healthcare update - issue five
Tomorrow's news today
The Health Bill 2009
The Health Bill 2009 is slowly making its way through
Parliament. Having started in the House of Lords on 15 January
2009, it reached the Commons on 13 May 2009.
The Bill deals with:
- Quality – implementing Lord Darzi’s Next Stage
Review, including Care Quality Accounts, and the NHS
Constitution
- Funding – allowing direct payments and
individual personal health budgets
- Management – providing for ‘Trust Special
Administrators’ as trouble shooters for failing Trusts, and for the
Secretary of State to suspend senior management
- Other issues - including banning the public
display of tobacco for sale
However, in reality most of this legislation makes little
difference. Though the Health Bill would place an explicit legal
duty on NHS bodies to adhere to the Constitution, there is already
an obligation to follow DH guidance and policy, which surely
includes this document. As this is the case, the Constitution is
already effective, for all the underwhelming public profile and
response this has generated!
Other areas of the Health Bill may be more significant in
practice. The introduction of Care Quality Accounts is part of the
fundamental shift in focus under the Next Stage review by Lord
Darzi, and the introduction of direct payments for health care
could totally change the way in which health care is delivered.
Lord Darzi says that “the main aim of introducing personal health
budgets is to support the cultural change that is needed to create
a more personalised NHS. They have the potential to improve the
quality of patient experience and the effectiveness of care by
giving individuals as much control over their healthcare as is
appropriate for them”.
Of course, individual budgets and direct payments for health
care bring the system into line with the similar approach to social
care over the last few years, which has been deemed a success. Just
as the regulator and the complaints system have been merged across
health and social care, it seems that the funding model is
following. However, it is hard to see how this can be done,
especially if we are to be putting funds in a pot for the service
user to spend themselves, some on social care and some on health
care, without sooner or later addressing the issue that social care
is means tested, and health care is not.
There is also a theory that the recent change of policy to allow
patients to top up their NHS care risks a gradual reduction of NHS
provision to a basic core of services, to be topped up by the
patient as needs be. It’s interesting that, having always shunned
the language of ‘rationing’ (preferring ‘priority setting’), the
government has recently obliged PCTs to have a panel to consider
individual requests for funding outside standard contracted
treatment.
The Working Time Directive
European legislation might be causing some sleepless nights
among NHS managers over the summer. The Working Time Directive
requires that from 1 August 2009, staff work for no more than an
average of 48 hours per week. The Health Service Journal has
estimated that with just a few months to go, up to 28% of Trusts
are likely to be non-compliant. One thought is that there will have
to be more shift work, and less reliance on on-call systems. With
more shift changes, the challenge of effective handover becomes
more difficult, and it is important that handover processes are
robust and do take place. We already know that communication
failures underlie a great number of patient safety problems, and
feature in many clinical negligence claims.
Lord Justice Jackson's preliminary review of civil litigation
costs
Lord Justice Jackson has published his preliminary review of
civil litigation costs. The report, which runs to 1,000 pages,
looks in detail at issues such as conditional fees, after the event
insurance and ‘costs shifting’, i.e. the requirement that the
unsuccessful party should pay the successful party’s costs of
litigation, examining experience from other jurisdictions. We are
in the process of making further submissions to Lord Justice
Jackson, regarding various issues arising from the report.
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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.