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Consultant Gynaecologist under Review for Allegedly Causing Harm to Hundreds of Female Patients

A former specialist in obstetrics and gynaecology, Dr Daniel Hay, is currently under investigation for treatment he provided at the Royal Derby Hospital and Ripley Hospital between April 2017 and June 2018, which resulted in many of his patients experiencing ‘unnecessary harm’.

Concerns Raised

Owing to concerns raised by his former colleagues in late 2018 an initial review into the treatment of 58 women was commenced. This was later widened and 382 women have now been identified as having potentially been affected.

The review encompasses major surgical treatment such as hysterectomies as well as minor surgical treatment and outpatient treatment carried out by Dr Hay within the relevant period.

Intermediary Findings of the Review

The University Hospitals of Derby and Burton NHS Foundation Trust, who are conducting the review in conjunction with NHS England, has found instances of women not counselled appropriately as to alternative non-surgical options to hysterectomies and also instances where treatment ‘fell significantly below’ standards resulting in:

  • Burns;

  • Temporary paralysis;

  • Infected wounds;

  • Uncontrolled and abnormal bleeding problems;

  • Significant abdominal pain, and

  • Severe mental health issues.

Dr Hay has since retired from the trust. The full anonymised report is due to be published at a later date, which is yet to be announced.

Other Options

Sadly where patients have uterine or ovarian cancer major gynaecological surgery such as a hysterectomy is often unavoidable, but with diagnoses, such as uterine fibroids and endometriosis, there may be other ways of treating or dealing with these problems. The treating doctor should discuss the different options available and their side effects with the patient in order to allow them to make an informed decision.

Pain and Recovery Times

If surgery is a necessity or the patient has elected to proceed down this route then it is important to note that, whilst some level of pain and discomfort is considered normal following major abdominal or pelvic surgery, this should be capable of being controlled by painkillers.

Recovery times can be six to eight weeks after an abdominal hysterectomy but are often shorter following a vaginal or laparoscopy hysterectomy. Many of Dr Hay’s patients experienced continuous pain and, in some cases, worsening symptoms beyond this time frame.

Clinical Negligence Claims

Not all complications from surgery provide grounds for a legal claim, but it is important to be aware that these may have arisen due to potential failings on the part of the doctor.

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with gynaecological cases. If you have concerns about gynaecological care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

The Countryside Stewardship Scheme

Applications are now open for the Countryside Stewardship Scheme.

The scheme provides financial incentives to eligible farmers, foresters, woodland owners and other land managers to look after and improve their environment.

Applications can be made for:

  • Mid Tier

  • Wildlife Offers

  • Higher Tier

  • Capital grants

  • Woodland support grants

The Countryside Stewardship Scheme is made up of a number of different elements, including Mid Tier Agreement and High Tier Agreement; woodland creation and management; options to help improve wildlife on farms, and grants for boundaries, trees and orchards, water and air quality.

Applications under the scheme are made to the Rural Payments Agency.

With Basic Payment Scheme (BPS) payments beginning to reduce this year and with BPS payments being phased out between 2021 and 2027, the first payments under the Countryside Stewardship Scheme should begin to be received at the end of 2022. The new Environmental Land Management Scheme will also be introduced.

Manuals are available to explain the scheme rules, including who can apply and what land is eligible, together with how to apply guides to help with applications.

Mid Tier and Wildlife Offers applications are open from 9 February 2021 to 30 July 2021. Countryside Stewardship Mid Tier (including Wildlife Offer) will commence on 1 January 2022. An application pack may be requested online, using Rural Payments service, until 30 June 2021.

Under the Mid Tier Scheme, rural grants and payments may be made to support activities that support the local environment. This particular route offers a wide range of management options and capital grants. An application may be made for a combination of grants that are most relevant to your particular business and local environment. Grants are available as two year grants for specific capital works, and multi-year grants where payments are made every year for five years. Most applications are competitive, meaning they will be scored and ranked. An agreement will be offered to successful applicants and, if accepted, the Countryside Stewardship Agreement will start on 1 January 2022. Payment amount depends on the options and capital items chosen and compliance with the agreement.

Grants are available as management options and capital items.

