Category Archives: Regulation

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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As the Health Service Ombudsman moves forward on its new ‘Service Charter’ would it be foolish to think that a new set of promises is all we need to deliver justice and remedy?  Unless there is a major culture change within regulatory bodies, socially accepted injustice will continue as before.

If you have ever made a complaint you will recognise this scenario.  Aware that something has gone wrong and being a good citizen you take the time to alert the authorities.  It makes no difference if this is the NHS, PHSO, ICO or any other acronym you care to think of, they all work the same way.

The conversation you have with the customer service desk is likely to be the most positive part of the experience.  They will listen to your story, ask to see your evidence and give you details of what to do next.  From here it is all downhill.  The person who assesses your evidence will find any reason to close down your case;  out of time, not in our remit, no case to answer.  All bodies will have acted ‘reasonably’ in the eyes of this particular individual.  The supervisor who deals with your review request will confirm this prognosis, no matter how illogical and so will the CEO, the legal team or the chairman of the board.  Each in turn will agree; there is no case to answer.

If you were to meet any of these people in the street, if you were to fall in front of them and require their help, every one of them would pick you up, call for an ambulance and show genuine concern for your welfare.  They are not bad people.  Yet each in turn delivered an injustice and looked away from the truth.

How do good people do bad things?

 In 1960 Lee Harper wrote ‘To kill a mockingbird’ and everything you need to know about socially approved injustice is contained within that book.  Tom, the black labourer is accused of raping a white woman and is given a ‘fair’ trial by jury.  As the story unfolds it become obvious to everyone in the courtroom that her father beat her up when he found her flirting with a coloured man and in all probability her father had been sexually abusing her for years.

The punch to her eye was delivered by a left-handed blow.  Tom’s left arm hangs limp by his side, powerless due to an accident with a threshing machine.  Her father signs a paper with his left hand in full view of the court room.  As the evidence mounts there can be only one conclusion; Tom is innocent and the father guilty.  So the jury go out and the jury come back and each and every one of them finds Tom guilty as charged, because the cost of not doing so was too great.  They had to protect themselves from the reality that a white man could rape and assault his own daughter.  Everyone knew that a black man was no better than a beast.  To accept that Tom committed the crime was the only option.

The weakest are always sacrificed.  

 Our regulatory bodies find themselves in this same moral dilemma.  Like a house of cards they all lean upon each other, ICO backs up PHSO who defends the NHS.  In order to handle your complaint with any honesty they would have to report that people within these organisations blatantly lie, breach policy, withhold data and destroy records.  The price is just too high.  So they rubber stamp the garbled whitewash, agree that everyone has acted reasonably and go home to their families.

phsothefacts.com

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On 7th October the PHSO Pressure Group attended a stakeholders meeting held at the Cabinet Office to discuss complaint handling and the role of the Ombudsman. We were invited by the Rt. Hon. Oliver Letwin and present at that meeting was Robert Gordon CB and his team.  Mr. Gordon has had a distinguished career in the Scottish Office where, among other things, he helped to set up the devolved Scottish Parliament.

Mr. Gordon has been charged with researching the current Ombudsman landscape and reporting back to the Cabinet Office with suggestions for reform.  We were delighted to be able to speak directly to him and his colleagues.  This was a valuable opportunity to discuss the service user’s experience and share a little of our ‘gold-dust’. Our initial concern was that the inquiry process would deliver nothing more than a re-branded version of a fundamentally flawed process.  It will take more than a common portal and shiny new logo to restore public confidence in the Ombudsman.  There is sufficient evidence in the public domain (Mid. Staffs, Morecambe Bay, Morrish family)  to demonstrate that this service is not fit for purpose and requires fundamental reform.

Once the Cabinet Office conclude their inquiry, with the help of Mr. Gordon, they will be drafting new legislation.  The original legislation has been in place for 47 years and quite possibly has never served the public in all that time; it is therefore vital that we use this opportunity to create an Ombudsman service which meets the needs and expectations of the public in the 21st Century. At the core of this legislation there must be measures to provide effective accountability for users of this service.  The total discretion enjoyed by the Ombudsman to date has no place in a modern democracy.  We are aware that the Ombudsman must be the final arbitrator, but allowing this body to exclusively handle all complaints about its own service creates an Alice in Wonderland scenario where the omnipotent Queen of Hearts simply makes up the rules as she goes along.  If you need proof, look no further than this year’s annual report where the Ombudsman states that from upwards of 27,000 complaints handled they only had to review their decisions 0.2% of the time.  Any organisation which believes that it has a 99.8% accuracy rate needs a reality check.

