In this seminar experts in different fields of law give a practical update on recent developments tailored specifically to in-house lawyers or general counsel working within the independent health and social care sector. The seminar covered: - TUPE - does TUPE apply in short term/caretaker arrangements? - inquests - new care models update – MCP, PACS and EHCH frameworks and joint commissioning issues.

1. Independent healthcare in-house lawyers forum
November 2016, London

2. New models of care update
Jonathan Hayden and Peter Ware

3. Three “framework” documents
• Multi-specialty Community Provider (MCP)
emerging care model and contract framework –
published end July 2016
• Integrated Primary and Acute Care Systems (PACS)
care model and business model – published
September 2016
• Enhanced Health in Care Homes (EHCH) framework
– released September 2016 (alongside the PACS
one)

4. Three “framework” documents
• Frameworks are lengthy documents (about 110
pages in total)
• These slides/notes are only extracts/summaries
from the “frameworks”
• Although not summarised below, the frameworks
contain lots of useful examples of work and
activities being undertaken by the vanguards

5. MCP framework
• MCP framework aims to define what being an MCP
means by assembling features from the 14 MCP
vanguards into a common framework
• Noted that the care model will evolve and
framework may be adopted / adapted
• Framework is not definitive policy on
commissioning and contracting for an MCP

6. MCP framework
• MCP combines the delivery of primary care and
community-based health and care services
• Place-based model of care and serves the whole
population
• MCP covers the registered lists of the participating
primary medical practices plus any unregistered
population
• All 14 vanguards serve a minimum population of at
least c100,000 (some much larger)

7. MCP framework
• Framework describes how the MCP care model operates
at four levels:
– Whole population level
– Urgent care needs
– Ongoing care needs
– Highest needs and costs
• “As long as it has sufficient decision-making rights to
deploy that budget flexibly, the MCP can reshape the
local care delivery system around what really works
best for different groups of patients”

8. MCP framework
• Related sections on
– Reducing future demand
– Creating accessible and responsive urgent care (see
the eight commissioning standards on p13)
– Integrating primary and community based care for
people with ongoing needs (inc links to Enhanced
Health in Care Homes, Integrated Personal
Commissioning)
– Implementing the “extentivist” care model

9. MCP framework
• Ten “essential jobs in creating an MCP” are
outlined in the framework (p7)
• Summary of key differences between an MCP and a
PACS
– Scope – PACS also provides most / all hospital
services
– Scale – Min MCP population likely to be 100k,
whereas PACS likely to be 250k

10. MCP framework
• Framework explains how a MCP should (for
example):
– Take account of the JSNA
– Create integrated datasets drawn from
interoperable health and care records
– Use actuarial approaches to model risk profiles of
populations
– Rely on high quality business intelligence systems

11. MCP framework
• A MCP should (continued…)
– Stratify risk, segment the population and understand
sub-groups with the greatest needs
– Adopt / adapt the NHS Rightcare method of
understanding unwarranted variations in outcomes
etc.
– Use and join-up data safely

12. MCP framework
• Acknowledgement that “an MCP may start off as a
loose coalition, but sooner or later it has to be
established on a sound legal footing under
contract”
• Three broad visions emerging:
– Virtual
– Partially integrated
– Fully integrated

13. MCP framework
• Virtual
– Individual providers and commissioning contracts are
bound together by an alliance agreement
• Partially integrated
– Contract covers all services other than primary
medical, supported by contractual arrangements
between the MCP and GPs to achieve operational
integration

14. MCP framework
• Fully integrated
– Single whole population budget across all primary
medical and community care services
• MCP contract being developed to cover the
partially integrated and fully integrated options

15. MCP framework
• MCP contract
– Streamlined hybrid of the NHS Standard Contract
and a contract for primary medical services
– Threefold aims when developing the contract:
i) increase flexibility for the provider, ii) focus
better on outcomes, and iii) to simplify
– Contract duration could be 10-15 years, probably
with early break option
– Contract will provide for some ongoing adaptation

16. MCP framework
• MCP contract
– Payment comprising three parts: i) whole population
budget, ii) performance element replacing CQUIN
and QOF, iii) gain/risk share for acute activity
– Could (in theory at least) be held by range of
entities
– GPs wont be compelled to leave GMS, PMS etc.
• NHSE is working with six MCP sites to shape and
develop the contract

