Law, Policy and Ethics Update – Winter 2023-2024
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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AdsFoundation Updates
AdsTalk24
Charlie Jones, clinical psychologist in medicine (@charlie_psych on X/Twitter) gave the 2024 Adam Bojelian Memorial Talk in Leeds on 6th March 2024, chaired by Ruth Northway. The talk which was followed by an insightful debate by delegates, can now be viewed by following this LINK TO ADSTALK24, where you will also find links to the materials Charlie cited. Please feel free to share the page and Charlie’s talk for education and training purposes.
New literacy resources and service
Following the very positive feed back following the publication of Adam Bojelian’s first book of poems ‘Playing With Words‘ and launch at last year’s Edinburgh International Book Festival, especially feedback about how well Adam poems are enjoyed by children and young people and are used in some schools to promote literacy, the AdsFoundation has now added the promotion of literacy to its aims and services. Our new resources include workshops based on Adam’s poems which promote literacy to children and young people and educate them, in an age appropriate way, ways some disabled people communicate. Further details of our new resources and services can be found following this LINK to Literacy resources & services.
Free legal advice clinic now closed
To give time to focus on other services, our free weekly legal advice clinic closed in January, having supported over 60 inquirers. Anyone now seeking free legal advice should contact another LawWorks free legal advice clinic.
Law, Policy and Ethics Update
Click on the title of each item mentioned to be linked to the document being referenced.
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 Parliament
BILLS
This private members bill was introduced in the House of Lords by Liberal Democrat peer Baroness Burt of Solihull on 20th November 2023. Its purpose is to prohibit sexual orientation and gender identity conversion therapy. It has passed its Second Reading and is awaiting the Lord’s Committee Stage.
House of Lords library notes
This private members bill was introduced to the House of Lords by Liberal Democrat peer Baroness Tyler of Enfield on 27th November 2023. Its purpose is to require every school to have access to a mental health professional.
The Bill has passed its Second Reading in the House of Lords and is waiting to be scheduled for its Committee Stage.
Briefing paper
A second Bill with identical purpose was introduce as a private members bill in the House of Commons by liberal democrate MP for Twickenham Munira Wilson on 9th January 2024, it is scheduled for its Second Reading on 21st June, 2024.
A text of the draft Bill is not, at the time of writing, available on Parliament’s website.
WESTMINSTER PARLIMENTARY & GOVERNMENT MATTERS
House of Commons Committees
The PHSO is independent of Government, the NHS or Parliament. Its role is to examine complaints of “maladministration” against certain public bodies, including UK Government departments and the NHS this includes, but is not limited to, bias, neglect, incompetence, inattention, delay and arbitrariness, that have caused harm or injustice.
The PHSO is responsible to the UK Parliament and the PACA conducts an annual scrutiny investigation into the PHSO. This PACA Committee report follows its scrutiny of the PHSO service for 2022-2023.
You may recall from our last quarterly update that the Adam Bojelian Foundation submitted evidence to this inquiry, (see page 33 of PACA report) highlighting in particular some of the problems faced by people with disabilities and older people, or their families, following a death in healthcare, in achieving a fair and unbiased investigation by the PHSO. We are therefore particularly pleased to read that the PACA Committee highlighted these concerns and made them their first recommendation to the PHSO: ‘The PHSO told us that it would reflect on the concerns about the service it provided to people with disabilities while outlining the measures it takes to meet the needs of complainants. In its response to this report, the PHSO should outline to us the steps it proposes to take to address the concerns we have heard in our written evidence, in particular in relation to service provision to people with disabilities and the elderly‘. (page 27, para 1)
The current PHSO Rob Behrens stands down shortly. He recently gave an interview to The Guardian newspaper where, whilst recognised the work of many brilliant people working in healthcare under extreme pressure, he highlighted his concerns at an NHS culture of covering up avoidable deaths and scapegoating whistleblowers. Maternity care, mental care and deaths from sepsis were particularly mentioned as areas of concern.
This HSC Committee report follows a public inquiry. The purpose of the Report, the Committee say is to ‘to serve as a basis for discussion and debate in future
Parliaments. [The Committee] have therefore endeavoured to bring together a comprehensive and up-to-date body of evidence relating to this difficult, sensitive, and yet, crucial subject.’
This HSC Commitee report follows the committee’s inquiry into the impact of people’s homes, neighbourhood and communities on their health:
‘Submissions highlighted issues including housing; town planning; active travel infrastructure; access to facilities for sport and physical activity;availability, quality and convenience of amenities and services;indoor and outdoor air quality;and access to green and blue spaces. Our respondents emphasised that “unhealthy” places generate substantial costs to the NHS and social care, as well as to individuals, the wider economy and society‘. (page 2, para 1)
Original HSC Committee Report 14th July 2023
British Dental Association to Government’s reponse 13th December 2023
Scottish Parliament
This diagram explains the stages a Bill passes through in the Scottish Parliament to become law. This link provides more information about Bills in the Scottish Parliament.
The Act incorporates the United Nations Convention of the Rights of the Child (UNCRC) into the law in Scotland. The Bill was approved on 7th December 2023 and became an Act on 16 January 2024.
This Act (the Bill was featured in our earlier quarterly updates) incorporates the UNCRC into Scots law, meaning it is now possible for a child or young person, or someone on their behalf to bring an action in a Scottish court for a breach of the UNCRC. It also puts a legal duty on public bodies to act in accordance with the UNCRC. The Act works in a similar way to the Human Rights Act 1998 in relation to the European Convention on Human Rights. The link below gives more details about the Act and its rocky road to becoming Scots law.
The Scottish Alliance for Children’s Rights (Together) report on incorporation of the UNCRC Act
See details of a Scottish Government consultation related to this Act under Consultations below.
The National Care Service (Scotland) Bill was introduced in the Scottish Parliament in June 2022. Its purpose is to create a Scotland wide National Care Service, equivalent to the National Health Service, moving responsibility for social care from local authorities to a national service, with the aim of improving the quality and consistency of care services across Scotland.
The HSCS Committee report above, follows over a year of consultations with the public. A summary of the HSCS Committee’s recommendations can be found at paragraphs 821-830 of their report.
Explanatory notes for the Bill
Research briefing for the Bill
Scottish Government
Scottish Government announced on 1st March 2024 that is keeping with the NHS Agenda For Change, that NHS staff will have their working week reduced by 30 minutes a week from 1st April 2024.
Welsh Parliament / Senedd Cymru
Guide to the stages of legislation in the Welsh Parliament
This Act (the Bill featured in our last quarterly update) received Royal Assent becoming law on 5th February 2024. The Act empowers Welsh Ministers to disapply law passed by the Westminster goverment in relation to the procurement of health services in Wales and gives Welsh ministers the power to develop and implement a new health service procurement regime in Wales.
Welsh Government
This Statement from Welsh Government sets out their expectations as to what good care looks like in emergency departments. Welsh Health boards are expected to adopt this quality statement locally as a framework for enabling optimal care in emergency departments. The Statement includes six goals for emergency departments.
NHS England Policy
NHS England announced on 12th March 2024 that puberty suppressing hormones, commonly referred to as ‘puberty blockers’ are no longer available as a routine treatment option for treatment of children and young people who have gender incongruence / gender dysphoria. This decision comes following a review which found there was not enough evidence to conclude that the hormones are safe or effective.
The hormones can now only be prescribed as part of a research programme.
Martha’s Rule has been introduced in response concerns at the slow response by health staff to a patient deteriorating, even when family members express concern that the patient is seriously ill. It is named after Martha Mills who died in 2021 from sepsis, following an injury to her pancreas, despite her parents raising concerns. The coroner ruled that had Martha been moved to intensive care earlier she would have probably survived.
The Rule which will start to be implemented from April 2024 gives the right to a second opinion and puts in place systems to enable this to happen. The NHS Constitution already gives a right to a second opinion, but does not have provision for systems to implement this.
Under Martha’s Rule:
- All staff in NHS trusts must have 24/7 access to a rapid review from a critical care outreach team, who they can contact should they have concerns about a patient.
- All patients, their families, carers, and advocates must also have access to the same 24/7 rapid review from a critical care outreach team, which they can contact via mechanisms advertised around the hospital, and more widely if they are worried about the patient’s condition. This is Martha’s Rule.
- The NHS must implement a structured approach to obtain information relating to a patient’s condition directly from patients and their families at least daily. In the first instance, this will cover all inpatients in acute and specialist trusts.
Nuffield Trust
The Nuffield Trust is an independent health think tank, with the aim of improving the quality of health care in the UK by providing evidence-based research and policy analysis and informing and generating debate.
