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Work Experience Interview Tips

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

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

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

1. Try to stay relaxed

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

2. Be prepared to talk about yourself

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

3. Make a note of any questions you have

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

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

Patient Safety Fears after GP Surgery Limits Patient Access

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

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

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

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

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

Nottingham Maternity Review – Donna Ockenden Takeover

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

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

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

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

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

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

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

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

West Midlands Ambulance Service Faces ‘Titanic’ Collapse

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

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

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

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

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

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

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

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

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

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.

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.

Coercive Control

Many people contact the Court of Protection team at Lanyon Bowdler at a time when they are most vulnerable. We often receive calls from upset and distressed sons and daughters who are calling regarding their mother or father who lack capacity and are facing difficult decisions regarding where their family members are going to live and who will take care of them. Sometimes we receive calls and are told that an incapacitated person (“P”) is currently living with a family member and the caller fears they are being taken advantage of.

What can you do in situations where someone may be subject to coercive control?

The Mental Capacity Act 2005 (MCA) aims to ensure that people who have an impairment of the mind or brain are supported to make their own decisions wherever possible. The MCA only applies where a person lacks capacity as defined in the MCA – i.e. ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. This means that capacity is decision and issue specific: someone may have capacity to create a Will but lack capacity regarding their property and finances. An impairment could be the result of a brain injury, dementia or other injuries or conditions.

It is important to firstly ascertain if the person lacks capacity with regard to the specific issue. This is determined by a capacity assessment which is completed by a GP or other health practitioner. However, it is noted in the MCA that an unwise decision is not an incapacious decision, so first it must be asked whether there has been coercion or simply has an unwise decision been made by someone with capacity.

The recent case of Re BU [2021] EWCOP 54 dealt with this question. The case concerned BU, a 70 year-old woman with a diagnosis of a global cognitive impairment. BU had an investment portfolio estimated to be worth £1.3 million. She had formed a relationship with NC; a man nearly 20 years her junior who had a history of criminal convictions including offences relating to fraud and theft and notably a nine year custodial sentence for an offence of dishonesty and blackmail. BU had a close relationship with her daughters and elderly father. Her marriage to her daughters’ father broke down when they were young and she had not formed any meaningful relationships with a man until she met NC. The relationship BU had with NC had a significant impact on the deterioration of the close relationships with her family and concerns were raised by the family headed by her daughter WU. The concerns were raised following expensive purchases such as vehicles, a caravan and various property, liquidation of investments and the creation of a new Will seemingly driven by NC’s coercive behaviour. BU’s family sought; a declaration from the Court of Protection that BU lacked capacity to make decisions about her contact with others, including NC, an Order preventing NC from having further contact with BU and an Order preventing BU and NC entering into a Civil Partnership or Marriage. Mrs Justice Roberts in the case stated:

“There is no evidence at all to suggest that she presently wishes to reduce or eliminate her contact with him (indeed, the evidence points to the contrary). I consider nevertheless that she lacks capacity generally in relation to her contact with NC. The expert evidence, which I accept, is clear. Because of the corrosive and coercive nature of the control which I find NC to have exercised over her, BU has been deprived of autonomous decision-making in this context”…

“Put simply, she no longer has the ability to exercise her individual free will in the context of any ongoing relationship with NC. The degenerative vascular changes in her brain have resulted in a global cognitive impairment which has impacted upon her ability to weigh and use information to the extent that a person with full capacity could”.

Mrs Justice Roberts concluded that she would be making a final order prohibiting any contact between BU and NC. The current injunction prohibiting contact which had been breached numerous times by NC would be replaced with a final order which would include a penal notice meaning that if NC breached the terms of the Order he could be found in contempt of court and face a period of imprisonment. Although Mrs Justice Roberts stated it would be a final order she advised she would be open for the order to be reviewed should circumstances change.

Given Mrs Justice Roberts’ conclusions about BU’s capacity it fell to her to make determinations about BU’s best interests. In all decisions before the Court regarding P, the Court will only intervene if necessary and any intervention must be reasonable and proportionate and in P’s best interests. In a case of coercive control it will be asked whether it is in P’s best interests to limit contact or whether they should be removed from a living situation in which they are subjected to the influences of the person exhibiting coercive control. If P is subject to coercive and controlling behaviour an injunction can be sought to limit or cease contact between the two parties.

If you have concerns that someone you know may lack capacity and is being subjected to coercive or controlling behaviour and would like more information please contact a member of our Court of Protection team.

Q&A: Focus on Warranty and Indemnity Insurance for SMEs

Warranty and Indemnity Insurance, commonly referred to as W&I insurance, is often used in private mergers and acquisitions (M&A) to cover financial loss, that may arise from a breach of the seller’s warranties in a sale purchase agreement. Historically, W&I Insurance was a niche market and targeted at private equity investors. However, recent market trends are seeing it used in a range of company sales, including SMEs, to ease lengthy and costly negotiations, and give both the buyer and seller a positive outcome.

What are the benefits of W&I Insurance? Negotiation of warranties, disclosure and seller limitations can be a costly and sometimes insurmountable process. The key benefits of W&I Insurance for the seller include the possibility to cap its liability at nil, or at least a lower amount than would otherwise have been possible, enabling a cleaner exit. It is also considered a favourable alternative to price reductions, specific indemnities with escrow arrangements or parent guarantees. For the buyer, it can claim directly against the insurer and can potentially negotiate an enhanced scope and duration of protection. It is also a helpful alternative to a confrontational negotiation of warranties if the parties need to maintain a commercial relationship in the future.

What are the disadvantages of W&I Insurance? The insurance cover offered tends to exclude the following: known or disclosed facts, losses arising from fraud and certain specific liabilities such as money laundering and environmental. There is also the timing issue of involving the insurer early on in the transaction followed by the co-ordination of an additional third party in the due diligence process and review of the sale purchase agreement. Finally, the cost of the insurance premium will need to be paid. Currently, the premium seems to be around 1 to 2% of the maximum liability covered by the insurance policy.

Who tends to arrange W&I Insurance cover? W&I insurance is predominantly used on share deals and arranged by the buyer However, this does not mean that the buyers always pick up the price of the premium, which is a point of negotiation for parties to the transaction.

How common is W&I Insurance? The use of W&I Insurance has grown considerably for the last five years, particularly in M&A deals involving SMEs and those not involving any private equity party. The growing consensus of city firms is that the use of W&I Insurance is around 20% in private M&A deals and 40% in private equity deals.

So what could be fuelling this increased activity? A key reason has to be cost of the W&I Insurance cover. The number of insurers offering W&I insurance has increased, driving competition between insurers and therefore making the policies more affordable and efficient, with the scope of policies offering more comprehensive and wider cover.

What is the future of W&I Insurance in M&A deals? It seems clear that W&I insurance is behind some fundamental developments in deal structure. Its increased use will inevitably reduce the use of escrows and create more nil seller recourse structures. However, as more policies are created, there is a following trend of increased W&I claims which may in turn raise the premium rates of W&I Insurance reducing its appeal.

If you would be interested in discussing the benefits of W&I Insurance for your company sale then please feel free to contact the Commercial & Corporate department at Lanyon Bowdler.

Protecting Financial Assistance to Family Members Upon Divorce

Very often we encounter situations in which family members wish to help a couple purchase a property together, usually with a contribution towards the deposit. In today’s property market that can be a very welcome boost for getting onto the property ladder and parents or grandparents can gain a lot of pleasure from seeing their younger relative and his/her spouse settled with fewer financial concerns.

However, this enjoyment can quickly turn sour if the child’s marriage breaks down. On many occasions we are faced with a situation where a client says their parent provided money to purchase the marital home and we have to deliver the bad news that, unless something was done at the time to protect that sum of money for the parent, it may well be regarded as having been a gift. As such, it will be absorbed into the marital assets and could be awarded in whole or in part to the other spouse.

The basic position is that, within divorce proceedings, the Court must take all the marital assets into account and divide them so as to produce a fair result for the couple, taking account of various factors such as the existence of children, each spouse’s financial needs and resources, their age, health, etc.

Note that the law does not require the Court to consider fairness to the parents etc who might have provided part of those assets.

For that reason, if you are considering helping out your married child financially it is very sensible to take legal advice to ensure your circumstances are protected as far as possible.

Matters to consider are:

  • Should your name go onto the title deeds to reflect the funds you contributed?
  • Maybe you could have a charge against the property, noted on the title documents at the Land Registry?
  • If the money is regarded as a loan, should a formal loan agreement be drawn up setting out the repayment terms, interest, etc.
  • Perhaps your child and his/her spouse could agree to enter into a pre-nuptial / post-nuptial agreement to try to ensure that your child retains your funds if the marriage breaks down?
  • If you still wish to provide the money on an informal basis, how will this be recorded by the solicitors dealing with the purchase and to what extent will your name and the arrangements be referred to in their file and on bank documents?

All of these options will have important ramifications (such as tax and inheritance) and you should take legal advice in good time before providing the funds.

However, a little thought and investment at this stage could protect you against potentially having to intervene in divorce proceedings further down the line, at considerable cost, risk and disruption to yourself and the wider family.

ACAS Bereavement

On 16 February 2022, Acas published new guidance with regards to bereavement leave and pay (replacing the previous guidance). This guidance aims to help employers understand the time off and pay that a bereaved employee may be entitled to and to provide advice regarding bereavement in the workplace on the whole.

During an employee’s working life, it is expected that they will experience the death of someone close to them at some point. Therefore, employers need to know what to do in these circumstances. The updated Acas guidance covers bereavements that may be experienced by an employee following the death of a dependant, a child, stillbirth, miscarriage or a colleague, as well as deaths outside of these categories.

Within the guidance, employers are advised to recognise that grief affects everyone differently and that tailored support may be necessary, both at the time of the bereavement and after the employee has returned to work. The guidance also includes a section aimed at employees which provides advice on what they should do after a death. Employers need to be aware of this and be able to direct employees to it if necessary.

Under the new guidance, employers are advised not to discriminate against bereaved employees when considering time off and support provided, and in line with this, the guidance recommends that employers have a workplace bereavement policy to cover time off and pay. This is not new advice, but further advice has been given as to what should be included within the policy, this being:

  • When the leave for bereavement could apply;
  • How much leave will be provided; and
  • The amount of pay for the leave (if applicable).

One of the biggest changes to the guidance is that anyone who is classed as an ‘employee’ has the right to time off if: a) a dependant dies; or b) their child is stillborn or dies under the age of 18. The definition of a dependant has been expanded to include: a) spouse, partner or civil partner; b) parent; c) child (under 18); d) a person who lives in their household (not tenants, lodgers or employees); e) a person who would rely on them for help in the event of an accident, illness or injury; or f) a person who relies on them to make care arrangements. Although there is a right to time off in these circumstances, there is no right to paid leave – this can be paid at the discretion of the employer.

In circumstances where there is no legal right to time off and the employer does not offer bereavement leave, the new guidance recommends that employers consider the use of annual leave, sick leave or unpaid leave as alternatives. It is advised that discussions are held between the employer and employee to discuss:

  • What type of bereavement leave is available;
  • How much time off is available; and
  • Whether the leave will be paid or unpaid.

If you would like any advice on the updated guidance, please do contact the employment team to arrange an appointment.

Agricultural Minimum Wage 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.

However, no Agricultural Wages Order was made in 2021, so the current pay rates have been in effect since April 2020 – but, where applicable, subject to increases in accordance with the National Minimum Wage rates effective from April 2021.

The Panel has proposed changes to the current Agricultural Minimum Wage arrangements to apply from April 2022.

The proposals have still yet to be approved, but are as follows:

1. Rates of Pay

Hand in hand with the proposed new pay rates is a new grading structure, which the Panel considers will make it easier to define an agricultural worker’s appropriate grade.

The proposed new grades are explained here, at point 1, whilst the equivalent qualifications referred to in the grade descriptions are set out at point 2.

The proposed new pay rates are as follows:

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+) £9.79

C – Agricultural Advanced Worker £10.08

D – Senior Agricultural Worker £11.06

E – Agricultural Manager £12.13

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 £8.17 Per Dog Per Week

Night Time Work Allowance £1.55 Per Hour of Night Work

Birth Adoption Allowance £64.29 For Each Child

2. Other Proposed Changes

The current Agricultural Wages Order makes provision for rest breaks of not less than 30 minutes on any day that a worker aged 18 or older works more than 5½ hours (subject to exceptions).

The Panel considers it appropriate in the interests of clarity that provisions should be included relating to daily rest for workers under 18 and in relation to daily rest and weekly rest which replicate the provisions of the Working Time Regulations 1998 – although these are not new rights, as absent any equal or better entitlements of workers under an Agricultural Wages Order, the provisions of the Working Time Regulations must be applied.

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.

For details of increases in the National Minimum Wage and increases to other statutory payments and limits, also to come into effect this April, please see our blog here.

Increases to Statutory Payments and Limits

National Minimum Wage

From 1 April 2022, the National Living Wage increased from £8.91 to £9.50 an hour.

