Commissioning Independent NHS Complaints Advocacy. Health, adult social care and ageing

Transcription

1 Commissioning Independent NHS Complaints Advocacy Health, adult social care and ageing

2 This briefing is one of a number of documents the LGA is producing to support the changes in the NHS and public sector landscape. The documents can be downloaded from: It responds to a request by the Department of Health (DH) for the Local Government Association (LGA) to assist the DH in addressing the urgent need of local authorities for clarification and support in the commissioning of Independent NHS Complaints Advocacy from April This briefing was developed with significant technical input from DH. Within the constraints of the Health and Social Care Act 2012, there is flexibility for local authorities to develop NHS complaints advocacy models to suit local circumstances. This means that there is no one centrallydetermined way of commissioning complaints advocacy. Nevertheless, there are some general principles which will apply to the transition to local authority-commissioned services and these are set out below. There are also principles and ways of working developed by the existing independent complaints advocacy service (ICAS) which local authorities may find helpful in developing their own model. Some local authorities have already designed their service specifications for the new complaints advocacy service. The case study examples in boxes below illustrate some local ideas and solutions which may stimulate thinking about options, rather than being recommendations for general good practice. The information below is intended to help local authorities prepare for transition from ICAS, but it should not be regarded as statutory or non-statutory guidance. Key messages Responsibility for commissioning an NHS complaints advocacy service (formerly Independent Complaints Advocacy Service - ICAS) is transferring from Department of Health (DH) to local authorities. Current contracts with three providers will end at midnight on 31 March Local authorities will have a number of possible options to commission the new service including: 1. to commission this as a stand-alone service from an existing voluntary or community sector organisation or consortium, a social enterprise or private sector organisation, either as an individual local authority, or as a crosslocality collaborative (independent model) 2. to commission this through local Healthwatch, with local Healthwatch acting either as the provider, or as the main contractor, sub-contracting with a third party to provide the service 3. to commission from existing wider advocacy providers to fit with wider provision of advocacy services in a local authority (integrated model). Local Healthwatch can directly provide NHS complaints advocacy if commissioned directly by the local authority. Local Healthwatch cannot be commissioned by a third party (under option 1) to provide NHS complaints advocacy. 2 Commissioning Independent NHS Complaints Advocacy

3 Local areas are encouraged to think about how individually commissioned NHS complaints advocacy might work alongside each other for the benefit of advocacy service users. Local authorities will need to plan their commissioning timetable to allow time for incoming service providers to liaise with outgoing providers and prepare for transition on 1 April Local arrangements in advance of April 2013 should not be allowed to affect current provision either in terms of length, quality or delivery of the contract. Any local arrangements negotiated with current and/ or new providers and funded by local authorities prior to April 2013 should be above and beyond what is currently commissioned (and need a new contract). Advance publicity about the new complaints system and how to contact the provider will help to ensure the new system gets off to a good start. The current system The provision of independent advocacy is a legal requirement for the Secretary of State for Health under section 248(1) of the National Health Service Act The Department of Health (DH) commissions the current Independent Complaints Advocacy Service (ICAS), which is provided by three suppliers, The Carers Federation, POhWER and SEAP. The DH manages the contracts, and the quality of service provided. These contracts will expire on 31 March 2013 and cannot be extended. By this date local authorities should have commissioned a local NHS complaints advocacy service and overseen transition arrangements to allow the new service to take over from 1 April Advocacy in the context of the service is about providing support to people in England who want to make a complaint about the NHS (including a complaint to the Parliamentary and Health Service Ombudsman). Support ranges from provision of self-help information, through to the assignment of dedicated advocates to assist individuals with letter writing, form filling and attendance at meetings. Advocacy support to clients is provided by ICAS to consistent and measurable standards which are defined in the DH contract. In addition there is a requirement to have all advocates qualified to national standards. In April 2009, DH published the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, for the first time aligning social services and NHS complaints and subjecting them to the same complaints process. Under these regulations a complaint can be made to either the commissioner or provider of the NHS service but not to both. The framework for handling complaints consists of a twotier process comprising local resolution and appeal to the Ombudsman if local resolution fails. The Ombudsman will normally only take on a complaint after a complainant has tried to resolve the complaint with the health trust or NHS provider and has received a response from them through the NHS complaints process ( Commissioning Independent NHS Complaints Advocacy 3