This report found clear evidence that people with learning disabilities do not always have equitable access to preventative care. The authors highlight that people with disabilities:
- are more likely to be obese compared with the rest of the population;
- have lower breast and cervical cancer screening rates compared with the rest of the population;
- are likely to be diagnosed later with cancer, often at an emergency presentation;
- are often not on a learning disabilities register so often miss out on routine health checks and vacinations; and
- are less likely to be referred for mental health care, despite a high prevelance of mental ill-health; are less likely to referred for talking therapies and are more likely to be prescribed psychotrophic medicines, even when they do not have a condition for which such medication is appropriate.
The Report makes recommendations for improvements.
EASY READ Report
Open Consultations and Inquiries
This committee was set up in January 2024 and will report by 30th November 2024.
The Committee define pre-term as prior to 37 weeks. The Committee is concerned with the prevention and consequences of pre-term birth in England. They will consider how pre-term births can be prevented and the adverse consequences for babies, mothers and families can be reduced.
The Committee will also consider whether Government policy needs improvements and how to improve outcomes for women and babies from diverse backgrounds. This will include looking at prevention, neonatal care and long-term support.
The public are invited to submit evidence to the Committee.
Evidence should be submitted by 5pm on 27th March, 2024.
This Committee was also set up in January 2o24 and will report by 30th November 2024.
The Committee will consider the role of foods, such as ‘ultra-processed foods’ (UPFs) and foods high in fat, sugar and salt (HFSS) in a healthy diet, including their impact on health outcomes. It will consider how shifts in behaviours and trends have impacted obesity, how government policies influence these shifts, and industry’s and the wider public’s role.
The Committee is seeking written submissions addressing any or all of the following topics in relation to food, diet and obesity in England:
- Key trends in food, diet and obesity, and the evidential base for identifying these trends.
- The primary drivers of obesity both amongst the general population and amongst distinct population and demographic groups.
- The impacts of obesity on health, including on children and adolescent health outcomes.
- The influence of pre- and post-natal nutrition on the risk of subsequent obesity, and the specific influences on the diet of children and adolescents that contribute to the risk of becoming obese.
- The definition of a) ultra-processed food (UPF) and b) foods high in fat, sugar and salt (HFSS) and their usefulness as terminologies for describing and assessing such products.
- How consumers can recognise UPF and HFSS foods, including the role of labelling, packaging and advertising.
- The cost and availability of a) UPF and b) HFSS foods and their impact on health outcomes.
- The role of the food and drink industry in driving food and diet trends and on the policymaking process.
- Lessons learned from international policy and practice, and from the devolved administrations, on diet-related obesity prevention.
- The effectiveness of Government planning and policymaking processes in relation to food and drink policy and tackling obesity.
- The impact of recent policy tools and legislative measures intended to prevent obesity.
- Policy tools that could prove effective in preventing obesity amongst the general population, including those focussed on the role of the food and drink industry in tackling obesity.
The deadline for submissions is 10am on 8th April, 2024
Department of Health and Social Care, Westminster, Consultation -Proposed update to the statutory scheme to control the cost of branded health service medicines
This consultation seeks views on proposals to update the statutory scheme to control the cost of branded health service medicines.
This document explains the Government’s proposed updates to the current Branded Health Service Medicines (Costs) Regulations 2018.
This consultation closes at 11.59pm on 26th April 2024
Scottish Parliament
The Committee would like to hear the public’s views on the following questions:
- what factors contribute to the rates of suicide in Scotland?
- what actions could we take as a society to reduce suicide rates in Scotland?
- to what extent do you believe that the Scottish Government and COSLA’s Suicide Prevention Strategy 2022 to 2032 and delivery plan will achieve its vision of reducing the number of suicide deaths in Scotland?
- to what extent do you believe the Suicide Prevention Strategy 2022 to 2032 and delivery plan will reduce inequalities which contribute to differing suicide rates between groups?
- do you think that sufficient funding is available to implement and support the Strategy and delivery plan?
- to what degree have the voices of people with lived experience of suicide been meaningfully considered within the development of the Strategy and its implementation?
Views can be submitted in English, Gaelic, Scots or in any other language.
This consultation closes on 29th March 2024
In Scotland members of the public can also submit their views on proposed Scottish Parliament Bills. Views are currently welcome in relation to the following proposed Bills:
This is a proposal for a Bill to give people of all ages living with terminal illness and residing in Scotland a legal right to palliative care.
