Category Archives: Regulation

The Socialist Health Association (SHA) published its first Blog on the COVID-19 pandemic last week (Blog 1 – 17th March 2020). A lot has happened over the past week and we will address some of these developments using the lens of socialism and health.

  1. Global crisis

This is a pandemic, which first showed its potential in Wuhan in China in early December 2019. The Chinese government were reluctant to disclose the SARS- like virus to the WHO and wider world to start with and we heard about the courageous whistle blower Dr Li Wenliang, an ophthalmologist in Wuhan, who was denounced and subsequently died from the virus. The Chinese government recognised the risk of a new SARS like virus and called in the WHO and announced the situation to the wider world on the 31st December 2019.

The starter pistols went off in China and their neighbouring countries and the risk of a global pandemic was communicated worldwide. The WHO embedded expert staff in China to train staff, guide the control measures and validate findings. Dr Li Wenliang who had contracted the virus, sadly died in early February and has now been exonerated by the State. Thanks to the Chinese authorities and their clinical and public health staff we have been able to learn about their control measures and the clinical findings and outcomes in scientific publications. This is a major achievement for science and evidence for public health control measures but….

Countries in the Far East had been sensitised by the original SARS-CoV outbreak, which originated in China in November 2002. The Chinese government at that time had been defensive and had not involved the WHO early enough or with sufficient openness. The virus spread to Hong Kong and then to many countries showing the ease of transmission particularly via air travel. The SARS pandemic was thankfully relatively limited leading to global spread but ‘only’ 8,000 confirmed cases and 774 deaths. This new Coronavirus COVID-19 has been met by robust public health control measures in South Korea, Taiwan, Hong Kong, Japan and Singapore. They have all shown that with early and extensive controls on travel, testing, isolating and quarantining that you can limit the spread and the subsequent toll on health services and fatalities. You will notice the widespread use of checkpoints where people are asked about contact with cases, any symptoms eg dry cough and then testing their temperature at arms length. All this is undertaken by non healthcare staff. Likely cases are referred on to diagnostic pods. In the West we do not seem to have put much focus on this at a population level – identifying possible cases, testing them and isolating positives.

To look at the global data the WHO and the John Hopkins University websites are good. For a coherent analysis globally the Tomas Peoyu’s review  ‘Coronavirus: The Hammer and the dance’ is a good independent source as is the game changing Imperial College groups review paper for the UK Scientific Advisory Group for Emergencies (SAGE). This was published in full by the Observer newspaper on the 23rd March. That China, with a population of 1.4bn people, have controlled the epidemic with 81,000 cases and 3,260 deaths is an extraordinary achievement. Deaths from COVID-19 in Italy now exceed this total.

The take away message is that we should have acted sooner following the New Year’s Eve news from Wuhan and learned and acted on the lessons of the successful public health control measures undertaken in China and the Far East countries, who are not all authoritarian Communist countries! Public Health is global and instead of Trump referring to the ‘Chinese’ virus he and our government should have acted earlier and more systematically than we have seen.

Europe is the new epicentre of the spread and Italy, Spain and France particularly badly affected at this point in time. The health services in Italy have been better staffed than the NHS in terms of doctors/1000 population (Italy 4 v UK 2.8) as well as ITU hospital beds/100,000 (Italy 12.5 v UK 6.6). As we said in Blog 1 governments cannot conjure up medical specialists and nurses at whim so we will suffer from historically low medical staffing. The limited investment in ITU capacity, despite the 2009 H1N1 pandemic which showed the weakness in our system, is going to harm us. It was great to see NHS Wales stopping elective surgical admissions early on and getting on with training staff and creating new high dependency beds in their hospitals. In England elective surgery is due to cease in mid April! We need to ramp up our surge capacity as we have maybe 2 weeks at best before the big wave hits us. The UK government must lift their heads from the computer model and take note of best practice from other countries and implement lockdown and ramp up HDU/ITU capacity.

In Blog 1 we mentioned that global health inequalities will continue to manifest themselves as the pandemic plays out and spare a thought for the Syrian refugee camps, people in Gaza, war torn Yemen and Sub Saharan Africa as the virus spreads down the African continent. Use gloves, wash your hands and self isolate in a shanty town? So let us not forget the Low Middle Income Countries (LMICs) with their weak health systems, low economic level, weak infrastructure and poor governance. International banking organisations, UNHCR, UNICEF, WHO and national government aid organisations such as DFID need to be resourced and activated to reach out to these countries and their people.

  1. The public health system

We are lucky to have an established public health system in the UK and it is responding well to this crisis. However we can detect the impact of the last 10 years of Tory Party austerity which has underfunded the public health specialist services such as Public Health England (PHE) and the equivalents in the devolved nations, public health in local government and public health embedded in laboratories and the NHS. PHE has been a world leader in developing the PCR test on nasal and throat samples as well as developing/testing the novel antibody blood test to demonstrate an immune response to the virus. The jury is out as to what has led to the lack of capacity for testing for C-19 as the UK, while undertaking a moderate number of tests, has not been able to sustain community based testing to help guide decisions about quarantining key workers and get intelligence about the level of community spread. Compare our rates of testing with South Korea!

We are lucky to have an infectious disease public health trained CMO leading the UK wide response who has had experience working in Africa. Decisions made at COBRA and announced by the Prime Minister are not simply based ‘on the science’ and no doubt there have been arguments on both sides. The CSO reports that SAGE has been subject to heated debate as you would expect but the message about herd immunity and stating to the Select Committee that 20,000 excess deaths was at this stage thought to be a good result was misjudged. The hand of Dominic Cummings is also emerging as an influencer on how Downing Street responds. Remember at present China with its 1.4bn population has reported 3,260 deaths. They used classic public health methods of identifying cases and isolating them and stopping community transmission as much as possible. Herd immunity and precision timing of control measures has not been used.

The public must remain focused on basic hygiene measures – self isolating, washing of hands, social distancing and not be misled about how fast a vaccine can be developed, clinically tested and manufactured at scale. Similarly hopes/expectations should not be placed on novel treatments although research and trials do need supporting. The CSO, who comes from a background in Big Pharma research, must be seen to reflect the advice of SAGE in an objective way and resist the many difficult political and business pressures that surround the process. His experience with GSK should mean that he knows about the timescales for bringing a novel vaccine or new drugs safely to market.

