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 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.
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The 7th Adam Bojelian Memorial talk was held on-line on 15th March, 2022
Note: Please click on the talk title above to access Peter’s talk. As it is a power point talk with imbedded commentary it may take a few minutes to load, so please be patient.
We have added Deprivation of Liberty Safeguards/Liberty Protection Safeguards Resources to our external resources, so you can easily access key law and guidance.
Free Legal Advice Sessions. Starting 23rd May, 2022 the Adam Bojelian Foundation CIC will be providing free to access legal advice sessions. The sessions will be provided as part of the Law Works clinics networks.
Preliminary advice will be 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 will not be taking on cases, but if you need further advice and assistance than we are able to provide in the 45 minute session, we will sign post you on to third party organisations.
Advice will be given on matters of healthcare law and ethics. We will 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.
More information is available on the News page of the AdsFoundation website.
AdsFoundation director Dr Zoe Picton-Howell’s paper exploring ‘the unintended consequences of school closures during COVID-19 on children and young people’s physical health rights -what are they and how can they be mitigated?’ has been published this month in the International Journal of Human Rights and is available Open Access.
Wales: Section 1 of the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 came into to force on 21st March 2022, abolishing the common law defence of ‘reasonable punishment’, outlawing physical punishment against children in Wales. Prior to 21st March the defence could be used by parents or those acting in loco parentis (in the place of parents) in both criminal and civil law.
Welsh Government Fact Sheet for healthcare sector
Welsh Government Fact Sheet for education workforce
Welsh Government Fact Sheet for social services workforce
Welsh Government Fact Sheet for the legal sector
Westminster
Green Paper: SEND* Review: Right support, right place, right time Government consultation on the SEND and alternative provision system in England (published 29th March 2022)
Westminster Government Summary of Green Paper
The Gov.UK website states a BSL version and an EASY READ Version will be available from April 2022.
Braille and audio versions of the Green Paper are available by emailing: [email protected]
*Special Educational Needs and Disability
This Green Paper sets out the Westminster government’s proposals to reform support for children and young people in England with special educational needs and disability.
It states that children and young people with special educational needs and those living with disability ‘feel unsupported‘. (Editors note: acknowledging that they are unsupported would perhaps inspire more confidence). It also acknowledges that these children and young people often ‘fall behind..their peers‘. The challenges parents face acknowledging an often adversarial system are also acknowledged.
The Green Paper identifies three key challenges, in the government’s words:
Westminter Government Consultation on the proposals set out in the Green Paper is now open, with a deadline of Friday 1st July.
The government are seeking the views especially of:
White Paper: Adult Social Care Reform White Paper – People at the Heart of Care (December 2021)
This White Paper sets out the Westminster government’s vision for support and care in ENGLAND for the next 10 years.
The government identify three key objectives:
The Kings Fund published this short analysis of the White Paper.
Original House of Commons Health and Social Care Committee; Children and young people’s mental health, Report (30 November 2021)
Original House of Commons Health and Social Care Committee’s Expert Panel: Evaluation (9th December 2021)
The Expert Panel evaluated and rated the government’s commitments on mental health services in respect of:
Westminster Government Policy Paper: UK COVID-19 Inquiry:draft terms of reference (Updated 15th March 2021)
The inquiry will cover the government’s preparation and response to the COVID-19 pandemic in England, Wales, Scotland and Northern Ireland.
Policy Paper: England Rare Diseases Action Plan 2022 (28th February 2022)
This builds on the four nations (England, Wales, Scotland & Northern Ireland) UK Rare Diseases Framework published in January 2021, which set out a shared vision for addressing health inequalities and improving the lives of those living with rare conditions. That framework set out 4 key national priorities of:
The Policy Paper sets out how the Westminster government plans to meet these priorities in England.
Policy Paper: Our Vision for the Women’s Health Strategy for England
(23rd December 2021)
‘Central to the Women’s Health Strategy will be a focus on women’s health across the life course. Unlike a disease-orientated approach, which focuses on interventions for a single condition often at a single life stage, a life course approach focuses on understanding the changing health and care needs of women and girls across their lives.’