4 The new system From 1 April 2013, under the Health and Social Care Act 2012, independent complaints advocacy will be commissioned through local authorities. Within a permissive legal framework, local authority commissioners will be free to commission independent complaints advocacy services as they see fit. If local authorities wish to enhance and fund current provision above and beyond the DH contract up to 31st March 2013, they will need to negotiate that locally. Additional arrangements must not interfere or impinge on current provision in length, quality or delivery and will require a new contract. Equally, local authorities may make arrangements with new providers to carry out certain preparatory work prior to April This may be done through the service specification as part of the tender process, or a separate arrangement may be made for preparatory work. Such activity could include: liaising with current providers about transferring data and individual files and, in particular, handing over casework relating to clients who may need support through transition (see clients below) setting up data systems setting up a helpline promoting the new service and how to contact it training staff. Commissioning options There are a number of possible options for commissioning of a new NHS complaints advocacy service among which local authorities may choose: 1. to commission this as a stand-alone service from an existing voluntary or community sector organisation or consortium, a social enterprise or private sector organisation, either as an individual local authority, or as a crosslocality collaborative (independent model) 2. to commission this through local Healthwatch, with local Healthwatch acting either as the provider, or as the main contractor, sub-contracting with a third party to provide the service 3. to commission from existing wider advocacy providers to fit with wider provision of advocacy services in a local authority (integrated model). With these additional provisos: local Healthwatch can directly provide NHS complaints advocacy if commissioned directly by the local authority local Healthwatch cannot be commissioned by a third party (under option 1) to provide NHS complaints advocacy. The NHS complaints advocacy service could, for example, be commissioned from a voluntary or community sector organisation or consortium, a social enterprise or a private sector organisation. 1a) Independent model (individual) one local authority commissions a service for its own locality. 1b) Independent model (collaborative) an agreement between a number of local authorities on a regional, sub-regional or cross-regional basis to commission an NHS complaints advocacy service jointly covering all participating localities. 4 Commissioning Independent NHS Complaints Advocacy

5 North East collaborative model Gateshead Council is acting as lead authority to commission the NHS complaints advocacy service on behalf of 11 authorities in the North East of England. Demand and usage of the service will inform a review after 12 months and future commissioning plans. There will be a service set-up period from 2 January 2013 to 31 March During this transition period the provider will be expected to: develop a self-help information pack set up office and make locality arrangements ensuring presence in each area establish a free phone number and website recruit staff and volunteers (if being used) undertake communication and marketing of the service liaise with outgoing provider to agree process for transfer of live cases, including possible retention of current advocates for those with complex needs. The service has been set up in two parts: Level 1 Information and advice (including signposting) annual pricing. Level 2 Direct advocacy provision to service users - priced at hourly rate. There is a detailed specification, specifying levels of service (both in the community and in secure environments), requirements for a presence in each local authority area, data collection and monitoring and outcomes expected. Commissioners noted the following as crucial for a successful collaborative model. agree the lead authority early: they must keep focus and set direction whilst encouraging involvement and feedback negotiate a collaboration agreement early in the process keep all parties involved ensure endorsement via regional ADASS to support decision making ensure consistent and timely information flow to senior managers, portfolio leads, members, health and wellbeing board, health transition group ensure continued and consistent involvement of key colleagues from legal, financial, commissioning and procurement services ensure all parties deliver to timescales. Contact: Andi Parker, Development Officer, Gateshead Council AndiParker@gateshead.gov.uk; phone: Commissioning Independent NHS Complaints Advocacy 5

