healthcare update - issue 16
End of life decision-making
What PCTs and SHAs need to know about planning for the implementation of the White Paper
The NHS is no stranger to structural reorganisation but the
usual way, in recent years at least, has been for essentially
similar bodies to be created to accept functions (and therefore
liabilities) from their predecessors, or else for responsibilities
to be reassigned within an existing structure.
Instead, now, PCTs and SHAs are portrayed as “layers of
bureaucracy” and the very purpose of the reforms is explicitly to
remove them, without direct replacement. The commissioning function
of PCTs is to be taken over by GP consortia, in whatever form they
will be, and by a new National Commissioning Board. Everything
else, it seems, is simply being closed down.
These will not be theoretical problems. As health and social
care lawyers we are often involved in cases where the welfare or
life of a vulnerable adult or child is at stake. They often fall
between services, and disputes may arise as to what they are
entitled to, and who should fund it. Sometimes a court must be
involved to determine what would be in the best interests of a
person who lacks capacity to decide for themselves. These are
delicate situations, and a good outcome often depends on close
co-operation between all the public bodies involved. It is hard to
see how the sometimes strained working relationships across health
and social care will be improved by replacing PCTs with roughly
three times as many GP consortia.
Some of the person’s care will be commissioned by the GP
consortium, and some at national level by the Commissioning Board,
which introduces more complexity. And because patients are to have
the right to register at whichever GP suits them best, or perhaps
if GP consortia will not in the long run be geographically based,
then the relationship between the consortium and local authority
involved in any individual case may be non-existent.
For the management of PCTs and SHAs there will obviously be
significant HR and employment law issues as the organisations
approach the end of their existence, though many staff will already
be considering their own positions and prospects, and there is no
doubt that it will be a considerably slimmer body that expires in
April 2013.
Other issues may be less obvious. PCTs and SHAs hold various
liabilities, for example to their own employees, and to patients
for the decisions taken and services provided during their
existence. SHAs in particular hold residual liability for the cases
of clinical negligence that occurred prior to the creation of the
NHS Litigation Authority in April 1995. These cases, at this stage,
most often involve the most severe injuries attracting the highest
awards of compensation, where a claimant has brain damage, or is
still a child, and so the clock of the usual three year
limitation period does not start ticking.
Presumably, as at 31 March 2013, PCTs and SHAs are likely to
still have ongoing complaints, claims and serious untoward
incidents to investigate and deal with.
It is not at all clear where, if anywhere, those liabilities can
be reassigned under the new structure, where GP consortia will have
no geographical or functional relationship with the patients and
others involved comparable with the PCTs and SHAs we are
losing.
Equally, at a very pragmatic level, there is no reason to expect
that PCTs’ and SHAs’ commercial arrangements – hire of office space
and equipment for example, will all currently be on contracts
expiring on 31 March 2010. Some arrangements will also need to be
made for disposal of PCTs’ and SHAs’ estates (albeit it seems
plausible that the SHA property at least may well be used to
accommodate regional offices of the National Commissioning
Board).
After PCTs and SHAs cease to be, one can only speculate what
arrangements there may be for retention and retrieval of the
various documents that they will have accumulated during their
existence, particularly at SHAs, which will have inherited all
kinds of material over their existence from their various
predecessors.
This time, neither the GP consortia, nor the National
Commissioning Board appear likely to have any equivalence of
function to make it plausible that they can sensibly take on such
responsibilities. And certainly, in the case of GP consortia at
least, any such imposition would make it a much less attractive
proposition to the GPs, and private sector, which the government is
hoping to involve.
Some functions are more distinctive. For example, PCTs are the
supervisory bodies responsible for assessing and authorising any
deprivation of liberty in hospitals, under the safeguards
introduced following the Mental Capacity Act 2005, though it seems
likely that local authorities, which already perform this role as
regards care homes, will take over the entire function.
Whatever arrangements are proposed once the government puts a
little more flesh on the bones of these plans, it is likely that
these issues of “governance in transition” are likely to be among
the biggest challenges facing PCTs and SHAs in what will inevitably
be a very difficult time.
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