Mr. Gordon’s suggestion for robust accountability was to set up a monitoring board of ‘independent’ members who would scrutinise the Ombudsman’s performance against key indicators.  It is not too difficult to see the obvious flaws in this plan.  Firstly who are these ‘independent’ people and who appoints them?  There seems to be a cartel of like-minded people who are willing to sit upon each other’s boards and do little more than maintain the status quo.  PHSO currently have a Unitary Board, chaired by the Ombudsman herself and stuffed full of PHSO employees,    plus an Audit Committee led by Sir Jon Shortridge KCB and it is questionable whether either of these committees do any more than rubber stamp the decisions put before them.  The suggestion was made by the PHSO Pressure Group that board members for any panel which is designed to hold the Ombudsman to account should be drawn from recognised campaign groups and charities such as the Patients Association, AvMA and the PHSO Pressure Group itself, to include fierce critics such as James Titcombe and Julie Bailey.

 If you really want to know how an organisation delivers then ask those who have received.  

Hopefully, this possibility will be investigated by Mr. Gordon and his team.  Other suggestions for accountability included giving the Public Administration Select Committee (PASC) the powers it needs to hold the Ombudsman to account for poor service delivery.  Currently PASC cannot pursue any individual complaint nor can it ask questions of the Ombudsman relating to individual complaints.  To say that the Ombudsman is accountable to parliament for service delivery is unrealistic given that PASC is so severely handicapped.

 The truth is that the Ombudsman is accountable to no-one but herself and we all know of the corrupting influence of ‘absolute power’.  

The use of the word ‘corruption’ makes politicians feel uncomfortable and Mr. Letwin shifted in his seat as he pursued this subject, questioning why this would be the case.  It is our belief that both PHSO and LGO are morally corrupt in that they have total disregard for the plight of individuals as they manipulate the evidence to find spurious reasons to close cases down.  Complainants, who have been denied evidence in drawn out complaint processes where public bodies have ultimately lied and covered up the facts, then find themselves duped once again by the shiny rhetoric on Ombudsman’s websites promising impartiality and remedy.  In 2013-14 only 11% of all formal complaints were upheld by PHSO to some degree following an investigation.

The Ombudsman’s office has never been staffed in a way that shows real commitment to honestly resolving cases.

A quick comparison with the Netherlands reveals that their Ombudsman service employs 70% of staff to carry out investigations and the vast majority are trained lawyers, whereas PHSO currently have only 30% of staff as investigators and none of them have either legal or clinical training.  The front-line staff at PHSO are being asked to take on 10x more cases this year to comply Dame Julie Mellor’s plan to ‘give more impact for more people’ by increasing the number of investigations.  The drive to improve ‘quantity’ has further impacted on the key issue of ‘quality’ with investigators required to take on up to 15 cases simultaneously.  Although PHSO have promised to address an investigation methodology which has been accepted by Mick Martin, Managing Director as ‘not fit for purpose’ this organisation moves at the pace of a three-toed sloth on sleeping tablets.

Only Churchill expects so few to do so much and the staffing levels and skill mix required for proper investigation must be urgently reviewed.  Currently PHSO have no option but to close down a large percentage of cases in order to prevent complete system breakdown. The Pressure Group put forward the idea of dividing the Ombudsman service into a designated Health Service Ombudsman for England in line with devolution.  This could then be staffed by experts in clinical care.  NHS England recently reported that complaints topped 3,000 per week  and Dame Julie Mellor has been promoting Ombudsman services across the media to encourage more people to come forward.  There can only be disappointment ahead as newcomers join a backlog of over 1,000 cases currently waiting in the system. PHSO cannot be trusted to put their own house in order.  Senior management appear to be caught in a torpor of indecision. Mr. Gordon must do more than consult with the usual suspects in order to carry out his review and the Pressure Group suggest that he would benefit greatly from discussing matters with representatives from the PSU staff union among others.

We are convinced that Mr. Letwin is set on reforming the Ombudsman landscape and in order to achieve this aim we urge him to discuss the way forward not with those who caused the problems but with those who have suffered from them.  The public. 

You can see the full summary presented by the PHSO Pressure Group to Mr. Letwin and Mr. Gordon.

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So much has been written and broadcast about terrible standards of care in some NHS hospitals in recent years, most notably but by no means only at Mid Staffordshire, that it would be easy to gain the impression that it might be safer to be treated in a private hospital. The profit-making concerns who run private healthcare have probably benefitted significantly from recent NHS scandals.

