Welcome to the winter 2023/24 issue of the Hempsons Healthcare Newsbrief.

At the time of writing in November 2023, the NHS continues to face the unprecedented challenges coming out of the COVID-19 pandemic (including the COVID Inquiry), alongside the ongoing workforce and cost of living crisis, we have endeavoured to pull together a range of articles that we hope will assist with some of the myriad of legal issues facing NHS bodies.

The ‘disciplinary gap’ is highlighted in the NHS Workforce Race Equality Standard (WRES) data. The racial ‘disciplinary gap’ is ‘the disproportionate likelihood of ethnic minority staff entering the formal disciplinary process compared with white staff’. Despite annual measurement and reporting, the NHS racial disciplinary gap persists. Hempsons has collaborated with NHS Providers to produce a guide to increase board members’ awareness and understanding of the disciplinary gap: “Closing the gap: a guide to addressing racial discrimination in disciplinaries”, details of which we provide in this edition.

It is three years since the greener NHS programme introduced the target to reduce the NHS Carbon Footprint to net zero. Ann Cojeen and Chino Osuji consider green leases, their core components, advantages and factors to consider when implementing green clauses.

Our client spotlight article reviews the successful pan-pathology managed service contract project for Leeds Teaching Hospitals NHS Trust (collaborating with Mid Yorkshire Teaching NHS Trust and Calderdale & Huddersfield NHS FT), one of the largest contracts in this sector, with lessons learned to share with other trusts.

The Health Care Services (Provider Selection Regime) Regulations 2023 were laid before Parliament on 19 October 2023. Working alongside the NHS England policy team and NHS England legal team, Hempsons has been advising on the development of the PSR over the past two years. Andrew Daly considers what the PSR will mean when procuring health care services?

Social media is increasingly a core part of everyday life and the lines between personal and professional use are often blurred. Rachel Levine highlights some of the key issues around navigating the employment law requirements in the area of social media.

At the time of writing (November 2023), CQC’s long awaited Single Assessment Framework (SAF) is slowly being shared. Philippa Doyle analyses what this will mean for providers.

On 21 July 2023, Baroness Hallett (the Chair), gave an opening statement to officially launch the COVID Inquiry. With Module 1 complete and Module 2 underway, Liz Hackett explains what Module 3 will involve.

The Patient Safety Incidents Response Framework (PSIRF) is the new framework for investigating patient safety incidents. Liz Hackett outlines the aims and objectives of: “a new approach to responding to patient safety incidents” (NHSE).

We hope you will find something of interest to you in this Newsbrief. Please feel free to get in touch with any of the authors to discuss any of the issues raised.

Collaboration with NHS Providers

Hempsons has collaborated with NHS Providers to publish a comprehensive guide for trust leaders on how to tackle racial discrimination in disciplinary procedures and to create a more inclusive and equitable work environment.

Hempsons is a longstanding partner of NHS Providers and supports it on a range of activities where legal issues are an important consideration. With our extensive experience in employment law, Hempsons brings a unique legal perspective to understanding and closing the disciplinary gap. Hempsons lawyers are passionate about using their experience to help trusts address this issue which is a crucial part of any organisation’s work on anti-racism as well as for promoting diversity, inclusion, and equality within the NHS workforce, and for ensuring that all staff are treated fairly and equitably.

Why are we publishing the guide?

A key issue within the NHS is what can be done to address and reduce the racial “disciplinary gap’.

The racial ‘disciplinary gap’ is ‘the disproportionate likelihood of ethnic minority staff entering the formal disciplinary process compared with white staff’. Despite annual measurement and reporting, the NHS racial disciplinary gap persists, with ethnic minority staff being disproportionately likely to enter formal disciplinary processes compared to their white counterparts.

In 2022, ethnic minority staff were reported to be 1.14 times more likely, (where 1.0 is equally likely, and anything above 1 shows inequality) to enter the formal disciplinary process compared to white staff, unchanged from 2021. This inequity, although it has narrowed since 2015 (when the NHS started collecting data for the Workforce Race Equality Standard (WRES)), remains a critical concern. Multiple factors contribute to the disciplinary gap, including bias, lack of cultural awareness among managers, disparities in the application of HR processes, wider challenges around organisational culture and systemic patterns of discrimination.

The objective of the new guide is to increase board members’ awareness and understanding of the disciplinary gap, and to provide practical advice and examples of how the gap can be reduced.

What are the key takeaways from the guide?

The guide has been designed as a roadmap to tackle racial discrimination, providing trust leaders with actionable insights, case studies and practical interventions to narrow the gap and improve the workplace experience for staff from diverse backgrounds.

The guide encourages the development of racial equality within the NHS and the wider healthcare community. By providing practical strategies and first-hand insights from trusts, “closing the gap” can empower trust leaders to take meaningful steps towards a more inclusive and equitable future for staff.

Case studies are provided by Barking, Havering and Redbridge University Hospitals NHS Trust, Black Country Healthcare NHS Foundation Trust, Pennine Care NHS Foundation Trust and Yorkshire Ambulance Service NHS Trust.

