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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?

Shrewsbury and Telford NHS Trust Fined £1.3m After Two Avoidable Patient Deaths

Shrewsbury and Telford NHS Trust (SaTH) have been fined over one million pounds after admitting failures in medical care that contributed to the deaths of two patients.

SaTH were prosecuted by the Care Quality Commission (CQC) under the Health and Social Care Act 2008. Appearing before Telford Magistrates, SaTH admitted three charges of failing to provide treatment and care in a safe way, resulting in harm.

In the first case, Mohammed Zaman, 31, died of severe blood loss while undergoing dialysis at the Royal Shrewsbury Hospital in 2019. A catheter came out of his jugular vein which set off an alarm. However, he was not checked before staff switched it off, and by the time staff had noticed what had happened, he had lost half of his supply of blood. SaTH admitted failings and were fined £800,000.00.

In the second case, Max Dingle, 83, was placed on a larger bariatric bed which staff were not trained on how to use correctly. He suffered a cardiac arrest after his head became trapped between a mattress and the bed rail, and sadly could not be resuscitated.

Prosecuting, the CQC said both patients and their families had been "severely let down" by SaTH. "People using health and social care services have the right to safe care and treatment, so it's unacceptable that patient safety was not well managed by Shrewsbury and Telford Hospital NHS Trust," Fiona Allinson, from Watchdog, said.

Following the hearing, SaTH issued a statement in which its director of nursing Hayley Flavell said: "We are truly sorry for the pain and distress caused as a result of the failures in the provision of care. We offer our sincere apologies and heartfelt condolences to the families we let down".

Sadly, this is not the first time SaTH have caused or contributed to avoidable deaths. In March, a damning review into the maternity services at SaTH was released by Donna Ockenden which found "repeated errors in care" at the Trust contributed to the deaths of 201 babies between 2000-2019.

West Mercia Police are presently carrying out Operation Lincoln - an investigation into the care of mothers and babies who died or suffered serious harm under maternity services at SaTH between 1 October 2003 and the present day.

Lanyon Bowdler are assisting a large number of families who are part of Operation Lincoln and the Donna Ockenden review, therefore if you require any assistance or if you need advice, please contact us.

Top Tips for Making a Will

1. Control

By taking the positive step of making a Will, you can control the distribution of your estate, rather than relying upon the Statutory Intestacy Rules.

The Statutory Intestacy Rules, govern how a deceased person’s estate is to be distributed if they have not made a Will, and who should deal with the administration and more often than not, they do not provide for the desired outcome.

2. Choice

By preparing a Will, you can choose your:

  • Executors
  • Guardian(s) for any infant children
  • Beneficiaries

3. Specific Gifts

When preparing your Will, you have the opportunity to provide for specific items to pass to beneficiaries of your choice.

This could include your grandfather clock that has been in the family for generations, your Lamborghini or favourite gold necklace.

Please, if you have promised someone a specific item prepare a Will and ensure such a gift is included to save arguments or indeed litigation at a later date - often it is items of limited monetary value but huge sentimental value that cause the most upset!

In addition, you may wish to include monetary bequests to individuals or charities.

4. Inheritance Tax

If you seek specialist advice when you prepare your Will, you will be advised on your Inheritance Tax position and whether it is likely your estate will be taxable.

Also, where appropriate, advice can be provided as to the options available to you in potentially reducing any Inheritance Tax liability.

The rules relating to Inheritance Tax can often be complex so seeking specialist advice, to ensure that you Will is drafted in the most tax efficient manner is vital.

5. Options - Your situation is not “too complicated”

Until you seek advice from a suitable qualified Lawyer with regards to the preparation of your Will, you cannot fully understand or appreciate the options available to you regarding the distribution of your estate.

It is our job to understand your particular circumstances and prepare a bespoke Will accordingly.

Often, clients put off seeking advice believing their situation is too complicated. We are well aware that the average family no longer consists of a married couple with two children but instead, blended families with unmarried parents or second marriages. We can assure you, we will always find a solution.

In the case of second marriages, where spouses have children from previous relationships, there are ways your Wills can be drafted so as to ensure that the surviving spouse is catered for, but that also, your children from a previous relationship also benefit.