National Minimum Wage rates for those under the age of 23 and first year apprentices are to increase as follows:

  • Workers aged 21 to 22: £9.18 (up from £8.36)
  • Workers aged 18 to 20: £6.83 (up from £6.56)
  • Workers aged 16 to 17: £4.81 (up from £4.62)
  • Apprentices in their first year: £4.81 (up from £4.30)

The accommodation offset rate will increase from £8.36 to £8.70.

Agricultural Minimum Wage in Wales

See our separate blog on the Agricultural Wages (Wales) Order 2022 here.

Family-related payments

From 11 April, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay will increase from £151.97 per week to £156.66 (or, if lower, 90% of an employee’s average weekly earnings).

Statutory Sick Pay (SSP)

From 11 April, SSP increased from £96.35 to £99.35 per week.

Compensation limits

For dismissals with an effective date of termination on or after 6 April, the cap on the value of a week’s pay for certain statutory purposes, such as calculating statutory redundancy pay and basic awards of compensation, will increase from £544.00 to £571.00.

The maximum compensatory award for unfair dismissals will increase from the higher of 52 weeks’ normal pay and £89,493.00 to the higher of 52 weeks’ normal pay and £93,878.00.

Statutory guarantee pay

During periods of lay-off or short-time working an employee may be entitled to a statutory guarantee payment, which is calculated by multiplying the number of normal working hours on the workless day by the guaranteed hourly rate. With effect from 6 April, the maximum guarantee payment will increase to £31.00 per day (subject to a maximum of 5 days or £155 in any 3 months) from £30.00 per day.

For further details relating to the law around and relating to the above payments and limits, please contact me or a member of the employment team.

NHS England Abandons Targets for ‘Normal Births’

Maternity units throughout England have been instructed to stop using targets aimed at limiting the number of caesarean sections in the bid to pursue normal births, over fears that mothers and babies have been put at risk by using total caesarean rates as a measure of performance management.

In a letter, Jaqueline Dunkley-Bent NHS England’s Chief Midwife, and Dr Matthew Jolly, the National Clinical Director for Maternity, raised concerns that ’the potential for [maternity] services to pursue targets may be clinically inappropriate and unsafe in individual cases’.

For several years, medical bodies have been calling for the targets to be scrapped, and following the announcement these bodies have now welcomed the changes. Last July, a Commons Heath and Social Care Committee Report said it was ‘deeply concerning‘ that maternity services have been penalised for having high rates of caesarean section in the past. The Royal College of Obstetricians and Gynaecologists (RCOG) have welcomed the change, with Dr Jo Mountfield Vice President saying ‘the targets carry certain benefits and risks which should be discussed with women as they choose how they wish to give birth. Women and people giving birth should feel supported and their choices should be respected’.

The Royal College of Midwives (RCM) formally abandoned its normal birth campaign in 2017. Responding to the change of policy, the RCM’s chief executive, Gill Walton, said that decisions about clinical care should be made in the best interests of the woman and the baby ‘and not because of an arbitrary target’.

A caesarean section is when a baby is delivered through a surgical cut into the abdomen and womb. They are carried out for a number of reasons and it can be a planned or emergency procedure.

A “normal delivery” is one that refers to childbirth through the vagina.

The National Institute for Health and Care Excellence (NICE) have provided new guidance which suggest that maternity staff should treat cases on an individual basis, rather than following the aim to promote as many natural births as possible.

Currently around one in four babies are born by caesarean section in the UK but there is some variability between hospitals and trusts nationally. Our local Shrewsbury and Telford Hospital NHS Trust (SaTH) had among the highest normal delivery rates in England between 2010 and 2018.

There has been some concern that the pursuit of normal deliveries may have contributed to some instances of poor maternity care, including at SaTH where the deaths of a number of mothers and babies are being investigated by Donna Ockenden, the Chair of the Independent Maternity Review at SaTH. Publication of the second part of the Independent Maternity Review is currently scheduled to take place no later than 24 March 2022.

Listen to our podcast about the concerns at SaTH, via this link.

Here at Lanyon Bowdler our solicitors have been involved in a number of cases that concern labour and delivery method decisions in maternity care.

If you have concerns about the maternity advice and care you have received, please get in touch with our team who will be able to assist you sensitively.

Closure of SSP Rebate Scheme and Reintroduction of Waiting Days

The Statutory Sick Pay Rebate Scheme will close on 17 March 2022.

Under the current scheme, employers can claim back up to 2 weeks of Statutory Sick Pay ("SSP") for each employee who received it due to Covid-19, provided that:

  • they have a PAYE payroll scheme that was created and started on or before 30 November 2021; and
  • they had fewer than 250 employees on 30 November 2021 across all PAYE payroll schemes.

The maximum number of employees that an employer can claim for is the number they had across their PAYE schemes on 30 November 2021.

Employers will therefore no longer be able to claim back SSP for their employees’ coronavirus-related absences, including self-isolation, that occur after 17 March 2022.

Employers have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims they have already submitted.

Also, after 17 March there will be a return to the normal SSP rules, which means employers should revert to paying SSP from the fourth qualifying day that their employee is off work regardless of the reason for their sickness absence. Currently, provided an employee is absent for at least 4 days due to Covid-19 infection, household isolation or isolation at the behest of NHS Test and Trace, they will be entitled to SSP from the first day of absence.

Retired Consultant speaks out about the Shrewsbury and Telford Hospitals NHS Trust maternity scandal

Ahead of the Panorama special this evening, a BBC News article published today provides an informative and emotive overview of the origin of this inquiry and the findings released thus far.

Born out of grief of their own tragic losses at the hands of the trust, Kayleigh Griffiths and Rhiannon Davies collated 23 cases comprising of still births, neonatal deaths, maternal deaths and child brain injury and approached Jeremy Hunt, the then Health Secretary. An inquiry was then launched in May 2017 with Donna Ockenden, a leading Midwife, appointed as lead.

One of the themes the inquiry has already identified following the publication of Ms Ockenden’s preliminary report in December 2020 is the failure to properly investigate after something went wrong. The trust either failed to investigate entirely or carried out their own investigation, outside of national guidance. As a consequence, fewer incidents were reported to NHS regulators, which inevitably impacted the opportunity to learn lessons and led to the same mistakes being made repeatedly.

As families were campaigning for an external review of the trust, Mr Bernie Bentick, Consultant Obstetrician and Gynaecologist was advocating for change inside the organisation. He is the first former staff member to speak openly about what was happening inside the trust.

He has revealed that he wrote to the senior management team several times voicing his concerns. During his interview with Panorama, Mr Bentick said:

"I believed that some of the ways they responded to problems were to try to preserve the reputation of the organisation rather than to do anything practical. They were prepared to make small, what they regarded as proportionate, changes to try to improve the situation. But I don't think they really understood the gravity of the cultural problems within the trust."

Mr Bentick advised that a gap developed between the management of the trust and the clinicians caused by the lack of good quality, trained managers who had as much professional accountability as the clinicians. He said:

"If the resources had been made available to employ adequate numbers, then the situation may have been profoundly different. I feel intense sorry and sadness for the families and I would hope that the NHS responds in a way that ensures that quality of care is at the forefront of what we provide in the NHS."

The full interview will feature as part of the Panorama special this evening, alongside an interview with our Head of Clinical Negligence and partner, Beth Heath. As we represent a large number of families involved in Ms Ockenden’s inquiry and beyond it is important to focus on implementing change and supporting the trust in doing this to avoid further unnecessary tragedy.

Podcast

You can also listen to Beth and Katherine Jones talk about the three regular themes, presented to them by families involved in the inquiry, via our podcast here.

If you have concerns regarding your maternity care, our experts are always here to listen. Please contact us by phone on 01743 280280 or email info@lblaw.co.uk.

What Happens to Our Digital Assets When We Die?

What we do with our digital assets when we die, has become an interesting topic of conversation in recent years. The vast majority of us hold digital assets; whether that be our PayPal account, online bank accounts, cryptocurrency or indeed online photos and email accounts.

In a survey, conducted by the Law Society in 2021, it was found that nearly three quarters of those surveyed did not know what would happen to their digital assets when they died. Other research has also shown families feel that there is a lack of clarity regarding what happens to digital assets when dealing with a loved one’s estate.

It is not difficult to see how people are confused, as different asset providers have different rules and procedures, and the development of technology has surpassed that of law and policy. However, when someone dies their Personal Representative needs access to such assets in order to properly administer the estate.

What are digital assets?

Generally they are assets of a sentimental or financial value that exist in electronic form only.

Assets of sentimental value include photos on Facebook, Instagram, email and so on. Facebook, for example, has the right to store and display the content of someone’s account even after they die, however, you have the ability to appoint one individual who, after your death, can make decisions about your account. Similarly, Google has an “Inactive Account Manager” feature which notifies an appointed person if you have been inactive for 18 months, and you can also indicate whether you would like Google to delete your account after the inactive period.

Digital assets of financial value include Bitcoin and digital art. To make matters more complicated, each provider has different rules regarding what will happen on the death of the account holder, and access to such platforms can be highly encrypted.

As explained above, the difficulty with digital assets is that the development of technology has surpassed current laws. In fact, a Personal Representative using a password or PIN, to access an account after death, may be guilty of a criminal offence or indeed it can be against the terms and conditions of a social media account to give a password to someone else.

What steps can you take to protect your digital assets on death?

Whilst there is no clear policy regarding what you should do to protect your digital assets on death, the following provides practical steps and matters to consider:

  • Review, and keep under review, the terms and conditions of all social media accounts.
  • If you have significant electronic assets, or indeed they account for a large portion of your estate, it is important to speak with a solicitor and include within your Will your wishes in respect of those assets. In respect of cryptocurrency, for example, it can be difficult to plan without compromising the security of the investment. However, it is important that your Personal Representatives are aware of the steps they need to undertake to gain access to them.
  • You need to consider what instructions to leave your Personal Representatives so they can access your digital assets and the Society of Trusts and Estate Practitioners recommends keeping an inventory of your digital assets but details of how to access the assets must be kept separate.
  • It may also be helpful to include a provision in your Will providing specific authority for your Personal Representatives to deal with your digital assets.
  • You should also check with each digital asset provider what their processes and rules are when you die.

At Lanyon Bowdler we understand how important it is to think about what will happen to your digital assets on death, and we are happy to talk you through your options and help you plan for the future.

Investigation Reveals 999 ‘Postcode Lottery’ of Pregnancy Care

An investigation has revealed that pregnant patients, calling 999 for help whilst waiting for an ambulance, are given different instructions by call handlers depending on their location.

A report, undertaken by the Healthcare Safety Investigation Branch (“HSIB”), was published on 17 February 2022 following an investigation to help improve patient safety, concerning advice given to pregnant patients waiting for an ambulance due to a maternal emergency.

The HSIB reviewed an incident whereby a pregnant patient telephoned 999 and was given advice by a non-clinical call handler. The mother subsequently suffered a placental abruption and lost a large amount of blood, and both she and the baby required a significant amount of care.

The HSIB investigation into that case identified aspects of the pre-arrival instructions, given by call handler, were not in line with maternity guidance. This created a risk of harm to both pregnant patients and their babies.

Sadly, the HSIB identified 15 further cases where similar concerns were identified, which prompted this national investigation.

The HSIB also discovered that there are two different triage systems being used by 999 operators in England, meaning two patients in different locations, with the same clinical emergency, would be provided with differing advice. The HSIB considered this created a ‘postcode lottery’ of care for pregnant women, which could have disastrous consequences for expectant mothers and their babies.

A number of safety recommendations were made by the HSIB, including guidance which should be developed for maternity emergencies in the non-visual, non-clinician-attended environment. A further recommendation noted that a regulatory mechanism should be identified to provide formal oversight of 999 maternity pre-arrival instructions for NHS provided care in England. It was also recommended that patient safety incident investigation standards should be developed to further support cross-boundary investigation.

If you have concerns about the maternity advice and care you have received, or any other type of treatment, please get in touch with our team who will be able to assist you sensitively.

Fire and Rehire

Fire and rehire or, as it is more formally termed, dismissal and re-engagement, is controversial and currently a focus for much debate. The approach is certainly not a new one, and much as with zero hours contracts a year or two back, has become the target of considerable trade union ire.

So, what exactly is fire and rehire? As with any contract, the terms of an employment contract cannot be unilaterally altered by one of the contracting parties. Therefore, when an employer seeks to change terms to an employee’s detriment – for example, to replace an expensive final salary pension scheme with a cheaper defined contribution scheme, or perhaps to reduce working hours and/or pay – and the employee will not agree, the employer will sometimes impose the change by terminating the contract (“fire”) and offering to re-engage on a new one which reflects the employer’s preferred terms (“rehire”).

The practice has been in the news again in recent months. There was something of an increase in fire and rehire amongst employers seeking to limit the financial stresses of the pandemic; and there then followed an unsuccessful attempt last year to pass legislation outlawing the practice.

Acas then published guidance in November to help employers explore all other options before considering fire and rehire, at the government’s request.