  1. Local government and social care

Local government (LAs) has been subject to year on year cuts and cost constraints since 2010, which have undermined their capability for the role now expected of them. The budget did not address this fundamental issue and we fully expect that in the crisis, central government will pass on the majority of local actions agreed at COBRA to them. During the national and international crisis LAs must be provided with the financial resources they need to build community hubs to support care in the community during this difficult time. The government need to support social care.

COVID-19 is particularly dangerous to our older population and those with underlying health conditions. This means that the government needs to work energetically with the social care sector to ensure that the public health control measures are applied effectively but sensitively to this vulnerable population. The health protection measures which have been announced is an understandable attempt to protect vulnerable people but it will require community mobilisation to support these folk.

Contingency plans need to be in place to support care and nursing homes when cases are identified and to ensure that they can call on medical and specialist nursing advice to manage cases who are judged not to require hospitalisation. They will also need to be prepared to take back people able to be discharged from acute hospital care to maintain capacity in the acute sector.

Apart from older people in need there are also many people with long term conditions needing home based support services, which will become stressed during this crisis. There will be nursing and care staff sickness and already fragile support systems are at risk. As the retail sector starts to shut down and there is competition for scarce resources we need to be building in supply pathways for community based people with health and social care needs. Primary health care will need to find smart ways of providing medical and nursing support.

  1. The NHS

In January and February when the gravity of the COVID pandemic was manifesting itself many of us were struck by the confident assertion that the NHS was well prepared. We know that the emergency plans will have been dusted down and the stockpile warehouses checked out. However, it now seems that there have not been the stress tests that you might have expected such as the supply and distribution of PPE equipment to both hospitals and community settings. The planning for COVID-19 testing also seems to have badly underestimated the need and we have been denied more accurate measures of community spread as well as the confirmation or otherwise of a definite case of COVID-19. This deficiency risks scarce NHS staff being quarantined at home for non COVID-19 symptoms.

The 2009 H1N1 flu pandemic highlighted the need for critical care networks and more capacity in ITU provision with clear plans for surge capacity creating High Dependency Units (HDUs) including ability to use ventilators. The step-up and step-down facilities need bed capacity and adequate staffing. In addition, there is a need for clarity on referral pathways and ambulance transfer capability for those requiring even more specialised care such as Extracorporeal Membrane Oxygenation (ECMO). The short window we now have needs to be used to sort some of these systems out and sadly the supply of critical equipment such as ventilators has not been addressed over the past 2 months. The Prime Minister at this point calls on F1 manufacturers to step in – we wasted 2 months.

News of the private sector being drawn into the whole system is obviously good for adding beds, staff and equipment. The contracts need to be scrutinised in a more competent way than the Brexit cross channel ferries due diligence was, to ensure that the State and financially starved NHS is not disadvantaged. We prefer to see these changes as requisitioning private hospitals and contractors into the NHS. 

  1. Maintaining people’s standard of living

We consider that the Chancellor has made some major steps toward ensuring that workers have some guarantees of sufficient income to maintain their health and wellbeing during this crisis. Clearly more work needs to be done to demonstrate that the self-employed and those on zero hours contracts are not more disadvantaged. The spotlight has shown that the levels of universal credit are quite inadequate to meet needs so now is the time to either introduce universal basic income or beef up the social security packages to provide a living wage. We also need to ensure that the homeless and rootless, those on the streets with chronic mental illness or substance misuse are catered for and we welcome the news that Sadiq Khan has requisitioned some hotels to provide hostel space. It has been good to see that the Trade Unions and TUC have been drawn into negotiations rather than ignored.

In political terms we saw in 2008 that the State could nationalise high street banks. Now we see that the State can go much further and take over the commanding heights of the economy! Imagine if these announcements had been made, not by Rishi Sunak, but by John McDonnell! The media would have been in meltdown about the socialist take over!

  1. Conclusion

At this stage of the pandemic we note with regret that the UK government did not act sooner to prepare for what is coming both in terms of public health measures as well as preparing the NHS and Local Government. It seems to the SHA that the government is playing catch up rather than being on the front foot. Many of the decisions have been rather late but we welcome the commitment to support the public health system, listen to independent voices in the scientific world through SAGE and to invest in the NHS. The country as a whole recognises the serious danger we are in and will help orchestrate the support and solidarity in the NHS and wider community. Perhaps a government of national unity should be created as we hear much of the WW2 experience. We need to have trust in the government to ensure that the people themselves benefit from these huge investment decisions.

24th March 2020

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While we welcome the £5bn emergency fund for the NHS and other public services and the open ended commitment made by the Chancellor that the government will provide whatever the NHS needs to meet the challenge of COVID-19; we are concerned to point out three big issues on sustaining an NHS, social care and protecting all workers including those in the gig economy.

The Chancellor re-iterated the discredited election manifesto statements about 50,000 more nurses while we know that there are already 43,000  funded nurse vacancies. He repeated the mantra about 50 million more GP appointments while recruitment of young doctors to become GPs remains poor and it is not clear how this can be achieved in the short term. He reiterated the discredited election slogan about 40 new hospitals. Both staffing promises ignore the fact that it is not only money that is needed – the legacy of austerity cannot be reversed by a cash injection alone – training a GP/medical specialist takes 10 years. Turn the tap off for 10 years and turn it back on expecting accolades is not good enough.

We are very concerned too about the immigration health surcharge, which is being increased to £624 per person. The NHS needs to continue to ethically attract health workers into our country for training and service. The surcharge will apply to EU citizens from January next year. This health surcharge is a serious disincentive and opens another pathway for Tories to introduce insurance charging into the NHS. The cost of collection as with all insurance schemes will be prohibitive.

Social care has been ignored. Everyone involved knows that we should be investing in health and social services and even Jeremy Hunt who presided over NHS austerity is on record as saying that this is a glaring omission in the budget. You need to invest in health and social care and the budget is silent on social care. The budget statement of 8,700 words mentions social care twice only and the manifesto commitment of £1bn/year for 5 years seems to have been lost. Local government leadership role has been ignored such as their role in housing, childcare and social support in communities. The attention given to cars, roads, potholes, red diesel and fuel tax does not signal that the other existential emergency on climate change is being addressed.

