Welcome to the review of August edition of Health Sector News, this month as well as the digest of legal issues hitting the headlines in the health sector we wanted to share with you the good news that our Healthcare team have been selected as a finalist in the Public Legal Category at this year’s LaingBuisson Awards.
Blake Morgan continues to offer its full support to all those working in the healthcare sector and is happy to provide any advice and assistance as and when required.
Please do also keep up to date with our latest articles and blogs on legal issues arising within the BM Insights section.
Blake Morgan’s Employment and Data Protection teams recently co-hosted two key webinars for employers on the hot topics of Returning to Work and Blended Working, and recordings of both of these are available to download and watch for free.
With reports that nine in ten people who worked from home over lockdown would like to continue to do so in some form, our second webinar on Blended Working in particular received a large number of questions on the day, and the team took extra time to answer as many as they could on the spot.
Whilst Healthcare sector staff have for the most part continued to operate at work premises throughout the pandemic with extra safety precautions and without the use of the furlough scheme, in some instances health and care employers may have employees in roles which enable them to carry on working from home (for example administration staff). The Prime Minister’s announcement on Tuesday was significant in this respect because, unlike the message in recent weeks in England, staff should now work from home when they can.
Click here to read more about some of the key issues that employers are facing at the moment in this area. Please note these webinars were recorded before the Government’s announcement on 22 September for England that employees who can should work from home again. Whilst the discussions primarily take into account the English position at the time in that returning to the workplace was encouraged, the discussions on consulting with employees around safe working practices and allaying concerns, as well as working from home for those who can with the accompanying Q&A document, are relevant in both England and Wales for the healthcare sector. They cover issues such as whether to make contractual changes, the health and safety and management implications of home working, the data protection risks of both workplace safety measures and working from home practices including the question of remote monitoring, and training on offer amongst other issues.
Coronavirus related healthcare news
Revised Regulations and guidance in England to deal with the Coronavirus
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020 (SI 2020/839)
These regulations were brought into force on 6 August 2020. Further places have been added by these regulations to the list of relevant places in England in which members of the public must wear face coverings. They have also removed some of the previous exemptions to places in which face coverings must be worn.
Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 7) Regulations 2020 (SI 2020/841)
Made on 7 August 2020, these regulations amended the Health Protection (Coronavirus) (International Travel) (England) Regulations 2020. Coming into force on 9 August 2020 and 11 August 2020, the amendments made included exempting Brunei and Malaysia from the requirement for persons arriving in England to self-isolate. The amendments also added Andorra, the Bahamas and Belgium to the list of countries from which travellers must self-isolate on arrival in England.
Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) (Amendment) Regulations 2020 (SI 2020/846)
These regulations came into force on 8 August 2020 and amended the Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 to include the area of Preston City Council within the protected area under the amended regulations. This imposes restrictions on gatherings of two or more persons in private dwellings in the Preston City Council area, and imposes restrictions on other gatherings of more than 30 people in that area. It also imposes restrictions on persons who live in the Preston City Council area from participating in gatherings of two or more persons in private dwellings outside of the Preston City Council area.
Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 3) Regulations 2020 (SI 2020/863)
Made on 14 August 2020 and coming into force on 15 August 2020, these regulations amended the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684).
The effect of these regulations was that more venues in England could reopen, including indoor skating rinks, soft play areas, bowling alleys, casinos and conference centres.
Health Protection (Coronavirus, Restrictions) (Greencore) Regulations 2020 (SI 2020/921)
These regulations require persons who work at specified units at the Greencore Northampton premises of Greencore Food to Go Ltd, or who worked there between 7 August 2020 and 21st August 2020, to self-isolate for the period of up to 14 days from the 29 August 2020. This requirement to self-isolate also extends to members of such persons’ households. The regulations set out certain specified circumstances in which the period of self-isolation can be for a shorter period than 14 days.
Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (SI 2020/914)
These regulations amended Schedule 29 of the Coronavirus Act 2020 (the “CA”). Amendments include extending the end of the Relevant Period under the CA until 31 March 2021, and increasing the required notice periods for the majority of residential possession notices from three to six months.
