Category Archives: Health Law

  1. Response to the concerns we have expressed on the Mental Capacity (Amendment) Bill. As my colleague stated (6 and 7), we cannot take our eyes off the ball on this. The Chair of the Relatives and Residents is an SHA member and some of you may have heard her speak at meetings/conferences our organisation either ran or was part of:

 

  1. I reproduce here the Noble Baroness Thornton’s Speech on the above resolution:-

 

  1. VOLUME 7904 – COLUMN 596 “My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.

I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.

In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have to come to a point where the Bill has significantly changed and been improved.

Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:

“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.

I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.”

  1. The Following is part of the Response of the Noble Lord, Lord O’Shaughnessy, The Parliamentary Under-Secretary of State, Department of Health and Social Care, relating specifically to Amendment 143A standing in the name of the Noble Baroness Thornton previously circulated.

 

  1. VOLUME 794 – COLUMN 599. “Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.”
  2. Following the Noble Lords response Amendment 143A was not moved, but not withdrawn as other motions had been.

 

  1. I respectfully suggest that we and our counterparts/cosignatories cannot not take our eye off the ball. It is my experience that information can be changed or lost in the plethora of legalise wording of legislation.

 

 

 

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Can I appeal to everyone, individuals and organisations, to get solidly behind the judicial review as loudly and forcefully as possible.

I’d like to see all of us highlighting and publicising the judicial review in our various communications and campaigns. We are trying in Wirral.

If the review succeeds entire awful council/CCG edifices of pooling and dissembling come tumbling.

If the review doesn’t raise the required £18k we’re all doomed no matter how vocal our local and national campaigns!

Come on! The price of a few glasses of wine/beer/flat white.

https://www.crowdjustice.com/case/justice4nhs-stage5-courtofappeal/

Cheers

Kevin Donovan

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Following the Judicial Review in London in July, NHS England quietly launched its promised public consultation on the Integrated Care Provider (ICP) Contracts on 4 August. The consultation closes on 26 October.  If the appeal granted at the other Judicial Review called for by 999 Call for the NHS in Leeds is successful, this ICP contract may yet be unlawful, but it is nonetheless essential that we respond to the feedback.

The ICP consultation document is a daunting read for most of the public. However, Health Campaigns Together (HCT) has provided expert answers to all 12 points in the public feedback document. 

HCT’s aim in providing these answers is to prevent flawed plans being adopted. They are seeking to prevent long-term contracts being signed that will undermine our NHS. This is in order to preserve any hopes of achieving a genuine integration of health and social care as public services, publicly provided free at point of use – and publicly accountable.

 

A reminder on what’s happened so far: There have been two judicial reviews on the Accountable Care Organisations and these Integrated Care Provider (ACO/ICP) contracts. And the courts found in favour of the NHS. But one of the campaign groups, 999 Call for the NHS, has now been granted permission to appeal. 

This is some very good news. But it also means NHS England is consulting on an ACO/ICP contract that may be unlawful. 

NHS England knew full well that an appeal was a possibility. Although fully aware of this, on Friday 3rd August – the day Parliament and the Courts went on holiday – NHS England started a public consultation on the ACO/ICP contract. The consultation says that the Judicial Reviews had ruled in their favour. This consultation runs until 26 Oct.

 

We all know that this ICP consultation needs to be combatted and stopped. But in the meantime, here’s all the information you need to fill in the consultation feedback.

As stated, the judge in the London NHS Judicial Review said that the ACOs (now ICPs) should not be enacted until a lawfully conducted consultation was held, and any eventual ICP contract would have to be lawfully entered into.

Since then, NHS England have moved swiftly and stealthily into gear, and you will find their monstrous ICP ‘consultation’ document at this link.

And here is Health Campaigns Together on the subject at this link.

As you see, the consultation document includes 12 points for feedback and Health Campaigns together has provided suggested responses to these points – very good responses too, I think. You’ll find them at this link.

When you’re ready here is the direct link for public feedback to the document, just copy and paste from the Health Campaigns Together link above.

As stated, there is a move afoot to get the consultation suspended until after the appeal granted to the 999 for the NHS has been concluded, but it’s very important to counter what will definitely be lots of responses from the allies of NHS England. Otherwise they will be able to hail the result as a democratic mandate.

Health Campaigns Together say that it is OK to copy and paste HCT’s responses into the feedback boxes on the questionnaire, although if possible, it would be good if respondents could add a few tweaks of their own.

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First appeared in www.opendemocracy.net/ournhs  on 25 June 2018

If you want to make sure your medical data isn’t shared with third parties for unknown purposes, you may need to take action now. Here’s why – and how.

Image: Yuri Samoilov/Flickr, CCBY licence.

If you happen to visit your doctor in the next few weeks, you may (or may not) spot a new poster or leaflet; they are NHS blue, with a yellow stripe at the bottom, headlined “Your Data Matters to the NHS”. Like all those e-mails you’ve been receiving asking you to opt in to receiving marketing, the poster and leaflet has been prompted by GDPR – but it’s about something rather different, and the choice you are being offered is an opt out, not an opt in.

Simply put, if you have concerns about what’s being done with your medical records – who is getting access to them, and how are they being used – you have the right to opt out of uses of your own health information for purposes beyond your individual care.

This ‘new’ National Data Opt-out that you may (or may not) hear of is in fact based on one of the old care.data opt-outs, formerly known to doctors and Government as a ‘Type 2’, renamed so that – by 2020, we are told – care providers all across the NHS and care system will be able to see and honour your consent choice about what happens to your medical data.

Great, in theory. But in practice?

If you do see the poster, and follow the link – it’s nhs.uk/your-nhs-data-matters/ – you’re told you can exercise your right to choose using a new ‘digital’ opt out process. Unfortunately, NHS Digital’s new process ignores the reality of many patients’ lives and – despite Government digital guidelines – fails to serve families, or the most vulnerable. So much for bridging the digital divide, and reaching the ‘furthest first’…

Notably, too, if your family has children under the age of 13, or if you look after a dependent older relative, then things are even more complicated. Rather than giving a simple instruction to your doctor, those who would prefer their children’s data wasn’t sold to third parties for unknown purposes, will be required to send to NHS Digital, by post, four pieces of ID and documentation along with a seven-page form. So much for Jeremy Hunt’s much-vaunted commitment to a ‘paperless’ NHS

So much for the process – what then happens to your information?

The poster and leaflet go on to say:

In May 2018, the strict rules about how this data can and cannot be used were strengthened. The NHS is committed to keeping patient information safe and always being clear about how it is used.”

You only have to look at (our slightly more readable version of) NHS Digital’s Data Release Register at TheySoldItAnyway.com to see that little substantive has changed in practice.

NHS patients’ data is still being sold to a variety of customers – including for-profit ‘information intermediaries’ which continue to serve commercial customers of their own, including pharmaceutical marketers and private providers.

The law, however, has changed.

As of May 23rd, the UK has a new Data Protection Act 2018 – replacing the expired 1998 Act and bringing the provisions of GDPR into UK law.

NHS Digital, however, holds itself to the Information Commissioner’s old, pre-GDPR, non-statutory Code of Practice on Anonymisation – claiming this allows it to continue to ignore 1.4 million patients’ opt-outs, as it carries on selling ‘Hospital Episode Statistics’ data.

This approach has passed its sell by date; GDPR provides a wider definition of what is ‘identifiable’ data – i.e. data that can be used, including by combining it with other sources of data, to identify individuals, even if supposedly anonymised. UK law agrees with this wider definition, at least in theory – and both GDPR and our new Data Protection Act agree that any information about a person’s physical or mental health is sensitive personal data, and requires additional protections.

Given that ‘Hospital Episode Statistics’ (HES) consists of ‘patient-level’ lifelong medical histories – each row in the data referring to a single person, with every individually-dated hospital event they experienced linked together using a ‘pseudonym’, and containing many other items of data that can act as ‘identifiers’ – it can count as ‘identifiable’ data under the new law and therefore also sensitive personal data, as medConfidential and others have been saying for years – although confusion over the new laws seems to have stretched to the top of NHS Digital, and discussions are ongoing.

Why does this matter? Your medical history is like a fingerprint – unique to you, and identifiable by almost trivial means: a mother with two children is over 99% likely to be identifiable from their children’s birth dates alone, and a single news report could provide the information required to identify the unfortunate subject’s entire hospital history. A single breach of HES could expose millions of patients’ hospital histories, a disaster orders of magnitude greater than the loss of the HMRC Child Benefit discs in 2009.

This also means that, as of May 25th, any customer of NHS Digital receiving full copies of HES is now handling identifiable, sensitive personal data – so if any patient’s opt-out is not being honoured (i.e. if their row of data is not being removed from HES) then, once again, NHS patients are being lied to. You can check for yourself the lists of organisations with projects that ignored opt outs, and those that honoured them, at TheySoldItAnyway.com.

Aside from the posters and leaflets, some patients are being written to directly. But only those who already opted out – clearly NHS England is content, as it was in 2014, for large parts of the rest of the population to remain in the dark. (While NHS Digital must write to those patients who opted out already, it is NHS England’s responsibility to communicate with everyone else.)

Is what patients are told true? The opt-out should apply to all identifiable data; is that what NHS Digital is doing?