6 Commissioning through local Healthwatch The legislation permits local Healthwatch to be commissioned by the local authority to provide or to contract with a sub-contractor for the independent NHS complaints advocacy service for the area, with these additional provisos: local Healthwatch can directly provide NHS complaints advocacy if commissioned directly by the local authority local Healthwatch cannot be commissioned by a third party to provide NHS complaints advocacy. Commissioning through local Healthwatch West Sussex model Following consultation and stakeholder engagement, West Sussex Council decided to issue an invitation to tender for a combined contract for a local Healthwatch organisation and NHS complaints advocacy service, with options for a separate advocacy service which could also be available to West Sussex, Brighton and Hove. The procurement process was delivered through the WSCC procurement platform (BRAVO) to ensure standards, quality and equity. Bids were assessed via panel discussions and presentations (qualitative review) and financial analysis of submitted budgets (quantitative review). A combined contract from 1 October 2012 was awarded to a partnership of CABs in West Sussex and Help and Care, a charity working with older people, carers and communities. The contract is for a period of 3 years with the option to extend for a further 4 years up to a maximum of 7 years. Contact: Seth Gottesman, Third Sector Development Manager seth.gottesman@westsussex.gov.uk; phone: Commissioning Independent NHS Complaints Advocacy

7 An integrated model NHS complaints advocacy and social care complaints advocacy services, or other local advocacy provision (such as Independent Mental Health Advocacy services) are commissioned together from one provider. Suffolk integrated model Several advocacy contracts commissioned, as part of the Advocacy Strategy for Suffolk, will be ending March Following extensive work with stakeholders, Suffolk County Council will commission a strengthened independent advocacy provision. This will close existing gaps in advocacy provision and include NHS Complaints Advocacy, working towards a seamless service for the people of Suffolk. A partnership of local advocacy providers will receive grant funding for a one year pilot, to develop and prove the model. Applications received in response to invitation by SCC are being evaluated the providing partnership will be in place by 1 April, Advocacy arrangements from April 2014 onwards will be subject to a full tender process. Mental Health Advocacy, including Independent Mental Health Advocacy (IMHA) and Independent Mental Capacity Advocacy (IMCA) are provided under separate contracts those providers will extend the range of advocacy support they offer to include NHS Complaints Advocacy. Information about advocacy will be actively provided by a wide range of information providers accredited by Healthwatch Suffolk, as well as by Suffolk Advocacy Forum and the individual advocacy providers. Contact: Gillian Mullins, Assistant Head of Customer Rights Gillian.Mullins@suffolk.gov.uk; phone: Commissioning Independent NHS Complaints Advocacy 7

8 Transition Staff Currently, in addition to complying with UK employment law, ICAS staff appointments must comply with the following: all staff must be CRB checked all staff must be provided with regular personal supervision advocates should be encouraged to attend regular group supervision and/or peer support sessions staff appraisal should be undertaken not less than annually and include creation of personal development plans staff should be provided with access to external counselling support. Local authorities may wish to set similar requirements for staff in their NHS complaints advocacy service specifications and contracts. Transfer of Undertakings, Protection of Employment (TUPE) Regulations 2006 The purpose of TUPE is to protect employees if the business in which they are employed changes hands. Its effect is to move employees and any liabilities associated with them from the old employer to the new employer by operation of law. The local authority should form a view as to whether TUPE applies to their chosen advocacy model, but it is the responsibility of the outgoing and incoming ICAS providers for the area to make a decision as to whether TUPE applies. In order to decide whether TUPE applies to a particular transaction, it is necessary to ask two questions: 1. Does the function, which is being transferred, constitute an economic entity? 2. Will that entity retain its identity after the transfer? In determining whether TUPE applies in the case of NHS advocacy there is an assumption that an economic entity existed prior to the transfer in the guise of ICAS. For TUPE to apply the entity must retain its identity following the transfer. The following issues should be considered in deciding whether an entity will retain its identity after the transfer: the type of undertaking being transferred whether any tangible assets are transferred whether any intangible assets are transferred and the extent of their value whether the majority of the undertaking s employees are taken over by the new employer whether any clients/customers are transferred the degree of similarity between the activities carried on before and after the transfer the period, if any, for which those activities were suspended. The question of exactly when TUPE does and does not apply is a very complex one and as these circumstances may differ from area to area, individual local authorities are advised to obtain independent specialist legal advice in respect of TUPE. (See also: 8 Commissioning Independent NHS Complaints Advocacy

