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13.Oct.2010

The government’s healthcare shake-up offers “significant opportunities” for people to be more involved in the health and social care they receive but reforms on such a scale inevitably create significant risks, the Association of Directors of Adult Social Services has said.

In its submission to the government’s consultation, ADASS also warned of the financial and resource implications of the reforms for local authorities.

The association nevertheless said it strongly supported a number of the government’s proposals. These include the focus on an agreed set of outcomes across the whole of the health and social care system, the role given to local councils for health improvement and public health at a community level, and the establishment of statutory health and wellbeing boards (HWBs) to strengthen the local democratic legitimacy of the NHS.

It also backed the prospect of local authorities commissioning – on behalf of GP consortia – a range of services where councils have considerable investment and expertise. The ADASS submission highlighted mental health, learning disability, enablement, long term conditions, continuing health care, carers, drugs and alcohol services as examples.

However, the association – which represents directors of adult social services in local authorities in England – warned that there was a range of issues that would need careful consideration.

ADASS suggested that managing the transition from the existing system to the new one “has major risks associated with a loss of organisational capacity at a time when local government will be subject to significant resource reduction and the NHS has to make productivity gains in the order of £20bn”.

The submission argued that that there was a major need to involve existing and new bodies, local authorities, citizens, local communities and providers in co-designing the changes at national, regional and local levels “to achieve a different system that delivers different outcomes across health and social care rather than reinventing the system we have worked in to date”.

Other issues include:

• The risk of greater fragmentation between health and social care “if the aspiration for integrated commissioning is not mainstreamed, and the potential loss of co-terminosity between existing health and local government boundaries”
• The need for links between HWBs, GP Consortia and the NHS Commissioning Board “to be defined clearly in the development of transition plans and the creation of the new architecture, as well as clarity about management of the whole system and where responsibility lies”
• The role, resources and statutory powers allocated to HealthWatch to “ensure that it can effectively represent the aggregated views of users and patients and hold both HWBs and GP consortia to account”.

ADASS also flagged up the financial and resource implications for councils as a result of the White Paper’s proposals.

Among its key concerns on this front are: the level and nature of public health budgets transferred and staffing transfer arrangements; the costs of health and well-being boards and local HealthWatch; arrangements for joint commissioning and pooled budgets; and the NHS, flexibilities and place-based budgeting.

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06.Oct.2010

The Equality and Human Rights Commission has produced a guide for public sector decision-makers, setting out what is expected of them and others to comply with equality duties when they implement savings after the Comprehensive Spending Review.

It warned that the duties "should remain a top priority, even in times of economic difficulty", adding that failure to meet the relevant duties may result in authorities being exposed to "costly, time-consuming and reputation-damaging legal challenges".

The Commission said it had designed the guide – which is aimed at government departments and public authorities at both national and local level – to help “put fairness and transparency at the heart of the difficult financial decisions ahead”.

The EHRC explained that the legislation required government departments and local authorities to have “due regard” to the need to eliminate discrimination and promote equality with regard to race, disability and gender as well as promote good relations, in particular to tackle prejudice and promote understanding.

It added that when this requirement is applied in practice, “it means that they must assess the equality impact of proposed changes to policies, procedures or practices, such as decisions which  result from a desire to make savings”.

This could include decisions such as reorganisations and relocations, redundancies and service reductions programmes.

The guidance points out that the law:

• does not prevent government officials from making difficult decisions
• does not stop them from making decisions that may affect one group more than another, and
• simply requires that such decisions are made in a fair, transparent and accountable way, considering the needs and the rights of different members of the community.

It adds that where decisions are found to have a disproportionate impact on a particular group, authorities must consider what actions can be taken to avoid or mitigate the unfair impact.

Meeting the legal obligation to show “due regard” does not necessarily need to take the form of one document called an 'Equality Impact Assessment' (EIA), the guidance says, although the Commission recommends this as good practice.

“If an EIA is not adopted, there must be an alternative form of analysis which systematically assesses any adverse impact of change in policy, procedure or practice,” the Commission said.

The EHRC argued that the process is a positive opportunity for officials to ensure they take fair decisions in an open and transparent way which will stand up to external scrutiny.

The guidance recommends that decision-makers not only take into account legal obligations under equality legislation, but also those under the Human Rights Act 1998. It also says they should “look ahead to the upcoming changes as a result of the Equality Act 2010 that will extend the same protections to age, sexual orientation, pregnancy and maternity and religion and belief.”

The Commission added that the guidance should also be helpful to voluntary and community groups, trade unions and individuals in helping them hold decision-makers to account.

EHRC chief executive Helen Hughes said: “As we approach the Comprehensive Spending Review, we know all public bodies will be making difficult decisions. This legislation is not designed to prevent reductions in public expenditure.