Common themes in the guide include:

• leadership commitment: leaders play a pivotal role in driving change and setting the tone for inclusivity and equity
• cultivating a restorative culture: viewing mistakes as opportunities for growth, minimising negative impacts, and empowering staff to learn from them is key
• anti-racism training and awareness: these initiatives are essential to dismantling biases and fostering an inclusive workplace
• data monitoring and analysis: insights on effective data collection and analysis techniques and why regularly monitoring and analysing data, especially by ethnicity, is a vital practice to identify disparities and measure progress
• learning from external sources: seeking support and learning from trusts that have made progress in this area can provide practical advice on what drives the greatest impact
• transparent communication: strategies for fostering open dialogue and inclusivity and why transparent communication about race equality, even when conversations are ‘uncomfortable’, is a fundamental element of progress

The greener NHS landscape

It is three years since the greener NHS programme introduced the target to reduce the NHS Carbon Footprint to net zero. Each NHS trust should now have a Green Plan which explains how carbon reduction by that organisation will be delivered. Environmental reporting in relation to the NHS estate is one way of enabling environmental sustainability. In this article, we consider green leases, their core components, advantages and factors to consider when implementing green clauses.

What is a green lease?

In June 2022, NHSE guidance was issued to improve green credentials of the leased estate. A “green lease” usually incorporates a standard occupational lease with a focus on green principles, centred on collaboration between landlords and tenants. The aim is to promote and improve sustainability and energy performance of a building.

The importance of green clauses

Green clauses represent a crucial departure from conventional lease terms. These clauses encompass aspects like energy efficiency, waste reduction and water conservation. Through the integration of green principles into leases and other occupancy agreements, owners and occupiers accept that they are obliged to contribute to a more environmentally conscious future. This approach is essential to support your organisation in achieving net zero quicker. It can also give you financial savings.

Essential elements of green clauses:

• energy efficiency: clauses can mandate the use of energy-efficient appliances, lighting, and heating systems to curtail energy consumption
• waste management: guidelines for responsible waste disposal, recycling, water efficiency and composting can be specified to minimise environmental harm
• works criteria: clauses can mandate the use of sustainable materials when carrying out repairs, maintenance and alterations
• statutory and environmental standards: measures can be set to achieve target certifications such as MEES (Minimum Energy Efficiency Standard) and BREEAM (Building Research Establishment Environmental Assessment Method)

Light and dark categories of obligations

The NHSE guidance presents two categories of green obligations:

1. light green which usually do not impact financially on the parties
2. dark green which can have a material financial impact on one or more parties to the lease

You can tailor the provisions, picking elements from both categories to ensure they align with your organisation’s aspirations and budget. Generally, the light green obligations are examples of best practice whereas the dark green obligations are more involved and can have a significant price tag attached.

Advantages of green clauses:

1. achieving the Greener NHS target of net zero: green initiatives align with the NHS target to be net zero by 2040
2. financial savings: energy-efficient practices can lead to reduced utility costs
3. regulatory compliance: green clauses can help improve compliance with the recent tightening of the MEES regulations
4. improved health and wellbeing: more sustainable buildings help improve the health and wellbeing of staff and patients
5. value: sustainable buildings improve environmental credentials, enhancing your organisation’s reputation

Factors to consider while implementing green clauses:

1. customisation: clauses should be adapted to the specific property requirements and needs of the parties involved
2. collaboration: co-operation of landlords and tenants is key from the outset at heads of terms stage to ensure the parties are clear about expectations
3. viability: proposed green measures must be practical and feasible for implementation. Provisions can involve works, for example the installation of sub-meters, to monitor and report on energy usage
4. incentivisation: landlords can consider offering incentives, such as rent reductions, for tenants consistently meeting green targets
5. legal expertise: consult with Hempsons at the outset of a transaction to ensure the responsibilities of both parties are clear

Conclusion

The inclusion of green clauses within UK standard form commercial leases demonstrates a significant shift by businesses to align real estate practices with environmental awareness. For the health and social care sector and specifically for NHS organisations, given the net zero target, it is essential to consider and include green clauses in leases and other occupancy agreements. The incorporation of such clauses has the potential to benefit your organisation and your workforce and the experience of patients in many ways. Engagement and collaboration are key factors to achieving a more sustainable and resilient future for the NHS estate.

The pathology market is made up of ‘big players’ going for ‘big contracts’, which puts these processes at significant risk of legal challenge. Legal challenges usually result in multiple re-runs of the process at significant cost to the NHS, both in time and lost opportunities.

Leeds Teaching Hospitals NHS Trust collaborated with Mid Yorkshire Teaching NHS Trust and Calderdale & Huddersfield NHS Foundation Trust on a pan-pathology managed service contract on one of the largest contracts in this sector. The three trusts were seeking to award a single managed service contract – a contract for seven years, with the potential to extend for a further seven years. This process awarded a significant £475m contract in a single process, which in the current climate is unheard of.

Hempsons provided specialist support and advice, as a core member of the project team.

“The partnership between Hempsons, the NHS and other partners, exemplifies the best of what can be achieved when the public and private sectors work hand in hand. Our shared values and dedication to excellence in healthcare procurement will not only transform our hospitals’ capabilities but has also set a benchmark for future collaborations.”

Chris Spark, MSC project manager, Attain/West Yorkshire Association of Acute Trusts (WYAAT)

What made this project different?

This project brought together clinical and operational colleagues from all three trusts, supported by finance and procurement colleagues. The project’s objective was to bring together the three pathology teams to create a new single network for pathology, linked to a change in working practices and the development of a new building on the Leeds, St James’s site, with the ambition of improving efficiency and realising costs savings.

Hempsons supported and advised, as a core member of the project team, on the procurement process to successfully deliver the single managed service contract across the three trusts. The intention was to utilise external legal support throughout, rather than how lawyers have previously been utilised – ie engagement once a challenge is received. Hempsons were embedded into the project team, attending the weekly steering group meetings to advise throughout, using their experience to support the project team and nip any issues in the bud, and devising robust and defensible strategies to minimise the risks of a successful challenge.