These regulations also disapply parts of Schedule 29, so that where a landlord relies on particular grounds involving anti-social behaviour when giving notice, the notice requirements are now the same as those that were in place prior to the CA coming into force. The amendments in these regulations are not retrospective and do not apply to notices given before 29 August 2020.
Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 11) Regulations 2020 (SI 2020/913)
These regulations made amendments to the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, so that all persons arriving in England from outside the common travel area must now provide the address or addresses at which they will stay during the first 14 full days following their arrival in the United Kingdom.
The regulations add Cuba to the list of countries whose nationals do not need to self-isolate on arrival in England, while also removing the Czech Republic, Jamaica and Switzerland from that list of exempt countries.
These regulations also replace the list of specified competitions in relation to the exemption for elite sportspersons from the requirement to self-isolate.
Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020/909
These regulations make amendments to a number of existing regulations, and have been made in order to assist the children’s social care sector during the Coronavirus pandemic.
The amendment to the Residential Family Centres Regulations 2002 permits the interview required by regulation 25 of those regulations to be carried out by telephone, video-link or other electronic means. The amendment to the Care Planning, Placement and Case Review (England) Regulations 2010 permits the visits required to be carried out under regulations 28 and 48 of those regulations to be carried out by telephone, video-link or other electronic means. The amendment to the Children’s Homes (England) Regulations 2015 permits any meeting taking place under regulation 22(1) of those regulations to be carried out by telephone, video-link or other electronic means. However, all three amendments only permit the above if, in all cases, doing otherwise would be contrary to guidance relating to transmission of the Coronavirus.
The amendment to the Adoption Agencies Regulations 2005 changes the adopter approval process, to enable medical information that currently has to be collected during stage 1 of the approval process to be collected during stage 2 of that process.
The amendments to the Fostering Services (England) Regulations 2011 provide that the fostering service provider may move on to collecting the information required by regulation 26(2)(a) of those regulations, even if they have not yet received the medical information required.
School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) (No. 2) Regulations 2020 (SI 2020/908)
These regulations amended the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012, to extend the range of exclusions that are covered by provisions of these 2012 regulations. This enables certain meetings at which an exclusion will be considered to be held by remote access if certain conditions apply. The amendments also limit the existing provisions of the 2012 regulations which extend certain time limits, if those time limits cannot be met for a reason related to the incidence and transmission of the Coronavirus or the practicability of holding a meeting by remote access.
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020 (SI 2020/906)
These regulations, which came into force on 28 August 2020, amended the Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations and Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020. Under these amendments, when a person is issued with a fixed penalty notice under those regulations, any fixed penalty notices already issued to that person under those regulations must be taken into account when determining the amount of the fixed penalty that can be imposed.
Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020 (SI 2020/907)
These regulations amended the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020. Under the amendments, restrictions have been imposed on the holding of gatherings (both inside and outside) of more than 30 people. Those regulations are also amended to make it is an offence to contravene, without reasonable excuse, any of these restrictions, and to enable an authorised person to issue a fixed penalty notice of £10,000 to any person aged 18 or over whom they reasonably believe has committed an offence of contravening these restrictions.
Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) Regulations 2020 (SI 2020/898)
These regulations amended the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020, to change the area within Blackburn with Darwen Borough Council which forms part of “the protected area” for the purposes of those regulations.
Health Protection (Coronavirus, Restrictions) (North of England) (Amendment) Regulations 2020 (SI 2020/897)
These regulations amended the Health Protection (Coronavirus, Restrictions) (North of England) Regulations 2020 to remove Wigan Metropolitan Borough Council and Rossendale Borough Council from “the protected area” under those regulations.
Statutory Sick Pay (General) (Coronavirus Amendment) (No.6) Regulations 2020 (SI 2020/892)
These regulations amend Schedule 1 of the Statutory Sick Pay (General) Regulations 1982. Under these amendments, a person is now entitled to statutory sick pay if they have been notified that they are to undergo a surgical or other hospital procedure; have been advised to stay at home for a period of up to 14 days prior to being admitted to hospital for that procedure; and stay at home pursuant to that advice.
