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The Retail Model: Legal and Risk Implications Speaker: Jonathan Nash Solicitor Community Equipment.

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Presentation on theme: "The Retail Model: Legal and Risk Implications Speaker: Jonathan Nash Solicitor Community Equipment."— Presentation transcript:

1 The Retail Model: Legal and Risk Implications Speaker: Jonathan Nash Solicitor Community Equipment

2 Retail Model Model is not mandatory No change to legal basis of statutory provision State service users will continue to be state assessed Main changes are delivery, installation, maintenance and ownership: above and below the line (big kit) and custom equipment and top ups (Direct Payments already available) Big and small kit to be state provided for hospital discharge cases (and for palliative care?) – recent purported change to model

3 NHS Primary Law NHSA 2006 S.3(1)(e) Services and facilities for the prevention of illness, the care of persons suffering from illness and the after- care of persons suffering from illness To such extent as the Secretary considers necessary to meet all reasonable requirements and for s.3(1)(e) ‘as he considers are appropriate as part of the health service’ S.1(3) Services must be free of charge except when legislation expressly states otherwise Postcode Lottery

4 LA Assessment S.47 NHSCCA 1990 Where it appears to an LA an individual may be in need of community care services: It shall carry out an assessment; and Decide whether to provide services S.47 “is central to virtually all social services community care responsibilities”

5 FACS Eligibility Criteria Discretionary provision becomes an individual duty through the application of the FACS policy guidance. Critical, substantial, moderate and low bands LA chooses which bands it can afford to meet. Just meeting critical is expressly allowed and has not been overturned by the recent Harrow case. It is unlawful for a LA to have different FACS eligibility for different services Postcode Lottery is unchanged by Retail Model as the partner authority has ability to choose which products can be locally prescribed

6 Community Equipment Definitions HSC 2001/008; LAC (2001) 13 - NHS responsible for permanent wheelchairs and equipment for home nursing e.g. pressure relief mattresses, commodes and feeding equipment [LAC (2001)18] LAs responsible for equipment for daily living e.g. shower chairs and raised toilet seats and hoisting equipment [LAC (90)7]

7 It also includes, but is not limited to: Minor adaptations, such as grab rails, lever taps and improved domestic lighting Ancillary equipment for sensory impairments e.g. liquid level indicators, hearing loops, assistive listening devices and flashing doorbells; Communication aids for speech impairment; Telecare e.g. fall and gas alarms and health state monitoring for vulnerable people Some can be construed as joint NHS/ LA responsibility

8 LA / HA LAC (90)7 -Equipment which can be installed and removed with little or no structural modification to the dwelling should usually be the LA’s responsibility rather than the HA’s CSDPA 1970 Home adaptation duty overlaps with the housing authority duty to provide a means- tested Disabled Facilities Grants for adaptations up to £25,000 - Housing Grants, Construction and Regeneration Act 1996

9 Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003 Community equipment and Minor adaptations under £1000 (including buying and fitting) Are required to be provided free of charge. Note the key point that community equipment does not have to be under £1000 in order to be provided free of charge.

10 Integrated Community Equipment Services Initiative HSC 2001/008; LAC (2001)13 Integrated Service must: Use Health Act 1999 flexibilities to pool budgets Have a single operational manager and a board to advise that manager Use unified stock

11 Forerunners of Retail Model: 1.NHS Wheelchair Voucher Scheme HSG (96)53 The voucher covers the cost of a standard wheelchair (NHS Option) Users can purchase from the wheelchair service which retains ownership and responsibility for maintenance and repair (Partnership Option) Or from an independent supplier, with the user owning the wheelchair and responsibility for maintenance and repair (Independent Option)

12 In cases 2 and 3 the user can top up. The voucher has a period of approx 5 years before the user is expected to need another wheelchair A user whose needs or circumstances change may apply to be reassessed at any time. NHS Wheelchair Services unable to trace issued covers might be at risk of legal liability – MDA SN9933

13 2. Direct Payments HSCA 2001 Payment in lieu of a social service Obligation where the LA is satisfied the DP can meet the user’s needs, the user requests a DP and is capable of managing the payment. Conditions can be applied e.g. return of equipment when no longer required 2003 Guidance: LA must clarify who owns the equipment, and who is responsible for maintenance and ongoing care. Must apply equally to top ups under Retail Model

14 3. Minor Adaptations Without Delay The 2002 College of OTs guide states that initial assessment by an OT is generally not required for a range of minor adaptations such as grab and hand rails, threshold ramps, drop kerbs, kitchen and bathroom taps and handles.

15 Consumer Protection: Medical Devices Regulations 1994 ‘Medical devices’ broadly defined and should apply to wide range of daily living equipment Manufacturers must ensure new or fully refurbished medical devices meet function and safety requirements - CE mark Potential criminal liability for non- compliance

16 Consumer Protection Continued CPA 1987 - Strict civil liability imposed on defective products causing harm Failure by supplier to identify source of defective equipment causing injury results in strict liability General Product Safety Regulations 1994 – criminal and civil liability where unsafe products are supplied commercially Lifting Operations and Lifting Equipment Regulations 1998 – 6 monthly examinations of certain lifting equipment by relevant organisation Sales of Goods Act 1979 - strict liability for goods of unsatisfactory quality

17 Negligence Duty of care Breach (Omission or comission) Causation Forseeable harm Reasonable or ordinary competence Recorded and reasoned decisions balancing risk v benefits Employer’s vicarious liability or primary liability for systemic failures S.2 Unfair Contract Terms Act 1977– Liability cannot be reduced for negligence resulting in PI or death

18 Instruction & Information The delivery of a collapsible walking aid without professional demonstration and supervision was criticised by a Birmingham coroner in 1998. MDA DB9801 makes recommendations on delivery, inspection of equipment, installation of equipment and the instruction of users

19 Responsibility of users Following relevant instruction and information, a user must follow them (McKay v Royal Inland Hospital – hospital bed) And can even be contributorily negligent for failing to ask for instructions and increase own safety (Brushett v Cowan - crutches)

20 Maintenance and Inspection Where equipment belongs to the LA or NHS, MDA DB9801 recommends defect reporting by users and professionals; regular inspection of potentially hazardous equipment; identifying particularly vulnerable users Ongoing duty of care and duty to re-assess where material change of circumstance or equipment unfitness / deterioration.

21 Corporate Manslaughter Act 2007 Where the way an organisation’s activities are managed or organised causes a person’s death and amounts to a gross breach of the relevant duty of care, it will be liable to a fine. Extension of the law of negligence Gross breach = falling far below what can be reasonably expected

22 Areas of concern Delay between prescription and redemption Private installation Instruction Closure of cases and ongoing maintenance / replacement / reassessment Repeat prescriptions? Costs of delivery / maintenance v NHS ‘free’ service Lack of supplier stock Top up ownership Resale / traceability Carers redeeming prescriptions

23 Identification and treatment of self-funders Data Protection Change to FACS v prevention Regulatory body’s legal status? Retailer’s code of practice? (There is no legal duty to stock spare parts) B&Q NHS Supply Chain has expertise in delivering items, not installation and instruction 2007 Comprehensive Spending Review called for £1bn in savings Financial Robustness questioned in anonymous report recently submitted to THIIS

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