healthcare update - issue 15
Safety in numbers… ?
The coalition government have promised to protect the NHS
against the most savage aspects of the age of austerity, with a
ring fenced budget, and real terms increases in funding year on
year.
But clearly there will still need to be significant savings
made, with ambitious targets for the cuts required in management
costs, to be redirected to front line services. The security of the
NHS budget may also be more apparent than real the NHS has to step
in to fill the gaps left when social services are cut by 25% or
more, and the first question Andrew Lansley was asked after he
spoke at the NHS Confederation conference in June, was how the NHS
is expected to cope with this.
We cannot simply look at the budget in isolation of the wider
reforms proposed, and the key points of the White Paper are
that:
- GP consortia will take responsibility for up to £80 billion of
commissioning, with accountability to a new National Commissioning
Board, which will also deal with commissioning of primary care and
other specialist services.
- The cap on private provision by NHS Trusts will be lifted, and
use of private providers encouraged.
- Monitor to become an “economic regulator”, and PCTs and SHAs to
be abolished by 2013.
- Local Authorities to have responsibility to promote public
health, together with a new Public Health Service, with greater
integration of NHS and social care with an active requirement for
joint service provision and the extension of NICE’s remit to social
care.
- Informed and empowered patients sharing clinical decision
making and exercising choice as the driver of improvement, with a
new body - HealthWatch England, within CQC – to make performance
information available. From “summer 2011”, a new duty on hospitals
“to be open about mistakes and always tell patients if something
has gone wrong”.
It is only fair to point out that there are still a lot of
uncertainties over the detail of the reform – we have no idea yet,
for example, of the actual legal form or structure of the new GP
consortia – and there are at least 20 references to further
consultation on the proposals in the White Paper.
Even so, there are a number of obvious implications for patient
safety and litigation:
The tone of rhetoric, as with the previous government, is about
informed, empowered patients and patient choice as the driver of
quality improvement. Complaints and claims are therefore to be
encouraged, as a means of “closing the loop” and learning from
patient safety incidents.
The new duty of candour (only for “hospitals” in the White
Paper) would need to be applied equally across all NHS services
(and private providers of NHS treatment) for this to be most
effective.
More private provision (and providers) means greater
fragmentation of patient care, both into episodes and along mixed
economy pathways – health and social care, and as between different
providers, leading to:
- Increased risk due to discontinuity and communication
issues
- More arguments about apportionment of liability as between the
providers (with NHS Hospitals at a distinct disadvantage if they
have a duty of candour and others do not)
Greater use of co-payments is likely, raising the same issues of
fragmentation, risk management and disputed apportionment, and so
will the new pilot of personal health budgets / direct
payments.
The distinction between health and social care will continue to
break down, with greater local authority involvement in community
and public health. Greater uncertainty on where this line is drawn
can only lead to more litigation, both between the service users
and the state (especially while healthcare is “free” and social
care means tested), and as between the NHS and Local Authorities
themselves, while budgets are so tight.
Finally, we are already seeing more news stories about the need
to “ration” access to healthcare. It has always been the case that
infinite demand and limited resources meant rationing in one way or
another, for example through waiting lists, or NICE approval, but
it may be time for this to be discussed more honestly and openly.
Certainly we can expect many more legal challenges to decisions to
refuse funding while instead of realistic management of
expectations, promises are still made (for example in the NHS
Constitution) that the NHS can be “comprehensive” and free at the
point of delivery. Those promises will be increasingly hard to
keep.
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The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.