their interest in
providing services?
8.Are there any conflicts between the interests of those
commissioning the services and of those (potentially)
providing them?
9.Are the commissioner’s actions proportionate? Do they
reflect the value, complexity and clinical risk associated
with the services in question and are they consistent with
commissioning priorities?
10.Is the commissioner doing anything that removes or
materially reduces the incentives on providers to provide
high quality services or improvements to those services?
Are such actions necessary and required in order to
achieve benefits to patients?
11.Does the decision endanger patient choice under the
NHS constitution?
13 Healthcare Newsbrief Monitor may only exercise its investigative powers in
relation to complaints received from third parties although it
may commence investigations independently in relation to
suspected anti-competitive behaviour.
“
1.
“
When investigating either third party
complaints or alleged anti-competitive
behaviour, Monitor may take formal or
informal action.
Formal actions include powers to require information,
declare an arrangement invalid, direct commissioners to put
in place certain measures to prevent breaches and accept
undertakings from a commissioner. Monitor has stated that it
will take enforcement action where doing so is proportionate
both in terms of severity of the breach and cost to patient
interests or restrictions on those interests.
It is clear from the guidance that in enforcing the s.75
Regulations, Monitor will assess each matter on a case by
case basis. Commissioners are therefore advised to take into
account the considerations prescribed in the guidance but
also to take a holistic approach.
We have worked closely with Monitor since its inception
and regularly advise commissioners and providers on the
application of s.75 Regulations and other procurement
matters. Should you require advice on the s.75 Regulations
or any other procurement matter, please do not hesitate to
contact us.
Victoria Yuan, Solicitor
e: v.yuan@hempsons.co.uk
t: 020 7484 7640
Oliver Crich, Solicitor
e: o.crich@hempsons.co.uk
www.hempsons.co.uk@hempsonslegal
Is saying sorry good enough?
He aims to transform this culture by creating greater
transparency in hospitals whilst supporting and encouraging
staff to do the right thing. The NHSLA released guidance
following the suggestions which emphasises this message by
reassuring clinicians that saying sorry is not an admission of
liability, but is the right thing to do.
There are growing concerns about patient welfare and
lack of transparency when mistakes are made. At the Mid
Staffordshire Hospital a high profile enquiry found that
1,200 patients had died unnecessarily and many more were
“failed by a system which ignored the warning signs and put
corporate self-interest and cost control ahead of patients
and their safety.” A further 11 more Trusts have since been
placed in to special measures, after an official investigation
highlighted concerns around high mortality rates.
The NHSLA guidance recommends that a verbal apology
should be communicated as soon as staff become aware of
an incident, followed shortly by a written apology.
Apologies should be provided by an appropriately nominated
person. Who this will be will depend on the individual case.
Important factors will be relationship to the patient, seniority
and experience.
14 Healthcare Newsbrief “
Catherine Dixon, Chief Executive of the NHS Litigation
Authority, said:
“In cases where people perhaps bring a
claim out of frustration, because they don’t
feel that they’ve been given an explanation
or that their complaints have been heard,
an apology may make them less likely to
pursue an action”.
“We actively support organisations being
open, transparent and candid with their
patients. We have seen some cases where
that hasn’t happened in the NHS. It’s
important that we create and support the
right culture and it can win back
people’s trust.”
“
UK Health Secretary Jeremy Hunt has said that doctors
and nurses must ‘say sorry’ when mistakes are made in
order to end the culture of defensiveness in parts of the
NHS.
The NHSLA guidance suggests that a local policy should
explain the process of communication with patients. This
would help equip staff with the necessary confidence to
effectively communicate with patients. Hempsons has drafted
a number of policies around patient care and communication
procedures following incidents, contact us to find out more
Sajeda Adam, Solicitor
e: s.adam@hempsons.co.uk
t: 0161 234 2427
Is the stethoscope becoming obsolete?