If your assets are complicated and consist of business and/or farming interests (meaning your estate is assets rich, cash poor) and/or you are trying to achieve fairness between your children and can’t quite figure out how – we are here to help!

If you worry that there will be no money left in your estate to pass on to your children because it has all been spent on care fees, or that following your death, your spouse may re-marry putting your children’s inheritance at risk. By seeking professional advice, there are ways in which your Will can be drafted to potentially protect some of the value of your estate from the payment of care fees, from remarriage or indeed, unwise spending (be that by a spouse or children). This could also cover situations where perhaps a child is encountering matrimonial or financial difficulties.

6. Financial Advice

We do not as Lawyers provide financial advice, but often during our initial fact finding it will become apparent that you may benefit from financial advice – this could be in relation to life insurance, pensions or Inheritance Tax planning. We can help you get the correct/trusted advice.

7. Professional, specialist advice

Please, when you do make the decision to make a Will, seek advice from a suitable qualified Lawyer. If you have previously seen a Lawyer to make a Will and they have taken your instructions and prepared a Will for you, as directed, without giving you advice on any of the above, you have not sought the correct specialist advice! Review your Will.

8. We are not ogres

Clients often feel worried about taking that first step in making a Will. I promise we are not scary, we are all very friendly and approachable and do our very best to make you feel at ease throughout. The initial appointment consists of taking information regarding your personal and financial circumstances and understanding what you are trying to achieve. We will provide advice on your Inheritance Tax position and ensure that you understand the options available to you in distributing your estate.

9. Peace of Mind

Often, once a client has executed their Will, they speak of having a sense of peace, knowing it has been sorted.

10. Review your Will

Once you have prepared your Will, review it every three to five years or sooner if there has been a change in your circumstances or a change in the law, to Income Inheritance Tax.

By review, we mean take it out of the drawer, read through it and consider whether you feel it is still fit for purpose.

Families of Nottingham Maternity Review call for Donna Ockenden to Takeover Investigation

The Donna Ockenden Review reported in March 2022 found repeated failures at the Shrewsbury and Telford Hospital Trust (SaTH) spanning over a 20 year period whereby both babies and mothers died or were left seriously disabled. The widespread media attention of this review has incited families cared for by the Nottingham University Hospital (NUH) NHS Trust, including Queens Medical and City Hospital, to ask for Donna Ockenden’s input into an ongoing review into the Nottingham Maternity Unit.

A review similar to that completed by Donna Ockenden is in progress in Nottingham relating to the failings at the NUH Trust after dozens of babies died or suffered life-altering injuries. However, families have complained about the lack of progress being made with the investigation, saying that the review is “moving with the viscosity of treacle".

The Nottingham Maternity Unit was rated as inadequate by the Care Quality Commission (CQC) in 2020 when an inspection concluded that there were serious concerns and that staff did not always understand how to keep women and babies safe. The inspectors warned of unsafe staffing levels and patient safety incidents potentially being wrongfully downgraded i.e. incidents were not being investigated properly and people were therefore put at risk of harm as lessons were not being learnt.

A re-inspection in March 2022 resulted in the CQC issuing a warning notice to the NUH Trust highlighting specific concerns over triage services and increases in still births. Investigations have found that at least 46 babies have suffered brain damage and 19 were stillborn between 2010 and 2020.

These findings are all too familiar to those families involved in the Ockenden SaTH Review which examined 1,486 cases between 2000 and 2019 and found at least 201 baby deaths with significant or major concerns over the care received.

The NUH maternity review is currently chaired by NHS Manager, Cathy Purt. However, families involved have questioned her experience in maternity services, as well as of running an inquiry of this magnitude. It has been reported that 84 families were originally involved in this review and this has since increased to 461 following publication of the Ockenden Review.

The NUH maternity review has been ongoing for the past 6 months and is due to be completed by 30 November 2022. However, only 3 clinical leads are involved compared to the 76 clinicians employed in the Ockenden Review. The families are concerned that the review team are unprepared and lack experienced leadership to handle such a large and vitally important review.

Families involved in the NUH Trust review have contacted the Health Secretary Sajid Javid directly raising their concerns and have requested for Donna Ockenden to take over the investigation. Donna Ockenden has since responded to the families directly and noted that she is deeply honoured by their request but any involvement on her part would be subject to approval from the Health Secretary.

