Law, Policy and Ethics Update – Autumn 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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Free Legal Advice Clinic. The Adam Bojelian Foundation CIC 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.
The clinic will be closed during December and re-open on Tuesday 9th January 2024. If you require free legal advice during this period please contact another clinic in the Law Works network.
AdsFoundation Updates
SAVE THE DATE: Charlie Jones, clinical psychologist in medicine (@charlie_psych on X/Twitter) will give the 2024 Adam Bojelian Memorial Talk in Leeds on 6th March 2024, chaired by Rob Webster. Further details of the event and a link to book your free place will be published shortly on X/Twitter, search using #AdsTalk24 .
Christmas Cards (packs of 10 cards) featuring Adam’s poem Winter and Adam’s book of poems, Playing With Words, poems by Adam Bojelian, both beautifully illustrated are now available to purchase from the #AdsFoundation shop, place your order by 14th December if you wish to send the cards or book in time for Christmas: Shop – The Adam Bojelian Foundation CIC (AdsFoundation) (theadsfoundation.org)
Law, Policy and Ethics Update
A useful resource
This Easy Reader from easyreader.co.uk helps find EASY READ information on a wide range of topics including health, money, disabilities, politics and death. The organisation will also create bespoke EASY READ information and welcomes suggestions of additional topics to add to their existing EASY READ information.
New Statutes, White Papers, Bills, Policy Papers, Parliamentary & Government Matters
Bills and Statutes
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, 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
We start our update with a Bill which disappointedly was not included in the Kings Speech on 7th November 2023 and is therefore not in the Parliamentary timetable, the Mental Health Bill. The Conservative government had made reform of the Mental Health Act 1983, which sets out how and when an individual can be detained for mental health treatment without consent, a key manifesto commitment in both 2017 and 2019.
There had been an independent review of the Mental Health Act 1983 in 2018, a White Paper in 2021, a draft Bill and a Parliamentary Joint Committee report in 2o23, so expectations were high.
The government’s failure to include the anticipated reform in the Parliamentary timetable has been criticised by mental health organisations and lawyers working in the field, including MIND and the Law Society.
The Minister of State for Disabled People, Health and Work, Tom Pursglove MP, made a statement to the House of Commons on 20th November 2023, on progress on the Health and Disability White Paper published by the government on 15th March 2023.
The White Paper addresses the Westminster government’s aim of getting more disabled people off benefits and into work.
Here is Disability Rights UK’s assessment of the White Paper.
Scottish Parliament
This Bill is a Member’s Bill introduced by Green MSP Gillian Mackay. It aims to create safe spaces around all venues providing abortion services in Scotland, to allow unimpeded access without distress to the services. The Bill is currently at Stage 1, where the general principles of the Bill are considered by Scottish Members of Parliament.
The Bill aims to make it an offence to behave in ways within the safe access zone or from anywhere which can be seen or heard from the safe access zone which might prevent someone from getting an abortion or causes them to feel scared or upset about getting an abortion.
Bill Explanatory Notes
Bill Policy Memorandum, which explains why the Bill was created.
Scottish Government
September 2023.
This guidance considers:
- Common issues raised;
- Good practice examples;
- The use of section 13ZA Social Work (Scotland) Act 1968 (see explanation below);
- Challenges;
- Recommendations; and
- Conclusions and next steps.
Section 13 ZA Social Work (Scotland) Act 1968 came into effect in March 2007. Where there is no other welfare proxy decision maker, it gives a local authority the power to make care arrangements when an individual is not able to make informed decisions about services. The section aims to promote the wishes, choices and
preferences of individuals who are unable to make decisions for themselves about their welfare.
The section can be used to empower an individual to access community care services. When exercising their powers under section 13ZA, a local authority must ensure that the individual has no existing proxy decision maker and that no application for welfare powers in relation to the individual is before the court.
Guidance on the use of section 13ZA was published by the Scottish Care Inspectorate and the Mental Welfare Commission for Scotland in August 2023.
This plan sets out the work Scottish Government plan to undertake to improve the Scottish population’s mental health.
They state they will:
1. Improved overall mental wellbeing and reduce inequalities.
2. Improved quality of life for people with mental health conditions, free from stigma and discrimination.
3. Improved knowledge and understanding of mental health and wellbeing and how to access appropriate support.
4. Better equipped communities to support people’s mental health and wellbeing and provide opportunities to connect with others.
5. More effective cross-policy action to address the wide-ranging factors that impact people’s mental health and wellbeing.
6. Increased availability of timely, effective support, care and treatment that promote and support people’s mental health and wellbeing, meeting individual needs.
7. Better informed policy, support, care and treatment, shaped by people with lived experience and practitioners, with a focus on quality and recovery.
8. Better access to and use of evidence and data in policy and practice.
9. A diverse, skilled, supported and sustainable workforce across all sectors.
Evidence narrative to inform plan
Equality Impact Assessment
EASY READ
Workforce Action Plan
Welsh Parliament / Senedd Cymru
Guide to the stages of legislation in the Welsh Parliament
Explanatory Memorandum
This Bill, featured in earlier AdsFoundation updates, permits Welsh government ministers to introduce a procurement (obtaining supplies, for example, medicines and medical equipment) regime specifically for Welsh NHS Services. The Bill passed Stage 4 in the Senedd, with Members of the Welsh Parliament unanimously voting for it to become law. The Bill is now awaiting Royal Assent to become the Health Service Procurement (Wales) Act.
This report follows the Committee’s investigation into child poverty. It starts with the stark statistic that across the UK, 4.2 million children live in poverty.
The report explains the different measures of poverty used:
‘There are a range of child poverty measures for which data is available for Wales:
▪ Absolute poverty is where a household’s income is below 60% of the median
income threshold for 2010-11. Using this measure, 22% of children in Wales
experienced absolute poverty in 2019-20 to 2021-22.
▪ Persistent poverty is where a household is in poverty for 3 out of 4 years. After
housing costs, a child in Wales had a 17% likelihood of being in persistent
poverty between 2017 and 2021.
▪ Households are in material deprivation if they cannot access particular goods
and services, and low-income if their household income is less than 70% of
the UK average. Between 2019-20 and 2021-22, 13% of children living in
Wales were experiencing material deprivation and low income.
A child is considered to be in relative poverty if the income of the household they
live in falls below 60% of the UK median (which is the middle value in a list of
numbers arranged from smallest to largest). This is the measure most commonly
used to measure child poverty in the UK, and the rest of the data in this section
relates to relative poverty.’ (p.7, our highlighting)
Between 2019-2022 28% of children in Wales were living in relative poverty.
The Committee considers the impact of poverty on children and makes recommendations to tackle child poverty in Wales, including adopting measures used in Scotland and New Zealand.
Background Papers
Open Consultations and Inquiries
Department of Health and Social Care, Westminster
This consultation is by the Westminster government and devolved administrations addresses smoking and youth vaping.
This consultation is relevant to England, Scotland, Wales and Northern Ireland.
It asks questions in three areas:
- Creating a smokefree generation: consulting on the smokefree generation policy and its scope.
- Tackling youth vaping: consulting on several options to ensure we take the most appropriate and impactful steps, building on England’s analysis of the earlier youth vaping call for evidence.
- Enforcement: consulting on the proposal to introduce new powers for local authorities in England and Wales to issue fixed penalty notices to enforce age of sale legislation of tobacco products and vapes.
Consultation on-line survey
Ymgynghoriad agored Creu cenhedlaeth ddi-fwg a mynd i’r afael â fepio ymhlith pobl ifanc
This consultation CLOSES at 11.59pm on 6 December 2023
Scottish Government
Scottish government are seeking views on their draft National Specification. The Specification covers children and adults of all ages.
The consultation asks several questions about the Specification which can be found on pages 49-62 of the Consultation document. The questions are divided into three parts:
Part One asks about the Specification as an entire document.
