NHS commercial: commissioning
Twelve more CCGs authorised
NHS England has published the latest review of CCGs with outstanding conditions and directions. Following the fourth conditions review, 12 more CCGs have demonstrated enough progress to discharge all of their authorisation conditions and can now operate unsupported. This now brings the total number of fully authorised CCGs to 192.
The latest review shows that 19 out of 211 CCGs still have to meet one or more of the 119 criteria set out in NHS England’s authorisation framework that CCGs must meet in order to be fully authorised. Of the 19 CCGs requiring support from NHS England, three (NHS Barnet, NHS Croydon and NHS Thurrock) have legal directions in place. They will continue to receive formal, legally underpinned support from NHS England on such matters as planning, programme management, constitution and governance arrangements as well as leadership and organisational capacity, including authorised officer appointment.
The next review by the CCG authorisation and assurance committee will be this month. Watch this space… A version of this article first appeared on our Health Commissioning Portal blog.
For further information or advice please Tania Richards on 01223 222476.
We have been advising CCGs and their predecessors, PCTs, for many years about policies to cap expenditure on
NHS continuing healthcare (NHS CHC) services commissioned both for patients in nursing homes and those receiving care in their own homes.
It has generally become accepted that, given there is not a bottomless pit of money available to fund these services and that commissioners have to make the best use of the resources available to them and take into account equity of provision as well as need, offering a choice of affordable nursing home placements and setting a financial cap on the level of funding that can be spent on the provision of home care, is not unreasonable and is therefore lawful.
A case reported in December 2013 concerning the funding of non-residential social care packages has provided support to this proposition.
In R (on the application of D) v Worcestershire County Council, a local authority policy for determining the usual maximum expenditure for non-residential care packages for adults with assessed needs as equivalent to the expenditure on residential care, was held to comply with the public sector equality duty under the Equality Act 2010 section 149.
It is worth noting that this council decided that the cap on non-residential care packages should, in the absence of exceptional circumstances, be the equivalent of the cost of residential care. Many former PCTs and CCGs have opted for a slightly softer approach in their NHS CHC policies, allowing an uplift of 10 per cent, or even 20 per cent, on the cost of nursing home care.
The case report also provides a useful reminder of how to comply with public consultation duties when introducing such a policy.
The future of commissioning support excludes privatisation
Commissioning support units (CSUs) will not be privatised when they are made independent in 2016 under new plans released by NHS England. The privatisation of CSUs was being considered but, due to the lack of CCG support, NHS England's board report has ruled out the option of selling CSUs.
Another reason given in the report for rejecting a wholesale sell off of CSUs is “given the early stage in the development of the commissioning support services (CSS) market and the consequent uncertainty about the value of the CSUs, there would be a significant risk that the NHS would be giving away value to the private sector buyer”.
NHS England will consult nationally on four structural options for securing autonomy for CSUs to select from:
- Social enterprise
- Staff mutual
- Customer controlled social enterprise
It adds that NHS England should prepare guidance for CSUs on the "process to autonomy", including a locally led public consultation when each unit is ready to submit its application to NHS England. For most CSUs, this is expected to be in late 2015 or early 2016.
NHS England is also creating a lead provider framework for CCGs to buy support services. A number of CSUs are looking to merge or work “in alliance” in order to secure a place on the framework.
NHS commercial: competition
The need to get competition right
The House of Commons Health Select Committee has published a report on public expenditure on health and social care. Among other issues, it discusses the Competition Commission's prohibition of the merger of Bournemouth and Poole hospitals. The committee recommends "that the Government should examine the background to the Bournemouth and Poole proposal in order to ensure that unnecessary impediments to necessary change are removed." This is a worthy aim but it is important to remember that the reason the Competition Commission blocked the merger was that the trusts had failed to persuade the Commission, advised by Monitor, that the merger would produce improvements for patients.
In order to improve and quicken the competition authorities' decision making process for foundation trust mergers, Monitor has written to foundation trusts and CCG leaders inviting their responses to Monitor's proposed new guidance on foundation trust mergers. The deadline for responses was 28 February.
Monitor focuses on competition for community services contracts
Monitor has recently published guidance on the NHS Procurement, Patient Choice and Competition Regulations 2013, that implement Section 75 Health and Social Care Act 2012. This statutory guidance is required by law and is intended to support commissioners of NHS services in understanding and operating in accordance with the rules around purchasing high quality services for patients. Commissioners can now start to use Monitor's guidance to assess their obligations under these contentious Regulations.
Following this, David Bennett, chief executive of Monitor, has announced that Monitor will be focussing on the decisions CCGs are making about transforming community services contracts. Community services contracts were let by PCTs in 2010-11, typically to their former provider arms and usually on terms of between three and five years. Consequently a number of them are up for renewal. Monitor is concerned that very few CCGs have begun tendering the contracts and anecdotal evidence suggests many are looking to roll on the contracts or avoid tendering them all together.
Under the Regulations, not every contract has to be put out to tender but there needs to be a proper process to decide whether or not to tender a contract. For example, the guidance states commissioners do not have to tender a contract if it is in the best interest of patients not to do so. CCGs must satisfy themselves that the services currently being provided could not be improved and that there are no alternative providers that could deliver them. It may also be possible for CCGs to argue that an integrated system is better for patients and it would be difficult to create that through an open tender. However, CCGs will need to be able to demonstrate that these criteria have been met. Monitor is unlikely to take a CCG's word for it.
For further information or advice please contact Simon Elsegood on 01603 693449.
Regulatory: list management
NHS England puts management of concerns about primary care performers documentation out for consultation
When NHS England took over management of the national performers lists in April 2013, it produced documents to
assist in the management of concerns about primary medical, dental and ophthalmic performers. On the first anniversary of its assumption of responsibility for the lists, these documents are now being refined in light of feedback from users and stakeholders.
Following extensive consultation with area teams, the National Clinical Assessment Service, local representative committees and other stakeholders, a new set of documents is being drafted covering inclusion in the performers lists and management of concerns relating to performers on the list. This will include a new, high-level framework and supporting guidance for use by area teams.
NHS England is now making specific elements of the draft framework available for broader consultation and is seeking feedback on whether these elements of the proposals are practical and proportionate, so that the documents can be developed in further detail.
A formal consultation has accordingly been launched, albeit of short duration, closing on Thursday 20 March, seeking the views of CCGs on whether the proposed framework is practical and proportionate. NHS England is particularly keen to know whether the changes provide assurance to patients and the public that appropriate steps are being taken when allowing new practitioners to work and in managing the situation when problems arise.
Regulatory: health investigations
The Nuffield report into Francis: one year on
It seems hardly possible that it has now been over a year since Robert Francis QC published his long awaited report relating to Mid Staffordshire NHS Foundation Trust.
During this year, the Nuffield Trust has also been carrying out research into the response of trusts at ground level to the recommendations made and the challenges that the NHS is facing in changing the quality and culture of care. The research included 48 interviews at five hospitals and the responses of 53 hospitals as a result of electronic surveys.
Robert Francis QC has written the foreword to this report and his reflections are interesting. He welcomes the general acceptance from the research that quality needs to be given a greater priority with a recognition of the need for support of a high standard of front line leadership but with better engagement of front line staff. However, he is concerned that there is a persisting belief from some that the events at Mid Staffs were unique and unlikely to occur elsewhere. From my own personal perspective, this is not something that I have heard reflected in conversations I have had with NHS colleagues, although there is a recognition that financial pressures can make meeting the recommendations challenging. To this Francis would say, “it is incumbent on leaders to communicate that” and that there needs to be a “frank discussion about what needs to be provided within the available resources and what cannot”. It is also interesting that Francis takes the opportunity to comment on criticisms about the length of the report and the number of recommendations he made. He says that the problems uncovered are too complex for a one-off solution and it is for NHS leaders to devise programmes for implementation of the recommendations and the order of priority.
The Nuffield Trust has done its research based on an understanding that Francis examined the values and behaviour of an NHS system that has now been comprehensively redesigned with comments on organisations that no longer exist. This was an issue that was brought to the attention of the Government on a number of occasions at the time! It is also accepted that there are new requirements in the Health and Social Care Act and new organisations that are now partly responsible for quality. The research is done within the context of the NHS budget having been frozen in real terms since 2010/2011 but with an increased pressure from people living longer, rising rates of long-term conditions and rising costs associated with technological advances.
With such pressures on the NHS, the research intended to establish not what recommendations had been acted upon but rather what the significance was of the Francis findings for hospitals.
A very brief summary of the results
The research found that:
- 70 per cent of trusts considered that, by the time of the second Francis report, they already had measures in place to improve and assure the quality of care that aligned with the recommendations. However, 82 per cent of trusts also reported they were taking new initiatives or measures.
- Trusts have taken different action in terms of defining their own “fundamental standards of care”. Some involve mini practice CQC inspections or Keogh inspections.
- There was concern voiced amongst those who responded to the research that national standards were not coherently applied between regulators. An example given in the report was that the CQC may assess compliance and Monitor may declare a breach. There was also criticism that multiple bodies required assurance that trusts were meeting the required standards.
- Responses showed that there was concern that commissioners and Monitor still placed financial performance over quality of care, although there was a generally positive attitude to commissioners.
- There was a strong sense from senior managers that it was difficult to engender a culture of compassion when they experience external management that is punitive.
- There was a positive response to transparency and candour and trusts reported strengths in sharing outcomes of complaints and investigations with staff, patients and the public.
- Three of the trusts involved reported that they were working on refreshing their whistleblowing policies but there was a recognition that this was one of the hardest areas to change behaviour and create an environment where staff felt safe to raise concerns.
- There were sentiments about building an open culture against the threat of criminal sanctions, something that has attracted a great deal of debate outside this report.
- One of the most common forms of new action taken was a review of nursing levels, despite Francis falling short of making recommendations relating to minimum staffing numbers. The challenge was to do this within the context of financial constraints.
- There was a report of increased vigilance with non-executive directors, although this shift pre-dated the report. Also, most respondents to the survey considered that their governors had a good idea of the quality of care provided by their trust although it was also noted that there was confusion related to their role.
- There was a recognition about the importance of data - the difficulty of balancing the quantitative data with the softer anecdotal data, a problem regulators have to grapple with and have grappled with in the past. One trust had started developing its own data set for outcome metrics by specialities. There was also a recognition that there could be information overload!
The general conclusion of the report is that Francis has been taken seriously and welfare of patients is uppermost in people’s minds. Action has already been taken, for example, systematic peer reports, executives walking the floor and running events to elicit staff views. Hospital leaders still reported a system of regulation and management that was sometimes incoherent and overbearing, which will make future culture changes difficult to flourish in the future.
The Nuffield Trust research concludes that it remains to be seen whether the Francis report will result in improved care for patients in the future. What is clear is that this last year has involved countless reports/investigations and reconfiguration. The next year needs to allow the NHS to take time to learn the lessons and embed a new culture that allows effective and quality care to be given.
For further information or advice please contact Katrina McCrory on 0121 456 8451.
Winterbourne View: transforming care one year on
In December 2012, the DH published its final report and Concordat in response to the appalling treatment of vulnerable patients at Winterbourne View hospital. That report, Transforming Care, sets out a programme of action to seek to transform services for individuals with learning disabilities or autism who also have mental health conditions or challenging behaviour. The Government has now published a further report, Winterbourne View: transforming care one year on that assesses progress to date against the challenges and milestones set 12 months ago.
Our briefing on the latest report can be accessed here.
For further information or advice please contact Jane Williams on 0121 456 8421.
New offence of ill-treatment or wilful neglect
The Government has commenced its consultation in respect of implementing the recommendation of the National Advisory Group on the safety of patients in England (established to support Professor Berwick with his post Mid- Staffordshire review) to establish a new criminal offence of ill-treatment or wilful neglect.
In its final report, published in August 2013, the National Advisory Group focussed on the importance of achieving a careful balance between cultural changes (that support openness and transparency) and the need to assure accountability to the patient. It also accepted that there needs to be a system in place to deal with those cases where the act or omission is not accidental, but amounts to ill-treatment or wilful neglect.
The DH, in its consultation document, set out its proposals for how such an offence would work. Based substantially on the existing offences in the Mental Capacity Act 2005 and Mental Health Act 1983, the offence is designed to:
- Apply in all formal adult health and social care settings, in both the public and private sectors, but not to informal arrangements such as where family/friends provide care.
- Focus entirely on the conduct of the provider/practitioner, rather than giving consideration to the harm caused to the victim of the offence (a change to the recommendations of the National Advisory Group).
- Use a similar test to the Corporate Manslaughter and Corporate Homicide Act 2007 to convict an organisation, focusing on the way an organisation managed or organised its activities.
- Impose similar penalties for individuals convicted of this offence to those set out in section 44 Mental Capacity Act 2005, namely up to five-years imprisonment.
While the scope of the offence is very wide, the proposals identify that it should be a matter for the investigating and prosecuting authorities to use their experience and judgment to decide whether a particular allegation has any substance and merits investigation and/or prosecution.
There are also questions relating to the need to extend the scope of the offence to cover children, given the specific offences already available under the Children and Young Persons Act 1933.
The consultation runs until the end of March 2014. While it will take some time before we see the text of the new offence, the main provisions are clear and providers should actively engage with staff to ensure that they both understand the purpose behind it and the safeguards that will ensure that prosecutions are rare. Staff reading headlines may need some reassurance that the “wilful” element of the offence means that it will be used, rarely, to deal with the kind of intentional and reckless disregard for the welfare of others that was seen at Winterbourne View and Mid Staffordshire Hospitals.
For further information or advice please contact Duncan Astill on 01223 222477.
Regulatory: information governance
NHS database roll out delayed
The new care.data database, due to be up and running in April 2014, will not now happen until the autumn at the earliest.
Facing criticism from patient groups (who say we are all being left in the dark) and GPs, NHS England has decided to rethink its communication strategy to make clear the benefits of the scheme and to address concerns generated by fears that sensitive information could be lost or misused.
Some say there is no legal basis for sharing patient information in this way. It is a view we can understand, but do not necessarily share. If there are sound public health reasons and genuine patient care and safety improvements to be had then surely a way should be found and the public properly informed.
Everyone has the right to opt-out. NHS England has decided it is better to do as much as it can to make sure that people make an informed decision rather than face potential criticism that people simply agree in ignorance.
NHS England plans to involve a small number of GP practices to help test the quality of the data.
NHS England said: “to ensure that the concerns are met, NHS England will begin by collecting data from GP surgeries in the autumn […] to allow more time to build understanding of the benefits of using the information, what safeguards are in place, and how people can opt-out if they choose to”.
To date, information has been made available about what happens in hospitals but not what goes on in GP surgeries. While the information will be stripped of identifiable data, there are concerns about keeping information all in one place, with concerns of data breaches and privacy problems.
Interestingly, further proposals backed by NHS England are due out shortly that could give private firms the right to ask for access to data.
It has not yet been decided how the new “communication” campaign will go. But watch out for a high profile TV and radio advertising campaign.
More details can be found on NHS England’s website.
If you feel that colleagues in your organisation could benefit from information governance training please see our flyer or contact us for further information. We are also happy to provide information sharing training for those who deal with safeguarding children and adults and are required to handle and share information with other agencies.
Information Commissioner reports on GP visits
Areas of good practice as well as areas for improvement are clearly set out.
It notes that local groups of surgeries and CCGs had a role to play in pooling resources to provide information governance training to ensure consistent awareness.
This is something we have been working with our CCG clients on in respect of information governance and indeed other topics so do let us know if you would like us to deliver training for you, for more information on what we can offer, please see our information governance leaflet.
For further information or advice please contact Jill Mason on 0121 456 8367.
ACAS early conciliation scheme introduced
The Government’s attempt to increase the efficiency of the tribunal service has led to the introduction of a compulsory early conciliation scheme through ACAS. The scheme will be effective from 6 April 2014 and compulsory from 6 May 2014 (with transitional provisions operating between April and May). From 6 May, subject to limited exceptions, an employment tribunal claim cannot be commenced without first attempting early conciliation via ACAS.
The scheme’s framework has been introduced by the Enterprise and Regulatory Reform Act 2013. A four step procedure has been established:
- Step 1: the prospective claimant must send information to ACAS in the “prescribed manner”.
- Step 2: an early conciliation support officer will then make initial contact with the claimant and refer the case to a conciliator.
- Step 3: the conciliation officer must try to promote settlement within the “prescribed period” of one month (subject to a maximum two week extension).
- Step 4: if at any stage the conciliation officer concludes it is not possible to reach settlement or the time has expired, a certificate is issued. This can include a situation where ACAS is unable to make contact with the claimant or respondent after making “reasonable attempts” to do so. The claimant is unable to commence most claims (with limited exceptions) without the certificate.
So that claimants will not be penalised by taking time to conciliate, the rules on calculating the time limit for issuing tribunal claims (normally three months) will be changed in two ways. Firstly, the time limit clock will stop running during the conciliation period. Secondly, if the time limit (as extended by this new rule) would still expire less than a month after the end of the period, a claimant will have a full month from the date they receive the certificate from ACAS in which to lodge a claim. The combination of these two rules means that if claimants approach ACAS right at the end of the original limitation period, they can have up to two and a half months longer to bring a claim (ie, the maximum conciliation period of six weeks, plus a further month after it ends).
Time will tell how effective the scheme will be. The extension of time provisions may well give rise to satellite litigation on whether time limits have been met.
For further information or advice please contact Rebecca Harker-Smith on 0121 456 8439.
Government goes out to consultation on draft Regulations to permit mitochondrial manipulation
Regular readers who have been following developments in this field will recall that, last summer, the Government
gave the go-ahead for legislation to be amended to permit the implantation in patients of gametes or embryos that have been genetically altered to prevent the transmission of mitochondrial disease. The draft Regulations for this purpose, expected at Christmas, have now been published as part of a Government consultation, with the Government simultaneously asking the Human Fertilisation and Embryology Authority (HFEA) to reconvene the expert panel, to provide an update on the safety and efficacy of the proposed techniques that remain controversial.
Two techniques have been proposed:
- Maternal spindle transfer involves the transfer of the nuclear material (the “maternal spindle”) from the intended mother’s egg into a donor egg from which the nucleus has been removed; the resultant egg, with the mother’s nucleus but without her faulty mitochondria, is then fertilised by the father’s sperm and implanted in the mother.
- Pro-nuclear transfer involves the use of a donor embryo, rather than a donor egg, with the nuclear material (pro-nuclei) from the parental embryo being removed and transferred into the donor embryo from which the nuclear material has been removed. The resultant embryo, free of faulty mitochondria, is then implanted in the mother. Mitochondrial DNA contains genes vital to mitochondrial function, whereas personal characteristics and traits are derived from the nuclear material.
The draft Regulations set out which eggs and embryos will be permitted for use in mitochondrial donation treatment, describe the process the eggs or embryos must have undergone and the circumstances in which the process must have been applied, make transitional provision so that treatment licences cannot be used to provide mitochondrial donation treatment until the HFEA has approved clinics to do so and contain provisions relating to information sharing, parental orders and donor status in cases involving mitochondrial donation.
The consultation closes on 21 May 2014.
For further information or advice please contact Jane Williams on 0121 456 8421.
Patient matters: complaints
New complaints review announced
Back in 2011, the Health Select Committee’s inquiry into complaints and litigation recommended that the Government undertake a review of the NHS complaints system.
Since then, we have seen the implementation of the Health and Social Care Act 2012, the Clwyd-Hart Review of the NHS Hospitals Complaints System and further research undertaken by the Parliamentary and Health Services Ombudsman.
We have also seen the publication of the Francis Report and the formal response of the Government to that report, which highlight the related issue of the way complaints and concerns raised by staff within health and care organisations are dealt with.
The review includes consideration of:
- The extent to which findings of the recent inquiries have been incorporated into the complaints process
- The support available for patients, the public and staff who wish to make complaints or raise concerns
- The consequences of complaints for care providers and of raising concerns for the employment prospects of staff
- Openness and accessibility of information
- The role of commissioners, system regulators and professional regulators with regard to complaints and concerns
- Plans for future improvements
The deadline for submission of written evidence was 7 March. We will of course update you when the inquiry is complete and the findings are published.
We are pleased to be able to offer a complaints law clinic to provide you with bespoke legal advice on tricky complaints issues or more general training. We advice and would be more than happy to discuss your individual requirements with you.
For further information or advice, please contact Charlotte Mawdesley on 0121 456 8402.
Ombudsman reports on investigation into the handling of complaints at Morecombe Bay The Parliamentary and Health Service Ombudsman (the Ombudsman) has conducted an investigation into several complaints made against University Hospitals of Morecambe Bay Trust (the trust) following the death of a nine- day-old baby boy in 2008.