Offshore Chemicals and Offshore Petroleum Activities (Oil Pollution Prevention and Control) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/855)
These regulations have temporarily amended the Offshore Chemicals Regulations 2002 and Offshore Petroleum Activities (Oil and Pollution Prevention and Control) Regulations 2005.
The temporary amendments provide that copies of the documents required under the 2002 and 2005 regulations do not need to be made obtainable in person where the effects of the Coronavirus mean that is not reasonably practicable for the public to inspect those documents. The amendments also require that copies of the application for consent under the regulations must be accessible on a public website, or supplied by post free of charge or provided electronically where requested, during this period.
Please note this list is subject to change at any time and at short notice.
Revised Regulations in Wales to deal with the Coronavirus
Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 4) Regulations 2020 (SI 2020/840 (W. 185))
Coming into force on 6 August 2020, these regulations amended the Health Protection (Coronavirus) (International Travel) (Wales) Regulations 2020. The amendments made included exempting Brunei and Malaysia from the requirement for persons arriving in Wales to self-isolate. The amendments also included adding Andorra, the Bahamas and Belgium to the list of countries from which travellers must self-isolate on arrival in Wales.
Health Protection (Coronavirus Restrictions) (No 2) (Wales) (Amendment) (No 4) Regulations 2020 (SI 2020/843)
Made on 7 August 2020, and coming into force on 10 August 2020, these regulations enable community centres, swimming pools, fitness studios, gyms, spas, leisure centres and indoor play areas to reopen. However, the regulations also require that measures be taken by these facilities to minimise the risk of exposure to Coronavirus on the premises.
The regulations also grant new powers on local authority enforcement officers, to ensure that measures are being taken at workplaces and other open premises to minimise the risk of exposure to Coronavirus. An officer may issue a “premises improvement notice” requiring the person responsible for the premises to take specified measures. If those measures are not taken, the officer may then issue a “premises closure notice” requiring the premises to close.
Health Protection (Coronavirus Restrictions) (No 2) (Wales) (Amendment) (No 5) Regulations 2020 (SI 2020/867 (W 189))
Amending the Health Protection (Coronavirus Restrictions) (No 2) (Wales) Regulations 2020 (SI 2020/725 (W 162)), the regulations introduced a requirement on specified businesses in Wales to collect and retain customer data.
The requirement is to collect contact information from each person at the premises (or from one person where there are multiple persons present from the same household) and to retain it for 21 days for the purpose of providing it to the Welsh Government or a public health officer on request.
Contact information is defined as the person’s name and information sufficient to enable that person to be contacted, in order to inform them that they may have been exposed to the Coronavirus. This includes a telephone number and the date and time of their visit. This would also include staff contact details and shift patterns at the premises.
Guidance on the requirement states that “if the individual still does not want to share their details, and you are under a duty to collect those details, they should not be allowed on the premises”.
The businesses specified in the regulations are:
- Hospitality (including pubs, bars, restaurants and cafes);
- Close contact services (including hairdressers, barbers, beauticians, tattooists, sports and massage therapists); and
- Indoor leisure centres or facilities (including swimming pools, indoor fitness studios, gyms and spas).
The Information Commissioner’s Office (ICO) has also updated its guidance on collecting customer data for contact tracing to incorporate this new requirement under the regulation introduced in Wales. This updated guidance can be found here.
Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No. 7) Regulations 2020 (SI 2020/917 (W. 205))
These regulations amended the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020/574 to include Cuba and Singapore within the list of exempt countries, and to remove the Czech Republic, Jamaica and Switzerland from the list of exempt countries. An additional amendment was to include ‘Matchroom Fight Camp – Boxing Championship Matches’ within the list of specified sporting events under the regulation.