Point of care ultrasound devices can scan for trauma, reduce
complications, assist in emergency procedures and improve
diagnostic accuracy. A number of air ambulances in the
UK now carry and use portable ultrasound devices and the
feedback is positive.
A search of reported clinical negligence cases and literature
reveals no cases of inappropriate diagnosis arising from the
use of a stethoscope. In fact, the largest concern seems to be
the risk of infection due to stethoscope use. Claims relating
to the incorrect interpretation of imaging are however not
infrequent and image interpretation is what is required when
using point of care ultrasound devices.
Images have to be interpreted accurately and anomalies
can be missed even by a well trained and experienced eye.
Furthermore, problems might arise with the performance and
suitability of the device itself. Will the screen on a handheld
device be big enough for diagnostic purposes?
Clinicians adopting their use will need to be able to evidence
the training they have received in using these devices and
will have to be used where circumstances deem their use
appropriate. They should not be used to replace a more
thorough examination where such an examination is required.
Detailed maintenance records will need to be kept as well so
that it can be demonstrated that the device was fit for purpose
when used.
“
The journal of the World Heart Federation suggests that
the stethoscope could be experiencing its final days due
to the rapid advent of point of care ultrasound devices
that are becoming smaller, increasingly accurate and less
expensive.
“
Whilst a stethoscope usually belongs
to the individual doctor or healthcare
professional handheld ultrasound devices
remain costly.
The stethoscope remains a powerful diagnostic tool in the
correct hands. Over time and with appropriate training the
same will be said for point of care ultrasound devices. In the
interim the risks and benefits of adopting the new technology
need to be carefully balanced. The stethoscope survives for
the time being at least.
Lucy Cannon, Solicitor
e: l.cannon@hempsons.co.uk
t: 01423 724037
Awareness of risks
Point of care ultrasound devices are being used more
frequently.
“
“
Consideration needs to be given as to
whether images taken can be stored and
married up with the medical record for the
patient with other scans and radiology.
15 Healthcare Newsbrief www.hempsons.co.uk@hempsonslegal
Upcoming events
Hempsons DoLS
Seminar
Hempsons Employment Seminar:
There may be trouble ahead…!
Trustee Training
Workshops
25 June 2014
June/ July 2014
September/ October 2014
Hempsons Manchester
All Hempsons offices
All Hempsons offices
Understand the implications of
These seminars will help you navigate some of the
Trustee training workshops aimed at charity
the Supreme Court judgment in ‘Cheshire West’ and
more troublesome issues faced by HR practitioners
trustees seeking to understand governance and
how Deprivation of Liberty was defined and what
on a daily basis, topics include TUPE and
their role; whilst demonstrating compliance with
this means for healthcare professionals.
grievances.
the requirement under SORP to receive ongoing
training.
Hempsons gives you certainty in an ever changing legal landscape. Our
sector knowledge means we can quickly get to grips with the key issues
facing you and your organisation
• Charity Law
• Clinical Negligence
• Commissioning healthcare
•Commercial
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• Competition law
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• Foundation Trusts
• Health and Safety
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• IP, Media & Technology
• Healthcare, Mental Health and Medical Law
•Practitioners
• Private Client
•Procurement
• Projects (LIFT/PFI/PPP)
• Real Estate
• Social Enterprises
About Hempsons
Hempsons is a leading national law firm specialising
in health and social care, practitioners, real estate,
charities and social enterprise sectors across the UK.
Our highly experienced lawyers provide a number
of cost-effective solutions for a range of private and
public healthcare organisations, from employment law
through to clinical negligence.
We aim to achieve our clients’ objectives and provide
support down to the last detail whether the issue is big
or small, challenging or simple. We work with over 200
NHS organisations including NHS Trusts, Foundation
Trusts and commissioning bodies, with services
delivered by a team of over 130 specialist healthcare
lawyers. A significant number of our employees hold
dual qualifications, combining medical, dental or
nursing qualifications with their legal credentials.
You can find a list of our employees including their
specialisms online.
www.hempsons.co.uk
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I
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