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Are Family Law Courts and Associated Bodies Working to their Limits?

Scarcely a week goes by when a solicitor has clients unaffected by the impact on the courts and public services regarding cuts and COVID-19. Sir Andrew McFarlane, President of the Family Division, commented back in March that the family law courts and associated bodies were working at the limit of their capacity. His concerns were reiterated and emphasized on 24 July when the President urged separating families to resolve their disputes elsewhere, rather than through the courts.

This is something family law solicitors largely strive for and have done so long before the present public health and economic situation, but we can only work within the boundaries presented by our clients who, in turn, are often affected by social and economic factors that further limit their choices.

These constraints could be said to fall under two headings, although they are by no means mutually exclusive:

Social Factors

  • There was a time not so long ago when (for example in North Shropshire) funding was available for specialist domestic abuse workers to go into schools and work with even the youngest children, in an age-appropriate way, to develop an understanding of healthy, respectful relationships. That funding has disappeared.
  • It remains apparent that girls and young women remain prone to messaging and factors that foster a sense of being undervalued – such as period poverty, revenge porn and body-shaming – which go on to affect how they participate in relationships.
  • Despite the great work being done by many organisations to de-stigmatise mental health issues in young men, the “big boys don’t cry” message impacts negatively on how some men may feel about expressing their emotions in a healthy way when relationship issues arise.

Financial Factors

  • Under-funded agencies are simply not able to offer the interventions needed for families having difficulties, in a timely fashion or at all. The President himself recently compared family law cases to bread dough which continues to grow and feed upon itself, even when it is left on the shelf to prove. When a case is ongoing and itself subject to delays there can be further difficulties in accessing assistance from other agencies, relatively minor issues at the outset of a case can become explosive. One example of this is the withdrawal of the Domestic Abuse Perpetrator Programme, which was previously available at no cost, if ordered by the court.
  • Private providers such as counsellors and therapists exist but, with the best will in the world, they are simply not accessible to many families, financially or geographically, especially in rural areas where financial poverty is compounded by poverty of basic services, lack of public transport, etc.
  • Legal aid is still available for family law cases where a person qualifies financially and can prove the existence of domestic abuse. The emphasis on proving domestic abuse can shift the focus unhealthily so that behaviours which, whilst unacceptable, were not “deal-breakers”, must necessarily be pushed to the forefront and assume a level of importance that detracts from other issues within the case. Having qualified for legal aid the person is then under financial pressure from the Legal Aid Agency to bring the case to court, or risk running out of funding.
  • Mediation can be carried out under legal aid without needing to prove domestic abuse, and there is also some government funding available for mediation on children issues where a person cannot access legal aid. However, a mediated agreement may still need to be put before the court for approval, and will go through the same process as contested cases at the outset, adding to the backlog.
  • Where resources are tight, and the other party in a case is not able (perhaps for one of the social factors set out above) to engage constructively in negotiations, then the solicitor may feel that an application to court is the only way of achieving some sort of timetable and “end-date” enabling the client to have a broad indication of what the case might cost.

It is worth mentioning ADR (Alternative Dispute Resolution) at this stage which, whilst not an outright solution to the financial issues, since it must still be paid for, can give people a good deal more certainty and control over the situation than they might have through the courts. However, since it is largely voluntary it still relies on a degree of goodwill and cooperation from both parties.

The President’s observation is entirely correct and a reduction in the number of matters coming before the court is something we need to aspire to. However, the court service is merely a cog in a large wheel designed to move society forward, and unless there is concerted and joined-up Governmental effort to tighten the other cogs (through availability of vital services and a cultural shift starting with very young people), then the wheel will simply fall off altogether.

Dementia Friends

Working in the Court of Protection department I regularly interact with clients who lack capacity to manage their property and affairs, or other aspects of their daily life. Some of our clients may have sustained traumatic brain injuries due to personal injury or medical negligence, or they may have a disease which affects their brain, such as a type of dementia. As with everything in life, there isn’t a one size suits all approach that you can take when supporting people, so I decided to attend a Dementia Friends Webinar to ensure I can tailor my approach in the most appropriate way.

Dementia Friends offer free online, or in person, sessions to educate people about dementia. They have short pre-recorded videos you can watch immediately, or you can sign up to attend a virtual or in person webinar run by a Dementia Champion. Due to living in Shropshire I chose to sign up to a virtual session which lasted around one hour. If you would like to attend a session, and I would highly recommend this to everyone, you can do so here.

Dementia is an umbrella term and covers diseases such as Alzheimer’s disease, Lewy body dementia, vascular dementia and frontotemporal dementia. The Alzheimer’s Society published in December 2021 that there were 900,000 people living with dementia in the UK with this figure forecast to rise substantially over the next 20 years.

Whilst living with dementia is not without its challenges, there are many negative connotations strongly linked with the diagnosis. Although dementia is degenerative it is easy to forget that there is more to a person than dementia. The Dementia Friends session was very much focused on addressing and changing the stigma associated with dementia.

As with anything in life it is easy to get trapped focusing on the negatives, but there are things we can do as individuals to help change the stigma. Of course this will vary depending on the situation and the individual, but multiple small changes can make a large difference.

Understanding

Dementia doesn’t solely affect someone’s memory, it can affect their motor skills such as being unable to use a knife and fork when eating. Someone living with dementia may have difficulty with sequencing and struggle with tasks such as getting dressed. They may have difficulty communicating or with their visual perception. Understanding how dementia affects the individual means you can learn how to assist them. For example, if you were to ask someone living with dementia if they wanted orange or blackcurrant squash to drink they may not be able to communicate with you, however, if you had a picture card with both on they may be able to understand the question and communicate which they would like. Something as simple as slowing down your pace when you talk, and simplifying sentences to someone living with dementia, could make a difference in their ability to communicate.

