HEALTHCARE: An Introduction

The landscape for health and social care regulation is once again in transition, with the outputs of 2017/18 consultations by the CQC converting into changes to inspection regimes and increasing enforcement activity across the sector for 2018/19. The impact of the annual well-led review for NHS providers is already being felt, with leadership teams understandably trying to grapple with translating what they do day to day into the language and expectations set out in the new Key Lines of Enquiry for well led. Is the tail now wagging the dog?

Further regulatory changes for the independent sector are also due, including registration at Top Co level in group structures; where accountability for quality and safety, and decisions which direct currently registered provider entities, is to be tracked through registration. On the enforcement side, this will have a very significant impact for groups, and 2019 will no doubt see the detail and risks emerge.

Mental health services are experiencing an explosion in need, with an ageing population and an increasing acuity of patients putting further pressure on services, which are suffering significant shortages of qualified staff. The increasing complexity of managing patients with physical and mental health needs has resulted in significant progress in joint working between the NHS, independent and third sector providers to deliver integrated care pathways, but this brings new patient safety and governance challenges.

The balance of inpatient and community provision continues to pose challenges in the aftermath of Winterbourne View and the subsequent Transforming Care agenda. While the merits of community services close to home are widely accepted, the clinical and legal challenges of managing patients in such settings can be considerable. The pending Liberty Protection Safeguards and review of the Mental Health Act may resolve some of these issues, but legislation alone can only be part of the solution.

In the MedMal domain, the principles underlying the non-delegable duty, now imposed on independent sector hospitals following the judgment in Woodlands, continues to have wide-ranging implications for hospitals and their medical malpractice insurers. Even where the hospital has fulfilled its duty and the alleged negligence rests squarely at the feet of the treating consultant as an independent contractor, hospitals find themselves caught up in litigation which they would otherwise have avoided and with unnecessary costs incurred. This judgment was undoubtedly driven by policy rather than sound principles in law, and we once again see lines blurred where before there was a degree of certainty. The recent decision in the case involving Barclays Bank and the sexual assault of staff by a clinician acting as an independent contractor acts to affirm the position, and hospitals in the independent sector need to review their admitting/practising privileges policies, and the insurance cover they hold to manage the impact in 2018/19.

The introduction of state-backed GP indemnity is seen as part of the solution to the shortage of GPs, as many choose to retire early, with increasing MDO costs thought to be a significant influencing factor. This will present challenges to those who will administer the new scheme but also cause the traditional MDOs to review their own business models, given that GPs have always formed a significant proportion of their membership.

As the NHS moves towards integrated care systems for the purposes of planning health and social care services, there are likely to be a number of public law challenges to reconfigurations, as areas seek to implement their change programmes. Some of these challenges may focus on the fact that both NHS providers and NHS commissioners are involved in the integrated care system, but other providers are excluded. We are also likely to see more large-scale community services procurements over the course of the year, with the view to helping integrate community and primary care services to advance better patient outcomes. An increasing number of NHS provider organisations are seeking to consolidate, either formally by merger, or more informally through shared management arrangements.

We have seen an increase in the adoption of medical technologies being deployed in various clinical settings, with a particular focus on the deployment of virtual appointments and AI in the primary care sector. Whilst disruptive technology has entered this market, commissioners and regulators are responding, and we are likely to see a more uniform approach to NHS-funded virtual appointments and AI symptom checkers. By way of example, the NHS has announced a new “NHS app” to be launched later in 2019, which is intended to be the digital front door to many NHS services.

Turning to the landscape in an estate-rich sector, ripples from the Naylor Review continue to be felt, with the establishment of the NHS Board, a reconfiguration of responsibilities for strategic estates advice and central scrutiny of NHS estates' efficiency and utilisation. The lack of a property mandate for commissioning bodies is still a concern, leading to more or less creative attempts to secure control over the premises for which they are paying. We are seeing the emergence of a number of strains of joint venture with the private sector, ranging from securing funding and much-needed expertise in exchange for surplus land, to more balanced joint acquisitions and developments securing private sector pre-funding to get schemes off the ground. There is central debate around outsourcing to wholly-owned subsidiaries, principally based on the motives behind such schemes, but they continue to be effective where they are set up with demonstrable commercial efficiency goals driving them.

Nothing within the health sector will hold together without a stable and skilled workforce, whether at the operational 'coal face' or at strategic leadership level. The anticipated impact of Brexit, combined with the usual pressures around recruitment and retention, has seen scarcity of skilled staff coming to the fore. This has been implicitly recognised by the Government in contract and pay negotiations, but the reality of workforce planning lagging significantly behind the demands of the system mean inadequate staffing levels will continue to be a major driver behind underperformance of provider bodies in the sector. When this is combined with the demands of the integration and safety agendas, we consider the strain on the workforce within the sector will remain at a critical level throughout 2018/19.

One release for these tensions is likely to be significantly increased levels of litigation following the abolition of Employment Tribunal fees. It will therefore be more important than ever for employers in the sector to ensure they have proper frameworks in place for managing staff and resolving issues early.

As most of the UK prepares itself for what a post-Brexit era will bring, the health and social care sector continues to provide opportunity and risk, irrespective of major constitutional and political change. The M&A market remains active, innovation remains high, and the models within which both public and private can interface remain ever-changing. The uncertainty of the future does create questions for the present, with workforce and inward investment decisions remaining further up the risk list for providers – watch this space.