Policy Paper: Government response to the independent inquiry report into the issues raised by the former surgeon Ian Patterson (16th December 2021)
The Independent Inquiry reported on 4th February 2020.
‘In April 2017, Ian Paterson, a surgeon in the West Midlands, was convicted of wounding
with intent, and imprisoned. He had harmed patients in his care. The scale of his malpractice shocked the country. There was outrage too that the healthcare system had not prevented this and kept patients safe. At the time of his trial, Paterson was described as having breached his patients’ trust and abused his power.
In December 2017, the Government commissioned this independent Inquiry to investigate Paterson’s malpractice and to make recommendations to improve patient safety.’
House of Lords COVID-19 Committee : Living in a COVID World: A Long-term Approach to Resilience and Wellbeing (16th March 2022)
The Committee summarised their conclusions thus:
‘[W]e believe that it is now time to reconsider the role and purpose of the
state. In this report, we outline our proposal to reset the state by placing a new
emphasis on governing for the long-term and a new focus on wellbeing.
We want to see a new resilience agenda that addresses inequality, digital
inclusion and public health, and strengthens civil society and the integrity of our
information systems. Such a resilience agenda is not merely an agenda for the
Government to enact alone. Resilience comes, in large part, from the capacity
and capability of non-government actors, from individuals and communities to
businesses and charities, to take action and mobilise; the Government’s role is
to enable, support and co-ordinate.’
UK Government, Department of Health and Social Care: Guidance Hospital discharge and community support guidance (31st March 2022) (England)
This guidance sets out how health and social care systems across England should support the safe and timely discharge of patients from hospital who no longer require hospital care.
Welsh Government
Welsh Government Learning Disability Educational Framework for Healthcare Staff
The first phase of the Paul Ridd Learning Disability Awareness Training Programme for healthcare staff, the Foundation Level training, will start on April 1st and will be a key driver in ‘reducing health inequalities for people with a learning disability, and is a key outcome within the Welsh Government’s 2018 Learning Disability Improving Lives programme. This first phase, championed by the Paul Ridd Foundation which champions equal access to healthcare for people with learning disabilities and Mencap Cymru has been a collaboration between Improvement Cymru together with the Welsh Government, the Paul Ridd Foundation, people with a learning disability, the University of South Wales, health services and the third sector.
The aim of the training is to improve knowledge and raise awareness of the issues that people with a learning disability face when accessing healthcare services by enabling healthcare staff and providers to understand the specific needs of the individual and to make reasonable adjustments that will meet those needs. The training will be provided on-line and eventually at three levels. The currently available first level, is for all healthcare staff; the second Enhanced level is for staff whose roles bring them into regular contact with people with a learning disability, and the third level is for those who specialise in working with people with a learning disability.
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. We do not include Bills which have only had a First Reading as many will never become law. You can however see all progressing through Parliament on the Parliament website.
Health and Care Bill Fact Sheets (updated 10th March 2022)
Health and Care Bill Combined Impact Assessments (updated 10th January 2022)
This Private Members Bill was introduced into the House of Commons on 16th June 2021 by Rosie Cooper MP (Labour, West Lancashire) and having passed through the Commons is now awaiting the Committee Stage in the House of Lords, where it is sponsored by Conservative Life Peer, Lords Holmes of Richmond.
The purpose of the Bill is for British Sign Language (BSL) to be recognised as a language in England, Wales and Scotland; for BSL to be used by ministerial government departments and to require guidance to be published in relation to BSL.
You can learn more about the Bill in this briefing on it from the House of Lords Library.
Cigarette Stick Health Warning Bill
This Bill featured in our December 2021 update. It was introduced in the House of Lords as a Private Members Bill by Conservative Life Peer, Lord Young of Cookham. It has completed its passage through the House of Lords and is scheduled for a Second Reading in the House of Commons on 6th May 2022. The Bill’s Sponsor in the Commons is Bob Blackman MP (Conservative, Harrow East).