“Its role, and the Commission's role as a regulator tasked with monitoring and enforcing the legislation, is to ensure that fairness and transparency are at the heart of decisions. And when decisions do have a disproportionate impact, policy makers think carefully about what they can do to mitigate it. Over the coming months, the Commission will be working hard to ensure those making the tough calls have the information and resources they need to do just that."

A copy of the guidance can be downloaded here.

Further reading: Be careful when you cut.

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01.Oct.2010

Public bodies must take the Equality Act into account when making budget cuts, writes Stephen Hocking

After more than five years in the making, the Equality Act will finally come into force on Friday 1 October. However, in addition to the impact that the Act will have on public bodies as employers, it could easily have an even greater impact on the public sector when it comes to budget cuts.

Public bodies are under a lot of pressure to make significant cuts and to make them quickly. They might be thinking about the equalities impact on the workforce, but they need to get to grips with their public service obligations as set out in the Equality Act if they are to avoid legal challenges from the public. The Act requires public bodies to take account of equalities considerations in performing their public functions. They must consider any disproportionate impact on protected groups when making decisions, such as budget cuts.

While many of the provisions are essentially consolidations of existing obligations in separate pieces of legislation, such as the Race Relations Act, Sex Discrimination Act and Disability Discrimination Act, there are significant differences in terms of new definitions and enhanced protection for disabled people.

There is also the new Public Sector Equality Duty which is the expanded "due regard" duty which now applies to discrimination on the grounds of age, sexual orientation and religion and belief, as well as race, gender and disability. This extended duty will probably come into force in April 2011. Although this is six months away, this is the legal duty already most successfully used to challenge public bodies on equalities. It requires equalities considerations to be factored into policy-making and key decisions about budgets and services, as an integral part of business planning and management rather than an add-on or silo activity. Bodies will need to be factoring the expanded equalities considerations into their thinking well in advance of April, so that any decision or activity taking place after that date can be defended.

We have already seen some examples of the type of challenges we can expect - the Fawcett Society has demanded a Judicial Review of the whole budget as they believe that the budget impacts disproportionately on women; and the Equality and Human Rights Commission (EHRC) has written to all government departments, including the Treasury, asking for reassurance that they will comply with equality legislation when making decisions such as budget cuts.

The Equality Act is not something which can be put on the back burner for 6-12 months while public bodies deal with the other pressing issues which they face. Unions and others have already indicated that they will use these equality obligations to challenge decisions by public authorities to cut jobs, budgets and services where they feel that these cuts will impact particularly on groups protected by the legislation. The Equality Act provides many possibilities for challenging spending decisions which impact particularly on women, people with disabilities, particular ethnic groups or age groups.

Difficult decisions for public bodies have the potential to arouse strong feelings and claims could be brought as much for the publicity and political embarrassment factor as for any real prospect of intervention or enforcement. These legal challenges should be preventable though if public bodies ensure that they are fully informed and prepared.

Any cuts that are made will require careful analysis of the precise nature of any legal obligations and careful management of service users’ expectations.

Stephen Hocking is public law partner at Beachcroft

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30.Sep.2010

Regulatory action in the last 12 months led to the closure of 34 care homes and eight agencies providing care in people’s homes, the Care Quality Commission (CQC) has revealed.

Some 700 elderly people and younger adults with a disability were found alternative care homes as a result.

The CQC issued legal notices to close six of the services, while in the other cases the owners either shut down or sold their operation after the regulator’s enforcement action.

The Commission said its concerns had included:

• verbal and psychological abuse of residents
• medicines not being managed safely, leaving people at risk of not receiving vital medication
• lack of medical and nursing care
• staff not legally able to work in the country
• poor sanitary conditions
• lack of staff training

A further 51 services – including 39 care homes, 11 agencies providing care in people’s homes and one agency providing nursery care – closed voluntarily after they were handed a “poor” rating by the CQC. In these cases the CQC had demanded improvements but not taken enforcement action.

The watchdog stressed that the vast majority of the 24,000 services in England provide good care and are responsive to its recommendations for improvement.

The CQC’s new registration system – under the Health and Social Care Act 2008 – launches tomorrow (1 October), bringing with it new standards of quality and safety. All care homes must be registered with the commission from this date.

The Commission insisted that the new regime would be tougher on poor care. Its wider enforcement powers include on-the-spot fines, warning notices and suspension of registration, as well as prosecution and closure.

Cynthia Bower, CQC’s chief executive, said: “Standards across the sector are improving year-on-year, so people are getting better care than in the past. In order to keep this trend going, we need to address the worst services that just cannot or will not improve to an acceptable level. This is where we’ve been focusing our attention over the past year as we get the sector ready for a new registration system that will be even tougher when care is not up to scratch.”