Parts Two and Three ask questions on specific outcomes, and for thoughts on how Scottish Government might measure these.
Scottish Government suggest that if you have limited time you focus on the seven questions in Part One of the consultation.
The Consultation CLOSES on 26th January 2024.
Welsh Government
Welsh Government ‘Our Plan for Equality in Wales – Principles and Goals for 2024 – 2028
The Welsh Government is seeking to develop their Strategic Equality Plan 2024 to 2028 and is currently consulting on their draft plan.
They would like answers to the following questions:
- Do you agree with the Long-term Aim? Please explain your answer, suggesting any amendments.
- Do you agree with the proposed National Equality Objectives above? Please explain your answer, suggesting any amendments.
- Please tell us about any other issues relating to equality and community cohesion in Wales that you feel should be addressed?
- Do you believe having the proposed Principles of Approach strengthens the Strategic Equality Plan?
- If so, do you agree these are the right Principles of Approach? Please explain your answer, suggesting any amendments.
- Do you believe the National Equality Objectives will help us fulfil the Socio-economic Duty? Please explain your answer.
- Do you believe the National Equality Objectives will help to promote and embed human rights in Wales. Please explain your answer.
- Do you have any further specific points you’d like to raise in relation to the Strategic Equality Plan?
Responses to the Consultation can be made by
Strategic Equality and Mainstreaming
Equality and Human Rights Division
Welsh Government
Cathays Park
Cardiff
CF10 3NQ
EASY READ VERSION
BRITISH SIGN LANUAGE VERSION
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.
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 quarter we feature the important Supreme Court decision which gives some clarity as to a medical professional’s duty to inform a patient of alternative treatments, as required following the Supreme Court’s judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Montgomery is a leading case with which all health professionals should be familiar. We have made this short film explaining the Montgomery case for non-lawyers , as part of our new Key Legal Cases series.
The McCulloch case below is important as the Supreme Court was asked to consider the appropriate test for assessing whether an alternative treatment option should be discussed with a patient. The Supreme Court clarified its judgment in Montgomery and look back to the older ‘reasonable body of professional opinion’ test confirmed in Bolam v Friern Hospital Management Committee (1957) 1 WLR.
The Supreme Court made clear that it is for medical professionals to decide what were reasonable alternative treatment options, not for the Court. The decision provides clarity as to the extent and limits of a medical professional’s duty following Montgomery.
Judgment being appealed
The General Medical Council and the British Medical Association were both interveners in the case, meaning, parties who although not directly involved are joined as parties due to having a significant interest in the outcome of the case. The Court has to consent to a party joining as an intervener.
The Appellant Mr McCulloch had suffered chest pain in 2012 and received treatment at Forth Valley Hospital under Dr Labinjoh. The doctor concluded that Mr McCulloch was not suffering from pericarditis (inflammation of the pericardium, the fibrous sac surrounding the heart). Mr McCulloch was discharged but then readmitted with chest pains. He was seen the following day by Dr Labinjoh and reported not to have chest pain at that point. Dr Labinjoh decided not to prescribe or offer non-steroidal inflammatory drugs (NSAIDs). Mr McCulloch was discharged and the following day died from a cardiac arrest. A claim was brought by Mr McCulloch’s widow and family against Forth Valley Health Board, claiming that Dr Labinjoh had breached her duty of care to Mr McCulloch by failing to inform him that NSAIDs were an option for treatment.
Experts given evidence at the hearing said that whilst some doctors would have prescribed NSAIDs, ‘a responsible body of medical opinion’ would have supported not doing so. Watch our Montgomery video to understand the significance of ‘a responsible body of medical opinion’ in cases such as this. At first instance (the first trial) it was held that Dr Labinjoh had not breached her duty of care and was therefore not negligent in failing to inform Mr McCulloch of the option of NSAIDs. This decision was upheld on appeal and also by the UK’s highest court, the Supreme Court.
Our next Law, Policy and Ethics Update will be published early in 2024. 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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