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] Featured in our December 2021 update, This Private Members Bill started in the House of Lords and was introduced by The Lord Bishop of St Albans, It received its Third Reading in the Lords on 25th March 2022. The Bill will now move to the House of Commons.
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.
Down Syndrome Bill (England) is another Bill which featured in our December 2021 update. The Bill has now passed through the House of Commons to the House of Lords where it is scheduled to receive its 3rd reading on 1st April 2022.
The Bill was originally introduced into the House of Commons 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:
As mentioned in our December 2021 update, 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.
Judicial Review and Courts Bill
This UK Government Bill was introduced to the House of Commons on 21st July 2021 and has passed the Report Stage in the House of Lords on 31st March 2o22.
The purpose of the Bill is to create new law in relation to quashing orders; to restrict access to Judicial Review from certain decisions of the Upper Tribunal and to address written and electronic procedures in courts and tribunals.
A ‘quashing order’ is a judicial review remedy that quashes the decision in question.
‘Judicial Review‘ is when a Court reviews the lawfulness of a decision or action made by a public body.
The ‘Upper Tribunal‘ is part of the Court system that deals appeals from First-tier tribunals. It has four chambers including the Administrative Appeals Chamber, which hears appeals from among other First-tier chambers, the Health, Education and Social Care Chamber.
House of Lords Library Briefing Paper on the Bill
Law Society* briefings on the Bill *The Law Society is the professional body for solicitors in England and Wales.
This link from the Scottish Parliament explains the stages a Bill must go through to become law.
Coronavirus (Recovery & Reform) (Scotland) Bill
This Scottish government Bill aims to address recovery from the COVID-19 pandemic and address changes to meet future public health emergencies.
It aims to:-
The Bill has reached Stage 1 of it journey through the Scottish Parliament.
Gender Recognition Reform (Scotland) Bill
The Scottish government Bill aims to change the process to obtain a gender recognition certificate (GRC). A GRC grants legally recognition that a person’s gender is not the gender they were assigned at birth, but their ‘acquired gender’.
The Bill sets out
The Bill also addresses additional issues, for example types of GRC, appeals and revocation of a GRC.
The Bill has reached Stage 1 in its progress through the Scottish Parliament.
Good Food Nation (Scotland) Bill
This Scottish government Bill requires Scottish Ministers and certain public bodies, including NHS health boards and local authorities to create Good Food Nation Plans (GFNPs).
Scottish Ministers and the public bodies to have regard to the GFNPs when carrying out certain of their functions.
The Bill has reached Stage 2 in its progress through the Scottish Parliament.
Ockenden Final Report – Findings, Conclusions and Essential Actions from the Independent Review of Maternity Services at the Shrewsbury and Telford Hospital NHS Trust (30th March 2022)
This is the final report of the review chaired by Donna Ockenden started in 2017. The investigation cover the experiences of 1,486 families, some who had more than one child, who received maternity services at the Trust between 1973-2020.
The investigation found patterns of repeated poor care and failure of governance and leadership. The Report recommended 60 local actions for the Trust and recognising that some of the issues identified are wider that Shrewsbury and Telford, recommended 15 areas for Immediate and Essential Actions for all Trusts in England.
Care Quality Commission (CQC): Monitoring the Mental Health Act 1983 (2020/2021)
This annual review of the implementation of the Mental Health Act reports on the CQC’s findings as to how providers are caring for patients and whether patients’ rights are being protected.
The CQC report the workforce is under extreme pressure, with the pandemic placing additional stresses staff, patients and carers. They conclude that community services are key to reducing levels of detention in hospital, with lack of the right support at the right time being a particular problem for children and young people during the pandemic. The also report that urgent action is needed to address longstanding inequalities in mental health care, with the importance of the roll out of the NHS England patient and carers race equalities framework being stressed.