And within the last few weeks, there have been headlines after the High Court granted an injunction to prevent Tesco from dismissing and re-engaging a number of their employees. At a glance, readers of newspaper reports might be forgiven for thinking that the courts have done what Parliament did not and rendered hiring and firing to be impermissible. But that is not so – the facts of the Tesco case were highly unusual.

In 2010, Tesco wanted a number of employees to relocate to new distribution centres rather than take redundancy packages, so they agreed to provide pay incentives – and it took the very onerous step of guaranteeing that those incentives would stay in place for as long as the employees remained in those particular posts, no matter for how long that was.

Many years after the event, with few of the relevant employees still in those positions and with the need to incentivise them to remain long gone, Tesco offered them 18 months’ worth of incentive payments as a lump sum to buy out the on-going benefit. When the employees refused this offer, Tesco purported to give notice to terminate their current employment contracts and to offer new ones that did not include the incentive payments. In that case, firing and rehiring was directly contrary to the specific bargain that Tesco had struck, and the court prevented them from doing that – but such circumstances will rarely apply to interfere with a dismissal and re-engagement strategy.

Despite the Tesco case, and indeed what might be described as the attempted demonization of the practice – even Boris Johnson described it as an “unacceptable” means to negotiate – the reality is that the approach is often the only route open to an employer to resolve a significant impasse that is threatening the future of its business; and it is a legitimate measure in those situations.

A check against employers implementing the practice is that it will be unfair to dismiss an employee for the purpose of forcing a change in employment terms unless the business need is reasonably considered to outweigh the harm done to the individual employee. It is therefore not something that can be done lightly to simply make an already profitable enterprise more profitable. An employee with the necessary two years’ service to qualify for unfair dismissal protection can bring a claim whether they accept re-engagement or not.

Now of course, many on the employee side of the fence will argue that the principal protection for an employee against the misuse of fire and rehire by unscrupulous employers is only available to those with over two years’ service, and employees without that protective length of service are over a barrel when it comes to deciding whether to accept rehire on less favourable terms. That is certainly true, but that argument is really about whether employees should have a minimum length of service before they acquire employment protection - and that is a wider matter of principle.

Another consideration for employers is that where proposals for fire and rehire will affect 20 or more employees at one establish within a 90-day period, there is an obligation to consult with any recognised trade union, or otherwise appropriate employee representatives, and not to effect any dismissals for at least 30 days – or 45 days where 100 or more employees are affected. A failure to apply those rules correctly can result in protective awards of up to 90 days’ pay for each affected employee.

When changes to employment contracts are a genuine, provable necessity for an employer and agreement with employees cannot be reached, the application of process is crucial to implementing dismissal and re-engagement in a fair and lawful manner with the minimum adverse impact on employee and public relations. When appropriate consultation with employees and, where relevant, their unions or other representatives, has not produced agreement, a correct termination process with notice should be applied, an opportunity to appeal should be offered (at least to those with employment protection), and care should be taken to ensure that the employees’ continuity of service is not broken.

For advice relating to the variation of terms and conditions of employment, contact me at Lanyon Bowdler.

Deputyships and The Supervision of the OPG

The role of the Office of the Public Guardian (OPG) is to protect anyone who lacks the mental capacity to make financial decisions for themselves. The OPG supervises deputies, attorneys and guardians. Deputies are appointed by the Court of Protection and a requirement of their role is to complete an annual report for the OPG. The OPG has a responsibility to check that the deputy is doing everything that they should be doing. This involves making sure they keep to the terms of the deputyship order, and that the decisions they make on behalf of the protected person (P) follow the Mental Capacity Act and are in P’s best interests.

An annual fee of £320 is set for general supervision and £35 for minimal supervision. Cases are subject to minimal supervision where the capital to be managed is below £21,000, with every other case being subject to general supervision.

The deputy’s full report (OPG102), for those who are subject to general supervision comprises into eight sections, which sets out the following:

1. Deputy and P’s information, including the reporting period;

2. Significant decisions made over the reporting period, including the level of involvement with P. This demonstrates that the deputy has complied with their obligations to act in P’s best interests;

3. People who have been consulted, their relationship with P and the reason they were consulted;

4. Details of P’s care arrangements and what contact they have with the deputy and other people. This is to check whether P’s needs are being met. The report also requires details of income paid to a third party, such as a DWP Appointee, and includes confirmation that a check has been made of P’s benefit entitlement;

5. Details of P’s main bank accounts, with details of money paid in and out, including major purchases, cash withdrawn, deputyship costs and expenses, and gifts made. The report requires a reconciliation of the account from the start to the end of the accounting period;

6. P’s savings and investments are set out, including land which is solely or jointly owned, property held outside of England and Wales, cash in hand, valuable objects and assets held in trust. The deputy must also confirm if independent financial advice has been obtained and what debts P has;

7. The deputy must set out what significant decisions they expect to make during the next reporting period and whether they have any concerns about the role; and

8. The deputy then signs a compliance declaration.

The report for minimal supervision (OPG103) comprises into 11 sections.

  • Sections 1 - 5 are almost identical to the OPG102;
  • Section 6 sets out the balance in each bank account;
  • Section 7 requires only lists of payments made over £1,000, gifts and deputyship costs and expenses;
  • Section 8 contains details of land and whether it is jointly owned, and lists investments and savings;
  • Section 9 requires debts to be listed;
  • In section 10, the deputy must set out what significant decisions they expect to make during the next reporting period; and
  • Section 11 contains the same deputyship declaration as the OPG102.

We understand that dealing with these reports can be daunting and sometimes difficult, if you would like any further information or advice in relation to the OPG, assistance with completion of the OPG Report, or appointing a lay/professional deputy then please feel free to contact a member of the specialist Court of Protection team at Lanyon Bowdler.

National Heart Month – Calling Attention to the Warning Signs of Heart-related Conditions

While 14 February is earmarked for celebrating affairs of the heart, February is also National Heart Month, which aims to call attention to the warning signs of heart-related conditions which, according to the British Heart Foundation, one in two of us will experience in our lifetime. National Heart Month is an opportunity to arm ourselves with a greater awareness of circulatory disorders such as heart attacks, cardiac arrest, vascular dementia and heart disease, so that we can better prepare ourselves should we encounter these conditions in our lives.

Heart attacks
Heart attacks occur when the blood supply to the heart muscle is somehow cut off and is often caused by a blocked coronary artery. Heart attacks can starve the heart muscle of oxygen, which may leave it permanently damaged. Symptoms of heart attacks can include chest pain, the sensation of pain travelling to other parts of the body from the chest outwards (including your left arm, but note either or both arms, upper back and jaw can also be affected), shortness of breath, sweating and nausea.

Cardiac arrest
Cardiac arrest is when the heart suddenly stops pumping blood around the body. While blood is not moving around the body, the brain becomes starved of oxygen and may suffer damage as a result. This will often cause a person to collapse or become unconscious, very quickly become grey and stop breathing. Both heart attacks and cardiac arrest are medical emergencies and you should call 999 if you believe you or someone else is experiencing either.

Vascular dementia
Vascular dementia occurs when the blood vessels within the brain leak or become blocked, resulting in the loss of brain cells which cannot be reached. This condition causes problems with mental abilities such as concentration, communication and memory, it may also cause personality and mood changes as well as physical symptoms such as tremors or balancing difficulties. These symptoms can start suddenly or gradually, although they tend to worsen over time. There is currently no way to reverse the loss of brain cells prior to the diagnosis of vascular dementia.

Cardiovascular Disease (CVD)
This is an umbrella term encompassing an array of heart and circulatory disorders including strokes, coronary heart disease, which reduces or stops the flow of oxygenated blood to the heart and can lead to heart attacks, and vascular dementia. CVD is one of the primary causes of death and disability in the UK and some of the risk factors for developing CVD are high blood pressure, high cholesterol, and a family history of CVD.

Lanyon Bowdler acknowledges the difficulties and worry heart-related conditions can place on someone, and this is only worsened where there is a suggestion of substandard medical care, including warning signs being missed. If you believe yourself or a loved one has been affected by insufficient care regarding a circulatory disorder, our Clinical Negligence team are on hand to discuss this with you further.

For more information about the above conditions, please visit the links below:

Heart attacks:

https://www.bhf.org.uk/informationsupport/conditions/heart-attack/symptoms;

https://www.nhs.uk/conditions/heart-attack/;

Cardiac arrest:

https://heartresearch.org.uk/cardiac-arrest/;

https://www.bhf.org.uk/informationsupport/conditions/cardiac-arrest;

Vascular dementia:

https://www.alzheimers.org.uk/about-dementia/types-dementia/vascular-dementia;

https://www.hopkinsmedicine.org/health/conditions-and-diseases/dementia/vascular-dementia#:~:text=Vascular%20dementia%20is%20the%20second,blocked%20by%20a%20blood%

20clot;

https://www.nhs.uk/conditions/vascular-dementia/;

Cardiovascular disease:

https://www.nhs.uk/conditions/cardiovascular-disease/;

https://www.bhf.org.uk/informationsupport/conditions/cardiovascular-heart-disease.

“Disappointed and concerned” – The deficiencies in Vascular Services provided by Welsh Health Board

The Royal College of Surgeons of England have found that patients who received vascular service within Betsi Cadwaldr University Health Board (“the Health Board”) have suffered a substandard of care due to failings. Vascular services seek to provide diagnostics and treatments for the vascular system, ie the vessels that carry blood and lymph through the body. After significant changes to the way the Health Board provide the vascular services over recent years, The Royal College of Surgeons of England have released a “damning” report concerning the provision of care to their patients.

Background

In brief, the Health Board announced in January 2013 that all services for major and complex in-patient arterial surgery and emergency vascular surgery would be centralised onto a single site at Ysbyty Glad Clywd Hospital. As part of this transition, interim arrangements established two provision sites; one at Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital. However, centralisation of provision vascular services was delayed due to renovations at Ysbyty Glad Clywd Hospital and an external invited service review in 2015 concluded that patients’ safety was being compromised with the provision of the two site model.

The review suggested that the Health Board should not delay the decision to centralise the provision of major and complex arterial surgery and emergency vascular surgery as part of delivering the vascular surgery service by an integrated network hub and spoke models at Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital. This would be otherwise known as the integrated vascular network and its purpose was to improve early decision-making capability and access to diagnostics, allowing for early treatment.

In April 2019, complex vascular services were moved from Ysbyty Gwynedd Hospital and Wrexham Maelor Hospital to Ysbyty Glad Clywd Hospital, therefore implementing the integrated vascular network and centralisation as the review had encouraged. After patients and staff raised fears about the new service at Ysbyty Glad Clywd Hospital, the Health Board was requested in September 2020 to review its vascular services.

The Report

On 20 January 2022, The Royal College of Surgeons of England issued “Report on 44 clinical records relating to vascular surgery on behalf of Betsi Cadwaladr University Health Board” (https://bcuhb.nhs.wales/news/updates-and-developments/updates/vascular-services/vascular-services/clinical-vascular-report-january-2022-pdf/).

The review considered the clinical records and background of 44 patients.

In summary, the report identified concerns relating to the clinical records, whereby the majority of the records were illegible, disorganised and incomplete. The report also identified, in one shocking instance, a patient was offered an amputation that was considered to be inappropriate by the review team, due to the patient’s age and previous medical history/conditions. The review team suggested alternative treatment such as conservative or palliation care should have been considered by the Health Board before proceeding with the unnecessary and futile amputation. In another instance, a patient had been discharged following an amputation without a care plan and the patient’s wife had to ‘carry him to the toilet’ as a consequence of this.

Overall, the majority of the 44 clinical records did not document communications with the patients regarding their care and informed consent, including the risks and benefits to the treatment.

In its recommendations, the report suggested the Health Board reviewed the care of the patients that the review team were unable to determine the outcome of, in order to ensure it has met its ethical and legal obligations. It was also recommended that the Health Board should review the MDT and clinical pathway arrangements to those undergoing vascular surgery, to ensure that there is appropriate MDT input into the decision-making for every patient and this decision-making be documented. The consent-taking practices should also be reviewed within such services to ensure that patients are given appropriate information of risks, benefits and alternatives of treatment, and it is legibly documented.

The Executive Medical Director at Betsi Cadwaladr University Health Board, Dr Nick Lyons, responded to the report on 3 February 2022 stating “since I joined the Health Board, it has become very clear to me a significant amount of improvement work is needed to enable us to deliver the very best outcomes for our vascular patients across our North Wales network”. He also stated that he was “very concerned to note the review’s findings in relation to the quality and consistency of care provided – we must do better”.

Health Minister’s Response to RCS Report

Following the report being issued, Eluned Morgan, Minister for Health and Social Services for Wales, released her written statement on 3 February 2022 where she noted she was “disappointed and concerned” by the report. She stated, “the cases reviewed here involve real people and their families and there will be many others who may be worrying about the quality of the care they have received or are about to receive and whether this service is safe”.

The Minister proceeded to state that “For the sake of people in North Wales who need this service, and the staff working to provide this care, we must now do all we can to ensure the Health Board implements to properly, to make the pathway seamless and to improve outcomes”.