The investigation focused on the quality of the internal investigations carried out by the trust, inappropriate email exchanges between staff and alleged collusion between midwives regarding the fluctuations in the baby’s temperature, in preparation for the inquest into the baby’s death.
The investigation highlighted a lack of openness and transparency in the way that hospitals deal with complaints. The Ombudsman referred to its 2013 report Designing Good Together that discussed the need to overcome the
defensive response of hospitals to complaints: “cultural change is needed from the ward to the board.”
Looking at the root cause of the problem that leads to a complaint and the interactions between people involved are critical tools in helping to learn from complaints. The science of “human factors” seeks to understand the effects of teamwork, tasks, equipment, workspace, culture and organisation on human behaviour. The Ombudsman will expect these tools to be used in future independent investigations.
The Ombudsman has made a series of recommendations for all hospital trust boards, which include the following:
- Organisations should ensure a focus on openness and honesty that rewards staff who respond well to complaints and acknowledge mistakes
- Organisations should commission an independent investigation if a complaint relates to a serious untoward incident or raises issues of serious professional misconduct
- Organisations should use the science of human factors and root cause analysis to get to the bottom of a service failure
The full investigation report can be accessed here.
For further information or advice, in relation to the handling of complaints, please contact Charlotte Mawdesley on 0121 456 8402.
Patient matters: medical innovation
Consultation: proposed new legislation to encourage medical innovation
Case law on clinical negligence currently gives doctors a good basis for innovating where there is support for their decision from a responsible body of medical opinion. However, where a doctor is not confident that there would be such support if the matter came to court, the doctor may feel that there is pressure not to innovate.
If the bill becomes law, doctors will be able to innovate even where there is no body of opinion to support the innovation or where it is not clear whether a body of opinion exists.
There would still be certain safeguards in place, for example doctors should have sound reasons for their innovation and there would be a statutory best practice checklist that would act as a safeguard against irresponsible innovation.
The consultation is inviting the views of doctors, patients and legal professionals on whether the Bill would help to encourage responsible medical innovation and prevent irresponsible innovation.
The consultation closes on 25 April 2014.
For further information or advice, please contact Charlotte Mawdesley on 0121 456 8402.
Patient matters: continuing healthcare
Amendments to legislation relating to NHS continuing healthcare
Readers may have read about the planned amendments to the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the key legislation governing the functions and commissioning responsibilities of NHS England and CCGs) in our December 2013 Health Legal Update.
This is a reminder that the majority of the amendments come into force on 1 April 2014, including:
- Taking account of new duties for NHS England and CCGs in relation to NHS continuing healthcare (for example, in respect of recommendations of NHS trusts, where a patient is discharged from hospital, or the constitution of independent review panels).
- Creating new duties for NHS England and CCGs in relation to the provision of personal health budgets for NHS continuing healthcare or continuing care for children.
Patient matters: DoLS
Joint guidance on deprivation of liberty applications to the Court of Protection issued
The President of the Court of Protection and Ofsted, issued guidance on 12 February 2014 in relation to the correct approach to be taken to deprivation of liberty (DoL) under the Mental Capacity Act 2005 (MCA 2005).
The guidance reminds us that there are two ways that a DoL can be authorised under the MCA 2005:
- An urgent or standard authorisation can only be given by a supervisory body on the request of a managing authority of a hospital or care home in respect of a person who has reached 18. This specifically excludes an establishment that is a children's home.
- By order of the Court of Protection (CoP): orders of the CoP are made in relation to a person who is over the age of 16 and lacks capacity. The order may authorise (not require) the detention of that person. Any such order is a decision on behalf of the person who lacks capacity: it is not like an injunction aimed at requiring third parties to take steps to facilitate the detention of that young person.
In summary the guidance provides that:
- No application should be made to the CoP in relation to any child under the age of 16 years.
- Standard and urgent authorisations (under schedule A1 MCA 2005) have no application to children's homes, as they only apply to hospitals and care homes and to those over the age of 18 years.
- Orders of the CoP authorising a DoL, by non-secure children’s homes or residential special schools, should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the Regulations that apply to them.
- The Mental Health Act 1983 guidance and other guidance may be relevant but do not override the Regulations and guidance directed towards children's homes and schools.
Patient matters: assisted suicide
Sentencing guidelines for the offence of encouraging or assisting suicide
Readers will know that (at the time of writing) we await the judgment of the Supreme Court on the "right to die" litigation. One of the arguments relates to cases where a patient with capacity, who wishes to die, would need
assistance from healthcare professionals to travel abroad to end their lives. The court has been asked to order the Crown Prosecution Service (CPS) to provide guidelines on when healthcare professionals would and would not be prosecuted if they became involved in a suicide in this manner.
If the CPS is required to publish such guidelines, it is still doubtful that many clinicians would wish to assist a planned suicide. Aside from the ethical issues involved, the consequences of acting outside of the guidelines could be appalling: namely a lengthy sentence of imprisonment (that would doubtless also result in being erased from the relevant professional register).
In 2010, the Director of Public Prosecutions (DPP) published guidance on when prosecutions in cases of alleged assisted suicide would be brought. Most cases involve terminally-ill patients whose suicides are assisted by loved ones for compassionate reasons. As a result prosecutions for this offence are very rare.
However, the case of R v Kevin James Howe was very different. The appellant was friends with the victim, who was a vulnerable 30-year-old with mental health problems and a history of threatening suicide. Knowing that the victim was suicidal, the appellant bought him petrol and a cigarette lighter, and then left the appellant alone, knowing his intention was to use these items to kill himself. The victim set himself alight and, while he survived, he was horrifically injured.
The maximum sentence is one of 14 years' imprisonment. The appellant in this case, who was 19, was originally sentenced to 12 years imprisonment. The Court of Appeal reduced his sentence to 10 years' imprisonment. While it was acknowledged that every case will turn on its specific facts, the court nonetheless set out general guidance on the approach that sentencing judges should take.
Factors to be taken into account when considering the length of any sentence will include:
- Whether death or serious harm results
- Whether any resulting serious harm will be long-lasting
- Whether the offender encouraged the victim to take his or her own life
- The nature and extent of any encouragement
- Any suggestion that the offender was motivated by personal gain would aggravate the offence and lead to a longer sentence
- The breach of any duty of care owed by the offender to the victim (such as in a clinician/patient relationship) would be a significant factor
On the other hand, the following factors would tend to reduce the gravity of the offence:
- If the victim had a settled intent to die, and had solicited assistance (rather than being offered it unrequested), this would reduce the gravity of the offence
- If the offender was motivated by compassion, this would mitigate against a long sentence We all await the outcome of the right to die Supreme Court case with interest.
Obviously this present case is very different to the circumstances of a clinician being asked to assist a terminally-ill patient to end their own life but, even if the CPS is required to set out guidance on circumstances where a clinician
may assist a suicide without facing prosecution, any request for a clinician to become involved will have to be treated with the greatest caution. Not only the individual clinician but also their managers and employers could be implicated in any case where such guidelines may not have been properly followed.
