The COVID-19 pandemic presents unprecedented capacity challenges for the NHS and other healthcare providers. NHS England has commissioned independent healthcare providers to provide extra capacity for the treatment of patients, not only to support the treatment of coronavirus but also to help the NHS deliver other urgent operations and cancer treatments.
Please note: the information contained in our legal updates is correct as of the original date of publication.
The COVID-19 pandemic presents unprecedented capacity challenges for the NHS and other healthcare providers. As part of the attempt to cope with this additional strain, NHS England has commissioned independent healthcare providers to provide extra capacity for the treatment of patients, not only to support the treatment of coronavirus but also to help the NHS deliver other urgent operations and cancer treatments. Such arrangements may require providers to work together and share commercially sensitive information in order to sufficiently meet local community needs.
Chapter I of the Competition Act 1998 (the Act) prohibits agreements or arrangements between businesses which prevent, distort or restrict competition in the UK. This provision could render the co-operation and sharing of information between healthcare providers, such as sharing of staff or facilities or discussion of how to divide local services, anti-competitive.
As a result, emergency legislation was passed by the UK Government on 27 March 2020 under paragraph 7(1) of Schedule 3 of the Act, which provides the Secretary of State with the power to exclude certain categories of agreements from Chapter I where he is satisfied that there are exceptional and compelling reasons of public policy. The Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 (the Order) permits 5 types of agreement, which are aimed at assisting the NHS in addressing the effects or likely effects of the COVID-19 crisis, namely agreements which relate to:
Any such agreement is to be between:
To comply with the safe harbour from the Act, agreements covered by the Order must be notified to the Secretary of State within 14 days of the date of the agreement (or within 14 days of the 27 March 2020 for any agreements predating the Order). The following information must be provided:
The exclusion from the Chapter I provision is backdated to apply to agreements relating to relevant activities from 1 March 2020 and will remain in place until such a date as notified by the Secretary of State.
Independent providers and NHS bodies who are looking to utilise the protection offered by the Order should note that whilst it relaxes the normal competition law rules, the exclusion is narrow and applies only to activities in relation to the COVID-19 response.
The Competition & Markets Authority has also produced more general guidance which reminds business that while the current extraordinary situation may necessitate more cooperation between businesses that does not give businesses a ‘free pass’, and the CMA will not tolerate “unscrupulous businesses exploiting the crisis as a ‘cover’ for non-essential collusion”. The examples they have provided of this include:
Partner
matthew.woodford@brownejacobson.com
+44 (0)121 237 3965
The BMA is advising all NHS / HSCNI consultants to ensure extra-contractual work is paid at the BMA minimum recommended rate and to decline offers of extra-contractual work that doesn't value them appropriately.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
NHS England has published (October 2022) new guidance - Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions.
NHS England has issued an updated (publication 11 October 2022) suite of Complex Change guidance about how it will assure and support proposals for complex change that are reportable to it. New and (where it is still in force) existing Complex Change guidance are as follows.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
On Saturday 15 October a wave of light swept the internet when thousands of people flooded social media with pictures of candles to remember the babies that they have lost. This event signifies the end of Baby Loss Awareness Week which aims to break the silence that is associated with baby loss in pregnancy and infancy.
The Coronavirus Act 2020 allowed any registered medical practitioner to sign a medical certificate of cause of death (“MCCD”), even if the deceased was not attended to during his or her last illness and not seen after death, provided that the medical practitioner could state the cause of death to the best of their knowledge and belief.
In our latest Shared Insights session, Focus on Emergency Medicine, chaired by Jennifer Fagin and Amelia Newbold, we were pleased to be joined by: Dr Alex Crowe, Deputy Director Incentive Schemes & Academic Partnerships, NHS Resolution and Consultant Nephrologist and Miss Susie Hewitt MBE, Consultant in Emergency Medicine, University Hospitals of Derby and Burton NHS Foundation Trust.
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks