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
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