Finally we welcome the steps taken to move entitlement to SSP to day one but worry that the 111 service is already over stretched and should not have the burden of certification forced on them. The health and wellbeing of those who are not eligible for SSP, such as the estimated 2m part time and zero hours workers and the 5m self-employed is inadequately protected: the ESA is probably too small a compensation. Many will feel they have to continue to work, putting their own health and that of their families at risk.

The SHA campaigns for health and social services to be free at the point of need and to be funded by general taxation. We know that the 10 years of Tory austerity has damaged the fabric of our NHS and we need to invest in capital and training of staff with confidence in long term growth and sustainability. In a modern society the social care services need to be an integral part of our system and should be planned together with joint investment. This budget has missed an opportunity to make this change.

 

On behalf of the Officers and Vice Chairs

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Responding to the 2020 UK government Budget, the Fire Brigades Union (FBU) has criticised the Chancellor for failing to recognise the role of firefighters in responding to flooding, for failing to provide building safety funding for buildings under 18m and for promising “pittance” to fund firefighters’ crucial fire safety work.

Matt Wrack, FBU general secretary, said:

“This budget once again fails to end a decade of pay restraint for firefighters and the chronic underfunding of the fire and rescue service.

“The government has finally recognised that they did not provide sufficient funding to keep people safe after Grenfell and that the building safety crisis goes further than just the same flammable cladding that burned that night. But these measures do not go far enough. They are still ignoring those at risk in buildings under 18m, such as the Bolton Cube. This is not good enough and won’t keep people safe.

“After the devastating floods, firefighters pleaded with the government to provide the dramatic funding increase they need to keep people and communities safe, but once again, these pleas fell on deaf ears. When flooding or wildfires inevitably hit again with more intensity, the Chancellor will have to live with knowing that he failed to properly resource the response. He should be ashamed.

“A decade of drastic funding cuts and unfair pay restraint has resulted in the loss of a fifth of our firefighters and a quarter of our fire safety officers – it’s about time that the government recognised and reversed the damage they have done. But, frankly, the £20 million promised to fund fire safety is a pittance compared to the £141.5 million cut since 2013 in England – and it’s utterly insufficient.”

Joe Karp-Sawey, FBU communications officer

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Responding to the third tranche of inspections from Her Majesty’s Inspectorate of Fire and Rescue Services, Matt Wrack, Fire Brigades Union (FBU) general secretary, said:

On the national view

“This tranche of reports are a complete indictment of the government’s dangerous complacency over the risk of fire, flooding, and other hazardous incidents. Austerity has ravaged our fire and rescue service, leaving residents in many areas at risk. In Gloucester, the inspectorate are clear that changes are needed ‘urgently’, but politicians and fire service management elsewhere must not rest on their laurels.

“With no national standards and no national infrastructure coordinating fire and rescue service policy, residents inevitably face a postcode lottery of fire safety.

“While fire service bosses must be responsible for any failings, so too should the politicians who have starved them of funding, resources and boots on the ground. Our service is collapsing – it’s plainly unsustainable.”

On Grenfell

“The inspectorate’s verdict that London Fire Brigade’s senior management has been slow to learn from the Grenfell Tower tragedy will make worrying reading for firefighters, who have faced unfair criticism while others, including those in government, have no been held to account. It will also be deeply concerning for the Grenfell community and all of London.

“Grenfell must be a turning point for UK fire safety – anything less is completely unacceptable. The inquiry’s vital recommendations must be implemented quickly in London, but they also must be implemented in every fire and rescue service in the country.”

On equality and culture

“It’s shameful that not enough is being done enough to improve equality and diversity in our service. Progress has all but flat-lined under this government – and a severe lack of recruitment and the scrapping of equality targets is largely to blame. We need to recruit more firefighters – and we need to make sure they reflect the communities they serve.

“We are also deeply concerned about toxic bullying and harassment from management in many fire and rescue services. Firefighters give their all to keep the public safe – it’s disgraceful that certain fire service bosses have thanked them with intimidation. We urge any firefighter affected to contact their FBU representative.”

Notes:

The FBU is the trade union representing the overwhelming majority of firefighters in the UK and serves as the professional voice of firefighters and the fire and rescue service. The union is a core participant in the ongoing Grenfell Tower Inquiry.

The FBU’s initial response to the publication of the Grenfell Tower Inquiry phase one report is available here: https://www.fbu.org.uk/news/2019/10/30/fbu-response-grenfell-tower-inquiry-phase-1-report

The FBU launched its Grenfell: Never Again campaign on the second anniversary of the fire, with five demands: 1) the removal of all flammable cladding; 2) retrofitting sprinklers wherever a risk assessment deems necessary; 3) ensure a strong, democratic voice for tenants; 4) reverse the cuts to firefighter numbers and fire safety officers and; 5) create a new national body to oversee the fire and rescue service. For more information, please see here: www.fbu.org.uk/grenfell-never-again

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A major fire at a Travelodge in Brentford, London, today saw more than 100 firefighters respond.

Matt Wrack, FBU general secretary, said:

“This fire is yet another sign of this government’s utter failure to get to grips with our fire safety crisis. Two years on from Grenfell, there has still been no comprehensive programme testing building materials.
“The approach so far has been the agonisingly slow removal of one particular kind of cladding, but that barely scratches the surface.
“The Tory manifesto made no new policy proposals to tackle the fire safety crisis – just more of the same indifferent inaction. They have slashed the fire and rescue service and could not even bring themselves to mention it in their manifesto. Their record is nothing short of shameful.
“We need to bring together firefighters, government, tenants, and the fire safety industry to properly implement the Grenfell inquiry recommendations and get to grips with this crisis before we have another tragedy.

