We work with health, social care & voluntary organisations & professionals, providing bespoke training in law, ethics & communication. We help you overcome any fear of law, improving staff & patient well-being. We also produce resources for you to use directly from our website & provide helpful links to key UK healthcare law & ethics & wider sources. Find out more about us, how we can help you and access all our resources & links using the tabs. Get in touch using the CONTACT US tab below. We very much welcome hearing from you.
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.
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New AdsFoundation Resources
Learn With Dr Dog short, fun and accessible films explaining the basics of the medical, social and human rights models of disability, with suggested additional reading for those who wish to learn now, are now available on our Learn With Dr Dog Series 3 page.
New statutes, White Papers, Bills, Policy Papers & Government matters
This Act aims to prevent certain cosmetic procedures being performed on anyone under the age of 18 years, unless under the direction of a medic. Most of the Act applies only in England and Wales, but (2)Sections 4(3) and 5 extend also to Scotland and Northern Ireland.
Health and Social Care Levy Act 2021received Royal Assent on 20th October 2021, making it formally law. This Act makes provision for a tax (known as the health and social care levy), to be used towards the cost of health care and social care.
Thisnoteprepared for the House of Lords explains the Act further.
UK Parliament Bills
Acquired Brain Injury Bill was also presented to the House of Commons for its Second Reading on 3rd December 2021 by the Bill’s sponsor Chris Byrant MP, but has been withdrawn by Mr Bryant and will not progress any further. The purpose of the Bill was to ensure support for adults and children with acquired brain injury.
This Private Members Bill introduced into the House of Lords by Crossbencher (a peer not affiliated to a political party) Baroness Meacher, had its Second Reading in the House of Lords on 22nd October and is awaiting a date for its Lords Committee Stage.
The purpose of the Bill is to enable adults who are terminally ill to be provided with specific assistance to end their own life.
This is another House of Lords Private Members Bill and was introduced by Conservative Life Peer, Lord Young of Cookham. It had its second reading in the House of Lords on 3rd December. The Bill is now waiting to be scheduled for its Committee Stage.
The purpose of the Bill is to create a legal requirement that health warnings be printed on each individual cigarette and cigarette paper, rather than just on the external packaging. The House of Lords briefing paper provides more information.
Coroners (Determination of Suicide) Bill [HL] This Private Members Bill started in the House of Lords and was introduced by The Lord Bishop of St Albans, received its Second Reading in the Lords on 19th November. It is currently scheduled with the date yet to be announced for the Committee Stage.
The purpose of the Bill is to create a legal requirement that Coroners or inquest juries record an opinion as to gambling addiction or other relevant factors in cases of suicide.
DownSyndromeBill(England)received its Second Reading in the House of Commons (meaning the House of Commons debated the main principles of the Bill) on 26th November 2021. The Second Reading is the stage of a Parliamentary Bill’s passage through Parliament where MPs debate the main principles of the Bill. The Bill has now gone to the Committee stage, at a date yet to be confirmed. This is where the detail of the Bill is considered.
The Bill was introduced in June 2021 by Dr Liam Fox as a private members bill (a bill introduced by an individual member of Parliament rather than by the government), but now has UK government support.
Dr Fox describes the Bill has having three aims:
to destigmatise people with Downs Syndrome and re-educate the public and professionals about Downs Syndrome, especially the life expectancy of people living with the condition;
to improve health, education and local services for people with Downs Syndrome;
to promote long-term planning for long-term for support for people with Downs Syndrome.
Some commentators have questioned what the Bill adds to existing law protecting the rights of disabled people and concern has been raised that a hierarchy of disabled people should not be created, rather than the rights and needs of all disabled people being met.
Health and Care Billhaving passed through the House of Commons, received its second reading in the House of Lords on 7th December. It is scheduled to go to the House of Lords Committee Stage on 11th January 2022.
Immigration (Health and Social Care Staff) BillThis private members Bill was introduced to the House of Commons by Scottish liberal democrat Christine Jardine MP on June 2021 with the aim of securing indefinite leave to remain in the UK to health and social care staff. The Bill is scheduled for its Second Reading on 21st January 2022.
This Bill was introduced to the Scottish Parliament on 15th November, 2021.
Prior to the COVID-19 pandemic, Scottish health boards had a legal duty under the Public Health (Scotland) Act 2008 to compensate people who they asked to self-isolate due to an infectious disease.
The Coronavirus Act 2020changed this, allowing Scottish health boards to decide whether people who self-isolate due to COVID-19 receive compensation under the 2008 Act. The relevant provision of the 2020 Act expire in March 2022.