17. MCP framework
• Organisational form
– Capable of bearing financial risk
– Clear governance and accountability arrangements
– NHSI and CQC considering approach to oversight
– Issues being explored:
 Pensions
 Insurance / CNST
 VAT

18. MCP framework
• MCP’s relationship with GPs / primary medical
providers could take various forms:
– Partners/shareholders
– Subcontractors
– Employees
• Considering option to “suspend” GMS/PMS
contracts for participating practices

19. MCP framework
• Role of commissioner
– Acknowledgement that “the new models of
accountable care will move the boundary between
what is commissioning and what is provision”
• Managing conflicts of interests
• Consultation
• Procurement

20. PACS framework
• MCPs and PACS are similar but different in scope
and scale
• PACS may, in particular, have links with an Acute
Care Collaboration model
• Similar to MCPs there are four levels at which the
PACS will operate: population, urgent care,
ongoing care needs, and complex health needs

21. PACS framework
• Core elements of the PACS care model
– Prevention and population health management
 Building shared care records and business intelligence
systems
 Tailoring services based on population segmentation
 Better population health through community
engagement
 Supporting self-care and patient activation
 Linking people to community assets and other public
services

22. PACS framework
• Urgent care needs – integrated access and crisis
response teams
– Proactive approach to urgent care
– Joined-up crisis response services
– Integrated access to unplanned, urgent and
emergency care services

23. PACS framework
• Ongoing care needs – enhanced primary and
community care
– Scaled up and enhanced primary and community
care teams
– Multi-disciplinary teams for service users with
complex needs
– Integrated access to specialist advice and treatment
– Ongoing care in the community, enabled by
technology

24. PACS framework
• Highest care needs – coordinated community-based
and inpatient care
– Better care for patients with complex needs and
high costs
– A new model of coordinated in-patient care
– Rapid discharge and re-integration into community
based care

25. PACS framework
• Options for commissioning and providing a PACS
– Noted that the challenges are similar to those for
MCPs, but the scale of scope of a PACS may bring
distinct challenges
– Unlike an MCP, a PACS will include acute services
and tertiary / specialised services could also be in
scope

26. PACS framework
• Role of commissioners
– Similar to MCPs, it is noted that a PACS may
“redefine the roles of commissioner and provider”
– NHSE is “working with a number of vanguards to
establish which activities must always remain with
the CCG (or other commissioners) and which
activities an MCP or PACS would perform under
contract”
– Commissioners will retain a strategic role
• Consultation, procurement etc.

27. PACS framework
• Three broad versions of a PACS (similar to MCPs)
– Virtual – alliance arrangement overlaying
“traditional” contracts
– Partially-integrated – all services other than primary
medical are procured under a single contract, with
the provider required to work with primary care
providers
– Fully-integrated – single whole-population budget for
the full range of services in scope

28. PACS framework
• Organisational form
– Options are, in theory, the same as for an MCP
– Subject to NHSE / CQC joint assurance process
• Like for MCPs, pensions, clinical negligence cover,
VAT etc. are all relevant issues for PACS (there’s
also mention of investigation of how parent
company guarantees may be used)

29. PACS framework
• PACS’ relationship with GPs / primary medical
providers (same as for MCPs)
– Partners/shareholders
– Subcontractors
– Employees
• PACS contract – substantially similar to the MCP
contract, but reflecting any learnings from the MCP
contract, so to be developed later - “by Summer
2017”

30. PACS framework
• PACS contract “will be of longer duration than
those that are typically offered to NHS providers at
present but with an initial early break-point”
• Specification will be a mix of national/mandated
and local service requirements
• Fully-integrated PACS will receive a single budget:
whole population budget (incl performance
element replacing QOF and CQUIN) but unlikely
that PACS need same risk/gain share as for MCPs

31. EHCH framework
• EHCH to be a core element of the MCP and PACS
models
• Model aims to overcome barriers:
– Care
– Financial
– Organisational