As nationally recognised clinical negligence solicitors, we at Lanyon Bowdler are representing a number of families relating directly to the Ockenden Review, and it is hoped that their patient journeys will lead to positive changes and improvements at SaTH. A public enquiry into the NUH Trust, similar to that of the SaTH Ockenden report, is important to ensure that those families affected are provided with support and compassion to come forward and share their experiences, and thereafter highlight and improve upon any identified failings in maternity care.

Agricultural Wages (Wales) Order 2022

The Agricultural Advisory Panel for Wales advises Welsh Ministers on the Agricultural Minimum Wage arrangements for agricultural, horticultural and forestry workers in Wales, and the Senedd usually passes a new Order each year setting new pay rates.

No Agricultural Wages Order was made in 2021, but a new Order will come into effect on 22 April 2022, and will apply retrospectively from 1 April 2022. As well as new rates of pay, there is a revised grading structure.

It is important to note that althought the rates as set out in the Order are less generous that those originally recommended by the Panel as detailed in our earlier blog here (whilst the other allowances are more generous), the published rates are subject to the qualifier that national minimum wage rates must be paid if they are higher.

The new grades and the rates of pay and other allowances that are payable are set out below. (*Denotes national minimum wage rate in excess of rate prescribed by the Order.)

Grade Rate per hour

A1 – Agricultural Development Worker (16-17 years) £4.81*

A2 – Agricultural Development Worker (18-20 years) £6.83*

A3 – Agricultural Development Worker (21-22 years) £9.18*

A4 – Agricultural Development Worker (23 years+) £9.50*

B1 – Agricultural Worker (16-17 years) £4.81*

B2 – Agricultural Worker (18-20 years) £6.83*

B3 – Agricultural Worker (21-22 years) £9.18*

B4 – Agricultural Worker (23 years+) £9.50*

C – Agricultural Advanced Worker £9.47 or, if over 23, £9.50*

D – Senior Agricultural Worker £10.39*

E – Agricultural Manager £11.40

Apprentice Year 1 £4.81*

Apprentice Year 2 (aged 16-17) £4.81*

Apprentice Year 2 (aged 18-20) £6.83*

Apprentice Year 2 (aged 21-22) £9.18*

Apprentice Year 2 (aged 23+) £9.50*

Other Allowances

Dog Allowance £8.53 Per Dog Per Week

Night Time Work Allowance £1.62 Per Hour of Night Work

Birth Adoption Allowance £67.09 For Each Child

The new Order also includes provisions in relation to daily rest and weekly rest in line with the Working Time Regulations 1998.

The Order can be accessed here. Our blog detailing the current national minimum wages rates is here.

For further information and advice in relation to employment law specific to the agricultural sector in Wales, please contact me or another member of the Employment team.

World Health Day

7 April marks World Health Day which is celebrated all over the world to commemorate the anniversary of the founding of the World Health Organization (WHO) in Geneva in 1948.

The WHO's constitution states that its objective "is the attainment by all people of the highest possible level of health".

Each World Health Day, a theme is chosen that highlights an area of priority concern for WHO and this year the theme is “Our Planet, Our Health”. WHO says: “In the midst of a pandemic, a polluted planet, increasing diseases like cancer, asthma, heart disease, on World Health Day 2022, WHO will focus global attention on urgent actions needed to keep humans and the planet healthy and foster a movement to create societies focused on well-being”.

WHO estimates that more than 13 million deaths around the world each year are due to avoidable environmental causes. This includes the climate crisis which is the single biggest health threat facing humanity. The climate crisis is also a health crisis.

WHO along with the National Institute for Health and Care Excellence (NICE) create evidence based clinical guidelines, which provide the benchmark for best practice in healthcare. WHO surgical safety checklist is in current use worldwide in the effort to improve patient safety.

But what happens when the guidelines are not followed? If for example, a patient approaches their GP with symptoms that are suspicious of an illness or disease and the recommended guidelines for referral are not made, then there could be a delay in the diagnosis and treatment of that disease which is likely to give a poorer outcome for the patient.

If you think that you or someone you know has had a delay in their diagnosis or treatment then get in touch with a member of our team.