9 Clients The current providers are contractually bound to: transfer old data/ closed files to DH transfer existing clients to new providers advocates with client permission transfer open/ existing client files and data to new providers with client permission. The cost of this is to be met from the existing funding: it is not envisaged that this will be an additional cost to the DH. Under the current contract, existing providers will carry on working with existing clients and take new clients up until 31 March Some existing clients may need support through the transition process. There may also be a limited number of circumstances where transition from ICAS to NHS complaints advocacy could cause the client to suffer serious emotional distress. In these cases it is expected that the outgoing and incoming providers make the appropriate arrangements that are in the individual s best interests and are agreed by the individual wherever possible. The short case study below outlining a change in contracted mental health advocacy services gives an indication of some of the issues involved. New providers will need to liaise with outgoing providers to make arrangements for the transfer of clients and files. Local authorities may wish to stipulate liaison between incoming and outgoing providers as part of the transition arrangements before 1 April This could either be done as part of the service specification or through a separate agreement with the successful provider. In respect of very recent cases, it might be possible for new providers to arrange a system of double running of cases with outgoing providers. However, this would require systems to be in place in advance of 1 April 2013, and additional costs would need to be funded by the local authority. Commissioning Independent NHS Complaints Advocacy 9

10 Transition of mental health advocacy services in Merseyside Following a procurement tender process for the Merseyside Mental Health Act (IMHA) Advocacy Service, the outgoing service provider was required to hand over their case load to the new service. The exiting organisation stressed the dependency of some clients on individual advocates. Commissioners fully recognised that gaining trust was very important in the advocate-client relationship and causing the least upset to clients was paramount. A letter explaining the change of advocacy provider was sent to all clients prior to the new contract starting. The letter explained that a new advocate would be willing to work with them, offered a meeting to discuss their case and asked if they would be willing for their case notes to be transferred to the new provider. Only a small minority of clients did not agree to the transfer. Commissioners stressed the need for the incoming advocates to be fully aware of the case details before they met the clients and the transfer to the new service was smooth. A reference group which included a past service user met monthly for the first three months. The reference group agreed to stop meeting once the new provider was seen to be delivering the IMHA service well and the transfer of cases had gone smoothly. Contact: Ann Williams, Senior Improvement Officer, Liverpool City Council Ann.Williams@liverpool.gov.uk phone: Service provision in secure environments Prisoners have the same rights as other citizens to make complaints about their health services and can similarly make their complaint through any local authority area they choose. However, there can be logistical issues around the practicality of gaining access to prisons, because prisons do not have to permit access to advocates. Staff of the new service will need to have the capacity and expertise to support clients in secure environments, such as youth offending institutions and prisons. Non-EU citizens Access to complaints advocacy by non- EU citizens is at the discretion of local authorities. Data Currently, the following principles apply to the maintenance of records on interactions with clients and were specified in the original ICAS service specification: providers must ensure that accurate records are kept of all interactions with clients records must be securely stored to ensure the confidentiality of the client/service relationship clients should have access to their records ICAS advocacy services must comply with the requirements of the Data Protection Act Local authorities may wish to make some such provision in their service specifications and contracts. 10 Commissioning Independent NHS Complaints Advocacy