Change

Change doesn’t have to be big to make an impact. It may be that a setting is familiar and leaving things as they are is what’s best for a person living with dementia, however, for some a small change may make their life easier. This could be something as simple as changing the layout of the kitchen so it is easier to make a sandwich or hot drink, or the layout of a wardrobe making it easier for them to get dressed in the morning.

Awareness

This is twofold: we need to be aware that we can help even in small ways and also the need to spread awareness. There is more to a person than their dementia diagnosis whether they are in the early stages or more advanced stages. It is easy for people to see or hear of a diagnosis and make an assumption. Sadly we witness these assumptions far too frequently, but with education and raising awareness hopefully they will become less frequent.

We understand that a diagnosis of dementia doesn’t automatically mean someone lacks capacity, and if they do lack capacity regarding certain decisions it doesn’t mean they lack capacity to make any decision whatsoever. If you or a loved one have been diagnosed with a disease that affects the brain, have an acquired brain injury, or have been assessed as lacking capacity, that doesn’t mean access to legal help is no longer available. The Court of Protection department at Lanyon Bowdler specialise in mental capacity law and are happy to assist you with any enquiries.

Farm Diversification – Tax Considerations and Consequences

Diversification can lead to new sources of income, and may also be an attractive business project for younger generations of farming families looking for long-term financial stability. With the number of UK residents opting for ‘staycations’ since the COVID-19 pandemic, diversification has become an increasingly desirable tool for farmers and land owners to access new means of revenue. However, diversification can have a negative impact on your inheritance tax (IHT) position and could exclude the availability of valuable IHT reliefs. Before making any changes, it’s important to consider what tax implications might lead from diversification, to ensure your family doesn’t end up with a large and unwanted tax bill in the future.

Agricultural Property Relief (APR)

Many farms benefit from Agricultural Property Relief (APR), which can reduce, or completely wipe out, IHT on farm land and buildings. Briefly speaking, APR requires that the land or buildings must be occupied and used for agricultural purposes. This can include farmland, barns and storage buildings, farmhouses and farm cottages. When considering the availability of APR, HMRC will look at the different uses of the land or property and the way it is used and occupied.

Changing the use of such land and property from agricultural to non-agricultural use risks the asset in question no longer qualifying for APR and therefore becoming subject to IHT.

One popular method of diversification in recent years has been converting existing agricultural land or buildings into holiday lets, or camping and glamping sites. However, applying the above rules, these assets would no longer benefit from APR. Diversification by a tenant of your land away from agricultural use can also affect your eligibility for APR as the landowner.

Business Property Relief (BPR)

Some diversified assets may qualify for Business Property Relief (BPR), which can also reduce or eliminate IHT. In order to benefit from BPR, the asset, land or buildings must be used for ‘trading’ rather than ‘investment’ purposes. Therefore assets owned for the purpose of collecting rental income without much management, or any extra services, will likely be considered to be ‘investments’ and therefore less likely to qualify for BPR.

Common diversification projects on farms that are likely to be deemed ‘investment’ activities include holiday lets. If the level of additional services provided is particularly high, then HMRC can consider the business as ‘trading’ rather than ‘investment’, however, this is difficult to judge and each case must be treated on its own facts.

Is there a quick solution?

There is no ‘right’ answer when it comes to diversification. All farms and all families are different, with individuals having their own preferences and motivations, so there is no “one size fits all” approach. There are options when it comes to mitigating the potential IHT bill, such as insurance policies to cover IHT bills and making lifetime gifts, however, these are not without their own consequences and as a result no one should take such steps without speaking with a qualified advisor first. As with everything in life, the best option will depend on your individual circumstances.

If your diversified business is likely to include trading and investment activities, then it’s important to discuss the potential tax consequences with a specialist advisor, such as one of our Private Client solicitors.

Deborah James' Campaign Increases Bowel Cancer Awareness

Deborah James, also known online as Bowelbabe, sadly passed away recently at the age of 40 from terminal bowel cancer. Deborah was diagnosed with bowel cancer in December 2016 after experiencing a six month change in bowel habit including passing blood in her stool, opening her bowels more frequently and losing weight.

At the time of diagnosis, Deborah’s cancer was stage 4 - the most advanced stage - meaning it had spread to other parts of the body. She underwent extensive treatment, including numerous invasive surgeries, and spent the rest of her time campaigning and raising awareness about her condition, by sharing her story via the BBC “You, Me and the Big C” podcast and her social media platforms. Set up in the weeks preceding her death, her fund for Cancer Research UK reached over £7.3 million.

In the weeks following Deborah’s death, NHS chief executive Amanda Pritchard reported that thousands more people had checked bowel cancer symptoms on the NHS webpages. On Wednesday 2 July 2022, the number of visitors to these pages increased tenfold from 2,000 to 23,274, compared with the day before.

Bowel cancer affects almost 43,000 in the UK each year and it is the fourth most common cancer in the UK. Depending on where the cancer starts, bowel cancer is sometimes called colon or rectal cancer.

More than 94% of cases are diagnosed in people over the age of 50, whilst 59% are diagnosed in people aged 70 or over. However, it is important to remember that bowel cancer can affect anyone of any age, as in Deborah James’ case, and more than 2,600 new cases each year affect people under the age of 50.

Bowel cancer is treatable and curable, especially if diagnosed early. However, survival rates drop significantly as the disease progresses. Sadly, only one in 10 people with stage 4 cancer (the most advanced stage) survive for more than five years after their diagnosis. Bowel cancer is currently the second leading cause of cancer deaths in the UK.

Symptoms

According to the Cancer Research UK website, possible symptoms of bowel cancer can include:

  • bleeding from the back passage (rectum) or blood in your poo
  • a change in your normal bowel habit, such as looser poo, pooing more often or constipation
  • a lump that your doctor can feel in your back passage or tummy (abdomen), more commonly on the right side
  • a feeling of needing to strain in your back passage (as if you need to poo), even after opening your bowels
  • losing weight
  • pain in your abdomen or back passage
  • tiredness and breathlessness caused by a lower than normal level of red blood cells (anaemia)

These symptoms can also be caused by a number of other, less serious conditions, but it is important you get checked by your GP if you have any of these symptoms. The chances are that you do not have bowel cancer, but given the importance of the early diagnosis in bowel cancer cases, it is better to consult your GP if you have any concerns.

