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Distribution Agreements

Distribution agreements are the framework for commercial relationships between suppliers and distributors. They are very common within the commercial world and it is imperative that they are drafted to cover all eventualities. With Brexit looming, it is a vital time for companies and individuals entering into such agreements to reassess these agreements and consider the potential amendments that might be necessary to protect themselves come 31 December 2020.

Although the implications of Brexit on distribution agreements are currently uncertain and are dependent on negotiations currently taking place, there are a number of predicted changes that are worth considering in advance. Advanced discussions will help to better prepare you or your company for the future and will put you in a better position for negotiating new contracts.

There are a number of key issues to consider, these include:

  • Definitions within agreements currently in place – is the UK defined as an EU state or as part of Europe? If so, amendments will be necessary to reflect the changes to the European structure.
  • Are there any competition issues that are currently regulated under your agreement? Currently, EU legislation and regulations have been adopted into UK law. However, once the UK leaves the EU, it is likely that this legislation will diverge over time. Competition law is likely to diverge as it will be regulated in the UK by the Secretary of State and the Competition and Markets Authority, rather than EU bodies.
  • As a distributor or a supplier, are you responsible for obtaining certification for any products? There is some concern that UK ‘Notified Bodies’ (such as the British Standards Institution) and authorised representatives will no longer be accepted by the EU. This would mean that, any goods imported into the EU would need to be certified by EUbased institutions in order for the goods to be accepted.
  • Tariffs on goods leaving the UK to go to EU member states – as a member of the EU, no tariffs are required when goods are exported to other EU member states. However, once the UK is no longer a member of the EU, tariffs will be applicable to exported UK goods. These tariffs are often of low value but will certainly make the goods less competitive. Specific tariffs are implemented by the World Trade Organization.
  • Tariffs on goods entering the UK from EU member states – if you import goods from Europe or you are a multinational company, you are likely to face new tariffs when you import goods into the UK. The Government has published expected rates of such tariffs but at this stage, these are subject to change.

Supply chains are going to be imperative moving forward. Ensuring that you are able to get hold of the goods or materials, at a relatively low cost is likely to become more of a challenge given the tariffs coming into force. It might be worth reviewing your supply chain and/or finding alternative options to prevent you from paying excessive import tariffs.

At this moment, we also cannot ignore COVID-19 implications. For example, if you are too heavily reliant on one distributor or supplier and their country of origin goes into lockdown, would you be able to work around this or would you be facing complications that you were not prepared for?

Ultimately, this area remains in flux. Now is the time to consider all of your contracts and relationships to ensure you are adequately prepared.

If you would like any advice or assistance in relation to a distribution agreement to which you are a party or you are soon to be a party, please contact our Commercial Department to arrange a call to discuss your options.

Furlough Claims - Time Limits

You might be aware of the new (quite short) timescales for lodging claims with HMRC for payments under the Coronavirus Job Retention Scheme (“CJRS”), which are as follows:

Claim for furlough days in

Claim must be submitted by

November 2020

14 December 2020

December 2020

14 January 2021

January 2021

15 February 2021

February 2021

15 March 2021

March 2021

14 April 2021

HMRC may accept a claim made after a relevant deadline if there is a “reasonable excuse for failing to make a claim in time despite taking reasonable care to do so” – provided that the claim is then made without delay after the excuse no longer applies.

Yesterday, the government amended its guidance to provide the following examples of what may amount to a reasonable excuse for missing a deadline:

  • your partner or another close relative died shortly before the claim deadline
  • you had an unexpected stay in hospital that prevented you from dealing with your claim
  • you had a serious or life-threatening illness, including coronavirus related illnesses, which prevented you from making your claim (and no one else could claim for you)
  • a period of self-isolation prevented you from making your claim (and no one else could make the claim for you)
  • your computer or software failed just before or while you were preparing your online claim
  • service issues with HMRC online services prevented you from making your claim
  • a fire, flood or theft prevented you from making your claim
  • postal delays that you could not have predicted prevented you from making your claim
  • delays related to a disability you have prevented you from making your claim
  • a HMRC error prevented you from making your claim

The Anti-malarial With a Dark Side

Anti-malarial medication is a widely accepted and distributed form of preventing malaria, and is often prescribed to travellers and adventurers here in the UK for those visiting high malaria-risk zones.

