Law and Ethics Update – Winter 2022
The information in this update, as across the whole of the AdsFoundation website, is for education and training purposes only. If needed legal advice on a specific case should be sought from a suitably experienced and qualified lawyer. There is information on how to identify a suitable lawyer at the bottom of our resources for Patients and Carers page or our free legal advice clinic (see below) may be able to assist you.
If you would like to go on to a mailing list to receive this quarterly update, please contact the AdsFoundation using the Contact Us tab above.
The 2023 Adam Bojelian Foundation Memorial Talk ‘ Equality, Diversity and Inclusion in Healthcare, Moving Beyond the Policy to Embedding the Practice’ will be given by Professor Ruth Northway on 24th March 2023 in Leeds. Admission is free, but booking is essential. A free sandwich lunch is also provided. The event will be chaired by Rob Webster and there will be plenty of opportunity to discuss the issues raised and to network. Click on the link above for full details and to book your place.
Free Legal Advice Clinic. The Adam Bojelian Foundation CIC now provides a free to access legal advice clinic. The clinic is provided as part of the Law Works Clinics network.
Preliminary advice is provided by appointment by an experienced advisor, with the aim of making individuals aware of the law and ethics related to their issue of concern. We do not take on cases, but if you need further advice and assistance than we are able to provide in the 45-minute session, we sign post you on to third party organisations.
Advice is given on matters of healthcare law and ethics. We also provide preliminary advice on employment law to those working in health and social care or those whose employment law concerns relate to their health or that of someone they care for.
PLEASE NOTE ADVICE CAN ONLY BE GIVEN AT A CLINIC ON MATTERS OF HEALTH AND CARE LAW & ETHICS & HEALTH & CARE RELATED EMPLOYMENT LAW. CLINIC APPOINTMENTS SHOULD BE BOOKED USING THE LINK BELOW. ADVICE CAN NOT BE GIVEN BY EMAIL OR VIA SOCIAL MEDIA.
More information is available on Free Legal Clinic Page of the AdsFoundation website.
Winter 2022 Update
New Statutes, White Papers, Bills, Policy Papers Parliamentary & Government Matters
This guide from the UK Parliament explains the stages Bills go through to become law. You may find it useful when reading this section of this legal update.
We include Bills we think you will find of particular interest which have progressed past their Second Reading in the House of Commons or Lords. Except in exceptional circumstances (see British Bill of Rights below), we do not include Bills which have only had a First Reading as many will never become law. You can however see all Bills progressing through Parliament on the Parliament website.
Westminster
British Bill of Rights
This Bill featured in our June 2022 Legal and Ethics Update and our September 2022 update. As reported in September, the then Prime Minister Liz Truss announced the Bill previously introduced on 22nd June would be shelved. With the re-appointment of Dominic Raab as Justice Secretary and Lord Chancellor under new Prime Minister Rishi Sunak, the original Bill of Rights is back on the Parliamentary timetable awaiting its Second Reading.
Legal experts in human rights have expressed serious concerns about the Bill. The government held a consultation on their proposals prior to introducing the Bill. The government has not published the responses they received to that consultation, but responses have helpfully been collated by the British Institute of Human Rights and can be read from this LINK.
The Law Society, the professional body representing solicitors in England and Wales issued this press release on 22nd June. The then Law Society President Stephanie Boyce said of the Bill:
“The bill will create an acceptable class of human rights abuses in the United Kingdom – by introducing a bar on claims deemed not to cause ‘significant disadvantage’.
“It is a lurch backwards for British justice. Authorities may begin to consider some rights violations as acceptable, because these could no longer be challenged under the Bill of Rights despite being against the law.
“Overall, the bill would grant the state greater unfettered power over the people, power which would then belong to all future governments, whatever their ideologies.
“The disregard for the rule of law the government is repeatedly signalling both at home and abroad – also inherent in this bill – risks inflicting serious harm on Britain’s reputation with trade partners, business and in the international arena.”