Treatment

If you are unfortunate enough to be diagnosed with bowel cancer, your treatment will depend on a number of factors including the location of your cancer, the type, the stage (i.e. the size and whether it has spread), and the grade (i.e. the appearance of the cancerous cells under a microscope).

In most bowel cancer cases, the first course of treatment is surgery to remove the cancer. For small, early stage bowel cancer, you may be able to have the cancer removed from the bowel lining, along with a border of healthy tissue. This is called a local resection. For larger cancers, you might undergo a procedure called a colectomy, which involves removing the part of the bowel containing the cancer and joining the two ends of the colon back together. The amount of bowel that is removed will depend on the size of the cancer.

For people with bowel cancer in the very early stage 1, surgery alone may be curative. However, others may also need to undergo chemotherapy to lower the chance of the cancer coming back after surgery (also known as recurrence). Those with advanced stage 4 bowel cancer may, in addition to surgery and chemotherapy, receive targeted and specialised immunotherapy drugs and radiotherapy to reduce their symptoms.

One of the targeted drugs for advanced bowel cancer is Cetuximab (also known by its brand name Erbitux). It is a type of monoclonal antibody which seeks out cancer cells by targeting particular proteins on the cell surface. Cetuximab may be offered alongside a normal chemotherapy programme.

Chemotherapy is delivered in cycles and after each round of treatment you have a break to allow your body to recover. When patients have a break from chemotherapy, they continue to receive Cetuximab alone. Treatment breaks in England from Cetuximab beyond six weeks were prohibited under NHS rules, despite evidence from a clinical trial that showed a break in Cetuximab does not have a negative impact on patient outcome. For any breaks longer than this, funding for treatment was no longer provided by NHS England, which meant patients had to pay for this potentially life-extending medication themselves.

However, Queen's University Belfast in collaboration with Bowel Cancer UK recently carried out a historical analysis of both intermittent and continuous Cetuximab treatment, to determine their impact on quality of life and treatment costs. The research found that a treatment break approach with Cetuximab does not have any negative impact on a patient's quality of life and outcome, but could potentially save up to £1.2 billion for the NHS in England. This research helped to bring about a temporary policy change, which remains in place today, removing treatment break restrictions that occurred during the COVID-19 pandemic. The treatment break rule does not apply elsewhere in the UK

Bowel cancer patient Steve Clark started a petition to scrap the rule completely, something which Bowel Cancer UK are also campaigning for. The rationale behind scrapping the rule is that patients are often forced to discontinue their treatment due to being unable to afford to pay for the treatment privately, even though many need a break longer than six weeks to recover from side effects like painful rashes and nausea, or they require surgical treatment for an unrelated condition such as a hernia, which requires them to stop Cetuximab for more than six weeks.

As well as the seemingly positive impact this would have for patients, the money that could be saved in allowing breaks from Cetuximab is significant, and in a time when the NHS is being pushed to its limit, any money that could be saved and redirected to staffing, training and other resources is surely a good thing.

Coming to terms with a cancer diagnosis is difficult, particularly when there are questions about the standard of care someone has received. If you or a family member considers your care has been affected by a delay in diagnosis of cancer, it is important to explore all the options available to you. Our Clinical Negligence team at Lanyon Bowdler have experience handling such cases and are happy to discuss the matter with you and guide you through the process sensitively.

Advantages and Disadvantages of Appointing Lanyon Bowdler to act as Executors in your Will

Lanyon Bowdler are often asked by clients to act as executors in their Will.

It is important you are aware of both the advantages and disadvantages of appointing a professional executor, in order to make an informed decision about the appointment and its related costs. Below is a non-exhaustive list of the advantages and disadvantages.

You have a choice of appointing either a professional, a lay person (such as a family member or friend), or a professional executor. A beneficiary in your Will may be an executor. It is not compulsory to appoint Lanyon Bowdler as your executor when you instruct the firm to prepare your Will.

A lay executor may engage the services of a professional to assist with the administration of the estate.

However, there are often circumstances where a professional executor is in the best interest of both you and your estate. This will depend on the constitution and complexity of your estate and those who will benefit under the terms of your Will.

Advantages

  • Your estate will be dealt with professionally in accordance with the law. The team at Lanyon Bowdler have years of experience in administering estates in an efficient manner.
  • Your executors will act impartially between all beneficiaries. Any family conflict can be managed fairly, as Lanyon Bowdler are not personally involved. An appointment of a less robust lay executor may be problematic where there is an overbearing beneficiary or where one executor is likely to dominate and overrule the other.
  • If the estate is contested, Lanyon Bowdler have a specialist Contentious Probate team who can advise the executors.
  • The role of an executor can be complex and time consuming at what can be a very difficult time for family and friends. Lanyon Bowdler can remove the worry and strain from lay executors.
  • An executor is personally liable for any negligence in an estate. This may cause concern for a lay executor about getting something wrong. If something goes wrong, your beneficiaries would be insured against any financial loss due to Lanyon Bowdler’s professional indemnity.
  • The team at Lanyon Bowdler would have worked with you drafting your Will. You can be assured that we will carry out your wishes in your Will.
  • The team have years of experience which will mean the executors understand the “legal jargon” in the Will.
  • The administration of an estate involves the consideration of tax implications in an estate, such as income tax, capital gains tax and inheritance tax. Lanyon Bowdler can advise any tax planning opportunities to ensure your estate is distributed in the most tax efficient manner.
  • The team would be able to offer advice to beneficiaries on Deeds of Variations if they wish to vary their entitlement in the estate. This can be used as a tax planning strategy for the beneficiary
  • If a Trust is created in your Will, the trustees can obtain up to date advice from the firm’s specialist Trust team on whether the Trust needs to be registered at HM Revenue & Customs, along with their ongoing legal responsibilities.
  • The executors will have access to Lanyon Bowdler’s panel of trusted professionals to assist in the administration of an estate; such as accountants, independent financial advisers, tracing agents, genealogists, estate agents and clearance companies.
  • If a lay executor dies before you, who deals with your estate may be out of your control.