For further information or advice please contact Philip Grey on 01223 222463.
Consensus statement on information sharing and suicide prevention
The suicide prevention strategy for England places emphasis on families affected by suicide. For these families, when asked about their experiences with services, issues of confidentiality have been a recurring theme. They raised concerns that practitioners are reluctant to take information from them or provide information about a person’s suicide risk.
The Information Sharing and Suicide Prevention Consensus Statement has been prepared to help address these concerns.
Where the common law duty of confidentiality applies, practitioners have a duty to respect a person’s refusal to consent to disclosure if the person has capacity and they do not present a risk to anyone else. There will however be circumstances where practitioners will need to consider informing friends and family about aspects of risk and may need to create a channel of communication for the giving and receiving of information that will help keep that person safe.
Practitioners should routinely confirm whether and how a person wishes their family and friends to be involved in their care generally and when looking at information sharing and risk in particular. This should be recorded in the notes.
If this has not been done in advance, it is necessary to establish whether the person at risk has the capacity to consent to information about their suicide risk being shared. If the purpose of the disclosure is to prevent a person who lacks capacity from serious harm, there is an expectation that practitioners will disclose relevant confidential information if it is considered to be in the person’s best interests to do so.
The public interest also needs to be considered, including the far reaching impact that suicide can have on others. It is a matter for professional judgment in each case to decide whether the benefits to an individual or society in disclosing information without consent outweigh the interest in keeping it confidential.
Even where a person with capacity wishes particular information not to be shared, this does not prevent practitioners from listening to the views of family members or providing general information such as how to access services in a crisis. Good practice will also include providing families with non-person specific information and other support.
For further information or advice, please contact Charlotte Mawdesley on 0121 456 8402.
Patient matters: Court of Protection and best interests
Official Solicitor waiting list cleared
We reported in our May 2013 Health Legal Update that the Official Solicitor was experiencing resourcing issues that led to the need for a waiting list in respect of Court of Protection healthcare and welfare applications.
If the Official Solicitor’s acceptance criteria are met then he anticipates that a case manager will be allocated within two to four weeks, but more urgent matters can be considered too.
Extent of the Court of Protection’s best interests powers explored
The case of A CCG & another v MN and others has been described as the first fully contested decision to be reported on with regard to the Court of Protection’s powers in the context of best interests decision making.
The case related to declarations as to where a man should live. Part of the application related to contact with his parents and other family members. The CCG involved was not prepared to fund contact between the man and his family at his parent’s home. In light of that, they submitted that this was not an option for the court to consider when making best interests decisions.
Mrs Justice King stated that “the court may only choose between the available options in the same way as a person would if of full capacity”.
She did accept that there will be cases where courts wish to explore the possibility of funding being made available and that such discussions should be encouraged but that is a far cry from the court embarking on a best interests “trial” with a view to determining whether an option said not to be available is nevertheless in the patient’s best interests.
She also highlighted that if decisions are reached in a manner that is irrational or unreasonable then that is a public law issue that would make the decision susceptible to judicial review. In those circumstances, she suggested early identification of issues and that the case should be listed before a judge who can hear both Court of Protection and administrative law matters.
Finally, she indicated that if, in a rare case, it was felt that the public body was acting in a way that was incompatible with the Human Rights Act then, exceptionally, an application could be made for an assessment of this to be made by the court.
This is a helpful judgment from our commissioning client’s perspectives as it confirms the fact that those without capacity cannot “jump the queue” to obtain care not available to others.
For further information or advice please contact Jill Mason on 0121 456 8367.
Principles for non-disclosure in Court of Protection proceedings
The decision in the case of RC v CC and X Local Authority is one of considerable importance. It clarifies the principles in relation to withholding disclosure in Court of Protection proceedings relating to incapacitated adults.
In cases relating to children, the departure from the principle of open justice and from certain aspects of ordinary civil procedure by refusing the disclosure of certain materials to other parties is already well established. This decision establishes that the same approach is applicable in relation to incapacitated adults.
Non-disclosure remains very much the exception rather than the rule and the power to refuse disclosure should only be used where it is strictly necessary in the best interests of the person lacking capacity.
It is first necessary to consider whether disclosure would involve a real possibility of significant harm. If it would, then the court must consider whether the overall interests of the person would best be served from non-disclosure, taking into account the magnitude of the risk and the gravity of the harm if it does occur. If the person’s best interests point towards non-disclosure, the final step is for the court to weigh that against the interests of the other party in having an opportunity to see and respond to the material, taking into account the issues in the case.
In certain cases, disclosure could be ordered subject to certain safeguards, such as disclosure to legal representatives or disclosure of certain redacted parts of the material only. In some situations, it may even be appropriate to direct that there is disclosure of a document summarising the relevant contents of the sensitive material.
For further information or advice please contact Charlotte Mawdesley on 0121 456 8402.
Court of Protection revokes lasting power of attorney
In the recent case of The Public Guardian v JM, the Public Guardian made an application for the revocation of a lasting power of attorney (LPA) in relation to property and affairs of DP, an elderly patient with dementia, that was made in favour of a man (JM) that she had known for a number of years.
Unusually, the Public Guardian had received two independent complaints about the conduct of JM. The Public Guardian investigated and made the application after discovering several inappropriate transactions by JM in the management of DP's affairs. These included providing himself with a salary, making substantial gifts to himself, (without court authority) and failing to keep proper accounts and financial records, in breach of his fiduciary duty to DP.
The court agreed to revoke DP's LPA. It held that JM had not acted in DP's best interests, had not sought the necessary court permission for certain payments nor met his fiduciary duty. The court emphasised that the Public Guardian's role is to investigate “on the balance of probabilities” whether or not an attorney has met their duty.
The court referred to correspondence from an acute hospital trust to which DP had been admitted. The correspondence related to a safeguarding alert following JM's visit on a ward where he had insisted DP be discharged against medical advice. A safeguarding alert had been raised and the Public Guardian contacted. The Public Guardian felt unable to intervene on the basis it was overseeing DP's financial and property affairs, as opposed to her personal welfare. However, the Public Guardian did rely on the correspondence in its
application to the court. The court took this into account in assessing DP's capacity.
This case serves as a useful reminder that where you are concerned about the welfare of a person and you are unsure of the role of a person purporting to act with some form of authority in decision making about an incapacitated person, you should check the source of that authority. In addition, where there is a reasonably held belief that an attorney is not acting in the best interests of the relevant person, this concern should be escalated within your organisation and cross-agency referrals considered.
The Court of Appeal has recently revisited the vexed question of the determination of ordinary residence in relation to a severely disabled young adult who lacked capacity R (on the application of Cornwall Council) v Secretary of State for Health and, in so doing, considered the application of the test set out in R v Waltham Forest London Borough Council, ex parte Vale (unreported).
