Please find below the July 2020 edition of our Healthcare update bringing you some of the most topical legal news stories from the last month.
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 by going to the dedicated section of Blake Morgan’s website.
Readers may also be aware that the Welsh NHS Confederation also produces some very interesting articles and news items, which can be found here.
COVID-19 related healthcare news
Revised Regulations in England to deal with COVID-19
On 3 July 2020 the Heath Protection (Coronavirus, Restrictions)(No.2)(England) Regulations 2020 were brought into force and had the effect of allowing venues including hotels, restaurants, pubs cinemas and hair salons to reopen from the 4 July 2020. In addition, the gathering of more than 30 people is prohibited except in some very limited circumstances.
On 11 July 2020 changes were brought into force by the following Regulations:
- Health Protection (Coronavirus, International Travel)(England)(Amendment) (No.2) Regulations 2020.
The Regulations remove Serbia from the list of exempt countries or territories for persons arriving from which there is no requirement to self-isolate for 14 days on arrival in England.
- Health Protection (Coronavirus, Restriction)(No.2)(England)(Amendment) Regulations 2020.
These Regulations now permit outdoor swimming pools and water parks to open from 11 July; and to allow nail bars and salons, tanning booths and salons, spas and beauty salons, massage parlours, tattoo parlours and body and skin piercing services to open from 13 July.
On 17 July amendments to the Civil Procedure (Amendment No.4)(Coronavirus) Rules 2020 were announced which will come into force on 23 August 2020. They will temporarily amend the Civil Procedure Rules in relation to how possession and enforcement proceedings by way of writ and warrant for possession (currently stayed until 23 August) are to proceed after the stay has expired. The rule states that proceedings are to proceed as per a new Practice Direction 55C.
On 18 July changes were brought into force by the following Regulations:
- Health Protection (Coronavirus, Restrictions)(Leicester)(Amendment) Regulations 2020
These Regulations impose closures and restrictions to Leicester to protect against risks to public health arising from coronavirus. The definition of “protected area” was amended to refer only to areas of Leicester City Council and the Borough of Oadby and Wigston.
- Health Protection (Coronavirus, Restrictions)(England)(No.3) Regulations 2020. These Regulations make provision for:
- a local authority to give directions relating to premises, events and public outdoor places in its area if they consider that the public health, necessity and proportionality conditions set out in the regulations are met.
- Such directions must be reviewed every seven days.
- Power for the Secretary of State to direct the local authority to give or revoke directions under the Regulations.
On 24 July 2020 changes were brought into force by the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place)(England) Regulations 2020 which requires members of the public to wear face coverings whilst inside a relevant public place except in certain limited cases.
The relevant public places are listed in schedule 1 of the Regulations and include:
- Shops (not including restaurants with table service, bars, pubs);
- Enclosed shopping centres (excluding those areas open to the public and where seating or tables are available for consumption of food and drink);
- Banks, building societies, credit unions, short term loan providers, savings clubs, currency exchanges, and places where transmission of money by means of cash or cheques payable to customers takes place; and
- Post offices.
Those who are exempt from mandatory face coverings by way of “reasonable excuse” include those who cannot wear or remove masks or face coverings:
- As a result of physical or mental illness, impairment or disability within the meaning of section 6 of the Equality Act 2010;
- Without severe distress;
- In the provision of assistance to another where the other person relies on lip reading to communicate;
- Where removal of the face covering is to avoid harm or injury or the risk of harm or injury to themselves or others;
- Where a person is entering or in a relevant place to avoid injury or escape a risk of harm and does not have a face covering with them;
- Where it is reasonably necessary for a person to eat or drink and must remove the face covering to do so;
- In circumstances where coverings must be removed to take medication;
- When someone is required to remove a face covering to verify their identity;
- Where required to remove face coverings in a registered pharmacy in the provision of healthcare or healthcare advice; and
- If a relevant person (as defined by the Regulations) requests the face covering be removed.
Also brought into force of the 24 July 2020 were changes under the Health Protection (Coronavirus, Restrictions)(Leicester)(Amendment No.2) Regulations 2020 which permit the opening of retail businesses and certain outdoor attractions in the protected area of Leicester.
On the 25 July 2020:
- The Health Protection (Coronavirus, Restrictions)(No.2)(England)(Amendment)(No.2) 2020 brought into force changes that allow indoor swimming pools to open including facilities at water parks, indoor fitness and dance studios, indoor gyms and sport courts and facilities.