NHS England is looking to “empower the patient” by giving already empowered patients marginally more, while ensuring it remains accountable to no-one. For example, aside from “research and planning” uses, how does NHS England itself use data? And can a patient see the list?

medConfidential works to ensure every use of patients’ data is consensual, safe, and transparent. Unlike NHS Digital, NHS England has largely avoided writing down who does what with patients’ data and why, and because of that has accumulated a massive transparency backlog. Though they go beyond research and planning, NHS England’s current uses are likely (almost) all legal – but it can’t explain how, and some of its proposed future uses are still obscure.

medConfidential believes there need be no conflict between good research, good ethics and good medical care; indeed we are enthusiasts of lawful, ethical medical research. By and large, the standards researchers have to meet mean their use of NHS patients’ data already meet GDPR requirements – the paperwork they have to fill in has helped in that.

Commercial deals

Many people have concerns about private companies doing data processing for the NHS; cases such as the illegal deal between Google DeepMind and the Royal Free Hospital suggest some caution is justified. The most toxic problem, however, remains commercial reuse by ‘information intermediaries’ – some of which appear in the list of organisations that have breached not only their contracts with NHS, but existing data protection law.

Promises about the NHS “always being clear about how [patient information] is used” (that poster again…) ring somewhat hollow, while for-profit companies continue using contractual agreements with the NHS as a figleaf to do work for commercial customers such as Pharma marketers who – despite promises elsewhere that patient information won’t be used for “marketing purposes” – use the information to market to doctors.

Patients should know how their information is used if they are to make an informed choice. ‘Your NHS Data Matters’ provides some information about this, but omits some of the more unpalatable truths about what is happening – undermining the important promises it makes.

If after checking what the NHS says and what it does, you do have concerns, medConfidential suggests you opt out now. Opting out will not affect your individual care, and you can always opt in later – e.g. when you are satisfied proper protections are in place.

If you use medConfidential’s opt-out form, your GP data will be covered as well as your hospital data.

About the author

Phil Booth co-ordinates medConfidential – campaigning for medical data privacy. For more on how the changes will affect your medical records, visit medConfidential’s ongoing ‘masterclass’ blog series.

 

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National Health Service (Co-Funding and Co-Payment) Bill

2017-19

Type of Bill:

         Private Members’ Bill (Presentation Bill)

Sponsor:

         Mr Christopher Chope

Progress of a Bill

House of Commons

First reading, Second reading, Committee stage, Report stage, Third reading

House of Lords

First reading, Second reading, Committee stage, Report stage, Third reading

Consideration of the Amendments

Royal Assent

This Bill is expected to have its second reading debate on Friday 26 October 2018.

This Bill was presented to Parliament on Tuesday 5 September 2017. This is known as the first reading and there was no debate on the Bill at this stage.

Details of the Bill

National Health Service (Co-Funding and Co-Payment) Bill (HC Bill 37)

A

BILL

TO

Make provision for co-funding and for the extension of co-payment for NHS services in England; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1.    Amendment of section 1 of the National Health Service Act 2006

  (1)      The National Health Service Act 2006 is amended as follows.

  (2)     In section 1 (Secretary of State’s duty to promote comprehensive health  service), in subsection (4)—

           (a)   the words “the making and recovery of charges is expressly provided for by or under any enactment, whenever passed” become paragraph
                  (a), and

                 (b)   after paragraph (a), insert or

                 (b)   the charges form part of an agreement in England for co-funding or co-payment.

2.  Other amendments of the National Health Service          Act 2006

  (1)       The National Health Service Act 2006 is amended as follows.

  (2)      After section 12E (Secretary of State’s duty as respects variation in provision of  health services), insert—

                                       ““Co-Funding and Co-Payment

  12F                Co-Funding and Co-Payment: England

  (1)            For the purposes of this Act, co-funding of NHS care shall be permissible in England when NHS-commissioned care is proposed to be partly funded—

                     (a)         by a patient, or

                     (b)      on behalf of a patient

  (2)           Co-payments permitted by virtue of this Act shall, in England, include payments made through co-funding as provided for in subsection (1)

 3             Extent, commencement and short title

  (1)          This Act extends to England and Wales.

  (2)          This Act shall come into force at the end of the period of two months after the day on which it receives Royal Assent.

  (3)          This Act may be cited as the National Health Service (Co-Funding and Co-Payment) 2018.

2 Comments

 

The National Health Service was established in 1948 to provide a comprehensive service designed to improve the physical and mental health of the population of the UK. The relevant legislation (National Health Service Act 1977) provides that services for the prevention, diagnosis and treatment of illnesses must be provided free unless a charge is expressly permitted by statute. The Beveridge report in 1942, which laid the foundations for the post war ‘welfare state’, stated that:

‘a health service providing full preventative treatment of every kind to every citizen without exception, without remuneration limit and without an economic barrier at any point is the ideal plan’.

In many ways, this underlying principle still governs the operation of the modern NHS, despite the strain which it has come under. Some of these pressures emanate from the Treasury or from the changed political landscape of the last two decades associated with the catch phrase ‘rolling back the state’. Some have come from within. Devolved responsibility for budgets, the drafting in of managers from the private sector and the involvement of private companies in the financial management of the health service have inevitably changed the climate in which funds are allocated. Increased running costs and expensive advances in medical treatment place pressure on NHS managers to find ways of generating income. Thus it is that Community Health Councils come to hear complaints concerning unreasonable, inequitable and sometimes illegal charges.

History of NHS Charges

At the outset of the NHS even Beveridge advocated the implementation of charges for ‘hotel’ expenses during hospital stays and contributions towards the costs of appliances such as dental and optical equipment. Since that time debates have persisted over whether and what charges should be levied.

Although the imposition of charges has often been justified as a measure to reduce wastage, much of the pressure for increasing revenue through this means arises not from any internal health policy logic but as an effect of wider political or economic agendas, particularly those driven by the Treasury. The need to prioritise defence spending (1951), win favour with international money markets (1968), comply with IMF loan conditions (1975-9) and generally control public expenditure (1979-97) have all been cited as reasons for increasing NHS charges3.

In many instances, charges have been extended as a concession to the Treasury to enable particular projects to be paid for. A onetime staunch opponent of charges, Richard Crossman, Secretary of State for Social Services in 1969 admitted that the introduction of optical and dental charges within the NHS was to fund school building projects.

Over the last two decades political pressures have not been sympathetic to the principle of basing service provision on need rather than cost. The wider political context has seen public services privatised across the board — Jean Shaoul, lecturer in accounting and finance at the University of Manchester, points out that in1999 57% of total government expenditure was spent on the purchase of goods and services, compared to only 28% in 1977. As privatisation has progressed, there have been growing pressures to recoup the cost of services from the user rather than out of government expenditure. Where this is not possible, means tested exemptions from user charges are preferred to universal subsidised provision. Thus in education, grants have been replaced by loans and tuition fees. In transport, provision has been privatised and fares increased. In housing, subsidies have been shifted from investment in bricks and mortar to (more stringently means-tested) housing benefit.

Yet despite this, the popularity of a free health service has always made the introduction of new or increased charges politically difficult. Thus in order to placate opponents of her plans for an internal market, Mrs Thatcher refused to introduce new charges for GP visits and hospital stays. (Nevertheless, prescription charges increased in real terms fivefold between 1979 — 1997).

For this reason the government is particularly keen to find ways of appearing to preserve the principle of free health care while drastically reducing its scope. One such technique has become increasingly important since the late 1980s. This is the process through which more and more functions formerly associated with NHS non-acute care — particularly of the elderly ­ have been transferred to local social services — enabling charges to be raised.

Social Care

Changes in the responsibilities of different public bodies for the provision of care are reflected in new and ambiguous terminologies: thus long-term care has increasingly come to be redefined as social care, and ‘personal care’ (chargeable) has come to be distinguished from ‘nursing care’ (free). As the Health Select Committee pointed out:

“The confusion is epitomised by the farcical question of whether a person needing a bath in the community should receive a `health’ bath or a ‘social’ bath — the first comes free, the second (in theory at least) has to be paid for on a means tested basis.”

The impact of this change is reflected in NHS bed numbers. Between 1979 and 2000 the number of beds in the NHS in England decreased from 480,000 to 189,000, while the number of beds in the independent nursing care sector, increased from 23,000 in 1983 to 193,000 in 2000.

The number of private residential care beds also increased, reaching 345,600 in 2000. The growth of this sector was initially fuelled by an uncapped social security budget in the late 1980s. This funding was then subjected to much sharper means testing in the NHS and Community Care Act 1990 and in subsequent legislation. Thus, formerly free NHS services became increasingly self-funded social services. It has been estimated that in 1995 40,000 pensioners were forced to sell their homes to pay for care. Under-funding by central government of local social services effectively forces councils to charge pensioners the full cost of their care if their capital exceeds the disregard limit. Even despite this a shortfall of social services beds remains. The result is that many elderly people cannot be discharged from hospital because they have nowhere to go.

The legality of these charges may be in some doubt. The ruling in ex parte Coughlan makes clear that even where an individual had been placed in a home by the local authority, responsibility for provision of nursing care stays with the NHS where the primary need is a health need. The assessment process carried out by social services and health bodies by which eligibility for ‘free continuing care’ is decided is not transparent or open, and not always rigorous. Patients have little say in decisions about where they go and who will pay for it. Support for this vulnerable group of people not easy to come by. A survey produced by the Pensioner’s Campaign Team in April 2001 suggests that only around 20% of social services departments employ patient advocates. After April 2002 assessment for continuing care will be integrated with assessment for nursing care under the Health and Social Care Act. Whether the new regime will improve matters remains to be seen.