Health Protection (Coronavirus Restrictions) (No. 2) (Wales) (Amendment) (No. 7) Regulations 2020 (SI 2020/912 (W. 204))
These regulations amended the Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 to:
- Provide that no person may, without a reasonable excuse, be involved in organising specified unlicensed music events;
- Confirm that people have a reasonable excuse to gather indoors to visit a resident in a care home, hospice, or secure accommodation for children;
- Clarify that people also have a reasonable excuse to gather to access educational services; and
- Permit casinos to open (although measures must be taken to minimise the risk of exposure to Coronavirus on the premises)
Curriculum Requirements (Amendment of paragraph 7(6) of Schedule 17 to the Coronavirus Act 2020) (Wales) Regulations 2020 (SI 2020/891 (W.197))
These regulations amend Schedule 17 paragraph 7(6) the Coronavirus Act 2020. The amendments add new entries to the table, contained in Schedule 17 paragraph 7(6), of enactments that the Welsh Ministers may modify for specified periods in a specified manner.
Health Protection (Coronavirus Restrictions) (No.2) (Wales) (Amendment) (No.5) Regulations 2020 (SI 2020/867 (W.189))
These regulations amended the Health Protection Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 to specify that collecting contact information from people for the purpose of informing people who may have been exposed to Coronavirus is a “reasonable measure” that may need to be taken (depending on the circumstances) under regulation 12 of those regulations.
These regulations also clarified that the maximum penalty for breach of the requirement to close premises, after a premises closure notice has been issued, is a fine and not imprisonment.
Health Protection (Coronavirus, International Travel) (Wales) (Amendment) (No.5) Regulations 2020 (SI 2020/868 (W.190))
These regulations amended the Health Protection (Coronavirus, International Travel) (Wales) Regulations 2020 to remove Aruba, France, Malta, Monaco, the Netherlands and the Turks and Caicos Islands from the list of exempt countries and territories.
The amendments also added further events and fixtures to the list of specified sporting events in Schedule 4 of those regulations.
Please note this list is subject to change at any time and at short notice.
UK Government guidance for employees self-isolating after returning to UK
The UK Government published new guidance for employees on 18 August 2020, following the extension of the quarantine requirements for people returning to the UK after travelling abroad.
The guidance states that employees who are self-isolating for 14 days after returning to the UK should, where possible, work from home during their self-isolation period. If it not possible to work from home, employees should agree with their employer to take leave to cover this period of self-isolation. Employers can also direct returning employees to take leave during the self-isolation period, provided that they give the employees sufficient notice.
Employers are advised to consider their position carefully before dismissing an employee who is unable to work because they are self-isolating. The UK Government guidance suggests that employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave, and that dismissal should be treated as a last resort. Employers who dismiss an employee because they have had to self-isolate after travelling abroad may be liable for unfair dismissal, with the guidance noting that employment tribunals will consider the public health guidance on the Coronavirus as a part of the facts surrounding the dismissal.
Welsh Government announces £800 million stabilisation package for Welsh NHS
In their Written Statement on the Health Stabilisation Budget, published on 5 August 2020, the Welsh Government has announced a new £800 million stabilisation package to help the Welsh NHS to continue to respond to and recover from the impact of the Coronavirus pandemic.
New measures introduced to support the development of safe Coronavirus vaccines for the entire UK
On 28 August 2020, the UK Government outlined a range of new measures to be introduced to assist in the development of safe vaccines for the Coronavirus, and to assist with their future mass rollout across the entire UK.
The new measures include:
- Introducing reinforced safeguards to support the Medicines and Healthcare Products Regulatory Agency (MHRA) in granting temporary authorisation for the use of any new Coronavirus vaccine, provided that the vaccine meets the highest safety and quality standards;
- Seeking to expand the trained workforce who can administer the Coronavirus vaccines, in order to improve patient access and to protect the public; and
- Clarifying what is the scope of the protection from civil liability for the additional workforce that could be allowed to administer vaccinations
The new measures will work to strengthen the existing powers of the MHRA to enable it to consider approving the use of the vaccine for patients, even before a full product licence is granted for its use.