Together Scottish Alliance for Children’s Rights reports on the State of Children’s Rights in Scotland. (2nd March 2022)
Together is the alliance of children’s rights organisations in Scotland who work to improve implementation of the United Nations Convention on the Rights of the Child (UNCRC) in Scotland. They do this by (i) monitoring and reporting on the implementation of the UNCRC, including to the UNCRC Committee; (ii) promoting the UNCRC; and (iii) helping organisations which work with children and young people to integrate the UNCRC into their work.
Similar umbrella organisations exist in each of the UK nations:
Children’s Rights Alliance for England
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.
North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) [2022] EWCOP 15 (30 March 2022)
This is one of a number of cases that have come before the Court of Protection to consider whether an individual deemed lack capacity to consent to a COVID-19 vaccination should have the vaccination.
Similar cases include: E (Vaccine) [2021] EWCOP 7, SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14, and SS v London Borough of Richmond upon Thames & Anor [2021] EWCOP 31,
In this case the North Yorkshire Clinical Commissioning Group applied to the Court of Protection for an Order that it was in E to have his Covid-19 vaccinations. E is a man in his mid-sixties who lives with moderate to severe cognitive impairment, assumed to have been caused by vaccine damage from a whopping cough vaccination when he was a baby.
There was agreement that E lacked capacity to consent to his vaccinations, his family disagreed as to whether he should be vaccinated.
In their summary of the law, the Court of Protection cited the judgment of Lady Hale, the former President of the Supreme Court in the Supreme Court case of Aintree University NHS Foundation Trust v James [2013] UKSC 67 as showing how Mental Capacity Act 2005 best interest decisions should be made:
“…in considering the best interests of this particular patient at this particular time, decisionmakers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.” (para 36)
Dealing specifically with the question of COVID-19 vaccination, the Court of Protection added:
‘There is no presumption in favour of vaccination. Each case must be considered on its own facts. The relevant circumstances will include those specific to an individual’s case but also facts and matters that apply to all, such as the availability of vaccines, and data as to their general effectiveness and risks of side-effects.’ (para 37)
Granting the requested Order that E be given his COVID-19 vaccinations, the Court of Protection held that the principles established in the SD case (above) are ‘now very well established and will be applied by the Court of Protection in vaccination cases – both COVID-19 vaccines and other vaccines offered under national programmes.
i) The best interests assessment is not confined to evidence of the health benefits and risks of vaccination but involves a wide review encompassing all the relevant circumstances including those set out at s.4(6) and (7) of the MCA 2005;
ii) In relation to the benefits and risks to the health of P from vaccination, it is not the function of the Court of Protection to “arbitrate medical controversy or to provide a forum for ventilating speculative theories.” The Court of Protection will “evaluate P’s situation in the light of the authorised, peer-reviewed research and public health guidelines.” It will not carry out an independent review of the merits of those guidelines.
iii) There may be exceptional cases where P’s condition, history or other characteristics mean that vaccination would be medically contra-indicated in their case but in the great majority of cases it will be in the medical or health interests of P to be vaccinated in accordance with public health guidelines.
iv) Hence, disagreements amongst family members about P being vaccinated which are at their root disagreements about the rights and wrongs of a national vaccination programme are not suitable for determination by the court. It will be in P’s best interests to avoid delay and for differences to be resolved without recourse to court proceedings.’ (para 53)
Fixed recoverable costs in lower value clinical negligence claims.
This is a consultation on the UK Government’s proposed new scheme ‘to enable claimants and defendants to achieve faster resolution of ‘lower value’ clinical negligence claims (valued up to and including £25,000) at a lower, more proportional cost than under the current system’.
This consultation closes at 11.45pm on 24th April 2022
The UK Government is seeking views on its proposals to provide these regulators with greater flexibility to change their international registration processes.
The consultation also relates to proposed amendments to legislation concerning the General Dental Council concerning examinations impacted by COVID-19.
This consultation closes at 11.45 pm on 6th May 2022
Acquired Brain Injury call for evidence.
