healthcare update - issue eight
Points of view
It’s always nice to be asked for an opinion, and the Department
of Health is in consultations overdrive at the moment.
As at the time of writing, and it can change day by day, there
are at least four major reforms on which Department of Health
consultations are currently open.
Direct payments
The Health Act 2009 permitted the NHS to make provision to meet
its obligations to patients by making direct payments, in one form
or another. This is part of the wider policy of implementing
individual personal healthcare budgets, announced in the Darzi
Report, ‘High Quality Care for All’.
The Act has only been on the statute books for a few weeks, but
already the government is consulting on the pilot project to try
this out, following on from the deemed success of the introduction
of direct payments in social care.
We suspect that giving people money to buy their own healthcare
will alter the nature of the relationship between the patient and
the NHS. We also believe there will be implications for liability
for the services purchased with the direct payment – surely a
patient paying for services with cash or some equivalent will have
an even greater sense of being the empowered consumer of
healthcare, and may be all the more ready to complain and bring
claims. If the NHS is a provider of services bought with a direct
payment, will there be a contractual liability, which might go
beyond the usual obligations in the law on negligence?
This
consultation is open until 8 January 2010.
NHS Constitution - new rights
As discussed in the November
update, despite the provision in the Health Act 2009 that the
NHS Constitution (January 2009) should be reviewed every ten years,
it is already proposed that it should be amended to include new
legal rights, specifically on the length of wait for treatment
generally (18 weeks) and for cancer (two weeks) and to entitle some
patients to a health check.
The document also invites views on whether, in the near future,
such legal rights should also include rights to dentistry, extended
hours of access to GPs, personal health budgets (see above), the
right to die at home, and rapid access to diagnostic tests.
The consultation document explains that the standards that the
NHS had previously only set as goals, or aspirational pledges, are
now being met, and so these improvements are to be locked into
place and protected by making them legal rights. The mechanism of
enforcing these rights, or the redress if they are breached, is
less clear.
This
consultation is open until 5 February 2010.
Age equality
The Equality Bill is before Parliament at the moment, and it
will, for the first time, impose an explicit requirement that there
should be no discrimination on grounds of age, including in the
provision of health and social care.
The Carruthers report (22 October 2009) considered whether
health and social care should be excluded from the Bill, and
advised that it should not.
Despite the younger cast in Casualty and other medical dramas,
roughly two in three inpatients are over the age of 65, and there
is no doubt that this legislation could have an enormous affect on
the way in which health and social care is delivered.
This
consultation is open until 15 February 2010.
Free personal care
Last, but certainly not least, the government’s pledge in the
Queen’s speech to provide free personal care at home for the
elderly with the highest needs is set out in the Personal Care at
Home Bill, and there is a
consultation on this, open until 23 February 2010.
The document anticipates that around £670 million in funding
will be required, with £420m from central government, and £250m
found from local government efficiency savings.
The statutory change proposed is in fact an amendment of the
rather technical provisions of the Community Care (Delayed
Discharges etc) Act 2003, and will clearly affect the NHS
significantly.
It is not entirely clear how the proposals relate to the ideas
of the Green Paper on adult social care funding and the launch of a
new ‘National Care Service’, seeking to stimulate the ‘Big Care Debate’ just a few months ago.
(The consultation on that only closed on 13 November 2009!)
If you would like to discuss any of these proposals and their
possible legal implications, please get in touch.
talk to us
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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.