Delivering better value

Managed pathology procurements are notoriously high-risk processes due to the size of the contracts and the nature of the supplier market. The service requirements are complex. Coordinating multiple trusts made this process very high risk. Historically, the NHS has struggled to successfully award similar projects, and the likelihood of a challenge was always considered high.

The three trusts recognised that a challenge was likely to arise, as it did. However, by involving Hempsons from the outset, the process had been designed in a safe and compliant manner to successfully rebut any challenge brought. When the inevitable challenge came, once the winner had been announced, the trusts were able to successfully defend the process carried out and progress to contract award on schedule.

The contract for the new service across the three trusts has been awarded. The contract will deliver £30m in savings for the managed service element and a further £30m+ in efficiencies that the network will realise from the managed service support.

“Hempsons’ expertise and dedication were invaluable in helping co-design a competitive dialogue process that would stand up against external scrutiny in one of the most litigious markets across the NHS and helping to navigate the complexities of procurement law while keeping the focus squarely on delivering the highest quality services.”

Chris Spark, MSC project manager, Attain/WYAAT

How the trusts benefited

The risk had always been that a challenge could derail the timetable – if a challenge is brought before the contract is signed, this prevents contract signature. A challenge was brought, but as the project was designed with slippage contingencies in its timeline the overall project delivery was maintained. The challenger’s case was dismissed – without needing a long legal process, and without any damages being paid to the challenger.

The chief executives of the three trusts referenced how Hempsons had contributed to the success of the project, saying:

“The commitment and engagement you demonstrated was a fantastic example of how we can work together in partnership to achieve a positive outcome for all our organisations.”

Brendan Brown, chief executive, Calderdale and Huddersfield NHS Foundation Trust
Phil Wood, chief executive, Leeds Teaching Hospitals NHS Trust
Len Richards, chief executive, Mid Yorkshire Teaching NHS Trust

Sharing best practice and lesson learned

Other trusts around the country have been approaching the team, as well as the team approaching other trusts running processes, to offer support and guidance, including lessons learned, to enable other trusts to successfully make contract awards.

A robust approach

Hempsons was able to utilise its extensive experience of conducting defensible procurement processes to pre-empt the key risk in the procurement process. Principal risks included the design of the evaluation criteria and the evaluation process itself.

How the partnership has delivered value for money As we have outlined above, this project has delivered excellent value for money through:

• Hempsons’ support and advice, as a core member of the project team, on the procurement process over the three year programme to successfully deliver a single managed service contract across the three trusts
• significant cost savings – the contract will deliver £30m in savings and support the move to a network pathology delivery model for the whole pathology service, delivering a further £30m+ of savings
• saving on the potential costs of any re-run of the process following challenge and delay to realising savings
• helping other NHS organisations benefit – lessons learned have already been utilised in other projects that the trusts are undertaking. This will hopefully reduce the potential for legal challenges to future processes and the time taken for contracts to complete, thereby reducing costs

“The benefits of this work are going to reach much further than just financial savings. This will make a difference through: faster results for patients; a better place to work for our staff; the environment by reducing patient journeys; shared reporting; and lowering the risk of patient harm by reducing the number of samples we need to take. The contract itself will deliver benefits in the way it’s been constructed, giving the organisations the ability to switch, invest and access the testing platforms of the future like genomics.”

Ben Roberts, associate director of finance
West Yorkshire Association of Acute Trusts (WYAAT)

We are proud to announce that we won the ‘Best Legal Services Partnership with the NHS’ award at the HSJ Partnership Awards, along with our partners at Leeds Teaching Hospitals NHS Trust, Mid Yorkshire Teaching NHS Trust, and Calderdale & Huddersfield NHS Foundation Trust, for this project.

On 19 October 2023, The Health Care Services (Provider Selection Regime) Regulations 2023 (the “PSR Regulations”) were laid before Parliament. Subject to parliamentary process, the intention is that the PSR Regulations will come into force on 1 January 2024.

Our involvement to date

Working alongside the NHS England policy team and NHS England legal team, Hempsons has been advising on the development of the PSR over the past two years. This work has included advising on the PSR Regulations themselves (inputting into the drafting of the Regulations, the drafting of which was led by DHSC), and the development of the statutory guidance and the toolkits developed by NHS England to support the introduction of the PSR. Hempsons is therefore well placed to advise on the implications of this new regime for securing the provision of health care services.

What does the PSR mean in practice?

In short, a more flexible decision-making process when procuring relevant health care services. The consequence of that flexibility: the need for greater transparency.
Once the PSR Regulations come into force, the procurement of health care services, when procured by relevant authorities under the PSR, will be removed from the scope of the Public Contracts Regulations 2015 (the PCR). The National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 (the PPCCR) will be replaced.

When and to whom will the PSR apply?

The PSR will apply when relevant authorities (NHS England, Integrated Care Boards, NHS trusts and foundation trusts, as well as local authorities and combined authorities) procure relevant health care services. “Health care” means all forms of health care provided for individuals, whether relating to physical or mental health, which fall within one or more of the CPV codes specified in schedule 1 of the Regulations).

There will be no minimum financial threshold for the application of the PSR Regulations.

Goods and services that are not health care services in scope of the PSR must be arranged under the rules governing wider public procurement unless they fall within the definition of a mixed procurement set out in the PSR Regulations.

