Law and Ethics Update: Autumn 2021

The information on this page, as across the whole of our website, is for education and training purposes only and should not be taken as ‘legal advice’. 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.

New statutes, White Papers, Bills, Policy Papers & Government matters

UK Government Build Back Better: Our Plan for Health and Social Care (7th September 2021)

Although health and social care are devolved matters, meaning governed separately decided in England, Scotland, Wales and Northern Ireland, these Westminster government proposals are relevant in all regions, as the proposed health and social care national insurance levy would be applied and distributed across all parts of the UK.

The Plan deals mainly with the detail of the 1.25 per cent levy to be added to national insurance from April 2022 which will be ring fenced for spending on the NHS and social care.

The Plan also outlines how the Westminster government plans to tackle the backlog in elective NHS care in England; how it will put the NHS on a ‘sustainable footing’ and a shift in focus from cure to prevention in service provision.

Welsh Parliament, Senedd Cymru establishes new Health and Social Care Committee (23rd June 2021)

The remit of the Committee is to examine legislation and hold the Welsh Government to account by scrutinising its expenditure, administration and policy matters, encompassing but not limited to ‘the physical, mental and public health and well-being of the people of Wales, including the social care system.’

Department of Education & Department if Health & Social Care (England), Policy Paper, The national strategy for autistic children, young people and adults 2021 to 2026

EASY READ VERSION

This policy sets out how the Westminster government plans to improve the lives of autistic people in England.

The policy plans to:

• improve understanding and acceptance of autism within society;
• improve autistic children and young people’s access to education and transition to adulthood;
• support more autistic people into employment;
• tackle existing health and care inequalities;
• build community and in-patient support;
• improve support within the criminal and youth justice system.

Care Planning, Placement and Case Review (England) (Amendment Regulations 2021 (SI 2021/161) in force from 9th September 2021

Aims to ensure that looked-after children under 16 years old are only placed in registered children’s homes or foster care, with limited exceptions including hospitals.  Hospitals are defined by s.275 (1) of National Health Service Act 2006 as:

and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and “hospital accommodation” must be construed accordingly,

Inquiry and Consultation Reports

The Safety of Maternity Service in England Inquiry Report (6th July 2021)

This is the Report by the House of Common’s Parliamentary Health and Social Care Inquiry opened on 24th July 2020.  The Westminster government was due to publish its response to the Report by 6th September, 2021, at the time of writing, no government response has been published.

The Inquiry builds on investigations that followed incidents at specific NHS Trusts. The Committee also say on their website that the inquiry will ‘ consider whether the clinical negligence and litigation processes need to be changed to improve the safety of maternity services and explore the impact of blame culture on learning from incidents’.

The Report cites variations in the quality of maternity care across England and addresses:

• Supporting maternity services to deliver safe maternity care;
• Learning from patient safety incidents; and
• Providing safe and personalised care for all mothers and babies.

The Health Foundation, The COVID-19 impact inquiry report (July 2021)

This is a comprehensive review by the Health Foundation of the factors which led to the UK high COVID-19 death rate.

The report highlights significant factors including:

• existing poor health and health inequalities;
• under 65s in the poorest parts of England were almost four times more likely to die from COVID-19 than those in the wealthiest parts;
• impact of government COVID-19 restrictions on unmet physical and mental health needs; education gaps; lost employment and financial insecurity;
• young people, disabled people, ethnic minority communities and care home residents disproportionately affected; and
• deep rooted issues such as poor health, financial insecurity and strained public services left the UK population particularly vulnerable to COVID-19’s health and economic impacts.

UK Government Consultation Outcome, Gamete (egg & sperm) and embryo storage limits: Response to Consultation (6th September, 2021)

The Human Fertilisation and Embryology Act 1990, as amended by the The Human Fertilisation and Embryology Act 2008 covers the use and treatment of human eggs, sperm (jointly referred to as Gametes) and embryos. The Act currently limits the storage of gametes and embryos to a maximum of ten years. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 extended the time limit to a maximum of 55 years to those who could demonstrate a medical need. Emergency COVID-19 regulations permitted the ten year time limit to be extended to 12 years in all other cases.

Recognising the significant advances in scientific knowledge and changes in societal attitudes and norms, in February 2020 the UK government launched a public inquiry seeking views on potential changes to the storage time limits for gametes and embryos.

This report is the findings of that inquiry. In broad terms these are:

• support for an increase in the ten year storage time limit;
• no consensus as to what the new time limit should be;
• support for the time limit to be the same for everyone irrespective of medical need.