Malaria itself, a potentially fatal disease, transmitted through mosquitos and parasites, or malaria vectors, can cause multi-organ failure and death if untreated. The World Health Organisation (WHO) estimates that 93% of all malaria cases originate within the continent of Africa, with other high-risk zones including East Asia and the Pacific Islands accounting for the rest. In 2018, there were around 228,000,000 cases worldwide and around 450,000 deaths caused by malaria.

What Are the Most Commonly Prescribed Anti-malarial Drugs?

Here in the UK, the most commonly prescribed anti-malarial drugs are known as Doxycycline, Mefloquine, Chloroquine and Proguanil. Doxycycline is an antibiotic drug, commonly used to cure chest infections and sexually transmitted infections (STI) but is also used for malaria prevention. It is seen as the safest anti-malarial for use and is widely prescribed to people travelling into malaria zones. Whilst there are some side effects, the majority of these are short term and serious side effects only occur in around 1 in 1,000 people.

Mefloquine, commonly known as Larium, is the second most commonly prescribed anti-malarial drug to those traveling to high-risk areas. Larium itself has been used globally by countries including the UK, the USA, Canada, Denmark and France, and for many years was seen as the inexpensive preventative measure to prescribe to those travelling overseas, including military personnel.

What Are the Side Effects of Larium?

Larium works by interfering with the growth of parasites within the red blood cells in our body. On the face of it, Larium is a highly effective drug used to prevent malaria. However in recent years more and more people have reported severe psychiatric side effects, lasting many years after the drug had been taken. During the period of April 2007 and March 2015, 17,368 UK armed forces personnel had been prescribed Larium whilst deployed on operations overseas, with no prior risk assessment being taken. Side effects of Larium can be severe and mentally debilitating, and can include the following:

  • Depression or anxiety
  • Suicidal thoughts
  • Self-endangering behaviour
  • Psychosis
  • Paranoia
  • Panic attacks
  • Unusual behaviour
  • Feeling of confusion
  • Hallucinations
  • Aggression or agitation
  • Restlessness
  • Unusual mood swings
  • Disturbance of attention

Sleeping issues are the most common side effect, affecting 1 in 10 users, with many reporting insomnia and hallucinations during sleep. Prior to all prescriptions of Larium, a GP should conduct a thorough check of all medical records to ensure there are no pre-existing medical conditions, including a mental health check-up, to ensure suitability of the drug. Since the drug’s manufacture in 1989, there have been thousands of prescriptions without these checks being done, leading to neurological disorders developing in many, particularly in those associated with the armed forces.

The risks of using Larium are well documented, and numerous studies have been undertaken to evaluate the side-effects, yet the UK armed forces continued the use of this drug and still does to this day. Many soldiers, sailors and airmen have suffered with anger issues, anxiety and post-traumatic stress disorders (PTSD) following their return from operational theatres, all of which may have been exasperated by the prescription of Larium. Neurological and psychological disorders can have a lasting impact on someone and may cause constant struggles in family and work life, which can lead a person to suicide if not properly managed.

If possible, Larium should be avoided if an alternative is available and if you have been prescribed it in the past and are experiencing symptoms listed above, you should speak with your GP for a check-up.

The New CJRS Treasury Direction

On 13 November, HM Treasury published its fourth Direction in relation to the furlough scheme. Treasury Directions form the legal framework for the scheme.

The new Direction:

  • formally extends the CJRS from 1 November 2020 until 31 March 2021;
  • sets out the detail of how the CJRS will operate between 1 November 2020 and 31 January 2021 (a further Direction covering February and March 2021 to be published in due course); and
  • withdraws the Coronavirus Job Retention Bonus.

The rules cover a wide range of issues including: eligibility; furlough agreements; claim periods; reference salaries; calculating usual hours of work; permitted activities during furlough; business succession (including TUPE); PAYE scheme reorganisations; and time limits for making claims.

