Healthcare Features
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The NHS Confederation has called for a significant increase in the contracts threshold above which organisations are obliged to follow EU procurement rules.
“The current threshold applies to many relatively small contracts, putting them through the same onerous tendering processes as ones worth many millions,” it said in its submission to the EU’s consultation on modernising public procurement law.
The NHS Confederation, which represents NHS organisations in England and Wales, added that the existing EU rules were seen as “inflexible, complex and onerous” by procurement managers and commissioners.
The organisation also highlighted as a key issue the question of which bodies were subject to public procurement rules in light of recent decisions of the European Court on the definition of bodies governed by public law. “This issue is of significant interest taking into account current reforms in the NHS which raise questions on which bodies would be covered by this definition going forward,” it said.
Elisabetta Zanon, director of the NHS Confederation’s European Office, said: “EU procurement rules play an important role in making sure taxpayers’ money is spent wisely and our members are continuously trying to get the best possible deal when procuring or commissioning.
“For many organisations, the current process is considered too bureaucratic and lengthy when it is applied to smaller cost contracts. In the current climate these rules need to be driving savings and innovation, not lumbering organisations with additional cost and paperwork.”
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The Information Commissioner’s Office has criticised lax IT security arrangements at an NHS trust that could have allowed its staff and those at two other trusts to have access to restricted sensitive information they had no authority to see.
An ICO investigation of NHS Birmingham East and North’s systems found that the files in question, which were on a shared network, held information relating to thousands of individuals, including members of staff and patients.
The files were not easily accessible and some security measures were in place. However, the watchdog said the file security at the trust was inadequate in general.
Following the breach of the Data Protection Act, the trust’s chief executive, Denise McLellan, has signed an undertaking to ensure adequate measures are in place to prevent unauthorised access.
The Trust has also agreed to establish comprehensive policies regarding the storage and usage of personal data and give staff appropriate training on how to follow them.
The ICO’s Acting Head of Enforcement, Sally-Anne Poole, said: “It’s vitally important that IT networks storing personal information have robust security measures in place. Whilst nobody outside of the Trust environment was able to access the files, problems with the security of the network still led to a situation where sensitive information was potentially available to NHS staff that did not need it to carry out their daily role.”
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The Upper Tribunal recently made a landmark decision by ordering that the First-tier Tribunal hold a public hearing of a patient’s application for discharge from hospital. Rob Tobin examines the case.
In the case of AH v West London Mental Health Trust [2011], the applicant, AH, has been continuously detained under the Mental Health Act 1983 for over 20 years, residing at Broadmoor Hospital since January 2008. In September 2008 the classification of his mental disorder was changed from having a mental illness and psychopathic disorder to having a psychopathic disorder only. He is judged to have mental capacity to make his own decisions.
AH applied to the First-tier Tribunal for a public hearing of his discharge. The principal reasons for seeking a public hearing included frustration about the lack of progress with his mental health and the perceived failings in the system of care, including the question of his diagnosis, which he wished to have a public airing.
The First-tier Tribunal (15 October 2009)
The First-tier Tribunal held that the hearing should be in private - the “general principle” of open justice was not justified in the interests of justice. The main reasons relied upon included:
- The patient’s primary intention was to air his subjective grievances about the system
- His evidence would not be “objectively sensible”
- He would be more difficult to control and the public would be unlikely to be accurately informed
- The cost and management problems of a public hearing were disproportionate to any benefit to the patient, public or administration of justice
- The patient’s health, behaviour and progress were likely to be adversely affected by a public hearing (and by adverse or no publicity afterwards).
AH appealed.
Appeal
On 29 July 2010, the Upper Tribunal accepted that the underlying assumption is that the interests of justice will normally require a hearing in private in mental health cases. However, the Tribunal emphasised that the principal consideration remains the protection of the interests of the patient. It held that the fundamental principle to open justice is a right under common law and specifically, under Article 6 of the European Convention on Human Rights (the Convention). It is the exceptions which need to be justified, as opposed to the right per se. Senior President of Tribunals, Lord Justice Carnwath, said: “The European Convention on Human Rights requires that a patient should have the same or substantially equivalent right of access to a public hearing as a non-disabled person.”
Specifically, the threshold test which the Upper Tribunal held as requiring consideration in an application for an open hearing is:
- Is it consistent with the subjective and informed wishes of the (competent) applicant?
- Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him?
- Are there any other special factors for or against a public hearing?
- Can practical arrangements be made for an open hearing without disproportionate burden on the authority?
With regard to the issue of “special factors”, the Tribunal recognised the need for a careful balance between speculation and clinical judgment. Nevertheless, the views of the patient himself were highlighted as carrying considerable weight (in the absence of other countervailing factors).
The Upper Tribunal set aside the decision of the First-tier Tribunal and directed a further hearing on 31 January 2011 to consider the practicalities and potential costs of providing a public hearing. The Tribunal concluded that how the right to a public hearing can practically and proportionately be achieved will depend on the individual case and will include the facilities available. In this case, arrangements were recommended for relaying the on-site hearing to a public arena, with use of video facilities. With regard to cost, the Tribunal held that “considerations of cost must reach a high threshold before they can be regarded as sufficiently disproportionate to permit a restriction of a public hearing.”