Disadvantages

  • Where a professional executor acts they will be entitled to charge for services under the terms of your Will. Generally, a lay executor would not charge. However, Lanyon Bowdler provide clear and transparent information on their charging structure. The charging structure does vary from time to time. Our costs for probate and administration services are advertised on our website and we encourage you to review these before making a decision on the appointment of executors in your Will.
  • Circumstances may have changed from when you prepared your Will. The reasons why you appointed a professional executor at the time of your Will may no longer be relevant, eg. the size and nature of your estate, family dynamics or locality. Under these circumstances, your family may ask Lanyon Bowdler to renounce as executors. A professional executor is not required to do so. However, Lanyon Bowdler will consider whether, at the date of death, circumstances have changed and what is now in the best interests of the estate.
  • Professional executors are often not personally involved in your affairs prior to date of death. They may not be aware of your financial affairs and family situation. However, Lanyon Bowdler do recommend you leaving a comprehensive asset and information schedule with your Will. Lanyon Bowdler would also work together with your family, friends and attorneys to ensure they have this information at the outset of the administration of the estate.
  • With some executorships, there may be a continuing role for the executor to act as a trustee. This could lead to ongoing trustee fees.

Gender Critical Beliefs and Discrimination in the Workplace

The issue of gender critical beliefs is of course much in the news and proliferates across social media.

On 6 July 2022, in the case of Forstater v CGD Europe and others, an employment tribunal issued a decision which will help shape future debate on the scope of legitimate expression of beliefs, particularly beliefs about gender, in a work context.

The tribunal found that Ms Forstater had suffered direct discrimination when her employer declined to renew her contract because of her expression of gender critical beliefs – including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men – on Twitter and at work.

Background

Religion or belief is a protected characteristic under the Equality Act 2010, and it is direct discrimination to treat a person less favourably because of their religion or belief.

In some cases a respondent may argue that the reason for less favourable treatment is not the belief itself, but the way in which the claimant has manifested it.

There is distinction between:

1. Cases where the reason for less favourable treatment is the fact that the claimant holds and/or manifests a protected belief. This would amount to direct discrimination because of belief.

2. Cases where the reason for less favourable treatment is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In these cases it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself.

Facts

In November 2016, Ms Forstater was employed as a Visiting Fellow by CGD Europe on a one-year contract, and her contract was renewed in each of the following two years.

Ms Forstater believes that (i) a person’s sex is a material reality that should not to be conflated with gender or gender identity, (ii) a person's sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman, and (iii) while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual sex.

Ms Forstater engaged in debates on social media about gender identity issues, and made a number of statements in opposition to the government's proposed amendments to the GRA. In doing so she made some remarks which some trans people found offensive. She also brought into the office and posted on twitter materials by campaigning organisation Fair Play for Women, which described allowing gender self-identification (self-ID) as stupid, dangerous and unfair to women. Some of Ms Forstater’s colleagues complained that they found her conduct offensive, and her fellowship was not renewed for a third time.

Ms Forstater brought claims, including of direct discrimination, alleging that the decision not to renew her contract was because of her gender critical belief. At a preliminary hearing, an employment tribunal concluded that Ms Forstater's beliefs did not qualify for protection, but that decision was overturned on appeal and so her claims were allowed to continue. The employer argued that the reason for the non-renewal of Ms Forstater’s contract was the way in which she had expressed her belief, and not the fact that she held it.

Decision

The key issue was the reason why the employer had decided not to continue Ms Forstater's employment.

The tribunal held that the ways in which Ms Forstater manifested her gender critical beliefs had had a significant influence on the employer’s decision. The question therefore arose as to whether Ms Forstater had manifested her beliefs in a manner to which objection could reasonably be taken or, to put it another way, manifested them in an inappropriate manner. In doing so, the tribunal reminded itself that it would be an error to treat a mere statement of a protected belief as inherently unreasonable or inappropriate, as this would be in effect to hold that the belief is not worthy of protection: even beliefs that may be profoundly offensive or distressing to others must still be tolerated in a pluralist society.

The tribunal found that none of the manifestations of Ms Forstater's belief, whether taken individually or collectively, were objectively offensive or unreasonable; and, further, that it was not necessarily the case that crossing the line on a single occasion would have been sufficient to justify action being taken against her.