The UK Government report they will introduce legislation to change the time limits when the Parliamentary timetable allows.

Case Law

This chart from the UK Judiciary and Tribunal Service illustrates the Court hierarchy in England and Wales

This link from hierarchystructure.com explains the hierarchy of the Scottish Courts.

Supreme Court

T (A Child), Re [2021] UKSC35 (30 July 2021)

This appeal concerned a 15 year old girl T who was subject to a care order with Caerphilly County Borough Council (‘CCBC’). CCBC wished to place T in secure accommodation but none was available. CCBC therefore applied to Court for an order permitting them to place T in non-statutory accommodation.  T consented to the restrictions being imposed upon her, so objected to the need for a Court order, as she wished to be seen capable of consenting in law.

The High Court did not think T’s consent was a relevant issue and granted CCBC the order they sought.  T appealed to the Court of Appeal, who dismissed it. T appealed to the Supreme Court.  The Supreme Court unanimously dismissed T’s appeal.  In doing so whilst holding that the use of the Court’s inherent jurisdiction ( a rule of English law that permits Courts to hear any matter than comes before them, with the purpose of protecting individuals deemed to be vulnerable) to authorise the deprivation of an individual’s liberty is permissible, the Supreme Court expressed its grave concern that it be used to fill gaps in child care resulting from lack of resources.

See also information above about the Care Planning, Placement & Care Review (England) (Amendment) Regulations 2021.

Court of Appeal (England & Wales)

Bell v Tavistock [2021] EWCA Civ 1363 (17th September 2021)

This is the much publicized judgment of the appeal bough by Quincy Bell (‘QB’) who aged 17 was treated with puberty blockers, then cross-sex hormones and commenced surgery to transition from female to male, all of which QB later regretted.  Mrs A the mother of a child who lives with gender dysphoria, but who had not been referred to the Tavistock and NHS Foundation Trust, (‘the Tavistock’) was also an appellant.  Both argued a best interest decision should be made by a court before children and young people under the age of 18 years receive puberty-blockers.  Their argument failed at both the High Court and the Court of Appeal.

The Court of Appeal has produced this helpful summary of their judgment, which provides more detail of the facts, the parties and the judgment.

High Court (Admin Division) (England & Wales)

Crowter & Ors, R (On the application of) v Secretary of State for Health and Social Care [2021] EWHC 2536 (Admin) (23rd September 2021)

In this application for Judicial Review ( an application to Court for the actions of a public body to be reviewed as potential unlawful) brought by three claimants against the Secretary of State, seeking a declaration under s.4 of the Human Rights Act 1998 that s.1(1) (d) of the Abortion Act 1967 is incompatible with Articles 2 (the right to life), Article 3 (the right not to be subjected to inhumane treatment or torture, Article 8 (the right to a private and family life) and Article 14 (the right not to face discrimination in relation to any Articles of the Convention) of the European Convention for the Protection of Human Rights. (ECHR)

The Claimants were:

Claimant 1: Heidi Crowter a 25 year old women living with Downs Syndrome. Heidi is married, lives in her own flat and has qualified to NVQ level;

Claimant 2: The mother of Claimant 3, who gave evidence (see paragraph 7 of the judgment) that whilst pregnant she felt:

“the pressure she was put under, the lack of support offered to her, the guilt she was made to feel for not having undergone screening, the impression conveyed that by going ahead with the pregnancy she would be going against medical advice, the negativity about DS and the fear engendered about having a child with DS all conveyed the message to her that a life with DS was of no value. [A] was born on 6 June 2019, at 36 weeks gestation.”

Claimant 3: Claimant 2’s child, now aged 2 who has Downs Syndrome, is developing well and has met all his milestones.

The Claimants argued that it was impermissible to differentiate as the 1967 Abortion Act does, between pregnancies where there is a substantial risk that a child would be born with a serious impairment (or ‘serious handicapped’ using the now outdated terminology in the 1967 Act) and those where there is not that risk. The claimants focused on cases of Downs Syndrome but acknowledged that their arguments applied to other ‘impairments’.

The Court considered in their deliberations:

Parliamentary consideration of s.1 (1) (d) of the 1967 Act:

‘1Medical termination of pregnancy.

(1)Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—(d)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.’

The decision in Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 where the Supreme Court had to consider whether Northern Ireland’s highly restrictive abortion laws were compatible with the ECHR.

The United Nations Convention on the Rights of Persons with Disabilities

The United Nation Convention on the Elimination of All Forms of Discrimination against Women

as well as Articles 2, 3, 8 and 14 of the ECHR.