Some key points are as follows:

  • Claims may not be made for any day that an employee is serving notice between 1 December 2020 and 31 January 2021. The Direction does not distinguish between notice of dismissal and notice of resignation.
  • It is now a condition of making a claim that the employer accepts that HMRC will publish information about CJRS claims on-line. This includes the name of the employer and a “reasonable indication” of the amount claimed. An exception may be made for employers who can show that publication would expose their workforce to “serious risk of violence or intimidation”.
  • Furlough agreements must be in place before the start of the relevant claim period (but may be varied during the claim period).

A Day in the Life of Me

Having worked as a personal injury lawyer for nearly 12 months prior to the COVID-19 crisis, the guidance from the government to work from home where possible was daunting for me. I previously had the option to work remotely, but only utilised it if something urgent cropped up, so the idea of fully working from home was a whole new world to me. I have my own caseload to monitor, but also work within a team and am reliant on my team members for direction with tasks on their files. I must admit I was worried that I would not have enough to fill my days whilst working from home. Boy, was I wrong!

Every day is different in my role, so when I was asked to write about a day in my life, I obviously needed to concentrate on work duties but, if you have read my previous blog, you will be aware that my “day” duties begin much earlier than below, and also go on a lot longer than close of business.

So, a day in the (work from home) life of Laura Moulton post-COVID-19 starts very differently from a day in the (office) life.

9am: My work day begins.

Coffee ready – computer on. I begin by checking emails as most lawyers will, as these are the current source of communication for all aspects of our jobs. I consult my calendar to ensure that I am aware of what the day holds. We are still continuing with training, albeit virtually, and so there may be a webinar later in the day. I may also have a department/team meeting for which I need to prepare.

I then concentrate on my tasks for the day. These vary and can include opening new matters and preparing the initial client care paperwork, preparing funding paperwork and also any telephone notes not yet typed up. Any tasks relating to my supervisors’ files can involve requesting medical records, drafting witness statements, arranging conferences with counsel and experts, setting up zoom examinations for clients/experts, producing court bundles (often at short notice given the court’s backlog). There are so many other tasks that could be part of my working day, let’s just say with guidance from my supervisors, if I have capacity I will assist!

10:30am: A call comes in from a colleague in my team, she needs help with finding something on a file (it is likely that I will recall it coming in from my time as a secretary on that particular file and will have filed it!). If time allows we also use that call to catch up – one of the downsides to working from home is not seeing and speaking to those you would normally see daily.

11am: An email comes in from a colleague, “are you free to help”. Everyone who knows me, knows I will not say no. These types of emails will often be requests to help with computer programmes (I am a super user for our document management system), or simple queries such as how do I access a disc. If the request for help is from my team, it is most likely a request to assist with something such as updating a list of documents, requesting medical records, preparing letters of instruction to experts.

12noon: On a Friday, I meet with my supervisors via zoom. This is an opportunity for me to discuss any potential new enquiries I have met/spoken to since our last meeting. We discuss any possible issues that may arise with the particular enquiry, whether the injuries are of a value necessary for a personal injury claim, and also whether the value is of a higher value and perhaps should be passed to a colleague.

12-1pm: 1pm: Time for fuel! Having my husband at home has benefits although my waistline does not appreciate the sausage sandwiches, which are so easily accessible. It does ensure though that I take a break from the screen and think about something other than work for a little while. To be honest we tend to just sit and watch Bargain Hunt and guess whether the red or the blues will make a profit! Simple distraction!

4.30pm: A new client enquiry comes in. Within our department we take new enquiries on a triage system – I am third in that system. There are days where my other team members are either off or unavailable and so I will receive the call or email to speak with a new enquiry. We take brief details to be passed to our head of department, who allocates it to the appropriate person. Allocation takes place based on the experience of the lawyer and also the geographical location of the enquiry.

5pm: Our end of business is 5.15pm, so I tend to spend the last 15 minutes, looking over my timesheet for the day to ensure anything missed is time-recorded and also looking at my task list to ensure everything urgent has been dealt with and anything that needs carrying over is reset. I also check my calendar for the next day to ensure I am ready for what is in store tomorrow.