Comment
As accepted by the Upper Tribunal, this case was “out of the ordinary”. Indeed, the Tribunal heard evidence that over the last seven years, there had been 10 applications for tribunal hearings in public out of approximately 100,000 hearings. Of those, only one application was granted (which was subsequently withdrawn).
Private hearings are generally favoured by all interested parties. Patients tend to prefer them as they provide protection against details of their personal health being publicised. A patient’s mental state will be closely scrutinised at a tribunal hearing, where the main consideration will be their mental health and whether or not they ought to remain detained under the Mental Health Act. This supports the general principle that such hearings will be held in private, to protect such vulnerable individuals, unless an application is made to the contrary.
It is, therefore, not surprising that a tiny proportion of applications for public hearings have been made.
As a result of this case, though, there may be a slightly faster flow of applications for public hearings and trusts and managers of other secure facilities should be prepared to consider the feasibility of organising one, should it be ordered.
It is likely that, when an application is made, the detaining organisations will be asked the following:
- Does the patient have the required mental capacity to apply for a public hearing?
- Will a public hearing have an advsere effect on the patient’s mental health in the short or long term? (A statement from the responsible clinician should be provided).
- What are the patient’s reasons for wanting a public hearing and how do those weigh against the opposing factors?
- What facilities are available to hold a hearing in public and what practical hurdles, if any, will need to be surmounted? Cost and technological matters to facilitate the hearing should be considered.
Whether the decision will open the doors to the previously private setting of first-tier mental health tribunals remains to be seen. However, the significant implications for the way mental health tribunals function are apparent.
Rob Tobin is a partner at Kennedys (www.kennedys-law.com). He can be contacted on 020 7667 9305 or by email at
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Birmingham City Council, the Cabinet Office and the Ministry of Defence face regulatory action from the Information Commissioner’s Office for failing to meet a requirement to reduce the time they take to respond to FOI requests.
The ICO said it had particular concerns about the three organisations after the end of a three-month period where it monitored the performance of 33 public authorities. “Discussions on appropriate regulatory action are now taking place,” the watchdog added.
A spokeswoman for the ICO said it could not yet say what form that action will take. The strongest regulatory option available to the watchdog for systemic or repeated non-compliance is to serve an enforcement notice on an organisation, requiring it to take certain specified steps in order to ensure it complies with the Freedom of Information Act. A subsequent failure to comply with that notice could in turn lead to a referral to the High Court, which can deal with the public authority as if it had committed contempt of court.
Alternatively, the ICO could require the authority to sign an undertaking agreeing to a particular course of action to ensure compliance.
The ICO also said today (12 April) that four other local authorities on the original list – the London Borough of Hammersmith and Fulham, the London Borough of Islington, Wolverhampton City Council and Westminster City Council – had been asked to sign undertakings to improve their performance.
No action will be taken against the remaining 26 authorities that were named. However, the ICO said it had sent letters to the Home Office, the Metropolitan Police, NHS North West, the London Borough of Croydon, the Scotland Office and the London Borough of Newham “to put on record that, while all of them are now meeting the required standard, the monitoring has revealed some areas of concern”.
The Information Commissioner, Christopher Graham, said he was pleased that more than two thirds of the authorities whose performance the ICO had been monitoring had managed to overcome their problems.
“However, the remaining authorities have not done enough to convince us that they have a clear and credible plan for getting back on track,” he added. “Over the next four weeks, we shall be discussing appropriate next steps with them.”
The ICO has published another list of 18 organisations that it plans to monitor from 1 April to 30 June 2011. The 11 local authorities named are: Barnsley Metropolitan Council; Cornwall Council; Kent County Council; Kirklees Council; the London Borough of Southwark; North East Lincolnshire Council; North Somerset Council; Nottingham City Council, the Royal Borough of Kingston upon Thames; Surrey County Council; and Waveney District Council.
The seven other public bodies on the list are: City of London Police; the Department for Education; East Lancashire NHS Trust; the Equality and Human Rights Commission; the Highways Agency; NHS South West London; and Surrey Police.
The ICO said the 18 organisations were placed on the list for hitting one or more of the following performance markers:
- “the ICO has received six or more complaints concerning delay within a six month period
- it appears that an authority has exceeded the time for compliance by a significant margin on one occasion or more
- for authorities that publish data on timeliness, it appears that less than 85% of requests are responded to within the appropriate timescales.”
Christopher Graham said: “Responding promptly to FOI requests is key to delivering citizens’ rights. Too many public authorities are taking too long to decide either way whether to release information or to refuse requests.”
In an interview with Local Government Lawyer last month, Deputy Information Commissioner Graham Smith suggested that delay was “the biggest issue still” in freedom of information, although he acknowledged that some improvements were being seen.
Philip Hoult