Law, Policy and Ethics Update – Spring 2023
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.
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AdsFoundation Updates
The 2023 Adam Bojelian Foundation Memorial Talk ‘ Equality, Diversity and Inclusion in Healthcare, Moving Beyond the Policy to Embedding the Practice’ was given by Professor Ruth Northway on 24th March 2023 in Leeds and chaired by Rob Webster.
You can watch Dr Northway’s talk by clicking HERE, where you will also find a link to Dr Northway’s slides and all past AdsFoundation memorial talks.
New Resource
This infographic illustrating Adam’s blog ‘What Does Good Care Look Like’ which he wrote when he was 13 years old, is now available on our website. It illustrates in a clear and accessible way the what Adam from his extensive experience in healthcare, believed to be the elements of ‘good care’. Coincidentally, what Adam describes are also the elements required for lawful and ethical care.
Please feel free to download and use the infographic for non-commercial education and training purposes with the appropriate accreditations.
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.
AdsFoundation director Dr Zoe Picton-Howell was recently asked by Developmental Medicine and Child Neurology journal, the official journal of the American Academy for Cerebral Palsy and Developmental Medicine (AACPDM), Australasian Academy of Cerebral Palsy and Developmental Medicine (AusACPDM), British Academy of Childhood Disability (BACD), British Paediatric Neurology Association (BPNA), European Academy of Childhood Disability (EACD), and Mexican Academy for Cerebral Palsy and Neurodevelopmental Disorders, to write this paper, which is published open access:
The human rights of children with disabilities: How can medical professionals better fulfil rather than breach them? – Picton‐Howell – Developmental Medicine & Child Neurology – Wiley Online Library
Although written primarily for medics, it is relevant to everyone working with children and young people with disabilities.
Spring 2023 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
Carer’s Leave Bill
Briefing Paper
Carers UK Press Release 15th June 2022
This is a Private Members’ Bill, previously featured in our Winter 2022 update, to make provision about unpaid leave for employees with caring responsibilities, introduced by Liberal Democrat Wendy Chamberlain MP (North East Fife) and Lord Fox, Liberal Democrat Peer. The Bill has now completed its passage through the House of Commons and its first and second reading in the House of Lords where it is currently at the Committee Stage .
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, also featured in our Winter 2023 update, was introduced by the Lord Bishop of St Albans. It passed the Second Reading in the Lords on the 28th October 2022 and is currently awaiting its third reading in the House of Lords, where the Lords aim to ensure there are no loopholes in the proposed new law.
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.
Neonatal Care (Leave and Pay) Bill
This is a House of Commons Private Members Bill introduced by Stuart C McDonald MP (Scottish National Party). This Bill featured in our Autumn 2022 update. The Bill aims to make provision for leave and pay for employees whose babies are receiving neonatal care. The Bill has now completed its passage through the House of Commons and its at the Committee Stage in the House of Lords.
House of Commons Library briefing
Power of Attorney Bill
Explanatory Notes
This Private Members Bill, also featured in our Winter 2022 update, was introduced in the House of Commons by Conservative MP Stephen Metcalfe. The Bill has completed its passage through the House of Commons and is currently awaiting its second reading in the House of Lords, where peers will have the opportunity to debate the key principles of the Bill.
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). This Bill was also featured in our Winter 2022 update. The Bill has now completed its passage through the House of Commons and is awaiting its second reading in the House of Lords.
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.
Scottish Parliament
This link from the Scottish Parliament explains the stages a Bill must go through to become law.
Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill
The aim of this Bill is to improve the opportunities for disabled children and young people as they transition into adulthood. A similar Bill was introduced to the Scottish Parliament previously but fell (failed to progress) when the Scottish Parliament was dissolved on 5th May 2021.
The Bill would require;
- Scottish Government to have a strategy explaining how they will improve life opportunities for disabled children and young people.
- A Scottish government minister to be in charge of improving opportunities for young people as they move into adulthood.
- Local authorities to have plans for each disabled child/young person, as they move into adulthood.
The Bill is at Stage 1 of the Scottish Parliament process, where committees review the Bill, gather evidence and report to the Parliament who then debate the Bill’s general principles.
Gender Recognition Reform (Scotland) Bill
Explanatory Notes
This Bill has completed its passage through the Scottish Parliament, but has been blocked by the Westminster Government.
