Healthcare Features
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Plans by an NHS trust to transfer services and more than 3,000 health staff to a social enterprise have been delayed after campaigners threatened legal action.
NHS Gloucestershire was expected to transfer the services – including nine hospitals – to a community interest company on 1 October.
But law firm Leigh Day & Co, representing 75-year-old local resident Michael Lloyd, wrote to the trust on 22 September warning that it would seek an injunction blocking the move.
Leigh Day argued that the PCT had failed to meet a legal duty to offer the opportunity to bid for the contracts to other economic operators, including NHS trusts which operate primary and community care services in counties near to Gloucestershire.
The trust’s attempt to enter into a contract with the community interest company, the chosen vehicle for the social enterprise, constituted an unlawful procurement process, it added.
Campaign group Stroud against the Cuts (SATC) said NHS Gloucestershire was examining its legal position and had agreed not to transfer services without providing Lloyd and Leigh Day with three days’ notice.
Leigh Day solicitor Rosa Curling said: “Our client believes the proposed transfer would be highly detrimental to the NHS services which he and other Gloucestershire residents receive. NHS Gloucestershire has a number of options open to it, two of which would not result in a competitive process and do not appear to have been properly considered by the Trust.”
According to Curling, NHS Gloucestershire could decide to continue to provide the services itself as there is no statutory obligation for it to outsource its services. Alternatively, if NHS Gloucestershire transferred services to another NHS body, it would not need to competitively tender the services.
“It is only if NHS Gloucestershire decides that it wants to outsource its services and outsource them to a non-NHS trust, that the Procurement Directive applies,” she said. “In those circumstances the law requires them to hold a proper and transparent, competitive process, by which a new service provider is chosen.”
SATC said: "Offering Gloucestershire's NHS services to a social enterprise opens those services to privatisation, it does not save them from privatisation. The legal action will open those services back up to the NHS. NHS Gloucestershire can and should keep these services in the NHS and avoid any need for any tendering process."
NHS Gloucestershire’s chief executive Jan Stubbings said: “We are continuing to respond to the correspondence received. In deciding on the future management of our community services to meet local needs and circumstances, we have followed all applicable policy and guidance. We have always been committed to engaging with our communities on the opportunities and challenges ahead.
“Through this process, we believe we have identified the most appropriate solution for the future. We now have a clear direction with the majority of our community health services becoming part of a social enterprise – working in the community interest and for the social good.”
Stubbings said the new organisation, with its membership model, would give staff and service users a stronger voice on how services are run for the benefit of local communities.
“It is important to stress that NHS patients will continue to access NHS funded community services, close to home, run by an organisation responsible for delivering the NHS values,” she added.
Stubbings said NHS Gloucestershire remained committed to the transfer of services to Gloucestershire Care Services CIC, and would be doing all it could to achieve this as quickly as possible.
“We wish to resolve outstanding matters to ensure a seamless transfer and therefore we have support to take additional time to do this if required,” she said. “We would like to minimise any uncertainty for staff and patients at this time and everyone can be confident that access to high quality care and treatment will continue to be available as matters relating to the transfer of services are resolved.”
SATC denied the Trust’s reported claims that the legal challenge could accelerate what it was trying to prevent – the services being provided by a body outside the NHS.
James Beecher, a co-ordinator of SATC, said: “Firstly, without the legal challenge, the transfer to Gloucestershire Care Services CIC on 1 October would have resulted in the services being provided by a body outside the NHS – the CIC is a private limited company outside the NHS. Rather than accelerating this process, the legal challenge has delayed it.”
He added: “More importantly, the Primary Care Trust appear to being ruling out and refusing to consider several options which would keep services and staff within the NHS, without involving a legal requirement to competitively tender. If successful, our challenge will force them to consider these options, all of which have successfully been implemented elsewhere in the country”.
Philip Hoult
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The health sector must do more to protect sensitive patient data and ensure that workers implement key safeguards in practice, a senior official at the Information Commissioner’s Office will warn today.
The warning was to be delivered in a speech by Jonathan Bamford, Head of Strategic Liaison, to a healthcare conference in London as it emerged that two NHS trusts had signed undertakings following separate breaches of the Data Protection Act.