The Court rejected the Claimants’ application as there is no precedent from the European Court of Human Rights giving the foetus rights under the ECHR. Indeed in the European Court of Human Rights case of  Vo v France [2004], a case where the wrong women had her child aborted in a French hospital when two patients with the same surname were mixed up, the Court held that it was for individual nation states to decide whether foetuses have rights under their legal systems. Foetus do not have rights under English or Scots law.  s.1 (1) (d) of the Abortion Act 1967 could therefore not be incompatible with Articles 2 and 3 ECHR.

The Court also rejected the claimants’ arguments in relation to Article 8 ECHR, holding s.1 (1) (d) does not interfere with Article 8 rights, adding that even if there was interference this interference is proportionate as Parliament has the right to balance the rights of pregnant women and the interests of the foetus.

Article 8 is not an absolute right, it requires a balance with the rights of others:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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.

Court of Sessions (Scotland)

Neilly v Nursing and Midwifery Council [2019] CSIH 32 (29th May 2019)

Margo Neilly had been a mental health nurse employed by NHS Highland. She had been struck off by the Nursing and Midwifery Council Fitness to Practice Committee.  Neilly had her application to appeal the decision rejected because she lodged her appeal with the Inner House of the Court of Sessions six days late.

The Court held that Neilly had not done all she reasonably could have done to lodge her appeal within the required 28 days.  Neilly argued the disciplinary process had increased her anxiety and associated post traumatic stress disorder, making it difficult for her to read, process information, take legal advice or respond. Neilly also argued fear of the potential costs also prevented her from taking legal advice.

In his Opinion the President of the Court of Sessions stated:

‘However sympathetic the applicant’s case may be in terms of her mental health and relatively short period of lateness, it does not meet the test (set out earlier in the Court’s Opinion) whereby it could be said that she did all she reasonably could have done to bring her appeal on time’.

Open Consultations

UK Wide

The Migration Advisory Committee (MAC) has been commissioned by the UK government to review adult social care and the impact the ending of freedom of movement has had on the sector.

The MAC is calling for evidence from anyone with ‘relevant knowledge, expertise or experience’ to help inform their response to government.

MAC have created questionnaires for responses from different categories of responders:

• Employers
• Representative organisations
• Individuals responding in a personal capacity

MAC are particularly interested to hear about the impact of the following:

• the adult social care workforce (such as skills shortages) covering the range of caring roles in adult social care including care workers, registered nurses and managerial roles
• visa options for social care workers
• long term consequences for workforce recruitment, training and employee terms and conditions
• any other relevant matters the independent chair deems appropriate which are relevant to the above objectives

The call of evidence closes on 29th October 2021

Medicines and Healthcare Products Regulatory Agency: Consultation on the future regulation of medical devices in the UK

The Medicines and Healthcare products Regulatory Agency (MHRA) is inviting the public to provide their views on possible changes to the regulatory framework for medical devices in the United Kingdom (UK). The MHRA want to develop a future regime for medical devices which enables:

• Improved patient and public safety;
• Greater transparency of regulatory decision making and medical device information;
• Close alignment with international best practice, and;
• More flexible, responsive and proportionate regulation of medical devices.

The MHRA is seeking the views of patients, medical device researchers, developers, manufacturers and suppliers, clinicians, other healthcare professionals and the wider public to help shape our future approach to regulating medical devices in the UK.

Further background information is available HERE

The MHRA are hosting two webinars about the consultation:

One for members of the industry on 5th October 2021

and one for patients and wider members of the public on 14th October 2021

The consultation closes at 11.45pm on 25th November 2021

England

Current National Institute for Health and Care Excellence Guidance Consultations

See individual consultations for closing dates

Department for Work and Pensions consultation on Shaping future support: the health and disability green paper

AUDIO summary of Green paper

AUDIO full version of Green paper

British Sign Language summary of Green Paper

Versions of the Green Paper in other formats can be obtained by emailing:

[email protected]

Post:

Telephone Voicemail Service: 0800 015 3110

The Department for Work and Pensions is seeking views on their green paper on disability benefits, in particular they are seeking views on:

• Ways to provide more support to help meet the needs of disabled people and people with health conditions and allow them to more easily access and use benefits and services.
• Improve employment support for disabled people and people with health conditions, and how to encourage people to take up that support, where possible.
• Short-term improvements to our current services such as improvements to assessments and decision making, to improve the experience of disabled people.
• Changes to future assessments and alternative approaches.
• Changes that could be made to the structure of the main benefits claimed by working-age disabled people and people with health conditions.