We at Lanyon Bowdler understand and appreciate our clients’ concerns when receiving healthcare services and treatment, in particular when there may be poor care provided to them. If you consider that you have been affected by substandard care, our team are happy to discuss your treatment with you and guide you through the process.

Changes to the Highway Code in January 2022

The Highway Code has been updated and important changes were introduced from Saturday 29 January 2022. The changes are the result of a public consultation and they apply to England, Scotland and Wales.

The Introduction to the updated Highway Code states that it is designed to improve road safety for the most vulnerable road users, being pedestrians, cyclists and horse riders.

All road users are to be considerate towards one another.

There are eight particular changes to the Highway Code that you need to be aware of:

1. Hierarchy of road users

There is a new “hierarchy of road users”. This puts the most vulnerable road users, including pedestrians, at the top of the hierarchy.

2. People crossing the road at junctions

When people are crossing or waiting to cross at a junction, other road users should give way to them because they have priority.

Drivers and cyclists must give way to people on a zebra crossing and people walking and cycling on a parallel crossing.

3. Walking, cycling or riding in shared spaces

Cyclists and horse-riders should respect the safety of pedestrians in shared spaces but pedestrians should also take care not to obstruct or endanger them.

Cyclists are asked to take care when passing other users, for example, by not passing them too closely or too quickly, slowing down and giving warning of their approach (for example, by ringing their bell), and not passing a horse on the horse’s left.

4. Positioning in the road when cycling

There is updated guidance about the positioning of cyclists in the road.

Cyclists may ride in the centre of their lane on quiet roads, in slower moving traffic, and at the approach to junctions or where a road narrows.

Cyclists should keep at least 0.5 metres from the kerb edge when riding on busy roads.

People cycling in groups should be considerate towards the needs of other road users and allow motorists to overtake them when it is safe to do so.

Cyclists in groups can ride two-abreast.

5. Overtaking when driving or cycling

It is permissible to cross a double-white line, if necessary, in order to overtake a cyclist or horse rider if they are travelling at 10mph or less.

There is updated guidance on safe passing distances and speeds for people driving or riding a motorcycle when overtaking vulnerable road users.

Cyclists may pass slower-moving or stationary traffic on the right or left but should proceed with caution.

6. People cycling at junctions

When turning into or out of a side road, cyclists should give way to pedestrians who are crossing or waiting to cross.

There are new special cycle facilities at some junctions, including small cycle traffic lights at eye-level height which may allow cyclists to move separately from or before other traffic.

There is also new guidance for cyclists where there are no special facilities for them at junctions. The Code recommends that cyclists should behave like other traffic where there are no separate cycling facilities, including positioning themselves in the centre of their chosen lane, where they feel safe to do so.

The Code includes advice for cyclists using junctions where signs and markings tell them to turn right in two stages.

The Code clarifies that cyclists going straight ahead at a junction have priority over traffic waiting to turn into or out of a side road, unless indicated otherwise.

7. People cycling, riding a horse and driving horse-drawn vehicles on roundabouts

Motorists and motorcyclists should give priority to cyclists riding on roundabouts. They should not, for example, attempt to overtake a cyclist within that person’s lane.

Motorists should not cut across cyclists, horse riders or people driving a horse-drawn carriage, who are continuing around the roundabout in the left hand lane.

8. Parking, charging and leaving vehicles

The Code recommends the use of a new technique when a person is leaving a vehicle.

Drivers and passengers should open the door using their hand on the opposite side to the door they are opening. For example, a driver should open their door using their left hand. This makes them turn their head to look over their shoulder behind them. This will help to avoid collisions with cyclists, motorcyclists and pedestrians, who may be approaching from behind the vehicle.

The Code now also includes guidance about using an electric vehicle charge point.

The updated Highway Code will be published in April 2022 but is currently available online.

Government U-Turn on Mandatory Vaccination

Following on from our previous blog where we set out an update regarding mandatory COVID-19 vaccinations for all healthcare workers working within a ‘regulated activity’ from 1 April 2022, the Government has now made a U-turn and is looking to revoke the legislation that would have brought those changes into effect. It is also intending to end the requirement, that has been in place since 11 November 2021, that workers in CQC-regulated care homes in England be fully vaccinated.

The above plans are subject to a two-week consultation period and Parliamentary approval, but Health and Social Care Secretary, Sajid Javid, has said that the consultation, which is a legal requirement, is unlikely to change the position.

The change in direction has been made in response to the outcome of research which has become available since the initial decision on mandatory vaccination was made. This research suggests that a greater level public protection from COVID-19 has now been achieved, and that the Omicron variant is less severe when compared with the Delta variant.

In order to have met the requirement to be fully vaccinated by 1 April, unvaccinated healthcare workers would need to have received their first jab by 3 February.

Secretary of State has confirmed that once the relevant legislation has been revoked, CQC-regulated care homes in England will be able to re-employ unvaccinated workers who left or were dismissed due to the compulsory vaccination requirement, but without statutory continuity of employment being restored.

NHS leaders have sent a letter to NHS employers requesting that they do not serve notice of termination on unvaccinated employees, and it would clearly be prudent for employers in the regulated sector outside the NHS to do likewise. In addition to this, all employers in affected regulated and care sectors should keep up to date with the outcome of the consultation process and, ultimately, Parliament’s decision in respect of the Government’s proposal to abolish mandatory vaccination.

If you require any further advice on the above updates and their implications, please do contact our employment team to arrange an appointment.

Will Artificial Intelligence Reduce Clinical Negligence?

Artificial Intelligence (“AI”) has long been tipped to transform our world, and will change the nature of employment roles as machines complement the human workforce. With partial automation of tasks, many job responsibilities will be reconfigured so that a human touch is no longer needed.

Recently, a fully-autonomous robot has successfully performed keyhole surgery on pigs – without the guiding hand of a human surgeon. Apparently, the robot surgeon produced “significantly better” results than its human counterparts. The surgery has been described as a “breakthrough” and is another step towards the day when fully autonomous surgery can be performed on human patients. (https://www.theguardian.com/technology/2022/jan/26/robot-successfully-performs-keyhole-surgery-on-pigs-without-human-help)

But does AI have the capability to reduce incidences of clinical negligence for the NHS, and will that mean less people being unnecessarily injured/dying in a hospital setting?

A quick overview of the law in relation to clinical negligence: to be able to successfully pursue a claim for clinical negligence, a person must clear two legal hurdles: firstly, the treatment complained of amounted to a “breach of duty” – that it was so poor that no reasonable body of medical opinion would have considered it to be reasonable or normal; and secondly that the breach of duty caused the person to suffer injury (“causation”).

Going back to the pig surgery, the Smart Tissue Autonomous Robot (STAR) carried out laparoscopic surgery to connect two ends of an intestine in four pigs. This process of connecting two ends of an intestine (“anastomosis”) is a highly technical and challenging procedure in gastrointestinal surgery, requiring a surgeon to apply sutures with a high degree of accuracy and consistency. Whilst anastomotic leaks can occur naturally or non-negligently, one misplaced stitch, or poor technique, can result in a leak that could lead to the patient suffering fatal complications. Thus, breaches of duty arising from anastomotic leaks are, sadly, quite commonplace.

In contrast, according to a paper published in Science Robotics, the STAR robot excelled in carrying out the robotic anastomosis, with the resultant suturing being better than anything a human surgeon could do.

On this basis, it is easy to see that there is the potential to revolutionise surgery, and for robots to reduce the incidences of harm caused by human errors and avoidable complications, such as those caused by a missed stich or an untoward hand tremor. This, naturally, is a good thing, and correspondingly would reduce claims being made against the NHS.

However, a word of caution: we have been here before.

AI has been touted as the saviour to the medical profession before. Back in February 2016, Google’s AI subsidiary, DeepMind, announced it was working with NHS Trusts to analyse patient data. The company intended to combine AI, machine learning with bulk medical data to develop models that could predict or diagnose acute kidney injury. However, issues around patient confidentiality meant that in 2017, DeepMind Health (later a division of Google Health) was found to have not complied with UK data protection laws, according to the UK Information Commissioner’s Office (https://www.cnbc.com/2017/07/03/google-deepmind-nhs-deal-health-data-illegal-ico-says.html).

Similarly, in February 2020, Google Health, the branch of Google focused on health-related research, clinical tools, and partnerships for health care services claimed that its’ AI models could “beat” humans when interpreting mammograms and detecting breast cancer. However, as studies have found, you can show the same early-stage lesions to a group of doctors and get completely different interpretations about whether the lesion is cancerous or not. Even if the doctors do agree as to what a lesion shows — and their diagnoses are actually correct — there’s no way of knowing whether that cancer will prove to be fatal. This leads to over-diagnosis, triggering a chain of painful medical interventions that can be costly and life-changing. In the case of breast cancer, it may lead to radiotherapy, chemotherapy, the removal of breast tissue (a lumpectomy), or the removal of one or both breasts entirely (a mastectomy). These aren’t decisions to be rushed, and ultimately may lead to treatments that, clinically, are not medically necessary and lead to an increase in claims for medical negligence being made. (As an aside, in August 2021, Google’s parent company, Alphabet, said it was shutting down its Google Health Division, so clearly all is not well in the land of AI (https://www.forbes.com/sites/johanmoreno/2021/08/21/google-dismantling-health-division/?sh=71316d9de401))

Clearly, there is tremendous potential for AI to help change the provision of care for patients for the better. But it is not a silver bullet or panacea to eradicate human error in the clinical decision making process or during the performance of surgery. It is not designed to remove humans from the equation. Instead, AI should be regarded as a tool which clinicians have at their disposal – just like a scalpel or stethoscope – to help them carry out their clinical duties effectively and, most of all, safely.

Therefore, it may be a little while yet before we see fully autonomous robot doctors roaming the halls of hospitals and GP surgeries across the country…

Mandatory Vaccinations to be Extended

Currently, COVID-19 vaccinations are only mandatory, as a matter of law, for those working in care homes. However, this is set to change from 1 April 2022, when the mandatory vaccination requirement is scheduled to be extended to those working in "any other regulated activity" outside a care home. The regulated activities include, but are not limited to, nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry.

Whilst the Health Secretary, Sajid Javid, commented on 25 January that the government is “reflecting” on this policy in wake of the Omicron variant, as things stand, any individual whose employment in a regulated activity, and who does not fall within one of the exemptions, must have had their first vaccine by 3 February 2022 to ensure the continuation of their employment.

There are to be a number of exemptions to when this vaccination requirement will apply, including where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a "shared lives agreement". It is expected that there will be similar exemptions applicable in relation to clinical trials and new employees who have only received one dose of vaccine.

Given the timescale, employers need to act quickly to inform their employees that they must have their first COVID-19 vaccination by 3 February 2022 and if they do not, this will trigger the start of a process which may lead to their dismissal on 31 March 2022, in order that the employer can comply with the law. Following this, employers need to consider which members of staff will be affected by the new law, whether a termination exercise is necessary and whether redeployment is possible in the event the employee is not willing to be vaccinated. Employers should consider having internal processes in place to allow for transparency and consistency. This is likely to be in the form of vaccination policies in which employers outline their stance on COVID-19 vaccinations and help to encourage vaccinations amongst their staff.

One point for employers to consider is how to advertise jobs moving forward. Where mandatory vaccination is required for a job, job adverts can specify this, however, employers will need to be careful with the wording of such adverts to ensure that they do not exclude those who are exempt from vaccination.

If you require any clarification on any of the above or if you wish to discuss this in more detail, please contact our Employment Team to arrange an appointment.

Denying, Alternatively Preserving, your Children's Inheritance

Unlike most other countries a Testator resident in England or Wales can make a Will leaving their estate after their death to whomever he or she wants, and exclude anyone who he or she doesn’t want to benefit from their lifetime assets. This exclusion can even include their children for no better reason, as one Judge observed, “to gratify one’s spite”.

The severity of the outcome for a disinherited beneficiary, especially young children or those who had been financially dependent on the deceased, was recognised by Parliament, resulting in the 1975 Inheritance (Provision for Family and Dependents) Act. In times of the gradual liberation of divorce laws during the 20th Century, the Act was intended to help protect the close financial dependents of someone who had died (perhaps in a second marriage) and prevent, for example, a step-parent inheriting the whole estate leaving the children by the deceased’s first marriage at best impoverished, or at worse destitute.

The Act does not re-write the deceased’s Will but allows an applicant to apply for “reasonable financial provision” taking into account:

• the needs and resources of those involved;

• the responsibilities and obligations held by the deceased towards the applicant or others who may claim a valid entitlement to the estate;

• the size of the estate;

• whether anyone involved is disabled;

• any other matter the Court considers relevant, including the conduct of those involved (including the Testator).

To what extent though can the benefit of the provisions of the Act be claimed by the deceased’s adult children who, having left home and forged their own way in life, may nonetheless be expectant of an inheritance from their deceased parent?

Although all cases are different, the claim by Heather Ilott lott against her late mother’s estate, illustrates how the Courts themselves can interpret the provisions of the Act and the difficulties faced by any adult child in pursuing such a course.

Heather Ilott was her widowed mother’s only child, who left home at the age of 17 to be with her lover, whom she later married. Mother did not approve of the union and disowned her daughter. There were several attempts at reconciliation (after the successive births of grandchildren), but none were successful and all ended in bitter recrimination.