Procurement principles

All decision making must take account of the procurement principles. When procuring relevant health care services, a relevant authority must act with a view to:

• securing the needs of the people who use the services
• improving the quality of the services
• improving efficiency in the provision of the services

Relevant authorities must also act transparently, fairly, and proportionately when procuring health care services.

New decision making processes

There will be a number of potential decision-making processes available.

• Direct Award processes
  • Direct Award Process A
  • Direct Award Process B
  • Direct Award Process C
• Most Suitable Provider Process
• Competitive Process

Some processes must be complied with in certain circumstances. Others are for a relevant authority to determine based on the facts of a particular requirement. Four of the five do not require a competitive process, however.

Scrutiny

For Direct Award Process C, Most Suitable Provider and Competitive Processes, a standstill period will need to be run before a contract can be entered into. If aggrieved providers challenge during this standstill period, the relevant authority will (if certain requirements are met) need to review their original decision. If a provider remains unhappy following that review, the provider can challenge to a PSR review panel. The relevant authority will then need to make a new decision, taking account the review panel’s advice.

The ultimate remedy for an aggrieved provider is to challenge via judicial review, which will also be available for Direct Award Process A and Direct Award Process B.

Transparency

In line with other procurement law developments, there is a need for greater transparency by relevant authorities. This comes as a consequence of the greater flexibility the PSR affords relevant authorities.

Modifications

As with the PCR, there are limits on the extent to which contracts can be modified during their term. The requirements are set out in Regulation 13.

Other procedural requirements are set out in the Regulations.

Guidance and toolkits

Sitting alongside the Regulations is the Statutory Guidance published by NHS England. Relevant authorities must have regard to the guidance.

To support relevant authorities, NHS England has also published a number of toolkits, including flowcharts, process maps, FAQs, and a guide to completing the various notices that will be required.

What the PSR means for you?

The PSR will be a brave new world for relevant authorities procuring relevant health care services. How this new regime operates in practice will need to be seen, but there should be more flexibility, albeit with greater transparency.

Hempsons is well placed to advise on the opportunities the PSR affords having advised on its development for the past two years.

At the time of writing (November 2023), CQC’s long awaited Single Assessment Framework (SAF) is slowly being shared. Its roll out has been somewhat delayed, it is understood, due to IT technicalities and resourcing, but we seem to have a clear(ish) timetable for providers to have access to the new portal in Autumn 2023, with social care providers in the South “going live” first on 21 November, with the rest of the country following in the new year.

Keep watching CQC’s website and sign up for their updates to ensure you have the most up to date picture.

Business as usual?

Whilst the SAF is badged as a full-scale change in the inspection process, that change sits with CQC, not with providers.

It is CQC that is  changing the way it  inspects, the questions they ask, how they rate and how they report.

For providers, it is business as usual.

The regulatory framework that underpins the delivery of care has not changed and is not changing. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Fundamental Standards of Care, enshrined in Part Two of those Regulations,  is here to stay.

All of the good work that you and your teams have done so far and continue to do, and all the excellent policies and procedures you have in place can stay.

Keep ensuring your care planning is person centred.

Keep ensuring your staff are up-to-date with training.

Keep ensuring your medicines management is carefully delivered, monitored and audited.

Inspection insights

The SAF is CQC’s new inspection regime. The CQC says it  will regulate in a smarter way, adapting and responding to risk, uncertainty, and demand. We have seen clear signs of that already. During and post COVID-19, CQC inspections were led by risk. This meant that there were direct complaints to its helpdesk, whistleblowing allegations and concerns raised by commissioners, which led to poorly performing services, or those perceived as being poorly performing, being at the front of the queue when it came to re-inspections. Long gone is the inspection programme where a good service would not expect to see CQC again for two years.

The four ratings of: Inadequate, Requires Improvement, Good and Outstanding, remain.

The five key questions or domains of safe, effective, caring, responsive and well-led will also remain.

Understanding requirements

What will change is the introduction of quality statements, which replace the previous 300 or so key lines of enquiry.

These quality statements are phrased as questions and providers will be judged against the available evidence to show how those questions are met. Each statement is scored from 1 – 4 based on the quality of the evidence submitted to CQC.

At the end of the process, providers will be able to see very clearly exactly where their service is doing well, and where there are gaps that require extra attention. Those providers looking to increase their rating up to the next level will also be able to see how far away from achieving that rating they are and where they need to focus their efforts.

CQC has very helpfully shared the different types of evidence that might be required to answer each of the quality statements and this is where the SAF differs for different sector groups.

There are eight  different sector groups:

Each sector group will have slightly different evidence requirements but all the details are available on CQC’s website for a service to map across each quality statement and what evidence they need to put forward.

The evidence categories are all very familiar too and are all based on the work CQC currently carry out when they inspect a service.

There are six evidence categories:

Processes is one of the more notable evidence categories for Providers to be aware of – this is any series of steps, arrangements or activities which are carried out to enable a Provider or organisation to deliver its objectives. CQC assessments will focus on how effective policies and procedures are. To do this, CQC will look at information and data sources that measure the outcome from processes. For example, CQC may consider processes that measure and respond to information from audits, look at learning from incidents or notifications and will review people’s care and clinical records.

Outcomes is more focused on the NHS, rather than a social care-based evidence category. This will look at outcomes measured in the context of the service and the specifics of the measure. For example, mortality rates, emergency admissions and re-admission rates to hospital, infection control data and vaccination and prescribing data. This information will be sourced from patient level data sets, national clinical audits and initiatives such as the patient reported outcome measures (PROMs) programme.