11 Existing client data Current ICAS data is stored in local offices, on contractors IT systems and at service providers headquarters. The DH is the data owner and is responsible for the storage and, if appropriate, disposal of historical records and closed cases in respect of ICAS. All files are closed on completion of a case, ie when the complaint is resolved or the client is no longer being supported by ICAS. The closed files on all completed cases will be transferred to the DH when the ICAS contracts end on 31 March Files on cases which remain open will be transferred to the new advocacy provider. It will be for the outgoing provider to decide whether a case is completed or remains open. Arrangements for the transfer of data should be made between the outgoing and incoming service providers. Estimate of cases in system March 2013 and handover The DH has provided the following data broken down by local authority from the current advocacy providers: volume of activity and exports local authority activity imports age group of clients client groups ethnicity. The DH has further requested: number of open cases (which it is assumed will remain reasonably constant up to 31 March 2013) for transfer if required number of closed cases for transfer to DH on 31 March 2013 (this includes hardcopy and electronic) number of cases referred to the Health Ombudsman. It is not possible at this stage to establish the number of cases that will need support through transition as this will need to be agreed locally between the outgoing and incoming providers (see clients above). Data protection Where data is being transferred or a client is being reassigned an advocate, the client must give their approval preferably in writing. Both the DH and ICAS providers as well as the local authority and new providers must comply with the Data Protection Act. Archived data will be retained by the DH and disposed of in line with current departmental disposal policy. Local authorities should contact Geoff Delissen (Geoff.Delissen@dh.gsi.gov.uk) the ICAS Contract Manager at DH if they experience any difficulties in data transfer, or a provider/ individual client needs to access a closed (archived) file. These datasets are at chzwz9j Commissioning Independent NHS Complaints Advocacy 11

12 Sharing data across boundaries The nature of the NHS complaints process means that a complaint can be made from any local authority area in England about any NHS service or treatment delivered in the same, or another local authority area. To provide a cross-england service, the LGA suggests the following clause is inserted into contracts containing provision of NHS Complaints Advocacy: The successful provider for delivering NHS complaints advocacy in this contract is expected to work in partnership with providers of similar services across England. This may mean providing advocates for local residents making complaints about NHS services based outside the local area covered by this contract, or liaison with other NHS complaints advocacy service providers to make best use of local funding for this service. This arrangement may be time-limited, such as supporting a complainant at a specific meeting, or for a longer period up to the whole length of the complaints process. Although the clause is important to enabling cross-locality working for NHS complaints advocacy after April 2013, the above clause should not be regarded as either statutory or non-statutory guidance. Quality of service ICAS is governed by seven key principles, originally laid down by the DH in the service specification: empowerment accessibility resolution independence partnership confidentiality value for money. In addition to the ICAS core principles, two codes of practice, one relating to the work of ICAS project directors and one relating to the work of ICAS advocates, underpin effective service delivery. The ICAS contract contains a number of Key Performance Indicators against which the service is monitored these may be helpful to local authorities in developing service specifications and their own systems of performance management for the service. Commissioners will want to assure themselves that a quality service is being provided (see also model dataset link in resource section below). Communications Local authorities will need good communications during the transition period and well before 1 April This includes keeping relevant council portfolio holders and senior officers up to date on progress towards the transition, as well as the health and wellbeing board and the health overview and scrutiny committee. It will also be helpful to brief local providers of informal support and advice to service users. 12 Commissioning Independent NHS Complaints Advocacy