The Bill aims to change the process required to obtain a gender recognition certificate (GRC). This is a certificate that legally recognises an individual’s gender as different from the gender they were assigned at birth.
The Bill states:
- Who can apply for a GRC, extending the right to apply to 16 and 17 year olds.
- How to apply, a psychiatric diagnosis of gender dysphoria would no longer be required.
- The grounds on which the GRC will be granted. The time limit to live in an acquired gender before self- certifying is reduced from two years to three months.
The Bill also addresses different types of GRCs; appeals and reviews of decisions and revocation (cancelling) of a GRC and offences connected with supplying false information.
Why did the UK government stop the Bill from becoming law?
The UK government stopped the Scottish Bill from gaining Royal Assent and becoming law using s.35 Scotland Act 1998 (the Act which gave the Scottish Parliament its powers), which gives the Secretary of State for Scotland (a member of the UK government) the power to intervene in Scottish legislation in certain circumstances. The statement issued by the Secretary of State, Alister Jack, says he was concerned that ‘the legislation would have an adverse impact on the operation of Great Britain wide equalities legislation.‘ The UK government published a detailed statement of reasons, setting out their decision.
On 12th April the Scottish Government’s Social Justice Secretary Shirley-Anne Sommerville announced in the Scottish Parliament that the Scottish Government will launch a judicial review action against the UK government. Judicial review is a legal action where the Court is asked to consider the lawfulness of an action by a public body and in particular whether the public body acted within their powers. The Court will be asked to rule on the scope and interpretation of s,35 of the Scotland Act 1998, in the context of the UK government’s decision.
Welsh Parliament / Senedd Cymru
Guide to the stages of legislation in the Welsh Parliament
Health Service Procurement (Wales) Bill
Explanatory Memorandum
This Bill aims to create the law which would permit Welsh government ministers to introduce a procurement (obtaining supplies, for example, medicines and medical equipment) regime specifically for Welsh NHS Services.
The Bill is currently at Stage 1 in the Welsh Parliament.
Policy Papers, Committee Reports & Government Guidance
Office of the Public Guardian (OPG)
OPG Deputy Standards (13th February 2023) Apply in England and Wales
Guidance have been published by the OPG of the standards expected of a deputy appointed under the Mental Capacity Act 2005.
The guidance set out what is expected of lay, Public Authority and professional court appointed deputies. Lay deputies are usually family members or close friends of an individual deemed unable to make decisions for themselves.
The standards expected are divided into eight catagories:
- core deputy duties;
- ‘best interest’ decision making;
- interactions with the individual being supported;
- financial management;
- financial record keeping;
- property management;
- health and welfare decisions; and
- additional obligations.
The standards include a deputy having a working knowledge of the Mental Capacity Act.
You can read more about the role of deputies on our Deputies: Making decisions for individuals who lack capacity resources page on our website.
Westminster
Integrated Care Systems: autonomy and accountability. House of Commons Health and Social Care Committee report and recommendations to government, 30th March 2023
Integrated Care Systems (ICSs) are partnerships of organisations within a geographical area across health and social care. They have four key purposes:
- improve health outcomes;
- tackle inequalities in outcomes, experience and access;
- enhance productivity and value for money; and
- help the NHS support broader social and economic development.
There are more resources explaining ICSs on our Health and Care Act 2022 including Integrated Care Systems Resources page.
Clicking on the paragraph title above gives access to the Committee’s full report. They have also published this summary report. The key themes of the report are accountability and autonomy.
The UK government should respond to the Committee’s recommendations by 30th May 2023.
Former Secretary of State for Health and Social Care (2005-2007) was also commissioned by the UK government to conduct an independent review of ICSs. Her report was published on 4th April 2023. The Hewitt review considers the oversight and governance of ICSs.
Scottish Government
Guidance- Body Donation 28th March 2023
Scottish Government has published guidance explaining how individuals can donate their bodies for anatomical examination to teach medical and other health students about the human body; for training for health and related students by examination and observation, should of dissection; and for medical research.
Guidance – Voice of the Infant best practice, guidelines and infant pledge. 22nd March, 2023
This guidance explains how to take account of infants’ voices and rights in all encounters. The guidance explains how to work with babies and very young children to allow them to share their thoughts and feelings.