Reinforcing these existing powers are necessary because of the ongoing requirement for new potential Coronavirus vaccines to have a licence granted by the European Medicines Agency (EMA) before they can be administered to patients. This requirement will persist for the duration of the transition period (while the UK is exiting the European Union). The strengthened powers granted to the MHRA will permit it to consider temporarily authorising the use of a vaccine, allowing patients to be vaccinated while the vaccine continues to undergo the full licensing process with the EMA.
The new measures could come into force by October 2020, before the beginning of the winter season.
Introduction of COVID-19 Clinical Negligence Protocol 2020
The COVID-19 Clinical Negligence Protocol: 2020 (the “Protocol”) sets out a best practice approach to personal injury litigation, and has been agreed between the Association of Personal Injury Lawyers and the NHS Resolution and Action against Medical Accidents, together with other signatories such as the Forum of Insurance Lawyers and the Association of British Insurers. The Protocol addresses the conduct of personal injury litigation during the “unprecedented and difficult times” that have come about as a result of the Coronavirus.
The intention of the Protocol is to encourage positive behaviours from lawyers and organisations representing both claimants and defendants. It also seeks to bring a consistency of approach in practice across England, and to reduce the risk of costs being incurred unnecessarily.
In particular, the Protocol has done the following:
- Introduced moratoriums upon limitation, which are in place until 3 months after the end of the Protocol;
- Made the use of email to serve and receive documents the default position;
- Encouraged more innovation (for example, using online examinations of clients for medical expert reports);
- Encouraged more co-operation in the progression of claims;
- Encouraged more interim payments of damages and costs to be made, to avoid unnecessary court hearings;
- Encouraged settlement meetings and mediations to be carried out remotely wherever possible;
- Encouraged the consideration of whether costs budgeting needs to take place initially, or whether it can be requested to be adjourned in order to save both Court and other resources.
The Protocol is intended to continue indefinitely, until one of the parties gives notice to end it. The provisions of the Protocol are also subject to review every 8 weeks, in order to continue to respond to the challenges of the current situation.
Signatories to the Protocol have stated that it is hoped that other representative and medical indemnity organisations will also now adopt the Protocol.
The full Protocol can be found here.
Department for Education produces Coronavirus guidance for children’s social care services
The Department for Education has produced guidance for children’s social care services and providers in England, on working with children and families during the Coronavirus pandemic. This guidance also recognises the approaches that many local authorities and providers are already taking.
The principle changes that have been made to previous guidance reflect the latest changes on social distancing and shielding, and how schools, colleges and nurseries will fully reopen to all children and young people in the autumn term.
The guidance is underpinned by a set of principles which should inform local decision-making and day-to-day practice with children and families. These principles are:
- Child-centred – promoting children’s best interests
- Risk-based – prioritising support and resources for children at greatest risk
- Family focused – harnessing the strengths in families and their communities
- Evidence informed – ensuring decisions are proportionate and justified
- Collaborative – working in partnership with parents and other professionals
- Transparent – providing clarity and maintaining professional curiosity about a child’s wellbeing
The guidance makes it clear that the statutory duties on children’s social care services and providers to protect children’s welfare are unchanged. Any amendments that have been made to relevant regulations are temporary, and have been made to provide for additional flexibility in certain circumstances which may arise as a direct result of the Coronavirus. The guidance makes it clear that any actions carried out under these amendments should only be carried out when absolutely necessary. Such actions must be with senior management oversight, and must be consistent with the overarching safeguarding and welfare duties that remain in place. Use of the flexibilities under the amendments must be recorded.
The guidance also highlights the importance of the effective delivery of all children’s social care services at this time, while ensuring children’s safety remains paramount.
NHS facing flood of Coronavirus compensation claims from cancer patients
Clinical negligence lawyers are expecting a rise in compensation claims over the coming months, in connection with the possibility that cancer diagnosis and treatment of patients has been sidelined during the Coronavirus pandemic.
The journal Lancet Oncology has predicted that delays in cancer treatment since March 2020 could result in up to 3,500 avoidable cancer deaths in England in the next five years. Some medical negligence experts have commented that even before the Coronavirus pandemic, the NHS was struggling to meet the demand for cancer services, with there having been over four million people on waiting lists. They have estimated that this number will more than double.