The purpose of this Bill is to introduce a law giving health boards the option to provide compensation but not the obligation to do so, to anyone told to self-isolate due to COVID-19.
The new law, if introduced, will apply until 31 October 2022, with provision for Scottish Government to reduce or extend that period.
The Bill has successfully passed through the Scottish Parliament and is awaiting enactment. The purpose of the Bill is to make the United Nations Convention on the Rights of the Child (UNCRC) part of Scottish domestic law, meaning Articles (individual rights) within the UNCRC can be enforced in Scottish courts. At present the UNCRC is international law across the whole of the UK. This means it can be used to support actions brought in relation to domestic laws created by the UK and Scottish governments, but a child or their representative can not bring an action to a court in the UK directly and only based on breaches of the UNCRC Articles.
An example may help. Imagine a disabled child who is not receiving any education or appropriate education. Both the European Convention of Human Rights (ECHR) and the UNCRC provides a right to education. Article 2 of Protocol 1 ECHR and Article 28 UNCRC. The ECHR a regional human rights treaty was incorporated (made part of) domestic law in the UK by the Human Rights Act 1998. This means the child or their representative can bring an action for breach of Article 2 of Protocol 1 ECHR to a court in the UK. The UNCRC has not been made part of domestic law in any part of the UK so the child or their representative can not bring an action to a court in the UK for breach of Article 28. However, their lawyer could bring an action using Article 2 of Protocol 1 ECHR and then use Article 28 UNCRC to support the action under the ECHR. This can be helpful as the UNCRC Articles give much more detail as to what each right looks like than the ECHR. However, there are lots of rights in the UNCRC which are not found in the ECHR, the purpose of the Scottish Parliament Bill is to make the UNCRC part of Scottish law, working the same way as the Human Rights Act does in relation to the ECHR, so that children and young people in Scotland can enforce all their UNCRC rights in Scottish courts, not just rights which have a parallel right in the ECHR.
To get back to the Supreme Court case, the Attorney General, the Westminster government’s and Crown’s chief legal advisor and the Advocate General for Scotland, whose duty it is to advise the Crown and Westminster government on Scots law, brought the action challenging the Scottish Parliament’s powers to enact certain provisions of the UNCRC Bill.
The Supreme Court (the highest UK Court) held that the Scottish Parliament did not have the power to enact sections 6, 19(2) (a) (ii), 20 (10) (a) (ii) or 21(5) (b) (ii) of the UNCRC Bill, as doing so went beyond the powers granted to the Scottish Parliament by the Westminster Parliament in the Scotland Act.
The UNCRC Bill is now on hold within the Scottish Parliament, whilst the Scottish government and Parliament decide how to address this problem.
A case concerning a health professional’s right to access confidential documentation when under investigation.
This appeal was brought by a paediatric surgical consultant against the High Court in June 2021. The consultant had applied to the High Court for an injunction or declaration concerning three statements collected as part of a root cause analysis conducted by the Trust, following the death of a child under the consultant’s care. The consultant argued she should be allowed to see the documents prior to being interviewed during the resultant disciplinary process. The Trust refused to release the documents citing confidentiality.
The child who was under the consultant’s care between 1-4 December 2017, had required emergency surgery which was carried out by a surgical fellow. The child deteriorated and further surgery was needed the next day, but the child sadly died. The consultant had been in communication by text and phone but did not go to the hospital.
In the High Court the judge had refused the consultant’s application to be allowed to see the statements taken during the root cause analysis or correspondence with the child’s family, rejecting her argument that she had an implied or expressed right to do so under the terms of her employment policy or under the Trust’s investigation policy.
The Court of Appeal upheld the judgment of the High Court, rejecting the consultant’s appeal. The Court criticised the consultant for the delay she had caused in the investigation process by her applications. Lord Justice Underhill when giving the leading judgment also stated ‘In this appeal we are concerned only with the first stage of the MHPS disciplinary process. It is not appropriate for us to consider what disclosure obligations may arise if the case proceeds to a hearing. I would only say that I hope that the parties will try to resolve any difficulties that may arise by reference to the touchstone of straightforward fairness.‘ (para 41)
Two case heard together by the Court of Appeal considering how the High Court should balance the autonomy of Gillick competent 16 and 17 year olds against their best interests when there is a risk of serious injury or death.
