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Independent healthcare in-house lawyers forum November 2016, London
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Transcript of Independent healthcare in-house lawyers forum
Independent healthcare in-house lawyers forumNovember 2016, London
New models of care update
Jonathan Hayden and Peter Ware
Three “framework” documents
• Multi-specialty Community Provider (MCP)emerging care model and contract framework –published end July 2016
• Integrated Primary and Acute Care Systems (PACS)care model and business model – publishedSeptember 2016
• Enhanced Health in Care Homes (EHCH) framework– released September 2016 (alongside the PACSone)
Three “framework” documents
• Frameworks are lengthy documents (about 110pages in total)
• These slides/notes are only extracts/summariesfrom the “frameworks”
• Although not summarised below, the frameworkscontain lots of useful examples of work andactivities being undertaken by the vanguards
MCP framework
• MCP framework aims to define what being an MCPmeans by assembling features from the 14 MCPvanguards into a common framework
• Noted that the care model will evolve andframework may be adopted / adapted
• Framework is not definitive policy oncommissioning and contracting for an MCP
MCP framework• MCP combines the delivery of primary care and
community-based health and care services• Place-based model of care and serves the whole
population• MCP covers the registered lists of the participating
primary medical practices plus any unregisteredpopulation
• All 14 vanguards serve a minimum population of atleast c100,000 (some much larger)
MCP framework• Framework describes how the MCP care model operates
at four levels:– Whole population level– Urgent care needs– Ongoing care needs– Highest needs and costs
• “As long as it has sufficient decision-making rights todeploy that budget flexibly, the MCP can reshape thelocal care delivery system around what really worksbest for different groups of patients”
MCP framework
• Related sections on– Reducing future demand– Creating accessible and responsive urgent care (see
the eight commissioning standards on p13)– Integrating primary and community based care for
people with ongoing needs (inc links to EnhancedHealth in Care Homes, Integrated PersonalCommissioning)
– Implementing the “extentivist” care model
MCP framework
• Ten “essential jobs in creating an MCP” areoutlined in the framework (p7)
• Summary of key differences between an MCP and aPACS– Scope – PACS also provides most / all hospital
services– Scale – Min MCP population likely to be 100k,
whereas PACS likely to be 250k
MCP framework
• Framework explains how a MCP should (forexample):– Take account of the JSNA– Create integrated datasets drawn from
interoperable health and care records– Use actuarial approaches to model risk profiles of
populations– Rely on high quality business intelligence systems
MCP framework
• A MCP should (continued…)– Stratify risk, segment the population and understand
sub-groups with the greatest needs– Adopt / adapt the NHS Rightcare method of
understanding unwarranted variations in outcomesetc.
– Use and join-up data safely
MCP framework
• Acknowledgement that “an MCP may start off as aloose coalition, but sooner or later it has to beestablished on a sound legal footing undercontract”
• Three broad visions emerging:– Virtual– Partially integrated– Fully integrated
MCP framework
• Virtual– Individual providers and commissioning contracts are
bound together by an alliance agreement
• Partially integrated– Contract covers all services other than primary
medical, supported by contractual arrangementsbetween the MCP and GPs to achieve operationalintegration
MCP framework
• Fully integrated– Single whole population budget across all primary
medical and community care services
• MCP contract being developed to cover thepartially integrated and fully integrated options
MCP framework
• MCP contract– Streamlined hybrid of the NHS Standard Contract
and a contract for primary medical services– Threefold aims when developing the contract:
i) increase flexibility for the provider, ii) focusbetter on outcomes, and iii) to simplify
– Contract duration could be 10-15 years, probablywith early break option
– Contract will provide for some ongoing adaptation
MCP framework
• MCP contract– Payment comprising three parts: i) whole population
budget, ii) performance element replacing CQUINand QOF, iii) gain/risk share for acute activity
– Could (in theory at least) be held by range ofentities
– GPs wont be compelled to leave GMS, PMS etc.