Media contact: Joe Karp-Sawey, FBU communications officer

joe.karpsawey@fbu.org.uk

Notes

The FBU recently called for a forum of all those needed to drive through sweeping changes to UK fire safety, writing to representatives from the government and shadow cabinet, the London Fire Brigade, the National Fire Chiefs Council, the Mayor of London, the Local Government Association, the first ministers of Scotland, Wales and Northern Ireland, fire safety bodies and the Grenfell community. For more information, please see here: https://www.fbu.org.uk/news/2019/11/25/firefighters-call-forum-implement-grenfell-inquiry-recommendations

The FBU is the trade union representing the overwhelming majority of firefighters in the UK and serves as the professional voice of firefighters and the fire and rescue service. The union is a core participant in the ongoing Grenfell Tower Inquiry.

The FBU’s initial response to the publication of the Grenfell Tower Inquiry phase one report is available here: https://www.fbu.org.uk/news/2019/10/30/fbu-response-grenfell-tower-inquiry-phase-1-report

The FBU launched its Grenfell: Never Again campaign on the second anniversary of the fire, with five demands:

1) the removal of all flammable cladding;

2) retrofitting sprinklers wherever a risk assessment deems necessary;

3) ensure a strong, democratic voice for tenants;

4) reverse the cuts to firefighter numbers and fire safety officers and;

5) create a new national body to oversee the fire and rescue service.

 

For more information, please see here: www.fbu.org.uk/grenfell-never-again

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Patients still make enquiries at busiest hours, despite 24/7 online access

· University of Warwick publishes first independent evaluation of one of the main providers of online consultation platforms

· Targeting services at younger patients and those with general administrative enquiries could be most effective

· “In reality, patients were seeking access to health care at the same times and for the same sort of problems than they did using traditional routes.” Says supervising author.

Patients are using online consultations in the same way they would arrange a consultation via traditional means, a new independent evaluation by the University of Warwick reveals.

Despite this, the study identifies several opportunities to tailor online platforms to specific patient requirements and improve their experience.

Primary care researchers from Warwick Medical School have today (26 March) published the first independent evaluation of one of the main providers of online consultation platforms in NHS general practice. Published in the British Journal of General Practice, it provides independently analysed information on the types of patients that are using online triage systems, how and when patients are using this platform, and what they think of it.

Online triage is a system in which patients describe their problems via an online form and subsequently are telephoned by a GP to conduct a telephone consultation or arrange a face-to-face consultation. Practices aim to respond within one hour of receiving the request.

The researchers examined routine information from 5140 patients at nine general practices using the askmyGP platform over a 10 week period. Highest levels of use were between 8 am and 10 am on weekdays (at their highest on Mondays and Tuesdays) and 8 pm and 10 pm at weekends, mirroring the busiest time for patients contacting their practice via telephone.

Supervising author Dr Helen Atherton, from Warwick Medical School, said: “With online platforms there is an assumption that having a 24/7 ability to make contact with a general practice will cater to those who wish to deal with their health problem at a convenient time, often when the practice is shut, and that being online means they will perhaps share different problems than they would over the telephone or face-to-face.

“In reality, patients were seeking access to health care at the same times and for the same sort of problems than they did using traditional routes. This suggests that patients’ consulting behaviour will not be easily changed by introducing online platforms. Therefore practices should be clear as to exactly why they are introducing these online platforms, and what they want to achieve for themselves and their patients in doing so – the expectation may well not meet reality.”

The NHS Long term plan sets out that over the next five years all patients will have the right to online ‘digital’ GP consultations. The main way these are being delivered is via online consultation platforms. The online platforms claim to offer patients greater convenience and better access and to save time and workload for GPs, however there is currently a lack of independent evidence about their impact on patient care and care delivery.

Patient feedback analysed as part of the study showed that many found the askmyGP system convenient and said that it gave them the opportunity to describe their symptoms fully, whilst others were less satisfied, with their views often depending on how easily they can normally get access to their practice, and on the specific problem they are reporting.

The study found that two thirds of users were female and almost a quarter were aged between 25 and 34, corroborating existing evidence. The commonest reason for using the service was to enquire about medication, followed by administrative requests and reporting specific symptoms, with skin conditions, ear nose and throat queries and musculoskeletal problems leading the list.

The researchers argue that practices should avoid a ‘one size fits all’ approach to implementing online consultations and should tailor them to suit their practice populations and model of access, considering whether it is likely to add value for their patient population.

Dr Atherton adds: “Individual online consultation platforms are uniform in their approach, patients are not. We found that patient satisfaction is context specific – online consultation is not going to be suitable for all patients and with all conditions and that one approach is unlikely to work for everyone.

“Practices could focus on encouraging people to deal with administrative issues using the platform to free up phone lines for other patients. It could be promoted specifically to younger patients, or those who prefer to write about their problems and not to use the telephone. Clear information for patients and a better understanding of their needs is required to capture the potential benefits of this technology.”

· ‘Patient use of an online triage platform; a mixed-methods retrospective exploration in UK primary care’ published in the British Journal of General Practice, DOI: 10.3399/bjgp19X702197

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  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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SHA Wales

 

‘LEGISLATION WATCH WALES’ – October 2018

Health and Social Care Briefing

Acts

Additional Learning Needs and Education Tribunal (Wales) Act 2018

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

The Act 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 Act 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 12 December 2016. Royal Assent was given on 24 January 2018.

Abolition of the Right to Buy and Associated Rights (Wales) Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=17260

According to the Explanatory Memorandum accompanying the Act, the purpose and intended effect of the Act is to end all variations of the Right to Buy and the Right to Acquire.

The key purposes of the Act are to:

  • abolish the right of eligible secure tenants to buy their home at a discount under Part 5 of the Housing Act 1985 (Right to Buy);
  • abolish the preserved right of eligible former secure tenants to buy their home at a discount under section 171A of the Housing Act 1985 (Preserved Right to Buy);
  • abolish the right of eligible assured or secure tenants of a registered social landlord or private registered provider to acquire their home at a discount under section 16 of the Housing Act 1996 (Right to Acquire);
  • encourage social landlords to build or acquire new homes for rent, the Right to Buy, Preserved Right to Buy and Right to Acquire will not be exercisable by tenants who move into new social housing stock more than two months after the Bill receives Royal Assent, subject to certain exceptions;
  • provide for at least one year after the Bill receives Royal Assent before the abolition of the Right to Buy, Preserved Right to Buy and Right to Acquire for existing social housing stock comes into force.