- The Health Protection (Coronavirus, Restrictions)(Blackburn with Darwen and Luton) Regulations 2020 brought into force:
- the requirement to close businesses in Blackburn with Darwen and Luton except for limited permitted uses; and
- a restriction on gatherings both inside and outside of more than 30 people.
On 28 July 2020 the Health Protection (Coronavirus, International Travel)(England)(Amendment)(No.3) Regulations 2020 added Estonia, Latvia, Saint Vincent and the Grenadines, Slovakia and Slovenia to the list of exempt countries which do not required a period of self-isolation on arrival in England.
On 31 July 2020 the Government announced the following:
- From Saturday 1 August 2020, shielding guidance for the clinically extremely vulnerable will be paused across England, however this will not apply to the following areas: Blackburn with Darwen; Blaby and Charnwood; Luton; Leicester City; Wigston; and Oadby.
- Health and care workers will be required to self-isolate for 14 days on return from high-risk countries – this includes Spain which was removed from the exempted countries list on the 26 July 2020. Luxembourg was also removed from the list on the 31 July 2020.
The full list of countries from which self-isolation is currently NOT required can be found here.
Please note this list is subject to change at any time and at short notice.
Revised Regulations in Wales to deal with COVID-19
On 11 July 2020 changes were brought into force by the Health Protection (Coronavirus Restrictions)(No.2)(Wales) Regulations 2020 easing lockdown restrictions in large parts of the hospitality, leisure and tourism sectors. The Regulations contain the following provisions:
- To enable self-contained holiday accommodation to reopen from the 11 July
- The following businesses to reopen from the 13 July subject to Coronavirus guidance:
- Hairdressing salons and barbers, including mobile hairdressers;
- Pubs, bar, restaurants and cafes outdoors only;
- Outdoor cinemas;
- Indoor visitor attractions (excluding a small number of underground visitor attractions); and
- Places of worship.
- Allow for large gatherings of up to 30 people outdoors only where organised and supervised by a person responsible for sports and other leisure activities/classes from 13 July.
- From 20 July, playgrounds community centres and outdoors gyms able to gradually reopen after safety checks and mitigations are put in place.
On 13 July 2020 the Health Protection (Coronavirus, International Travel)(Wales)(Amendment) Regulations 2020 came into force which removed Serbia from the list of countries exempt from self-isolation for persons arriving from which there is no requirement to self-isolate for 14 days on arrival in Wales.
On 25 July 2020 the Health Protection (Coronavirus Restrictions)(No.2)(Wales)(Amendment)(No.2) Regulations 2020 came into force consisting of further easing of lockdown restrictions:
- Reopening of underground visitor attractions from 25 July 2020;
- Removal of restriction requiring holiday accommodation that is not self-contained to close;
- Removal of requirement for individuals to work from home where reasonably practicable;
- Clarification of the definition of “reasonable excuse” for gatherings to include accessing of public services and childcare and taking part in supervised children’s recreation.
- Reopening of the following businesses from 27 July 2020:
- Indoor cinemas;
- Nail and beauty salons;
- Massage parlours;
- Establishments providing tanning services;
- Body piercings and tattooing services;
- Electrolysis or acupuncture;
- Amusement arcades;
- Museums; and
- Galleries and archive services.
- The Requirement for passengers to wear a face covering on public transport subject to listed exceptions. Transport excluded includes school transport vehicles, ferries or cruise ships, aircrafts that neither take off nor land in Wales and vessels that do not dock in Wales.
- Those excluded from wearing face masks as a result of a “reasonable excuse” include:
- children under the age of 11;
- those unable to wear or remove a face covering as a result of physical or mental impairment or disability;
- those who have difficulty communicating in relation to speech language or otherwise;
- where removal is necessary to avoid harm or injury to themselves or others or when travelling to avoid harm;
- where removal is necessary to take medication, eat or drink (if allowed on public transport); and
- where asked to remove a face covering by an enforcement officer, or operator of public transport.
- Restrictions were also relaxed to allow a greater range of activities relating to the sale and letting of residential property e.g. viewings of occupied properties.
