Carter Lemon Camerons sponsors the Cass Healthcare Forum

At:  Cass Business School, 106 Bunhill Road, London, EC1Y 8TZ

On: Wednesday 15 February 2012, 18:00 - 21:00

We are delighted that Mike Farrar, Chief Executive of the NHS Confederation, has accepted our invitation to lead a discussion at the Cass Healthcare Forum.

The NHS Confederation has a particular challenge ahead, as it brings clinicians into its membership, who will now be leaders and managers of the healthcare services.  But will these people be better than experienced, trained managers?  Haven't we reached a point where there are a number of very effective leaders who had risen up through the ranks of PCTs?  Or was there always a vital element of understanding missing to create effective and efficient patient pathways?  Is there a middle ground, where clinicians and career managers work together?  What is the prospect that this change will create the disruptive innovation identified by the Forum as being required in the NHS when it is organised in CCGs?  To join in the discussion on this challenging topic Please Register Here

A company and a good lease can stop GP partners from falling out badly.

With a GP-owned surgery it is frequently the case that only some of the partners own a share in it.

This can cause all manner of problems, but some of these can be avoided or eased in the property owners set up a company to own the building with them as the shareholders.

A big advantage is that it is much easier to buy or sell shares in a company than to buy or sell property shares as share transfers are made using a simple stock transfer form.

Before dismissing the idea as not for your partnership, shy not mull over the whole issue of partners retiring and joining?

The partnership should at least have a trust deed setting out the procedure if one of the property owners retires and want to sell their share.  This usually involves having the property valued, calculating the share's value and giving the continuing partners first refusal on buying it.  You may be able to raise the money be increasing the mortgage on the surgery - perhaps with the help of an incoming partner buying a share.

But a new partner - assuming the partnership does recruit one - may feel or be unable to buy the share.  Then, if the financial arrangements between the property owners and the partnership (all the current partners) as the occupier are informal, serious disputes can easily arise.

Replacing the roof

For example, who is responsible if the roof need replacing?  Will this be a partnership expense or will the property owners pay for it out of the 'rent' the partnership pays them?

Partners without premises shares may argue they should not pay to enhance the value of the property, while the property owners insist that the partnership is responsible for maintenance and upkeep. 

With no formal lease in place there is huge scope for argument.  Worse still for retired property owners, would be the current partners deciding to move to another building.  If the property owners still have a mortgage on the surgery, they will continue to be liable for the mortgage payments without the benefit of the informal 'rent'. 

It is crucial to have a lease which clearly sets out the responsibilities of the partnership for the future - a lease which, incidentally, a company set up the by the property owners could grant.  With a company, a former or current partner who is a shareholder can raise capital by selling their shares.  With a proper lease in place, lenders should be willing to offer favourable terms, and the notional rent reimbursement the partnership receives as tenant can be passed to the company as lease-rent.

The downside is the tax hit when the property is transferred from the property partners to the company, and when the lease is first granted.  The amount of stamp duty land tax payable will depend on the property's value, the amount of lease-rent and length of the lease.

A company also means complying with statutory requirements, such as filing an annual return and accounts at Companies House.

Sponsored by Carter Lemon Camerons LLP

Carter Lemon Camerons are pleased to be sponsoring a discussion with Stephen Dorrell and Richard Smith on competition in the NHS

Please Register Here

Event Details

Tuesday 6 December 2011, 7.45 am - 10.00 am
Cass Business School, 106 Bunhill Row, London EC1Y 8TZ
Room: LG002

Cass Healthcare Forum invite attendees to join in an active discussion on whether competition will revive the NHS to become the envy of the world, or will it be the beginning of its demise?

Speaker(s)

The Rt Hon Stephen Dorrell MP, Chair of the House of Commons Health Select Committee and former Minister of Health
Prof Richard Smith, Director of Ovations and former Chief Executive of UnitedHealth

Description

What’s wrong with our civil litigation?  Why have we had to have Woolf and Jackson?  Is there a solution to the cost-and-access problem?

We should be proud of our civil litigation.  It is free of corruption, not beset by undue delay, with generally competent practitioners and good judges. Its product is sound.

These vital factors must not be sacrificed in the course of reform.  It is respected worldwide, but for one serious flaw:  it is so hideously expensive it denies access to many.

There has been an enormous increase in cost in the last half-century.  Why?

1.  The proliferation of information.  The few documents in play when our procedure and litigation attitudes were established have been replaced – because of the copier, the computer and ever-growing means of e-communication – by seemingly limitless documents, many of which never appear on paper.

Litigation has not adapted to a century radically different from the 20th, let alone the 19th.

2.  Professionals leave no stone unturned.  With the growth of negligence claims and increasing regulatory and professional pressure to improve standards, the attitude of lawyers is to leave no stone unturned, even though much of the work done serves only to demonstrate compliance, and not to promote the client’s case.

Cases must be prepared on the basis not of what should happen, but of what might happen - bearing in mind all possibilities arising from opponents’ tactics, unforeseen evidence emerging and many other unpredictable events.  Inevitably we do more work than will be of real benefit to the client or to the determination.

3. Litigation cannot be automated.  Many labour-intensive personal services (e.g. photography, travel agency and banking) have become automated.  We have grown accustomed to services becoming quicker and cheaper, but litigation, human, adversarial and competitive, cannot be performed by machine.  It demands ever-more human, qualified, expensive input.