Further detail about the Act can be found in its accompanying Explanatory Memorandum.

The Bill was introduced on 13 March 2017. Royal Assent was given on 24 January 2018.

Public Health (Minimum Price for Alcohol) Wales Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=20029

The Act provides for a minimum price for the sale and supply of alcohol in Wales by certain persons and makes it an offence for alcohol to be sold or supplied below that price.

The Act includes provision for:

  • the formula for calculating the applicable minimum price for alcohol by multiplying the percentage strength of the alcohol, its volume and the minimum unit price (MUP);
  • powers for Welsh Ministers to make subordinate legislation to specify the MUP;
  • the establishment of a local authority-led enforcement regime with powers to bring prosecutions;
  • powers of entry for authorised officers of a local authority, an offence of obstructing an authorised officer and the power to issue fixed penalty notices (FPNs)

The Act proposes the MUP would be specified in regulations. However, for the purpose of assessing impacts and the associated costs and benefits, the Explanatory Memorandum uses a 50p MUP as an example.

The Public Health (Minimum Price for Alcohol) (Wales) Act became law in Wales on the 9th of August 2018.

Regulation of Registered Social Landlords (Wales) Act

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=19962

The purpose of the Act is to amend or remove those powers which are deemed by the Office for National Statistics (“ONS”) to demonstrate central and local government control over Registered Social Landlords (RSLs).

These changes will enable the ONS to consider reclassifying RSLs as private sector organisations for the purpose of national accounts and other ONS economic statistics.

Further detail about the Act can be found in its accompanying Explanatory Memorandum.

The Regulation of Registered Social Landlords (Wales) Act 2018 became law in Wales on the 13th of June 2018.

Law Derived from the European Union (Wales) Act 2018

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=21280

A Government Emergency Bill, introduced by Mark Drakeford AM, Cabinet Secretary for Finance. An Emergency Bill is a Government Bill that needs to be enacted more quickly than the Assembly’s usual four stage legislative process allows. A definition of an Emergency Bill is not provided in the Government of Wales Act 2006 (“the 2006 Act”) or in the Assembly’s Standing Orders however Standing Order 26.95 states that:

“If it appears to a member of the government that an Emergency Bill is required, he or she may by motion propose that a government Bill, to be introduced in the Assembly, be treated as a government Emergency Bill.”

As with all Assembly Bills, Emergency Bills must relate to one or more of the 21 Subjects contained in Schedule 7 to the 2006 Act in order for it to be within the scope of the Assembly’s legislative powers.

The Act is intended to preserve EU law covering subjects devolved to Wales on withdrawal of the UK from the EU. Further, it will enable the Welsh Ministers to ensure that legislation covering these subjects works effectively after the UK leaves the EU and the European Communities Act 1972 is repealed by the European Union (Withdrawal) Bill.

The Act enables the Welsh Ministers to legislate to maintain regulatory alignment with the EU in order to facilitate continued access to the EU market for Welsh Businesses. It also creates a default position in law whereby the consent of the Welsh Ministers will be required before any changes are made by UK Ministers to devolved legislation within the scope of EU law.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Law Derived from the European Union (Wales) Act 2018 became law in Wales on 6 June 2018.

Legislation in Progress – current Bills

Public Services Ombudsman (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=20012

This is a Committee Bill, introduced by Simon Thomas AM, Chair of the Finance Committee. The Business Committee has remitted the Bill to the Equality, Local Government and Communities Committee. The Bill includes provision which set out the new powers for the Ombudsman to:

  • accept oral complaints
  • undertake own initiative investigations
  • investigate private medical treatment including nursing care in a public/private health pathway
  • undertake a role in relation to complaints handling standards and procedures

 

Further detail about the Bill can be found in its accompanying Explanatory Memorandum. The Bill is currently at stage 2.

Autism (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=19233

An Assembly Member Bill, introduced by Paul Davies AM was successful in a legislative ballot in March 2017, and given leave to proceed with his Bill by the Assembly in June 2017.

The Business Committee has remitted the Bill to the Health, Social Care and Sport Committee.

The overall purpose of the Bill is to ensure the needs of children and adults with Autism Spectrum Disorder in Wales are met, and to protect and promote their rights.  The Bill delivers this purpose by seeking to:

  • Introduce a strategy for meeting the needs of children and adults in Wales with ASD conditions which will:
    • Promote best practice in diagnosing ASD, and assessing and planning for meeting care needs;
    • Ensure a clear and consistent pathway to diagnosis of ASD in local areas;
    • Ensure that local authorities and NHS bodies take necessary action so that children and adults with ASD receive the timely diagnosis and support they need across a range of services;
    • Strengthen support for families and carers and ensure their wishes, and those of people with ASD, are taken into account;
    • Promote research, innovation and improvement in ASD Services;
    • Establish practices to enable the collection of reliable and relevant data on the numbers and needs of children and adults with ASD, so that the Welsh Ministers, and local and NHS bodies can plan accordingly;
    • Ensure key staff working with people with ASD are provided with appropriate ASD training; and
    • Regularly review the strategy and guidance to ensure progress.
  • Require the Welsh Ministers to issue guidance to the relevant bodies on implementing the strategy.
  • Require the Welsh Ministers to collect suitable data to facilitate the implementation of the Bill.
  • Require the Welsh Ministers to undertake a campaign to raise awareness and understanding of ASD.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Childcare Funding (Wales) Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=21394

A Welsh Government Bill, introduced by Huw Irranca-Davies AM, Minister for Children, Older People and Social Care. The Business Committee has remitted the Bill to the Children, Young People and Education Committee.

The Childcare Funding (Wales) Bill (“the Bill”) gives the Welsh Ministers the power to provide funding for childcare for qualifying children of working parents and to make regulations about the arrangements for administering and operating such funding.

The Bill is intended to facilitate the delivery of a key commitment in the Welsh Labour manifesto ‘Together for Wales 2016’. This is to provide 30 hours per week of government funded early education and childcare to the working parents of three and four year olds in Wales for up to 48 weeks per year (this is referred to in the Explanatory Memorandum accompanying the Bill as ‘the Offer’).