However, as our experience at Action against Medical Accidents (AvMA) and the report from the Centre for Health and the Public Interest (CHPI) points out, whilst there is no denying the urgent need for improvements to the promotion and regulation of patient safety in the NHS, there is little or no compelling evidence that the private sector is any better.

In fact I would argue that a combination of a false sense of security based on the assumption that if it is private and paid for it must be better, together with the gaps in the regulatory system and patients’ rights in the private sector, create an unnecessarily risky environment. It is also a credible argument to say that where there have been the worst problems with safety in the NHS some have at least in part been a consequence of imposed competition and fragmentation through part privatisation. Take the problems with GP out-of-hours services for example.

There has at least been progress with the regulation of private healthcare in England now coming under the same regulator as for the NHS – the Care Quality Commission (CQC). In theory, a private hospital has to demonstrate that it meets the fundamental standards required by the CQC just as much as the NHS. However, a deeper look at the system reveals an uneven playing field.

As the CHPI report points out, the same requirements to report incidents do not apply to private providers as they do to the NHS, which in itself makes it hard to monitor how safe or otherwise private services are. Information about clinical negligence claims against private providers are not publicly available, as they are in the NHS. The CQC has, to meet ministerial and public expectations, prioritised inspecting and monitoring the NHS. Bizarrely, as recently as this year the Government passed the Care Act, which exempted providers of privately funded care from the new criminal offence for providing false or misleading information to the regulators. As if this could only happen in a publicly run service.

Patients themselves have fewer rights in the private sector. Whilst there is a general requirement to operate a complaints procedure, unlike the NHS complaints procedure, those used by private providers afford no statutory rights to the complainant and there is no recourse to the Health Service Ombudsman in the case of private care. There is no statutory requirement to provide for independent advice and support with complaints which is the case with the NHS. Consequently it is much harder to hold a private provider to account. Even taking legal action for clinical negligence against a private provider is more problematic than with the NHS, where everything is overseen by the NHS Litigation Authority. A claimant against a private provider can be faced with complications over whether it is the hospital or the individual surgeon or sub-contractor who is liable.

AvMA’s experience confirms many of the CHPI report’s conclusions. In our experience the chief risks in the private sector have been where there are insufficient facilities and consultant cover to cope with emergencies; insufficient continuity of care or after care; and the lack of a critical mass of experienced doctors in situ as well as the aforementioned gaps in regulation.

All too often, in addition to the patient who is harmed through no fault of their own, it is the NHS which ends up picking up the pieces (and the tab) when things go wrong in private healthcare. It is time to shine just as bright a light of scrutiny and regulation in the private sector as we have begun to in the NHS.

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A recent report  quoted Attorney General Eric T. Schneiderman: “Nursing home residents are among our state’s most vulnerable citizens, and the perpetual neglect in this case is shameful”, whose comment pertained to 8 nurses and 9 certified nursing assistants who were sacked following a New York state investigation that showed neglect of duty and making false records.

The investigation used hidden cameras to show that a highly dependent 56-year-old male resident, who suffered from Huntington’s chorea, was not routinely given pain medication, liquids, and incontinence care at Highpointe on Michigan Health Care Facility, with charts and nursing notes routinely claiming he had.

The 17 accused appeared at Buffalo City Court, facing various charges of wilful violation of health law, endangering the welfare of an incompetent or physically disabled person, and falsifying business records. Endangering this patient is a charge which is a felony and carries a maximum prison term of four years.

Schneiderman commented: “The charges filed send the message that my office will not tolerate anyone being neglected by those responsible for his or her care. We will use every tool in our arsenal, including hidden cameras, to ensure that nursing home residents receive the care they need and the respect they deserve.”  This follows the New York authorities arresting 22 people in 2010 after hidden cameras revealed maltreatment of patients in two facilities.

The use of hidden cameras to record instances of poor nursing care has been a constant theme in the American press. Jan Hoffman  reported a hidden camera catching a nursing assistant stuffing latex gloves into the mouth of a ninety six year old patient, as another taunted her and tapped her on the head. Once thrown on a bed, one of the nursing assistants assaulted her with heavy-handed chest compressions. Their treatment was accompanied by laughter.

Jeremy Pelzer reported that in Ohio new legislation would enable nursing home patients the right to install hidden cameras in their rooms. Cameras can be installed by relatives, the only requirement being consent. States such as Ohio and New York are single consent jurisdictions, so if a patient or their legal representative consents to the use of a camera, no other consent is needed. A prosecutor can install a hidden camera without a court order or subpoena. The nursing home or hospital need not be told about the surveillance camera. Other States are expected to follow this trend.