Using learning culture as an example:

It might be most helpful for providers to look at the quality statements in context.

They are expressed as “I” and “we” statements.

The “we” statements show what is needed to deliver high quality person centred care and the “I” statements reflect what people have said matters to them.

The “we” statement reads:

“We have a proactive and positive culture of safety based on openness and honesty, in which concerns about safety are listened to, safety events are investigated and reported thoroughly and lessons are learned to continually identify and embed good practices.”

And the “I” statements are:

“I feel safe and am supported to understand and manage any risks.”

“I can get information and advice about my health, care and support and how I can be as well as possible – physically, mentally and emotionally.”

The evidence categories CQC will use to judge and score your responses to those statements are:

Feedback from partners:

• commissioners and other system partners – how well do you report safeguarding referrals and make notifications to CQC?
• health and care professionals working with the service

Processes:

• Duty of Candour records
• evidence of learning and improvement
• incident, near misses and events records

The evidence submitted is then scored out of 1 – 4

4 = Exceptional standard.

3 = Good standard.

2 = Show shortfalls.

1 =  Significant shortfalls.

For example, the service scored a 2 in learning culture, this would then feed into the overall scoring in the safe domain, for which an example service might look like this:

This particular service has scored some twos and some threes and when that is converted into a percentage, they have scored 65.6% which puts them squarely into the good rating.

The service can see where they need to do better for example, infection control. This enables providers to know where to concentrate their efforts to improve. The theory is that the service will be able to submit evidence to CQC of their improvements and if CQC is satisfied with it, the scoring would be adjusted, which for some services might see an uplift from Requires Improvement to Good.

The percentage scores are clearly laid out:

• 25 to 38% = Inadequate
• 39 to 62% = Requires Improvement (RI)
• 63 to 87% = Good
• Over 87% = Outstanding

So as a service you can see whether you are “just” missing out on a rating, or if you’ve “just” made it into the next category.

Do be mindful that there are some rating limiters:

• If a key question score is within good range but with a score of 1 for one or more statements, the rating is limited to Requires Improvement
• If a key question score is within outstanding range but with a score of 1 or 2 for one or more quality statements, the rating is limited to Good

Transparency is key

I am very hopeful that this new way of inspecting, evidence gathering and reporting will provide a far more consistent and transparent approach to regulation. Evidence is key though, even more than it ever has been. Providers will be uploading A LOT of information onto the provider portal before a visit and CQC’s analysis of a service will only be as good as the evidence submitted. It is worth engaging with the different questions, and what evidence CQC is looking for, to ensure that what you provide is specific and relevant.  It is no good telling CQC everything you know about a subject – you have to actually answer the exam question.

Hempsons have worked with providers for many years supporting them through the CQC process. Our Fundamental Standards of Care training packages for registered managers and front-line staff can help you navigate the regulations; improve the lives of the people you support and tick CQC boxes too. Do get in touch for more information on how we can support.

Social media is increasingly a core part of everyday life and the lines between personal and professional use are often blurred. We regularly receive our news, opinion, and even political decisions or announcements via social media posts.

Limitation to additional hours

Increasingly, the healthcare sector is sharing in that spotlight, with the junior doctor and nursing strikes taking centre stage. The NHS, its challenges, strengths and future prospects are increasingly politicised subjects and many of those working within the field, whether within the NHS or private practice, will have strong opinions.

The GMC notes that benefits of social media use can include “engaging the wider public in discussions about health policy, widening your professional network and facilitating patients’ access to information about health and the services available to them”. However, there is a dark side to social media, and the wrong types of posts can have far reaching implications both for the poster and their organisation.

Where is the line on appropriate social media use, and how can you ensure that you are protected from any potential adverse repercussions?

The law

When considering law in relation to an employment relationship, the first place to look is the employment contract and your own policies.

Many employers will also have in place policies, for example, a social media policy, either standalone or incorporated into your disciplinary/conduct policies, which should specify your expectations for employee use of social media, including the possibility of disciplinary action for conduct online that breaches policies or codes of conduct.

Another way that parameters are set in an employment law context is the rulings of courts and tribunals, which are vital for establishing the parameters of the law and how it relates to real world situations.

A key consideration is whether there is sufficient connection between the employee, the social media post and the employer. It might not be easy to ascertain the connection and cases deal with these situations on a case by case basis. One of the leading cases on social media misuse is Game Retail Ltd v Laws [2014] in which the Employment Appeal Tribunal considered whether a Twitter account run by Mr Laws was sufficiently associated with his employer. They concluded that following and interacting with Games Retail stores, in this case, was enough to suggest an association.

Disciplinary action could also arise from an employee’s general behaviour on social media (whether there is a connection between employee/employer or not). For example, posts that breach confidentiality, or display behaviour amounting to discrimination or harassment. What is set out in an employer’s policy will be of importance.

It is also important to remember that policies should be drafted in the context of the human rights to a private life and to freedom of speech. The potential control or oversight into an employee’s social media presence/use should be balanced alongside these (conditional) rights.

Professional vs personal opinions: blurred lines

Sometimes there can be blurred lines between personal and professional opinions (eg posting views about COVID-19).

In an employment relationship, the focus often shifts to how an employee’s publicly shared views might affect the employer. If an employee posts content on a public forum, or in some cases, even on a private social media or WhatsApp account, that could tarnish the employer’s reputation if shared elsewhere, the usual disciplinary processes are likely to kick in. Should the remarks harm the employer’s standing or aim to, or be likely to, sever the trust and confidence between the employer and employee, disciplinary actions up to dismissal could be a justified response. As indicated above, the question always being tested in this area is the extent to which employers are, or should be, required to respect and take account of employees’ freedom of expression and right to privacy when those opinions could be substantially offensive to certain groups of people.