If you are interested in learning more about ‘The Rule of Law’, we have produced a short film explaining the concept, as Lesson Two in Series Two of the Learn with Dr Dog resources.
At the time of writing, a date is still be announced for the Second Reading of this Bill, but it is included in this update because of the significant impact the proposed changes would have on health and social care, especially users of those services.
Carer’s Leave Bill
Briefing Paper
Carers UK Press Release 15th June 2022
This is a Private Members’ Bill to make provision about unpaid leave for employees with caring responsibilities, introduced by Liberal Democrat Wendy Chamberlain MP (North East Fife). The Bill passed the Committee Stage in the House of Commons on the 9th November 2022 and is listed for the Report Stage on 3rd February 2023, where the whole House has the opportunity to discuss and amend the Bill.
The aim of this Bill is to require and give the Westminster government the power to create regulations giving employed carers the right to leave from work to provide or arrange care for a dependant with long-term care needs.
The leave would be unpaid but available from the first day of employment. Anyone caring for a dependant with care needs due to illness, disability, injury or old-age would qualify.
If enacted the new law will apply in England, Scotland and Wales.
Coroners (Determination of Suicide) Bill [HL]
Research Briefing
This House of Lords Bill was introduced by the Lord Bishop of St Albans. It passed the Second Reading in the Lords on the 28th October 2022 and is awaiting a date for the Committee Stage.
The purpose of the Bill is to increase awareness of the reasons for suicide with the aim of reducing the number of suicides. The Bill aims to do this by requiring a coroner to record an opinion on the causes of a suicide at the end of an inquest, so that this data can be collected and analysed.
Power of Attorney Bill
Explanatory Notes
This Private Members Bill was introduced in the House of Commons by Conservative MP Stephen Metcalfe. It passed the Second Reading on 9th December 2022, with the date for the Committee Stage yet to be scheduled.
The aim of the Bill is to modernise the process for making and registering a lasting power of Attorney (LPA) and to make it easier to obtain certified copies of powers of attorney.
You can read more about LPAs on this page from MIND.
Worker Protection (Amendment of Equality Act 2010) Bill
Briefing Paper for MPs on Second Reading
This Private Members Bill was introduced to the House of Commons by Liberal Democrat MP Wera Hobhouse (Bath). The Bill passed its Second Reading on 23rd November 2022 and is scheduled for the Committee Stage on 3rd February 2023.
The aim of the Bill is to create new legal liabilities for employers to protect employees from sexual harassment by third parties such as customers and clients. Employers will be required to ‘take all reasonable steps to prevent sexual harassment’ of employees in the course of their employment. The Equalities and Human Rights Commission would enforce the duty. Employment tribunals would also be empowered to uplift compensation by 25% where employers breached this duty.
Update on Westminster Bills featured in earlier 2022 editions of AdsFoundation legal updates.
2022 has been an unusually tumultuous year politically in Westminster, with Prime Ministers and Ministers coming and going at speed. This has led to changes in policy and priorities within government, so we thought it would be helpful to confirm which Westminster Bills featured this year are still on the Parliamentary timetable and which have become Acts of Parliament.
From March 2022 Edition
British Sign Language Bill
This became the British Sign Language Act 2022 on 22nd April.
Cigarette Stick Health Warning Bill
This Bill fell (was abandoned) awaiting a second reading in the House of Commons.
Down Syndrome Bill (England)
This became the Down Syndrome Act 2022 on 28th April 2022.
Judicial Review and Courts Bill
This became the Judicial Review and Courts Act 2022 on 28th April 2022
From June 2022 Update
Social Security (Special Rules for End of Life) Bill [HL]
This became the Social Security (Special Rules for End of Life) Act 2022 on 25th October 2022.
From September 2022
Clean Air (Human Rights) Bill [HL]
This Bill has passed through the House of Lords and is scheduled for a Second Reading in the House of Commons on 24th February 2023.
Healthy Homes Bill [HL]
This Bill was introduced into the House of Lords and is still awaiting its Third Reading in the House of Lords.