At the time of mother’s death in 2004 Heather (now in her 50s) had five children but no pension and was dependent on state benefits. Her mother had left her estate, worth almost £500,000, to three animal charities.

At the first County Court hearing of her claim, Heather was awarded £50,000 from the estate, seemingly because the Judge found mother’s conduct “unreasonable, capricious and harsh”. Heather appealed and was rewarded by the Court of Appeal with an increased award of £163,000 to enable her to purchase her council house under the “reasonable provision” principles of the Act.

On Appeal to the Supreme Court by the charity beneficiaries in 2017 the Court of Appeal decision was overruled and the initial award of £50,000 reinstated. So after 13 years of litigation, with a large proportion of the estate consumed by the legal costs of three separate Court actions, was justice done or seen to be done? Lawyers’ opinions are divided. Some say that even the reinstated award of £50,000 was wrong and motivated more by the desire to spare the state the cost of state benefits paid to a potential beneficiary of a comparatively wealthy estate, rather than any proper legal interpretation of the Act itself (Heather was not “dependent” on her mother at the time of her mother’s death). Others say the decisions show an inclination by the judiciary to impose a “forced inheritance” on family members who, in line with other EU jurisdictions, would normally receive a statutory entitlement to a share of their deceased parent’s estate.

What can be said, however, is that any claim by a financially independent adult child (whether in receipt of state benefits or not) under the Act, remains fraught with difficulty and uncertainty. An unsuccessful claim will cost punitive sums of money and achieve nothing except more bitterness.

In practice, instances of a parent wishing to disinherit their children are rare. The more common instructions are those where the spouse, or spouses, of second marriages wish to preserve the inheritance of their children by their first marriage (and avoid their disinheritance by the surviving spouse). There are several ways a Will can be written to safeguard this objective, thereby avoiding the need to even consider a claim under the Act. A Will of this sort however is not one for the layman, and proper legal advice is imperative.

Cervical Cancer Awareness Month and Changes to Smear Tests: What does it mean?

January marks Cervical Cancer Awareness month of the purpose of which is to spread awareness of cervical health and educating individuals of risks or symptoms they should be aware of. According to Cancer Research, there were approximately 3,200 new cases of cervical cancer each year with 99.8% of estimated to have been preventable.

This year’s Cervical Cancer Awareness month has coincided with the recent announcement by the Welsh Government that women and people with a cervix will now receive their cervical screening every five years rather than every three years in Wales. The extension to the cervical screening interval was introduced on 1 January 2022. As a result, it has never been more important to discuss cervical cancer and the purpose of smear tests.

What is Cervical Cancer?

Cervical cancer is a cancer which is found anywhere in the opening between the vagina and the womb, otherwise known as the cervix. Nearly all cervical cancers are caused by an infection from certain types of ‘Human Papillomavirus’ (HPV) with one preventable measure of developing cervical cancer being to attend regular smear tests to screen for this virus and for abnormal cells.

There are more than 100 different types of HPV and only certain types will cause cervical cancer. One purpose of the smear test is to determine whether a high risk HPV is present within the cervix of an individual.

What is a ‘Smear Test’?

A smear test, otherwise known as cervical screening, is a procedure used to prevent cervical cancer. Women and people with a cervix aged between 25 to 64 are invited to attend for a screening and a sample of cells is taken from their cervix. The cells are then checked for high risk HPV, which can cause changes to the cells of the cervix and consequently develop into cancer.

In England, women and people with a cervix aged 25 to 49 are invited to attend their cervical screening every three years, whilst those aged 50 to 64 will be invited every five years.

In Wales from 1 January 2022, women and people with a cervix aged between 25 to 49 will be invited to attend their smear test in five years’ time following a smear test where HPV was not found. The process for those aged 50 to 64 remains unchanged.

The reason for this change is Public Health Wales indicated that recent evidence has shown that it was safe to extend this timeframe in individuals where HPV was not identified during their screening.

Petition

Following the announcement, a petition was launched to revert screenings every three years opposed to five years due to fears of further deaths from cervical cancer. This petition currently has over 900,000 signatures at time of writing.

Public Health Wales responded to the backlash following the announcement by acknowledging that they had not done enough to explain the reasons for the change to cervical screening. They stated that they are working to make the reasons for the change clearer, and to provide further information.

Cancer Research UK also confirmed that the change in cervical screenings was based on evidence and not related with cost-saving purposes.

What are the signs and symptoms of Cervical Cancer?

The signs and symptoms of cervical cancer include:

  • Vaginal bleeding that is unusual for you
  • Changes to your vaginal discharge
  • Pain during sexual intercourse
  • Pain in your lower abdomen, between your hip bones, or in your lower stomach

For further information, please visit the NHS website below.

Symptoms of cervical cancer - NHS (www.nhs.uk)

Treatment for Cervical Cancer

Treatment for cervical cancer will vary and depend upon where in the cervix the cancer is, its size or stage and whether it has spread to anywhere else.

Usually, treatment will include surgery such as a hysterectomy or a combination of chemotherapy and radiotherapy.

According to Cancer Research, more than 60% of individuals will survive their cancer for five or more years after diagnosis, with earlier diagnosis being key to survival rates.

At Lanyon Bowdler, we understand and appreciate the difficulty our clients have in coming to terms with a cancer diagnosis, particularly when there may be concerns in relation to the standard of care that they have received. If you consider that your care has been affected by a delay in diagnosis, our team is happy to discuss your treatment with you and guide you through the process.

Podcast

In the summer of 2020 Beth Heath and Katherine Jones recorded an episode of The Legal Lounge where they spoke about the delay in diagnosis on cancer using two fictitious but typical case studies, one relates to cervical cancer, you can listen here: https://apple.co/38Opw4Y

References:

Cervical cancer statistics | Cancer Research UK

Cancer: Cervical screening in Wales to be every five years - BBC News

Mistaken Filings at Companies House

Forgetting to file a form on time, including the wrong number in your calculations or simply misspelling a company’s name. We have all been there and we have all, at one time or another, experienced that sinking sensation the moment we realise we’ve made a mistake.
It’s not how we make mistakes, it’s how we correct them that’s most important. That’s why the Registrar of Companies has the power to amend or clarify its register in certain circumstances.

Companies House Register Rectification

A vital role of Companies House is to register company information and make it available to the public. This register must be as complete and accurate as possible.

Informally amending a mortgage or charge

Companies House can informally correct forms relating to the registration of a mortgage or charge which contain incomplete or internally inconsistent material. This option is only available to correct specific information. Companies can sign up to this option by downloading and completing an informal correction notice of consent from the Companies House website which names a point of contact who Companies House will contact in the event the documents submitted are incomplete or internally inconsistent.

Replacing a document

Companies House also allows you to correct inaccuracies made on certain documentation by filing a second filing of the relevant form online and using Form RP04. The majority of forms can be re-filed and a list of the applicable forms are available at https://www.gov.uk/government/publications/file-a-second-filing-of-a-document-previously-delivered-rp04. However, please note that the original incorrect form will remain on the register and cannot be removed. The only way to remove the incorrect form is via a court order or by application to the Registrar.

Removal and rectification

Companies House may take the view that certain information in a document delivered to it is inconsistent. They may issue your company with a formal notice asking them to correct such inconsistences within 14 days of the notice. If your company fails to comply, it and every officer in default, is guilty of an offence.

In addition, Companies House can also remove from the register (a) unnecessary material and (b) material derived from a document that has been replaced because it was not properly delivered or replaced following the issue of an inconsistency notice. However, the use of this option is again limited and doesn’t relate to certain information the registrar is obliged to accept or that which had legal consequences, for instance in relation to the company’s formation.
Furthermore, Companies House can also remove certain material if it (a) derives from anything invalid or ineffective, or was done without the authority of the company or LLP or (b) is factually inaccurate or is derived from something that is factually inaccurate or forged.

Court Order

Finally, Companies House must remove anything the court declares to be factually inaccurate or that the court directs them to remove. The court can only order the removal of material whose registration has legal consequences (e.g. in relation to formation or a reduction in capital), if they are satisfied the material has caused/may cause damage to the company and the company’s interest in removing the material outweighs that of any other person in the information staying on.

Conclusion

As a director of a company, you have a legal duty to ensure your company’s filings are accurate and up-to-date at Companies House. There are certain offences committed on default depending on the specific filing but overall, it is an offence for any person knowingly or recklessly either delivering or causing to be delivered a document, or statement that is misleading, false or deceptive in a material way. If you are aware of inaccuracies within your company’s filings at Companies House then please contact Lanyon Bowdler’s corporate department on 01952 291 222 so that we can advise you on the most cost efficient and legally complaint course of corrective action.

Changes to Excepted Estates

From 1 January 2022, the reporting requirements for Excepted Estates will change. This blog aims to give you a whistle-stop tour of the changes that both clients and practitioners should be aware of.

What is an Excepted Estate?

Excepted Estates are those below the current Inheritance Tax (IHT) threshold in England and Wales. Usually if an estate has no IHT to pay, it will be excepted.

For deaths after April 2010, an estate will generally be excepted if:

  • It is a small estate – i.e. under the £325,000 IHT threshold;
  • It is an exempt estate – this is normally where the deceased left everything over and above the £325,000 threshold to a spouse, civil partner, or qualifying charity; or
  • The value of the estate is less than twice the IHT threshold (£650,000), provided 100% of the threshold from a spouse or civil partner who has predeceased is available.

Any estate which meets one of these criteria, and where the deceased died after 1 January 2022, will be subject to the new reporting rules.

What are the current reporting requirements?

On any Excepted Estate where the deceased died before 31 December 2021, the personal representatives (or a solicitor acting on their behalf), are required to submit a shortened version of the full IHT form – an IHT205 - to HMRC. If the estate is also claiming the unused IHT threshold of a spouse or civil partner who predeceased, the personal representatives are also required to submit IHT form IHT217.

What is changing?

From 12 January 2022, where a deceased died on or after 1 January 2022, the personal representatives are no longer required to submit either an IHT205 or IHT217 as part of the Probate process.

After this date, the online Probate system, MyHMCTS, will instead request the following information:

  • The net value of the estate for IHT purposes;
  • The gross value of the estate for IHT purposes;
  • The net qualifying value of the estate; and
  • If applicants are claiming the IHT threshold of their spouse or civil partner who has predeceased.

Any applications where death occurred before 1 January 2022 will continue to be processed under the old system.

Other significant changes effective from 12 January 2022 include:

  • For small estates, the limits on the value of both trust property and specified transfers, in the seven years before death, are increased from £150,000 to £250,000;
  • For exempt estates, the limit on the gross value of the estate is increased from £1 million to £3 million (although the total amount of trust property is limited to £1 million), and again the limits on the value of both trust property and specified transfers in the seven years before death are increased from £150,000 to £250,000; and

There will be no changes to the Excepted Estates rules where the deceased was not domiciled in the UK at the date of their death and had never been domiciled, or deemed domiciled, in the UK during their lifetime.

What does this mean for personal representatives and practitioners?

On the whole, this should make the process of applying for a Grant of Probate on a small or Excepted Estate less burdensome for personal representatives and probate practitioners.

HMRC will be submitting guidance on what constitutes an Excepted Estate in due course and their online IHT checker tool will also be updated to reflect the changes.

Pre Action Protocol for the Resolution of Clinical Disputes

Last month the Civil Justice Council (CJC) produced an interim report on the review of “Pre-Action Protocols” and launched a consultation on the subject of PAP reform. The consultation closes on 24 December 2021.

What are Pre-Action Protocols?

Pre-Action Protocols (“PAPs”) were introduced in 1999 with the aim of encouraging effective management of potential claims before the commencement of court proceedings. Early settlement was encouraged, the idea being to resolve claims at an early stage without court proceedings being necessary, and at minimum cost.

The Clinical Negligence Protocol

The above review includes the Clinical Negligence Pre-Action Protocol, known as the “Pre Action Protocol for the Resolution of Clinical Disputes”. This protocol applies to all claims against hospitals, GPs, dentists and other healthcare providers. It sets out the procedure that parties are expected to follow before the issue of Court proceedings. In summary, it sets out a timetable for the exchange of relevant information, relevant to the dispute and how the parties should confirm their respective positions on that dispute.

One of the key parts of the protocol is for claimants to send a “Letter or Claim” to the defendant healthcare provider. This is a formal letter setting out initial details of the claimant’s case, including the alleged negligence and harm caused as a result. In accordance with the protocol, defendants are supposed to provide a full “Letter of Response” within four months of receipt of the Letter of Claim confirming whether liability is admitted or if denied, with reasons for that denial.

One of the issues in practice is that often defendants are not able to respond to a Letter of Claim within the four months deadline. This is often due to a number of factors, including delays in obtaining the independent medical evidence which is needed to advise on the care provided and alleged harm caused as a result.

Possibly the biggest advantage of the protocol is that there is the potential for a defendant to make admissions of fault at the Letter of Response stage, with claims then often being settled without the need and expense of Court proceedings.