There can be a fine line between sharing controversial views and breaching legal protections against discrimination. In a recent high-profile case (Forstater v CGD Europe), the tribunal erred on the side of freedom of expression. It held that although the employee had posted ‘gender critical’ views on social media which were intentionally provocative and mocking and which people found offensive, a decision to dismiss her based on those posts was discriminatory and that her beliefs were protected.

Yet where those views cross over into the workplace, causing harm or affecting an employer’s business or the services it provides, the tribunals are less protective of the employee. In Mackereth v DWP, the claimant was a doctor who refused to refer to transgender service users by their chosen pronouns. His dismissal by his employer was found to be fair.

It should be clear in employer policies and guidance that any offensive, defamatory or discriminatory comments on any social network could result in disciplinary action that may lead to dismissal.

In Page v NHS Trust Development Authority a non-executive director’s post was not renewed after he spoke to the press expressing disapproval for same sex couple adoption. The reason for his sanction was found to be because he had disobeyed instructions not to speak to the media without first informing the trust. Page’s appeal around his ECHR right to freedom of religion was dismissed. This case reflects the importance of understanding employer rules surrounding expressing an opinion outside of your organisation.

Case law also suggests that in certain circumstances employers can take into account private messages on apps such as WhatsApp. In BC v Chief Constable of the Police Service of Scotland WhatsApp messages (including those of a racist, sexist and homophobic nature and crime scene photos in breach of police procedures) found on police officers’ phones were used in misconduct proceedings for officers on the group chat. It was held that in doing so there was no breach of the officer’s right to privacy. The fact that the polices officers were subject to professional standards was of relevance. Although this case was in Scotland and concerning police officers, it is an important one to bear in mind as those working in the NHS can also be subject to professional standards, both on and off duty. The case should also serve as a reminder for employees to be wary about what they post, on whatever platform, even in a private capacity.

Excessive monitoring

The excessive monitoring of employees can cause significant issues for employers under data protection laws, and organisations must be able to show that data is processed fairly, there is a legitimate interest and any monitoring is proportionate and necessary in the circumstances.

Whistleblowing

Aside from airing general grievances, it may even be tempting for some employees to use social media to “blow the whistle” on practices they identify and disagree with.

Particularly in a healthcare setting, patient safety comes first and foremost, and employees may feel there are strong public interest arguments for whistleblowing via social media rather than directly with their employer.

However, while some protection is afforded to a whistle-blower who uses social media to raise their concerns, it is far less protective and far more difficult to satisfy the requirements than if concerns are raised through their employer or a regulator for example.

The ‘social media whistle-blower’ would also be required to persuade a tribunal that their disclosure via social media was ‘reasonable’, which could be very difficult if they have bypassed their employer’s policies and posted straight to social media.

Things to look out for if you are an employer:

1. as an employer, having a social media policy will be the framework through which you can manage employees and set expectations. There could also be relevant provisions in employee employment contracts
2. review your policies to ensure they contain appropriate provisions relating to social media use and disciplinary procedures if the use is breached
3. consider arranging training on the best uses of social media
4. review your whistleblowing procedures to avoid any team members claiming they do not know how to access it or that it is ineffectual

In May 2021, the then Prime Minister, Boris Johnson, announced that the Government would establish an independent statutory Public Inquiry into the COVID-19 pandemic. The Chair of the Inquiry, Baroness Hallett, was appointed in December 2021. Following a public consultation, the final terms of reference were published on 28 June 2022.

What will the Inquiry cover?

The Inquiry will consider and report on:

• preparedness and resilience for dealing with the pandemic
• the public health response of the UK as a whole
• the response of the health and care sector across the UK
• the economic response and its impact, including Governmental interventions

Public inquiries come in various different forms, but the fact that the COVID-19 Inquiry is a Statutory Inquiry is important because it means that the Inquiry has powers to compel the production of evidence, whether that be witness statements, oral evidence, or the provision of certain documents or classes of documents. The Chair has available to her a number of powers which may result in a fine or imprisonment where requests for disclosure are not complied with, or where an individual or organisation in any way seeks to conceal, alter or destroy evidence.

Modular approach to investigations and timetable

On 21 July, the Chair, Baroness Hallett, gave an opening statement to launch the Inquiry officially and described a modular and sequential approach to investigating the key lines of enquiry set out in the terms of reference.

Module 1 is focused on resilience and preparedness, and the public hearings in relation to Module 1 have already taken place with oral evidence having been taken from a number of high profile witnesses, including leading political figures and healthcare leaders.

Module 2 will explore core UK decision making and political governance in all of the four nations and the public hearings are underway.

Module 3 will explore the impact of the COVID-19 pandemic on healthcare, as discussed below.

Future modules will include vaccines and therapeutics (Module 4), government procurement (Module 5) and the care sector (Module 6). Announcements will be made in due course in relation to test and trace, business and financial responses, health inequalities, education/children/young people, and other public services.

What will Module 3 involve?

Module 3 will examine the impact of Government decision making on healthcare systems across the UK, and the Inquiry has confirmed that it will look at the governmental and societal response to COVID-19 as well as dissecting the impact that the pandemic had on:

1. healthcare systems
2. patients
3. health care workers

This will include looking at healthcare governance, primary care, NHS backlogs, the effects on healthcare provision by vaccination programmes, long COVID and support. The Inquiry is currently collating evidence, both witness evidence and documentation. The provisional scope to Module 3 will continue to evolve as evidence is gathered. The public hearings are scheduled to commence in autumn 2024, and the Inquiry plans to conclude deliberations in 2026, with interim reports expected to be published as modules conclude.