Neonatal Care (Leave and Pay) Bill
This Bill is scheduled for its Report Stage on 20th January 2023.
Scottish Parliament
This link from the Scottish Parliament explains the stages a Bill must go through to become law.
Patient Safety Commissioner for Scotland Bill
Explanatory Notes
Policy Memorandum
The aim of this Bill is to establish a new office of Patient Safety Commissioner for Scotland.
The Commissioner’s role will be to (i) support system-wide improvement in the safety of health care and (ii) promote the importance of the views of patients and members of the public in relation to the safety of health care.
Welsh Parliament / Senedd Cymru
Guide to the stages of legislation in the Welsh Parliament
No relevant new Bills have been introduced in the Welsh Parliament since our September 2022 update.
Policy Papers, Committee Reports & Government Guidance
Westminster
House of Commons, Health and Social Care Committee, The Future of General Practice, 11th October 2022
Key findings from the Committee’s inquiry include:
- demand for GPs is rising;
- the NHS does not have enough GPs;
- Patient access is poor;
- GP workloads are unsustainable;
- Continuity of care is no longer standard, although it benefits GPs and patients;
- There are too many micro-incentives in primary care; and
- Integrated Care Systems and Primary Care Networks have potential.
Scottish Government
Advice and Guidance- Adults with Incapacity: Supporting discharge from hospital. (28th November 2022)
This is a joint policy statement from Scottish Government and the Mental Welfare Commission for Scotland on how best to support adults with incapacity when being discharged from hospital.
Advice and Guidance- NHS public protection accountability and assurance framework (6th October 2022)
This is Scottish Government guidance to health boards on assessing the adequacy and effectiveness of their public protection arrangements. It aims to promote the protection of both adults and children.
Advice and Guidance- Getting it right for every child (GIRFEC)- Statutory Guidance – Assessment of Wellbeing 2022 – Part 19 (section 96 of the Children and Young People (Scotland) Act 2014 (30th September 2022)
This statutory guidance explains how the eight well-being indicators:
- safe
- healthy
- achieving
- nurtured
- active
- respected
- responsible
are used when assessing the well-being of children and young people. The guidance also explains what well-being is in the context of the 2014 Act.
Strategy- Care in the Digital Age: delivery plan 2022 (8th November 2022)
This is Scottish Government’s national delivery plan to support Health Boards, Health and Social Care Partnerships, local authorities, primary care, social work and care providers to offer new and better services, through the use of digital services and products.
CASE LAW
We include relevant key European Court of Human Rights, Supreme Court and Court of Appeal cases, plus cases from the lower courts which are likely to be of particular interest.
This month we feature the judgment from the Court of Appeal on whether the Abortion Act 1967 breaches the rights of those living with Down’s Syndrome.
Court of Appeal (England and Wales)
Crowter and Others v Secretary of State for Health and Social Care [2022] EWCA Civ 1559
This appeal addressed the question of whether the availability of abortions under section 1 (1) (d) of the Abortion Act 1967 which permits the lawful termination of a pregnancy if two doctors form the opinion in good faith that “there is a substantial risk that if the
child were born it would suffer from such physical or mental abnormalities as to be
seriously handicapped” (sic), breaches the human rights of people living with Down’s syndrome. This provision was an amendment to the 1967 Act introduced by s.37 of the Human Fertilisation and Embryology Act 1990, which allows for terminations at any stage of a pregnancy, rather than unto an upper limit of 24 weeks permitted for most other abortions under the Act. The Court of Appeal rejected the appeal judging the Abortion Act does breach the appellants human rights.
Heidi Crowter, a woman with Down’s syndrome and Maire Lea-Wilson, on behalf of her son Aidan, a young boy who has Down’s syndrome, had brought the claim for judicial review against the UK government. The appellants had argued that the 1967 Act ‘perpetuates and reinforces’ negative cultural stereotypes about people living with impairments by sending out a message that their lives are less valuable; and so breaches their rights under Article 8 (the right to a family life) and Article 14 (the right not to be discriminated against in relation to Convention rights) granted by the European Convention on Human Rights (ECHR).