Shortly after being elected in 1997, the Labour government set up a Royal Commission to consider the future financing and provision of long term care. This recommended that personal care provided in all settings should be made free at the point of delivery. The Government rejected this proposal. Provisions in the Health and Social Care Act 2000 remove the responsibility for the provision of nursing care from community care services, but limit its availability. The Act also extends the power of local authorities to recover charges for services by laying claim to the sale value of the homes of those receiving care. Despite the fact that this legislative change was introduced with the stated aim of improving the integration of health and social care services, the persistence of two very different funding regimes will ensure that the boundary between them remains hotly contested. 

Social and Health Consequences

If charges simply reduced wasteful overuse of health services across the spectrum of social classes, with no adverse health impact either for particular groups or for the general public, then they could be easily justifiable. Similarly, if the imposition of charges just acted to depress the use of ineffective treatments, they might be reasonable. Yet research has confirmed that such a blunt instrument will not achieve such smart results. In the 1970s the US think tank RAND carried out one of the most comprehensive investigations ever into the effect of user charges involving over 7000 participants. This established that charges reduced the uptake of both ineffective and effective treatments at the same rate. Charges were also found to have a disproportionately adverse effect on low income and vulnerable groups. These same points emerged strongly in a World Health Organisation (WHO) global survey of charges. WHO argued that such a ‘tax on illness’ often impacts adversely upon the control of infectious diseases and undermines preventative medicine while also producing inequality by deterring the poorest from using services.

Former Health Minister Gerald Malone claimed ‘there is no evidence to suggest that charges deter people from seeking the medication that they need”. This view has been shared by successive governments. Yet, if prescription charges were exclusively effective in reducing unnecessary usage, prescription redemption figures would show no differentiation between the financial status of individuals with similar clinical needs (horizontal equity). However, a 1993 study found that disproportionate numbers of patients (33%) who failed to redeem their prescriptions were liable for charges. A survey by ACHCEW in 1996 found that 58% of Community Health Councils (CHCs) had experience of patients failing to redeem prescriptions. This finding was supported by a poll conducted by. Kidderminster and District CHC in 1995, which established that 35% of people who are not eligible for free prescriptions sometimes fail to have their medication dispensed.

Low-income, but not-exempt, users are most disadvantaged by health service charges.

“A Citizen’s Advice Bureau in Northumberland reported a client with severe mental health problems who required three prescription items per month to control his condition. However his income from incapacity benefit left him 5 pence above the level at which he would have been entitled to free prescriptions. He could not afford the £18 per month prescription bill and therefore went without his drugs”

A recent report by the National Association of Citizen Advice Bureaux suggests that 28% of clients failed to get all or part of a prescription dispensed during the last year because of cost. According to the National Pharmaceutical Association “what can I leave out” is a common question asked of pharmacists.

There is no doubt that charges reduce uptake. Treatment figures fell by 25% following the introduction of the new dental charging regime in 1987. The introduction of charges for eye tests in 1989 had a similar effect, while the rise in prescription charges between 1979 and 1984 is estimated to have caused a 40% reduction in the number of chargeable prescriptions dispensed.

The Bristol Eye Hospital detected a fifth fewer cases of glaucoma following the introduction of eye test charges. Although the numbers have since increased, the BMA have estimated that within the introduction of charging, twenty million more tests would have taken place. Many will have lost the chance to have eye diseases such as glaucoma and retinoblastoma diagnosed early enough to be treated. in the case of glaucoma, eye deterioration proceeds slowly — at a rate of 3% per year. The full cost of this short term saving may not become known for some time.

Another instance where the introduction of charges may undermine longer term public health goals concerns the needs of those in their late fifties when ageing may begin to result in deteriorating teeth or eyes. If inadequate intervention occurs at this point the ramifications may undermine general health in old age. The Public Policy Research Unit explored some of the possibilities:

“What might follow, if for instance, people over 50 are deterred from dental treatment?

  • Less conservation of teeth
  • More older people will need dentures
  • More older people will avoid foods that can be difficult to manage with dentures such as high fibre foods, fruit and vegetables
  • The quality of nutrition will fall
  • Illnesses associated with poor nutrition will rise

  • Greater use of health services will follow, made worse because of the higher costs or treating older people who tend to need longer hospital stays

It is illogical to discourage people from receiving health care that might prevent the spread of infectious disease, detect a problem at an early stage, or prevent it arising in the first place. Critics contend that charges do just this.

Legislation

A Free Service?

The National Health Service Act 1977 (the Act) defines the scope of NHS services and provides the legal foundations for the duties and obligations of both the Secretary of State and health service bodies and professionals. Section 1(2) provides;

`services ….. shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed’ (emphasis added)

The powers of the Secretary of State to enact secondary legislation controlling charging tariffs are further defined in sections 77 to 82 and schedule 12 of the Act. Section 77 of the NHS Act states:

`Regulations may provide for the making and recovery…. of such charges as may be prescribed in respect of ….the supply under the Act ….of drugs, medicines or appliances (including replacement and repair of those appliances)’

Chargeable services include:

  • The supply of drugs, medicines and appliances under section 77.
  • Dental appliances such as dentures and optical appliances, for example glasses and contact lenses under section 78.

Other sections allow regulations to be introduced for the supply of more expensive supplies, the repair of appliances in certain specified circumstances and payment of travelling expenses.

These sections do not require the NHS to levy charges, but merely give the Secretary of State the option to introduce charges for these specific services.

Charging Regulations

Since 1977 a complex network of regulations and amendment regulations have been introduced establishing and revising charging mechanisms. New regulations, when enacted, may revoke or partially revoke previous regulations. The result is a lengthy ‘paper trail’ which is both difficult to understand and interpret. CHCs supporting complainants have reported that health service managers have sometimes been unable to identify the correct legal basis for charges.

At present regulations are in force providing charging arrangements for:

  • Dental treatment and appliances – NHS (Dental Charges) Regulations 1989

  • .Optical treatment and appliances – NHS (Optical Charges and Payments) Regulations 1997.

  • Drugs and appliances – NHS (Charges for Drugs and Appliances) Regulations 2000.

  • Wheelchairs – NHS (Wheelchair Charges) Regulations 1996.

  • Treatment to overseas visitors (Charges to Overseas Regulations 1989)

Dental Service

The provision of dental services is divided into two distinct service categories ­ treatment and appliances. The NHS (Dental Charges) Regulations 1989 detail the charging mechanisms and tariffs for both dental appliances (Regulation 2) and dental treatment (Regulation 3). However, neither ‘dental appliance’ nor ‘general dental services’ are defined within the regulations. This lack of clarity hampers interpretation of the legislation.

Dental appliances

Regulation 2 of the 1989 Regulations states:

‘A charge…..may be made and recovered under section 78(1A) of the Act in accordance with these regulations in respect of the supply under the Act of denture and bridges’.

Strangely, it appears that dentures and bridges are the only dental appliances that may legitimately be charged for under this section. However, other appliances, such as the provision of crowns may fall under the umbrella of ‘general dental services’ -and charges made under that section.

More expensive supplies

Under the NHS (Dental Charges) Regulations 1989 an individual may request the provision of appliances which are more expensive than the basic NHS variety. The extra cost to the dentist of both supplying and repairing the non-standard appliance may be recovered from the patient under Regulation 8 (1). Similar provisions do not exist for the provision of superior treatments.

Provision of more expensive supplies must be at the request of the patient being treated and signed request forms must be submitted’. There is, therefore, no scope for dental practitioners to charge for more expensive appliances without the express agreement of the person being supplied.

Repair and Replacement of Dental Appliances

A distinction is drawn between repair and replacement of appliances

‘Replacement’ is effectively the same as (new) ‘supply’. Therefore, whatever charges apply when an appliance is first provided will also apply if a replacement is required, (subject to certain exceptions listed in 5.3 below) Section 25(2) of the NHS Act 1980 widened the meaning of ‘replacement’ to encompass relining, adjusting and alteration of dentures.

‘Repairs’ are not included in the definition of supply, and the regulations do not make specific provision to charge for repairs. They should therefore be free, and Department of Health publications HC11 and HC13 do state that dentures and bridges must be repaired free of charge. However since “relining, adjusting and altering” of dentures may be charged for, it may in practice be difficult to say exactly when a given procedure constitutes an adjustment, and when a repair.

The patient may be charged for any repairs or replacement made necessary by an act or omission on their part. This applies even to individuals who would ordinarily be exempt from charges. Where a Health Authority considers an individual personally liable in this manner it may set up a sub­ committee, to hear oral evidence. The health authority is responsible for the ultimate decision, and it may reduce or discount the full bill if this would cause undue hardship.

General Dental Services

Although general dental services are not defined in the legislation, they are taken to include, check-ups, the provision of fillings, de-scaling, oral hygiene advice, the removal of teeth, work on roots and gums, the provision of crowns and anaesthesia.

Charging Tariffs

General dental services and regular appliances are provided without charge to exempt patients. The dentist is reimbursed the full cost of this treatment by the NHS.

The charging tariffs for both general dental treatment and appliances are laid out under Regulation 4 (as amended 1998) which states:

`the amount of the charge which may be recovered is 80% of the Statement Remuneration….being an amount not exceeding that which the Secretary of State considers to be the cost to the health service of the supply or provision’

The Statement of Dental Remuneration is a lengthy document laying down the amount the NHS will pay the dentist for specific treatments. It is published under regulation 19 of the NHS (General Dental Services) Regulations 1992 and is amended twice a year’. Non-exempt (paying) patients are charged 80% of the treatment amount. The NHS pays the balance. Where a course of treatment attracts charges in excess of an overall ceiling, also laid down in the Statement of Dental Remuneration, the NHS pays the excess in its entirety.

