Patient access to oral nutritional supplements: Which policies count?

OBJECTIVES: Oral nutritional supplements (ONS) represent a cost-effective method for treating malnutrition. The aim of this study was to investigate the effects of public policies on patient access to ONS, using the Italian regionalized health care system as a case study, subsequently compared with the centralized British National Health Service. METHODS: Regional policies in the nine largest Italian regions and British policies were gathered through a literature review; interviews with officers responsible for clinical nutrition policies at the regional level in Italy were also conducted. Total ONS regional sales in Italy were gathered from industry sources. RESULTS: Regulation by Italian regions focused on patient access and local prescribing issues (facilities and specialists allowed to prescribe reimbursed ONS, clinical pathways for malnutrition or disease-related malnutrition, length of prescriptions, and distribution of ONS). British policies focused on organizational issues (clinical governance through multidisciplinary Nutrition Support Teams, Nutrition Steering Committees and Clinical Commissioning Groups), education and referral by health care professionals. Neither per capita reimbursed ONS expenditure nor the proportion covered by public funds seem dependent on policies implemented at the regional level in Italy. There is no cutting-edge evidence that British policies produced broader diffusion of ONS, but they appear to have standardized their use within a more homogenous framework. CONCLUSION: As no clear relation between regional policies and variation in patient access to ONS emerges in Italy, national policies should be encouraged to enhance awareness of malnutrition among health care professionals and encourage the diffusion of multidisciplinary nutrition teams in health care organizations.

Prevention is Better than Cure, But who Foots the Bill? R (National AIDS Trust) v NHS England.

This case note discusses R (on the Application of National Aids Trust) v The National Health Service Commissioning Board (NHS England), The Local Government Association, The Secretary of State For Health [2016] EWCA Civ 1100. The case is an appeal on an earlier finding by the High Court that the power to commission pre-exposure prophylaxis (PrEP) lies within National Health Service (NHS) England's competence, instead of being within the realm of local authorities' responsibilities. It now forms the sole piece of judicial guidance on NHS England's duties under the National Health Service Act 2006 and is significant for the process by which the Court of Appeal reached its decision. Rather than adhere to the literal meaning of relevant legislation, the judges engaged in a holistic examination of the issue to reach a functional and sensible decision. Examining this case under the lens of both legal theory and pragmatism, comment is made on the soundness of the judges' approach and it is argued that the decision reached was the correct one. This case now forms binding precedent on this issue and the clear process by which the judges reached their conclusion may form instructive guidance for similar such problems in the future.

The rebirth of medical paternalism: An NHS Trust v Y.

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than 'medical best interests'. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests-so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

The NHS and the law.

John Tingle, Associate Professor (Teaching and Scholarship), Nottingham Trent University, discusses clinical negligence trends in the NHS, from its early years to the current key concerns.

Any qualified provider: a qualitative case study of one community NHS Trust's response.

OBJECTIVE: To examine how those managing and providing community-based musculoskeletal (MSK) services have experienced recent policy allowing patients to choose any provider that meets certain quality standards from the National Health Service (NHS), private or voluntary sector. DESIGN: Intrinsic case study combining qualitative analysis of interviews and field notes. SETTING: An NHS Community Trust (the main providers of community health services in the NHS) in England, 2013-2014. PARTICIPANTS: NHS Community Trust employees involved in delivering MSK services, including clinical staff and managerial staff in senior and mid-range positions. FINDINGS: Managers (n=4) and clinicians (n=4) working within MSK services understood and experienced the Any Qualified Provider (AQP) policy as involving: (1) a perceived trade-off between quality and cost in its implementation; (2) deskilling of MSK clinicians and erosion of professional values; and (3) a shift away from interprofessional collaboration and dialogue. These ways of making sense of AQP policy were associated with dissatisfaction with market-based health reforms. CONCLUSIONS: AQP policy is poorly understood. Clinicians and managers perceive AQP as synonymous with competition and privatisation. From the perspective of clinicians providing MSK services, AQP, and related health policy reforms, tend, paradoxically, to drive down quality standards, supporting reconfiguration of services in which the complex, holistic nature of specialised MSK care may become marginalised by policy concerns about efficiency and cost. Our analysis indicates that the potential of AQP policy to increase quality of care is, at best, equivocal, and that any consideration of how AQP impacts on practice can only be understood by reference to a wider range of health policy reforms.

Elephant trap alert: STPs must stay the right side of the law.

We must design sustainability and transformation plans well if their good work is not to be derailed by legal challenges.