13 Ensuring that health service providers, including NHS trusts and GP practices are aware of the new arrangements is also likely to help the new complaints advocacy providers to support clients in a timely way as soon as they take over. The DH is developing a communications strategy to raise awareness of the new system for NHS complaints handling, which includes NHS complaints advocacy. Local authorities will wish to ensure also that their residents and those using NHS services in their area know about the complaints advocacy service, what it does and how to contact it. They may wish to specify some promotional activity in their service specification in advance of 1 April This could include specifying the role and responsibility of incoming providers in getting established in the locality (for example through building relationships with key stakeholders and through having a physical presence in the area and in appropriate forums). They may also wish to undertake some promotion of the service themselves, for example through the council s website and newsletter, the health and wellbeing board, voluntary and community sector networks, local Patient Advice and Liaison Services (PALS) and the Local Involvement Network/ local Healthwatch organisation and in collaboration with local health partners. Helpline The national helpline used by existing service providers will cease on 31 March A telephone helpline is likely to be a key means for people locally to contact their NHS complaints advocacy service. Councils may wish to stipulate that a helpline should be established by 1 April 2013 and that the number should be publicised widely. Website Members of the public are increasingly turning to the internet as the first point of contact with support organisations. It will be important to ensure that the service provider has a user-friendly internet presence and that this is suitably publicised, while bearing in mind the need to make contact with those groups, including some of the most vulnerable people, who are less likely to be online. Funding Funding for NHS complaints advocacy will come through the local government funding route. Funding will not be ring-fenced. Questions for consideration Have you considered each of the possible options for service models outlined above or a combination of them, in developing your own model? To what extent do you want to specify quality standards, staff qualifications, data collection and analysis, outcomes and/or key performance indicators in your service specification and contract? Can you draw on any of the existing standards, codes of practice, KPIs etc from current ICAS providers, from your social care complaints advocacy service or from the Health Service Ombudsman? Does your timetable for commissioning the new NHS complaints advocacy service allow time for liaison between outgoing and incoming service providers in advance of 1 April 2013 and for setting up systems (including telephone lines and computer systems) which will need to be in place by then? Commissioning Independent NHS Complaints Advocacy 13

14 How much of the preparatory work before 1 April 2013 do you wish to include in your service specification? Or do you wish to make a separate arrangement with the chosen service provider? Do you have a budget for this? Have you included the recommended paragraph on cross boundary working in your contract (see section on data above)? Do you have arrangements in place to brief relevant councillors, senior officers and partners, including NHS commissioners and providers about progress towards the new system? Do you have a communications plan for explaining and promoting the new system to service users, the public and the voluntary and community sector? Resources where to find out more Explanatory Memorandum to the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 No. 309: The Health Service Ombudsman has published two leaflets, Principles of Good Complaints Handling: Principles for Remedy, against which she assesses the NHS complaints process: On-line information in respect of the NHS complaints system may also be found at NHS Choices: ICAS Advocates Code of Practice: ICAS Project Directors Code of Practice: Local Government Employers TUPE guidance: ICAS LGA webpages for data sets and other briefings: Health and Social are Act 2012 and explanatory notes 14 Commissioning Independent NHS Complaints Advocacy

15 Checklist for NHS complaints advocacy comissioning and transition Commissioners will need to make a number of preparations to ensure that an NHS complaints advocacy service is in place and ready to take over from existing providers on 1 April These include the items in the checklist below. Action Deadline Action by (name) Agree timetable up to 1 April 2013 Develop risk log Monthly progress reports to senior officer and cabinet member(s) Consultation with neighbouring authorities (where collaborative model under consideration) Consultation on possible models Agreeing a model and setting a budget (which is likely to be indicative until there is government confirmation about allocations, expected before the end of 2012) Agreement of pre-1 April 2013 preparations and how commissioned (and any budget for this) Consultation with council specialists, including lawyers, procurement and/or grants officers Deciding on a commissioning process Developing a service specification which could include: - any preparatory work to be done before 1 April services required to be in place at 1 April 2013 and, possibly, at stages throughout the first year - outcomes expected for the first year Service specification and tender documents (including specification of pre-1 April 2013 requirements) finalised and procurement process begun (see below) Invitation to tender/apply issued Assessment of applications Drawing up and letting a contract Ensuring appropriate liaison and handover arrangements are in place between the new provider and the outgoing provider Report to health and wellbeing board, local Healthwatch and health scrutiny committee and other appropriate local routes Advance publicity of new NHS complaints advocacy service (and helpline as soon as number is known) - inform health and wellbeing board, local Healthwatch, voluntary and community sector - inform local NHS providers Closely monitoring the contract for the first several months and reviewing performance after a year Completed/ notes Commissioning Independent NHS Complaints Advocacy 15

16 Local Government Association Local Government House Smith Square London SW1P 3HZ Telephone Fax Local Government Association, December 2012 For a copy in Braille, larger print or audio, please contact us on We consider requests on an individual basis. L12-950