However, there are issues with the protocol, which need to be addressed, some of which are identified in the CJC’s report. Some of these include the following:-

  • Delays with the Letter of Response - I have often experienced considerable delay with defendants providing a Letter of Response (even pre-pandemic). On occasion, when the defendant does provide a response, it often does not adequately respond to the allegations of fault, and further time is then spent trying to clarifying their position and the reasons for a denial of liability. This can be incredibly frustrating for claimants - the delay eats into the time period allowed before the deadline for starting Court proceedings, and delays provision of potential treatment and support that could help the injured claimant;
  • Failures to respond to a Letter of Notification - the protocol specifies that parties may send a “Letter of Notification” at an early stage to invite liability. This is less formal than a “Letter of Claim” and can be sent when there is strong evidence of negligence at an early stage. For example, there may have been an internal investigation carried out by the hospital trust that has identified failings in the care provided. The Letter of Notification is designed to invite early admissions and therefore, save time and costs. However, it is now more common to see defendants refusing to investigate and respond after receiving a Letter of Notification, preferring instead to wait for a for a Letter of Claim;
  • Disclosure of medical records - there are often delays in obtaining all records. Sometimes key records are missing following initial disclosure and a lot of time can be spent chasing providers for this information;
  • Sanction for non-compliance - the CJC report indicates a belief that the Courts are inconsistent when enforcing pre-action protocols and sanctions for non-compliance. The most likely sanction here would be a costs penalty. The inconsistent approach appears to be the most common complaint made during the CJC’s preliminary consultation.

Reform

The CJC’s interim report outlines a number of possible options to consider for all pre-action protocols. One of these includes a “good faith” obligation on the parties to resolve or narrow the dispute. Another is a requirement to produce a list of agreed issues and issues in dispute, as part of a formal “stocktake” before the commencement of court proceedings.

It will be interesting to see the outcome of the consultation. Major reform seems unlikely but hopefully any changes will adequately address the above issues and refocus minds as to the aims and objectives of the pre-action protocols, including early resolution of claims.

Useful link to report and consultation survey

https://www.judiciary.uk/announcements/civil-justice-council-launches-consultation-on-pre-action-protocols/

SSP - Temporary change to Rules on Fit Notes

Normally, employers can insist that employees provide them with medical evidence in the event that they are sick for a period of 7 days or more as a condition of entitlement to statutory sick pay (SSP). Normally, this takes the form of a ‘fit note’ from the employee’s GP.

However, these rules are being relaxed temporarily to help free up GPs for the administration of Covid booster vaccinations.

New rules came into effect on Friday, 17 December to the effect that employees who commenced, or now commence, sickness absence from 10 December through until 26 January cannot be required to provide medical evidence as a condition of entitlement to SSP until they have been unfit to work for a period of 28 days.

For the avoidance of doubt, this 28 day period includes non-working days, such as weekends and bank holidays (as is the case with the normal 7 day period).

Beware Drink-driving Dangers at Christmas and Mobile Phone Law Changes in New Year

Drink-driving is dangerous at any time of year but Christmas is the period when we can be more susceptible to the temptation of alcohol and it simply isn’t worth it - it can have life-changing implications and lead to the loss of your licence.

People may think they are fit to drive after having a drink, but the only way to be really certain is not to drink anything if you are planning to drive. It’s also important to be aware of the risk of being over the legal drink-drive limit the morning after drinking.

Whenever alcohol is involved, it’s really important to be aware of how it can still be in your system the next day. Guidance shows that you should allow up to three-and-a-half hours per large glass of wine before driving, which adds up to 14 hours if you have had four large glasses of wine.

If you have been drinking medium-strength beer, it is advised that you leave two-and-half hours for every pint - so if you have finished drinking five pints of beer at 11pm, you shouldn’t drive until 11.30am the next day.

It’s worth bearing in mind that everyone’s body deals with alcohol in different ways and at different speeds but these timescales give you a good idea and are worth remembering.

I also want to highlight the changes regarding using a mobile phone while driving - a move made by the Government to strengthen the existing laws and make our roads safer.

It is currently an offence to text or make a call on a hand-held mobile phone while driving but from the New Year it will also be against the law to scroll through playlists, take videos and photos and play games on a mobile phone while driving.

It’s all part of a drive to crack down on road safety by tightening the rules and anyone breaking the law will face at least a £200 fixed penalty and have six points on their licence.

Proposed Increases to Statutory Maternity, Paternity, Adoption and Sick Pay

The Department for Work and Pensions has announced plans to increase a number of statutory benefit payments; including statutory maternity, paternity, adoption and sick pay. It is intended that these changes will have effect from April 2022. These rates are expected to be as follows:

• The weekly rate of statutory sick pay will be increased from £96.35 to £99.35.
• The weekly rate of statutory maternity pay and maternity allowance will be increased from £151.97 to £156.66.
• The weekly rate of statutory paternity pay will be increased from £151.97 to £156.66.
• The weekly rate of statutory shared parental pay will be increased from £151.97 to £156.66.
• The weekly rate of statutory adoption pay will be increased from £151.97 to £156.66.

Although these rates are not yet confirmed, it is expected that an Order will be made and the rates will come into effect on 11 April 2022.

If you require any assistance or advice on any of the above, or otherwise, please do not hesitate to contact the Employment Team.

E-scooters: A Menace to Society or the Future of Transport?

Whilst Santa might still be relying on his eco friendly reindeer driven sleigh this year, how long will it be before he considers modern alternatives such as E-scooters and in doing so will he fall foul of the law?

I recently represented X aged 16, who had been stopped by the police for riding his E-scooter in the car park of a local convenience store.

I advanced various legal submissions to the court on X’s behalf regarding the highly confusing and unsatisfactory legal position that currently applies to the use of E-scooters.

Is an E-scooter a ‘motor vehicle’?

In short – yes. In law that means that it therefore requires a licence to ‘drive’, insurance and an MOT. However, achieving any of these is currently impossible for an E-scooter – to quote Charles Dickens, “the law is an ass”!

Is the car park of a convenience store a ‘public place’?

Again the answer is yes, but in certain circumstances. Although normally private land, it becomes ‘public’ when people are invited on to it e.g. during opening hours to use the shop.

Is pushing the E-scooter when the engine is off ‘driving’?

According to settled case law, albeit some contradictory, the answer once again would be yes if it is being steered, controlled or pedalled.

In X’s case, following his conviction, I successfully submitted a ‘special reasons’ argument on the basis it would be unfair to impose penalty points on his provisional driving licence that he will be applying for next month.

The Magistrates agreed with my submissions, imposing a sentence of Absolute Discharge (no punishment) for there being No Insurance and Driving Otherwise than in Accordance with his licence (see first point above).

The Court also determined that there were ‘special reasons’ not to impose penalty points on X’s future provisional driving licence in light of their sentence.

In conclusion, Santa may want to stick to his sleigh and reindeer until the law catches up with how to deal with E-scooters.

What Makes a Good Divorce or Civil Partnership Dissolution?

Good Divorce Week commences on Monday 29 November 2021. But here’s the question; what is a “good” divorce? One where one “side” “wins” or “gets the lot”? Or rather where the parties are still talking to each other and prepared to sit in the same room afterwards? Where they negotiate and strive to avoid court and save fees? Where the children are put at the centre of their parents’ considerations?

Resolution is the organisation representing specialists in Family law. Members must subscribe to their good practice code of conduct. Resolution members would say that it is not about winners and losers and all about the other answers. Actions speak louder than words so how do Resolution members support and assist parties in achieving a good divorce or civil partnership dissolution?

Communication is often the key to achieving a good divorce. If parties communicate civilly and openly and engage with each other to identify and resolve issues, then much of the hard work has been done.

To obtain a Financial Consent Order parties must each provide a minimum, prescribed level of financial information by way of disclosure. By communicating openly and being transparent about their assets including pensions and income, this exercise can be undertaken swiftly. With minimal legal adviser engagement. Which all means minimal cost. Such open communication also promotes direct discussion about any concerns the parties may have for their children’s welfare. It is important that the parties never lose sight of the fact that, although they may want to go their separate ways, their children are their shared treasures and their welfare should be their paramount consideration. Certainly the welfare of any minor children of the family is the first consideration of the Divorce court when considering how fairly to divide parties’ assets at the end of a relationship.

Working towards identified aims and goals also makes for a good divorce. For example, alternative housing is likely to be needed for one or both parties and the children. A willingness to adopt an understanding about this, the realistic likely costs of both acquisition and running the new home, the limitations upon each party of mortgage capacity or barriers to increasing working hours if there are young children to care for, are all helpful insights. Such appreciation of the issues facing each party generates goodwill, builds respect and supports a negotiated outcome.

Agreeing some ground rules for parenting the children in two separate households is also a good idea. Agreeing bedtimes, homework arrangements, picking up and dropping off times and the treats and goodies which are and are not allowed, are all common examples. Sticking to these ground rules in both households will present a united front on parenting and a sense of security through certainty and consistency for the children.

Parties striving for a good divorce can also seek help from lawyers who are trained in Alternative Dispute Resolution (ADR) methods such as the Collaborative law approach. This promotes direct discussion and decision-making by the parties away from the Court and enables parties to be central to their process and the outcomes that they shape. Mediation is another ADR model available to couples and in certain circumstances there is still Legal Aid available for Help with Mediation.

It is possible for parties to come to an agreement entirely through negotiation or through a mediation forum, a collaborative law approach or engaging solicitors who will negotiate through correspondence and regular liaison with clients to come to an agreed solution. Avoiding court proceedings has the benefit of saving costs, retaining control, minimising delays and avoiding a significant amount of stress. An agreed financial consent order can be filed at court and granted by a judge without Financial Remedy proceedings being issued. Likewise an agreed Children Act order.

So, what is a good divorce to a Resolution member? It is knowing that the parties have reached a solution which is workable and fair to each of them. That the parties have protected and supported their children through the process so that they continue to have meaningful and healthy relationships with both parents and their wider families. It is one where clients recognise the support that has been provided to them by their advisor. Also one where the client appreciates the efforts throughout to keep costs to a minimum, reduce argument and conflict and focus on the negotiation and resolution of the central issues.

From April 2022 a no-fault divorce system will be unveiled. It is hoped that this will encourage more people to strive for a good divorce. Practitioners are presently awaiting guidance on the procedure and sight of the new rules. Hopefully they will be delivered in good time before the predicted April rush! However please remember that it is perfectly possible to achieve a good divorce NOW and a healthy exit from a damaged relationship, be that a civil partnership or a marriage.

An excellent new Resolution guide on "Parenting through separation" is available free of charge for parents or carers to download to support those seeking to implement good parenting through separation and indeed after parting.

I am a member of Resolution, a member of the Law Society’s Family Law Panel, an associate solicitor and a Collaborative Law Practitioner. Email me lisa.grimmett@lblaw.co.uk for further information.

Podcast

We have a number of useful episodes on our podcast The Legal Lounge, you can listen via the links below:

Alternative Dispute Resolution https://apple.co/3EwJoIB

Financial Disputes https://apple.co/3c0aPh8

Domestic Abuse https://apple.co/3Fu0s1I

March with Midwives: Maternity Crisis

On Sunday 21 November 2021, midwives across the UK staged vigils in order to call on the Government to address the ‘crisis’ in maternity services.

Organisers of the demonstrations, March with Midwives, said: ‘It is clear that maternity services in the UK are in crisis. Giving birth in the UK, a high-income country, is becoming critically unsafe. This is unacceptable… This is a genuine national emergency which impacts every level of society.’ March with Midwives claim that 2021 has seen maternity services become unsafe for staff and users; as of July this year, 41% of all maternity services are rated inadequate or requires improvement for safety.

It is reported that many of the midwives attending the vigils conveyed the same message: they are understaffed and overworked. One campaigner who has worked in the profession for almost 20 years said that she often goes into work feeling worried about the number of women she will have to look after. Others considered that the shortage of midwifery staff means it is currently ‘critically unsafe’ to have a child in the UK.

Jon Skewes Executive Director for External Relations of the Royal College of Midwives (RCM), showed support for the vigils and pointed to a recent RCM survey which had found that 57% of midwives in the UK are considering leaving the profession. The concerning statistics showed that for every 30 newly qualified midwives, 29 of them will quit.

Worryingly, these are not new findings. In 2018, a total of 1997 midwives (16% of the RCM membership) took part in the UK Whelm Study. The results showed that an alarming number of the UK’s midwifery workforce was experiencing significant levels of emotional distress and work-related burnout. It is thought that the global pandemic has rapidly exacerbated these issues and it is feared that maternity services are now at breaking point.

Amongst those who also took to the streets were parents who consider that their pregnancy or labour was negatively affected by problems in the profession. Some parents reported bullying and coercion to ensure compliance, and it was considered that trauma, amongst both parents and midwives, is rife.

The Government has responded by saying that a £95 million recruitment drive is underway which aims to hire an additional 1,200 midwives. A Department for Health and Social Care spokesperson said: ‘We are committed to patient safety, eradicating avoidable harms and making the NHS the safest place in the world to give birth’.

