The Joint Committee on Human Rights (the Committee) published its report ‘A life like any other? human rights of adults with learning disabilities’ on 6 March 2008. This memorandum sets out the government response response to the conclusions and recommendations in that report.

The revised Code of Practice Mental Health Act has been prepared in accordance with section 118 of the Mental Health Act 1983 by the Secretary of State for Health after consulting such bodies as appeared to him to be concerned, and laid before Parliament. The Code will come into force in November 2008.

National Health Service Act 2006: Pharmaceutical Services (Fees for applications) Directions 2008 update the Pharmaceutical Services Directions (Fees for applications) for 2008 and take effect from 21 April 2008.

The Joint Committee on Human Rights (JCHR) has published three reports on its legislative scrutiny of the Health and Social Care Bill

• House of Lords, House of Commons Joint Committee on Human Rights (2008) Legislative Scrutiny: Health and Social Care Bill: Eighth Report of Session 2007–08: Report, together with formal minutes and appendices. London: TSO.

• House of Lords, House of Commons Joint Committee on Human Rights (2008) Legislative Scrutiny: 1) Health and Social Care Bill and 2) Child Maintenance and Other Payments Bill: Government Response: Twelfth Report of Session 2007–08:Report, together with formal minutes and appendices. London: TSO.

• House of Lords, House of Commons Joint Committee on Human Rights (2008) Legislative Scrutiny: 1) Health and Social Care Bill and 2) Child Maintenance and Other Payments Bill: Government Response: Fifteenth Report of Session 2007–08: Drawing special attention to: Children and Young Persons Bill, Criminal Justice and Immigration Bill, Health and Social Care Bill, Human Fertilisation and Embryology Bill, Sale of Student Loans Bill. London: TSO.

This is the Government’s response to the first two of these reports.

Implementing the Health Act 2006: NHS (Pharmaceutical Services) (Amendment) Regulations 2008 Information for Primary Care Trusts on these directions that come into force on 21 April 2008.

Guidance on nominating a consultee for research involving adults who lack capacity to consent  establishes how to identify an appropriate consultee for the purposes of section 32 of the Mental Capacity Act 2005.  Researchers are required by the Act to take reasonable steps to identify a person who, as a result of an existing relationship with the person who lacks capacity, can advise the researcher about that person’s participation in the project. Where no such person can be identified, the Act requires another person who can provide this advice to be appointed in accordance with guidance.

The Health and Social Care Bill 2007-08 has it’s third reading today.  The Bill aims to enhance professional regulation and create a new integrated regulator, the Care Quality Commission, for health and adult social care.  This body will provide assurance about the safety and quality of care for patients and service users.

• Assures the safety and quality of care and creates a new regulator, the Care Quality Commission
• Equips the new regulator with tougher powers, backed by fines, to inspect, investigate and intervene where hospitals are failing to meet hygiene standards
• Strengthens clinical governance and reforms the system of professional regulation to ensure it earns and sustains the confidence of patients, professionals and Parliament
• Extends financial support to mothers-to-be from the 29th week of pregnancy
• Ensures all healthcare professional regulatory bodies use the civil, rather than criminal, standard of proof
• Creates an independent adjudicator to undertake independent and objective formal adjudication for the professional regulatory bodies
• Ensures that all healthcare organisations employing or contracting with doctors appoint a ‘responsible officer’ to work with the GMC to identify and handle cases of poor professional performance by doctors
• Updates the Public Health (Control of Disease) Act 1984 with the aim of providing a more effective and proportionate response to infectious disease.

SI 2008 No. 224 NATIONAL HEALTH SERVICE, ENGLAND The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) (Amendment) Regulations 2008 amends legislation so that Strategic Health Authorities may secure the provision of the following health services, namely islet transplantation service and proton beam therapy service.

Mental Health Act Commission Twelfth Biennial Report - Risk, Rights, Recovery finds that there are severe funding issues faced by providers of mental health services in that:

• Patients deemed to be a threat to themselves or others are being denied hospital beds while commissioners disagree with regard to funding.