In the first case Dartford and Gravesham NHS Trust accidentally destroyed 10,000 archived records including medical information relating to patients’ previous treatment.
According to the ICO investigation, certain records held by Dartford and Gravesham should have been kept in a dedicated storage area, but were put in a disposal room due to lack of space.
The records were then mistakenly removed from the room and destroyed between 28 and 31 December 2010. The NHS Trust failed to realise that the information was missing for three months.
The watchdog said that the Trust had “been unable to establish how many of the records would have contained personal information - the majority of which would have been several years old”.
Some records included the names and addresses of former patients and some staff, and a limited amount of medical information relating to treatment.
“The Trust has confirmed that the loss of these records does not pose a clinical risk to data subjects affected by this incident,” the ICO said.
Dartford and Gravesham has signed an undertaking to ensure staff are made aware of data protection polices and procedures and that they receive suitable training on how to follow them. The Trust has also agreed to regularly monitor its staff to make sure policies are being correctly followed.
The ICO’s Acting Head of Enforcement, Sally Anne Poole, said: “Although the majority of information lost was several years old and only being kept for archiving purposes, there is no excuse for failing to keep it secure. The hospital should have ensured that the records were kept in a safe area – and, had they had adequate audit trails in place, they would have been able to keep track of where this information was at all times.”
In the second case, two diaries were stolen from the car of a nurse employed by Poole NHS Trust. The diaries contained information relating to the care of 240 midwifery patients, including their names, addresses and details of previous visits.
Poole has signed an undertaking to keep personal information secure, including making sure patient information is not left in unattended vehicles. It has also agreed that papers should only contain the minimum amount of data necessary, and to anonymise the information where possible.
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A High Court judge will this week hear arguments in what is understood to be the first judicial review action brought by one NHS organisation against another.
The Royal Brompton & Harefield NHS Foundation Trust is challenging the outcome of the Safe and Sustainable consultation on the future of children’s heart surgery.
The consultation recommended to the Joint Committee of Primary Care Trusts, the relevant decision-making body, that Great Ormond Street Hospital and Evelina Children’s Hospital be chosen as the two children’s heart surgery centres in London.
The Royal Brompton will argue that the consultation was flawed in a number of ways. These include:
- The decision to reduce the number of children’s heart surgery centres in London from three to two “did not stand up to scrutiny and was not transparent”. The Trust said the decision was “based on the perception that London had to ‘share the pain’ of closure, to show willing to other centres around the country, and was not based on clinical evidence”
- The decision on which two centres were to keep children’s heart surgery was made by a committee that included doctors from each of the two centres which, it was decided, kept their surgery. Royal Brompton said both were active in the decision-making process, while it had no representation
- The decision to reject Royal Brompton was made on the basis of a supposed weakness in its research, “despite the fact that a national assessment showed it to be the premier centre for cardiac research in the country”
- The Safe and Sustainable steering group set criteria, “and then ignored them when considering Royal Brompton’s fate”. The Trust insisted that it fulfilled the criteria, with four surgeons undertaking over 400 procedures each year. “It is the third largest centre for children’s heart surgery in the country, with very low mortality rates and an international reputation,” it added
- The review panel “requested information on, and then ignored the disastrous effects on other NHS services at Royal Brompton if children’s heart surgery were to be withdrawn”. In its submissions the Trust warned that the removal of paediatric cardiac services would “render the PICU (paediatric intensive care unit) completely unworkable, in turn removing an essential underpinning for our paediatric respiratory services for patients with diseases such as cystic fibrosis and DMD".
Bob Bell, Royal Brompton’s, said: "We remain firm in our view that the public consultation on plans to end children’s heart surgery at Royal Brompton was unlawful. Our decision to take legal action has been taken with deep regret. But the gravity of the consequences for patients of this deeply flawed consultation process, left us no other option."
But Teresa Moss, Director of the National Specialised Commissioning Team, said the Safe and Sustainable team did not accept the allegations made by the Royal Brompton.
“We will present our own case later this week when we provide evidence in court demonstrating that the principles and processes of the review are robust,” she said.