Management Options:

  • Manage land for the benefit of local wildlife

    Providing sources of nectar and pollen for insect pollinators

    Providing winter food and nesting habitats for farmland birds

  • Support local priority habitats such as:

    Species-rich grasslands;

    Wetlands, rivers, streams, ponds and ditches;

    Hedges, orchards, wood pastures and parklands

  • Manage flood risk in your local area

  • Convert and manage land to organic certification standards

  • Manage and maintain landscape features, such as maintaining traditional farm buildings and maintaining Sites of Special Scientific Interest and scheduled monuments.

Capital Grants

Capital grants are available to help manage and maintain boundaries on your land including hedgerows and dry stone walls, manage water and air pollution and improve water quality in a high water quality priority area.

Wild Pollinator and Farm Wildlife Package (WPFWP)

This package is separate from the Wildlife Offers. It helps to provide farmland wildlife with the things they need to thrive and breed successfully.

The Wildlife Offers

There are four Wildlife Offers to choose from. Choose this route for a wide range of management options focusing on providing habitats for farm wildlife. This is the quickest and easiest way to apply for the Mid Tier. It is also non-competitive, which means you just have to meet minimum eligibility requirements for the offer.

Wildlife Offers help to provide:

  • Sources of nectar and pollen for insect pollinators

  • Winter food for seed-eating birds

  • Improved habitats, particularly for farmland birds and pollinators

Receive an annual payment each year for 5 years.

Apply online for a Wildlife Offer using the Rural Payments Service until 30 July 2021.

For Higher Tier applications, initial applications are open from 9 February 2021 to 30 April 2021. The Higher Tier covers more environmentally significant sites, commons and woodlands.

Applications may be made for capital grants. There are 67 standalone capital items within three groups:

  • Boundaries, trees and orchards

  • Water quality

  • Air quality

The aim is to protect and enhance the natural environment by increasing biodiversity, boosting habitats and improving water and air quality.

The following woodland support grants are available all year:

  • Woodland creation and maintenance grant

  • Woodland management plan grant

  • Woodland tree health grant

The Higher Tier also provides grants for woodland management.

Source: GOV.UK: Wildlife Offers: Countryside Stewardship (updated 22 February 2021)

IR35 Webinar: ‘What You Need to Know about the New “Off Payroll” Rules’

In conjunction with WR Partners, Lanyon Bowdler will be providing a free webinar covering the changes to IR35 that will apply from 6 April 2021 at 11am on Thursday 11 March 2021.

To register, please click here.

About the Webinar

The webinar will last approximately 45 minutes and will cover:

  • How to determine if the off-payroll rules apply

  • How to ensure that you comply with the rules

  • The consequences of non-compliance

  • The impact of the rules on your business and its finances

  • Interactions you need to have with your contractors

  • The importance of written contracts, who they should be between and key terms

  • The need for communications during any assessment period to understand, identify and manage potential outcomes

  • Q&As

Who Should Attend?

Representatives of medium or large businesses, which engage workers through their personal services company (PSCs) (including via agencies).

Agencies who provide workers through their own PSCs to medium or large end-users.

Workers providing services through a PSC to medium or large businesses.

Meet the Speakers

Paul Brown

Tax Partner at WR Partners

Paul and his team provide high quality, commercially focused advice on a wide range of business and personal taxation matters.

The team helps to ensure clients meet their increasingly complex tax compliance obligations, while also providing a comprehensive range of tax consultancy advice, including corporate restructuring, inheritance tax and capital gains tax planning, share and business valuations, R&D and capital allowances claims, and business incorporations.

John Merry

Partner & Head of Employment at Lanyon Bowdler

John is a member of the Employment Lawyers Association and has extensive experience working for employers of all sizes across the Shropshire area.

John advises both employers and employees in connection with employment tribunal proceedings and appeals and is an experienced advocate. He works for clients from the Telford, Shrewsbury, Oswestry, Ludlow and Conwy offices.

Jenna Tarry

HR Consultant at WR Partners

Jenna has many years’ experience in HR, working with businesses across a wide range of industries including agriculture, manufacturing and hospitality.