32. EHCH framework
• EHCH model seeks to overcome these challenges by
ensuring:
– Access to enhanced primary care and specialist
services
– Alignment of budgets and incentives
– Working environment optimised for integrated teams
– People maintain independence as far as possible
– Health and social care commissioned in a
coordinated manner

33. EHCH framework
• EHCH vanguards identified the following as critical
to success:
– Person-centered care
– Co-production e.g. with local government, the
community and voluntary and care homes sectors
– Focus on quality as the driving factor for change
– Strong leadership and joint shared vision (and
recognising cultural differences between
organisations)

34. EHCH framework
• Footprint of an EHCH?
“… all of the care homes (residential and nursing) that
are situated in the planning footprint that chooses to
implement the EHCH model, be it a sustainability and
transformation plan (STP) area, a clinical
commissioning group (CCG), a local authority or an MCP
or PACS”

35. EHCH framework
• The EHCH framework “draws on both the ‘I
statements’ (published by the ‘Think Local, Act
Personal’ (TLAP) partnership that spans the health
and social care sector) and the ’My Home Life’
initiative (that promotes quality of life and delivers
positive change in care homes for older people)”

36. EHCH framework
• The EHCH framework describes
– Seven core care elements of the EHCH model and
how they can be commissioned to deliver joined-up
services
– The fully mature EHCH model

37. EHCH framework
• Seven care elements (and 18 sub-elements):
– enhanced primary care support
– multi-disciplinary (MDT) support including coordinated
health and social care
– re-ablement and rehabilitation
– high quality end-of-life care and dementia care
– joined-up commissioning and collaboration between
health and social care
– workforce development
– data, IT and technology

38. EHCH framework
• The Framework also includes a useful table highlighting
for each care element and sub-element whether it is
“core” or “enhanced” and the indicative pace of
implementation (starting from <1 year, and up to 1-5
years)
• Self-assessment framework to be released to help local
areas assess themselves against the framework
• At Annex 2 there are some “low cost, high impact
ideas” – e.g. using NHS secure mail

39. EHCH framework
• Organisational form
“Unlike with MCPs and PACSs, however, implementing the
EHCH care model does not involve the creation of a single
lead provider; nor are we expecting care home providers to
merge with an MCP or a PACS in a new organisational form.
Rather, care home providers may, if they wish, enter into a
formal agreement with an MCP or PACS, or existing
commissioners and providers, to formalise their
commitment to whole-system, partnership working.”

40. Procurement
• Procurement
– The guidance for MCPs makes it clear that there are
procurement obligations in particular:
 Public Contracts Regulations 2015 – “the Light Touch
Regime”; and
 the National Health Service (Procurement, Patient
Choice and Competition) (No. 2) Regulations 2013.
– Note new guidance from DH on interaction between
the two.

41. Joint commissioning
• Clear focus in the frameworks on the need for
coordinated health and social care commissioning
• Useful to have high-level understanding of s75
partnership arrangements and scope for joint
commissioning

42. Legislative Background
• National Health Service Act 2006
– Local authorities and NHS bodies can enter into
partnerships
– Must lead to an improvement in the way their
functions are exercised
• Health and Social Care Act 2012
– Duty to consider Joint Health and Well-being
strategy
– Duty to encourage integrated working

43. Prescribed Functions
• Set out in the NHS Bodies and Local Authorities
(Partnerships, Care Trusts, Public Health and Local
Healthwatch) Regulations 2012:
– NHS functions (Regulation 5)
e.g. health services, after care for people leaving
hospital with mental health conditions
– Local authority functions (Regulation 6)
e.g. social services and community care, youth
services

44. Typical Partnerships
• Typical partnership services include:
– Domiciliary care services
– Mental health services
– Community rehabilitation services
– Drug and alcohol treatment services

45. Conditions to Section 75
arrangements
• The power to enter into section 75 agreements is
conditional on the following:
– Arrangements likely to lead to improvement in the
way functions exercised
– Partners have jointly consulted people affected by
arrangements

46. Powers permit:
• NHS Act provides flexibility to:
– Form a pooled budget
– Lead commissioning
– Integrated provision

47. Practical issues
• Charging for services
– Where NHS lead, agree procedure for income
collection
– Local authority may still want to collect charges
– LA can delegate function to NHS Body
– RISK when LA contribution to pooled fund dependent
on income from service users (DoH’s Integrated Care
Network guidance)
• Arrangements for VAT