For some patients who have had their tests and treatment deferred, their condition has deteriorated or their prognosis has become significantly worse as a result. Some commentators have noted that although people are currently reluctant to pursue the NHS, there is likely to soon be a surge of cases.
The actual scale of such an increase in cases will depend on whether the Courts are prepared to allow such claims to be brought, and on whether defendants are able to successfully argue that issues of resources during the Coronavirus pandemic constitutes a defence.
For more information, the coverage by the Law Society Gazette can be found here.
Second report published on the status of the non-devolved provisions of the Coronavirus Act 2020
The Department of Health and Social Care has published the second of its reports on which powers under the Coronavirus Act 2020 (the “CA”) are currently active.
As many of the provisions under the CA introducing new powers were intended to be temporary in nature, the CA includes a facility to allow provisions to be commenced, suspended and even revived, as and when the surrounding circumstances dictate. The CA also enables provisions to be permanently repealed at an earlier date than the automatic repeal, which will occur two years from the coming into force of the CA.
As a consequence of this flexibility regarding powers, and to facilitate accountability and transparency over the use of powers under the provisions, the CA requires a report to be prepared and published every two months, which confirms the status of the main non-devolved provisions in the CA in respect of every 2-month period during the operation of the CA.
The report must set out for each of the provisions under the CA whether it is in force at the end of each 2-month period, and whether the UK Government have exercised any powers to change the status of any provision during that period. Each report must also contain a statement that the Secretary of State is satisfied that the status of the non-devolved provisions is appropriate.
This second report confirms that since the coming into force of the CA, there have been changes to the status of the provisions relating to mental health and mental capacity, NHS and local authority care and support, and registration of deaths and stillbirths.
The full report containing the complete status table for the CA can be found here.
UK Government announces stronger enforcement measures for breaches of social distancing restrictions in England
The UK Government has announced a series of strict new enforcement measures that will target the most serious breaches of social distancing restrictions in England.
This has included increasing fines to a maximum of £3,200 for those who repeatedly flout face covering rules. New on the spot fines have also been introduced for people found hosting or facilitating illegal gatherings, such as raves, of more than 30 people.
These enforcement measures follow the decision to permit many of the remaining culture, sport, leisure and business sector facilities and premises in England that have been closed to reopen. Such facilities and premises are only being permitted to reopen if they can comply with various new social distancing restrictions. These restrictions will also apply to businesses that operate remotely, and to those learning in vocational training environments.
The UK Government has confirmed that it will continue to review these measures in light of changing Coronavirus infection rates.
Welsh Government produces guidance on marriages and civil partnerships for local authorities, approved premises and places of worship
The Welsh Government has produced guidance on marriages and civil partnerships taking place during the Coronavirus pandemic.
The Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 permits places of worship and places which are licensed or approved (under Part 3 of the Marriage Act 1949) to open for the purposes of conducting solemnisation of marriage and the formation of civil partnerships. The Welsh Government has produced this guidance to set out what is required when conducting a ceremony.
High Court rules that Coronavirus Regulations were not unlawful
In a judgment handed down on 7 August 2020, the High Court has rejected claims that the Department for Education acted unlawfully in the process of implementing The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the “Regulations”).
In this case, the claimant had set out three grounds to its claim:
- That the Department for Education had failed to consult before making the changes to children’s legal protections;
- That the Regulations are contrary to the objects and purpose of the primary legislation (particularly the Children Act 1989); and
- That the Education Secretary had breached his general duty to promote the well-being of children in England.
The Judge dismissed all three grounds in reaching her decision. In respect of the first ground, the Judge did agree that the safeguards which were relaxed by the Regulations, to provide increased flexibility, were important children’s legal protections.
However, the Judge did not consider that the Department for Education had erred in law, due to the unprecedented crisis that the Coronavirus had presented at the time. In the circumstances, the Department for Education had to make very quick decisions to protect children in as effective a way as possible. This was notwithstanding the fact that the Children’s Commissioner, children’s rights charities and those affected by the Regulations had not been consulted.