The laws in other States may vary. Many nursing homes have installed cameras in common areas and hallways, but they cannot install them in the patients’ rooms. In the case of patients with enough mental faculty to make an informed decision, courts may act to prosecute a relative for invasion of privacy if they install a camera unbeknown to the patient. Nursing facilities in some States may instigate legal proceeding against those installing cameras clandestinely.  They may use ant-surveillance detectors. They may ask patient to leave a nursing facility if cameras are discovered. Patients or their representatives on admission to a nursing facility may be asked to sign an agreement not to use a surveillance camera.

The power of business interest to block the use of cameras in nursing homes is evidenced by the vote in the Senate Medical Affairs Committee concerning the right of families to install cameras in South Carolina’s nursing homes. The committee was evenly divided, with a 7-7 vote, meaning that it will not progress. Adcox  quoted the sponsor of the bill, Sen. Paul Thurmond, “This is really about empowering an individual who’s in a nursing home. The older generation is fraught with neglect and abuse.” They also quoted committee member Sen. Brad Hutto, who commented on the opposition of the nursing home industry to the bill: “They are concerned this is a ploy to catch them doing bad things to patients. That’s not what this is about. This is empowering families to take care of loved ones.” He added, “Generally, people with cameras on them behave better.”

Abuse recorded by hidden cameras is not confined to the elderly: A Canadian report commented on the case of a teenage girl who was bound and hooded, and was forcibly injected by nursing staff with an antipsychotic drug, despite the fact that she appeared calm. This girl had entered the world of prison nursing at the age of 14 for throwing crab apples at a postman. She subsequently killed herself. The footage of the injection was the subject of court action by the Canadian government, which sought to block it. The same report states: ‘In Canada, mandatory video surveillance in prisons is designed to protect both inmates and staff.  However, elderly citizens in Canadian hospitals and nursing homes have no such protection. Instead, unlike the U.S., Canadian governments and courts vigorously prohibit video surveillance inside the hospital and nursing home rooms of elderly people’. The report claims that criminal charges and convictions have ‘increased substantially’ in States like New York since they licensed the use of hidden cameras.

The situation in Canada was also commented on in a CTV report  which highlighted the case of a hidden camera in a Toronto nursing facility recording an elderly resident being roughly manhandled as her incontinence pad was changed, having a soiled wipe shoved into her face; an employee wiping his nose on her bed sheets; employees having sex in her room as she lay in bed. Four employees were sacked, but did not face any legal charge.

Abuse of patients has been caught on hidden cameras in the UK. David Brindle reported, ‘Inspectors have been called in to private hospitals that care for people with learning disabilities after exposure of a regime of shocking abuse by staff at a unit run by one of Britain’s leading care companies’. Another report gave details of footage of an Alzheimer’s patient being repeatedly beaten in a care home, which was later screened on TV. Helen Nugent reported an 89-year-old woman who was suffering from dementia being dragged across her bedroom floor, as she scream in pain, and was then threatened with violence.

Such abuse is the UK is not as isolated as some reassuringly make out. As in America, there has been a constant flow of reports of abuse, which begs the question, how much more abuse would be discovered by using hidden cameras? Exactly what lies under the ‘tip of the iceberg’?

The continuous reporting of abuse in American care facilities led to the passing of the Elder Justice Act (EJA) in 2010, which established  mandatory reporting requirements for those suspecting abuse in long-term care facilities (EJA, Funding for training and certification, 42 USC, sec. 1397, 2010). All employees are required to report reasonable suspicion of abuse to the Secretary of Health and Human Services and law enforcement agencies. Failure to report can result in harsh financial penalties of up to $300,000.

The need for a debate on the use of hidden cameras in nursing homes was made by the Care Quality Commission (CQC) in its document A Fresh Start for the Regulation and Inspection of Adult Social Care (2013), which states: “We would … like to have an open conversation with people about the use of mystery shoppers and hidden cameras, and whether they would contribute to promoting a culture of safety and quality.” This produced a similar reaction from the care home industry as it had in America, with claims of patients’ privacy and staff moral being under threat. These claims are seen as a ‘red herring’ by some in America, with the care home industry more  “concerned this is a ploy to catch them doing bad things to patients” ( Adcox 2014), i.e. employing too few and inadequately trained staff.