• NHSE is working with six MCP sites to shape anddevelop the contract
MCP framework
• Organisational form– Capable of bearing financial risk– Clear governance and accountability arrangements– NHSI and CQC considering approach to oversight– Issues being explored:
Pensions Insurance / CNST VAT
MCP framework
• MCP’s relationship with GPs / primary medicalproviders could take various forms:– Partners/shareholders– Subcontractors– Employees
• Considering option to “suspend” GMS/PMScontracts for participating practices
MCP framework
• Role of commissioner– Acknowledgement that “the new models of
accountable care will move the boundary betweenwhat is commissioning and what is provision”
• Managing conflicts of interests• Consultation• Procurement
PACS framework
• MCPs and PACS are similar but different in scopeand scale
• PACS may, in particular, have links with an AcuteCare Collaboration model
• Similar to MCPs there are four levels at which thePACS will operate: population, urgent care,ongoing care needs, and complex health needs
PACS framework
• Core elements of the PACS care model– Prevention and population health management
Building shared care records and business intelligencesystems
Tailoring services based on population segmentation Better population health through community
engagement Supporting self-care and patient activation Linking people to community assets and other public
services
PACS framework
• Urgent care needs – integrated access and crisisresponse teams– Proactive approach to urgent care– Joined-up crisis response services– Integrated access to unplanned, urgent and
emergency care services
PACS framework
• Ongoing care needs – enhanced primary andcommunity care– Scaled up and enhanced primary and community
care teams– Multi-disciplinary teams for service users with
complex needs– Integrated access to specialist advice and treatment– Ongoing care in the community, enabled by
technology
PACS framework
• Highest care needs – coordinated community-basedand inpatient care– Better care for patients with complex needs and
high costs– A new model of coordinated in-patient care– Rapid discharge and re-integration into community
based care
PACS framework
• Options for commissioning and providing a PACS– Noted that the challenges are similar to those for
MCPs, but the scale of scope of a PACS may bringdistinct challenges
– Unlike an MCP, a PACS will include acute servicesand tertiary / specialised services could also be inscope
PACS framework• Role of commissioners
– Similar to MCPs, it is noted that a PACS may“redefine the roles of commissioner and provider”
– NHSE is “working with a number of vanguards toestablish which activities must always remain withthe CCG (or other commissioners) and whichactivities an MCP or PACS would perform undercontract”
– Commissioners will retain a strategic role
• Consultation, procurement etc.
PACS framework
• Three broad versions of a PACS (similar to MCPs)– Virtual – alliance arrangement overlaying
“traditional” contracts– Partially-integrated – all services other than primary
medical are procured under a single contract, withthe provider required to work with primary careproviders
– Fully-integrated – single whole-population budget forthe full range of services in scope
PACS framework
• Organisational form– Options are, in theory, the same as for an MCP– Subject to NHSE / CQC joint assurance process
• Like for MCPs, pensions, clinical negligence cover,VAT etc. are all relevant issues for PACS (there’salso mention of investigation of how parentcompany guarantees may be used)
PACS framework
• PACS’ relationship with GPs / primary medicalproviders (same as for MCPs)– Partners/shareholders– Subcontractors– Employees
• PACS contract – substantially similar to the MCPcontract, but reflecting any learnings from the MCPcontract, so to be developed later - “by Summer2017”
PACS framework
• PACS contract “will be of longer duration thanthose that are typically offered to NHS providers atpresent but with an initial early break-point”
• Specification will be a mix of national/mandatedand local service requirements
• Fully-integrated PACS will receive a single budget:whole population budget (incl performanceelement replacing QOF and CQUIN) but unlikelythat PACS need same risk/gain share as for MCPs
EHCH framework
• EHCH to be a core element of the MCP and PACSmodels
• Model aims to overcome barriers:– Care– Financial– Organisational
EHCH framework
• EHCH model seeks to overcome these challenges byensuring:– Access to enhanced primary care and specialist
services– Alignment of budgets and incentives– Working environment optimised for integrated teams– People maintain independence as far as possible– Health and social care commissioned in a
coordinated manner
EHCH framework
• EHCH vanguards identified the following as criticalto success:– Person-centered care– Co-production e.g. with local government, the
community and voluntary and care homes sectors– Focus on quality as the driving factor for change– Strong leadership and joint shared vision (and
recognising cultural differences betweenorganisations)
EHCH framework
• Footprint of an EHCH?