In respect of the second ground, the Judge found that the Department for Education in introducing the Regulations was seeking to promote the policy and objects of the legislation and to promote the welfare of children. The fact that the flexibility introduced by the Regulations was in relation to important safeguards did not mean that the flexibility was not itself protecting children.
With regards to the third ground, the Judge stated that the very reason that the Department for Education was promoting the Regulations was to protect children who were at risk because of the consequences of the pandemic. That the flexibilities introduced under the Regulations lessened certain protections for some groups did not mean that those flexibilities did not also provide protection from the greater risk posed by the Coronavirus.
The claimant has stated that it is now seeking an urgent appeal of the judgment.
For further details, please see the Local Government Lawyer coverage of the decision here.
Welsh Government introduce Winter Protection Plan for Wales
The Welsh Government has announced the development of a ‘Winter Protection Plan’ for Wales, to prepare for the challenges faced by health and social services with the onset of winter, which are likely to be made worse by the impact of the Coronavirus.
This plan will address health and social care while looking to connect with the Welsh Government’s wider partners in the third and independent sector, to ensure that a collective approach is taken to addressing the challenges that will be faced.
The plan builds on the four harms approach used by the Welsh Government to underpin its existing planning arrangements, these being:
- Harm from COVID-19 itself;
- Harm from overwhelmed NHS and social care system;
- Harm from reduction in non COVID-19 activity; and
- Harm from wider societal actions/ lockdown.
The plan notes the need for assurance on the future demand that the health and social care services will face. Modelling and advice from the Technical Advisory Committee will play a significant role in providing that assurance. The plan also notes that it is essential that there are appropriate and adequate supplies of PPE throughout the winter months.
The measures under the plan will ensure that all essential services are sufficiently flexible and agile to provide care for any patient that becomes ill with the Coronavirus, or with other conditions, whether that care be provided in a hospital or in the community.
The plan will also seek to draw on the work that already been undertaken on testing, with the launch of the Test, Trace and Protect Strategy for Wales. It will also seek to support an expanded and comprehensive flu vaccination campaign for the autumn.
The Winter Protection Plan will be issued in September 2020.
Other Health and Social Care News
Report produced on the preparations needed to meet the surge in demand for mental health services
As a part of its NHS Reset campaign, a report has been published by the NHS Confederation, which considers the anticipated surge in demand for NHS funded mental health services and the preparations that need to be taken by service providers to meet these additional pressures.
The report notes that during the peak of the Coronavirus lockdown, mental health referrals saw a 30-40 percent reduction. Following the easing of lockdown restrictions, there have been anecdotal reports from service providers of referrals rising to higher levels than before the start of the Coronavirus pandemic. When compared to the statistics from before the Coronavirus pandemic, these recent referrals are also made up of a higher proportion of patients who are accessing services for the first time, and of persons who have more significant care needs.
Extension of Integrated Care Fund and Transformation Fund in Wales
The Welsh Government has announced a 12-month extension of the Integrated Care Fund (ICF) and Transformation Fund (TF), so that both funds will now last until April 2022.
The ICF enables health and social care services to work together to provide integrated support to, among others, people with learning disabilities, older people and children with complex needs, children in care and carers. It is also intended to facilitate the development and testing of new approaches and service delivery models.
The TF is intended to meet the additional costs of introducing new models of health and social care, to increase the pace of their development, to demonstrate their value and to accelerate the wider adoption and scaling up of new ways of working which are intended to replace or reconfigure existing services.
Severe Impact on Adult Social Care caused by Obesity Stigma
The Local Government Association has warned that care costs are rising for Councils as obesity levels increase, with increasing numbers of people living for longer in ill-health with multiple and complex needs. Such people often require costly housing adaptations, specialised equipment and personal care. As obesity related illnesses also impact people’s ability to live independently, it also leads to increased benefit costs and demand for social care. These factors are having a significant impact on demand and cost pressures in adult social care, which is already under significant stress.