No Fault Divorce – It’s Finally Here!

The Divorce Dissolution and Separation Act was finally implemented on 6th April 2022.

So what’s changed?

1. Parties will no longer need to rely upon a fact to prove the marriage has irretrievably broken down (such as adultery, unreasonable behaviour or 2 years separation with the other’s consent). Hence reference to the new divorces being ‘no fault’;

2. It will no longer be possible for a respondent to contest the divorce, save for challenging the divorce for reasons such as jurisdiction, validity of marriage, fraud or procedural compliance;

3. Terminology has also changed. For example, a petitioner will now be known as an applicant and the decree absolute will now be known as a divorce order;

4. Time frames are slightly different. For example, the introduction of the requirement that an applicant (petitioner) must wait 20 weeks from the day the application (divorce petition) was issued before they can apply for the conditional order (decree nisi). This may impact upon how long a divorce may take and also impact upon when parties can file a financial order by consent or commence financial remedy proceedings;

5. Parties can now apply on a joint basis;

6. The seeking of a cost order appears to be discouraged, but not prohibited. Previously it was quite common for a petitioner to seek an order for costs against a respondent when a ‘fault’ based petition had been filed and such a claim was included in the petition itself rather than making a separate application.

Are there any similarities to the previous divorce legislation?

1. There is still only one ground for divorce, which is irretrievable breakdown of the marriage;

2. The same court fee of £593 is required to be paid (and for those who are eligible, you can still apply for fee remission);

3. Applications are still to be made via the court’s on-line portal;

4. The procedure is still similar i.e. issue of application (petition); where it is not a joint application – respondent to file acknowledgement of service; apply for conditional order (decree nisi) and then apply for divorce order (decree absolute);

5. The end result is still the same, a divorce order (decree absolute) dissolves the parties’ marriage;

6. The same financial orders and the same section 25 criteria is still applied in respect of the parties’ financial claims arising from the divorce.

We at Lanyon Bowdler are here to advise and assist you in respect of your divorce and issues arising from the same (such as negotiating a financial settlement or resolving the arrangements for the children). We offer a discounted fixed fee hour appointment where many of these issues can be discussed at the outset. For more details please contact one of our offices via telephone or via email.

The Digitalisation of Lasting Powers of Attorney (LPAs) - ‘safer, simpler and fit for the future’

What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a vital legal document which appoints a person of trust who will make decisions on your behalf (known as an attorney), either now, should you choose to or when mental capacity is lost. When appointed, the attorneys will be able to make decisions regarding property, financial or health affairs, at a time in the future when you may no longer be able to make those decisions yourself.

What are the proposed changes?
The Ministry of Justice (MoJ) in collaboration with the Office of the Public Guardian (OPG) last year published a consultation on plans for how LPAs can be modernised, streamlined and digitalised.

In modernising LPAs it is considered that digital LPAs may be more useful than the current paper based LPAs. The modernisation of LPAs aims to improve the process of making and registering an LPA by increasing safeguards, improving access and ensuring the OPG is working sustainably while keeping LPAs as affordable as possible.

Pros of LPAs becoming digitalised

  • It could make it easier for those that are digitally savvy to make an LPA. Online tools will make it easier for attorneys to contact financial institutions and healthcare providers once the LPAs are registered.
  • It could become cheaper to make an LPA if the process is simplified and costs are cut down due to less paper, equipment, storage and staff.
  • Currently it is taking up to 20 weeks for LPAs to be registered once they have been signed. If LPAs are digitalised this could cut the registration time from up to 20 weeks to as little as two weeks. The current long time frame for registration can delay important decisions being made so any reduction in this would be most welcomed.

Drawbacks of LPAs becoming digitalised

  • It could be easier for mistakes to be made online which could be problematic if the mistakes are not corrected. Currently mistakes in paper based LPAs can cause long delays and it is expected this would cause similar delays for online applications.
  • There could be more opportunity for fraud and abuse of power if LPAs are digital, especially for those clients who are vulnerable or elderly and do not have access to computers or the internet. The Law Society in particular are concerned that there should be sufficient safeguards in place to protect those most at risk.
  • LPAs are posted by both the OPG and can be posted to attorneys and replacement attorneys for signature. There is clearly a risk therefore of LPAs being lost in the postal system which is both longwinded and can cause unnecessary delays.