The issue of patients’ privacy is addressed in certain American State legislation (Ohio etc.) by linking it to consent to use hidden cameras, by the patient or their representative. If the patient has requested the use of a hidden camera, or one that is marked by a notice on their door, then all that can be objected to is their choice to do so. If a relative makes this choice, what can be questioned is their right to make a choice based on a knowledge of the patient and their likely wishes. What cannot be objected to is a person’s right to make an informed choice, even though that choice may be anathema to others. That is, people should have the same right in most instances to not have a camera in their room as others do to have one. The qualification in most instances seems an important one where abuse is suspected but can only be proved by a hidden camera. In this instance, should authorities have the duty to override the wishes of a patient’s relative?

To the charge that cameras, whether hidden or otherwise, lower staff morale, should it not be asked, which staff? If nursing staff do their job, and do it with a caring manner, what have they to fear? Your every step along the High Street or shopping mall is recorded, which will trigger a response if you mug someone. Your right to privacy is being infringed, yes, but the general right of people to be protected from mugging is enhanced. Would some staff, too intimidated to report abuse, welcome the use of cameras that would instantly stop that abuse? Would some staff welcome cameras that showed the good care they gave?

Ethical issues surrounding the use of cameras in nursing facilities have previously been debated, the BBC reporting: ‘The use of hidden cameras in hospitals to spot child abuse by parents is legal and ethical, says a report. The technique was used most controversially at North Staffordshire Hospital where researchers suggested some cot deaths were the result of child abuse. A specialist advisory committee in paediatrics was set up as a result and raised reservations and objections concerning the procedure, which is only used when abuse is suspected. But another study, published in the Archives of Disease in Childhood, the journal of the Royal College of Paediatrics and Child Health (RCPaed), says hidden cameras, monitored by nurses or other health staff, should continue “in the absence of any viable alternative”. The research, conducted by Dr Neela Shabde, one of the doctors on the advisory committee, and Professor Alan Craft, a vice president of the RCPaed, says medical staff have a legal duty under the Children Act 1989 to intervene to protect the best interests of the child.

If it was deemed that hidden cameras had a role in protecting a child from an abusive parent under the Children Act of 1989, then why do they not have a similar role today in protecting such as the elderly from an abusive or neglectful nurse or nursing assistant?

The whole issue is a contentious one. Who would review camera and audio footage? What guidelines would be issued that defined abusive or neglectful care? What rights would there be to appeal?

I suggest that the debate about the use of cameras should be extended to include NHS and private hospitals, local authority and private homes for the elderly, and those with learning disabilities. It should also be extended to all those who work in these facilities, nurses, nurse students, and assistants. The debate should not be between committee members, or be dominated by those with the loudest ‘voice’. It should be a debate in which opinions are sought, discussed, and form the basis of action. The following questionnaire is suggested as a means of initiating this process.

Answer yes or no:

  • Hidden cameras should be used in care facilities.
  • Patients in care facilities are abused and there should be camera to catch the offenders.
  • No one should get paid to abuse our older citizens who deserve respect for their contributions to society.
  • Serious physical abusers should be fired and reported to the police.
  • Hidden cameras should not be allowed in care facilities.
  • Elderly patients are humans that have rights to privacy.
  • It is morally wrong to constantly watch the elderly in care facilities without their prior consent or their knowledge.
  • Neglectful or disrespectful abusers should be suspended and reported to the Nursing and Midwifery Council.
  • Do people with cameras on them behave better?
  • Would cameras show low levels of staffing hindering care?
  • Should patients have the right to install hidden cameras in their rooms?
  • Should relatives have the right to install hidden cameras in rooms?
  • Should relatives have the right to install cameras if a notice of this is displayed on the door?
  • Should care facility managers have the right to install hidden cameras in rooms?
  • Should all people have to declare in the National Census if they would like cameras in their care facility rooms?
  • Should cameras be installed in common areas in care facilities, such as hallways and nursing stations?
  • Should it be compulsory for nursing staff to report abuse or suspected abuse?
  • Should there be severe penalties for those who do not?
  • Have you witnessed nursing staff not giving care, but writing in notes that they had?
  • Do you think this is a common practice?
  • If a camera is installed, should it have an audio capability?
  • Should cameras be mandatory in all areas of care facilities?
  • Should cameras be mandatory in all areas of care facilities, allowing patients or their relatives to opt out?
  • Would nursing staff who did their job, and in a caring manner, have anything to fear from cameras?
  • Would cameras show nursing staff to be hard working and caring?
  • Would cameras protect ‘good’ staff from more dominant ‘bad’ ones?
  • Would cameras increase the public’s confidence in nursing
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