healthcare update - issue 16
Undertaking building works in a live healthcare environment – important factors to bear in mind
The July White Paper issued by the Secretary of State for Health
has highlighted the significant structural changes that are to be
made to the NHS, the corollary of which is uncertainty. Despite and
amidst the uncertainty there will remain a continuing need for the
providers of healthcare to undertake building works as the
politically driven emphasis on improving quality gathers pace. The
most recent announcement in relation to the need to abolish mixed
wards is indicative of the need to achieve change in the built
environment of the NHS.
Procuring building works to, and in, a live healthcare
environment necessarily raises a number of special issues which are
particular, given that the environments in which such works are
being carried out have to continue to deliver healthcare services.
The nature of the works may vary widely as may the purpose of the
premises within which they are occurring. It may be a case of a new
ward on a hospital site, a substantive refurbishment of existing
facilities as part of an ongoing upgrade or site rationalisation,
fit out works, or it might be building works to a medical centre,
the upgrade or enlargement a GP’s surgery. The common theme is that
the premises in question have to continue to deliver healthcare
services at the same time as accommodating the building works.
What are the key issues which might arise when undertaking works
and how can unplanned and unacceptable disruption to the clinical
provision of healthcare services be avoided?
The headline issue is how to retain control over your site.
As a first step the healthcare provider needs to be a party to
the building contract in question so that it has a direct
contractual relationship with the works contractor.
If works are being carried out in connection with a partner,
perhaps that partner may be funding the works and it may well be
that the partner envisages that it will be the party to the
building contract for those works rather than the site owner. In
such a case the simple imperative of retaining site control should
not be forgotten and it might be a case of both the site owner and
the partner being parties to the building contract with the
contractor and the site owner having defined abilities to enable it
to have ultimate control over the carrying out of the works.
The constraints within which the works will have to be carried
out need to be clearly understood and recorded and incorporated
effectively into the contract in the right place within the
hierarchy of the contract documentation so that such specific
requirements are not contradicted by say a set of standard terms
and conditions of contract.
Such matters are likely to include restrictions on permitted
noise levels, an overall emphasis on quiet working, likewise as to
vibrations. There may well also be working time restrictions or
requirements. It might be that works to connect to a power source
have to be carried out at a time when the impact of a power cut
will be minimised. In which case that needs to be stated, for
example stipulating that such works have to be carried out once a
given period of notice has been given, that they have to be carried
out and completed in daylight, between Monday to Friday inclusive
but not at week-ends or holidays.
Another example might be that the contractor is only allowed
access to certain parts of the site to undertake works at given
times on given dates, this has to be recorded, because the standard
form of contract may well envisage that the contractor has
exclusive possession of the site or section of the works. If he
doesn’t and if he was expecting to have such access then a
restriction may well mean that the works overrun in terms of time
and cost. If such requirements are not dealt with expressly in the
right place within the contract then this may mean that the site
owner will lose control over the build with a knock on impact on
the budget available. This in turn is likely to mean that a report
justifying the reasons for any delay or increased cost will be
required by the site owners Board, be it a hospital trust or PCT,
so they can ensure they remain accountable for any subsequent
action.
In addition there may be further implications if the site owner
has commissioned the build with the intention of bringing in an
external provider to provide services from the site. In this
situation any delays to the timing of the project could mean that
the site owner breaches its obligations to the provider. It is
important to ensure that the two arrangements are formalised in
conjunction with each other to reduce these risks.
What happens if stated limitations are transgressed? To keep
control of his site the site owner will need to have in place a
clear mechanism for shutting down works in question which
transgress the given restriction. That mechanism is likely to
involve identifying who is authorised to give stop instructions,
how they are given and how recorded and how works can be
re-started. Of particular importance will be the inclusion of a
resolution procedure which allows the prompt and efficient
resolution of any disputes with minimum disruption to the timetable
of the build.
It may be the case that the provision of healthcare services
dictates that some or all of the works are suspended, for say
clinical respite, even if the contractor has not transgressed any
limitation. Again, this needs to be dealt with expressly in the
contract and a suitable mechanism for instructing such downtime
included – the standard form of building contract will not deal
with this adequately. It is a case of recording how suspension is
to occur in such cases, who authorises it, to whom the instruction
is given, how work can be restarted and the mechanism should cater
for the financial and time consequences of such an instruction. For
example it might be that the contractor allows in his programme for
a given amount of downtime and allows a provisional sum also. This
will reduce the risk of any confusion between the parties by
ensuring there is a clear audit trail.
On another level if works are being undertaken with third party
partner involvement, perhaps funded by that partner and ultimately
for the use of the premises by that partner, there needs to be
clearly recorded agreement between the site owner and that partner
as to the terms of occupancy. This would usually be by way of a
formal written lease agreement. The lease should clearly document
the parties’ respective obligations relating to permitted use of
the premises and the finished works, the term or period of
occupancy, who is responsible for ongoing maintenance and repair
liabilities, whether there are rights for early termination of the
agreement and what happens to the works at the end of the term i.e.
will the third party partner be expected to remove the works at the
end of his period of occupancy and reinstate the premises to the
state and condition they were in prior to the works being carried
out? This could be a costly exercise for the third party
partner..
Finally, following the Governments confirmation in the NHS White
Paper that PCT’s will be abolished by 2013 Trusts, PCT’s and
providers commissioning or likely to be affected by building works
should make arrangements for ensuring the continuity of the works
where the party funding or commissioning the build may cease to
exist in 2013. Effective succession clauses will reduce the risk of
disruption and may prevent significant delays as the successor
organisations will automatically take on liability and
responsibility for these projects rather than encourage discussions
to the contrary. Equally, funders maybe looking for a higher level
of funding security particularly, if the original commissioner /
ultimate tenant of the building ceases to exist.
Ensuring control over the site is essential for the site owner
to be able to guarantee that quality, patient safety and continuity
of services and as such all of these points, amongst others, need
to be considered and addressed.
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