To assist the Inquiry in identifying the issues upon which the Inquiry needs to take evidence, whether in written format or orally during the public hearings stage, at the end of 2022 the Inquiry sent questionnaires to health and care related organisations. The questionnaire responses received are not intended to form part of formal evidence, nor will they be disclosed during the course of the Inquiry. Those responses are however intended to identity and inform which organisations to send Rule 9 Requests to, including the issues to be addressed in statements or through disclosure of documents. A number of organisations will now have received a Rule 9 Request, but this is an ongoing process and it is expected that further NHS trusts and provider organisations will still receive requests.

Rule 9 Requests for Evidence

A Rule 9 request is a reference to Rule 9 of the Inquiry Rules 2006. Rule 9 entitles the Inquiry to send a written request for evidence, with details of what it would like the recipient to cover. Requests made under Rule 9 are the first stage of information gathering. A Rule 9 request may seek disclosure of documentation and a written witness statement. Rule 9 requests can also be used to request further evidence or request the attendance of a witness to give oral evidence during the public hearings.

Rule 9 requests are considered a less formal request by an inquiry for evidence. This is because a request under Rule 9 does not give the Inquiry the power to compel the provision of documents or statements.

The power to compel the provision of documents is set out in Section 21 of the Inquiries Act 2005. Should a Rule 9 request not be complied with, an Inquiry will decide whether to issue a formal notice under Section 21. There are many compelling reasons to comply with a Rule 9 request, not least because Section 35 of the Inquiries Act 2005 states that it is a criminal offence to fail to comply with a Section 21 Notice, or to do things intended to have the effect of distorting or altering the evidence, intentionally suppressing evidence, or concealing a document. Whilst there are of certain exemptions to providing information, even where a Section 21 notice has been issued, Section 35 enables individuals and organisations to be fined for failure to comply with a Section 21 Notice, and in the most serious of cases, individuals can face imprisonment. It follows that failure to comply with a Rule 9 request puts individuals and organisations at risk of receiving a Section 21 Notice and in a situation whereby serious and significant implications may follow.

Rule 9 requests are sent because the Inquiry believes the recipient has evidence that will be of assistance in establishing what happened, why events happened and to learning lessons for the future. They provide the recipient of the request with the opportunity to share their experiences and potentially influence positive changes. There are also professional and regulatory duties for many organisations and individuals working across the health and care sectors to assist Public Inquiries and give evidence.

Rule 9 responses will be formal evidence which can be referenced in the Inquiry hearings and reports. They will be analysed and used to inform and shape further enquiries, and what oral evidence that Inquiry will hear when the hearing of Module 3 evidence begins in 2024. These requests should not be underestimated. They can be extensive and often have to be complied with in a relatively short timeframe.

With extensive experience in supporting the NHS and social care sectors in high profile Public Inquiries, including supporting trusts to prepare for the COVID-19 Inquiry and preparation of Rule 9 responses, Hempsons is here to help.

Find out more about how we can help you prepare for the Inquiry in our COVID-19 Inquiry brochure.

PSIRF is the new framework for investigating patient safety incidents. It is “a new approach to responding to patient safety incidents” (NHSE).

Are you ready?

Having replaced the Serious Incident Framework (2015), those organisations delivering care under the NHS standard contract should now be ready to implement the new framework. This is a task that is also likely to have required an overhaul of your organisation’s approach to investigating patient safety incidents (PSIs) in a way which represents a cultural shift.

What is PSIRF?

In developing and maintaining a system for responding to patient safety incidents, PSIRF has four key aims which we will look at briefly later in this article:

1. compassionate engagement and involvement of those affected by PSIs
2. application of a range of system-based approaches to learning from PSIs
3. considered and proportionate responses to PSIs
4. supported oversight focused on strengthening response system functioning and improvement

PSIRF is a fundamental shift away from prescribed rules of investigation to a flexible system-based approach which relies on local data to support providers in establishing their own improvement priorities. These improvement priorities will inform the organisation’s response to PSIs, including determining those PSIs which will be subject to a full investigation.

The distinction between a “patient safety incident” and a “serious incident” contained in the Serious Incident Framework 2015 has been removed by PSIRF, meaning that the prescriptive approach to incidents and thresholds of harm as the determinative factors for investigations no longer apply.

Rather than prescribe which PSIs organisations are required to investigate, organisations are required to develop their own policy for responding to PSIs and personalised Patient Safety Incident Response Plans. PSIRF therefore represents a flexible approach to investigating PSIs. It enables providers to focus time and resource on investigating and implementing improvements relevant to its own context and population.

The Healthcare Safety Investigation Branch (HSIB) has called PSIRF “a fundamental shift in how the NHS responds to patient safety incidents” and said it “marks a seminal moment”.

What are the objectives of PSIRF?

It is the objective of PSIRF to improve the qualitative approach to investigations and learning. The flexible approach seeks to balance investigative resource with implementing and embedding meaningful improvement.

To achieve the PSIRF objectives, providers will need to properly understand their patient safety risk profile to inform the approach taken to investigations and the development of a Patient Safety Incident Response Policy and Plan.

Who does PSIRF apply to?