Moss claimed that the recent public consultation showed there was widespread support for the Safe and Sustainable proposals.
“Independent experts have challenged the allegations from the hospital; the international panel found that the hospital’s respiratory services would remain viable in the absence of a paediatric intensive care unit,” she added.
“This is the first time that one NHS organisation has taken a legal case against another NHS organisation. Many people will quite frankly find it astonishing that taxpayers’ money is being used so inappropriately at a time of financial austerity in the health service.”
The Royal Brompton was granted permission for a judicial review by Mr Justice Burnett on 15 July 2011.
Philip Hoult
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The Ministry of Justice will face judicial review proceedings on two separate fronts over its controversial legal aid reforms after two charities this week launched challenges.
The Public Law Project, acting for ten legal aid law firms, issued an application on Tuesday for permission to apply for judicial review of an MoJ policy decision to make publicly funded legal advice in community care law accessible only through a mandatory single telephone gateway.
Patient safety charity AvMA announced yesterday that it had launched a legal challenge over the Ministry’s decision to scrap legal aid for victims of clinical negligence.
The Public Law Project challenge – which is backed by the Law Society – centres on the government’s plans for telephone operators, who are not legally qualified, to determine a caller’s financial eligibility, whether their problem is within the scope for legal aid, and whether they would be entitled to face to face advice or telephone-only advice.
“The specialist law firms are concerned that many individuals (such as those with language and learning difficulties) who have problems communicating by phone will be prevented from accessing justice through the legal aid scheme if this proposal is implemented,” the PLP said. “Further, even where such individuals are able to access the gateway, they are likely to face various hurdles evidencing a need for urgent or face to face advice.”
The ten firms will argue that the government failed to properly consider the impact of its decision on the vulnerable groups who are most likely to require advice and assistance in community care law. They will also claim that the decision to include this category of law within a pilot scheme trialling a telephone gateway was irrational.
Jo Hickman of the Public Law Project said: “Our clients are specialist lawyers who are acting in the interests of those who will be at risk if this proposal is implemented. Their concern is that the consequence of this decision will be to limit meaningful access to justice for some of the most vulnerable individuals in society. PLP shares this concern.”
AvMA is also arguing that the plan to withdraw legal aid for clinical negligence was irrational and unfair “on a number of fronts”.
The charity said no account had been taken of the extra cost to the NHS of switching cases which would have funded by legal aid to “no-win no-fee” agreements, which it said were far more costly.
It pointed to support from the National Health Service Litigation Authority, which defends the claims for NHS trusts, for keeping clinical negligence in scope. Lord Justice Jackson, whose report on litigation costs formed the backdrop for the government’s reforms, has also advocated that legal aid is retained in this area.
AvMA Chief Executive Peter Walsh said: "We regret that we have to take this action, but the Ministry of Justice has failed to listen to the overwhelming arguments put to it for keeping clinical negligence in scope for legal aid.
“Scrapping legal aid for clinical negligence is completely irrational whatever way you look at it, as well as grossly unfair. Ken Clarke's department might save a little money, but the cost will simply be heaped on the NHS.”
Walsh also argued that some of the most vulnerable people in society injured by negligent treatment at the hands of a State body would be denied access to justice. “And the NHS will be deprived of the opportunity of learning from mistakes which are often only recognised because of a legal challenge,” he added.
The AvMA chief executive warned that even though a Bill was going through Parliament, there was a danger Parliament would be “misled by an inadequate and irrational consultation response and impact assessment”.
He said: “No consideration has been given to our argument that as the NHS is an arm of the State, it is a responsibility of the State to ensure availability to redress for victims of NHS negligence. One of the leading QC's in medical law (Martin Spencer QC) is representing us and has advised us we have a good case.”
AvMA warned that victims of clinical negligence would be hit by a "double-whammy" if the Legal Aid Sentencing and Punishment of Offenders Bill went through unamended. “In addition to taking away legal aid (which is only available to the poorest in society), changes to the way "no-win no-fee" agreements work would mean that around 50% less even of these cases would be viable to take forward,” it argued. “Solicitors would only be able to take on the more clear cut cases. Amendments are being sought to that part of the Bill also.”
Philip Hoult