To tackle the issues arising from obesity, the Association has stated that there is a need to confront weight related stigma. In the Association’s article, they have claimed that Councils have shown genuine concern that some health practitioners are only recording their patient’s condition (such as diabetes or stroke), and not whether they are obese, even though obesity is often the underlying issue. Reasons suggested for this failure to record data include fear of causing offence or the lack of referral services available for severely obese people.
The Association has urged health practitioners to have honest conversations with patients regarding their weight and for weight to be routinely recorded in data collection. This may help in preventing patient obesity becoming worse. It will also help inform prevention work and ensure that services are tailored to population need.
The article published by the Local Government Association can be found here.
Call for Parliamentary review of assisted dying law in England and Wales
The relatives of people who have brought legal cases on assisted dying are making a joint appeal for an inquiry into the current law in England and Wales for the first time. Their open letter seeks confirmation that Parliament will consider the issue again, five years after a private members bill was overwhelmingly rejected.
Under the Suicide Act 1961, it is unlawful to encourage or assist the suicide or attempted suicide of another person in England and Wales. Committing this offence carries a maximum sentence of 14 years in prison.
Proponents of a change argue that it has been five years since Parliament last examined the legislation, and fifteen years since it formally scrutinised the evidence relating to assisted dying. In that time, the number of UK nationals who have travelled abroad for assisted dying has increased six times over.
It is argued that the legalisation of assisted dying (or permitting it to take place) in countries such as Canada, Germany, Italy (and parts of Australia and The United States) demonstrates that it can be achieved in safe and compassionate manner. Those seeking a change to the law in England and Wales say that they are looking for a “very tight reform” of the law, being intended for persons within the final six months of their life, with the decision to permit assisted dying needing to be made by two doctors and a High Court Judge.
For more information, please see the Guardian coverage here.
Letter from NHS Confederation calls on Prime Minister to set out a timetable for social care reform
The Health for Care coalition, led by the NHS Confederation, has produced a letter to Prime Minister Boris Johnson, calling for him to set out a timetable for social care reform, and for him to fix social care once and for all.
In their letter, the Health for Care coalition (a coalition of national health organisations calling for social care reform in England) ask that a timetable for reform be set out, which will both address the immediate crisis and result in comprehensive legislative proposals to place the sector on a sustainable footing.
Describing the system as “fractured, under-staffed and under-funded”, the letter highlights the pressures experienced by those who have worked within the sector during the Coronavirus pandemic, and their genuine concern as to whether social care services will be able to cope should a second Coronavirus wave break out.
Stating that the system requires urgent reform, with the Coronavirus pandemic having exposed its frailty, the letter also states that the crisis has demonstrated how the NHS relies on the care sector.
The full letter from the Health for Care coalition can be found here.
Department of Health and Social Care publishes guidance on the reintroduction of NHS continuing healthcare
Guidance published by the Department of Health and Social Care on 21 August 2020 has set out how NHS clinical commissioning groups (CCGs) will restart NHS continuing healthcare (NHS CHC) assessment processes from the 1 September 2020.
Under the guidance, local health and social care systems are instructed to reintroduce the NHS CHC processes from the 1 September 2020. This will include NHS CHC assessments in the community, 3 and 12 month reviews, and individual requests to review eligibility decisions (local resolution and independent review). They will to need establish processes to manage both NHS CHC work that was deferred between 19 March 2020 and 31 August 2020 (as a result of the Coronavirus or otherwise), and routine NHS CHC referrals starting from 1 September 2020.
Local health and social care systems are also requested to introduce a change of process from the 1 September 2020, in order to implement their responsibilities under the ‘hospital discharge service: policy and operating model (August 2020)’. This change of process will make sure that, within the 6 weeks following a discharge from hospital, NHS CHC and Care Act assessments have been carried out and eligibility decisions have been confirmed. This will ensure that the person being discharged will have had their individual longer-term care needs assessed.
Nothing in this website constitutes legal advice. The information and opinions expressed on this website should not be relied on or used as a substitute for legal advice.
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