48. Practical issues
• Consultation
– Must ensure obligations to consult are discharged
– If NHS Trust enters into pooled fund, consent from
relevant CCG is required
– Service users must understand changes

49. Practical issues
• Transfers of Staff
– TUPE may apply
– Indemnity prior to transfer date
– Alternative to TUPE- secondments of staff
– Pension- Fair Deal Policy and Best Value Authorities
Staff Transfers Direction 2007

50. Practical issues
• Accountability and governance
– Retained responsibility
– Management and monitoring essential
– Risks appropriately apportioned to partners
– Take responsibility for management of partnership
– Joint Committee
– Complaint handling
– Information Sharing Protocol

51. Practical issues
• Procurement
– Does the procurement regime apply to S75
arrangements?
– Public Contract Regulations 2015- Light Touch
Regime
– the National Health Service (Procurement, Patient Choice
and Competition) (No. 2) Regulations 2013
– Responsibility for process/ deal with challenges who
is responsible?

52. Questions & Answers

53. Contact us…
Jonathan Hayden
E: jonathan.hayden@brownejacobson.com
T: 0121 237 4551
Peter Ware
E: peter.ware@brownejacobson.com
T: 0115 976 6242

54. Does TUPE apply in short
term/caretaker arrangements?
Gemma Steele, Browne Jacobson

55. Brief Recap – what is TUPE?
TUPE applies to a "relevant transfer", which means either or both of the following:
• Business Transfer - A transfer of a business, undertaking or part of a business or undertaking
where there is a transfer of an economic entity that retains its identity. This involves three
elements:
– an economic entity;
– a transfer of that economic entity; and
– the economic entity retaining its identity following the transfer.
• Service provision change - A client engaging a contractor to do work on its behalf, reassigning
such a contract or bringing the work "in-house". This can, therefore, encompass an initial (or
first generation) outsourcing, a subsequent (or second generation) outsourcing or an in-
sourcing. However, the supply of goods and "one-off buying-in of services" are excluded.
Activities carried on after a change in service provider must be "fundamentally or essentially
the same" as those carried on before it.

56. What is a service provision change?
3 conditions must be met:
• Organised grouping of resources which must have, as
its principal purpose, the provision of services to a
particular client
• Not a single specific or task of a short term duration
• Not wholly or mainly the supply of goods

57. 2014 Regs: service provision change
Transfers on or after 31 January 2014:
• Activities: “fundamentally or essentially the
same”
• Change reflects existing case law on the
meaning of ‘activities’

58. Caretaker arrangements
• If an APMS or GMS contract is terminated at short notice, a
caretaker provider is often appointed as an interim measure whilst
the commissioner undertakes a full procurement exercise
• A caretaker arrangement enables continuity of care for the
patients to be maintained ahead of a more permanent solution and
is often where timescales mean that patient consultation is not
possible.
• Caretaker arrangements can be anything from three months to one
year depending on the size of the list and the extent of the
procurement exercise.
• But will TUPE apply?

59. Is it a service provision change?
Yes - The activities (the GMS/APMS contract) ceases
to be carried out by a contractor (the old provider)
on a client's (the commissioner’s) behalf and are
reassigned to a subsequent contractor (the caretaker
provider) to carry out on the client's (the
commissioner’s) behalf.

60. Short term exemption?
In order for there to be a service provision change,
the client (commissioner) must intend that the
relevant activities will, following the service
provision change, be carried out by the transferee
(caretaker provider) other than in connection with a
single specific event or task of short-term duration
(regulation 3(3)(a)(ii)).

61. Case law
In Robert Sage t/a Prestige Nursing Care v
O'Connell and others UKEAT/0336/12, the EAT held
that for this exemption to apply, a client
(commissioner) must have more than a "hope and
wish" that a particular event or task will be short-
term. The Employment Tribunal will focus on client's
intention at the time of a transfer and whether is
intended to be short term.