P had been born with multiple disabilities and was cared for by his parents in Wiltshire until they moved to Cornwall, when he was placed with long-term foster carers in South Gloucestershire under section 20 Children Act 1989. His parents were closely involved in decisions affecting him and visited him several times a year. P occasionally visited his parents in Cornwall.
The Secretary of State was asked to determine P's ordinary residence in order to establish which local authority had responsibility for P, under section 21 National Assistance Act 1948, when he turned 18. He applied the test from Vale (ie, where an adult so lacked capacity that he was totally dependent on his parents, his place of ordinary residence was deemed to be coterminous with theirs) and accordingly determined that P was ordinarily resident in Cornwall. Cornwall sought judicial review of that decision. When it was upheld, Cornwall appealed.
The Court of Appeal held that where the vulnerable adult had been living in only one place for many years that would almost inevitably compel the conclusion that it was his ordinary place of residence. It was not legitimate to avoid that common sense conclusion by the application of an artificial rule (ie, Vale) that gave no weight to the fact of residence at all. Application of the rule in Vale might produce the right answer where the parents were actually caring for their child themselves but the position was undoubtedly more complicated when they had delegated care of the incapacitous child to others.
In the context of severely incapacitated adults, there was much to be said for adopting a test of ordinary residence similar to the test of habitual residence adopted for dependent children, namely the place where the individual is integrated into a social and family environment. The place of ordinary residence might sometimes be with the parents even though he might spend more time with carers. However, he would have to have a pattern of regular living with the parents before it would be possible to describe that as his own place of ordinary residence.
Applying that test, the place where P had the closest social and family environment was South Gloucestershire: that was where he was integrated socially and emotionally with his foster parents and that was where he frequently saw his own parents. The Secretary of State had misdirected himself and his decision could not stand. There had only been one conclusion properly open to him, namely that P's place of ordinary residence was South Gloucestershire.
A version of this article first appeared on our Health Commissioning Portal blog.
Court of Protection backs a patient's refusal to undergo amputation
In the recent case of Heart of England NHS Foundation Trust v JB, the acute trust made an urgent application to the court in relation to JB, a 62-year-old patient, whose infected ulcer had resulted in her foot becoming gangrenous, but she refused to undergo amputation. Doctors were concerned, that if she did not agree to her leg being amputated, she might die.
JB had a number of mental and physical disabilities. She was diagnosed with paranoid schizophrenia in her 20s and had been detained under the Mental Health Act 1983, most recently in 2005. She suffered from hypertension, poorly controlled insulin-dependent type ll diabetics, diabetic retinopathy and anaemia. She was also a heavy smoker, which exacerbated her peripheral vascular disease.
A number of opinions were expressed in relation to her capacity, some doctors considering that she lacked capacity and others that she was simply making what seemed an unwise decision. Because of the lack of clarity in relation to her capacity, the trust made an application to the Court of Protection.
The court's judgment outlined some very useful reminders to those involved in decision making about those who may lack capacity:
- When assessing capacity to consent to/refuse treatment, what is required is a broad, general understanding of the kind that is expected from the population at large. JB was not required to understand every last piece of information about her situation.
- Common strategies for dealing with unpalatable dilemmas, for example indecision, avoidance or vacillation, are not to be confused with incapacity. It should not be that more is asked of people whose capacity is questioned than of those whose capacity is not doubted.
- It was for the trust to displace the presumption that JB had capacity, on a balance of probabilities. There is a danger, in difficult cases, that a patient can be regarded by clinicians as capable of making a decision that follows medical advice but incapable of making one that does not.
The court further made the comment that all doctors and many non-medical professionals (for example social workers and solicitors) have to assess capacity at one time or another. Given JB's longstanding mental illness it was entirely appropriate that the core assessment of her capacity came from the psychiatrists, but other disciplines also have an important contribution to make.
The court, in refusing the application, emphasised that the freedom to choose for oneself whether or not to consent to treatment is one of the most important rights guaranteed by law. Anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision.
Patient matters: Mental Capacity Act
The DH’s annual report serves as a reminder of the circumstances in which Independent Mental Capacity Advocates (IMCAs) should be instructed
IMCAs were created by the Mental Capacity Act. Their purpose is to assist, empower and safeguard people who
lack capacity when important decisions are being made about them, in their best interests.
When a person who lacks capacity has no friends or family to consult, an IMCA must be instructed when the care team are considering:
- Decisions relating to serious medical treatment
- Decisions regarding a move to or change of long-term accommodation
The sixth annual report of the DH refers to a steady increase in the use of IMCAs (the number of referrals has doubled in the last six years) but with vast regional differences. There are clearly concerns that there may be cases where IMCAs should be instructed but are not.
The report contains a series of recommendations, including a request that commissioners prepare an audit of the referrals made to the IMCA service.
For further information or advice, please contact Laura Jolley on 01223 222448.
Court of Appeal upholds decision that capacity to consent to sexual relations is a general rather than specific assessment
In IM v LM, AB & Liverpool City Council, the Court of Appeal upheld a decision that capacity to consent to sexual
relations should be assessed on a general rather than issue specific basis.
In this case LM, (who was aged 41 and had three children), had a history of alcohol and drug abuse as well as convictions for prostitution related offences. Following some surgery she suffered a hypoxic brain injury. She was residing in a secure unit where she was undergoing extensive rehabilitation. Following inappropriate behaviour by her partner, AB, restrictions were placed on her contact with him. The principal issue in the proceedings was contact arrangements between LM and AB. It was considered likely that unsupervised contact between them would lead to sexual relations.
A psychiatrist had assessed that LM lacked capacity to consent to sexual relations because, although she had a basic understanding of the sexual act, she could not weigh up the foreseeable risks of becoming pregnant.
At first instance the judge held that she did have capacity to consent to sexual relations and that while for most decision making the test for capacity is decision specific (as set out in the Mental Capacity Act) the assessment of capacity in respect of consent to sexual relations requires a more general evaluation of capacity. Although she was not able to fully appreciate how a pregnancy would affect her, she did understand the rudiments of sexual contact and that was sufficient to pass the capacity test.
This approach was upheld by the Court of Appeal.
This case clearly shows that the courts are reluctant to curtail the rights of individuals to engage in sexual relations. However, we need to remember that each case will turn on its own facts and, in this particular case, the court was dealing with a middle aged woman who had three children already and was in a relationship.
If they were faced with a teenager who was considered to be vulnerable and at risk, we suspect the decision would be different.
For further information or advice please contact Jacqueline Haines on 0121 456 8453.
Court of Appeal issues guidance on transfer of patients from medium to high security hospitals
The Court of Appeal decided in L v West London Mental Health NHS Trust, that when a clinical decision is made to
refer a patient from a medium to a high security hospital, procedural fairness requires the patient or his/her representative to be provided with the “gist” of the referral and to be able to make written submissions to the panel considering the transfer.