  • Ms Forstater had tweeted about Pips Bunce, a gender-fluid person who had received an accolade aimed at female executives. Ms Forstater had written that "the FT were wrong to put him on a list of top female executives and wrong for him to accept the award”, and described them as a "man in heels", and "a part time cross dresser who mainly goes by the name of Phillip". The tribunal considered this an uncomplimentary and dismissive observation that had been intended to be provocative, but that while the point "could have been made in more moderate terms", the majority held that it was not an objectionable or inappropriate manifestation of Ms Forstater's belief, given the context of a debate on a matter of public interest.
  • Ms Forstater had stated that "people should of course be able to define their identity anyway they like but other people are not compelled to accept it as relating to any material reality" and that "a man's internal feeling that he is a woman has no basis in material reality". The tribunal considered these to be straightforward statements of Ms Forstater's protected gender critical belief, and so not something to which objection could reasonably be taken.
  • Ms Forstater had drawn comparisons between trans women and Rachel Dolezal, a white woman who had caused controversy when she claimed to be black. The tribunal held that the point being made was little more than an assertion of Ms Forstater's gender critical belief.
  • In response to a question about why a concern for women's safety meant that she could not "acknowledge [trans women's] womanhood in normal life", Ms Forstater had replied, "Because the places that women and girls get assaulted and harassed are 'normal life!!!' At school. At work. In churches. At sport centres. On dates. In bars. On trains. In lifts. At conferences …". The employer had characterised this as "catastrophising" from a discussion about all-male interview panels into a discussion about extreme violence. The tribunal considered that what Ms Forstater had written was an unobjectionable observation in the course of the debate, and that even if this was an expression of a worst-case scenario, it was not an objectively unreasonable observation to make.
  • Ms Forstater had said that "Under "self ID" a transwoman is any male who identifies as a woman (a feeling in their head). I am a woman, but I don't have a feeling in my head". The tribunal rejected the employer’s argument that that the reference to "feeling in their head" inappropriately equated self-ID with mental illness, and held that it was little more than asserting Ms Forstater's gender critical belief.
  • Ms Forstater had mocked those who did not share her beliefs, saying "What I am so surprised at is that smart people who I admire…are tying themselves in knots to avoid saying the truth that men cannot change into women". The tribunal observed that mockery or satire is part of the "common currency of debate" and that, while it might reach a level of being objectively unreasonable, this was a "fairly mild" example and clearly had not.
  • Ms Forstater left a Fair Play for Women campaign booklet in the office. The tribunal found that the booklet was expressed in "robust, campaigning terms" and referred to "the stupidity, danger and unfairness of sex self-ID" which it said would lead to an increase in the "risks, threats and discomfort to cis women". The tribunal held that the booklet was an expression of the core gender critical belief, and that in a debate of this nature it is not objectively unreasonable or offensive to describe the opposing view as stupid, dangerous or unfair. In any event, Ms Forstater had agreed with the employer that she should not have left the booklet in the office, and so would not do so again.
  • Ms Forstater posted a Fair Play for Women campaign video on Twitter which promoted similar arguments to the above booklet, accompanied by ominous or threatening music and imagery, and red and black lettering which the employer argued was reminiscent of Nazis. The tribunal found there was nothing unusual about music and illustrations being used in this way, whether in political campaigns or commercial advertising, and there was nothing objectively offensive about using red and black.
  • In an internal discussion about self-ID on the employer's instant messaging system, Ms Forstater had included a link to an article about a paedophile. Ms Forstater had said about the link in cross examination that "I am not saying this is a reason for not recognising trans people. I'm saying there are people using the trans movement to silence people who are campaigning for safeguarding". The tribunal held that there was nothing objectively offensive or unreasonable about her use of an actual case to illustrate her argument about safeguarding.

Accordingly, the tribunal upheld Ms Forstater’s complaint of direct discrimination.

Comment

First instance decisions such as this are not binding on future tribunals – but they can act as persuasive authority.

One of the interesting aspects of this judgment is the tribunal's analysis of the communications that were alleged to have caused offence. The tribunal acknowledged that where a belief is protected, straightforward statements of that belief must also be protected. It also allowed Ms Forstater a certain latitude in how her belief could be legitimately expressed, for example, by accepting that satirising or mocking an opposing view is part of the "common currency of debate" and should therefore be protected to some degree, as could statements that are intended to be provocative. The tribunal also acknowledged that a single inappropriate manifestation of a belief would not necessarily justify action being taken; rather, the employee’s conduct should be considered as a whole.

Where to draw the line in individual cases will be very fact-sensitive, and will no doubt remain an area for conjecture in similar cases going forward. Employers will always have to walk the tightrope of trying to balance their employees’ rights to hold a philosophical belief against other employees’ right not to be discriminated against because of their protected characteristic, and we would encourage employers faced with grievances against, or otherwise concerns relating to the conduct of, employees who express philosophical beliefs to obtain our advice.

It is as yet not known whether CGD Europe will appeal.

If you require any advice about the issues addressed in this blog, please contact me or another member of the Employment team.

Hey Pharmacist…A New and Improved System?

Written by Lucy Martin, Legal Secretary

From 1 June 2022, almost every medical practice in England will no longer take prescription orders over the telephone. All future requests for prescriptions are to be made by one of the following ways:

  • Online (via the Patient Access website or NHS app)
  • Via Patient Triage (online, following an online consultation)
  • In writing (using your re-order slip or full written details; including dose and quantity).
  • At your local Pharmacy (depending on if the Pharmacy has access to the EPS service or not)

When discussing this decision, it is important to examine the ramifications, why it has been made, and the impact this will have on the most vulnerable members of our society.

So, what is EPS? The Electronic Prescription Service is an NHS service that was introduced in February 2014. The EPS was designed to give people the opportunity to change how their GP sends their prescription for either medication or medical appliances to their preferred location. On the 3 August 2020, the EPS "upgraded" which meant that almost all of our prescriptions will now be processed electronically. The claim made here was that "electronic prescriptions will help save the NHS money".

On the surface, the EPS seems like a forward thinking, easy, reliable, secure and confidential service. It emphasises how easy it is to order prescriptions; it is less time consuming in that it may reduce pharmacy waiting times, and allows for the prescriptions to be ready at the Pharmacy before you arrive to collect them. However, the EPS fails to highlight some key concerns that most of us have with this "new and improved" system.

Too good to be true?

It is easy to make the assumption that the introduction of the EPS will be preferable and accessible for most adults, and on the surface it seems like a positive move to reduce waiting times and save both time and money for the NHS. However, it is clear that little thought has been given to those adults who are unable to use this system. According to the Data and Analysis Census 2021; "almost all adults aged 16 – 44 years in the UK were internet users, compared with the 54% of adults 75 years or older". The first question we must ask, is; what about the 46% percent of adults over 75 who do not use the internet but do need regular access to prescriptions and medical services? Furthermore, in 2020 the Office for National Statistics reported that over 400,000 over 16s have no access to the internet. With the rising cost of living and an aging population, we can assume that in 2022 this figure will have increased further. Have those backing the universal roll out of the EPS taken into account how these people will access their prescriptions? Is the EPS’s target audience only those adults who can easily access and use the internet, and if so, what about everyone else? It is painfully clear that the introduction of this service raises too many questions and very few answers.