A couple of explanations may be helpful before returning the Court of Appeal’s judgment. Judicial review applications are brought when a claimant wishes a court to review the lawfulness of a decision or action made by a public body. A Divisional Court is the High Court in England and Wales sitting with two judges. The Divisional Court hears some judicial review applications and also some criminal cases.
Lord Justice Underhill in his leading Court of Appeal judgment noted (at paragraph 4) that although the appellants had Down’s syndrome the arguments put forward applied equally to individuals living with other ‘serious handicaps‘ (sic). For the avoidance of confusion, it is worth noting that the appellants and claimants referenced in this report are the same individuals. They were referred to as the claimants when they made their claim in the Divisional Court and the appellants when they appealed the decision of the Divisional Court in the Court of Appeal. The original application for judicial review was dismissed by the Divisional Court by a judgment given of 23rd September 2021 (the hearing had been in July 2021). In its judgment the Divisional Court stated at paragraph 102:
“We accept the Defendant’s submission that section 1(1)(d) does not interfere with the right to respect for private and family life of any of the Claimants. That legislative provision does not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities. We are not persuaded that there is any causal connection between this legislative provision, focused as it is on the rights of pregnant women and their medical treatment, and any discrimination that continues to be suffered by those with DS despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010.”
Assessing the evidence from the appellants and expert witnesses, Lord Justice Underhill agreed with the Divisional Court’s finding that there was no casual relationship between the discrimination faced by individuals with severe impairments and the provisions of the Abortion Act. He found (at paragraph 58) rather that discrimination against disabled people has been prevalent throughout history and judged it more likely that the provisions of the Abortion Act are a reflection of these long-held prejudices, rather than the cause of the prejudices. His Lordship also judged that the relevant provisions of the Abortion Act are not directed at disabled individuals ‘and does not expressly promote any negative stereotype about them: it is concerned only with the unborn’ (para 70). In doing so he found that the relevant provisions of the Abortion Act was not an action by the State interfering in the private life of the appellants. He judged that the appellants’ perception, however genuine, that s.1 (1) (d) Abortion Act 1967 devalues them, this cannot of itself constitute or evidence interference with their Article 8 rights. He judged ‘The existence of a legal right can not depend solely on the subjective perception of the the putative victim.’ (para 73).
At the Divisional Court hearing breaches of Articles 2 (the right to life) and 3 (the right not to be subjected to inhuman treatment or torture) ECHR were also argued as potentially breaching the rights of a foetus. However, the Divisional Court rejected this argument on the basis that a foetus can not be a rights holder. The Court of Appeal did not re-address this issue or the Article 2 and 3 claims.
Lord Justice Underhill summarised the issues being addressed in the appeal at paragraph 33 of his judgment as (i) does the Abortion Act 1969 interfere with the article 8 ECHR rights of a person with serious impairment, particularly someone with Down’s syndrome; and (ii) f it does is the interference ‘in accordance with the law’ and ‘necessary in a democratic society’ as required by article 8.2 ECHR?
Article 8 ECHR is a qualified right, where the rights of the individual must be balanced by the wider rights of society. Article 8.2 requires that:
‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
Balancing these rights, the Court of Appeal agreed with the decision of the Divisional Court that the Abortion Act does not interfere with the Article 8 rights of individuals with Down’s syndrome. Having reached this decision no discrimination under Article 14 ECHR could be found as no rights had been breached.
(sic) this is used to indicate the word ‘handicapped’ is a direct quote from the Court judgment. This is not language we at the Adam Bojelian Foundation and many others would use, as Lord Justice Underhill himself recognised at paragraph 8 of his judgment:
‘I should say something about terminology. The language of “handicapped” is viewed by many people with disabilities as demeaning and it is not now generally used. I will have to use it sometimes in this judgment because it is the language of the statute; but where possible I shall use the paraphrase “serious disability”.