Jenna provides support, advice, and guidance to the firm’s clients across a broad range of human resources issues.

Whistleblowers Raise Concerns about Maternity Services at Worcestershire Royal Hospital

A number of concerns raised by whistleblowers at Worcestershire Royal Hospital are causing concern about the safety of the maternity department, particularly midwifery staffing levels, risk and incident reporting and governance.

The Care Quality Commission became concerned about the hospital's maternity services after the inspection team were contacted by four whistleblowers between July and September, who reported that the service was always short-staffed and they were often moved within the department. This prompted an inspection of the hospital’s maternity services in December 2020.

Findings

Inspectors found that staffing levels were lower than planned and that these staffing shortages should have been reported on an incident reporting system, but weren’t because staff didn’t have time and assumed senior staff would do it. Midwives also said that these staffing shortages had a knock-on effect of them being frequently moved within the department.

Midwives reported to inspectors that morale was low and that they felt their concerns and views were not being considered by management. The CQC inspectors also found that not all staff were up-to-date with training and not all safety incidents were reported.

Inspectors did identify areas of good practice including collaboration between different disciplines to give mothers and babies good care and effective implementation of infection prevention and control measures.

Worcestershire Acute Hospitals NHS Trust's maternity services has now been moved down from a "good" rating to “requires improvement”, the same as the trust’s overall rating.

Improvements

The trust in charge of Worcestershire Royal Hospital was ordered by the CQC to make a number of improvements, which include engaging with staff for feedback, monitoring staffing levels and reporting and learning from all incidents and near misses.

Chief nursing officer at the trust, Vicky Morris, said, “The safety of mums to be and their babies is, and always has been, the absolute priority for everyone working in our maternity service. Managing maternity services through the Covid-19 pandemic has been extremely challenging for all our staff and we thank them for their commitment during what has been a very difficult period.”

She went on to note that the trust had already been making changes over the staffing issues before the inspection.

"We have run a very successful recruitment campaign for midwives and once the next round of recruitment is completed next week we should have filled all our vacancies and recruited an additional 10 midwives," she said.

COVID-19 has understandably had a profound impact on the NHS, stretching its staff in ways never seen before, but it is important that we do not accept falling standards in the care of pregnant mothers and delivery of babies and we at Lanyon Bowdler echo the words of CQC’s Chief Inspector of Hospitals, Professor Ted Baker, that “it is crucial that women get the safe and personalised birth experience they are entitled to and that midwifery staff feel supported and valued in order to achieve this. The service must ensure that any risks are identified, and safety incidents are correctly shared and reported to reduce their impact.”

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with birth injury cases. If you have concerns about the maternity care you have received, our team are happy to discuss the matter with you and guide you through the process sensitively. Please contact us.

Force Majeure Clauses and COVID-19

The impact of COVID-19 has meant that many events, services and goods cannot be performed, delivered or produced due to government guidelines and legislation. Given this, a vital question to be answered is whether a force majeure clause can exclude a party from performing its obligations on time or at all, due to COVID-19.

What Is a Force Majeure Clause?

A force majeure clause is a clause that suspends, and may bring to an end, the performance of obligations under a contract where a party is prevented from performing these obligations due to events outside of its control. For example, the clause will set out a list of circumstances in which a party is excused from performing its obligations and the contractual consequences that will follow such a clause being triggered.

Although these clauses are typically standard clauses, they vary considerably from contract to contract, depending on what the parties agreed. Hence, when it comes to deciphering whether or not such a clause is triggered by COVID-19, it will depend on the particular terms set out in the contract.

The key question for many individuals, as well as companies, who are trying to understand their contractual position, is whether or not COVID-19 is a force majeure event.

Is COVID-19 a Force Majeure Event?

The definition of a force majeure event within a contract tends to be either a list of specific events or a broad range of general criteria. Within law, “force majeure” has no specific definition so whether or not COVID-19 satisfies the definition will be contract dependant.

Given the current unprecedented times that we are living in, it seems likely that courts would be generous in their rulings in relation to whether or not COVID-19 falls within the definition, especially when it can be said that parties have encountered genuine difficulties in performing their contractual obligations. However, such parties will still need to show that their non-performance, or late performance, was truly outside of their control and could not have been prevented or mitigated.