Exemptions

Regulation 3(2) of the NHS (Dental Charges) Regulations 1989 specifies both classes of service and classes of client exempt from charges.

Treatments exempt from Charges

Exempted treatments include: uncompleted occasional treatment; calling an additional practitioner to administer anaesthetics in an emergency; and replacing or repairing within twelve months any defective fillings, root fillings, inlays, pinlays or crowns (subject to certain exceptions). Where a patient sees a dentist out of hours in an emergency or is visited at home any additional costs will be exempt and treatment will be chargeable on the ordinary tariff’.

Exempted Persons

Regulation 3(2)(a) refers us to Schedule 12 of the NHS Act 1977, which contains details of persons exempted from dental charges.

Free treatment is available to

  • Under 18 year olds and 18 year olds in full time education.
  • Women who are pregnant at the commencement of treatment
  • A woman who has given birth within the previous twelve months.
  • Patients undergoing dental treatment necessitated by operative procedure used to combat invasive cancer’.

Additionally, individuals with low incomes or in receipt of benefits may also be entitled to a reduction or refund of dental charges. However, eligibility is dependent on strict criteria under the NHS low-income scheme. This severely restricts access to free or low cost dental treatment. Individuals of pensionable age do not automatically receive free dental care. This is inconsistent with the availability of free prescriptions for the over 60’s.

Ophthalmic Services

The provision of National Health Services is based on the presumption that services are provided free unless express mechanisms exist for the recovery of a charge. By contrast, the provision of ophthalmic services is based on the premise that

charges are levied except where specific exemptions apply.

Sight Tests

A duty to supply free tests only exists under certain specified categories. Originally, these categories were broad and encompassed the majority of the

population, however eligibility has repeatedly been narrowed. In 1989, 12,493 sight tests were carried out on the NHS but this figure fell to 5,280 in 1990 following a change in eligibility rules. At its 1997 AGM ACHCEW passed a resolution calling for the restoration of free eye tests, in particular for the elderly, on the grounds that they are a cost effective means of screening for illnesses. We therefore welcome the government’s subsequent decision to again make eye tests free eye for the over sixties’.

Currently free sight tests are available to individuals who are:

  • over sixty years old, or
  • under 16 years old, or
  • aged 16 — 18 and in full time education or under the care of the local authority, or
  • diagnosed diabetic, or
  • aged 40 or over and the immediate relation of a glaucoma sufferer”,or
  • in receipt of specific benefits (income support, income based Jobseeker’s Allowance, family credit or disability working allowance), or

  • eligible under the low income scheme, or

  • war/MOD pensioners where sight tests are necessitated by their pensionable disability” or
  • people with glasses with at least one complex lens.’

In addition, those patients who need eye tests to manage an eye condition are entitled to have them carried out free of charge. Such tests can be carried out in the hospital or on referral to a retail optician. However simply receiving advice from a hospital to seek a sight test will not secure a free test unless the individual is ordinarily exempt. Any ‘hospital’ sight test must be for the management of an optical condition”.

Contact Lenses / Glasses

Recovering the total cost of NHS optical appliances including glasses and contact lenses supplied on the NHS is permitted under section 77 in conjunction with schedule 12. Only an ‘eligible person’ in receipt of a valid voucher is entitled to receive optical appliances without charge or at a reduced rate. Section 8 (2) of the NHS (Optical Charges and Payment) Regulations 1997 provides:

‘An eligible person is a person who at the time of the supply of the optical appliance is any of the following 

  1. a child
  2. a person under the age of 19 years and receiving qualifying full-time education…

  3. a person whose resources are treated…as being less than his requirements’….

Additionally, under these regulations, individuals who require particularly strong lens or complex lens prescriptions are classed as eligible people.

The redemption value of the voucher is supposed to reflect the minimum cost of supplying the appliance that meets the patient’s clinical need. However, in practice it rarely meets the actual cost of spectacles, and in recent years the difference has been growing, with the result that people with vouchers have to pay increasing amounts towards the price of their optical appliances. The National Association of Citizen’s Advice Bureaux has suggested that opticians providing NHS treatment should be required to sell glasses within the value of NHS vouchers. Problems can also be caused by the limited range of frames and lenses available at the lower end of the cost spectrum. Uncomfortable or unattractive frames may deter individuals – especially children and young adults – from wearing their lenses. Opticians themselves have concerns that failure to wear prescribed lenses can cause deterioration in some optical and medical conditions. Those who want to buy more expensive lenses or frames simply pay the difference between the desired appliance and the face value of the voucher.

No assistance is available towards the purchase price of contact lens fluid, which makes contact lenses an expensive option for most eligible individuals. Individuals who use contact lenses but who are unable to afford the correct cleaning solutions are at increased risk of infections. ACHCEW considers that the unavailability of cleaning fluids on the NHS is a false economy if it results in increased NHS expenditure on treating eye infections.

Repair and Replacement

Assistance towards the costs of repair or replacement resulting from loss or damage is available only in the cases of appliances dispensed to a child. Other eligible individuals are only entitled to help with the cost of repair where the repair is required as a result of an illness. The Health Authority will first make ‘such enquiries as it considers relevant’ to ascertain the true cause of the damage. The cost of making such enquiries is almost certainly greater than the cost of repairing or replacing the appliance. Eligibility for help with the repair or replacement of optical appliances is particularly restricted, as health authorities are reluctant to fund repairs to appliances supplied under the voucher scheme.

The Medicines Act 1968 divides drugs into three categories, prescription only medicines, medicines that can only be dispensed by a pharmacist and general list medicines. Schedule 10 of the National Health Service (General Medical Services) Regulations 1992 stipulates which products are not available on prescription to patients. This list is regularly updated. Any item not available on prescription must be paid for over the counter at its full retail price.

The NHS (Charges for Drugs and Appliances) Regulations 2000 permit charges for the supply of pharmaceutical products supplied on prescription by chemists, doctors, health authorities, NHS trusts and Primary Care Trusts. The provisions governing the supply of drugs and medicines for each service provider are primarily the same. However, there are different restrictions and powers governing supplies by them.

The Regulations (as amended) state that a chemist, doctor, health authority or trust that provides pharmaceutical services to a patient shall make and recover a fee from each patient’. Each item of the prescription attracts the charge. Two separate fees may be payable where an appliance and a drug is prescribed, for example asthma drug plus inhaler or where a combination pack of drugs designed to make dosage easier is used. In resolution 4 at its AGM in 2000 ACHCEW criticised the inequality whereby

“a pre-packaged course (which) contains two separate types of tablet attracts two charges whereas a compound tablet attracts only one charge. We call upon the Government to review the exemptions urgently in order to make equity paramount.”

Regulation 2(3) limits these separate charges. Quantities of the same drug supplied in more than one container, multiple provision of the same appliance or parts of an appliance which are ordered on

Supply by Chemists

Regulation 3 deals with the supply of drugs and appliances by chemists.

Oxygen concentrators were originally supplied under these Regulations. A monthly fee, in line with prescription charges, was levied. This service was altered in 1992 when the provision of oxygen concentrators was removed from the charging regime. Oxygen concentrators are now supplied by commercial oxygen companies under contract with health service providers. Contractual terms often include charges for maintenance insurance, installation and monthly operational costs. The health service provider should meet these charges. In correspondence with ACHCEW in 1999, the NHS Executive confirmed that the provision of oxygen concentrators should be free of charge to all NHS patients.

Supply by Doctors

Doctors who provide pharmaceutical services may not charge for drugs or appliances required for immediate treatment or administered to the patient personally by the doctor. Injections and vaccinations available on the NHS attract no charge.

Doctors must also provide free pharmaceutical services to individuals resident in schools or institutions under certain circumstances. This provision is perhaps less significant than might be thought since many individuals resident in schools or other institutions will be already exempt from NHS charges on other grounds e.g. – age, income or medical disorder.

Supply by Health Authorities, Trusts and Primary Care Trusts

No charge can be recovered for the supply of drugs, medicines and appliances to a patient resident in hospital. However outpatients do pay the prescription charge. The precise moment of discharge thus assumes some importance: patients may find that they are given a prescription on leaving for items which might just as well have been provided and paid for by the hospital.

NHS bodies, providing a hospital outpatient service, may prescribe specific appliances that are not available from other pharmaceutical service providers. Schedule 1 of the NHS Regulation 1989 (as amended) states that charges may be recovered for the supply of surgical brassieres, abdominal supports, spinal supports, stock modacrylic wigs, partial human hair wigs, and full bespoke human hair wigs.

The level of charges for these appliances has been increased regularly since their introduction and prescription prices for wigs and fabric supports are surprisingly high. Even charges for surgical brassieres are at the top end of the price range for high street lingerie. Support tights, ordinarily unavailable on the NHS, may be supplied, where necessary, by a hospital. These too attract charges.

Exemptions from Prescription Charges

Some patients and some courses of treatment are not chargeable. Schedule 12 of the NHS Act 1977 details the circumstances where no charge may be recovered for the supply of pharmaceutical services and provides:

`No charge shall be made….in relation to the supply of drugs medicines and appliances in respect of;

  1. the supply of any drugs, medicine or appliance for a patient who is for the time being resident in hospital, or

  2. the supply of any drug or medicine for the treatment of venereal disease, or

  3. the supply of any appliance [other than those contraceptive in nature] for a person who is under 16 years of age or under 19 year of age and receiving full time qualifying education, or
  4. the replacement or repair of any appliance in consequence of a defect in the appliance as supplied.’

