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David Lock

David Lock: Do CCGs have the power to pay out for past PCT NHS continuing care errors?

11 Feb, 14 | by BMJ

The NHS has paid out vast amounts—probably hundreds of millions of pounds—in recent years as a result of decisions that patients were not entitled to NHS Continuing Care (where the NHS meets the costs of a package of social care and accommodation outside a hospital).  Mostly these are claims by relatives of deceased patients who objected to paying nursing home fees for elderly patients who were classified as “social care” rather than being eligible for NHS Continuing Care.

Several attempts have been made by the NHS to stop new claims, but these have not been too successful because the claims, based on alleged maladministration, continue. The “liabilities” associated with NHS Continuing Care claims were supposedly transferred from primary care trusts (PCTs) to clinical commissioning groups (CCGs) in the “transfer orders,” which transferred assets and liabilities from PCTs to CCGs. The intention was that CCGs should pay out for past NHS Continuing Care errors made by the PCTs. more…

David Lock: Should accident victims who get a payout be entitled to free NHS care?

3 Feb, 14 | by BMJ

At a time when NHS bodies are under more financial pressure than ever before there is one anomaly which is worth highlighting. Personal injury victims can be paid damages on the basis that they will claim the cost of private medical care, but then such a person is entitled to keep the damages and demand free NHS care.

This anomaly arises because patients who are injured in a road traffic accident, an accident at work, or as a result of negligent hospital treatment (or any other personal injury claim) are entitled to seek the future costs of their medical care as part of a damages claim. As a result of an act of Parliament passed in 1948 when the NHS was created, a defendant (whether the NHS litigation authority [NHSLA] or an insurer) is not allowed to insist that the tort victim uses NHS services instead of seeking private care. The NHSLA or insurer has to pay the cost of future medical bills on a private basis. Hence an NHS Trust can be forced to pay damages for a clinical negligence victim to be provided with future care funded by BUPA. more…

David Lock: Inconsistent CCG legal duties—can the circle be squared?

2 Jan, 14 | by BMJ

There are times when, as a lawyer advising NHS bodies, I get close to advising that the law is unworkable. An example emerged the day when I had to deal with the fact that clinical commissioning groups (CCGs) have legal duties to “promote the involvement of patients and their carers in decisions made about healthcare services” under section 14U of the NHS Act 2006. They also have a legal duty to “act with a view to enabling patients to make choices with respect to aspects of healthcare services provided to them” under section 14V of the NHS act. However, CCGs also have precise legal procurement obligations under the snappily titled “National Health Service (Procurement, Patient Choice and Competition) (No.2) Regulations 2013,” which require CCGs to take decisions concerning the placing of healthcare contracts in accordance with a specific set of factors guiding the decision. more…

David Lock on the landmark case concerning the future of Lewisham Hospital

18 Dec, 13 | by BMJ

The problem of how to tackle poor performing NHS trusts has dogged the NHS for many years. Companies that fail can be put into liquidation, factories close down, and people lose their jobs.  However, a failing hospital is not a factory.  An overspending hospital cannot “fail” and be closed because that would leave local people without acute health services.

Traditionally the NHS has changed key management roles at failing hospitals in an effort to turn them around.  However that model has its limitations, and so a new structure of “trust special administrators” was brought in by the Health Act 2009.  That introduced a new chapter 5A into the National Health Service Act 2006. more…

David Lock: Suicide, refusing treatment, and consent in the dying process

28 Jun, 13 | by BMJ

This is an anonymised story about how a doctor’s misunderstanding of the law around managing the death of a patient with capacity appears to have caused unnecessary suffering. It is a salutary tale about the need for doctors to understand the subtleties of the law on consent to treatment and, in difficult cases, the need to seek legal advice. But it is also about the importance of doctors respecting a capacitous patient’s right to refuse treatment, even if this leads to the patient’s death.

Paul (not his real name) suffered from a progressive degenerative disorder which was in its advanced stages. He lived at home with a package of care which was funded by the NHS. His sister had suffered from the same disorder as well. She was younger than Paul and tragically had died. Her death came in hospital after she had contracted pneumonia. Paul was well aware that he was dying and had full capacity to make his own decisions about receiving or not receiving medical treatment under the Mental Capacity Act 2005. He was very clear that he did not wish to die in hospital. more…

David Lock: Should GPs aspire to run medical services businesses?

30 May, 13 | by BMJ

It is hardly surprising that hard pressed GPs have reacted angrily to unjustified criticisms by the secretary of state for health that they are to blame for faults within the NHS. It is a gross simplification to suggest that removing responsibility for out of hours care from GPs is the main cause of increasing attendances at A & E. Apart from anything else, prior to the changes in the GP contract in 2004 most GP practices used “deputising services” to cover their practice obligations out of hours. For many practices, the only real change in 2004 was that responsibility for managing the out of hours contract moved from individual practices to the primary care trust. more…

David Lock: Do NHS commissioners invest enough in contract management?

23 May, 13 | by BMJ

The NHS is in the middle of the transition from a publicly funded and publicly provided health service towards a publicly funded but increasingly privately provided service. It is thus following the course adopted in social care, with the closure of local authority owned care homes and the contracting out of service provision to commercial, charity, and other voluntary sector providers.

The management costs for commissioners involved in running the new model successfully are very substantial.  I have previously written about the costs involved in running tender processes, and warned that the NHS has not budgeted for the management costs involved in such processes.  However, the disclosure that Harmoni had been failing to provide sufficient doctors to staff its out of hours contract in north London raises an entirely different problem. more…

David Lock: What does duty of care mean?

17 May, 13 | by BMJ Group

This is a serious blog about death, about what can go wrong in the dying process and how it can be put right. It arises out of an inquest where I represented a family member who found the medical and caring profession had misunderstood what was meant by a “duty of care” and tried to impose futile treatment on a dying elderly woman when she ought to have been allowed to die in peace and dignity.  I urge you to read on if you have the time because this is a case which shows what should not happen and, as a result of the decisions of the coroner to write formal letters under Rule 43 of the coroners rules, it might lead to changes in practice in this vital area of care. more…

David Lock: Is this the start of the wholesale privatisation process of NHS management?

13 May, 13 | by BMJ

The prime minister has picked a new health advisor, Nick Seddon, who poured cold water on the creation of clinical commissioning groups and appears to be focused on moving NHS management away from public bodies and into the private sector. Whatever the rhetoric might suggest, changing the NHS into a commercial insurance model appears to be the dominant thinking in No. 10.

In July 2010, Nick Seddon, who was then the deputy director of the right wing think tank, Reform, was fairly damming about the white paper which proposed the creation of clinical commissioning groups. He said: more…

David Lock on integrated care experiments: at last some sensible thinking from the government for the NHS

2 May, 13 | by BMJ

The HSJ reports that the government is about to signal a series of large scale integrated care “experiments,” which could result in a movement away from the straightjacket of payment by results, with all of the biases towards activity, and away from prevention that have been reported on so often. Is this a first step towards NHS Acute Trusts being paid for keeping patients with long term conditions out of hospital instead of paying to treat patients if they attend hospital? more…

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