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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

Community Equipment

The Retail Model:

Legal and Risk Implications

Speaker: Jonathan Nash


retail model
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
nhs primary law
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
la assessment
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”
facs eligibility criteria
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
community equipment definitions
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]
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
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
community care delayed discharges etc act qualifying services england regulations 2003
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.
integrated community equipment services initiative
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
forerunners of retail model 1 nhs wheelchair voucher scheme
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)
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
2 direct payments
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
3 minor adaptations without delay
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.
consumer protection medical devices regulations 1994
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
consumer protection continued
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
  • 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
instruction information
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
responsibility of users
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)
maintenance and inspection
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.
corporate manslaughter act 2007
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
areas of concern
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
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