Lanyon Bowdler’s award winning clinical negligence team has extensive experience of dealing with maternity and 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.

English in the Legal Workplace

Who are we?

Both Miriam and Eleanor are trainees at Lanyon Bowdler Solicitors and started in September 2021.

Miriam is in the Private Client department and works with Wills and dealing with estates.

Eleanor is in the Court of Protection department which deals with people who are applying to the Court for an Order that will allow them to make decisions on behalf of someone who lacks the mental capacity to make that decision, as well as the ongoing management of the property and affairs of people with professional Deputies.

Why are English skills important in your workplace?

There are numerous English skills that are applicable to everyday life including in the workplace and especially in a legal environment. These can include communication, accurate writing, proof reading and listening.

Accurate Writing

Private Client involves a great deal of drafting, such as drafting Wills, Lasting Powers of Attorney and letters to clients, beneficiaries, and other bodies. It is important that you use the correct letter format. You also have to adjust your writing style and tone depending on who you are writing to. You need to be able to communicate quite complex concepts to clients in a way that they can understand. Particularly in Private Client, some things are quite tricky like inheritance tax or trusts. It’s important to us to communicate in clear English, not legalese, but if you’re writing to banks or other bodies you can use more formal and complex language.

In Court of Protection we spend a lot of time talking to people who have Deputies appointed. Those people have a really wide range of comprehension ability, and often things like reading lengthy letters or emails is just not possible for them, even though they would be able to understand the concepts. We therefore have to select the most effective methods of communication before we even start thinking about what we say and how. Because we are regularly involved in looking after very complex financial affairs, there can often be a lot of formal documents and letters involved, all of which have to be drafted completely accurately so as to ensure we are looking after the best interests of our clients. The Court is also very specific, quite rightly, and therefore all our communication must be exact and precise which requires top level English skills.

Proof Reading

Proof reading is key. One of the things I learned very early on in my time as a trainee is the importance of attention to detail and good proof reading. Even if you make small mistakes that seem insignificant, there is no room for anything that could make you seem unprofessional. I have been asked to reprint letters for reasons such as a one word had a capital letter when it shouldn’t have.

The smallest details in law can have the biggest impact, so attention to detail and proof reading is essential to avoid any potential discrepancies. This leads on to why listening is also a key skill to utilise.

Listening

Listening carefully to your supervisor, and others who are giving you work to do, enables you to do the work to a good standard and also to learn and improve in the future.

Listening is crucial when meeting with clients. If you didn’t really listen to clients and assumed that you knew what they wanted, this could lead to mistakes and unhappy clients – it’s one of the reasons why we make sure our services are all really bespoke and all about listening carefully to our clients and providing the very best tailored service. Clients have often been through a difficult time and appreciate having someone to talk to and being listened to. We all want to know we are really being listened to.

When we attend meetings with clients we must prepare detailed notes to record everything that was discussed so, if necessary, it can be referred back to. Again, these notes need to be detailed but also comprehensible so others who may need to rely on your notes can understand exactly what happened.

We always thought that with the technology we now have, a lot of the English skills we learn in school would not be applicable to day to day life. We were wrong! Every day we write letters, emails, and other forms of correspondence which we would not know how to do correctly without being taught the correct English skills. Even day to day general conversations with clients and colleagues require a high level of English language skills to ensure communication is effective.

Why did we choose a legal career?

Miriam:

For me, my decision to do law was, to be honest, a process of elimination rather than thinking for a long time that I definitely wanted to do law. Up until about year 11, I thought I wanted to do medicine or veterinary medicine, but I realised I actually really didn’t like chemistry. This made me completely re-think what I wanted to do. I knew I wanted to do a degree that had a specific vocation attached to it, so I started thinking about law. I did it as an A Level and I really enjoyed it. I felt I was studying something that was actually so relevant to everyday life and I found it exciting that law is an ever changing subject. So I decided to study it at university. I know that law was definitely the right subject for me.

Eleanor:

Law was something that was always of interest but I never really considered going into it as a career, mainly because there is a perception that it takes years and years. It does, that is true, but the few years you spend qualifying fly by and should not be off-putting. I also studied law at A level, purely because I always found the typical TV shows really interesting. I then took two years out of education and worked various jobs to really get a feel for what I did and did not like, and eventually came back to law.

I think what appealed to me in the long term was that there are so many paths you can take in law: it is not just the criminal side you see on TV, but there are many different areas of law you can work and specialise in. Most people will need a lawyer at some point in their life for a number of reasons and that keeps the job interesting, because it is applicable to everyone at various stages in life. In short, no two days are the same and there is always something interesting (sometimes dramatic) happening.

Life as a Trainee Solicitor in Private Client

I have been a trainee solicitor in the private client department at Lanyon Bowdler since the beginning of September. Before joining the department, I had never really thought that private client would be an area that I would like to practise in as I have always been drawn to more contentious areas of law. My preconceptions about private client were that it would largely be about tax and that it would be difficult working in an area involving death. In fact, it has been very different to how I anticipated.

What does your role involve?

My role is actually incredibly varied, much more so than I expected. Some of the more typical tasks I do include preparing pricing documentation and attendance notes, drafting Wills and Lasting Powers of Attorneys (LPAs) and writing letters to clients, beneficiaries and other bodies such as banks.

Most days involve some client contact, whether that is speaking to clients over the phone or attending client meetings. Clients themselves are all different and each require a different approach which is one of the things that makes private client so interesting. I have attended meetings with clients with large estates who want help with inheritance tax planning, and clients who are losing capacity and who wish to enter into LPAs.

Some of the more unexpected tasks I have been asked to do relate to the practical side of estate administrations. For example, I have visited a deceased person’s property to take meter readings and to get an idea as to the condition of the property. This has made me realise that there is so much more to private client than just the legal side.

What have you found the most rewarding about being in private client?

Dealing with estate administrations for clients is something I have found particularly rewarding. Our clients have usually been through a difficult time with losing a loved one, so it is fulfilling to feel that we are taking a weight off their shoulders. One of my most rewarding moments so far was when I was finally able to contact a beneficiary who we had been trying to track down for nearly two months, in relation to a complex intestacy estate. I was able to reassure our client that the estate administration would now be much more straightforward.

Preparing Wills and LPAs for clients is also a rewarding process. These are important documents to have in place, but often clients don’t want to think about what happens once they pass away, or if they lose capacity. One of our clients, who I met during my first week as a trainee, was anxious to have a Will as soon as possible, but she was struggling to make decisions about who to benefit and she didn’t really want to think about it. I had an extra meeting with her to discuss this and I clarified some aspects of the draft Will that she had been worried about. She was so relieved at the end of the meeting and said that she now had peace of mind about the whole thing.

As private client involves dealing with some complex concepts and documents, another aspect of the role that I find satisfying is when I am able to complete difficult tasks, such as the first time I completed an IHT400, and when I have drafted trusts documents and more complicated Wills. These milestones have made me realise how much progress I have made and how much I have learned in the last two months.

Overall I have really enjoyed my time so far as a trainee solicitor in the private client department and it has definitely exceeded my expectations. I feel so fortunate to be working in such a great team of people. I can’t wait to see what the next three and a half months hold!

“Perfect Storm” of Delays in A&E and Ambulance Services Risk Lives

Patients’ lives are being put at risk due to a “perfect storm” of long waiting times in accident and emergency departments causing significant delays in ambulance handovers, with the situation showing no signs of improving.

There is concern that it is only a matter of time before patients suffer serious harm, or death, following reports that a 72-year-old man from Whitchurch, Shropshire was left waiting more than 10 hours for an ambulance (article here).

Long waiting times in emergency departments are becoming normal, with some patients spending days in A&E wards before they can be admitted into hospital. This then means that ambulances have to wait outside the doors of A&E departments for beds to become free before they can hand over sick patients for assessment and treatment. The sight of queues of ambulances outside of hospitals is now a worryingly common sight, and shows a system that is beginning to creak under immense pressure.

The situation is not isolated to one area of the country. NHS figures from September show that 5,025 patients waited for more than 12 hours to be admitted to hospital in England. That is only 1% of the 506,916 admitted via A&E, but it is more than 10 times as many as the 458 waiting more than 12 hours in September 2019 and nearly twice as many as the January peak of 2,847. Some hospital trusts are declaring major incidents as they have simply run out of space to treat patients.

In October this year, a patient in Cambridge died in the back of an ambulance whilst waiting outside an overwhelmed hospital A&E department (article here). In that case, the patient suffered a cardiac arrest while paramedics were waiting to hand her over to A&E staff and were forced to wait outside with other ambulances because the A&E unit was “extremely busy”.

Sadly, people do die in an ambulance on the way to hospital or at a scene of an incident. But no one should die in the back of an ambulance parked outside an emergency department waiting to be admitted for investigation and treatment. The situation is becoming desperate, and as the NHS faces another critical winter period whilst already under immense pressure from COVID and staffing issues, it is simply a matter of time before patients start to suffer real harm as a result.

For more information, please contact our clinical negligence team.

How to Avoid the Nightmare before Christmas (Injuries, Not the Film)

Hallowe’en is a comparatively more popular holiday across the pond compared to here in the UK. But throughout the years, more and more children in the UK take part in dressing up and participating in ‘trick-or-treating’ around their area. Adults get involve too, by also dressing up and hosting, or attending, parties or going to their local pub, before heading to town to dance the night away.

Sometimes accidents and injuries can occur, unfortunately. Knowing that an injury can happen whist you are dressed up as either a fictional monster or a horrible sight – e.g. a defendant lawyer (ahh!) - is part of the preparation that you should understand, as you may find yourself in litigation over the cause, and you may need services from a personal injury lawyer (me!).

With the weather getting colder and clocks going back an hour, adults and children commonly go out at night when visibility is poor, costume masks that further restrict vision may be worn, and as a lot of people will be out and about to enjoy the holiday, the probability of an accident naturally increases. According to Churchill Car Insurance analysis published by the Department for Transport on 31 October 2017 reveals there is an increased risk of being hit by a car posed to young ‘trick-or-treaters’ on Hallowe’en.

What are the common types of accident that could occur, you say?

Slips, trips and falls

This is probably the most common type of accident on Hallowe’en, mostly due to walking around at night in an unfamiliar costume with people around. Most slips, trips and falls are not that serious and they cause bruising at worst. However, an unexpected fall can lead to a more serious injury, including concussions and fractures. Be mindful of where you are stepping and be cautious of your surroundings.

Road Traffic Accidents

While we would like to think that drivers tend to be alert and attentive on a non-Hallowe’en day, accidents can still occur. Hallowe’en is also a night for partying, which may mean more drivers on the road who should not be behind the wheel. Although drunk driving is a danger all year round, it tends to become more dangerous during holiday seasons such as Hallowe’en; with more children and adults being out at night along the streets and roads. Injuries range from mild to serious, or even fatal. This often happens when children and adults cross the street from one location to another without taking the proper precaution of looking both ways.

Now, Hallowe’en should be an enjoyable holiday for you and all of your family. Injuries can happen at any time and in any place. That is why you need to keep your guard up when you do go out and about. Things may be a little different this year, but one usually finds a way to still have fun.

However, even the best preparation cannot account for all potential situations. So, if you or a family member becomes injured we at Lanyon Bowdler can help. But we’d rather you stay safe. Happy ‘trick-or-treating’!

Court of Protection: Similar, but Not the Same as Britney!

A deputyship order, under the Mental Capacity Act 2005, occurs where the Court of Protection appoints a deputy (or deputies) to make decisions on the behalf of someone who does not have the capacity to make those decisions for themselves. This can involve decisions regarding their health and welfare and their property and financial affairs.

In order to obtain a deputyship order, it must be shown that the protected party lacks capacity following an official assessment. Capacity can vary however depending on the issue or decisions involved, for example the level of capacity required to create a Will would differ from that required to buy a house. Therefore, a deputyship may not be permanent; if someone is deemed to have regained capacity then the Court of Protection are able to end a deputyship order.

The US equivalent of a deputyship is known as a ‘conservatorship’, this has featured heavily in the media in recent years due to the case of Britney Spears and her conservatorship, which is controlled by her father as conservator. Britney was placed under a conservatorship in 2008 and remains in one to this day, although due to recent outrage and protest it appears her father has applied to step down and bring the conservatorship to an end.

Since working in the Court of Protection department at Lanyon Bowdler, I have found this comparison to Britney Spears to be the easiest way of explaining my work to friends and family. Many people will not have heard of the Court of Protection, nor deputyships, unless they have been directly affected or involved in one, therefore there is a common lack of understanding. Although there are similarities between the Court of Protection deputyship order and a conservatorship in the US, there are also notable differences.

We do not yet have the full details of Britney Spears’ case however, if her case was heard in the Court of Protection of England and Wales, they would closely consider if Britney’s capacity had changed since the conservatorship was put in place in 2008. Under the Mental Capacity Act, the protected party’s wishes and feelings are considered to be significantly important, and the Court of Protection will have regard to them when considering what is in their best interests. If the protected party is considered to have capacity, the Court of Protection has no jurisdiction and proceedings will cease i.e. the protected party will maintain or regain the ability to control their own life and make their own decisions.