The Private Client Team at Lanyon Bowdler will be here to assist with LPAs both now and in the future and you should always consult with someone experienced in LPAs to ensure they are drafted correctly and meet your needs.

Donna Ockenden: ‘The Independent Review of Maternity Services at The Shrewsbury and Telford Hospital NHS Trust’

Wednesday 30 March 2022 marks the publication of Donna Ockenden’s final independent review into maternity services at The Shrewsbury and Telford Hospital NHS Trust. The long-awaited report follows on from the first report, ‘Emerging Findings and Recommendations from the Independent Review of Maternity Services at The Shrewsbury and Telford Hospital NHS Trust’ which was published in December 2020.

The first report observed important emerging themes that concerns were not appropriately escalated, leading to a direct impact on the safety and quality of care provided to women and their babies. The aim of the first report was to focus on immediate improvements for the Trust and the wider maternity system across England.

The final report which was published today has reviewed the maternity care received by 1,486 different families, involving 1,592 clinical incidents. Cases span from as early as 1973, with the latest in 2020. As such, it is the largest ever number of clinical reviews conducted as part of an inquiry relating to a single service in the history of the NHS.

The report highlights woefully poor practice over a period of decades, to include a reluctance to carry out caesarean sections, a failure to train staff properly to read CTG (heart monitoring) traces; inadequate team working, a refusal to follow national guidelines, an inability to learn from mistakes and a culture of cover-up. It has been identified that there are 60 areas where improvements could be made at The Shrewsbury and Telford Hospital NHS Trust.

Harrowingly, the report identifies 201 cases of still birth and neonatal deaths that could have been avoided if better care had been provided and 9 avoidable maternal deaths. Other babies were starved of oxygen and left with life-changing disabilities. It was found that false reassurances were given to families about the maternity services despite repeated concerns being raised.

Within the report, Donna Ockenden addresses the Secretary of State for Health and Social Care and states that the review is about an NHS maternity service that failed – “it failed to investigate, failed to learn and failed to improve and therefore often failed to safeguard mothers and their babies at one of the most important times in their lives”.

Whilst the report says the review team are encouraged by staff feedback that following the publication of the first report in December 2020 there does seem to have been a recent improvement in maternity services at the Trust, even now early in 2022 there remains concern that NHS maternity services are still failing to adequately address and learn lessons from serious maternity events.

Commenting on today’s publication, the Birth Trauma Association’s CEO, Dr Kim Thomas, said:

“The Ockenden’s findings are so shocking that they must provide an impetus for change. The lives of babies and mothers have been lost as a result of neglectful care over a period of decades. The fact that it has taken this long to investigate is in itself highly worrying. It is now time for an overhaul of maternity care that priorities the safety and wellbeing of mothers and babies”.

We have profound sympathy for all of the families who have suffered indescribable loss and harm as a result of maternity failings at The Shrewsbury and Telford Hospital NHS Trust and we hope that this report will herald the improvements in maternity care that they have been asking for.

New Mobile Phone Law has Come into Force

If you are reading this whilst driving or sat at the traffic lights, then you are now breaking the law!

A legal loophole that previously allowed drivers taking a photo, scrolling through the playlist or playing a game whilst behind the wheel to escape punishment, has now been closed.

Anyone convicted of using a handheld mobile whilst driving, faces a punishment of 6 points on their licence and a fine of up to £1,000.

The only exception allows people to make contactless payments at drive through restaurants, so long as the vehicle is stationary.

People can still use the phone ‘hands free’ to make Bluetooth calls or as a Sat Nav, if it is properly set up before driving.

The full list of what is and what is not allowed is set out here: https://www.gov.uk/using-mobile-phones-when-driving-the-law

If convicted of this offence, anyone within the first two years of passing their test would face having their licence revoked and having to sit their driving test again.

For further advice please contact Stephen Scully on 01743 280232 or stephen.scully@lblaw.co.uk.

Dementia and Decision-making

Dementia is a term used to describe a range of symptoms associated with a progressive deterioration of cognitive functioning. These symptoms, including loss of memory, logical reasoning and attention, together with confusion and communication difficulties, can have a severely detrimental effect on the life of the sufferer and those who love and care for them.

