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Community Equipment

Community Equipment. The Retail Model: Legal and Risk Implications Speaker: Jonathan Nash Solicitor. Retail Model. Model is not mandatory No change to legal basis of statutory provision State service users will continue to be state assessed

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Community Equipment

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

  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) Regulations2003 • 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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