Regulation 6 of the NHS (Charges for Drugs and Appliances) Regulations 1989 (as amended) expands these exemptions to include people over 60 years of age; expectant mothers; women who have given birth in the last 12 months; those on income support, working family’s tax credit, or disability working allowance; war pensioners and individuals suffering from a variety of specified diseases.

The list of medical conditions, which entitles sufferers to free pharmaceutical services is very restricted. Those suffering from epilepsy and in need of continuous anti-convulsive therapy are exempt but individuals suffering from schizophrenia or paranoia are not. Similarly, individuals with insulin dependent diabetes are exempt but asthma sufferers must purchase their inhaler on prescription. Individuals who are HIV positive, exhibit a marked increase in the occurrence of medical conditions requiring treatment with pharmaceutical products, but neither AIDS nor HIV are included on the list of medical conditions that warrant exemption. The reasoning behind such anomalies is unclear, although generally those conditions warranting exemption tend to be less common and carry less social stigma than those where prescription charges apply. ACHCEW considers that the current restrictions on the types of illness which entitle sufferers to free prescriptions creates inequality between individuals with long term illnesses, and passed a resolution to this effect at its AGM in 2000.

Exemptions from charges for wigs, support tights, surgical bras and abdominal or spinal supports are only available to individuals who are under 16; under 19 and in full time education; in receipt of benefits or in possession of a valid exemption certificate detailing the supply of the specific appliance. Expectant mothers, new mothers, and those over 60 are not entitled to the same benefits.

Pre-payment certificates

Individuals who have long-term prescription needs, but who are ineligible for exemption from charges may incur. considerable cost over the course of their treatment. This is particularly problematic for patients using combination drug therapies who have to meet the charge for each item on their prescriptions.

In an attempt to spread the burden of prescription charges, a pre-payment scheme was introduced in the NHS (Charges for Drugs and Appliances) Regulations 1989. Under this scheme, individuals pay in advance and obtain a pre-payment certificate. Thereafter they do not have to pay prescription charges for the duration of the certificate. Certificates are available for four-month and twelve-month periods.

Medical / Surgical Services

Chargeable Equipment

Only equipment specified in the NHS (Charges for Drugs and Appliances) Regulations 2000 or the NHS Drugs Tariffs may be charged for. At present charges above the prescription rate can be made for elastic tights, spinal supports, abdominal supports and wigs. Further appliances available on the NHS but not listed in the drugs tariff must be supplied free of charge.

This includes orthopaedic equipment and prosthetic limbs. Many appliances, such as walking sticks, frames, and crutches are provided free on loan for the duration of the clinical need.

Wheelchairs

Wheelchairs are loaned to patients for as long as they are required. The NHS pays for maintenance and repair to be carried out by approved repairers. More expensive wheelchairs can be made available through a voucher scheme, which allows the patient to pay the difference between a NHS chair and their preferred model. The NHS (Wheelchair) Regulations 1996 extends this provision by authorising individuals to be charged for the additional costs which may be incurred in maintaining and repairing non-standard wheelchairs.

Deposits

Many hospitals operate schemes that require a deposit for the supply of walking aids and wheelchairs, on the basis that charges should reduce the number of appliances which become lost or damaged. However, such charges by way of a deposit are almost certainly unlawful. The NHS Executive, referring to a ‘deposit scheme’ proposed by Hastings and Rother NHS Trust, stated:

`if the item is medically required, it must be supplied without charge under the NHS, and such a charge would include the taking of a deposit.’

In subsequent communications the Department appears to have retreated slightly from this position. In a letter of the 30 April 1999 Mr N Turnbull, of the NHS Executive, stated that `NHS Trusts are independent and it is up to them to be satisfied of the legality of any arrangements they may have for providing walking aids on a temporary basis to people who are no longer hospital patients’

While ACHCEW recognises the need to reduce equipment damage and loss, hospitals can always seek compensation for this through the courts. The imposition of deposits is a charge and in many cases will affect the accessibility of care. Any charge not authorised by legislation is unlawful. Audiological Services

As noted above, charges may only be applied if statute and regulations allow. No regulations have been made to provide for charges for the provision of hearing aids supplied by the NHS. These must be supplied, repaired and maintained free of charge.

Unlike the schemes that govern provision of wheelchairs and dental appliances, there is no scope for the supply of superior hearing aids on payment of an extra amount by the patient. The NHS only provides standard models sufficient to meet the clinical needs of the patient. Those seeking more expensive models, for example models which are concealed within the ear, are obliged obtain them from private supplies and pay the full market price.

It is important that patients know about their right to free audiological equipment. Hospital NHS audiological services are often provided by private suppliers. Additionally, hospitals often rent space to private suppliers on their premises. Confusion may arise if patients are unable to distinguish between these services or are persuaded that a non-NHS hearing aid is needed to meet their clinical requirements.Appliances

Section 82 of the NHS Act 1977 allows regulations to be introduced permitting the NHS to recover the cost of repairing or replacing NHS appliances where the loss or damage arises from the patients’ carelessness.

Regulation 6 of the NHS (Charges for Appliances) Regulations 1974 provides for the recovery of costs incurred in repairing appliances damaged by the patient. This is a broad provision incorporating the cost of repairs to any appliance provided by the Secretary of State.

Under these regulations, any request for repair or replacement of a NHS appliance can be referred to the relevant Health Authority for investigation. If enquiries determine that the patient caused the loss or damage, a charge may be recovered.

Road Traffic Accidents

The Road Traffic Act 1988 permits NHS to levy charges for the treatment of road traffic accident victims. Procedures for recovering these charges were changed and simplified by the Road Traffic Accidents NHS Charges Act 1999. Previously hospitals claimed from insurance companies for the cost of treating people injured in road accidents, but the complicated administrative arrangements involved often resulted in the money not being collected. The new Act transferred responsibility for collection to the Compensation Recovery Unit acting on behalf of the Secretary of State. This unit redirects the money raised to the hospital where the accident victim was treated.

Insurance companies, not patients, are liable to pay these charges. When an accident victim makes a successful claim for compensation following an accident, the court will also require the insurer paying compensation to pay for the victim’s NHS care. Where the accident was caused by an uninsured or unidentifiable driver, the Motor Insurers’ Bureau becomes liable for these charges. The patient will have little or no role in this process.

Charges for Overseas Visitors

Regulation 2 of The NHS (Charges for Overseas Visitors) Regulations 1989 provides for charges to be levied on those overseas visitors who receive NHS medical care. Regulation 3 confers exemptions on various types of service, while regulations 4-7 allow exemptions for various types of visitor.

No charges will be recovered from any overseas visitor for:

  • Treatment at an accident and emergency department.
  • Treatment for a sexually transmitted disease (excluding HIV).
  • Diagnostic testing and associated counselling for HIV.
  • Treating an individual detained under the Mental Health Act 1983.
  • Treatment for a mental condition included in a probation order by a court.

All other NHS services (which do not attract charges to UK citizens) are provided without charge to any person:

  • Who has been resident in the UK for 12 months prior to treatment.
  • Who has come to the UK to take up employment or permanent residence.
  • Who is a national (and in some cases a resident) of the European Economic Areas or of countries with whom the UK has a reciprocal agreement, and where the need for treatment arose during the visit, (and in some cases where a person has been specifically referred for treatment).

  • Who is in the UK as a refugee, a prisoner, a diplomat or NATO service personnel.

 

Miscellaneous Charges

NHS Trusts are permitted to generate income so long as it does not interfere with their main function of providing health services to NHS patients. Charges for car parking, retail outlets, catering, and for the provision of occupational health services to local employers all fall into this category.

GPs, under their service contracts, are allowed to charge for a variety of non-NHS services. These include holiday vaccinations and private consultations. The BMA publishes recommended fees for these services but doctors are under no obligation to follow these scales. Similarly, hospitals often recover charges for the provision of side rooms and leisure facilities such as televisions.

However, attempts by GPs to levy charges for visits to patients in private nursing homes and suggestions made by ambulance trusts that they should be able to charge patients for non urgent transport, are not permissible under current legislation.

Sale of Goods and Services Legislation

The Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 are pieces of consumer protection legislation. They give consumers rights, for instance to claim damages for deficient goods and services. If patients are required to pay charges for NHS services, arguably they are consumers and should be entitled to the protection these laws afford. However, in the case of Pfizer v Minister of HeaIth (1965), it was held that services provided by health authorities under the authority of the Secretary of State are exempt from the provisions of Acts of Parliament unless those Acts specifically state that they apply to the Crown. Recent changes to the doctrine of crown immunity, the growing emphasis on the patient as consumer, and the decentralisation of the health service could lead a court today to take a different view.

Conclusion

The regulations governing charges are diffuse and difficult to understand. The range of charging regimes that apply confuses patients and health professionals alike.

The current government has committed itself to

“Undertake the biggest assault our country has ever seen on health disadvantage… to tackle health inequalities by improving the health of our nation overall and deliberately and determinedly raise the health of the poorest fastest

Yet apart from the welcome restoration of free sight tests for the over 60s, the only significant initiative to date undertaken by the government in relation to tackling the injustice of NHS charges has been to introduce a tougher sanctions regime for individuals found to have wrongly received free NHS treatment.

As an urgent first step the government needs to:

  • Remove eye tests and dental check-ups from the charging regime.

  • Significantly reduce prescription and dental charges.

  • Redesign exemption criteria and voucher schemes to reduce the hardship felt by those on long term medication.