5.15pm: My “night” duties begin!

Collaborative Law – Q&A

2020 has been a difficult year. With the additional strains and stresses that Christmas will bring, we divorce lawyers anticipate that the New Year will be a busy time.

However, the good news is that there is a way to reach agreement during a divorce without having to resort to expensive court disputes, as I will explain in this blog.

Why Is the Start of the Year so Busy for Divorce Lawyers?

The New Year is often a time for new resolutions and new starts. After putting up with difficult situations or perhaps finding that a stressful Christmas is the straw that breaks the camel’s back, people may decide that it is a good time to make changes for the better to their lives, including contacting family lawyers.

What Is Collaborative Law?

It is a method of resolving issues arising from relationship breakdown focusing on finding solutions in a collaborative rather than court-based process. The aim is for a couple to focus on their most important goals, such as ongoing care and co-parenting of their children.

A series of face-to-face meetings promotes dialogue and provides a tailor-made solution for all aspects of their separation. It does not have to be solely for divorcing couples, it can be used in cohabitation breakdowns and also where couples are looking at starting a relationship together.

What Are the Advantages?

The parties commit not to go to court and are therefore in charge of the process and in control of the outcome. They make the final decision.

Unlike mediation the parties are supported in the face-to-face meetings by their lawyers, who can provide direct and immediate legal advice on any technical queries. As issues are discussed in the room there is complete transparency, which builds trust and enables the parties to see how their process is evolving.

If technical issues or disputes are encountered, experts known as “neutrals” can be brought in to assist the parties. This includes financial advisors, such as actuaries and business accountants, as well as family therapists if issues over children crop up.

The costs tend to be about half that of going to court to resolve financial issues or children matters because the meetings are tailor-made for the parties, who agree the agenda on each occasion. In addition to this, the couple is offered privacy, which provides a sense of achievement knowing that they have worked together to resolve matters.

How Long Have You Been a Family Lawyer?

24 years. I qualified in 1996 and have specialised exclusively in family work since then. I have seen many changes, including the introduction of pension sharing orders in the year 2000 and The Civil Partnership Act in 2004. I trained as a Collaborative Lawyer in 2010 and I am an active member of the “Shropshire Collaborative Lawyers” Group. Visit here for more details. Contact us for more information.

CJRS – Updated Guidance

As promised, the government updated its guidance on the furlough scheme on 10 November. The latest guidance for employers is here and that for employees is here.

Amongst other things, the updated guidance confirms that from 1 November, the scheme is open for employees who were employed on 30 October, as well as employees who were made redundant or stopped working on or after 23 September if they are then re-employed (provided that they were subject to a PAYE Real Time Information (RTI) submission to HMRC between 20 March and 30 October, or 23 September as the case may be, notifying a payment of earnings for them); and there is no longer a maximum number of employees for whom an employer can claim. (Up to 31 October, subject to limited exceptions, in any claim period employers could not claim for a greater number of employees than the maximum number for whom they had claimed in any claim period up to 30 June.)

As is well known, from 1 November employers can claim 80% of an employee’s usual pay for hours not worked, up to a maximum of £2,500 per month.

The guidance states that employees returning from maternity leave need to give 8 weeks' notice to end maternity leave early in order to be furloughed under the scheme. The guidance does not deal with the situation where employees who are not subject to a statutory obligation to provide such eight weeks’ notice (because the employer did not confirm the date upon which maternity leave would otherwise expire in writing) or otherwise where the employee and employer agree to shorten the eight week period. Therefore, for clarity, we await the updated Treasury direction, which will set out the formal rules of the extended scheme, and/or further updated guidance.

The employer must confirm in writing to the employee that they have been furloughed, and keep a written record for 5 years. Employers should also ensure that any furlough arrangements are introduced lawfully and otherwise effectively. We have updated our precedent furlough documents to take account of the extended scheme.

Employers can retrospectively implement furlough with effect from 1 November 2020, as long as the agreement to retrospectively claim furlough occurs on or before this Friday 13 November.