62. ICTS UK Ltd v Mahdi and others
UKEAT/0133/15
• Subsequent events can be relevant in deciding
whether it was intended that the task be short
term, and should be taken into account.
• Although the intention was short term security of a
vacant site pending building work, by the time of
the ET no planning permission had been granted for
any major building project at the site and no
building work had taken place. The ET were
entitled to take these factors into account.

63. What does this mean for
caretaker arrangement?
• The client's (the commissioner’s) intention as to whether the task
will genuinely be of short term nature is crucial. So, for example,
if it is envisaged that the APMS/GMS contract will ultimately be
awarded to the caretaker provider following a full procurement
exercise, it is going to be very hard to convince an Employment
Tribunal that the caretaker arrangement was genuinely intended
to be of a short term nature.
• Each case is very dependent on its facts and legal advice should be
sought on the particular circumstances.
• However, recent case law proves that it would be dangerous to
assume TUPE never applies in a caretaker scenario.
• Indemnities!

64. Contact us…
Gemma Steele
E: gemma.steele@brownejacobson.com
T: 020 7871 8516

65. Inquests and private health:
why should I care?
Andrew Peel, Browne Jacobson LLP
2 November 2016

66. Introduction
• 1. Powers of the Coroner
• 2. Employment
• 3. System failure v system error
• 4. The CQC
• 5. PFDs
• 6. How can PFDs be avoided?
• 7. Insurers
• 8. Other investigations
• 9. Financial impact
• 10. DoLS and inquests
• 11. Legal support during the inquest
• 12. Questions

67. What the Coroner can’t do
• The Coroner cannot apportion blame
• Fact finding exercise
– It is not a trial / purpose is not to apportion blame but…
– It may feel like it during the inquest…!

68. What the Coroner can do
Upon reporting of a death the Coroner can:
- Certify the death as due to natural causes without a post-mortem
- Certify as due to natural causes after a post-mortem
- Initiate an investigation into the death
When must the Coroner investigate a death?
- Death is violent or unnatural including death due to self harm
- The cause is unknown
- Death in custody or state detention
Discontinuance of investigation
- Where post mortem reveals cause of death

69. What the Coroner can do (2)
• Consider four key questions
- Who the deceased was?
- How, when and where the deceased
died?
• Make people PIPs (Properly Interested Persons)
- Interest in outcome of inquest
- Ask questions
- Where an employee is named as a PIP or a witness, care providers should
consider how they can support the member of staff

70. What the Coroner can do (3)
• Summons witnesses
- In most instances, the Coroner will request witness’ voluntary attendance
the inquest, although witnesses can be compelled by way of a formal
summons
- Failure to attend after receiving a formal summons is a criminal offence
• Order disclosure of documentation
- Coroner gives notice of request for disclosure
- Powers of the Coroner to require evidence to be given or produced
(documents of other items of inspection)
- Sanction is financial rather than imprisonable (max £1,000)

71. What the Coroner can do (4)
• Prevention of Future Deaths (PFD)
- Mandatory where the evidence gives rise to a concern that circumstances
exist which create a risk that other deaths will occur in the future
- Can be issued at the inquest or any other point during the investigation
- Not just the person who receives the PFD who sees it:
- Chief Coroner
- All interested persons
- Anyone the Coroner feels may find it useful – CQC
- Published on the internet
- Annual report to Parliament
So there are clear reputational issues

72. Is it this simple?
No it is not – There are further far reaching implications
• The Coroner can summons senior persons e.g. CEO, Chief Nurse etc. to
explain what happened
• Can refer the matter to the Crown Prosecution Service
• Relationship with other investigations
• Refer persons to the GMC/NMC
• Insurance
• Financial implications

73. Employment
• Duties to assist employees during the process
- Support
- Ensure that only those who need to give evidence are involved
• Referral of staff to professional regulatory bodies such as the GMC/NMC
• Internal conduct and disciplinary issues
• Impact on wider organisation HR issues e.g. investigation of working
practices
• If a staff member has left ensure the Coroner
knows as soon as possible

74. System failure v human error
• Root Cause Analysis (RCA) /Serious Untoward Incident (SUI) report will
be requested by Coroner, as well as investigations statements/
recordings
- Staff engagement in the process is crucial
- Purpose of RCA is to monitor and improve quality of healthcare
- RCA ‘sets the tone’ / may guide scope of inquest (and any litigation!)
• Consultants as independent contractors
• Conflicts of interests
- Early identification of actual / potential conflicts
of interest between individual and organisation