14th December 2021
The Court of Appeal considered two similar cases from the Family Division of the High Court. The High Court in both cases had made orders under the Court’s inherent jurisdiction (this means in essence that the Court has the power to make orders to protect a vulnerable individual without having to rely on a particular statute), that although the young people in both case were deemed competent to make decisions to consent or refuse medical treatment, the Trusts were granted authority by the Court to give each young person a blood transfusion, should this be necessary to prevent serious injury or death. E is a 16 year old girl and F is a 17 year old boy. Both are Jehovah Witnesses and conscientiously reject blood transfusions as an article of faith. Both had been deemed Gillick Competentby their doctors to consent and refuse medical treatment.
In both case the application had been made to the High Court just in case such a situation arose, with the expectation that it would be unlikely in either case. Both young people were discharged from hospital without any such circumstances arises, but appealed the High Court order as they were both ‘aggrieved that their autonomy was overruled, and distressed by the process that occurred’ (para 5 of judgment).
E & F put forward two arguments for their appeal:
that the State, acting through the court, has no power to overrule the capacitous decision of a mature minor, and in particular a young person aged 16 or 17.
that any such power was wrongly exercised in their cases. (para 5)
Permission to appeal was refused in relation to (1) as the power of the court to intervene in the best interests of a minor (under 18 year old) is well established law.
The Court of Appeal judged that the question was not whether the power exists, but how it should be used by the Court.
The Court of Appeal summarised E & F’s main arguments in paragraph 38:
(1) To override the decision of a capacitous young person is an affront to their dignity. Increasing age brings increasing respect for personal autonomy and self-determination. By s. 8 Family Law Reform Act 1969, Parliament has provided that a person aged 16 and 17 has the right to consent to any recommended medical treatment, and the House of Lords has held in Gillick that even individuals under 16 can make their own decisions in certain circumstances.
(2) Risk is an inherent part of daily life and young persons are exposed to many risks – riding bikes, dangerous sports, viruses – but the law does not intervene in such matters.
(3) It was wrong in law for the courts to have intervened in these cases. The starting point is a strong presumption in favour of a young person’s capacitous decision. The decision should be respected unless there are very strong reasons for rejecting it. The presumption can only be rebutted where on a balance of probabilities the decision would cause serious harm or death. If it is not rebutted, the decision must be followed. For these propositions, reliance is placed upon these decisions:
(4) Here, the presumption was not rebutted. The risks were remote and the young persons’ decisions were reasonable and safe ones. It was wrong in law to override them on a ‘just-in-case’ basis.
(5) The Convention rights under Articles 8 and 9 are plainly engaged. Interference can only be justified in pursuit of a legitimate aim where it is necessary in a democratic society.’
Paragraphs 44 -60 of the Court of Appeal’s judgment in this case explains in detail how the High Court should exercise its inherent jurisdiction in cases concerning children and young people. Balancing the autonomy of a capacious young person with their best interests is central to the approach to be taken. The Court of Appeal rejected both E’s and F’s appeals, holding both High Court judgments had were correct to put greater weight on the sanctity of life of a 16 or 17 year old, in keeping withArticle 2 ECHR,which imposes a duty on states to protect lives, than on the autonomy of a minor.
A case considering how the Medical Practitioner’s Tribunal should have conducted their investigation prior to imposing interim conditions on a GP’s registration after complaints were made about material he posted on social media.
This case concerned the lawfulness of an interim order imposed by the Medical Practitioner’s Tribunal on General Practitioner (GP) Dr White’. placing restrictions on his registration after he posted a controversial video on YouTube sharing his views about COVID-19. (Paragraph 6 of the judgment above summarises the video’s content).
The Tribunal’s conditions were that Dr. White
‘must not use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects. 5.
must seek to remove any social media posts he has been responsible for or has shared relating to his views of the Covid19 pandemic and its associated aspects.’
Dr. White was found by the tribunal to have spread misinformation and inaccurate details about COVID-19 and its diagnosis, treatment and vaccination, potentially putting patients at risk and undermining trust in the profession.
The High Court action was an application by the GP under 41A(1) of the Medical Act 1983. (The detail of s.41A can be read in paragraph 12 of the judgment), which addresses the impact of an Interim Order made by the Medical Practitioner’s Tribunal. The High Court judge that its role was to make an independent decision whilst giving appropriate weight to the decision of the Tribunal when doing so. (see para 13)
The High Court considered Article 10 European Convention on Human Rights (ECHR), which is part of domestic law under the Human Rights Act 1998. Article 10 gives a right to freedom of expression, including the right to hold opinions and to receive and share information without interference by a public authority.