While charging persists, action must be taken to simplify and make transparent the confusing mishmash of applicable rules:

  • Decisions about NHS charges should be brought into the public arena.
  • Charging policies must be firmly regulated at a national level to avoid geographical variations.
  • A major consolidation of the legislation must be carried out.

  • Patients should be told well in advance what charges can be levied and how much each treatment will be.

  • The inconsistencies in the exemption criteria need to be addressed to overcome the inequity whereby certain illnesses warrant free prescriptions while others do not, or certain ways of packaging treatments results in several prescription charges rather than one.

None of this would completely remedy the problems identified in this report. Charges markedly reduce take up by patients on low incomes and those who suffer long-term illness, and they undermine preventative public health. ACHCEW remains committed to the abolition of charging and the restoration of free universal health care.

 

 

Bibliography

ACHCEW [1996] NHS Charges — Do They Matter? Health Perspectives April 1996

DoH Publication [1998]. Advisors Guide to Help with Health Costs. HC13

DoH Publication [1996]. Are You Entitled to Help with Health Costs? HC11

NACAB [2001] Unhealthy Charges

Public Policy Research Unit [2000]. Thinking the Unthinkable Health Matters

NHS Executive [1999] Charges for Drugs, Appliances, Wigs and Fabric Supports. HSC 1999/063

NHS Executive [1998] Charges for Drugs, Appliances, Wigs and Fabric Supports. HSC 1998/16

NHS executive [1999] General Ophthalmic Services — Increase to the NHS Sight Test Fee for Ophthalmic Opticians and Ophthalmic Medical Practitioners. HSC 1999/068

NHS Executive [1999] General Ophthalmic Services — Increases in Spectacle Voucher Values, Changes in Definition. HSC 1999/051

Post Magazine [1998]. Bad Medicine from the NHS. 26 Nov 1998

Post Magazine [1998]. Insurance Industry Faces Battle over Law Reforms. 26 Nov 1998

Janice Robinson [2000] Reforming Long-Term Care finances: a continuing saga in Health Care UK, King’s Fund, Winter 2000

Smith L, Ghalamkari H [1998]. Can Prescription Charges be Justified? Pharmaceutical Journal vol. 260:531-534

Webster C [1988,1996]. The National Health Service. Oxford University Press

Produced by  Antonia Ford, Philip McLeish and Marion Chester  for the ASSOCIATION OF COMMUNITY HEALTH COUNCILS FOR ENGLAND & WALES

February 2002

3 Comments

Most healthcare professionals come across lasting powers of attorney on a regular basis. A Lasting Power of Attorney is a document that allows you to nominate who should make decisions for you, should you lose mental capacity to act for yourself. There are two types: one that allows you to specify how your financial affairs should be managed, and the one that doctors, nurses and carers more often see that allows you to record what medication you consent to be given and how you would like to be cared for.

The government department in charge of registering the documents and investigating abuse of powers, the Office of the Public Guardian, abbreviated to the OPG, is trying to encourage more people to make this type of power of attorney. There are good reasons why all adults, and especially healthcare professionals should have these documents in place.

Lasting Power Of Attorney

We can lose mental capacity at any time

A survey by IPSOS Mori found that many people were either putting off making a Lasting Power of Attorney, or didn’t consider that they were old enough to need to make one. There is an understandable fear that to make one is to acknowledge that your current lifestyle might change soon.

But we should recognise that is the case at any point in time. A serious car accident poses a risk of loss of capacity to someone of any age. Early onset dementia affects people younger than 65 years old. Making a Lasting Power of Attorney isn’t just a helping tool for the elderly.

A lasting power of attorney only comes into effect if you lose mental capacity (with the exception of giving someone some powers to manage your financial affairs if you choose to do so). People often make the mistake that registering the documents is giving up control of your life immediately to your attorneys. It isn’t. It’s a means of giving yourself some protection should you need it. While you have capacity, you remain totally in control of your life.

The other way for someone to take charge of decisions for you is time consuming and costly

Another misunderstanding is that if you do lose mental capacity, your husband, wife, carer or family member can continue to do the things you did on your behalf. Unfortunately, common tasks such as taking out money from an ATM or paying a bill can only be done legally by you, and only if you have mental capacity. Otherwise, the person acting on your behalf will be breaking the law.

The alternative to having registered a lasting power of attorney is for your carers to seek power from the Court of Protection. This is time consuming and costly, and while court proceedings are happening, no-one will be able to make decisions on your behalf. That means if you need urgent care, the best decision about it might not be able to be made.

In contrast, making a Lasting Power of Attorney does not have to be expensive. There are two online services (one operated by the government) that allow you to create the document immediately. Alternatively, you can complete paper versions of the forms. The Office of the Public Guardian charge £110 to register each Lasting Power of Attorney, although if you are eligible, you can apply for fees to be reduced significantly.

There really is no reason why every adult shouldn’t have LPAs in place.

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SHA Wales

Health and Social Care Briefing

Acts

None as yet in this current term of the National Assembly for Wales

Legislation in Progress – current Bills

Public Health (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=16155

The Public Health (Wales) Bill utilises legislation as a mechanism for improving and protecting the health and wellbeing of the population of Wales. It comprises a set of provisions in discrete areas of public health policy:

The Bill proposes to introduce changes that:

  • Re-state restrictions on smoking in enclosed and substantially enclosed public and work places, and give Welsh Ministers a regulation-making power to extend the restrictions on smoking to additional premises or vehicles;

  • Place restrictions on smoking in school grounds, hospital grounds and public playgrounds;

  • Provide for the creation of a national register of retailers of tobacco and nicotine products;

  • Provide Welsh Ministers with a regulation-making power to add to the offences which contribute to a Restricted Premises Order (RPO) in Wales;

  • Prohibit the handing over of tobacco and/or nicotine products to a person under the age of 18;

  • Provide for the creation of a mandatory licensing scheme for practitioners and businesses carrying out ’special procedures’, namely acupuncture, body piercing, electrolysis and tattooing;

  • Introduce a prohibition on the intimate piercing of persons under the age of 16 years;

  • Require Welsh Ministers to make regulations to require public bodies to carry out health impact assessments in specified circumstances;

  • Change the arrangements for determining applications for entry onto the pharmaceutical list of health boards (LHBs), to a system based on the pharmaceutical needs of local communities;

  • Require local authorities to prepare a local strategy to plan how they will meet the needs of their communities for accessing toilet facilities for public use; and

  • Enable a ‘food authority’ under the Food Hygiene Rating (Wales) Act 2013 to retain fixed penalty receipts resulting from offences under that Act, for the purpose of enforcing the food hygiene rating scheme

The Bill was introduced on the 12th of September 2016.

The Bill is currently at stage 1.

Additional Learning Needs and Education Tribunal (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=16496  

The Bill makes provision for a new statutory framework for supporting children and young people with additional learning needs. This is to replace existing legislation surrounding special educational needs and the assessment of children and young people with learning difficulties and / or disabilities in post-16 education and training.

The Bill also continues the existence of the Special Educational Needs Tribunal for Wales and provides for children, their parents and young people to appeal to it against decisions made in relation to their or their child’s additional learning needs, but renames it the Education Tribunal for Wales

The Bill was introduced on the 12th of December 2016

The Bill is currently at stage 1.

Trade Union Wales Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=16591

According to the Explanatory Memorandum accompanying the Bill, the purpose and intended effect of the Bill is “to ensure the continued and effective delivery of public services”. It seeks “to support the social partnership agenda, through which the continuous improvement of key public services in Wales can be delivered”.

The Bill proposes to introduce changes that dis-apply certain provisions of the UK Government’s Trade Union Act 2016 as they apply to devolved Welsh authorities. The provisions to be dis-applied are as follows:

  • the 40% ballot threshold for industrial action affecting important public services;

  • powers to require the publication of information on facility time and to impose requirements on public sector employers in relation to paid facility time;

  • restrictions on deduction of union subscriptions from wages by employers

The Bill was introduced on 18th of January 2017

The Bill is currently at stage 1.

Future Bills (of interest)

There is nothing to report here at this time.

Possible Bills

Current White Paper – Reforming Local Government: Resilient and Renewed

https://consultations.gov.wales/consultations/reforming-local-government-resilient-and-renewed

Welsh Government is consulting on proposals which:

  • set out arrangements for regional working

  • strengthen the role of councils and councillors

  • provide the framework for future voluntary mergers

  • detail the role of community councils

Welsh Government is also seeking views on reform to the electoral system for local government in Wales.

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Wales is the only part of the UK where “deemed consent” to organ donation applies. The means that any deceased who is over 18 years, is mentally competent and who had lived in Wales for  12 months is deemed to have given consent to organ donation unless they have formally registered their objection.

About a decade ago, the UK had a low organ donation rates (13 / million population) compared to countries such countries as Spain, USA and France. As well it had a much lower rate of next of kin refusal. In Wales around three people per month died while waiting for an organ donation with about 300 people on a transplantation list.

The issue was considered by the National Assembly for Wales Health and Well-being Committee in 2008. Though its report did not recommend  “presumed consent”, the Welsh Government felt there was sufficient public support for the proposal and indicated its intention to legislate on the matter. A commitment to do so was included in the Welsh Labour, Plaid Cymru and Liberal Democrat’s manifestos for the 2011 National Assembly election.

The Bill was introduced into the National Assembly in December 2012. Over the next year an extensive debate and consultation took place. There was broad support for its purposes though concern was expressed, by Christian and Islamic faith groups in particular, that “deemed consent” was not real consent and that it undermined the altruistic virtue of the gift of donation.

A key feature of the legislation was its “soft opt-out” option whereby close relatives are involved in the donation decision with particular attention being paid to any evidence that the deceased may not have wished to have their organs donated.