All eligible 3 and 4-year-old children (from the term after their third birthday) are entitled to a minimum of 10 hours early education per week during term time over 39 weeks of the year. The Offer builds on this universal entitlement and provides up to a total of 30 hours early education and care per week over 48 weeks of the year for the 3 and 4 year olds of working parents.

The Bill relates to the childcare element of the Offer and is therefore concerned with the funding that will be provided in respect of the eligible children of working parents.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Renting Homes (Fees etc…) Wales Bill

http://www.senedd.assembly.wales/mgIssueHistoryHome.aspx?IId=22120

A Welsh Government Bill, introduced by Rebecca Evans AM, Minister for Housing and Regeneration. The Business Committee has remitted the Bill to the Equality, Local Government and Communities Committee.

The Bill includes provision for:

  • prohibiting certain payments made in connection with the granting, renewal or continuance of standard occupation contracts;
  • the treatment of holding deposits.

Further detail about the Bill can be found in its accompanying Explanatory Memorandum.

The Bill is currently at stage 1 (consideration of the general principles of the Bill and the agreement of the Assembly to those principles).

Future and possible Bills (of interest)

Assembly members have voted to introduce a Welsh Parliament and Elections Bill due to be brought forward in early 2019. The Bill will be designed to change the name of the Assembly to Senedd Cymru/Welsh Parliament; lower the voting age for Assembly elections to 16; amend the law relating to disqualification from being an Assembly Member and make other changes to the Assembly’s electoral and internal arrangements.

http://www.assembly.wales/en/newhome/pages/newsitem.aspx?itemid=1910&assembly=5

In the statement on forthcoming legislation 2018/19, the First Minister highlighted:

  • A Bill to remove the defence of reasonable punishment
  • A Bill to improve accessibility of Welsh Law and how it is interpreted
  • A Local Government Bill (lowering the age for elections and a range of other proposals – not ‘wholescale merger’)
  • A Bill to establish an Duty of Quality for the NHS and a Duty of Candour for Health and Social Care, introduce and establish a new independent body to represent the citizen’s voice in health and social care services and will require LHBs to appoint a Vice Chair
  • Ban the use of wild animals in travelling circuses

Updated October 2018

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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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Update 2/5/17: If you are concerned about GP records, see this post


In matters of health and care, your relationship with your doctor is based on a very human spirit of confidentiality. Not the cold law of data protection.

Any large, formal system is bound to breach the Hippocratic Oath; “First, do no harm”. Data doesn’t care. In a purely digital world, a thing either is or it isn’t – with no nuance. Smaller systems, talking to each other, offer more discretion for the humanity of your situation. It is  why fax machines still work better than e-mail for the NHS.

Patients routinely find themselves in one of the following three real-world scenarios. Human situations get ignored by the database designers’ visions, forgetting the real world::

  • When a doctor cannot tell their patient the full story without causing distress – such as when at test returns a  likely false positive result.
  • When a doctor cannot tell another doctor something – such as where  they’ve been asked not to by their patient.
  • When institutions cannot tell doctors relevant details – e.g. in situations where there is “too much data, but no clear information”.

When you are between diagnosis and treatment, which (if any) of these three apply may change hour-to-hour. Human choices are a reality, usually ignored by by those who want to copy records across a lifetime.

medConfidential defends the confidentiality you desire for your medical records.

Why is Confidentiality more than Data Protection?

“Data Protection” was a 1980s response to the advent of new computers and the copying of data. Transparency was the balance intended to ensure that processing is “fair”. When copying was limited to “faster photocopiers”, organisational boundaries were maintained, and confidentiality questions rarely engaged.

Modern communications has created the capacity to copy medical records at a scale that shatters confidentiality.

Confidentiality, and trustworthiness, is based on patients’ expectations of boundaries. And so, as data subjects, any processing that breaches duties of confidence cannot be considered Fair – so cannot be lawful.

medConfidential defends the confidentiality you desire for your medical records.

If you do have concerns, it is still safest to opt out now to exclude your data. You can always opt in later. For more information on what you can do, please visit our How to opt out page.

We also take donations.

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Their quest to ‘inspect’ quality into care homes is futile.  Turning them into a proper regulator makes much more sense.
The CQC should have total powers over the sector.  Clear accountability and someone to nail if it goes wrong.
I can think of a dozen new powers:
  1. Develop and publish an annual, independent, strategic assessment of the sector, with recommendations for government on the realistic cost of care and funding levels.
  2. Provide national model-contracts for care home providers, so the public know what to expect and where they stand.
  3. New powers to decline any home registration that does not have a CQC recommended safe staffing and skill-mix.
  4. End the difference between care homes and nursing homes.
  5. Develop accredited training for the care-home sector workforce.
  6. Publish clearer ‘Which’ style reports on care homes, making it easier for families to chose through an improved, user friendly website and help line.
  7. Publish ‘advisories’ on the viability of care home operators and prepare contingency plans for failure.
  8. Create a centre of excellence making it easy to find and share best practice.
  9. Provide an easy to navigate complaints and dispute resolution service.
  10. Create an identifiable, accessible local presence, that includes elected members, to improve public confidence in the CQC and democratic accountability.
  11. New powers to prevent differential charging between the LA and private sector clients.
  12. Powers to require care-home providers to post a performance bond to guard against the cost of failure.
Focussing these functions, in one place, makes one organisation accountable for the care home market, its conduct and it gives the CQC something useful to do…
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When considering the mandatory reporting of patient abuse in the UK, it may help to consult the American system, as the  dilemmas and legal considerations are similar in both jurisdictions. A caveat to this is that although there is an office of Adult Protective Services (“APS”) in all 50 states, each state’s legislation may differ. In Colorado, on and after July 1, 2014, for instance, a very comprehensive list is given of those who have a mandatory duty to report serious harm or injuries. Indiana: An individual who believes or has reason to believe that another individual is an endangered adult shall make a report under this chapter. Ind. Code Ann. §12-10-3-9(a) (West 2013). Texas: A person having cause to believe that an elderly or disabled person is in the state of abuse, neglect, or exploitation. Tex. Hum. Res. Code Ann. § 48.051(b) (West 2013). Utah: A person who has reason to believe that a vulnerable adult has been the subject of abuse, neglect, or exploitation. Utah Code Ann. § 62A-3-305(1) (West 2013). Some states specify where an initial complaint is to be lodged. Delaware: Any person having reasonable cause to believe that an adult person is impaired or incapacitated as defined in § 3902 of this title and is in need of protective services as defined in § 3904 of this title shall report such information to the Department of Health and Social Services. Del. Code. Ann. tit.31, §3910(a) (West 2013). North Carolina: Any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information to the director. N.C. Gen. Stat. § 108A-102(a) (West 2013). APS are not necessarily a state run service, North Carolina defining them as: services provided by the State or other government or private organizations or individuals which are necessary to protect the disabled adult from abuse, neglect, or exploitation. They shall consist of evaluation of the need for service and mobilization of essential services on behalf of the disabled adult. N.C. Gen. Stat §108A-101(n) (West 2013). Much might depend on what is deemed reasonable.