The question of who will fall into the category of those unable to access the internet is something that the promoters of the EPS fail to answer. We can see that almost half of all adults over the age of 75 do not use the internet; they either do not have access to it, do not want access to it, or simply do not know how to use it. Whilst being in this age range doesn’t necessarily mean that you cannot use the internet, it is clear that this group is one that will be greatly affected by these changes. That is not all; regardless of age, vulnerable adults who may lack the capacity to access the internet, and in turn access any applications or websites, will also be gravely affected. Those with physical or mental health needs may struggle to use this service, as would someone who lacks the financial means to have regular internet access.

We must keep asking the question; what happens to those who cannot use the EPS? From their interpretation, if anyone is to fall into the category of those who cannot access EPS, the following steps will need to be taken:

  • If you are unable to access the internet, you should get a family member, carer, friend or neighbour to order your prescription for you using your details.
  • If your local Pharmacy does not have access to the EPS, you will have to find another nominated pharmacy who does.
  • If you are unable to collect your prescription due to the nominated pharmacy being a fair distance away from your usual Pharmacy, you should get a family member, carer, friend or neighbour to collect it for you.

Whilst at first glance these may seem like plausible answers, they do in fact raise more unanswered questions.

  • How does a vulnerable or elderly person without internet access easily find another pharmacy, and why do all pharmacies not have access to EPS?
  • What if you live alone and do not have any family, friends, carers or neighbours who can collect your prescription?
  • How much do you trust others with your sensitive, personal information and prescription details, and do we even want people we trust to see what medications, aides or appliances are prescribed to us?
  • Why should we have to rely on others to obtain our own prescriptions in the first place, when prior to the introduction of EPS this was something that many people could manage without assistance?

It is a blind assumption that everyone has someone they can trust and rely on to access and collect prescriptions for them. We already know that there are huge issues with social isolation amongst vulnerable adults those without family or close friends to follow the steps as laid out has every potential to cause distress and upset and expose the vulnerable to risk.

Perhaps even more worrying, is the question of whether or not we are at the point where autonomy is being removed from vulnerable members of society when it comes to their medical needs? Why does being elderly or disabled or vulnerable mean that your only choice to access medication or aides that you need to improve your quality of life is to share that personal, sensitive information with other people? Regardless of having a trusting relationship with someone who can take these steps for you, it is unreasonable to assume that the process will be without embarrassment or caution for some people. Do we really want to risk ending up in a situation where vulnerable people are risking their health and wellbeing because they feel unable, or are unable to, ask for help accessing something they have every right and need to access?

What does this mean for the future?

Since entering into the 21st Century, the technological boom has been nothing short of spectacular, and has changed how we live life in many positive ways. However, there are undeniable issues that we are still tackling when it comes to this societal progression. We cannot deny that by only allowing the ordering of prescriptions through an online application and not over the phone or even through face-to-face contact, a lot of people who need their prescriptions will not be able to access them. Are we willing to trust non-medical professionals with our prescriptions? Are we ready to operate on an internet only basis to gain everything that we need in life? And finally, considering all the flaws and questions raised, is this really a reliable, secure and confidential service after all?

Holiday Planning After Brain Injury

Going on holiday always takes careful preparation and there are many different things to consider such as your destination, how to get there, what to pack, among other things.

After a brain injury, planning a holiday might require even more care. However, holiday organisers are increasingly considering the needs and wants of people with disabilities, broadening your options of possible holiday destinations. There are various steps you can take to help your holiday to go as smoothly as possible. Whether you are planning on having a short weekend away or a long holiday abroad.

Travelling with a brain injury doesn’t need to be a scary thing. If you plan for it, take your time and rest, you’ll be able to relax and enjoy the full experience.

Preparation

Consider using a holiday planning app to help you with making arrangements. There are many travel comparison websites that can help visitors find accessible holiday packages to browse.

If you are planning on going abroad, check whether there are any special health requirements for the countries you are visiting. Vaccinations may be required or advisable against certain native diseases; you should speak to your GP about any vaccinations you may require.

Check in advance whether the places you are travelling to and from have accessible facilities such as toilets and if so, where they are located. You could consider marking these on a map to help find them. Some cities within the UK have this information available on their websites. You may need to have a Radar key to unlock some of these toilets. Most local authorities sell Radar keys, or you can buy them online.

If you require medication on your holiday, check whether there are any restrictions on bringing your medication into the country you are travelling to. Do ensure you have a good supply of any required medication, aids and equipment to last you for your stay. If possible, take extras with you in case you are delayed from returning, but make sure this complies with any restrictions on medication types/amounts in the country you are visiting. Label medications clearly, or where possible, keep them in their original packaging. The government suggests taking along a ‘travelling letter’ outlining the most common effects of your brain injury.

You could consider using a free translating service, such as Google translate, to translate the information into the native language of the country you are thinking of travelling to, in case you need support while abroad.

Contact your holiday accommodation in advance to discuss any needs you may have.

If you will need help to board your vehicle of transport (i.e. coach, train, plane or ship), inform the relevant company in advance. Most companies require notice of at least 48 hours before departure. If you require a wheelchair, find out from your travel provider or transport company whether arrangements will need to be made to travel with it, as you may be required to put your wheelchair in storage during transport and have alternative arrangements made to assist you with getting on/off the vehicle. Ask your travel provider or transport company whether you will need extra time with boarding, and if so make sure you arrive with plenty of extra time to board. Air Travel

If you are not sure whether it is safe for you to fly because of your brain injury, check with your GP or neurologist. There is no set rule on this and will depend on personal circumstances.