It is important to recognise that even if a force majeure clause is found to have been triggered by COVID-19, this does not necessarily mean that the party/parties trying to rely on the clause will be protected entirely from liability for failing to perform or delay in performance.

Contract Specific Factors

It is common within force majeure clauses for particular words to be used to specify when the clause will be triggered. The words used within the contract are of the utmost importance when it comes to deciding whether or not the clause is triggered.

For example, if the clause states that performance is “delayed”, this is not as onerous as if it said “prevented”. When it comes to proving that the clause has been triggered, if “prevented” is used then it will be much harder to prove as this essentially means “unable to perform”. It would not be enough that the contractual obligations are more difficult to perform, more expensive or less profitable. Whereas, if “delayed” is used, it is not necessary to show that the obligations have been prevented from being performed, just that complying as quickly as required under the contract is substantially more difficult.

Overall, if the force majeure clause that you are aiming to rely on uses wording referring to “delayed” performance, you are more likely to be able to rely on this to postpone your obligations or even terminate your agreement than you are if the clause states “prevented” performance.

Conclusions

Firstly, it is important to consider whether COVID-19 would be covered by the definition of force majeure within the contract in question. Even if a force majeure clause does not list “pandemic” as a triggering event, it is likely to be caught within the general scope of “events beyond your control”, unless the contract was entered into after the breakout in Wuhan became known worldwide. If this is the case, then the specific contract would need further consideration.

Secondly, if the clause is found to cover COVID-19, then it needs to be decided whether the parties will be released of their obligations and the agreement terminated or whether their obligations will just be postponed. It is more common for the parties’ obligations to be postponed.

Finally, as each contract is drafted on its own terms, it is important that you understand your rights and obligations before you act. If you wish to discuss a contract to which you are a party to determine the extent of your obligations, please contact our corporate and commercial department.

An Employer’s Defence to Harassment Claims

For the purposes of the Equality Act 2010 anything done by an employee in the course of their employment is treated as having also been done by the employer. This means that an employer can be liable for harassment when an employee harasses another employee and this is the case whether or not the harassment is done with the employer's knowledge or approval.

There is a defence available to an employer if it can show that it had taken all reasonable steps to prevent the harassment. Such steps are often found to include relevant training for employees and also having suitable policies in place. When considering such a defence put forward by an employer, an employment tribunal will consider the steps that have been taken by the employer and whether further reasonable steps were required.

In a recent appeal heard in the Employment Appeal Tribunal (EAT) on this subject, the EAT agreed with an employment tribunal (who had heard the case first) that the training undertaken by the employer was not sufficient to show that all reasonable steps had been taken and therefore the employer could not avoid liability for its employee’s actions.

The tribunal had found that the anti-harassment, bullying, equality and diversity training which had been delivered to the perpetrator of race harassment and other relevant employees (including two managers who failed to report matters to HR), was several years before the events in question and was clearly stale and, further, it did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace because a reasonable step would have been to refresh that training. Agreeing, the EAT said that the employment tribunal was entitled to make this conclusion.

What Does This Mean for Employers?

This case shows that employers who do not undertake meaningful and effective anti-harassment and bullying and equal opportunities training on a regular basis are at risk of being found liable for the actions of their employees.

It is also important that employers have in place well drafted anti-harassment and bullying and equal opportunities policies. If these policies are already in place, they should be reviewed to ensure they are up to date and that all members of staff are aware of them.

There are other important benefits to taking these steps than ultimately defending claims. Appropriate policies and training helps promote an inclusive workforce and avoid actions that can give rise to grievances and/or claims; and if there is nevertheless harassment or otherwise unlawful discrimination, they will make it more likely that concerns are properly reported and addressed.

Employers who would like more information on the above-mentioned policies and/or training for staff, should contact a member of Lanyon Bowdler’s employment team.

Planning Enforcement: Beware of the PCN

Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.

PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court [2021] EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.

The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.

What Will Be the Consequence If the Landowner Fails to Respond to the PCN?

Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.

Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.

What Happened in the Case of Russnak?