Generally, those with a mandatory duty of reporting serious harm or injury are given variations the following legal advice. The Wisconsin Caregiver Law  (WI Caregiver Law Ch. DHS 13), defines serious harm or injury as:

  • ‘An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that, when contrary to the entity’s policies and procedures, not a part of the client’s treatment plan and done intentionally to cause harm, does any of the following:
  • Causes or could be reasonably expected to cause pain or injury to a client or the death of a client, and the act does not constitute self–defence as defined in s. 939.48, Stats.
  • Substantially disregards a client’s rights under ch. 50 or 51, Stats., or a caregiver’s duties and obligations to a client.
  • Causes or could reasonably expected to cause mental or emotional damage to a client, including harm to the client’s psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.
  • An act or acts of sexual intercourse or sexual contact under s. 940.225, Stats., by a caregiver and involving a client.
  • The forcible administration of medication or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.
  • A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could be reasonably expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.
  • Abuse does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

Nursing homes must immediately report all incidents of alleged mistreatment, abuse and neglect of residents, misappropriation of resident property and injuries of unknown source to the DQA. (Division of Quality Assurance). CMS defines “immediately” to be as soon as possible but not to exceed 24 hours after discovery of the incident. Failure to provide the information to DQA within 24 hours of discovering an incident may result in a citation under federal or state codes.

In addition to federal and state reporting requirements, providers should notify local law enforcement authorities (immediately) of any situation where there is a potential criminal offence.

One (Oregon) county’s District Attorney gives a simplified list of offences which should result in  immediate notification to the police:

Abuse may include:

  • Physical harm or injury.
  • Failure to provide basic care. (Would less UK care homes provide poor care if their owners were liable to prosecution and serious consequence, i.e. prison?).
  • Financial exploitation, theft or misuse of money or property.
  • Verbal/emotional abuse, threat, cursing, or blaming.
  • Confinement or Isolating from family & friends.
  • Wrongful restraint.
  • Unwanted sexual touching.
  • Withholding medicine.
  • Over medicating.

Advice which is common to most American states:

  • If the abused is in a Skilled Nursing facility, call the Department of Health Services (DHS), Licensing and Certification Program for your county. Submit a complaint, which can be done anonymously. The DHS is charged with giving complaints of serious harm and abuse the highest priority. An example of a timeframe for  an investigation is  30 days to complete an investigation unless extenuating circumstances require an extension. The investigation must begin within 24 hours. The DHS are the parent body of the APS.
  • If the abused is in a Residential Care Facility for the Elderly (RCFE), contact your county’s Community Care Licensing Division. Like the DHS, the CCLD will conduct an investigation.
  • The following persons are mandatorially required to immediately report abuse and suspected abuse to the Division or law enforcement agency: physicians, licensed practical nurse or registered nurse,  nursing facility employee or any individual who contracts to provide services,  licensed social worker; physical, speech or occupational therapist; and family member of a resident or guardian or legal counsel for a resident. The local law enforcement agency shall be called first when the suspected abuse is believed to be a crime (for example: rape, murder, assault, burglary, kidnapping, theft of controlled substances). The local law enforcement agency shall be called if the offices of the Division or designee are closed and there are no arrangements for after hours investigation.
  • Contact your local Ombudsman’s Office – the patient advocate for the facilities. The involvement of the Ombudsman’s office in America is seen as a subsidiary, and not a primary course of action, when reporting suspected serious abuse. They tend to become involved if investigations by DHS and CCLD are the subject of unsatisfactory (to the complainant) outcomes. The UK Ombudsman will not investigate a complaint if it has proof, or infers that, the complaint is to take a legal course. That is, they do not involve themselves in a legal process which may result in a business interest being fined. They steer people toward complaining about failures in the UK healthcare system, and away from complaining about the system.

Despite clearly defined guidelines, the New York State Elder Abuse Prevalence Study (2011), found that for every case known to programs and agencies, 24 were unknown. This is because although the American Nurses Association (ANA) Code of Ethics for Nurses stipulates that nurses must act for the public benefit, whistleblowing about abuses in the nursing workplace can harm employment prospects. Also, given the severity of punishments in America, to both organisations and individuals involved in proven abuse, it may be that whilst the American system is like a shark with sharp teeth, because of this, fewer people are willing to throw a colleague or employer its way. The obvious solution to this problem is the mandatory instillation of  cameras in all areas of all healthcare facilities. This meets with obvious opposition from care providers in the social care market, although the use of cameras is becoming more acceptable to regulators. Guidance for people who install hidden cameras to check on standards of their own or a relative’s care has been approved by the UK’s Care Quality Commission (CQC). The guidance is expected to be published in the new year. A BBC report (November 19, 2014), states: The care regulator says it neither encourages nor discourages camera use. It added that it does look at footage which is brought to its attention. Information is also being published for care providers on what they need to take into account if they are thinking of installing hidden or visible cameras in their homes … That hidden camera showed Yvonne calling for a nurse 321 times when she needed the toilet. It was over an hour before anyone came to check on her. Once the home was presented with that evidence change happened. “The information we will publish for providers makes clear the issues we expect them to take into account – for example, consulting with people using the services and staff – if they are considering installing hidden or public cameras”.  Nadra Ahmed, chairman of the National Care Association, which represents care providers, said it was “quite sad” that covert surveillance was being discussed and it was “really disappointing” that the CQC had “pursued this course”. Of course, most employers would find mandatory cameras “really disappointing” – the would be able to record staff shortages. The point is, surely, change needs to happen. Healthcare businesses in America are also against the use of cameras in their facilities, disguising their real worry by claiming concern about the ethical issues surrounding the use of surveillance cameras.

