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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 l.jpg

Community Equipment

The Retail Model:

Legal and Risk Implications

Speaker: Jonathan Nash


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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

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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

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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”

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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

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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]

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  • 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

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  • 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

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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.

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Integrated Community Equipment Services Initiative Services) (England) Regulations

  • 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

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Forerunners of Retail Model: Services) (England) Regulations1.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)

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  • In cases 2 and 3 the user can top up. Services) (England) Regulations

  • 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

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2. Direct Payments Services) (England) Regulations

  • 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

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3. Minor Adaptations Without Delay Services) (England) Regulations

  • 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.

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Consumer Protection: Services) (England) RegulationsMedical 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

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Consumer Protection Continued Services) (England) Regulations

  • 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

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Negligence Services) (England) Regulations

  • 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

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Instruction & Information Services) (England) Regulations

  • 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

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Responsibility of users Services) (England) Regulations

  • 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)

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Maintenance and Inspection Services) (England) Regulations

  • 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.

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Corporate Manslaughter Act 2007 Services) (England) Regulations

  • 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

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Areas of concern Services) (England) Regulations

  • 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

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  • Identification and treatment of self-funders Services) (England) Regulations

  • 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