“… all of the care homes (residential and nursing) thatare situated in the planning footprint that chooses toimplement the EHCH model, be it a sustainability andtransformation plan (STP) area, a clinicalcommissioning group (CCG), a local authority or an MCPor PACS”
EHCH framework
• The EHCH framework “draws on both the ‘Istatements’ (published by the ‘Think Local, ActPersonal’ (TLAP) partnership that spans the healthand social care sector) and the ’My Home Life’initiative (that promotes quality of life and deliverspositive change in care homes for older people)”
EHCH framework
• The EHCH framework describes– Seven core care elements of the EHCH model and
how they can be commissioned to deliver joined-upservices
– The fully mature EHCH model
EHCH framework
• Seven care elements (and 18 sub-elements):– enhanced primary care support– multi-disciplinary (MDT) support including coordinated
health and social care– re-ablement and rehabilitation– high quality end-of-life care and dementia care– joined-up commissioning and collaboration between
health and social care– workforce development– data, IT and technology
EHCH framework
• The Framework also includes a useful table highlightingfor each care element and sub-element whether it is“core” or “enhanced” and the indicative pace ofimplementation (starting from <1 year, and up to 1-5years)
• Self-assessment framework to be released to help localareas assess themselves against the framework
• At Annex 2 there are some “low cost, high impactideas” – e.g. using NHS secure mail
EHCH framework
• Organisational form“Unlike with MCPs and PACSs, however, implementing theEHCH care model does not involve the creation of a singlelead provider; nor are we expecting care home providers tomerge with an MCP or a PACS in a new organisational form.Rather, care home providers may, if they wish, enter into aformal agreement with an MCP or PACS, or existingcommissioners and providers, to formalise theircommitment to whole-system, partnership working.”
Procurement• Procurement
– The guidance for MCPs makes it clear that there areprocurement obligations in particular: Public Contracts Regulations 2015 – “the Light Touch
Regime”; and the National Health Service (Procurement, Patient
Choice and Competition) (No. 2) Regulations 2013.
– Note new guidance from DH on interaction betweenthe two.
Joint commissioning
• Clear focus in the frameworks on the need forcoordinated health and social care commissioning
• Useful to have high-level understanding of s75partnership arrangements and scope for jointcommissioning
Legislative Background
• National Health Service Act 2006– Local authorities and NHS bodies can enter into
partnerships– Must lead to an improvement in the way their
functions are exercised
• Health and Social Care Act 2012– Duty to consider Joint Health and Well-being
strategy– Duty to encourage integrated working
Prescribed Functions
• Set out in the NHS Bodies and Local Authorities(Partnerships, Care Trusts, Public Health and LocalHealthwatch) Regulations 2012:– NHS functions (Regulation 5)
e.g. health services, after care for people leavinghospital with mental health conditions
– Local authority functions (Regulation 6)e.g. social services and community care, youthservices
Typical Partnerships
• Typical partnership services include:
– Domiciliary care services– Mental health services– Community rehabilitation services– Drug and alcohol treatment services
Conditions to Section 75arrangements• The power to enter into section 75 agreements is
conditional on the following:
– Arrangements likely to lead to improvement in theway functions exercised
– Partners have jointly consulted people affected byarrangements
Powers permit:
• NHS Act provides flexibility to:
– Form a pooled budget– Lead commissioning– Integrated provision
Practical issues
• Charging for services– Where NHS lead, agree procedure for income
collection– Local authority may still want to collect charges– LA can delegate function to NHS Body– RISK when LA contribution to pooled fund dependent
on income from service users (DoH’s Integrated CareNetwork guidance)
• Arrangements for VAT
Practical issues
• Consultation– Must ensure obligations to consult are discharged– If NHS Trust enters into pooled fund, consent from
relevant CCG is required– Service users must understand changes
Practical issues
• Transfers of Staff– TUPE may apply– Indemnity prior to transfer date– Alternative to TUPE- secondments of staff– Pension- Fair Deal Policy and Best Value Authorities
Staff Transfers Direction 2007
Practical issues
• Accountability and governance– Retained responsibility– Management and monitoring essential– Risks appropriately apportioned to partners– Take responsibility for management of partnership– Joint Committee– Complaint handling– Information Sharing Protocol
Practical issues
• Procurement– Does the procurement regime apply to S75
arrangements?– Public Contract Regulations 2015- Light Touch
Regime– the National Health Service (Procurement, Patient Choice
and Competition) (No. 2) Regulations 2013
– Responsibility for process/ deal with challenges whois responsible?