Whistleblowers should be aware that not meeting best practice guidelines does not  constitute abuse. In June, 2014, the New Jersey Supreme Court found against a nurse who claimed he was fired for reporting allegedly improper patient care to government agencies. He had claimed that his dismissal was in violation of the Conscientious Employee Protection Act (CEPA), designed to protect whistle-blowers. He had also claimed that his professional code of ethics for nurses was the basis of his reporting his employer. The judges, by a majority verdict, found that  justices found that this code “does not govern” (his former employer’s) patient care”. Thus, nursing guidelines of best practice are not binding on an employer.

In another case (Lark v. Montgomery Hospice),a nurse complained to her supervisor about the mishandling of narcotics. The nurse was fired, she then filed a complaint against the employer for wrongful dismissal, alleging that the employer violated Maryland’s Health Care Worker Whistleblower Protection Act. The court found that the employer’s failure to correct the procedures for narcotics (employ best practice) was not covered by law, and the law only required the employee to file an internal complaint.

It is clear that what a healthcare professional deems best practice is not binding on an employer, who is only required to operate within the law. Best practice and law are seperate entities.

The advice to anyone involved in healthcare, who is considering reporting an incident to external authorities, is to ask themselves: How serious is the problem? Is your nursing license in legal jeopardy if you do not report? Was a law violated? Have you exhausted your employer’s procedures for reporting problem? In most cases, you meet the advocacy duty with a routine report, and have no duty to go outside this chain of authority. If a problem is not resolved, some American states employ a ‘practice specialist’, to whom you can relay a scenario in a hypothetical manner. The ‘practice specialist’ is a service provided by available the National Council of State Boards of Nursing.

In the UK, whilst such as the Royal College of Nursing (RCN), offer guidelines of good practice, the Nursing and Midwifery Council (NMC), do not give ‘practice specialist’ advice. There seems to be a reluctance to commit to any position which may be legally challenged. Understandably so, yet the question arises – which is as pertinent to the UK as it is to America –  why are best practice guidelines not legally applicable to healthcare providers? Why are healthcare providers allowed more leeway than proprietors of abattoirs?

The RCN  do offer a  whistleblowing hotline: ‘This is an additional service for RCN members who have urgent concerns over clinical and staff safety in the workplace. It is important that health care professionals raise concerns directly with their employer. Registered nurses have a duty under the NMC to report concerns where patient care may be affected’.

The Whistleblowing Helpline also ‘offers a free-phone service for employees, and organisations working within the NHS and social care sector’. They give: ‘Free, confidential advice to NHS and Social Care staff that witness wrongdoing and are unsure whether or how to raise their concern … and also give: ‘Advice and support to managers or those responsible for matters of policy development and best practice within the health and social care market’. It is noticeable that staff who may raise a ‘concern’ might work under a manager who is given advice on how to deal with the ‘concern’, and that such ‘concerns’ exist within the social care market –  a creation of free-market capitalism, which, ironically, may have given rise to the ‘concern’ (in its use of low staffing levels, etc.).

My impression is, in both cases, whistleblowers are advised to keep their concerns in-house, which, indeed, may be stipulated in their contract. The UK experience is more akin to containing a fire than putting it out. There seems to be little written about some forms of abuse being prosecutable under The Human Rights Act or British law, and, therefore, reportable to the police. This is not a stricture which the social care market wishes to be subjected to.

The American experience is that those who whistleblow are strongly advised to seek legal opinion before they act, and contacting media outlets without full redaction of patient’s details is likely to be detrimental to their case.

It is vital to keep a full record of time, place, person, and witnesses (if any), when making a complaint. Lack of detail will be picked open in court. It is noticeable that hospitals and other nursing facilities are not required by law to keep a back-up of their medical records on an external computer. Many cases of complaint, both in America and the UK are hindered by claims that records have gone missing. Should not the loss of medical records attract a very hefty fine? – perhaps to an amount of 30% of the cost of an award which may have been granted if records had not been ‘lost’.

There are non-profit organisations in America that assist whistleblowers and those furthering their case. ‘The Whistleblower Support Center and Archive is (an) organization that was founded to provide support to whistleblowers. The center’s Web site provides helpful information, including the 10 steps for effective whistleblowing … A major focus of the effort here to support whistleblowers is the International Whistleblower Archive, an extensive online search engine that provides thousands of articles related to whistleblowing. Attorneys, journalists, whistleblowers, and others can tag almost any aspect of the process and then gain access to a vast array of online resources. Former whistleblowers are available to provide peer-support to future whistleblowers’.

A general sense arising from court cases in America is that ‘justice’ favours business interests. The UK follows this lead. It is the lead of the social care market, which may as well read cattle market.

I recommend:

  • Install surveillance cameras in all areas of all healthcare facilities.
  • Institute draconian punishments for those found committing abuse, whether workers, managers, or business owners.
  • Make it mandatory for all healthcare workers to report serious abuse, failure to do so to result in prosecution.
  • Make losing medical records a criminal offence.
  • Make the use of best practice guidlines mandatory.
  • All serious cases of serious abuse to be immediately reported to the police as crimes.
  • All complaints to be submitted to a regional authority charged with conducting a vigorous, impartial inquiry.
  • The regional authority to be responsible for all healthcare and social servives, whether private or public.
  • All complaints to receive a regional authority response within 30 days.
  • Abolish the Healthcare Ombudsman.
  • Abolish the CQC.
  • Establish a regional authority inspectorate unit, with a 24 hotline, and a remit to investigate complaints within 48 hours.
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