Article 10 in full states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The High Court rejected the GP’s argument it should also consider his Article 9 ECHR right (the right to freedom of thought and religion) because the GP argued, his Article 10 right flowed from his philosophical and libertarian beliefs.
The High Court accepted the argument put forward by the GMC:
‘ article 10 is a qualified right and one of the qualifications specifically identified within article 10(2) is the legitimate aim of pursuing public safety and the protection of health. In respect of the views articulated by the claimant the respondent submits that, subject to the limits of proportionality, his observations would fall within the parameters of that qualification and thus as a medical practitioner expressing opinions about medical matters his entitlement to freedom of expression is not absolute’ (para 15).
The High Court identified two key factors concerning the Tribunal’s order:
‘The first is that the order, and in particular the conditions which are attacked by the claimant, are clear and obvious limitations on his right to freedom of expression under article 10. This is undisputed and indisputable. The second is that the effect of the order is to impose those constraints on an interim basis, prior to the issues in respect of compliance with article 10 having been fully heard and resolved at a final hearing.’ (para 16).
The High Court also held that it was not necessary for it to express an opinion as to the merits of the opinions expressed by the GP. The key question was whether the Tribunal took the correct approach when deciding whether to impose an interim order on the GP. (para 22). Section 12 (3) Human Rights Act 1998, the High Court held, makes clear that in correct approach in this case meant the Tribunal should have considered. ‘ The question or test to be applied is whether it is likely to be established at the final hearing that publication of the claimant’s views should not be allowed.’ (para 22). Having scrutinised the Tribunal’s decision making process the High Court found no evidence that s.12 (3) had been considered or the test applied. (para 23).
The High Court held:
‘The failure to allude to section 12 of the 1998 Act or apply the test which it requires was, in the particular circumstances of this case, in my judgment an error of law and a clear misdirection in the [the Tribunal’s] decision-making process. In this respect, therefore, the decision of the IOT was clearly wrong and cannot stand.’ (para 24). The GP was therefore granted his application.
A takeaway from this case is the importance for bodies within health and social care with investigative and sanctioning powers to ensure those undertaking the investigation/ imposing sanctions apply the correct law and follow the correct legal procedures. Difficulties most commonly arise when investigators do not know what they do not know, so do not know to seek advice from a lawyer with appropriate expertise.
This inquiry is included in this healthcare law and ethics update due to the significant health inequalities faced by this group of children and young people.
The questionnaire is the first step in Scottish Government’s engagement to develop their next suicide prevention strategy.
All responses will be analysed and themed. A working group will then utilise these responses along with feedback from future engagement exercises to inform the development of the Suicide Prevention Strategy to be published in September 2022.
An email contact address is available for anyone wishing to share their views but are unable to complete the questionnaire. [email protected]
Scottish Government are seeking views on their current strategy and future plans, as well as suggestions of further steps to be taken to end the need for foodbanks within Scotland.
This consultation is on the statutory guidance Scottish Government is required by law to issue in relation to the eight wellbeing indicators used by Scottish Government to assess the wellbeing of children and young people as part of its Getting It Right For Every Child (commonly referred to as GIRFEC) policy.
Scottish Government list and explain the 8 wellbeing factors as follows:-
This consultation invites people living with chronic pain, those who provide pain management services and support, and wider health, social care and third-sector organisations to consider and respond to the commitments made in the draft Framework.
This consultation exercise is part of the Northern Ireland’s Department of Health policy development process to introduce a system for enhanced financial support for hepatitis C stage 1 beneficiaries on the NI Infected Blood Payment Scheme.
The administration to introduce a scheme that is fair and reasonable in the interests of achieving greater parity of financial support across the UK, whilst demonstrating proper accountability for public money.
The NI Department of Health are keen to hear the views from anyone who is likely to be affected by this new provision.
CLOSING DATE: 5th January 2022
National Council for Health & Care Excellence (NICE) Consultations
You can link below to NICE consultations open up to 15th March 2022, see individual closing dates for each consultation.
Our next Law and Ethics Update will be published in March 2022. If you would like it emailed directly to you please let us know using the CONTACT US tab above.
2021 has been a particularly challenging year for everyone working in, or with or using health and social care, so huge thanks from every one at the Adam Bojelian Foundation for all you have done this year.
We hope you get the opportunity to for some well earned rest and relaxation over the Christmas period.
To help get you into the Christmas spirit here is Adam’s Christmas hit Christmas Gibbons which reached number 2 in the iTunes charts at Christmas 2010. Enjoy it!
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.
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. Please use the CONTACT US tab above to share your thoughts with us. Thank you
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