L was transferred from a medium secure facility, Stockton Hall, to Broadmoor Hospital. The process followed was that L’s responsible clinician at Stockton Hall referred L to Broadmoor by letter, explaining the reasons why he was considered to pose a high risk to others. In accordance with Broadmoor’s operational policy and admissions guidelines, an assessment of the referral was made by a Broadmoor psychiatrist that included an interview with L. A report was made by the assessing doctor and this, together with the referral letter and a number of other reports that had been provided to an earlier tribunal hearing, were considered by the admissions panel at Broadmoor who agreed to admit L. It was contended on behalf of L that this process failed to comply with the requirements of procedural fairness because it gave L no real opportunity to challenge the decision to transfer.
On reaching its decision, the Court of Appeal noted that the Mental Health Act Code of Practice requires that a patient should be involved in the process leading to any decision to transfer them to another hospital (paragraph 30.17) and it recognises that transfers are potentially an interference with the patient’s Article 8 rights (paragraph 30.15). However, the code does not contain any formal requirements for the procedure to be followed in the decision making. The court therefore decided that, to ensure fairness, unless the proposed transfer is urgent or there is some clinical or other reason for precluding notification, the “gist” of the referral letter and the assessment report should be provided to the patient and/or his representative. The communication containing the “gist” should inform the patient and/or his representative that, if they disagree with the factual or clinical triggers, they can make written submissions that will be considered by the admissions panel. The court advised that arrangements within high secure or medium secure settings should be “recalibrated” to take account of the judgment and to give better practical effect to paragraphs 30.15 and 30.17 of the code.
For further information or advice please contact Sarah Garrood on 01603 693291.
CQC publishes “monitoring the Mental Health Act in 2012/2013”
In January, the CQC published its fourth annual report on its statutory monitoring of the use of the Mental Health Act (MHA) in 2012 /13. It runs to six chapters and 94 pages. It notes over 50,000 uses of the MHA to detain patients for assessment or treatment, which is the highest number ever recorded.
The summary is set out at pages 2 -5 and the conclusions are set out at pages 79 and 80. The chapters cover:
- The use of the MHA in 2012/13
- Whether the service is responsive to people’s needs
- Ways that people are subject to restrictions
- Consent to treatment
- Access to care during a crisis
The CQC notes improvements in helping patients draw up advance statements but highlights concern about blanket rules with no basis in law or national guidance and concern about restraint.
The CQC expect to see change in the following areas:
- Services and hospitals ensuring their values, policies and practices promote the principle of least restriction and that all staff are supported in using person centred approaches, promoting dignity and respecting the autonomy of people.
- Services and hospitals promoting cultures that support therapeutic practices and reduction to a minimum of the use of restraint and seclusion. It expects detaining authorities to audit and review their practices to minimise the use of restraint and seclusion.
- NHS and local authority (LA) commissioners must act on the findings in this report and CCGs need to ensure that section 140 arrangements are clear and provided to LAs.
- Commissioners and providers must be proactive in initiating and embedding learning from the deaths of people subject to the MHA.
The CQC has identified five areas of action that include:
- Considering the way that providers address complaints, specifically looking at how local services respond to MHA complaints from detained patients to the CQC and what mechanisms are in place to make sure they are responded to and reported. Most importantly it will check what system-wide learning takes place as a result of themes from its MHA complaints data.
- Working with partners to look at how the information they hold on deaths in detention can be included in all future annual reports.
- Working with key partners in developing the Mental Health crisis care concordat. For further information or advice please contact Jill Mason on 0121 456 8367.
DH sets out priorities for change in dealing with mental health problems
On 20 January 2014, the DH published Closing the Gap: Priorities for essential change in mental health.
This sets out 25 priorities for change in how adults and children with mental health problems are supported and cared for.
From a legal perspective, the ninth one is probably of most interest: “we will radically reduce the use of all restrictive practices and take action to end the use of high risk restraint, including face down restraint and holding people on the floor”.
The Royal College of Nursing and other organisations have been asked to develop new guidance on different models for reducing the use of restraint. All commissioners and providers are expected to adopt this guidance.
The paper also notes that, in order to ensure that there is the right legal framework around mental health services, the DH is reviewing how the Mental Health Act and Mental Capacity Act have been implemented and how their provisions and requirements are being followed in practice.
For further information or advice please contact Jill Mason on 0121 456 8367.
Number of children on adult psychiatric wards increases
As a result of a freedom of information request by the BBC and Community Care, it has emerged that an increasing number of young people with mental health problems in England are being treated on adult psychiatric wards. Data was returned by 51 out of the 58 NHS mental health trusts in England that showed:
- 350 under 18s have been admitted so far to adult mental health wards in 2013-14, compared with 242 two years earlier
- 12 under 16s have been admitted so far in 2013-14, compared with just three in 2011-12
A concern has also been raised that many children are having to travel hundreds of miles across the country to receive hospital treatment:
- 10 out of 18 trusts that provided out-of-area placement data had sent children more than 150 miles away for care
New agreement between police and the NHS seeks to improve mental health crisis care The news that there has been an increase in the number of children being treated on psychiatric wards coincided with the crisis care concordant being announced by the Government on 18 February 2014. This aims to improve emergency support for people in mental health crisis across the country and is a new agreement between police, mental health trusts and paramedics.
It recognises that it is unacceptable for young people and children to end up in a police cell because the right mental health service is not available to them. It challenges local services to make sure beds are always available for people who need them urgently and also that police custody should never be used just because mental health services are not available.
The concordant has so far been signed by more than 20 national organisations. The DH will work in partnership with the Home Office and Mind to promote and support local responses. They expect each locality to have agreed a mental health crisis declaration by December 2014.
Inquiry into child and adolescent mental health
In the light of concerns about the extent that children and adolescents are affected by mental health problems and the difficulties they experience in gaining access to appropriate treatment, the Health Select Committee has
decided to undertake an inquiry into children and adolescent mental health and Children and Adolescent Mental Health Services (CAMHS).
Specifically, the inquiry will consider:
- The current state of CAMHS, including service provision, access and availability, funding and commissioning, and quality.
- Trends in child and adolescent mental health, including the impact of bullying and the digital culture.
- Data and information on child and adolescent mental health and CAMHS.
- Preventative action and public mental health, including multi-agency working.
- Concerns relating to specific areas of CAMHS provision, including perinatal and infant mental health, urgent and out-of-hours care, the use of section 136 Mental Health Act 1983 for detention for under 18s, suicide prevention strategies and the transition to adult mental health services.
We await the outcome of the inquiry with interest and will update you in due course.
For further information or advice, please contact Charlotte Mawdesley on 0121 456 8402.
Patient matters: inquests
Chief Coroner issues guidance to coroners on the conduct of pre-inquest hearings
Health providers are likely to find themselves involved in an increasing number of pre-inquest hearings that are encouraged by the Chief Coroner to promote the fair and efficient management of the inquest process.
The Chief Coroner, while sitting as a judge on an application to the High Court in the case of Ernest Andrew Brown v HM Coroner for Norfolk and the Chief Constable of Norfolk to quash an inquest and hold a fresh
investigation, has taken the opportunity to set out guidance for coroners in conducting pre-inquest hearings. He has identified some “pointers” for coroners in the hope that repeated good practice will avoid, or at least reduce, the number of complaints that may be levelled at coroners in the future, particularly in relation to pre-inquest hearings.