Consultation Document
This consultation runs until 4th June 2024
Scottish Government
The Expert Advisory Group (EAG) on Ending Conversion Practices’ defined conversion practices as “any treatment, practice or effort that aims to change, suppress and/or eliminate a person’s sexual orientation, gender identity and/or gender expression.
Scottish Government is proposing a series of measures using both criminal and civil law to end conversion practices in Scotland.
Summary Consultation
EASY READ Consultation
This consultation ends at midnight on 2nd April 2024.
This consultation seeks views on the following draft statutory guidance:
Related documents:
Statutory guidance on Part 2 of the UNCRC (Incorporation) (Scotland) Act 2024
Statutory guidance on Part 3 of the UNCRC (Incorporation) (Scotland) Act 2024
United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024
This consultation closes on 16th May 2024.
Welsh Government
Welsh Government wants to hear views on the way concerns and complaints about NHS care are raised, investigated, and responded to.
The Putting Things Right process intends to:
- place patients at the heart of the process
- improve the focus on compassionate, patient-centred communication
- improve the Putting Things Right process to be more inclusive
- include an escalation process for urgent concerns of deliberate abuse or harm
- provide answers after someone dies
- refresh the arrangements to provide free legal advice and medical expert reports
You can read the current Welsh legislation that governs the Putting Things Right process.
EASY READ Consultation
This Consultation ends on 6th May 2024.
The Welsh Government is seeking views on their draft mental health and wellbeing strategy for Wales 2024-2034.
EASY READ Consultation document
EASY READ response form
Children & young persons’ consultation document
British Sign Language Consultation document
This consultation closes on 11th June 2024.
Welsh Government are seeking views on their draft 2024-2034 suicide and self-harm prevention strategy.
EASY READ Consultation
EASY READ response form
British Sign Language Consultation
This consultation closes on 11th June 2024
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 a judgment from the Supreme Court, the UK’s highest court, delivered on 11th January 2024, where the Court considered whether an individual can make a claim for psychiatric injury caused by witnessing the death or other horrifying event involving a close relative which resulted from earlier clinical negligence?
Hearing three conjoined appeals (three different cases with similar claims together), the Supreme Court confirmed by a majority of six to one judges, that health professionals do not have a duty of care to relatives who suffer a psychiatric injury as a result of witnessing a close relative suffer and die as a result of the health professional’s negligent care unless the relatives witness the actual act or acts of professional negligence.
Paul v Royal Wolverhampton NHS Trust [2022] EWCA Civ 12
This case was brought on behalf of the daughters, aged nine and tweleve at the time in question, who witnessed the death of their their father Mr Paul from a heart attack. Mr Paul had 14 months earlier been negligently discharged from hospital with an untreated heart condition which health staff failed to diagnose.
Polmear v Royal Cornwall Hospital NHS Trust [2021] EWHC 196 QB
The parents of a young child in this case who died witnessed attempts to resuscitate their child and also one parent who was subsequently diagosed with post traumatic stress disorder (PTSD), attempted resusitation themselves. The child had been negligently discharged from hospital without her heart condition being diagnosed.
Purchase v Ahmed unreported Birmingham CC 6 May 2020
In this case the mother of a young woment who died after a out-of-hours GP failed to diagnose pneumonia brought the claim. The mother had discovered her daughter motionless and CPR was unsuccessful. The mother was diagnosed with PTSD, depression and anxiety.
In all three cases the claimants argued that they were sufficiently close in time and space to the deaths for the health professionals’ duty of care to their deceased relative to apply to them as a secondary victim.
The Court of Appeal had followed the 2013 case of Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, where a claim failed when a daughter had witnessed her mother’s death caused by a work place injury but had not witnessed the actual accident. The daughter therefore failed to show that she was sufficiently close in time and space to the negligent act.
The Supreme Court held that health professionals owe a duty of care to their patients but not to a patient’s relatives for injuires caused by witnessing the impact of the health professional’s negligent act towards the patient.
The Supreme Court also held that for a claim to suceed a relative would have to witness the negligent act by the health professional, not just the outcome of the negligent act. Where a relative, the secondary victim, can establish sufficient proximity to the negligent act, the Supreme Court held that it is no longer, (as previously thought) necessary to show “sudden shock to the nervous system”. The Supreme Court judges considered this to be an out of date understanding of psychiatric illness and not something meant to restrict legal liability. The Supreme Court Judges also clarified that for a claim to suceed a claimant does not have to show that the events they witnessed were exceptionally horrific.
Our next Law, Policy and Ethics Update will be published in late Spring 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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