5 Statutory instruments reported - Statutory Instruments Joint Committee Contents


Appendix 3


S.I. 2011/1551: memorandum from the Department of Health


Care Quality Commission (Additional Functions) Regulations 2011 (S.I. 2011/1551)


1.  In its letter to the Department of 13 July 2011 the Joint Committee requested a memorandum on the following points:

(a)  what steps are being taken to provide access to the Directions referred to in paragraph 1(2) by those without the ability to get access to them on the Department's website;

(b)  given that the duty to give notice of review rights specified in each of the individual directions referred to in regulations 2 to 4 appears ambiguous as to the expiry of the application period (for example, where notice is given on 1 February, it is not clear whether the period expires on 31 July or 1 August), why the duty to carry out the review under those regulations terminates on the more restrictive possible interpretation of the expiry date; and

(c)  what the intended effect of action under regulation 4(2) is on direction 34(7) of the Directions in question and how the intended effect is clearly achieved.

2.  The Department's response to each of the Committee's points is outlined below.

3.  Point (a)—Any person contacting the Department direct for a copy of the Directions, in the absence of being able to access them on the website, would be provided with a copy. It would not normally be the Department's practice to ask for a charge for such a copy although that position might be reviewed if a large number of requests were received. In addition, the Department has asked the High Security Hospitals covered by the Directions to inform patients of the content of the new Directions. The patients are already aware that new Directions are proposed and were able to discuss the proposed contents at patient forums during the drafting period. The Department would expect that the patient forums would again be used as part of the process of making the patients aware of the contents of the final Directions. The Department would also expect the hospitals to facilitate access to copies of the Directions were any patient to request that (provided that, bearing in mind any patient safety considerations, it was appropriate in the individual circumstances).

Point (b) - It is the intention of the Regulations to make clear when exactly the time period of 6 months for appeal began to run, the options seeming to be either the start of the day the patient was told of the decision and the right to appeal or the start of the day after they were told. The Department considered both options. In addition it considered the drafting guidance of the Office of Parliamentary Counsel dated 2 October 2010 and available through the LION website and the Cabinet Office website. Amongst the points made in that guidance was the suggestion at paragraph 5 of Part 5 (page 49) (which deals with drafting in respect of periods of time) that it might be inappropriate for the period to start running from the beginning of the day after the day of the decision, "because that would disallow an appeal made on the day of the decision." Although the Department felt that it was unlikely that the CQC would take such a point it felt that if there was a risk of ambiguity, which might leave open the question of whether an appeal made immediately was valid, it was preferable to make clear in the regulations that the period began at the beginning of the day upon which the patient was given the necessary information. The Department was aware that this was arguably the more restrictive interpretation which reduced the period for appeal by 24 hours. However it felt that as the patient would be made aware when told of their rights that the appeal period had started they would still have a reasonable period (6 months) in which to appeal and that consequently the more restrictive interpretation would not cause any real hardship.

Guidance on the Directions, aimed at the high secure psychiatric services providers, has already been published on the DH website.[1]In order to deal with any possible ambiguity in the Directions as to the time that the appeal period starts to run, the Department will in addition write to the hospitals concerned to emphasise to them that, when giving patients notice of their right of appeal to the Care Quality Commission as required by the Directions, the patients must be made aware of the fact that the period of six months starts to run on and includes the day upon which they are given the notice.

The Department will also amend the provisions of the Directions at the first convenient opportunity to ensure that the provisions in directions 22, 27 and 34 clearly reflect the provisions of the Regulations regarding the time the appeal period starts to run.

Point (c)—there is no intended effect of action under regulation 4(2) on direction 34(7).

Direction 34 makes provision in respect of recording and monitoring phone calls. It makes provision as to which categories of calls may not be monitored or recorded. It also makes provision for specific circumstances under which calls may be monitored and recorded. The first of those circumstances is that covered by directions 34(5) and (6). Direction 34 (5) and (6) together relate to the situation where an individual patient may have all their telephone calls monitored and recorded. Direction 34(5) provides that where the patient's clinical team has decided, following a risk assessment, that:

(a) the patient presents a risk, as set out in direction 34(5)(a) or

(b) there is a need to protect the safety or security of others, as set out in direction 34(5)(b)

then it must consider including in the risk management plan for that patient arrangements for an authorised member of staff to monitor and record that patient's calls.

Direction 34(6) provides that where the risk management plan does require the patient's calls to be monitored (i.e. having considered this option as required under direction 34(5) the clinical team has decided that it will include such arrangements in the risk management plan) then those calls may be monitored and recorded and the patient must be told of their right to ask for the decision to be reviewed by the CQC. It is this decision (the decision made in accordance with direction 34(5)) which is subject to review under regulation 4(2).

The provisions of direction 34(5) and 34(6) thus together authorise the trust to monitor and record certain phone calls.

Direction 34(7) deals with the second circumstance where calls may be monitored and recorded. It is a wholly separate situation from that dealt with in directions 34(5) and (6).

Direction 34(7) provides that in addition to any recording made under arrangements included in a risk management plan (i.e. the one other instance under this direction 34 where calls may be recorded), an authorised member of staff may record up to 10% of incoming or outgoing patient calls over a seven day period. This is intended to authorise the trust to record patient phone calls across the hospital on a random basis as part of its general security procedures. Before recording any such calls the patient and person making or receiving the call must be informed that the call is being recorded (see direction 34(4) which imposes this obligation in respect of any recording carried out in accordance with the direction) The Directions do not provide for a right of appeal to the CQC by any patient whose calls are recorded as part of this general security process under direction 34(7). The Regulations do not make any provision therefore for CQC to review such recording decisions.

Department for Health

19 July 2011


1   www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_128208  Back


 
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Prepared 25 October 2011