The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.

An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.

The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.

The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.

The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.

World Cancer Awareness Day 4 February 2021

Today is World Cancer Awareness Day. A day aimed to unite people across the world in raising awareness of cancer and its impact in the hope of preventing future deaths.

Never has this message been more important than in the wake of the COVID-19 pandemic. Cancer patients have been one of the groups of people most badly affected by the pandemic, and this may not just be current patients. In particular, concerns have been raised in relation to a lack of research funding. This could mean that not just current patients but future patients are affected. This could easily include any one of us.

This year, the World Cancer Day theme is “I Am and I Will”. I have signed up to one of the 21 day challenges on the initiative’s website. These include challenges to raise awareness, improve your own health and to support someone else with cancer. In the spirit of raising awareness, here are six things I have learnt about cancer over the past 10 years.

  • Side effects of treatment are not just hair loss and feeling sick. Don’t get me wrong, they are big ones, but side effects can include almost anything and can be incredibly debilitating.
  • Once you have had treatment, if it’s successful, that’s it. Perhaps it is for some, but for many it really is not. Even if successful, patients can suffer long-term side effects or complications as a result. And of course there is the follow up and potentially years of “scanxiety”. It really is a marathon and not a sprint, and support is needed for the long haul, not just immediately post diagnosis.
  • Never underestimate the kindness of strangers. People’s reactions can surprise you and support can come from the most unlikely of places. Any gesture, even small ones, can mean the world to someone going through treatment.
  • Neutrophils are your best friends. What is a neutrophil? A type of white blood cell that protects us from infection. Some cancer treatment effectively wipes these cells out and can lead to neutropenia (an abnormally low level of neutrophils) and potentially, neutropenic sepsis. Cancer patients can be extremely vulnerable to infection, something which the COVID-19 pandemic has undoubtedly increased awareness of.
  • Cancer treatment can be expensive. I don’t mean the actual treatment here – I mean the knock-on effects. The potential loss of earnings, the bits and pieces you need to get to make treatment more bearable, and don’t forget the many, many hospital appointments and associated travel costs.
  • Cancer affects the whole family. Of course the main focus should be the patient, but don’t forget their support network, who sometimes need support too.

No doubt many of us know someone who has been or is affected by cancer. Through my work and personal life, I have had the privilege of knowing and working with many people who have had a cancer diagnosis. These people are some of the most inspirational characters you will ever meet. They need our support, now more than ever.

Electronic Communications Code Consultation

The Electronic Communications Code (“the Code”) came into force on 28 December 2017. Since then there have been several high profile disputes between the operators of telecom mast sites and landowners that have been resolved by court rulings. Not all of the rulings have gone in favour of the operators and some have denied operators rights under the Code.

The government is concerned that the Code is not operating in the way it was originally intended and recently opened a consultation on the shape, scale and scope of alterations to the Code. The consultation period ends on 24 March 2021.

The consultation is focusing on three areas of concern:

Obtaining and using Code Agreements, including failures to respond to requests for Code rights.

Low rents and concerns over the new Code rights may have resulted in landowners not wanting anything to do with Code Agreements and burying their heads in the sand when asked to grant Code rights. This may be causing delay in securing new mast sites and problems with the roll out of 4G and 5G networks.

The right to upgrade and share – when should these rights be available and what should happen when the conditions for automatic rights are not met? The government is also consulting on limited retrospective rights to share equipment installed before December 2017.

Operators occupying under old agreements cannot use the new automatic sharing rights under the Code. It looks like the government is considering retrospectively imposing these sharing rights in old pre-Code agreements in limited circumstances. This might be where sharing is required in the public interest, eg to expand networks without delay. If this suggestion is implemented there are likely to be disputes over the operators’ rights to exercise the new sharing rights.

Difficulties regarding the renewal of expired agreements. There were a number of court cases in 2019 and 2020 where operators failed to persuade the courts to impose Code right.

  • on a non-occupying landowner (a third party operator occupied the property);
  • where the occupying operator was holding over under an expired lease that was protected by the Landlord and Tenant Act 1954; and
  • where an operator was occupying as a tenant at will after the expiry of a lease that was outside of the security of tenure provisions of the LTA 1954. The Court held the operator had no rights under either the old telecommunications code or the Code and could not apply for temporary rights.