On 26 July the Health Protection (Coronavirus, International Travel)(Wales)(Amendments)(No.2) Regulations came into force which removed Spain from the list of countries that require no period of self-isolation for a period of 14 days on arrival in Wales.
Government issues COVID-19 guidance to public health officers
Public Health England has published guidance for public health officers (PHOs) on how to apply Parts 1 and 2 of Schedule 21 of the Coronavirus Act 2020. The powers contained within these sections of the Act enable PHOs, who have reasonable grounds to suspect an individual in England is, or may be infected or contaminated with the Coronavirus, and considers there to be a risk of infection to others, to impose proportionate requirements such as screening and isolation, and other restrictions. These restrictions may also be imposed on those that PHOs reasonably suspect to have travelled from an infected area.
The guidance sets out the following:
- The powers available to PHOs under Schedule 21 Parts 1 and 2;
- Where these powers apply;
- To whom the powers apply;
- Implementation of powers;
- Guidance in respect of appeals by those subject to restrictions under the Act; and
- The circumstances in which a person may be committing a criminal offence under Schedule 21.
For more information, please click here.
Other Health and Social Care News
High Court rules fostering service must allow gay couples to sign up as carers
The Cornerstone (North East) Adoption and Fostering Service has lost their legal challenge against Ofsted who downgraded the organisation from “good” to “requires improvement” in 2019.
During the inspection in March 2019, Ofsted inspectors deemed its policies in relation to recruiting of carers as discriminatory and lowered their “good” rating achieved in 2015. The policy in question was that Cornerstone required “applicants to refrain from homosexual conduct”.
In their challenge Cornerstone claimed Ofsted had engaged in “regulatory overreach” by downgrading the agency.
The High Court ruled that while they were legally allowed to recruit carers on the basis of religious ethos, the policy in respect of homosexual conduct was unlawful. Mr Justice Julian Knowles said that: “The law requires Cornerstone to accept gay men and lesbian women as potential foster carers”, and rejected the suggestion that gay men and women could not make “wonderfully loving foster and adoptive parents”.
Cornerstone have stated they will consider appealing the decision.
To read the full Ofsted report please click here.
For further information, please click here.
Government launches consultation on sentencing for assaulting emergency workers
The Ministry of Justice has launched a consultation seeking views on increasing the maximum penalty imposed on those who are found guilty of assaulting emergency workers.
The current maximum penalty under the Assaults on Emergency Workers (Offences) Act 2018 is 12 months and may be imposed on anyone found guilty of assaulting a police officer, firefighter, prison officer or paramedic. Tougher sentences must be considered by judges for more serious offences such as grievous bodily harm or sexual assault so do not come within the scope of the proposed amendment.
The consultation is seeking views as to whether the maximum sentence for assault should be increased from 12 months to two years in prison. This would mean the maximum sentence would have been doubled for the second time in two years. The consultation will run for four weeks.
For more information please see here.
New Health and Care Visa to be launched
The Department of Health and Social Care and the Home Secretary have announced the introduction a Health and Care Visa which will make it “cheaper, quicker and easier for healthcare professionals from around the world to come to the UK”.
The visa will be launched this summer in order to create a fast-track visa route for eligible healthcare professionals. It will come with a reduced visa application fee, including an exemption to the Immigration Health Surcharge for them and their dependents, and those applying can expect a decision within three weeks following biometric enrolment.
The visa is a type of Tier 2 (General) visa and is available to “qualified doctors, nurses and allied health professionals who have been trained to a recognised standard”. To be eligible, the worker must be offered one of the jobs contained in the Tier 2 guidance list, either for a NHS Trust or Health Board or one of several other medical or social care organisations contained in the guidance.
The relevant legislation was laid before Parliament on the 13 July and applications will open on 4 August 2020.
For a full list of those eligible to apply and further detailed guidance please see here.
For information regarding the Government announcement please see here.
Health Secretary considers over 40s social care tax
The Guardian has reported that Health Secretary Matt Hancock is considering whether to create a new tax on everyone over the age of 40 as a way to pay for social care in later life. Alternatively those affected would be compelled to insure themselves against social care bills.
The money raised through the tax would be used to help pay for assistance to the elderly such as washing, dressing and other activities within a care home, or to pay for their care home stay.