Open Consultations and Inquiries
UK Government Consultations
Department of Health and Social Care: Hewitt Review of Integrated Care Systems: Call for evidence (England)
Patricia Hewitt, the Secretary of State for Health under Tony Blair from 2005 to 2007 has been appointed by the Westminster Government to consider the oversight and governance of Integrated Care Systems (ICS).
You can read more about ICS and find links to further information about them on our Health And Care Act 2022 Resources Page.
The Westminster Government has launched a Call for Evidence to gather the views of those working across healthcare, as well as from patients and carers and the voluntary sector, as to how best ICS can succeed, ‘balancing greater autonomy and robust accountability’.
Consultation closes 11.45pm on 9 January 2023
Department of Health and Social Care: Call for Evidence: Antimicrobial resistance national action plan – call for evidence
The UK government is developing the next 5-year national action plan on antimicrobial resistance (AMR), which will run from 2024 to 2029. The government is particularly seeking input from technical experts, including those with expertise in human, animal and plant health, as well as experts in AMR in food and the environment.
AMR occurs when organisms which cause infections evolve ways to survive antimicrobial treatment, for example, the subset of antibiotic resistance. According to the Centre for Disease Control, as at 2019, within the European Union antibiotic resistance caused 25,000 deaths per year.
Consultation closes 11.45pm on 20 January 2023
Medicines and Healthcare products Regulatory Agency (MHRA): Consultation on how MHRA communicate with healthcare professionals to improve medicines and medical devices’ safety
The MHRA is seeking the views of health professionals on their communication with them. It is possible to contribute to this consultation anonymously.
Consultation closes 11.45pm on 18 January 2022
Scottish Government Consultations
Social Care: Independent Review of Inspection, Scrutiny and Regulation in Scotland – Call for evidence
Gaelic and British Sign Language versions are available via the above link
EASY READ Version
The Scottish Government announced the Independent Review of Inspection, Scrutiny and Regulation (IRISR) on 23rd September 2022. Its purpose is to make recommendations to ensure that social care support services are the best possible for those using them and working within them. The Scottish Government are seeking the widest range of viewpoints in this Call for Evidence.
They have provided a contact email for anyone wanting details in an alternative format and also as a point of contact [email protected]
Consultation closes 13 Jan 2023
Welsh Government Consultations
Consultation: Citizen Voice Body – guidance on access, representation and NHS service change.
EASY READ Version
The Health and Social Care (Quality and Engagement) (Wales) Act 2020 will replace Community Health Councils, which currently represent the patient’s voice in healthcare services, with the Citizens Voice Body.
The aims of the Citizens Voice Body is to:
- strengthen citizen voice in Wales in health and social services, aiming to ensure citizens have an effective mechanism to get their voice heard;
- ensure individuals are supported with advice and assistance when making a complaint about their care; and
- using service user experience to improve services.
The Citizens Voice Body will be a national (Wales wide) body, but will perform functions at national, regional and local level.
This Consultation is seeking views on guidance as to how the Citizens Voice Body will do its work and on service change.
Consultation closes 6 March 2023
Consultation : Draft guidance on responding to people affected by suicide
Welsh government is seeking views on their draft guidance on responding to people bereaved, exposed or affected by suicide.
In particular, the Welsh government is eager to hear:
- views on the draft guidance;
- whether guidance captures the needs of those affected by suicide; and
- whether the proposals will improve the way people in Wales are supported following a suicide.
Consultation closes on 20 January 2023
National Council for Health & Care Excellence (NICE) Consultations
You can use this LINK to access current NICE consultations, see individual closing dates for each consultation.
Our next Law and Ethics Update will be published at the end of March 2023. If you would like it emailed directly to you please let us know using the CONTACT US tab above.
Please feel free to share this update with your colleagues and networks for education and training purposes.
We welcome your feedback on this and all our resources, including information of any additional resources we should include or any changes you think we should make to our existing resources. We would also love to hear if and how you use this update and whether you have responded to any of the consultations listed. Please use the CONTACT US tab above to share your thoughts with us. Thank you
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