Questions & Answers
Contact us…
Jonathan Hayden
T: 0121 237 4551
Peter Ware
T: 0115 976 6242
Does TUPE apply in shortterm/caretaker arrangements?
Gemma Steele, Browne Jacobson
Brief Recap – what is TUPE?
TUPE applies to a "relevant transfer", which means either or both of the following:
• Business Transfer - A transfer of a business, undertaking or part of a business or undertakingwhere there is a transfer of an economic entity that retains its identity. This involves threeelements:
– an economic entity;– a transfer of that economic entity; and– the economic entity retaining its identity following the transfer.
• Service provision change - A client engaging a contractor to do work on its behalf, reassigningsuch a contract or bringing the work "in-house". This can, therefore, encompass an initial (orfirst generation) outsourcing, a subsequent (or second generation) outsourcing or an in-sourcing. However, the supply of goods and "one-off buying-in of services" are excluded.Activities carried on after a change in service provider must be "fundamentally or essentiallythe same" as those carried on before it.
What is a service provision change?
3 conditions must be met:
• Organised grouping of resources which must have, asits principal purpose, the provision of services to aparticular client
• Not a single specific or task of a short term duration
• Not wholly or mainly the supply of goods
2014 Regs: service provision change
Transfers on or after 31 January 2014:
• Activities: “fundamentally or essentially thesame”
• Change reflects existing case law on themeaning of ‘activities’
Caretaker arrangements
• If an APMS or GMS contract is terminated at short notice, acaretaker provider is often appointed as an interim measure whilstthe commissioner undertakes a full procurement exercise
• A caretaker arrangement enables continuity of care for thepatients to be maintained ahead of a more permanent solution andis often where timescales mean that patient consultation is notpossible.
• Caretaker arrangements can be anything from three months to oneyear depending on the size of the list and the extent of theprocurement exercise.
• But will TUPE apply?
Is it a service provision change?
Yes - The activities (the GMS/APMS contract) ceasesto be carried out by a contractor (the old provider)on a client's (the commissioner’s) behalf and arereassigned to a subsequent contractor (the caretakerprovider) to carry out on the client's (thecommissioner’s) behalf.
Short term exemption?
In order for there to be a service provision change,the client (commissioner) must intend that therelevant activities will, following the serviceprovision change, be carried out by the transferee(caretaker provider) other than in connection with asingle specific event or task of short-term duration(regulation 3(3)(a)(ii)).
Case law
In Robert Sage t/a Prestige Nursing Care vO'Connell and others UKEAT/0336/12, the EAT heldthat for this exemption to apply, a client(commissioner) must have more than a "hope andwish" that a particular event or task will be short-term. The Employment Tribunal will focus on client'sintention at the time of a transfer and whether isintended to be short term.