This unholy trinity of cost-increasing factors applies at every successive stage:  disclosure, fact witnesses, experts, trial. None of the three factors is likely to decline. 

Unless something radical is done, the inevitable rise in cost will continue. Even more litigants will be excluded by cost.

Woolf reduced delay with trial timetables and (accidentally) by reducing the court traffic so severely that hearings are now available without much delay.  Woolf did not reduce cost - just the opposite - because his case management regime was never funded by government.  Woolf was followed by much satellite cost litigation. 

The Jackson debate is more about who should bear the cost, than about reducing the cost.

Is there some way we can reduce cost without unduly sacrificing quality? 

Yes:  introduce a two-stage process in which Stage 1 is an obligatory provisional assessment of the merits and quantum by a judicial officer at a very early stage in every case, on the basis of limited material and a short hearing in appropriate cases only. 

At Stage 2 any party dissatisfied with the provisional assessment would be entitled to proceed in the conventional way to trial, subject to very rigorous case management, particularly as to disclosure and costs including security for costs either way. 

Many cases (I assume 80%) would be resolved at or shortly after Stage 1, freeing up court resources for the case management of the 20% which do proceed to Stage 2. 

No-one would be denied the right to the full trial procedure but, if the dissatisfied party proceeded to Stage 2, the case would be closely controlled to protect the opponent’s costs position.

What is the justification for this?  First, as an extension of the case management advocated by Woolf it would require only a modest new addition to the rules; for Stage 2 the rules would remain unchanged. 

Second, courts are understandably reluctant to make findings on the merits before a full trial but in early hearings in which some assessment of the merits is necessary (interlocutory injunctions, summary judgment, security for costs etc) the court generally gets it right, and the outcome after the full trial and attendant expense is more often than not substantially the same as the initial assessment. 

We cannot afford the luxury of deferring in every case the assessment of liability and quantum to a trial.

The courts deserve to be entrusted with the duty to make provisional assessments in the interest of wider access. 

The state will have to fund the necessary judicial officers of appropriate calibre (as it should have funded proper case management after Woolf), but if after Stage 1 only 20% of cases remain “live” that expenditure should be recouped in Stage 2.

The two-stage process will not be perfect (what is?) but it will give every litigant the benefit of a judicial decision after a short time and at modest cost. 

Provisional assessment may be “right” only 80% of the time, but if the case goes into Stage 2, neither should be worse off than under the current system: the dissatisfied party may still proceed, and the satisfied party will have the benefit of rigorous case management and costs protection. 

In the majority of cases the expenditure for the parties and for the state will end after Stage 1.   

Under the present system, if unchanged, the judicial decision when made may be nearer to perfect, but many litigants are denied the opportunity, because of cost and costs-risk, of having any decision at all.

The state cannot be ambivalent about funding a litigation system appropriate for the age we live in.  Like drains (which we also cannot live without but notice only when they go wrong) it is an essential element of the infrastructure of a modern state. 

Government cannot have it both ways:  if it wants improved access it will have to contribute more funding.

To many this suggestion will sound unacceptably radical and a threat to the quality of our litigation, but the nation cannot afford the perfection provided by a system forged in an era long since superseded by a rapidly-changing world. 

Redistributing the cost is insufficient:  to reduce cost effectively we must be prepared to change our procedure as radically as our world has changed. 

The Stage 1 threat to quality is less than the current threat to access presented by escalating cost. If we do not change the procedure, the cost-and-access problem can only get worse.

It was announced in the Queen’s Speech in May that the Coalition is to introduce a Bill which would devolve greater powers to councils and neighbourhoods and give local communities control over housing and planning decisions.

The bill is expected to be published in late November 2010. This major piece of legislation is likely to affect housing, planning and local government legislation dating back, in some cases, decades.

The coalition states that the main benefits of the Bill will include the following:

• Empowerment for local people
• Free-up local government from central and regional control
• Give communities a share in local growth

The Bill sets out significant new powers and freedoms from local councils and communities, and will include reforms to the planning system. In October’s Spending Review the government identified the current planning system as an important area in need of structural reform.

The main elements of the Bill are:

• Abolish Regional Spatial Strategies.
• Return decision-making powers on housing and planning to local councils.
• Abolish the Infrastructure Planning Commission and replace it with an efficient and democratically accountable system that provides a fast-track process for major infrastructure projects.
• New powers to help save local facilities and services threatened with closure, and give communities the right to bid to take over local state-run services.
• Abolish the Standards Board regime.
• Give councils a general power of competence.
• Require public bodies to publish online the job titles of every member of staff and the salaries and expenses of senior officials.
• Give residents the power to instigate local referendums on any local issue and the power to veto excessive council tax increases.
• Greater financial autonomy to local government and community groups.
• Create Local Enterprise Partnerships (to replace Regional Development Agencies) – joint local authority-business bodies brought forward by local authorities to promote local economic development.
• Form plans to deliver a genuine and lasting Olympic legacy.
• Outright abolition of Home Improvement Packs.
• Create new trusts that would make it simpler for communities to provide homes for local people.
• Review Housing Revenue Account.

The Bill applies to England and Wales.