Check in advance whether your insurance policy will cover your brain injury, as well as any aids or equipment you may need to take with you. Standard travel insurance often will not cover a brain injury, however, there are specialist insurance companies that do.

Individuals who have experienced an ABI (acquired brain injury) are typically very sensitive to sensory stimuli. They can quickly become overwhelmed by the added hustle and bustle of a typical travel experience, especially if travelling by plane.

Airports are notorious for being busy, loud, and full of movement/visual motion, and all of these factors combine to form a recipe for exacerbated symptoms. Though there is no way to completely avoid these overwhelming stimuli and resulting symptoms while travelling, there are ways to plan for travel that can make your trip as smooth as possible. Prepare and pack things early and be organised for reduced stress.

If you frequently go on holiday by plane, find out whether you can obtain a Frequent Traveller’s Medical Card, as this will give the airline a record of your needs so you do not have to inform them of these every time you travel.

Driving

If you are planning on driving in another country, check whether you need an international driving permit.

Holiday Documents

Consider keeping a folder with holiday documents in so you can keep a record of important paperwork, and track the progress of your travel arrangements.

Keep a notebook, or page, in a safe place containing emergency contact details and any other important details, such as your travel insurance provider’s emergency number and your policy number.

Enjoy your Holiday

Don’t forget to pack a camera (or your mobile phone charger if you have a camera phone), so that you can take photos of your holiday! This might be particularly important if you have memory problems and are likely to forget your precious holiday moments.

If you find it difficult to cope in busy, noisy or crowded environments, contact any attractions you are planning on visiting, in advance, to find out when they are quietest. Some places may have quieter hours when it might be easier for you to visit.

Try to pace your activities while you are on holiday so that you can take breaks to avoid getting fatigued. Spacing out activities is helpful so you have time to rest. Maybe plan nothing for the day you arrive and something easy for the next day. No matter where you are, your holiday does not need to be fast paced. Make sure to travel with someone you trust and who knows your situation. You need to communicate with them when you need a rest.

While some people enjoy an alcoholic drink while on holiday, be aware that alcohol tolerance can reduce after brain injury.

Discounted Travel

There are a number of schemes which offer discounts on travel within the UK. For instance, a Disabled Person’s Railcard gives up to a third off rail tickets; you may be able to get a bus pass offering free bus travel, this would be issued by your local council. Depending on your circumstances, some organisations may offer financial assistance to help towards holiday costs.

Top Tips

1. Pack in the least cluttered room in your home, and consider packing on a plain white sheet (on the floor or on the bed, etc.) to reduce extra visual stress;

2. Mark your bag with a unique identifier to reduce stress and confusion when trying to keep track of your luggage at the airport;

3. Place essential items (ID, ticket, etc.) that need to be accessible in a single bag, or specific place in your bag/purse to avoid the stress of searching for them at the airport;

4. Pack ear plugs in an accessible location to reduce noise;

5. Keep peppermint or ginger chews on hand to help reduce symptoms of nausea;

6. Find a quieter coffee shop or restaurant to wait for your flight/boat/train/coach as opposed to sitting in the terminal where it is loud and busy;

7. Find a quieter/less busy space to close your eyes, sit, and breathe. Though you may not feel symptomatic at the time, resting frequently will help prevent compounding stress and symptoms that can cause prolonged recovery time after your trip;

8. Consider wearing a baseball cap, sunglasses, or an eye mask while flying to reduce awareness of the small enclosure of the plane, and other visual distractors (lights turning on and off, people getting up and down etc.);

9. Wait to get off your transport until the majority of people have exited to reduce extra crowding and stimulus around you;

10. REST when you arrive at your destination – you may need to let family know you need a few moments to regroup cognitively before entering into busy family festivities;

These tips are designed to help make travelling as smooth and symptom-free as possible, but each person is unique and it may take time to find the tips and tricks that work best for you.

Travelling is exhausting for a person without a brain injury, so it’s ten times more exhausting for someone with one. Dealing with symptoms of a brain injury is all about finding what strategies work for you.

Work Experience Interview Tips

A common source of worry for students is interviews. They can be scary things when you have never done one!

We incorporate interviews into our work experience process. We often hear that this is great experience for students who may well have limited experience of interviews, especially for legal work experience placements which are highly competitive.

There are some things to remember and some ways you can prepare for work experience interviews at Lanyon Bowdler:

1. Try to stay relaxed

Our interviews are informal and designed to give us a chance to get to know each other. We know you might be nervous and that’s ok! The interview isn’t there to catch you out or put you on the spot. We know interviews can be daunting and we have all been there so we know exactly how you feel. Do your best to relax and remember it’s your opportunity to get to know us too!

2. Be prepared to talk about yourself

We like to hear about you. If you have something interesting on your CV, we will definitely ask about it – we love hearing about your hobbies and interests and what you’re studying. You are the absolute best authority on you, so this is a real time to shine and enjoy telling us about yourself.

3. Make a note of any questions you have

You will always have the opportunity to ask questions, and there is no such thing as a silly question. It is easy to forget what you wanted to ask in the moment though, so a note of a few key things you want to know can be really helpful to have available.

We also have a podcast episode on work experience for anyone who would like to learn more!

Patient Safety Fears after GP Surgery Limits Patient Access

In a message to patients on 22 June 2022, Donnington Medical Practice in Telford has indicated that they are now only prioritising ‘urgent’ assistance for patients due to staffing issues.

This message lacks any meaningful detail and raises significant concerns as to the meaning of ‘urgency’ in this context. In particular, there is no guidance as to:

  • What constitutes ‘urgent’ medical assistance?
  • Where should patients go in the first instance?
  • How do patients know what is "urgent" and what is not?
  • How does this fit in with ‘urgent’ assistance that requires urgent hospital treatment?
  • Are patients better off seeking assistance at A&E or elsewhere?
  • How patients are to obtain prescriptions, test results and medications?