The consultation closes at 11.45pm on 11th October 2021

Department of Health and Social Care consultation on making vaccination a condition of deployment in the health and wider social care sector

Further documentation including versions in Albanian, Arabic, Bengali, Chinese, Farsi, French, Gujarati, Hindi, Kurdish, Nepali, Polish, Punjabi, Romanian, Somali, Spanish, Tagalog, Turkish, Ukrainian and Urdu.

Accessible versions of the documentation are available by emailing [email protected]

The Department of Health and Social Care is seeking views on whether or not to extend vaccination requirements further within health and care settings for COVID-19 and also for flu.

The consultation closes at 11.45pm on 22nd October 2021

Northern Ireland

Consultation by the Northern Executive on their Cancer Strategy for 2021-2031

Supporting documents

EASY READ VERSION OF STRATEGY

The Northern Irish Executive published their Cancer Recovery Plan, written in consultation with professional, patient, and voluntary sector stakeholders in June 2021.  This aims to address immediate service improvements and look forward, particularly focusing on:

• preventing cancer;
• diagnosing and treating cancer;
• supporting people; and
• implementing the strategy.

This Consultation seeks wider views from professionals, the public, patients, academics, voluntary organisations and other interested parties. The Northern Ireland Executive is seeking feedback on the implementation of the Strategy so far and current recommendations with the view to further developing and implementing the Strategy.

The Northern Ireland Executive are holding a series of virtual consultation engagement events via zoom, the dates and times are:

Tuesday 5 October 2021 – 2-3.30pm

Thursday 7 October 2021 – 11am – 12.30pm

Tuesday 12 October 2021 – 7 – 8.30pm

Register for Consultation engagement events on Eventbrite

The consultation closes at 17.00 on 20th October 2021

Scotland

Consultation by Scottish Government on its proposals to improve the delivery of social care in Scotland. The government’s is seeking the public and professionals’ views on their proposals which follow the recommendations of the Independent Review of Adult Social Care.

The Consultation is can also be accessed in the following formates:

British Sign Language

EASY READ

AUDIO

Paper copies can be provided by emailing  NCSconsultation@gov,scot or phoning 0300 244 2425

Social care is defined by Scottish Government to include ‘support for people with physical disability, learning disabilities or mental health conditions, older people and those with dementia, people with or recovering from alcohol or drug addictions, those who are, have been or are at risk of being homeless, and children and families who may need additional support, or where children are unable to live with their own families.’

Scottish Government are also holding a series of related consultation events, some covering specific aspects of the consultation and some covering the consultation as a whole:

Find details below for events and registration.

NCS Consultation Engagement Event  – All aspects of the Consultation: Monday 16th August 2021 – 10.00 – 12.00 Click here to register

NCS Consultation Engagement Event  – Improving care for people: Thursday 2^nd  September 2021 –  – 18.00 – 20.00 Click here to register

NCS Consultation Engagement Event – Community Health and Social Care Boards: Friday 10th September 2021 – 14.00 – 16.00 Click here to register

NCS Consultation Engagement Event – Scope of NCS: Monday 13th September 2021 – 14.00 – 16.00 Click here to register

NCS Consultation Engagement Event – Commissioning of Services: Tuesday 14^th September 2021 – 10.00 – 12.00 Click here to register

NCS Consultation Engagement Event – Regulation: Wednesday 22nd September 2021 – 14.00 – 16.00 Click here to register

NCS Consultation Engagement Event – Fair work and valuing the workforce: Thursday 23rd September 2021 – 18.00 – 20.00 Click here to register

NCS Consultation Engagement Event – Fair work and valuing the workforce: Tuesday 28th September 2021 – 10.00 – 12.00 Click here to register

NCS Consultation Engagement Event – All aspects of the Consultation: 4th October 2021 – 14.00 – 16.00 Click here to register

The consultation closes on 2nd November 2021

Wales

Welsh Government: Consultation on its LGBTQ+ Action Plan

EASY READ VERSION

Supporting documents

The Welsh Government are inviting views on their LGBTQ+ Action Plan and in particularly how the government can:

• tackle inequalities experienced by LGBTQ+ communities;
• challenge discrimination; and
• create a society where LGBTQ+ people are safe to live and love authentically, openly and freely as themselves.

The consultation closes on 22nd October 2021

AdsFoundation will be running a series of on-line workshops on healthcare law and ethics starting early 2022.  Please CONTACT US if you would like to be sent more information about these. 

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