ICTS UK Ltd v Mahdi and othersUKEAT/0133/15• Subsequent events can be relevant in deciding
whether it was intended that the task be shortterm, and should be taken into account.
• Although the intention was short term security of avacant site pending building work, by the time ofthe ET no planning permission had been granted forany major building project at the site and nobuilding work had taken place. The ET wereentitled to take these factors into account.
What does this mean forcaretaker arrangement?• The client's (the commissioner’s) intention as to whether the task
will genuinely be of short term nature is crucial. So, for example,if it is envisaged that the APMS/GMS contract will ultimately beawarded to the caretaker provider following a full procurementexercise, it is going to be very hard to convince an EmploymentTribunal that the caretaker arrangement was genuinely intendedto be of a short term nature.
• Each case is very dependent on its facts and legal advice should besought on the particular circumstances.
• However, recent case law proves that it would be dangerous toassume TUPE never applies in a caretaker scenario.
• Indemnities!
Inquests and private health:why should I care?
Andrew Peel, Browne Jacobson LLP2 November 2016
Introduction• 1. Powers of the Coroner• 2. Employment• 3. System failure v system error• 4. The CQC• 5. PFDs• 6. How can PFDs be avoided?• 7. Insurers• 8. Other investigations• 9. Financial impact• 10. DoLS and inquests• 11. Legal support during the inquest• 12. Questions
What the Coroner can’t do• The Coroner cannot apportion blame
• Fact finding exercise– It is not a trial / purpose is not to apportion blame but…– It may feel like it during the inquest…!
What the Coroner can doUpon reporting of a death the Coroner can:- Certify the death as due to natural causes without a post-mortem- Certify as due to natural causes after a post-mortem- Initiate an investigation into the death
When must the Coroner investigate a death?- Death is violent or unnatural including death due to self harm- The cause is unknown- Death in custody or state detention
Discontinuance of investigation- Where post mortem reveals cause of death
What the Coroner can do (2)
• Consider four key questions- Who the deceased was?- How, when and where the deceaseddied?
• Make people PIPs (Properly Interested Persons)- Interest in outcome of inquest- Ask questions- Where an employee is named as a PIP or a witness, care providers should
consider how they can support the member of staff
What the Coroner can do (3)• Summons witnesses
- In most instances, the Coroner will request witness’ voluntary attendancethe inquest, although witnesses can be compelled by way of a formalsummons- Failure to attend after receiving a formal summons is a criminal offence
• Order disclosure of documentation- Coroner gives notice of request for disclosure- Powers of the Coroner to require evidence to be given or produced
(documents of other items of inspection)- Sanction is financial rather than imprisonable (max £1,000)
What the Coroner can do (4)• Prevention of Future Deaths (PFD)- Mandatory where the evidence gives rise to a concern that circumstances
exist which create a risk that other deaths will occur in the future- Can be issued at the inquest or any other point during the investigation- Not just the person who receives the PFD who sees it:
- Chief Coroner- All interested persons- Anyone the Coroner feels may find it useful – CQC- Published on the internet- Annual report to Parliament
So there are clear reputational issues
Is it this simple?No it is not – There are further far reaching implications
• The Coroner can summons senior persons e.g. CEO, Chief Nurse etc. toexplain what happened
• Can refer the matter to the Crown Prosecution Service
• Relationship with other investigations
• Refer persons to the GMC/NMC
• Insurance
• Financial implications
Employment• Duties to assist employees during the process
- Support- Ensure that only those who need to give evidence are involved
• Referral of staff to professional regulatory bodies such as the GMC/NMC
• Internal conduct and disciplinary issues
• Impact on wider organisation HR issues e.g. investigation of workingpractices
• If a staff member has left ensure the Coronerknows as soon as possible
System failure v human error• Root Cause Analysis (RCA) /Serious Untoward Incident (SUI) report will
be requested by Coroner, as well as investigations statements/recordings
- Staff engagement in the process is crucial- Purpose of RCA is to monitor and improve quality of healthcare- RCA ‘sets the tone’ / may guide scope of inquest (and any litigation!)