Welsh Government
Duty of Candour Statutory Guidance (1st April 2023)
EASY READ VERSION
Duty of Candour, Explanatory Memorandum
A duty of candour (a duty to be open and honest) was introduced in Wales by the Health and Social Care (Quality and Engagement) (Wales) Act 2020. The duty applies to health services provided by or for NHS bodies. The overall objective of the policy is to ensure anyone receiving healthcare from the NHS or a regulated provider can be confident that they are dealt with in an open and honest way by the care provider, when they or a relative has suffered an adverse outcome as a result of the care provided.
This guidance sets out the detail of how the duty applies, when and to whom.
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.
Court of Protection
North Bristol NHS Trust v R (By her Litigation Friend, the Official Solicitor) [2023] EWCOP5 Hearing 15th December 2022, Judgment 10th February 2023
In this case Macdonald J (the judge) sets out the law relating to capacity when there has been no formal diagnosis of impairment or disturbance of the mind.
The case concerned the capacity of R to consent or refuse a caesarean section to deliver her child where the medical team believed this was necessary to avoid the child sustaining neurological injury or death. R had no refused consent but the medical team feared this was a possibility as R had previously refused foetal monitoring.
Assessments of R’s capacity to refuse or consent to a caesarean had been conflicting, so therefore unclear.
Macdonald (at para 44) held that the absence of a formal diagnosis of impairment or disturbance of the mind raised the question of whether such a diagnosis is necessary to fulfil the requirements of s.2(1) Mental Capacity Act 2005:-
(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Macdonald held (at para 48) following PC & Anor v City of York Council [2013] EWCA Civ 478 (01 May 2013) (bailii.org) that a Court is not prevented from reaching a conclusion on an individual’s capacity in the absence of a formal diagnosis.
Macdonald J concluded that R lacked capacity to refuse or consent to the caesarean.
Macdonald J then turned to the question of R’s best interests, making clear that it was R’s best interests which he must consider and not those of her unborn child, the Court having no jurisdiction over an unborn child. Macdonald J set out in detail how the best interests decision should be made (paras 50-55) citing in particular and in detail s.4 Mental Capacity Act 2005.
Macdonald held that it was in R’s best interests to deliver her child by caesarean due to the extreme distress the delivery of her child dead would cause her (para 81).
Open Consultations and Inquiries
England
Care workforce pathway for adult social care: Call for Evidence
A consultation by the Department of Health and Social Care.
This call for evidence aims to inform the development of a new care workforce pathway for adult social care.
The UK government are seeking views on the pathway, including:
- how it should be set out; and
- how the government can best support people working in the care sector.
Responses are invited from individuals, including those reply on behalf or someone else and organisations.
Consultation closes 11.45pm on 31 May 2023
Youth vaping; Call for Evidence
A consultation by Office for Health Improvement and Disparities (OHID) on behalf of UK government.
This call for evidence is wanting to identify ways to reduce access to and use of vaping (e-cigarette) products by those under 18 years of age. The views of individuals and organisations are sought.
The OHID is particularly interested in:
- ensuring only adults can access vaping products;
- how and why the appearance and product characteristics of vapes might be attractive to under 18s;
- the influence of marketing of vapes on under 18s;
- the impact of social media;
- which educational approaches help prevent under 18s from vaping;
- the impact of vapes and their disposal on the environment; and
- understanding the vape market.
Consultation closes 11.45pm 6 June 2023
Scotland
Adult Disability Payment: Review of mobility component
EASY READ VERSION
A consultation by Scottish Government
Scottish government is seeking the views of those in receipt of the mobility component of the Adult Disability Payment, to learn in particular what works and what does not work.
Consultation closes 25 April 2023
Wales
Single Unified Safeguarding Review (SUSR) draft statutory guidance – Consultation
YOUNG PERSON’s VERSION
EASY READ VERSION
The Welsh government are aiming to simplify the process followed when there are safeguarding concerns to make the process less traumatic for those involved. The are now seeking views of their draft statutory guidance which aims to do this.
Consultation closes 9 June 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 during the summer months (northern hemisphere). If you would like it emailed directly to you please let us know using the CONTACT US tab above.
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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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