Healthcare providers will find themselves dealing with some complex and demanding issues in the transformation of organisational and systemic culture. By Tony Yeaman

It was almost inevitable that the Francis report would dominate both the political agenda as well as the headlines in the healthcare sector last year.

This report alone – published on 6 February 2013, weighing in at 1,781 pages and including 290 recommendations – would have offered enough and plenty more in terms of raw material for consideration, deliberation and action for the sector.

But it proved not to be alone, and 2013 went on to deliver reports by Sir Bruce Keogh into 14 trusts with unusually high death rates and Don Berwick on improving patient safety, as well as the review into NHS hospitals’ complaints systems by Welsh Labour MP Ann Clwyd and Professor Tricia Hart.

Then, on 19 November the government published Hard Truths – the journey to putting patients first, its detailed response to all Francis’ recommendations as well as those contained in the reports mentioned, as well as three others.

With the publication of the government’s response, 2014 will – equally inevitably – mean healthcare providers will find themselves dealing with some complex and demanding issues, albeit against a clearly stated aim of improving not just patient care, but the wider patient experience via a transformation in organisational and systemic culture.

Duty of candour

The most obviously eye catching proposal is the new duty of candour. A statutory duty on providers is proposed with a corresponding professional duty on individuals through changes to professional codes. 

The implications of this proposal cannot be underestimated and the list of questions that immediately springs to mind is lengthy.

‘The implications of a new duty of candour cannot be underestimated’

Defining terms will be crucial. What is “harm”? What is the difference between “moderate” and “severe” harm and what makes it so?  What sort of an event might trigger the need to review a clinician’s past cases?

Related to this is the government’s proposal to consult on whether trusts should reimburse the NHS Litigation Authority’s costs if they are found not to have been open about a safety incident.

The implications of the potential removal of a trust’s indemnity cover in such situations are huge.

Employment and recruitment

Linked to the new duty of candour must be the issue of whistleblowing.

As a result of calls for greater protection for whistleblowers the government amended the Public Interest Disclosure Act, the legislation on which whistleblowing protections are built.

The legislation no longer requires an individual to act in good faith as long as the disclosure that they are making is in the public interest.

Arguably the sanction of a 25 per cent reduction in compensation will not deter those seeking to act in bad faith while the protection offered by the legislation is likely to be a significant encouragement.

These issues would in themselves be more than enough to make both trust boards and clinicians wary.

When considered against the wider environment that has been created by Francis and subsequent reports, they are likely to be equally concerned by the increased levels of scrutiny under which they find themselves, whether from the coroner, the health and safety executive, the police or regulators – now newly emboldened and with a corresponding increase in their willingness to prosecute. 

Elsewhere in the employment arena, the new transfer of undertakings regulations will have an impact which, on the upside, will make it easier to move the location of employees post transfer as a change in location will itself become a valid “economic, technical or organisational reason”.

These reasons necessitating changes in the workforce are required if employers are to avoid automatically unfair dismissals – if they need to dismiss and re-engage to effect a change – or to create valid agreements to move location.

‘The shift in NHS Pension Scheme rules will take away the competitive advantage long enjoyed by NHS employers in competitive tender situations’

Prior to the changes, moving staff from one location to another – even if the new employer is based at a different location – has been fraught with difficulty.

The main impact of the regulations, though, is less likely to be welcome to provider bodies in the NHS because the opening up membership of the NHS Pension Scheme by employees who work for third parties outside the NHS.

This fundamental shift in scheme rules will take away the competitive advantage long enjoyed by NHS employers in competitive tender situations.

It is likely to assist the larger private sector providers in successfully tendering for NHS contracts and services in the future. The proposals build upon the Fair Deal policy published in October which applies when staff are compulsorily transferred to the private sector.

The new access proposals apply in different circumstances including voluntary staff moves. For workers it will encourage greater job mobility by allowing movement around the healthcare sector between public and private employers with the benefit of continued membership of the pension scheme.

The proposals apply primarily to employees delivering clinical services. Essential support staff will also be eligible but other employees of the independent provider will not be. The test is that the worker must spend more than 50 per cent of their time on the delivery of clinical services.

For independent providers the changes will help with recruitment and retention (whether they also deliver the greater competition promised by government remains to be seen). The proposals require independent providers who want access to the NHS Pension Scheme to supply a contribution guarantee to protect the government against the employer defaulting on its payment obligations. The guarantee requirement is similar to that applied to private contractors seeking access to the Local Government Pension Scheme, currently the only public sector pension scheme widely open to private contractors. 

The guarantee can be provided by a parent company, a bank or an insurer but it seems likely that smaller contractors with more limited resources and track records will find it difficult to meet the requirements.

Bringing efficiency to property

In the property sphere this year holds the key challenge for estates managers to introduce greater efficiencies to their NHS property portfolios and exploit the assets now in their control to their best advantage.

Objectives for the year will no doubt include improving cost efficiencies. NHS Property Services has already started, announcing over £1.3m savings last year to their utility costs as a result of the relaxation of the procurement process which enables them to standardise their providers across the board.

‘The key challenge for estate managers will be to introduce greater efficiencies to their NHS property portfolios and exploit assets now in their control’

Another crucial requirement will be to ensure existing buildings are fit for a purpose. With a purported £4bn backlog in maintenance costs required to bring NHS Estates up to scratch, estate managers will need to ensure that their properties are used as much as possible, providing multifunctional services and ensuring that all available space is in use.

In addition, there is a clear need to capitalise on the benefits that can derive from partnership working and this has already started as, in December, leaders of NHS Property Services, NHS England and community health partnerships attended a conference which included discussion on how the NHS estate can benefit from such organisations pooling their resources.

One to watch

The one to watch is the new EU public procurement directive. What is known as the “classic” procurement directive has been replaced early this year with the next step in the process being the formal adoption of the new draft directive.

The UK now has 12 months to implement the new major changes including revision of both timescales and thresholds, the introduction of two new procurement procedures and changes to the selection and award criteria.

It will have a significant impact on the processes and procedures of both suppliers and purchasers, and contracting authorities will need to rewrite their procurement strategies in order to ensure compliance.

Tony Yeaman is national head of healthcare and Emlyn Williams is partner in the employment team and leads the commercial healthcare sector at Weightmans law firm.