• Consultants as independent contractors
• Conflicts of interests- Early identification of actual / potential conflictsof interest between individual and organisation
System failure v human error (2)• Support individuals
- Support from HR- Support from defence union- Maintain a good relationship to lower to risk of hostile evidence against
organisation’s systems- Exclude from inquest preparation
• Importance of witness evidence- Statements taken as part of an investigation are disclosable- Ensure care is taken with the statements particularly as they are likely tobe contemporaneous- There can be difficulties later if a statement is made in preparation for
the inquest which differs to that made for the investigation report
The CQC
• Attention from the CQC – Serious!• Requirement to be notified of death• Can be made a PIP• Unannounced inspections• Fines / conditions imposed on registration
• CQC’s 5 key questions:safe, effective, caring, responsive, well led?
PFDs• The Coroner can’t tell organisations what to do
• Is the ‘obvious’ solution that is sought by the Coroner, in fact, workable inpractice?
• CQC may seek to enforce actions in a way that the Coroner cannot
• FOI requests. Can a pattern be established across organisations?
So how can a PFD be avoided?• Conduct a thorough investigation at an early stage• Produce a clear and relevant RCA report and disclose to Coroner• Ensure scope of RCA is wide enough• Clear action plan that has been monitored/completed• Specific organisational lesson-learning evidence
- The right witness is vital- From a senior doctor/ nurse/director explaining the investigation and
what processes have changed- Support with evidence
• Ensure witnesses are aware of the new policies / procedures!• Co-operate with other PIPs• Coroner may opt to write to organisation for reassurance where need for
PDF is uncertain
Insurers
• Notification – once inquest has been called - does this count as anintimation of a claim?
• PFD reports – on notice of ‘issue’ at the organisation
• Liaise with Insurers to understand whether representation at the inquestwill be covered
• Do admissions of liability in RCA report require Insurer's approval ?
Other investigationsThe Coroner can refer the matter to other organisations, including:
• Crown Prosecution Service – Corporate Manslaughter/Gross NegligenceManslaughter
• Health and Safety Executive
• Fire Authority
• GMC/NMC/Other professional bodies
Financial impact• Scope of the inquests, PIPs, duration and jury all increase overall costs
• Performance at inquests will impact on proceeding with civil claim- Inquests as ‘fishing expeditions’ especially Article2 inquests- Transcript of inquest can be used in civil claim- Conclusions at inquests are not determinable of the outcome of a civilaction but can be very persuasive
• Publicity & reputational damage- Anyone, including the press can attendCourt
Financial impact (2)• Insurers – increased premiums and reluctance to refer policyholders
• CQC fine- Failure to comply with regulations about quality and safety (Health andSocial Care Act) – Unlimited fine
• Health & Safety Executive fines
• Corporate Manslaughter fine – Unlimited
• Potential recovery of family’s costs of attending inquest from theorganisation
DoLS & inquests• Duty for inquest to be carried out into death of anyone under a
Deprivation of Liberty Safeguard
• Anyone who dies whilst subject to a DoL are considered having died in‘state detention’
• Chief Coroner in his 2015-2016 annual report revealed that Coroners heldinquests for 7,183 people who died whilst under a DoL in 2015
• Following the Cheshire West ruling, the Law Commission is reviewing DoLSand is due to present its recommendations later this year
Legal support during the inquest• RCA investigation and report writing• Obtaining the best evidence from staff, both statements and oral• Witness management – is the most appropriate person giving evidence?• Strategy to ensure protection of organisation from early stage• Privilege• Management of sensitive organisation- Inquest v claim disclosure issues
• Legal representations during inquest- Control the scope, questions asked, information delivered by witnesses
• Submissions on conclusion- Some Coroners ask advocates to submit drafts for narrative conclusions
• Response to PFD report• Staff training after the inquest
Any Questions?