In the run up to the beginning of the legislation in December 2015 there was an major campaign to both explain the new legislation and to raise awareness on the wider organ donation need in Wales. The legislation will require the Welsh Government to maintain a programme of promoting public awareness and to report on progress.

At the end of the first year of the legislation the Welsh Government reported “… the latest figures show that 39 organs from patients whose consent was deemed have been transplanted into people who are in need of replacement organs.

In the two years prior to the introduction of the new system of deemed consent, .. (we) made significant efforts to inform the public of the exact nature of the upcoming changes in respect of transplantation activities. During this period the number of organs transplanted increased each year, from 120 between the 1 December 2013 and 31 October 2014, to 160 between 1 December 2015 and 2016.

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Confused over whether you can make a compensation claim? Our simple guide can help you earn back what you deserve

It probably goes without saying that, whether it’s through the NHS or private medical care, the UK’s healthcare system is among the best in the world. With a plethora of skilled medical experts (1.6 million of them in the NHS alone) and a near-total commitment to professional care, service, and progression, it’s no surprise that the number of claims for clinical or medical negligence made against medical practitioners is so scarce.

Unfortunately, instances of claims for clinical negligence still exist, often resulting in expensive and well-publicised court cases and settlements. More importantly, the incident under scrutiny can leave the injured, innocent party feeling angry and betrayed. The patient could well feel weak and powerless in moments like these, but the power is still in their hands to seek recompense for the malpractice they have been a victim of. All it takes is a little knowledge of the laws surrounding clinical negligence to be able to use that power.

Defining clinical negligence

In its simplest form, clinical negligence (also known as medical negligence) occurs when a patient is the victim of substandard treatment or advice from healthcare professionals, leading to physical or emotional distress. This broad definition allows clinical negligence to cover many different forms of inappropriate, negligent acts by practitioners — from an incorrect diagnosis or prescription from your GP, to life-altering mistakes or errors by a surgeon during invasive surgery.

It also covers multiple forms of medical care away from the hospital or from a doctor’s surgery, with chiropractors and physiotherapists among the other experts liable to clinical negligence claims if their service and/or treatments to a patient bring negative results. A clinical negligence claim does not have to be about the actions of a healthcare professional either. The actions they don’t make can often be equally as detrimental to a patient’s health, such as failing to identify a problem in an x-ray, a lack of diagnosis for an illness, or the refusal to prescribe necessary medication.

How to know if you can make a claim

To save the time, effort, and finances of both yourself and who you aim to claim against, it’s worth having a clear understanding of whether your situation warrants making a compensation claim. Over 60% of cases taken to trial against the NHS are successfully defended, further showing how easy it is for the definition of clinical negligence to be misconstrued.

Two key factors will be taken into account when the decision over whether to take your claim forward is made. Firstly, liability is an extremely important matter, as your case must present evidence that the professional who treated you did not make a decision, or act in such a way, that a similar professional would when looking to achieve the best outcome for the patient. Secondly, there is causation. This means proving that the suffering you have endured is a direct result of the actions of the individual or group of people you are claiming against. If it can be proven that there is more than a 50% chance that the doctor, nurse or other professional caused your problems, then the case can be taken forward — but the higher this percentage, the stronger your claim will be.

There are also instances where individuals have claimed on behalf of someone who has been a victim of clinical negligence. If you are the next of kin of someone who has passed away due to negligence or lack the capacity to make a claim themselves, you are in a position to do it for them.

Steps to take after a clinical negligence incident

Before any steps toward a compensation claim on the grounds of clinical negligence are made, other steps should be taken to begin the process of proving a serious wrongdoing has taken place. If you have any worries or notice something untoward following your meeting or treatment with a medical professional, you should seek an official, written explanation from them, and see if the issue can be quickly resolved. If it cannot be resolved, the explanation could well play a large part in the validity of a compensation claim.

All your medical records will also be an important aspect, which should consist of every note, step, and procedure taken by the professionals that dealt with you. You are legally obliged to see these records, and you can give permission for a solicitor to acquire them and bring them forward as invaluable evidence to your claim.

If you decide to make a claim, understanding who you must claim against is a necessary step before going any further. If the incident in question involved a person or group of people practicing under the NHS, you will claim against the NHS, which will be represented by its independent Litigation Authority (NHSLA). The end result of claims against the NHSLA is usually an out-of-court settlement, with less than 2% of cases reaching the courtroom. If the incident was caused by a private practitioner, then you will claim against them or the management of the clinic they work in.

Either way, the legal process involved will focus purely on three factors: outlining the suffering caused, identifying the individuals who caused the suffering, and ensuring you are financially compensated for the incident. Any other motivations for making a claim, such as putting a medical practitioner out of work or a changing of policy, will not be a direct result of a successful claim.

 Tips for a strong clinical negligence claim

Stay calm and prepare a claim – It’s only natural to feel frustrated when physical health or psychological stability is snatched away from you by professionals you trusted. However, try not to let that frustration get in the way of earning back what is rightfully yours. Consult the individual you believe to be responsible in a calm but very serious manner, so they can respond with an explanation. Gather those clinical records, make a note of any pain, side-effects or financial losses you’ve had to go through since the incident occurred, and put together a bullet-proof claim.

Don’t wait around to make your claimThree years from the date of the injury is the general rule for personal injury claims, but once you’ve gathered all that important information, little time should be wasted in getting started. Making a claim shortly after the incident means your memories of what can often be a long-winded and intricate medical process remain fresh in the mind. Lacking the ability to talk your solicitor or other parties through the event can deal great damage to the validity of your claim, so once you’re ready, get the ball rolling.

Get expert advice – Kicking off the legal process by contacting a personal injury company for legal advice as soon as possible is recommended. They can soothe any worries or queries you might have and make a sound decision on whether you can proceed with your claim. Finding a company that will take your case forward on a “No Win, No Fee” basis can also be of great benefit, taking any potential financial risk out of making a clinical negligence claim.

About the author: Carl Waring of Mayiclaim is a senior solicitor with over 25 years of experience in compensation claims and legal disputes.

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Health and Social Care Acts

The Assembly has to date passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013 – 4th of March 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013 – 10th of September 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

Active Travel (Wales) Act 2013 – 4th of November 2013

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

National Health Service (Finance) (Wales) Act 2014 – 27th of January 2014

This Act changes the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Social Services and Wellbeing (Wales) Act 2014 – 1st of May 2014

This Act aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

Housing (Wales) Act 2014 – 17th of September 2014

The key purposes of this Act are to:

  • Introduce a compulsory registration and licensing scheme for private rented sector landlords and letting and management agents;

  • Reform homelessness law, including placing a stronger duty on local authorities to prevent homelessness and allowing them to use suitable accommodation in the private sector;

  • Place a duty on local authorities to provide sites for Gypsies and Travelers where a need has been identified.

  • Introduce standards for local authorities on rents, service charges and quality of accommodation;

  • Reform the Housing Revenue Account Subsidy system;

  • Give local authorities the power to charge 50% more than the standard rate of council tax on homes that have been empty for a year or more; and

  • Assist the provision of housing by Co-operative Housing Associations.

The Wellbeing of Future Generations (Wales) Act – 29th of April 2015

The key purposes of the Act are to:

  • Set a framework within which specified Welsh public authorities will seek to ensure the needs of the present are met without compromising the ability of future generations to meet their own needs (the sustainable development principle),

  • Put into place well-being goals which those authorities are to seek to achieve in order to improve wellbeing both now and in the future,

  • Set out how those authorities are to show they are working towards the well-being goals,

  • Put Public Services Boards and local well-being plans on a statutory basis and, in doing so, simplify current requirements as regards integrated community planning, and

  • Establish a Future Generations Commissioner for Wales to be an advocate for future generations who will advise and support Welsh public authorities in carrying out their duties under the Act. 

Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 – 29th of April 2015

The provisions of the Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Act are intended to ensure a focus across the public sector on the prevention of these issues, the protection of victims and the support for those affected by such issues.

The Act places duties on the Welsh Ministers, County and County Borough Councils (“Local Authorities”) and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Act further provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Act contains provision for the appointment of a Ministerial Adviser.

Local Government (Wales) Act 2015 – 25th of November 2015

The provisions of the Local Government (Wales) Bill are intended to allow for certain preparatory work to enable a programme of local government mergers and reform and include provisions to facilitate the voluntary early merger of two or more Principal Local Authorities by April 2018. The Bill also amends existing legislative provision in the Local Government (Wales) Measure 2011 (relating to the Independent Remuneration Panel for Wales and the survey of councillors and unsuccessful candidates) and the Local Government (Democracy) (Wales) Act 2013 (relating to electoral reviews).

Regulation and Inspection (Wales) Act 2016 – 25th of January 2016

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.

The Bill includes provision for:

  • reform of the regulatory regime for care and support services;
  • provision of a regulatory framework that requires an approach to the regulation of care and support services focused on outcomes for service users;
  • reform of the inspection regime for local authority social services functions;
  • the reconstitution and renaming of the Care Council for Wales as Social Care Wales and the broadening of its remit; and
  • the reform of the regulation of the social care workforce

Legislation in Progress – current Bills

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

The Counsel General wrote to the Chief Executive and Clerk of the Assembly on 11 December 2013 to advise that he would be referring the Bill to the Supreme Court under Section 112 of the Government of Wales Act 2006. This letter can be found here together with the response from the Attorney General.

