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Markel Insurances

09 Sep 2019

No-deal Brexit guidance for adult social care providers from the Department of Health and Social Care

As the UK is set to leave the EU - with or without a deal - on October 31 2019, the Department for Health and Social Care (DHSC) has released guidance for adult social care providers, covering what they need to prepare for a no-deal Brexit scenario.

Adult social care providers
The guidance covers what actions you should take before and after Brexit to help you plan and manage potential service disruption in the event of a no-deal. 

Medicines, medical devices and clinical consumables
The Government advises that you should not be stockpiling any medicines, medical devices or clinical consumables. This increases the risk of causing shortages in other areas and putting other services users at risk.

You should also be advising your service users not to store additional medicines, medical devices or clinical consumables.

The DHSC recommends taking the following actions:
  • if you rely on receiving products from the EU with short lead times of 24-48 hours, you need to plan for longer lead times of up to five days
  • make sure you are prepared to receive stock deliveries outside normal hours
Non-clinical consumables, goods and services
  • These include things such as:
  • IT service agreements
  • waste management
  • facilities management
  • service maintenance contracts
  • laundry services
  • food and catering
It is vital you have included any risks and issues associated with the supply of these into your business continuity and/or contingency plan.

“It is essential you have a plan in place to enable you to continue to comply with your legal obligations owed to your workforce and service users,” says Helen Rideout, partner at Browne Jacobson LLP. “Identifying risks and issues associated with these will enable you to run your business effectively, minimize the risks to your workforce, services users and visitors and to operate with confidence”.

Rideout added that “as far as the ongoing debate about shortages is concerned, much depends on the individual circumstances. Having a clear plan in place will firstly identify whether this poses a risk for your organisation which will then allow you to plan for contingencies and ultimately demonstrate matters within your control have been dealt with reasonably. If you do not turn your minds to this and fail to carry out this work it will not be possible to avoid criticism or legal action by simply pointing to shortages if no thought has been given to the risks in advance.”

Your business continuity plan must cover the supply of staff you need to deliver your services before and after Brexit. If you have any staff members who are EU citizens, make sure you encourage them to apply for the EU Settlement Scheme.

However, there is no need for any changes to existing EU staff employment contracts after Brexit, even if the UK leaves without a deal.

If there is any risk to service delivery, you must notify your local commissioner, director of adult social services and the Care Quality Commission as soon as possible. “In relation to your commissioning body, you will have a contractual obligation to notify your contractual partners of any changes which will impact on your ability to perform the service under contract,” Rideout explains.  
“For both the commissioning body and social services director, you also have a safeguarding duty to notify them as soon as practicable if there is a risk or a change to your service delivery, which will impact on the level of care being provided to a vulnerable service user.  In relation to your regulatory body, the Care Quality Commission, risks or changes which impact on whether you can meet the fundamental standards and comply with the regulations must be notified promptly.

“It is your responsibility to meet the regulations and if your ability to alert them changes, early notification to the Care Quality Commission will enable a dialogue about your registration to take place, help evidence reasonable steps and due diligence and ultimately, help avoid prosecution in a worst case scenario,” says Rideout.

Data sharing
At the moment, personal data can be freely transferred between the UK, the EU and other ‘adequate countries’ which the EU defines as having an adequate level of data protection.
In the event of a no-deal Brexit, this transfer of data may become restricted. Therefore, you should definitely check whether your organisation relies on the transfer of personal data from the EU or other adequate countries to the UK.

In particular, focus on data that is critical to service delivery, as well as data that would have a serious impact on your organisation if its transfer was disrupted. If your data may be affected, you will need to put in place alternative arrangements to ensure continued protection and exchange.
Third party organisations
Helen Rideout also cautions that “care is a highly connected sector, with information goods and services often being delivered via a system of providers. This will include clients and suppliers, but may also extend to other third party organisations. Disruption to any part of these networks is likely to impact on others, meaning that Brexit preparations need to extend to a consideration of external dependencies.

“Engagement between organisations directly or via main contractors will allow these risks to be identified and options for mitigation to be considered. Mitigation may include consideration of contractual relationships and terms, and Browne Jacobson’s Brexit Hub includes guidance on contract issues that are likely to arise in connection with Brexit as well as other useful guidance,” Rideout concludes.  
For further guidance on data protection in the event of a no-deal, check the advice from ICONHS England and the Ministry of Housing, Communities & Local Government.

More information about the issues outlined in this article, visit the Government’s website. Markel has written this feature in association with Browne Jacobson, one of our panel solicitors - visit their website for expert legal support and advice.
Tagged Social Welfare Insurance
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