To read more about this guidance, please read our briefing, that can be accessed here.
Serious case review findings into the death of Jamie Knightley provides a timely reminder for practitioners
Readers may be aware of the tragic case of Jamie Knightley, whose parents were convicted in February of causing
or allowing his death. Jamie died, aged eight weeks, after he had sustained significant injuries.
A serious case review (SCR) into his death from 2012 has recently received widespread coverage in the media (it was originally published under the pseudonym Kieran Lloyd). A focus of the review was the inter-agency communication that took place under the child death review procedures after he was pronounced dead in an accident and emergency ward setting.
While the conclusion of the report was that Jamie's death could not have been prevented by the professionals involved in his care, there were various themes considered within the SCR that are worth mention for ongoing practice. These included:
- Ensuring that an expectant mother is asked whether she is at risk of or suffering domestic violence, during her antenatal appointments with midwives. Where a family appears to be potentially at risk, relevant information should be communicated to the professionals who would take over care post birth.
- Ensuring that consultant paediatricians, acting as responsible paediatricians under the child death review and response arrangements (CDRA) protocol, were sufficiently trained and familiar with the protocol.
- Considering the complexity of a case before assigning it to a student health visitor.
Patient matters: female genital mutilation
NHS involvement in helping to end the practice of female genital mutilation (FGM) February 6 marked the International Day of Zero Tolerance to FGM. In the UK, Government ministers met with charities and stakeholders to sign a declaration on an ongoing commitment to end FGM. Part of this involves working with the director of public prosecutions to secure more convictions for those instigating and carrying out FGM. The crime prevention minister, Norman Baker, has said that political and cultural sensitivities must not get in the way of prosecutions.
As part of this initiative, from April this year, NHS acute hospitals will be required to record if there is a family history of FGM and if a FGM procedure has been carried out on patients that are seen. From September this year, this information must be reported centrally on a monthly basis. Although the Government report does not specifically say so, the requirements must be on the basis of anonymised data. This will allow there to be identification of the locations within the UK where there are particular problems and most work needed.
The Government has reported that this is the first stage in a programme for the NHS to respond to the health needs of girls and women who have undergone this mutilation and abuse. Work within the NHS should also be seen within the context of a growing movement within Africa to end FGM that links in with community work within the UK. An FGM community engagement initiative has been launched to help with awareness of FGM where community groups can apply for funding.
We will report upon any further developments relating to the NHS in this area but with the combined efforts set out above, let us hope that this barbaric practice will hold no place in the UK or the wider world in the future.
For further information or advice please contact Katrina McCrory on 0121 456 8451.
Legal process: judicial review
Government responds to ‘judicial review: proposals for further reform’ consultation
On 5 February 2014, the Ministry of Justice published the Government’s response to the latest consultation on the proposed reforms to judicial review (JR), together with the Criminal Justice and Courts Bill 2013/14 that will implement many parts of the response.
Readers will recall that an earlier consultation was published in December 2012, which led to the Government announcement that several measures would be introduced to reduce the time and cost of JR proceedings and to discourage unmeritorious claims, including:
- A reduction in the time limits for bringing a claim from three months to six weeks in planning cases and 30 days in procurement cases
- The introduction of a new fee for an oral renewal hearing (£215), where permission on the papers has been refused
- The removal of the right to an oral renewal hearing where the case is assessed as wholly without merit These measures were implemented by means of amendments to the Civil Procedure Rules last summer.
This most recent consultation was published in September 2013 and sought to address the use of JRs to delay infrastructure projects designed to promote economic growth, the inappropriate use of JRs as a campaigning tactic and the misuse of the time and costs implications of JRs to seek to hinder legitimate action by the executive.
A large part of the 325 responses to the consultation criticised the proposals as a serious attack on the rule of law. Some of the more controversial proposals (such as restricting the test that governs who may bring an application for JR to only those with a direct interest, limiting the availability of “legal aid” and transferring planning cases to the Upper Tribunal) were dropped but the remainder are likely to be implemented by the Bill, including:
- Wider availability of “leapfrogging” appeals, which move directly from the High Court to the Supreme Court, where there is an issue of national importance at stake and from the Upper Tribunal, Employment Appeal Tribunal and Special Immigration Appeals Tribunal.
- Consideration given to notification of the relevant regulatory body where wasted costs orders are made against legal representatives who have increased the costs of litigation by their improper, unreasonable or negligent behaviour.
- Refusal to grant permission or award a final remedy if the court considers it highly likely that the defendant’s conduct would not have affected the outcome for the applicant in any event.
- Refusal to grant permission unless the applicant provides information about the financing of their claim, that will be taken into account when the court considers liability for costs.
- A presumption that interveners will pay their own costs and any costs of another party incurred because of the intervention unless there are exceptional circumstances.
- The removal of the ability of the High Court and Court of Appeal to issue protective costs orders limiting a party’s costs exposure, other than in the case of public interest proceedings or environmental cases.
- Introduction of a permission requirement for challenging the validity of decision in relation to all planning and environmental matters.
Pre-action disclosure in judicial review proceedings
Generally, the usual rules regarding disclosure do not apply to judicial review (JR) proceedings. This is subject, of course, to the general duty of candour to disclose all documents necessary for just resolution.
The recent case of British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the Home Department (SoS) (unreported) has provided helpful guidance on the court’s willingness to order pre-action disclosure in these types of proceedings. The High Court decided that, although the Civil Procedure Rules (CPR) do not expressly provide for disclosure in JR proceedings, the court has the power to order pre-action disclosure if certain conditions (under CPR r. 31.16) are met. However, this is likely to be extremely rare.
BUAV are an anti-vivisection campaign group who applied for pre-action disclosure in contemplation of JR proceedings against the SoS. BUAV claimed that pre-action disclosure was necessary to confirm whether there was an arguable case that some licences had been granted unlawfully. The SoS argued that the court had no power to order pre-action disclosure under the CPR or its inherent jurisdiction.
The court concluded that, although the CPR was silent on whether pre-action disclosure applied to JR proceedings, it was within the court’s power to order such disclosure.
Despite these findings, the court did not consider that pre-action disclosure would normally be appropriate in the context of a JR. The court noted the danger that it could be used inappropriately to avoid freedom of information requests or normal JR time constraints. However, it clarified that there might be certain cases where there is a “specific and central factual issues that may require disclosure on a more flexible basis”.
Therefore, although the duty had not been ordered by a court before, there was nothing to say that it should not be in the future. There was nothing in this particular case that warranted departure from normal JR rules, or indeed, normal disclosure rules.
Though unusual, pre-action disclosure should be considered as a valid option, particularly to avoid wasting costs and time in the event that litigation is unjustified upon sight of the documents.
For further information or advice about judicial review proceedings please contact Jill Weston on 0121 456 8450 or
Jane Williams on 0121 456 8421.