The proposed system is a modified version of those currently used in Japan and Germany which are widely considered to be sustainable way of financing social care. In Japan everyone begins contributing at the age of 40; in Germany everyone pays something from the time they start working; currently 1.5% of everyone’s salaries, with a further 1.5% ring-fenced within pension funds, is used to pay for care in later life.
While social care is a devolved issue in the UK, should such a tax be implemented it may apply to the whole of the UK as it would involve the tax system.
For more information please click here.
High Court rules against London Council over disability support for young woman
In the case JG, R (On the Application Of) v London Borough of Southwark  EWHC 1989 (Admin), the High Court has ruled against the London Borough of Southwark in relation to the care plan of a young disabled woman.
The Council carried out a needs assessment of the Claimant in March 2020, who has multiple medical issues including severe learning difficulties, autism and physical disabilities. She was receiving funding for 1:1 support, supplemented by funding for respite for her parents, which they used for additional support for their daughter. She was also receiving care from an overnight carer for eight hours per night.
The Council’s assessment concluded, amongst other things, that a behaviour plan for the Claimant was not being implemented, the Claimant’s mother could not state what the overnight second carer would be doing (and at a cost of £50,000 was not needed), and that the Claimant’s mother’s needs as carer were overshadowing those of her daughter.
The Claimant (through her mother as a litigation friend) applied for judicial review with five challenges to the Council’s report on the basis of irrationality.
The High Court concluded that the Claimant had made out the grounds of challenge and that parts of the assessment were unlawful and “did not take full and sufficient account of the full range of evidence…”. He considered the report materially flawed in this regard as a reasonable decision maker would take all evidence into account. Judge Allen stated that relevant evidence regarding the Claimant’s sleep problems was not taken into account and the requirement to shower the Claimant at unpredictable times (due to incontinence) was not met by a two hour limited provision and this limitation was irrational. It was also found to be unlawful to have not taken account of evidence of various professionals on the Claimant’s need for a wheelchair outside the home.
For more information please see here.
Parents win £37 million in maternity clinical negligence claim
The parents of a severely brain damaged child have secured one of the biggest compensation pay outs in NHS clinical negligence history after Guy’s and St Thomas’ NHS Foundation Trust admitted mistakes in the child’s care. These mistakes left him severely disabled and in need of 24 hour care.
When the child was born in 2013, staff failed to recognise that he was in breech position until labour had started. This resulted in a foetal distress and his mother required an emergency caesarean section. As a result of the delay in delivery the child was starved of oxygen, causing permanent brain damage resulting in complex disabilities for which he requires two carers at all times. His parents also had to move home in order for care to be properly provided.
The Trust admitted liability at an early stage however the settlement figure could not be reached until the child was old enough for his complex long-term needs to be properly assessed. The settlement has now been approved by the High Court, which recognises the round the clock specialist care and support the child will need for the rest of his life.
For more information, please click here.
Implementation of Liberty Protection Safeguards delayed
The introduction of Liberty Protection Safeguards (LPS) on 1 October 2020 has been delayed and full implementation is now expected to take place in April 2022, with some provisions coming into force before this date.
LPS were introduced in the Mental Capacity (Amendment) Act 2019, replacing Deprivation of Liberty Safeguards, which were thought to be overly bureaucratic and complicated. They will authorise deprivation of liberty orders in order to provide care or treatment to individuals who lack capacity to consent to their arrangements in England and Wales.
The Government will run a 12 week consultation on the draft regulations and LPS Code of Practice, and are currently considering a six month period to allow the health and social care sector sufficient time to prepare for the new system following publication of the final Code of Practice. The regulations and Code will offer detailed information on how LPS will operate in practice. Following the updating of the guidance and Code after the consultation responses are considered, both will need to be laid before Parliament and scrutinised.
To read the full statement by the Minister for Care Helen Whately please see here.
Government to introduce mandatory calorie labelling outside the home
Following consultation that ran from September to December 2018, the Government has confirmed its intention to introduce a policy that will require large businesses in the out-of-home sector, to display calorie information on the food and drink they sell. This will apply to businesses such as restaurants, cafes and takeaways which have 250 plus employees in England.
The aim of the policy is to tackle obesity (and the subsequent associated risks of type 2 diabetes, heart disease and cancers) within the UK and to encourage businesses to reformulate existing products and design new recipes with a lower energy content.
For more details information regarding consultation responses please see here.
For the Regulatory Policy Committee Impact Assessment please visit here.