• The Mental Health Act Commission has found practitioners are being told to delay sectioning people with urgent mental health needs until primary care trusts ascertain who should pay for their treatment.

• The problem is caused by high bed occupancy levels and the need for PCTs to balance budgets.

• This has encouraged PCTs not to detain patients who have travelled from other areas until the home PCT has agreed to pay.

Thse practices are unsuprisingly condemned in this report.

Mental Health Act Commission Eleventh Biennial Report (In Place Of Fear) questions whether all inpatient mental health services provide their patients with acceptable levels of security, care, or a sense of being treated as  someone who matters. It welcome the Government’s announced refocus on inpatient services and call for it to concentrate on building up these aspects, in place of the fear that many patients have of services and that many people have of mentally disordered people.  The importance of breaking such ‘circles of fear’ for Black and minority ethnic patients are particularly welcomed.

There is evidence that inpatient services are losing staff and resources to community
services, but that pressures on inpatient beds remain high. Over half of all wards are full or have more patients than beds, with staffing shortages and unpleasant ward environments undermining the therapeutic purpose of inpatient admission.

The report highlights the dangers inherent in devolved service commissioning for ensuring adequate levels of specialist provision, and note the vulnerability of mental health services as Trusts face financial crises.

The extension of patient ‘choice’ across health service provision should not be allowed further to disadvantage or ostracise patients who are unable to exercise choice because of their mental incapacity or because of legal powers of compulsion held over
their treatment.

Boundaries of current mental health law under stress, with discussion of about forty cases
in court, and a more general observation of legal powers being used in ways that may not have been intended by Parliament, often for pragmatic reasons where professionals are keen to intervene in what they perceive to be a person’s best interest or as measures of social order.

It also discusses aspects of the use of present mental health powers in relation to civil detention and police powers, including an extended discussion on the detention of mentally disordered offenders.We provide analysis of deaths of detained patients; seclusion incidents notified to the Commission; and Second Opinion activity during this period.

The report has a strong focus on measures to encourage and support the empowerment of all patients, including those without mental capacity to make certain decisions about their care.

It finally reviews the proposed future arrangements for monitoring detention of mentally disordered persons and suggest ways in which the forthcoming Mental Health Bill might be improved to ensure acceptability to mentally disordered persons and the effective protection of their rights.

Mental Health Act Commission Eleventh Biennial Report - Errata and Addendum

This consultation sets out a single approach to considering whether and if so how, a chair or non-executive member of a Primary Care Trust (PCT), or a chair or non-executive director of an NHS trust, should be removed from office. The process may involve either seeking resignation or the termination of appointment and also introduces the potential use of a suspension function.

There is currently no legal framework for the Secretary of State to direct the Appointments Commission to suspend chairs and non-executive members or directors from office. The consultation documentation sets out proposals on the amendments that need to be made to the relevant legislation in order to allow for suspension of chairs and non-executive members or directors of PCTs and NHS trusts, and for temporary non-executive member(s) or director(s) to be appointed during the period of suspension. The consultation includes an impact assessment.

It is intended that the introduction of a suspension function for SHA chairs and non-executives will be covered by a separate consultation at a later date.

Organs for transplants - a report from the Organ Donation Taskforce has been in the news over the last week (15th January, 14th January, 13th January) and makes 14 recomendations, with the aim of creating a 50 per cent increase in organ donation in the UK within five years (equivilent to 1,200 transplants a year). These are:

• A UK-wide Organ Donation Organisation should be established.
• The establishment of the Organ Donation Organisation should be the
  responsibility of NHSBT.
• Urgent attention is required to resolve outstanding legal, ethical and professional
  issues in order to ensure that all clinicians are supported and are able to work
  within a clear and unambiguous framework of good practice. An independent UK-wide Donation Ethics Group should be established.
• All parts of the NHS must embrace organ donation as a usual, not an unusual
  event. Local policies, constructed around national guidelines, should be put in
  place. Discussions about donation should be part of all end-of-life care when
  appropriate. Each Trust should have an identified clinical donation champion
  and a Trust donation committee to help achieve this.
• Minimum notification criteria for potential organ donors should be introduced
  on a UK-wide basis. These criteria should be reviewed after 12 months in the
  light of evidence of their effect, and the comparative impact of more detailed
  criteria should also be assessed.
• Donation activity in all Trusts should be monitored. Rates of potential donor
  identification, referral, approach to the family and consent to donation should be
  reported. The Trust donation committee should report to the Trust Board through
  the clinical governance process and the medical director, and the reports should
  be part of the assessment of Trusts through the relevant healthcare regulator.
• BSD testing should be carried out in all patients where BSD is a likely diagnosis,
  even if organ donation is an unlikely outcome.
• Financial disincentives to Trusts facilitating donation should be removed
  through the development and introduction of appropriate reimbursement.
• The current network of DTCs should be expanded and strengthened through
  central employment by a UK-wide Organ Donation Organisation. Additional
  co-ordinators, embedded within critical care areas, should be employed to
  ensure a comprehensive, highly skilled, specialised and robust service. There
  should be a close and defined collaboration between DTCs, clinical staff and
  Trust donation champions. Electronic on-line donor registration and organ
  offering systems should be developed.
• A UK-wide network of dedicated organ retrieval teams should be established
  to ensure timely, high-quality organ removal from all heartbeating and nonheartbeating donors. The Organ Donation Organisation should be responsible
  for commissioning the retrieval teams and for audit and performance management.
• All clinical staff likely to be involved in the treatment of potential organ donors
  should receive mandatory training in the principles of donation. There should
  also be regular update training.
• Appropriate ways should be identified of personally and publicly recognising
  individual organ donors, where desired. These approaches may include
  national memorials, local initiatives and personal follow-up to donor families.
• There is an urgent requirement to identify and implement the most
  effective methods through which organ donation and the ‘gift of life’ can
  be promoted to the general public, and specifically to the BME population.
• The Department of Health and the Ministry of Justice should develop formal
  guidelines for coroners concerning organ donation.

The Organs for transplants - the supplement report provides the wider evidence behind the work of the Taskforce, explains the benefits, of each of the recommendations and explores some of the wider implications.

The Health Act 2006 Code of practice for the prevention and control of healthcare associated infections of practice will help NHS bodies to plan and implement how they can prevent and control healthcare associated infections. It sets out criteria by which managers of NHS organisations are to ensure that patients are cared for in a clean environment and where the risk of health care associated infections is kept as low as possible.

Washington, D.C. – December 26, 2007 – President Bush has signed into law the Consolidated Appropriations Act of 2007 (H.R. 2764), which includes a provision directing the National Institutes of Health (NIH) to provide the public with open online access to findings from its funded research. This is the first time the U.S. government has mandated public access to research funded by a major agency.

The provision directs the NIH to change its existing Public Access Policy, implemented as a voluntary measure in 2005, so that participation is required for agency-funded investigators. Researchers will now be required to deposit electronic copies of their peer-reviewed manuscripts into the National Library of Medicine’s online archive, PubMed Central. Full texts of the articles will be publicly available and searchable online in PubMed Central no later than 12 months after publication in a journal.

Local planning guides for premises Two new guides are available to help the NHS and local planning authorities work together. One of the guides is written for NHS staff explaining town planning in England, the other is for local planning authorities explaining the NHS and how planners can impact on it.

• A guide to town planning for NHS staff
• A guide to the NHS for local planning authorities

The Mental Health Act 2007 (Explanatory Note), which received Royal Assent in July 2007, as well as amending the Mental Health Act 1983, was used as the vehicle for introducing deprivation of liberty safeguards into the Mental Capacity Act 2005 (Explanatory Note, Code of Practice).  This briefing sheet sets out information about the deprivation of liberty safeguards.