75. System failure v human error (2)
• Support individuals
- Support from HR
- Support from defence union
- Maintain a good relationship to lower to risk of hostile evidence against
organisation’s systems
- Exclude from inquest preparation
• Importance of witness evidence
- Statements taken as part of an investigation are disclosable
- Ensure care is taken with the statements particularly as they are likely to
be contemporaneous
- There can be difficulties later if a statement is made in preparation for
the inquest which differs to that made for the investigation report

76. The CQC
• Attention from the CQC – Serious!
• Requirement to be notified of death
• Can be made a PIP
• Unannounced inspections
• Fines / conditions imposed on registration
• CQC’s 5 key questions:
safe, effective, caring, responsive, well led?

77. PFDs
• The Coroner can’t tell organisations what to do
• Is the ‘obvious’ solution that is sought by the Coroner, in fact, workable in
practice?
• CQC may seek to enforce actions in a way that the Coroner cannot
• FOI requests. Can a pattern be established across organisations?

78. So how can a PFD be avoided?
• Conduct a thorough investigation at an early stage
• Produce a clear and relevant RCA report and disclose to Coroner
• Ensure scope of RCA is wide enough
• Clear action plan that has been monitored/completed
• Specific organisational lesson-learning evidence
- The right witness is vital
- From a senior doctor/ nurse/director explaining the investigation and
what processes have changed
- Support with evidence
• Ensure witnesses are aware of the new policies / procedures!
• Co-operate with other PIPs
• Coroner may opt to write to organisation for reassurance where need for
PDF is uncertain

79. Insurers
• Notification – once inquest has been called - does this count as an
intimation of a claim?
• PFD reports – on notice of ‘issue’ at the organisation
• Liaise with Insurers to understand whether representation at the inquest
will be covered
• Do admissions of liability in RCA report require Insurer's approval ?

80. Other investigations
The Coroner can refer the matter to other organisations, including:
• Crown Prosecution Service – Corporate Manslaughter/Gross Negligence
Manslaughter
• Health and Safety Executive
• Fire Authority
• GMC/NMC/Other professional bodies

81. Financial impact
• Scope of the inquests, PIPs, duration and jury all increase overall costs
• Performance at inquests will impact on proceeding with civil claim
- Inquests as ‘fishing expeditions’ especially Article
2 inquests
- Transcript of inquest can be used in civil claim
- Conclusions at inquests are not determinable of the outcome of a civil
action but can be very persuasive
• Publicity & reputational damage
- Anyone, including the press can attend
Court

82. Financial impact (2)
• Insurers – increased premiums and reluctance to refer policyholders
• CQC fine
- Failure to comply with regulations about quality and safety (Health and
Social Care Act) – Unlimited fine
• Health & Safety Executive fines
• Corporate Manslaughter fine – Unlimited
• Potential recovery of family’s costs of attending inquest from the
organisation

83. DoLS & inquests
• Duty for inquest to be carried out into death of anyone under a
Deprivation of Liberty Safeguard
• Anyone who dies whilst subject to a DoL are considered having died in
‘state detention’
• Chief Coroner in his 2015-2016 annual report revealed that Coroners held
inquests for 7,183 people who died whilst under a DoL in 2015
• Following the Cheshire West ruling, the Law Commission is reviewing DoLS
and is due to present its recommendations later this year

84. Legal support during the inquest
• RCA investigation and report writing
• Obtaining the best evidence from staff, both statements and oral
• Witness management – is the most appropriate person giving evidence?
• Strategy to ensure protection of organisation from early stage
• Privilege
• Management of sensitive organisation
- Inquest v claim disclosure issues
• Legal representations during inquest
- Control the scope, questions asked, information delivered by witnesses
• Submissions on conclusion
- Some Coroners ask advocates to submit drafts for narrative conclusions
• Response to PFD report
• Staff training after the inquest

85. Any Questions?

86. Contact us…
Andrew Peel
E: andrew.peel@brownejacobson.com
T: 0330 045 2101