She insisted that closing a care home was not a decision taken lightly, but said that, in some cases, the necessary improvements fail to materialise. “It becomes clear that the only way to properly protect residents is to close the home and move them to others where care is of a better standard,” Bower said.

The CQC chief executive warned that services where problems have been identified “can expect frequent inspections”.

The new registration system will bring the NHS, private healthcare and adult social care providers under the same inspection regime and standards for the first time. NHS trusts registered in April this year and private healthcare and adult social care will join from tomorrow.

Dentists and private ambulances will register from April 2011, while GPs will need to register from 2012.

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29.Sep.2010

The Ministry of Justice is a step closer to introducing specialist mental health courts, which would work within the criminal justice system to identify and assess offenders with mental health issues, and ensure that offenders received appropriate intervention. Adam Wagner examines their potential role.

Specialist mental health courts have been widespread in the United States for around a decade. They are considered to be ‘problem-solving courts‘, which seek to address the underlying problems which contribute to criminal behaviour. There are around 2,500 such courts in the US, and they have been already been successful in the UK in addressing problems such as drug addiction and domestic violence.

The MoJ has published findings of a study into the feasibility of new Mental Health Courts (MHC) which, if implemented, would be set up in criminal courts throughout England. The aim is to reduce the perceived ‘revolving-door syndrome’, where people have repeat contact with the criminal justice system over the course of their lives.

Amongst other things, the MHC would provide a criminal court with information on a defendant’s mental health needs to enable the court to effectively case manage the proceedings and offer sentencers credible alternatives to custody. Enhanced psychiatric support would also be provided.

The scheme was piloted in two magistrates courts during 2009, at a cost of £401,440. The pilot led to the screening of 4,000 defendants for mental health issues, and was considered a success, leading to “innovative multi-agency collaborations that addressed needs which probably would have gone unmet.” However, a wider implementation of MHCs “would require significant changes, supported at a national level, in the current patterns of multi-agency information sharing and data collection”.

The MHC scheme, which focuses on early intervention, was launched in July 2009 by the previous government in response to Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system.

The courts sound like a good, if expensive, innovation. Criminal lawyers are constantly faced by defendants with serious mental health issues who spend most of their lives moving between state institutions, usually prisons or hospitals. It is sensible to identify these people early and consider their treatment under the criminal law in the context of their mental health. Judges are often not qualified to deal properly with mental health issues, and this inevitably leads to miscarriages of justice.

But with the MoJ looking to skim £2bn from its 9bn budget, this scheme may ultimately be delayed or cancelled. This would be a shame, as mental health courts may ultimately save money and reduce crime through earlier intervention and treatment of offenders, and could also reduce the prison population. Indeed, early reviews of similar courts in the US have found that participants have reduced their criminal activity. In the face of budget cuts, it would take an enlightened perspective to ensure that MHCs become a reality in criminal courts across England.

Adam Wagner is a barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK Human Rights Blog.

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20.Sep.2010

The government should enable councils to work in partnership with the charity sector, ensure there is a more consistent commissioning process and reduce the regulatory burden on the third sector, charity finance directors have urged.

In a submission to the Treasury’s comprehensive spending review, the Charity Finance Directors’ Group (CFDG) said: “Local authorities should be enabled and encouraged to work in partnership with the charity sector, rather than simply ‘turning off the tap’, transferring the bulk of spending cuts onto the services currently delivered by charities.”

The group argued that greater consistency in the commissioning process, allowing full cost recovery and removing some of the barriers to participating in public service delivery would help to level the playing field for charities in bidding for contracts.

Other key recommendations included:

• Longer-term contract periods should be provided wherever possible to enable services time to develop, deliver real value for money and produce real outcomes
• Accountability and transparency – incorporating effective cost-benefit analysis – should be applied to the cutting of services as it is with service procurement. This should also be reflected at a local level
• The regulatory burden for charities should be cut down. This replication of information and unnecessary governance and administration costs should be reduced
• Government departments should be aware of wider implications of public funding cuts on sector sustainability, community cohesion and service delivery
• The Big Society is undermined when projects which are already underway or have had initial funding for set-up costs are not continued. “This ultimately wastes resources and impacts negatively on communities,” the CFDG said
• The gift aid regime should simplified and updated
• The government should consider how the sector can be best supported in terms of the tax and regulatory environment it works in. “Charity trading regulations and the impact of VAT need to be addressed as burdens for the sector in seeking different sources of funding.”

The CFDG said charities have a significant part to play in bringing the government’s Big Society to life within communities.

Calling on the government to take into account the longer term impacts on the charity sector of any cuts, it added: “Furthermore, while the government has expressed that frontline services will be protected, there also needs to be recognition of the role that charities play in identifying local needs and in working with vulnerable and difficult to reach groups.”