There seems to be a mistake in the guidance concerning TUPE. It states that employees who transfer under TUPE must have "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or before 1 September 2020" whereas it should say: "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or after 1 September 2020". See this Twitter exchange.

Notably, whilst the updated guidance confirms that, for the time being, employers can still claim under the scheme for furloughed employees, who are under notice of dismissal, it states that the government is reviewing whether this should continue, and the approach will change for claim periods starting on or after 1 December, with further guidance to be published in late November.

Wedding or Alarm Bells?

Confirmed cases of coronavirus are on the rise and greater restrictions are, once again, being imposed by the UK Government and the devolved administrations.

At the time of writing, Wales is due to come out of its national lockdown and England has entered its own.

Both nations have imposed various rules concerning gatherings at weddings and these have changed over time as the pandemic progresses.

Resultantly, couples who had planned to tie the knot in 2020 have been faced with a seemingly never ending amount of obstacles to overcome to get to their big day.

The Issue

Some of those, who have had their plans changed by the pandemic, have encountered issues with changing dates or reclaiming deposits from suppliers and venues. In the majority of cases, this isn’t a small amount of money, with the average cost of a UK wedding being around £21,000.

On 7 September 2020, the Competition and Markets Authority (“CMA”) in an open letter to the weddings sector highlighted concerns surrounding unfair practices by a minority of businesses, mainly relating to the cancellation of contracts and services due to the coronavirus lockdown restrictions.

Specifically, these issues were:

  • wedding businesses refusing to offer or give appropriate refunds where weddings are, or were, prevented from taking place by lockdown laws;

  • uncertainty about weddings that are affected by legal restrictions and government guidance as lockdown laws are eased; and

  • businesses seeking to rely on unfair contract terms.

The starting point is, the consumer should be offered a full refund where lockdown laws prevent or have prevented a wedding from going ahead as agreed. This refund being due even where the consumer has paid what the business claims to be “non-refundable” deposits.

There are circumstances where the business may be able to retain a proportion of the sums paid. This can include sums to cover services or products, which have already been provided, and a contribution to costs incurred by the business, which have a sufficiently direct connection with the contract.

Although, it is worth noting that there is no automatic legal right for a business to deduct its costs from a refund, but it may be able to where this could be considered as just taking all the circumstances into account.

Laws and Guidance

To make the issue that little bit more complicated, there is the added confusion surrounding lockdown laws and lockdown guidance.

Lockdown guidance is government issued directions concerning what people should or should not do and compliance with the guidance is not legally binding. Whereas, lockdown laws are legal restrictions on certain activities and include such laws as the rule of six and the requirement to self-isolate.

Consumers who choose to follow the government guidance should be treated fairly by the business and should not be misled as to the effects of that guidance.

However, where either party do not want to proceed due to government guidance, the situation is more complex. It will not always be clear what impact the government guidance will have on the contract.

It will be important to review any applicable pre-existing terms and conditions, specifically, clauses relating to cancellation, refunds, suspension of obligations or force majeure. A force majeure clause, if there is such a clause in the contract, will operate to relieve the parties’ obligations if a trigger event occurs, which is beyond the control of either party. In the absence of a force majeure clause, the parties would likely need to rely on the doctrine of frustration.

Where the contract has become frustrated, the parties are relieved from their obligations. There is potential for this to occur where lockdown guidance has made what was agreed impossible to perform. If the contract is frustrated, this will effectively end the contract. However, whether a contract is to be frustrated is highly dependent on the circumstances.

What Should You Do?

First of all, it is important to speak with the business itself, it may be possible to find a solution which benefits both parties. Whether this is a refund, a rearrangement or some other course of action.

If you cannot reach an amicable resolution, or you believe the other party is acting unfairly, you should consider why your dispute has come about; is it due to lockdown laws or guidance? If it is due to lockdown laws, your options will be greater and the situation will be clearer.

You should keep a record of what was agreed between you and the other party, and any documentation that you may have concerning the transaction.

If you have paid via credit card, your provider may be able to assist in obtaining a refund. This can be the case even where some of the deposit was paid via other means.

What Can Lanyon Bowdler Do to Help?