Key Elements are: 

• People who suffer from a disorder or disability of the mind, such as dementia or a profound learning disability, and who lack the mental capacity to consent to the care or treatment they need, should be cared for in a way that does not limit their rights or freedom of action.

• In some cases members of this vulnerable group need to be deprived of their liberty for treatment or care because this is necessary in their best interests to protect them from harm.

• The European Court of Human Rights (ECtHR) in its October 2004 judgement in the Bournewood case (HL v UK) highlighted that additional safeguards are needed for people who lack capacity and who might be deprived of their liberty.

• The Government is closing the “Bournewood gap” by amending the Mental Capacity Act 2005. The deprivation of liberty safeguards being introduced will strengthen the rights of hospital patients and those in care homes, as well as ensuring compliance with the European Convention on Human Rights (ECHR).

Useful Additional Document

Mental Capacity Act Code of Practice 

The Health and Social Care Bill (Explanatory Note)contains four key policy areas:

Care Quality Commission

It creates the Care Quality Commission a new integrated regulator for health and adult social care bringing together existing health and social care regulators into one regulatory body.

• Care Quality Commission

Professional regulation

Reforms professional regulation to enhance public and professional confidence and strengthen clinical governance as part of the Government’s response to the Shipman Inquiry.

• Professional regulation

Public Health Protection Measures

The public health protection measures will strengthen the response to infectious disease and provide a response to contamination.

• Public health protection measures

Health in Pregnancy Grant

The Health in Pregnancy Grant will be a one-off payment to expectant mothers ordinarily resident in the UK, to help with the costs of a healthy lifestyle, including diet, in the later stages of pregnancy.

• Health in Pregnancy Grant

The Health and Social Care Bill also includes a number of additional measures:

• The transfer of the global sum for pharmaceutical services
• The extension of the NHS Indemnity Scheme
• The extension of direct payments
• Changes to the National Assistance Act 1948
• The creation of a power for the Secretary of State to give financial assistance to social enterprises
• The creation of the National Information Governance Board for Health and Social Care
• The abolition of the National Biological Standards Board and the transfer of its functions to the Health Protection Agency
• Legislative cover for performance management and routine feedback to parents as part of the National Child Measurement Programme

Mass media coverage from Fade the Blog.

The Human Fertility and Embryology Bill 2008 (HL Bill 6 07-08 PDF), has prompted a flurry of piblicationd from the Department of Health.   Firstly they have produced the Impact Assessment on the Human Fertility and Embryology Bill 2008 to assess the expected costs, benefits and impact of the policy.  To further aid understanding of the imact of the legislation, The Human Fertility and Embryology Act 1990 - with illustrative text shows how the Human Fertilisation and Embryology Act 1990 would look if amended by the Human Fertilisation and Embryology Bill introduced into Parliament on 8 November 2007.

40 years ago legislation was passed enabling abortion. The House of Commons Select Committee on Science and Technology has set about reviewing Scientific Developments Relating to the Abortion Act 1967.  Since 1967 medical technology has had an impact on fetal viability and this raises serious ethical issues with regard to current legislation.

Naturally the media have covered this in great detail, 30th October ,31st October, 1st November,  3rd November,4th November, and 5th November.

NHS Estates projects are flavour of the month in Liverpool so it’s timely that the Department of Health issue two pieces of grey literature to support the planning process.

The Guide for the NHS aims to

• outline the town and country planning system in England at regional and local level with reference to issues specific to the NHS
• explain the correlation between planning and health, and
• encourage NHS organisations to get involved in the planning process.

A guide to town planning for NHS staff

Meanwhile for Local Authorities their guide gives local planning authorities an overview of the NHS in England. It outlines the key principles of public health; identifies the wider determinants of health and how planners impact on them; and points to how local planning authorities can interact with NHS organisations to deliver sustainable health and social care services.

A guide to the NHS for local planning authorities