Laura Weir, an associate solicitor with Shrewsbury based law firm, Lanyon Bowdler, said: "This message may have unintended and potentially devastating consequences for patients and their families. The worrying lack of detail will likely discourage patients from seeking help who unknowingly require urgent medical assistance. Additionally, this shift in priority will likely exacerbate the current backlog of appointments, creating even further delays for patients who are already in dire need of medical treatment."

Donnington Medical Practice has not provided any further guidance or criteria in relation to this notice, and so the matter of ‘urgency’ remains unclear.

Nottingham Maternity Review – Donna Ockenden Takeover

The Nottingham Maternity Unit was rated as inadequate by the Care Quality Commission (CQC) in 2020 and a review, similar to that completed by Donna Ockenden into the Shrewsbury and Telford Hospital Trust (SaTH), began. The review relates directly to the Nottingham University Hospital (NUH) Trust after repeated examples of poor care were uncovered along with failures to investigate.

The CQC issued a warning notice in March 2022 highlighting specific concerns over triage services and increased stillbirths. Nineteen serious incidents were reported by maternity staff between March 2021 and February 2022, as well as five current Healthcare Safety Investigation Branch investigations. The CQC warning was issued having identified that staff were not always carrying out observations to make sure patients’ conditions were not deteriorating, and that triage wait times were too long.

Families involved in the review previously sought the input of Donna Ockenden in the Nottingham review due to a lack of confidence in the clinical team involved, the extremely slow pace of the review and the increasing numbers of families coming forward. The original remit was too narrow and considered not independent enough.

An interim report was published in April 2022, which highlighted that maternity services nationally were ‘under immense scrutiny’, in light of reports such as that conducted by Ockenden into SaTH. Evidence of ‘bullying behaviour’ had been uncovered with some staff displaying ‘unacceptable behaviours such as being rude and abrasive’. Sharon Wallis, director of the midwifery unit at NUH said “our teams are working hard to make the necessary improvements, but recognise we have more to do and are absolutely determined to speed up the pace of change and deliver quality services”.

NHS England have now confirmed that Donna Ockenden will chair a new team with new terms of reference into the review of the maternity services at NUH. Sir David Sloman, Chief Operating Officer for NHS England has said he has “taken on board various views” those concerned with the original review team have shared. Ockenden will develop terms, which reflect both the need to drive urgent improvements to local maternity care and the need to deliver actionable recommendations, which can be implemented as quickly as possible. No timescale has yet been confirmed however.

This announcement is no doubt welcomed by those families involved and will hopefully result in a robust review. This change in leadership comes as a result of the families campaigning for Donna Ockenden’s involvement, and some even publishing personal details of their cases online in a desperate bid to be heard by those in charge.

Donna Ockenden taking over as chair of the review offers hope that the failings at NUH, specifically the maternity unit, will be uncovered and hopefully encourage ongoing and future care to be improved. She has commented that her first priority is to listen to those families affected and notes that the CQC safety warning, and the stories shared already, indicates ‘something that is very, very wrong at the trust’.

Lanyon Bowdler are supporting hundreds of families under Donna Ockenden’s review into the maternity care at SaTH. If you or your family have been affected by poor maternity care either under SaTH or Nottingham, please speak to a member of our specialist team.

West Midlands Ambulance Service Faces ‘Titanic’ Collapse

We are all taught from a very young age that if it’s a genuine emergency, where someone is seriously injured or ill, and their life is at risk, we should call 999 and the ambulance service will be there to help. However, West Midlands Ambulance Service (WMAS) is now at terrible risk of collapse.

WMAS Director, Mark Docherty, has warned that by 17 August 2022, the service will fail. They are currently facing a ‘catastrophic situation’ of long hospital handovers and delayed response times which is undoubtedly putting lives at risk. Mr Docherty has warned that patients are dying needlessly everyday due to the strain on the service.

In an interview with the Health Service Journal, Mr Docherty raised his concerns over the potential ‘Titanic moment’ collapse of WMAS and called for NHS England and the Care Quality Commission (CQC) to step in and control the concerning situation.

A major concern is the that some patients have waited in the back of an ambulance for 24 hours before being admitted to hospital, and that serious incidents have quadrupled in the past year - largely as a result of these severe handover delays. This is a national problem and NHS data has shown that in March 2022, ambulance trusts nationwide had slow response times to even the most urgent of incidents.

Mr Docherty says the NHS England officials have downplayed the problem of delayed discharge, and he has questioned why the CQC have issued improvement notices about hospital corridor care, but not the ambulance handover delays when patients are dying every day due to avoidable delays. The CQC have commented that the impact of the escalating pressure on the NHS is severe and the long delays for patients are unacceptable.

Over 100 serious incidents have been recorded at the West Midlands Ambulance Service relating to patient deaths, resulting from the service being unable to respond as the ambulances were held outside hospitals. There have been a number of reports of Shropshire patients waiting extreme periods of time for hospital beds, and repeated anger over death’s occurring as a result of the ambulance delays.

Mr Doherty predicts that WMAS will collapse by 17 August 2022, stating this is when a third of the resources will be lost to delays - meaning that ambulances simply will not be able to respond to emergency calls. The risk level was rated at its highest level ever in October 2021, and the situation has failed to improve since. In April 2022, there were 17,795 hours lost due to handover delays of over 30 minutes. By June, this had risen to over 2,100 hours which is the highest number ever experienced by WMAS, with the worst delay involving a crew waiting more than 25 hours at the Royal Shrewsbury Hospital.

NHS England has said £150 million has been allocated to tackling this issue, but is this just a tiny sticking plaster on a massive gaping wound? Is it too late for the service to be saved? Will other ambulance services nationwide face the same fate?

With Mr Docherty stating that this is the biggest problem facing the NHS right now, the question remains: how much worse can it get and what happens if this collapse does in fact happen?

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