The court’s decision in the second case was confirmed by the Court of Appeal in January 2021.

The government is likely to close the loopholes in the Code that were exposed by the recent court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

The consultation may be the result of lobbying by operators who want to revise the Code to address its perceived shortcomings in the Code and the “loopholes” exposed by the recent Court decisions. Landowners will need to make their voices and concerns heard through their industry representatives (e.g. the NFU and the CLA) if they want to avoid or limit additional or enhanced rights being granted to operators or at least ensure that provisions are included in the revised Code to protect the interests of landowners.

The government is likely to close the loopholes in the Code that were exposed by the recent Court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

Perineal Tears During Childbirth

It is common knowledge that a mother who delivers a child by caesarean will need six weeks to recover physically. If a caesarean is required then the implications are discussed at length during the antenatal period, and preparations can be made by the mother to ensure she can rest and recover once the baby arrives. What is less talked about by midwives, doctors and mothers themselves are tears, despite research finding that nine in 10 women will tear to some extent during a vaginal delivery.1

Grading a Tear

Tears are graded from first degree to fourth degree. Small, skin-deep tears are known as first degree tears and usually heal naturally. Tears that are deeper and affect the muscle of the perineum are known as second degree tears. These usually require stitches by a midwife. A third degree is a tear that extends into the muscle that controls the anus (the anal sphincter). If the tear extends further into the lining of the anus or rectum it is known as a fourth-degree tear. Third and fourth degree tears require surgical repair by a doctor as soon as possible after your baby is born, under spinal anaesthetic or an epidural in theatre. You are likely to need a catheter for a short period afterwards and the follow-up care includes pain relief, a course of antibiotics to reduce the risk of infection, laxatives for comfort and physiotherapy follow-up. Most women make a full recovery within four to six weeks, although rarely complications can arise and medical advice should be sought as soon as possible. Key complications to look out for include:

  • Signs of infection such as if your stitches become more painful or smell offensive;

  • You cannot control your bowels or when you pass wind; or

  • Continued pain and discomfort when having sexual intercourse.

It is also important to focus on your mental health. Experiencing complications when giving birth can be very distressing and disturbing, and for some women there is a risk of post-traumatic stress disorder. Following a perineal tear, if you are developing anxiety, have low mood or feel that you need additional support, you should talk to your healthcare professional.

The diagram below from The Royal College of Obstetricians and Gynaecologists helpfully summarises the anatomy and how tears are graded.

Difference Between an Episiotomy and a Tear

A tear happens spontaneously with delivery, however, an episiotomy is a cut made by a healthcare professional through the vaginal wall and perineum. This may be done if your baby needs to be born more quickly or to make more space for your baby to be born. If you have an episiotomy you will need stitches. These are normally done under local anaesthetic.

On the most part, it is thought that an episiotomy will help prevent a severe tear as it can be controlled, however, it is possible for an episiotomy to extend and become a deeper tear.

When to Consider Making a Perineal Tear Claim

Whilst suffering a tear is incredibly common, there are situations where the acts and/or omissions of midwives and doctors can lead to a mother either suffering a worse tear or having a more complicated recovery. Women tend to be reluctant to discuss their symptoms and see this as part of having a baby. Whilst not all tears will give rise to a legal claim, it is important to talk about your delivery and recovery and be aware of potential failings. The most common types of claims we see include:

  • Poor birth planning and/or management of labour;

  • Failing to repair a tear in a timely manner after delivery;

  • Failing to appropriately identify the severity of a tear leading to a sub-standard repair; and

  • Failing to act on signs of infection post-repair.

If you would like to discuss your labour or perineal tear with one of our experts, please call us on 0800 652 3371.