PSIRF currently applies to those working under the NHS standard contract; acute, ambulance, mental health and community healthcare providers. Maternity and specialist services are included.

PSIRF also applies to those private providers carrying out NHS functions. These providers will be required to adopt PSIRF, albeit not to undertake the full planning analysis required to implement Patient Safety Incident Response Plans.

Foundations to achieving effective learning and improvement using PSIRF

PSIRF puts passionate engagement at its core. It recognises that effective learning and improvement means working with all affected by patient safety incidents. This includes patients and families and staff through compassionate engagement.

Guidance has been compiled by NHSE in partnership with HSIB and Learn Together, which includes a step-by-step guide to engagement at all stages, from planning the first contact to closure of the investigation.

PSIRF identifies the need for a system-based approach to be taken to investigations, recognising that there are often multiple contributory factors including human factors, organisational culture, systems and environmental factors, rather than a simplistic and linear approach which identifies a single root cause.

PSIRF acknowledges that the resource available to investigate PSIs and implement improvements is not unlimited. The focus is therefore one of proportionality of response, identifying the key improvement priorities, and therefore, the PSIs to be investigated to maximise the greatest improvement outcomes. This targeted and focused approach, informed by the organisations personalised risk profile and Patient Safety Incident Response Plan, gives organisations personal responsibility for driving their own improvement.
Provided that ICBs and regulators are satisfied that improvement work is being appropriately managed to address known contributory factors through Patient Safety Incident Response Plans and appropriate governance structures, organisations will not need to investigate every patient safety incident fully. There will, however, need to be alternative processes to engage with those affected by those PSIs not subject to a full investigation, and the duty of candour still applies. For those PSIs not subject to full investigation, providers should have plans for reviewing other incidents; consideration could be given to Multi-disciplinary Team (MDT) discussion or targeted feedback.

Part of the cultural change of PSIRF is a move away from holding organisations to account for the quality of their investigations and reports and empowering them through engagement and promoting a culture of improvement through internal accountability with oversight from ICBs and regulators.

Where should you be now?

To implement PSIRF, organisations need to development of two key documents:

1. a Patient Safety Incident Response Policy
2. a Patient Safety Incident Response Plan

Both documents are organisation specific, and the Plan must of course be kept under review.

To develop and maintain effective Patient Safety Incident Response Policy and Plans, organisations must understand their patient safety and risk profile. To achieve this, organisations need to collate and evaluate all available data. For many organisations, there may need to be significant procedural and cultural changes to capture all data. Known silos across claims, complaints, inquests, patient safety and governance teams may need to be broken down and new processes and procedures put in place.

If you are still working towards implementation, there is a template Patient Safety Incident Response Policy and a template Patient Safety Incident Response Plan on NHSE’s website. To work with these templates, particularly the Patient Safety Incident Response Plan template, organisations will first need to undertake an analysis of all of their data to inform their improvement objectives. This data will need to be kept up to date and under review so that plans remain focused and relevant to the improvement needs and identified objectives of the organisation.

Involvement of patient safety partners and addressing inequalities

The NHS Patient Safety Strategy promotes the involvement of patients, families and carers as patient safety partners. PSIRF advocates patient safety partners as an effective means of oversight in developing local policies and plans. There is more information in the Framework document for involving patients in patient safety matters.

Through the flexibility of PSRIF and the creation of local plans, along with the involvement of patient safety partners, addressing health inequalities that affect both patients and the local community should be easier.

Inequalities should be at the forefront of considerations when developing Patient Safety Incident Response Policies and Plans.

How can Hempsons help?

Our investigation and risk specialists work closely with providers and partners across the NHS on developing processes for harvesting and recording high quality data from incidents and disputes, such that we can subject the data to analysis, triangulation and thematic review. Our diagnostic reviews evaluate work processes, procedures and cultures which inform and support how learning from incidents is captured and used to support learning and improved patient safety outcomes.

Find out more about how we can help you in our Clinical Risks and Investigations brochure.

The corporate commercial team at Hempsons includes contract specialists (what you are getting), procurement specialists (how you get a contract as a public body) and commercial litigators (what happens if the contract does not entirely go to plan). We help guide our clients on contracting projects of all sizes and complexities.

Hempsons’ corporate commercial team’s contractual work over the last 12 months has involved some notable large scale projects and cases covering the full spectrum of contract negotiation, procurement and termination. We have advised on:

• successfully defending a decision to exclude a late bidder from a procurement
• termination of substantial contracting arrangements
• dissuading numerous potential challenges to procurement processes (asserting unfairness in process or a lack of transparency, or other technical challenges to process) by unsuccessful bidders through pre-action correspondence
• collaboration arrangements across providers for the delivery of services
• contractual reviews of substantial long term contracts to ensure the terms being entered into protect our client’s interests

Contracts are often complex and can be difficult to understand. This is not a deliberate intention of the lawyers when drafting them, we want them to be understood and clear, especially the provisions which protect our client’s interests. Ambiguous contractual drafting is often the cause of disputes, and drafting which is not understood (even if clear) can have unexpected results for clients.

In our experience a number of trends and issues reoccur in our instructions which we have developed into a two hour training session for public sector contracts managers and procurement officers who develop, scrutinise and approve the contracts your organisations enter into. The session covers some back-to-basics refresher training together with some more advanced training on drafting individual clauses, such as key performance indicators. The session finishes off covering the repeat offender clauses which rolling contracts and extension, limitation of liability and indemnity provisions and variation mechanisms.

If your organisation would benefit from refresher training on contractual matters we will be pleased to discuss this with you.