Our Dispute Resolution team has decades of combined experience in helping clients deal with all manner of disputes.

We will act quickly and professionally to settle the matter in your favour, and where possible, without the need for costly court proceedings.

Contact a member of our team today to see how we can help you.

Furlough Scheme Extended to March 2021

The Coronavirus Job Retention Scheme (“CJRS”), also known as the furlough scheme, will remain open not just until December, as originally announced by the Chancellor on 31 October, but until 31 March 2021.

From 1 November - 31 January the level of support available will mirror that available under the CJRS in August: for hours not worked by an employee, the government will pay 80% of wages up to a maximum of £2,500, with employers paying employer NICs and minimum auto-enrolment pension contributions. The extent to which employers are required to contribute to the cost of the scheme from February will be subject to review.

Full guidance on the extended scheme is due to be published on 10 November. However, we know this much from the HMRC policy paper:

  • Employers can claim even if they have not previously used the CJRS.

  • To be eligible employees must have been on the PAYE payroll on 30 October 2020.

  • Flexible furloughing is still allowed, as well as full-time furloughing.

  • Employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme).

  • Employees who have not previously been furloughed will have a different pay/hours reference period. In basic terms, for those on a fixed salary, pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020, and for those on variable pay, it is 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins.

  • Employees can be furloughed if they are shielding in line with public health guidance, if they “need to stay at home with someone who is shielding”, or if they have caring responsibilities resulting from coronavirus (including a need to look after children).

  • Employees that were employed and on the payroll on 23 September 2020, who stopped working for their employer after that date can be re-employed and claimed for.

  • The Job Support Scheme and the Job Retention Bonus have been put on hold.

Extension to the CJRS

On 31 October 2020, HM Treasury announced that the Coronavirus Job Retention Scheme ("CJRS"), which was due to come to an end that day, would be extended until December in order to provide support to businesses and employees during the new national lockdown due to begin on Thursday 5 November.

The level of support available under the extended scheme mirrors that available under the CJRS in August: for hours not worked by an employee, the government will pay 80% of wages up to a maximum of £2,500, with employers paying employer NICs and minimum auto-enrolment pension contributions. Flexible furloughing is still allowed, as well as full-time furloughing.

The Job Support Scheme, which was scheduled to come into effect on 1 November, has been postponed until the CJRS ends.

An HM Treasury press release outlines the eligibility rules governing the extended CJRS. It states that neither the employer nor the employee needs to have previously used the CJRS, and that the scheme is available in respect of employees who were on the employer’s PAYE payroll by 23:59 on 30 October 2020.

Employers can claim the grant for the hours that their employees are not working, calculated by reference to their usual hours worked in a claim period. When claiming the CJRS grant for furloughed hours, employers need to report and claim for a minimum period of seven consecutive calendar days.

The press release states that employers are still “able to choose” to top up wages above the scheme grant at their own expense if they wish. Employers should remember, however, that without a valid contractual agreement (whether pre-existing or newly agreed) allowing them to reduce pay, it will be their obligation, and not a matter of choice, to continue to pay furloughed employees in full.

The government will confirm shortly when claims can first be made in respect of employee wage costs during November, but states that there will be no gap in eligibility for support between the previously announced end date of CJRS and the extension.

Music Therapy – How Does It Benefit Patients?

This week I watched an inspiring presentation about the potential benefits of music therapy for people, who have been affected by brain injury or neurological disease.

The presentation was by an organisation called Chroma. Chroma provides music therapy services for patients with neurological and spinal cord injuries across the UK. I was particularly interested to learn about “neurologic music therapy” and how music can be used to help injured patients with their rehabilitation. This therapy can be used for people who have cognitive, sensory, and motor function deficits related to neurologic disease.

I studied neuroscience alongside law at university and have always been particularly interested by anything “brain related”. It was a (very) long time ago and inevitably science has come on leaps and bounds since then, but I remember learning about the concept of “neuroplasticity” and the idea that the human brain is able to change and adapt throughout its lifetime. Music therapy, as I understand it, can be used to encourage and promote this plasticity in the brain.