Further Information:

If you would like further information, the following organisations specialise in supporting women who have suffered perineal tears:

RCOG Perineal Tears Hub: www.rcog.org.uk/tears

Mothers with Anal Sphincter Injuries in Childbirth (MASIC): https://masic.org.uk

Birth Trauma Association: www.birthtraumaassociation.org.uk

Bladder and Bowel Community: www.bladderandbowel.org

1 https://www.ouh.nhs.uk/patient-guide/leaflets/files/12101Ptear.pdf

Common Intention Constructive Trusts

A recent case in the High Court highlighted the importance of using the correct legal structure or vehicle to hold business assets.

In Oberman v Collins (21 December 2020) an unmarried couple had built up a portfolio of investment properties over 20 years. Some of the properties were owned by one person, some by both and some by a company, in which both were shareholders.

When the couple separated one of them applied for a court order to ensure they had a 50% interest in all of the properties. The application was based on that person making financial contributions, working unpaid and giving their partner day-to-day control of the portfolio, whilst providing bank guarantees and assuming financial liabilities.

The court rejected the claim that there was a business partnership, but did accept there was a common intention constructive trust, even though the case concerned investment properties and not the family home. It did not matter that the case concerned a fluid portfolio of properties provided the trust was established. If the judge was wrong about that point there could be a common intention constructive trust for each property that was purchased because he found that the couple intended to acquire each property in equal shares. This finding was based on the couple’s agreement about the portfolio and the actions taken as regards the rents and sale proceeds that were received.

The court agreed the applicant’s failure to protect their interest in the property was inconsistent with their argument that there was a common intention the couple would have equal shares in the properties. However, the court found that because the failure to protect those interests prejudiced the applicant, it supported their claim.

It is important to consider, from the start, how business assets will be owned in order to protect the interests of all of the investors in the business and to keep this issue under review as a business develops.

When building up a property portfolio, eg buy-to-let houses, it is important that the properties are held within an appropriate legal structure and that the interests of all of the investors in the property business are properly protected. Legal advice should be obtained at an early stage to decide whether to use a formal partnership agreement or a company. If a company is formed, is a shareholders’ agreement required? Alternatively, is a declaration of trust appropriate to record the investors’ interests in the properties and to protect both of their positions?

Obtaining good legal advice at any early stage can avoid costly disputes and litigation later on. For more information please contact us.

Whistleblowers Raise Concern about Patient Safety at Essex Maternity Unit

A number of incidents at a maternity unit in Essex are causing concern over serious failings in care. The Care Quality Commission (CQC) visited Basildon Hospital following whistleblowers alerting the CQC of their fears about patient safety. The tip-offs followed a number of serious incidents where six babies were at risk of brain injury after being starved of oxygen at birth.

An article published by BBC noted that the CQC found unsafe staffing levels at the maternity unit at Basildon Hospital during August 2020. This finding follows the maternity unit being rated as inadequate in June 2019. The rating followed the shocking death of a woman in February 2019 where a mother lost six litres of blood after giving birth via emergency caesarean section at Basildon Hospital. The Independent newspaper noted that the coroner concluded that there had been a breakdown in communication, a lack of leadership as well as a lack of co-ordination and team work. The NHS Trust has since apologised for not enacting improvements quickly enough and stated their services were safe to use.

Following the leaked report of the Shrewsbury and Telford NHS Trust maternity scandal detailing the number of deaths of both mothers and babies, it appears that lessons have not been learnt by maternity units in the wider NHS. The findings from the most recent CQC inspection of Basildon Hospital noted a number of concerns including the fact that only four shifts had safe staffing levels in August 2020, expectant mothers at high risk of complications had given birth in the low risk part of the unit and required safety meetings at shift handovers did not occur. The levels of skill and experience of the staff was also found to be concerning.

The NHS Trust responded to the findings by stating they had a robust improvement plan in place and that significant action had been taken since the CQC visit. Only time will tell whether lessons have indeed been learnt from another devastating death within an NHS maternity unit.

The NHS is understandably stretched due to Covid-19 but these findings pre-dated Covid and it is important that as a nation we do not accept falling standards in the care of pregnant mothers and delivery of babies.

The clinical negligence team at Lanyon Bowdler has extensive knowledge and experience in dealing with birth injury cases and handles an extensive caseload of maternity-related cases. If you, or someone you know, has been affected by a birth injury, our friendly team will be happy to discuss the matter with you in confidence. Please contact us.

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