The Supreme Court handed down its Judgment on this case on 9 February 2015. The Supreme Court found that the Assembly does not have the legislative competence to enact the Bill in its present form.  Details of the judgment can be accessed here  (external website).

Under Standing Order 26.53, any Assembly Member may propose that the Bill proceeds to Reconsideration Stage.

Nurse Staffing Levels (Wales) Bill

This is a proposed member Bill from the leader of the Welsh Liberal Democrats, Kirsty Williams AM.

The Bill seeks to enshrine minimum nurse to patient ratios in law to ensure that there are sufficient numbers of staff within the NHS to provide safe care at all times.

This legislation would require the government to produce regulations which set a minimum staffing level for nurses in Wales. These regulations would be required to set minimum nurse staffing levels for each different acute and specialist service. I am also mindful to include a requirement for the regulations to address the complexity of patients’ needs and on the skills mix in a hospital.

The legislation would also give the government the power to issue similar regulations for community nursing, but only when they considered that sufficient evidence exists to support regulations in this area.

This Bill is currently at post stage 4.  It is now in the four week period of intimation (11 February – 9 March 2016).  During this period, the Counsel General or the Attorney General may refer the question whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

Public Health (Wales) Bill

The Bill includes provision for the following:

  • Tobacco and nicotine product
  • Special procedures (creating a mandatory licensing scheme for practitioners and businesses carrying out procedures such as acupuncture, body piercing, electrolysis and tattooing)
  • Pharmaceutical services
  • Provision of public toilets

The Bill is currently at stage 3 and is expected to pass all stages prior to the end of the current Assembly term.

Future Bills (of interest)

Additional Learning Needs and Educational Tribunal (Wales) Bill

Welsh Government plan to introduce a new legislative framework for supporting children and young people with additional learning needs.  This will replace existing legislation for the assessment and provision of support for learners with special educational needs in schools and learning difficulties and/or disabilities in post-16 education and training.

Welsh Government has consulted on proposals for inclusion in draft legislation which has implications for health services and education services.

It is hoped that a Bill will be formally introduced after the election in 2016.

Possible Bills: There is nothing to note in this section currently.

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Health and Social Care Briefing – March 2015

 ACTS

The Assembly has to date passed the following Acts of relevance to the health and social care community.

Food Hygiene Rating (Wales) Act 2013 – 4th of March 2013

This Act includes provision for food authorities to operate a food hygiene rating scheme and places a duty on food businesses to display their food hygiene rating at their establishment.

Human Transplantation (Wales) Act 2013 – 10th of September 2013

This Act aims to increase the number of organs and tissues available for transplant by introducing a soft opt-out system of organ and tissue donation in Wales.

Active Travel (Wales) Act 2013 – 4th of November 2013

This Act places a requirement on local authorities to continuously improve facilities and routes for walkers and cyclists and to prepare maps identifying current and potential future routes for their use.  The bill will also require new road schemes to consider the needs of pedestrians and cyclists at design stage.

National Health Service (Finance) (Wales) Act 2014 – 27th of January 2014

This Act changes the current financial duties of Local Health Boards (LHBs) under the National Health Services (Wales) Act 2006 from an annual statutory requirement for expenditure not to exceed resource limit, to a regime which considers the financial duty to manage its resources within approved limits over a 3-year period.

Social Services and Wellbeing (Wales) Act 2014 – 1st of May 2014

This Act aims to provide, for the first time, a coherent Welsh legal framework for social services.  It will ensure a strong voice and real control for people, of whatever age, enabling them to maximise their wellbeing.  It will set the legal framework and infrastructure to transform services to meet changing social expectations and changing demography.

Consultation has closed on the first tranche of regulations and codes:

http://wales.gov.uk/consultations/healthsocialcare/part11/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part-3-and-4/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part2/?lang=en

http://wales.gov.uk/consultations/healthsocialcare/part7/?lang=en

 Housing (Wales) Act 2014 – 17th of September 2014

The key purposes of this Act are to:

  • Introduce a compulsory registration and licensing scheme for private rented sector landlords and letting and management agents;
  • Reform homelessness law, including placing a stronger duty on local authorities to prevent homelessness and allowing them to use suitable accommodation in the private sector;
  • Place a duty on local authorities to provide sites for Gypsies and Travelers where a need has been identified.
  • Introduce standards for local authorities on rents, service charges and quality of accommodation;
  • Reform the Housing Revenue Account Subsidy system;
  • Give local authorities the power to charge 50% more than the standard rate of council tax on homes that have been empty for a year or more; and
  • Assist the provision of housing by Co-operative Housing Associations.

 LEGISLATION IN PROGRESS – BILLS

Recovery of Medical Costs for Asbestos Disease (Wales) Bill

The purpose of the Bill is to enable the Welsh Ministers to recover from a compensator (being a person by or on behalf of whom a compensation payout is made to or in respect of a victim of asbestos related disease), certain costs incurred by the NHS in Wales in providing care and treatment to the victim of the asbestos-related disease.

This Bill is currently at post-stage 4.  The Counsel General has written to the Chief Executive and Clerk of the Assembly to advise that the Bill will be referred to the Supreme Court for a decision relating to legislative competence.

 

Local Government (Wales) Bill

 

The provisions of the Local Government (Wales) Bill are intended to allow for certain preparatory work to enable a programme of local government mergers and reform and include provisions to facilitate the voluntary early merger of two or more Principal Local Authorities by April 2018. The Bill also amends existing legislative provision in the Local Government (Wales) Measure 2011 (relating to the Independent Remuneration Panel for Wales and the survey of councillors and unsuccessful candidates) and the Local Government (Democracy) (Wales) Act 2013 (relating to electoral reviews).

 

The Bill is currently at Stage 1 with the Communities, Equalities and Local Government Committee scrutinising the purpose and general principles of the Bill.

 

The Wellbeing of Future Generations (Wales) Bill

 

The key purposes of the Bill are to:

 

  • Set a framework within which specified Welsh public authorities will seek to ensure the needs of the present are met without compromising the ability of future generations to meet their own needs (the sustainable development principle),
  • Put into place well-being goals which those authorities are to seek to achieve in order to improve wellbeing both now and in the future,
  • Set out how those authorities are to show they are working towards the well-being goals,
  • Put Public Services Boards and local well-being plans on a statutory basis and, in doing so, simplify current requirements as regards integrated community planning, and
  • Establish a Future Generations Commissioner for Wales to be an advocate for future generations who will advise and support Welsh public authorities in carrying out their duties under the Bill.

This Bill is currently at stage 4 and is due to be voted on by the full Assembly before the end of March 2015.

Gender Based Violence, Domestic Abuse and Sexual Violence (Wales) Bill

The provisions of the Gender-based Violence, Domestic Abuse and Sexual Violence (Wales) Bill are intended to ensure a focus across the public sector on the prevention of these issues, the protection of victims and the support for those affected by such issues.

 

The Bill places duties on the Welsh Ministers, County and County Borough Councils (“Local Authorities”) and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. The Bill further provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Bill contains provision for the appointment of a Ministerial Adviser.

 

The Bill is now in the four week period of intimation (11 March – 7 April 2015).  During this period, the Counsel General or the Attorney General may refer the question whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

 

Regulation and Inspection (Wales) Bill

A separate Bill to the Social Services (Wales) Bill to cover the regulation and inspection of the social care workforce, training and social care services in Wales.

The Bill includes provision for:

  • reform of the regulatory regime for care and support services;
  • provision of a regulatory framework that requires an approach to the regulation of care and support services focused on outcomes for service users;
  • reform of the inspection regime for local authority social services functions;
  • the reconstitution and renaming of the Care Council for Wales as Social Care Wales and the broadening of its remit; and
  • the reform of the regulation of the social care workforce.

 

This Bill is currently at the scrutiny stage.  It will be considered by the Constitution Committee and the Finance Committee but the committee taking the lead in scrutiny will be the Health and Social Services Committee.  This committee has called for written evidence by the 24th of April.

 

Safe Staff Nursing Levels (Wales) Bill

This is a proposed member Bill from the leader of the Welsh Liberal Democrats, Kirsty Williams AM.

The Bill seeks to enshrine minimum nurse to patient ratios in law to ensure that there are sufficient numbers of staff within the NHS to provide safe care at all times.

This legislation would require the government to produce regulations which set a minimum staffing level for nurses in Wales. These regulations would be required to set minimum nurse staffing levels for each different acute and specialist service. I am also mindful to include a requirement for the regulations to address the complexity of patients’ needs and on the skills mix in a hospital.

The legislation would also give the government the power to issue similar regulations for community nursing, but only when they considered that sufficient evidence exists to support regulations in this area.

This Bill is currently at Stage 1 and the Health and Social Care Committee are taking evidence as part of their scrutiny process on the Principles and Purpose of the Bill.  The timescales have changed so that now the deadline for Stage 1 is Friday the 8th of May (as opposed to the original 10th of April deadline) and the Deadline for Stage 2 consideration (should that be required) is now Friday 17th of July as opposed to 5th of June.

POSSIBLE BILLS

Public Health (Wales) Bill

To provide the legislative basis for delivering improved life expectancy, wellbeing and reducing health inequality in Wales as promised both in the manifesto and in the policy document ‘Fairer Health Outcomes for All’.

A Green Paper consultation ended February 2013.  This consultation was to collect views about whether a Public Health Bill is needed in Wales.

The White Paper was published in April 2014 including measures on minimum pricing for alcohol and restricting the use of e-cigarettes.  It closed on the 24th of June 2014.  The Welsh Government intends to introduce this Bill before the summer recess of 2015.

 

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