Brain or neurological injury can damage or disrupt neural networks in the brain, causing significant impairment. Plasticity involves the creation of new neural pathways and rehabilitation can be designed to promote this activity, which plays a part in helping people overcome impairments due to brain injury.

So How Does Music Therapy Help?

Listening to music involves several areas of the brain, as does learning to play an instrument. These activities may help to strengthen connections between neural networks in the brain and improve the brain’s ability to adapt to changes in the environment.

For example, if a patient is working on improving their gait, they can be encouraged to move to a particular rhythm. This has been shown to improve walking speed and distance in patients with Parkinson’s disease. Benefits have also been seen in stroke patients. I am sure that most people will be able to relate to the impulse to move in sync to a beat, even those non-dancers!

In addition, the enjoyment of listening to music, or playing an instrument, may also have an effect. This can release dopamine (a “feel good” neurotransmitter), which can have a positive effect on neural connections in the brain. It also plays an important part in learning and the brain’s motivation/reward systems. All key in forming and strengthening neural connections.

Brain and neurological injuries can have such a devastating impact on someone’s life and it is incredible to think that music could make such a functional difference here. It has certainly renewed my appreciation for music in general, although perhaps not for all genres!

Transparency/Accountability in the Private Sector

In the news this week there have been warnings of cancellations of operations on the NHS as a result of COVID-19. It would appear that this is to help the NHS cope with potential rising numbers of coronavirus cases this winter.

Many routine surgeries were cancelled or postponed earlier in the year because of the pandemic. The impact of the pandemic has also been keenly felt by oncology services, with worrying reports of cancer patients experiencing delays in treatment. It is predicted by the Lancet Oncology Journal that these delays will inevitably result in unnecessary deaths from cancer, which is a tragic outcome. NHS hospitals across the country are now facing a backlog and it could be possible that ongoing delays see more patients considering whether they are able to go private. With the ongoing strain on the NHS as a result of the COVID crisis, there is the potential for more services to be outsourced to the private sector.

Recently, stories surrounding orthopaedic surgeon Derek McMinn have made headlines, reporting that patient bones had allegedly been stored without full consent or licence over the last few decades. It is understood that many of his patients were seen at the private BMI hospital in Edgbaston. These accounts also bring to mind the fairly recent scandal involving breast surgeon Ian Paterson, who subjected many patients to unnecessary surgeries and exposed some of the gaps in protection for private sector patients.

How Easy Is It for Patients with Legitimate Claims to Receive Compensation?

Generally, doctors who work at private hospitals are not “employees” of that hospital in the way they usually would be if they worked for an NHS trust. Doctors working at private hospitals must therefore have their own individual indemnity insurance. This can sometimes make it more difficult for patients with legitimate claims to receive adequate compensation, which was one of the issues faced by Ian Paterson’s patients. Cases are, of course, fact-specific but the private hospital itself is not always accountable if things go wrong. This is in contrast with care within the NHS when it is the relevant NHS trust, which is accountable.

What Are ‘Never Events’?

Last month the Private Healthcare Information Network (PHIN) published data on serious patient safety incidents in private acute care from 2019. This appears to be the first time a comprehensive dataset of “Never Events” involving private patients has been published in the UK. Never Events are defined by the NHS as patient safety incidents that are “wholly preventable”. The data published by PHIN refers to 21 Never Events being reported in a private setting and include instances such as wrong site surgery and wrong implants/prostheses being used.

The publication of the above information is interesting as this type of information is something that is already monitored in the NHS on a regular basis. The NHS has routinely published this information as part of an open and transparent approach to patient safety and so that lessons can be learned where things go wrong (whether this culture is, in fact, always adopted is a subject for a different day).

It is important to note that the PHIN data indicates that data was submitted from only 287 out of 595 private provided sites. This would indicate there is still some way to go in terms of improving transparency within the private sector. However, hopefully this is still a step in the right direction and patients will now have access to more information to enable them to make better informed decisions about treatment.

With increased transparency, it is hoped that this will also lead to better protection for patients in the private sector and greater consistency across the board with regard to accountability in healthcare generally.

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