The UK government is calling for evidence from people living with acquired brain injury and their families and professionals with relevant experience and expertise, to help develop and build their acquired brain injury strategy.
The government is looking for evidence from individuals aged 16 years and above, living in England, Scotland, Wales and Northern Ireland.
The government state that rather than asking for comments on specific proposals, they are looking for ideas on which they can build.
This consultation closes at 11.45pm on 6th June 2022
The Mental Capacity Act 2005 (MCA) applies in England and Wales, with some aspects of its application being devolved to Wales.
The UK government is consulting on changes to the MCA Code of Practice, which sets out in detail how the MCA should be applied and on its proposed regulations for the new Liberty Protection Safeguards (LPS) which are replacing existing Deprivation of Liberty Safeguards (DOLS). They are also asking for feedback on documents produced to help with the implementation of LPS. Both DOLS and LPS are designed to protect those detained for treatment or care who are deemed to lack capacity to consent to their confinement and/or treatment or care.
You can learn more about LPS and the DOLS they replace on this page from our external resources. As you can read, the Supreme Court in the 2014 case of Cheshire West held that the safeguards apply widely, including for example to an individual being cared for in their own home.
This Consultation closes at 11.45 pm on 7 July 2022
Consultation on a new Code of Practice for the Expert Advisory Committees
This consultation by the Medicine and Healthcare Products Regulatory Agency and Commission on Human Medicines is consulting on proposals to improve and strengthen the Code of Practice for experts who advise on the regulation of medicines and medical devices. The Code aims to ensure that the experts are independent and impartial, and that processes for addressing potential conflicts of interest are robust and clear to all.
The Medicines and Healthcare products Regulatory Agency regulates medicines, medical devices and blood components for transfusion in the UK and is an executive agency, sponsored by the UK Department of Health and Social Care (DHSC).
The Commission on Human Medicines advises government ministers on the safety, efficacy and quality of medicinal products. It is an advisory non-departmental public body, also sponsored by the DHSC.
The Consultation closes at 11.45pm on 24th May 2022
Mental Health and Wellbeing Plan Call for Evidence
The Department of Health and Social Care is seeking the views of those aged 16 years and above in England on how best to improve mental health and wellbeing.
The DHSC state:
‘This discussion paper is asking people:
We want to hear everyone’s views on these questions. This includes:
This Consultation closes at 11.45pm on 5th July 2022
Consultation on Providing Community Equipment and Housing Adaptations
The Scottish Government are updating their 2009 guidance and consulting on the updated version. The guidance deals with the provision of equipment in the community and housing adaptations to support, among others:
The guidance applies to Scottish NHS and local authority bodies.
This Consultation closes on 6th June 2022
Scottish Mental Health Consultation
This Consultation is on Scottish Government’s proposed changes in the Scottish mental health and incapacity law, impacting on individuals subjected to mental health legislation, their unpaid carers, families and those working in mental health services and with those living with learning disability, autism, dementia, brain injury and related legal services.
This Consultation closes on 27th May 2022
Health and Social Care for Older People
This Consultation is on Scottish Government’s proposed health and social care strategy for older people (those 65 years and older). Scottish Government state the aim of the policy is to deliver integrated, person centred health and social care for older people, to address gaps in provision and new priorities, such as those resulting from COVID 19
This Consultation closes on 19th June 2022
This Consultation by the Welsh Government is addition to the UK Government’s consultation about proposed changes to the Mental Capacity Act 2005 and introduction of Liberty Protection Safeguards (see above under UK Government Consultations).
This Consultation closes on 7th July 2022
Consultation on The Reform of Adult Social Care
The Northern Ireland Government state that the ‘consultation paper is divided into six chapters which are:-
The Consultation will inform the Northern Ireland Government’s 10 year plan for adult social care.
This Consultation closes at 17.00 on 1st June 2022
You can link below to NICE consultations open up to 15th March 2022, see individual closing dates for each consultation.
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