There are several types of dementia; including Alzheimer's disease (which is the most common form), vascular dementia, frontotemporal dementia and dementia with Lewy bodies, it is also possible to suffer with more than one type of dementia.

The Alzheimer’s Society have recently published (December 2021) some quite shocking statistics:

  • It is estimated that there are currently around 900,000 people with dementia in the UK and this is expected to rise to 1.6 million by 2040.
  • 209,600 people will develop dementia this year, that’s one every three minutes.
  • One in six people over the age of 80 have dementia.
  • 70 per cent of people in care homes have dementia or severe memory problems.
  • There are over 42,000 people under 65 with dementia in the UK.
  • Dementia is one of the main causes of disability later in life, ahead of cancer, cardiovascular disease and stroke.

As dementia progresses, it is sadly the case that many individuals lose mental capacity to make their own decisions regarding particular aspects of their life, such as managing financial affairs and health and social care.

It is important to note that a person’s mental capacity refers specifically to their capacity to make a particular decision at the time it needs to be made. It is therefore not applicable to simply state that someone has ‘lost mental capacity’, as capacity must be assessed on a decision specific and ongoing basis.

The Mental Capacity Act (MCA) 2005, which came into force on 1 October 2007, provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves.

The MCA 2005 is based on five key Statutory Principles:

Principle one - A person must be assumed to have capacity to make a particular decision unless it is established that they do not. This means that a diagnosis of dementia does not automatically preclude someone from making their own decisions.

Principle two - A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

Dementia may affect an individual’s ability to make some decisions, however, they should receive support to make as many decisions as they can. The kind of support required will depend on personal circumstances, the type of decision to be made and the time available to make the decision. Those supporting the individual should try to find the most helpful way to communicate, perhaps explaining the information in a different way or breaking it down into smaller chunks.

Principle three - A person who makes a decision that others think is unwise should not automatically be labelled as lacking capacity to make a decision.

Principle four - An act done or decision made on behalf of someone who lacks capacity must be done, or made, in their best interests.

Principle five - Any act done, or any decision made on behalf of someone who lacks capacity, should be an option that is least restrictive of their basic rights and freedoms – as long as it is still in their best interests.

A person with dementia may have capacity to make some decisions, such as what to wear or what to eat, but may lack capacity to make more complex decisions, such as managing their financial affairs.

If an individual lacks capacity to manage their financial affairs, then someone else will need to make these decisions for them, however, they can only do so if they have the required legal authority. Despite popular belief, an individual’s ‘next of kin’ does not automatically acquire this legal authority.

With the required mental capacity, an individual can make and register Lasting Powers of Attorney for property and financial affairs and also health & welfare, appointing attorneys to act on their behalf, should there be a need to do so in the future.

However, in the event that an individual with dementia loses capacity to make some decisions relating to their financial affairs, as assessed by a medical professional, then they will be unable to make a Lasting Power of Attorney and it therefore becomes extremely difficult to help them manage their finances. In these circumstances, the required legal authority to act on their behalf comes from being appointed as their deputy via a deputyship application to the Court of Protection.

Family members or close friends can be appointed as ‘lay deputies’ or if there is no-one suitable or able to act then a ’professional Deputy’ can be appointed.

An appointed deputy has wide ranging duties and responsibilities, including reporting requirements, and a deputy must continue to follow the five key principles as set out in the MCA 2005. If making decisions on behalf of the incapacitated person (referred to as ‘P’) the deputy must have particular regard to principles four and five i.e. they must always act in P’s best interests and choose the least restrictive option where possible.

The requirement to apply for a deputyship for someone with dementia can often indicate that the people caring for them have reached a crisis point, and/or there has been a deterioration in their loved one’s mental health. Consequently this can be an extremely stressful and emotionally challenging time for all involved.

The Court of Protection Team at Lanyon Bowdler has a wealth of experience of dealing with Court of Protection applications, advising deputies regarding their roles and responsibilities, and we are also able to offer a professional deputyship service.

We understand how complex and overwhelming the whole deputyship application process can be and so if any of the issues raised above are relevant to you or someone you care for then please do not hesitate to get in touch with our Court of Protection Team for further information, advice and support.

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