It is also more common in this country that a professional deputy would be appointed in a case such as Britney’s, where there are extremely high amounts of money and media attention involved. A professional deputy is often a practicing solicitor with experience of acting for vulnerable clients, not the protected parties’ estranged family member as in the case of Britney. Even if the court were likely to appoint a family member as a deputy it is unlikely to do so if they are estranged from the protective party.

The main controversy surrounding the Britney case is the potential exploitation she has suffered as a result of the conservatorship and the fact it has been in place for so long, arguably unnecessarily. In England and Wales, the Office of Public Guardian (OPG) work alongside the court appointed deputies and help to protect protected parties from financial abuse and/or exploitation. A report can be made to the OPG at any time should any breach of duty be suspected and they can then apply to the court for a deputy to be removed. For advice or more information on deputyships, or what you can do if you believe a deputy has breached their duty please contact the Court of Protection team.

The numerous documentaries and commentary about Britney’s case suggest that the conservators (namely her father) used their position to gain an income from Britney whilst allegedly ‘forcing’ her to tour and perform. It has been repeatedly argued that a person able to create, choreograph and perform a huge tour as well as a Las Vegas residency for a number of years, is likely to have regained capacity following her very public ‘breakdown’ of 2008, yet the US courts have refused to acknowledge this so far and have upheld the conservatorship despite numerous attempts to bring it to an end.

It is of course difficult to comment on the full extent of Britney’s case because we do not have all of the facts that may support the need for the conservatorship. However, the Court of Protection place great importance on the wishes and feelings of the protected party and there are numerous safeguards in place to avoid any form of exploitation so no case such as Britney’s should ever occur within our legal jurisdiction.

You may also like to listen to our latest podcast here where Neil Davies and Lucy Speed discuss the history of the Court of Protection and the issues Britney has faced with her conservatorship in recent years.

I Told You So!

In a previous blog https://www.lblaw.co.uk/blog/new-changes-for-those-injured-in-road-traffic-accidents I wrote about a new system which was being introduced which significantly reduced the compensation that those injured in road traffic accidents would receive. It also altered the rules regarding the recovery of legal costs, such that injured people would recover nothing from the insurers in respect of the cost of legal advice, unless their claim was worth more than £5,000.00.

The government’s justification for this, was that the new system was designed in a very straightforward way, so that those who were unfortunate enough to be injured would be able to pursue the claim themselves without legal advice. I explained how the guide which advised people how to do this was 64 pages long and fairly complex, and I said that I thought it was completely unrealistic to expect people to deal with such claims on their own.

On 21 October the Ministry of Justice released statistics regarding the claims which were submitted during the first three months of the new system, which are available here. The most striking statistic is that out of the 45,718 claims submitted, 41,387 were done so by legal representatives on behalf of the injured person and only 4,331 (less than 9.5%) were submitted by the injured person themselves.

This means the system, whose principal objective was said to enable injured people to use it themselves, has failed in this aim. This means that more than 90% of those unfortunate enough to have been injured are now faced with the double insult of receiving less compensation than they would have done previously, and having to make a greater contribution to their legal costs out of this. The only winners in this story, as is often the case when changes to personal injury claims are made, are the insurers.

Delays in Cancer Referrals

Cancer is defined by the NHS as “a condition where cells in a specific part of the body grow and reproduce uncontrollably. The cancerous cells can invade and destroy surrounding healthy tissue, including organs.” It is because of this uncontrollable growth and reproduction of cells that early detection and commencement of treatment for cancer have long been considered the most effective method of improving outcomes for patients. Screening services have therefore been developed to try to detect cancers at their earliest stages, eg, breast and prostate cancer, but unfortunately this is not available for all cancers. For many patients, the path to being diagnosed begins when they attend their GP with worrying symptoms, such as unplanned weight loss, tiredness or unexplained bleeding.

GPs follow clinical guidelines to determine whether to refer the patient for specialist secondary opinion. The National Institute for Health and Care Excellence (NICE) states that for urgent referrals, the wait to see secondary healthcare should be within two weeks of the GP seeing the patient, or 48 hours if very urgent. It is obvious why such guidance is in place - the earlier a cancer is diagnosed, the better the chances of successfully treating it.

In an ideal world, every patient who presented to their GP with potential cancer symptoms would immediately be referred within the recommended two week timeline, if not before. They would receive a rapid diagnosis and quickly begin receiving appropriate treatment.

Sadly, we do not live in an ideal world, but nevertheless it is worrying to read that patients attending their GPs with concerns about such symptoms are not being referred for urgent investigations quickly enough.

The Independent recently reported on research funded by Cancer Research UK, which found that six out of 10 patients in England were not being referred within the two-week recommended period. The impact of delays in diagnosis on prognosis was alarming - a four-week delay alone increased the risk of death by 10%. It was appreciated by the authors that GPs are in a difficult position, conscious of being too cautious and over-referring patients, which could cause oncological services to become overwhelmed. However, this caution should not prevent a necessary and mandatory referral.

GPs are also challenged by patients with vague or very complex symptoms not typical of cancer, or those with pre-existing illnesses, as well as delays caused as GPs await diagnostic test results.

Delays in diagnosis of cancer cannot all be blamed upon GPs or any other healthcare provider. However, the NHS in England is reported to have failed to meet its target of diagnosing and treating 85% of cancer patients within two months, and has not met this target since 2015. Underfunding and difficulties recruiting and retaining trained staff across the NHS are compounding the issue.

This will undoubtedly worsen significantly as a consequence of the COVID-19 pandemic, during which patients have been reluctant or unable to attend their GP surgeries, with telephone and remote appointments becoming the norm. Although remote appointments may be more convenient for GPs to see patients, there is still the need to take a full and proper history to assess if a referral is required and ensure proper safety netting advice is given.

The results of the research need careful consideration to ensure that systems are in place going forwards to support both patients and GPs, and to ensure that those that need specialist services are referred as swiftly as possible.

Tune in to our podcast episode here in which we discuss delays in diagnosis of cancer.

For advice or more information, please contact our clinical negligence team.

No Time to Kill (or Get Serious Injuries)

When watching the new Bond film, I found myself wondering whether, as a society, we have any understanding of how vulnerable the human body is. Hollywood certainly doesn’t understand how little force is needed to break a bone. And yes, in case you are wondering, this is a principal reason why I am not a fun person to watch action films with. I will often turn to my fellow audience member after an exhilarating action scene and point out, ‘by the way despite the film pretending the protagonist is fine, they actually have a serious spinal injury and probably a head injury too’. One of my pet peeves is when films treat a knock-out punch as an off-switch, which results in the victim waking up in the next scene with no ill effects, when actually a loss of consciousness following head trauma is indicative of a traumatic brain injury.

Generally speaking humans struggle to accurately assess risks and can underestimate how dangerous common place or everyday activities are. For instance, more people suffer anxiety about flying than driving despite your statistical chance of being in an accident being much higher when travelling in a motor vehicle. I do wonder whether the portrayal of Bond (or other action stars) shrugging off bullet wounds, falling 30 feet plus, or their car flipping over and smashing into walls, adds to how poor our perception is of risk. Do we feel on a subconscious level that if we fell off that ladder, we wouldn’t be too badly hurt? Or in the words of Captain America, that if we died, we would be able to ‘walk it off’.

There is also often a lack of portrayal in most action-heavy films of how traumatising these events would be. Most people who are a victim in an accident or witness an accident are not able to respond with funny quips or puns, but instead find these difficult experiences which take time, and often therapy, to process. Even when films do hint that a character is suffering from PTSD, this is normally disregarded within 20 minutes or so.

Personally I would be keen for films to more realistically portray the consequences of an action scene. I think it would much more exciting to watch a chase scene where if the car crashed into another car, the protagonist would actually be injured rather than just suffering the obligatory limp which is forgotten by the time they cut to the next scene. It would at least save my audience members from me continually pointing out, ‘yeah they just died’.

Click here for The Legal Lounge podcast in which Dawn and I discuss personal injury claims, including those relating to spinal injuries.

For more information or advice, please contact our specialist personal injury team.

Helping the Armed Forces Community - the Time is Now!

The armed forces community should enjoy the same standard of, and access to, health as that received by any other UK citizen in the area they live. Those injured in service, whether physically or mentally, should be cared for in a way, which reflects the nation’s moral obligation to them whilst respecting the individual’s wishes. For those with concerns about their mental health, where symptoms may not present for some time after leaving service, they should be able to access care with health professionals who have an understanding of armed forces culture. Sadly, sometimes, this is not the case and there are a number of ex service personnel who have both mental and physical problems as a consequence of their military service. The government has addressed this by means of the Armed Forces Covenant, which describes how public services broadly should support current serving personnel, military veterans and their families.

The government has a particular responsibility of care towards members of the armed forces. This includes responsibility to maintain an organisation which treats every individual fairly, with dignity and respect. As part of the government’s work to make the UK the best place in the world to be a member of the armed forces, the Minister for Defence, Leo Docherty’s statement made on 22 September 2021 says that he is “committed to ensuring that all veterans who may be struggling are able to access dedicated support”. This statement was made in relation to the increasing numbers of veterans who tragically take their own lives. Read more here.

Mr Docherty continues saying that “The UK government is working to develop a new method for recording and reporting cases of suicide within the veteran community.” This new method identifies statistics of veterans who die by suicide each year in England and Wales. This new work will ensure that the government is meeting its responsibility of care towards the members of the armed forces and to better understand the tragic issue of suicide to implement “future policy and interventions in support of the veteran community”.

While the government undertakes its new method, it is also best to know what help is out there. We as a community can assist by signposting members of the armed forces to various support organisations.

If you know someone who is a member of the armed forces, within your family, friends or acquaintances who are dealing with issues like post-traumatic stress disorder (PTSD), anxiety and depression, there are many organisations out there that provide specialist treatment and support from every service and conflict, focusing on those with complex mental health issues related to their military service. Here are some notable organisations we have referred our armed forces clients to:

In this week's podcast episode we welcome Andrew Preston, a veteran who has to live with PTSD, who shares his story with Louise Howard - listen here.

If you are worried about a member of the armed forces, try to get them to talk to you. Just listening to what someone has to say and taking it seriously can be more helpful. Reaching out to someone could help them know that someone cares, that they are valued, and help them access the support they need. Everyone copes and reacts in their own way, and the time to give them support is now. Not next month, next week or tomorrow, but NOW.

Lung Cancer - Types, Signs, Stages, Prognosis, Treatment

Lung cancer affects around 47,800 people in the UK every year. It is one of the most common and serious types of cancer. It tends to affect older people, with around 45% of those diagnosed in the UK aged 75 and older.

There are two main types: non-small cell and small cell.

Non-small Cell Lung Cancer

This is the most common and makes up more than 87% of cases. The three types of non-small cell lung cancers are adenocarcinoma, squamous cell carcinoma, or large-cell carcinoma.

Small Cell Lung Cancer

Sometimes known as “oat cell cancer” due to its appearance under a microscope, this type of lung cancer is less common than non-small cell and it usually spreads faster to other parts of the body. It is usually caused by smoking.

Since this cancer grows quickly, it tends to respond well to chemotherapy and radiation therapy. Unfortunately, there is a greater risk of recurrence than with non-small cell lung cancer, usually within one to two years. However, the recurrence of small cell lung cancer after five years of disease-free survival is very rare.

Signs and Symptoms

In the early stages of lung cancer, there are usually no signs or symptoms, but as the cancer progresses many people eventually develop symptoms including:

  • a persistent cough
  • coughing up blood
  • persistent breathlessness
  • unexplained tiredness and weight loss
  • an ache or pain when breathing or coughing

Many of the above symptoms can also be caused by other medical conditions but finding lung cancer early can mean that it is easier to treat so it is important to visit your GP if you are experiencing these symptoms.

Stages and Grades

The stage of a cancer tells you how big it is and whether it has spread. The grade of a cancer is based on how the cells look under a microscope. This can indicate how quickly or slowly the cancer might grow and whether it is likely to spread.

Cancer is usually staged using the TNM (Tumour, Node, Metastasis) system to create a number staging system, with stages 1 to 4. Stage 4 is advanced lung cancer where the cancer has spread. For small cell lung cancer, there is also a simplified staging system called limited and extensive stage. For more information on how lung cancer, or indeed any cancer, is staged you can visit Cancer Research UK.

Cancer cells are graded 1 to 4 with 1 tending to be slow growing and less likely to spread than grades 3 and 4 where the cells look very abnormal and tend to grow quickly and are more likely to spread. These are also called poorly differentiated or high grade.

Prognosis

As lung cancer does not usually cause noticeable symptoms until it has spread through the lungs or into other parts of the body, the outlook is not as good as many other types of cancer. However, survival depends on many factors including the spread of the cancer at diagnosis.

There are no UK-wide statistics available for survival of different stages of lung cancer or individual treatments. The figures below are for survival by stage in England for people diagnosed between 2013 and 2017.

Stage 1 - More than 55 out of 100 people (more than 55%) will survive their cancer for five years or more after diagnosis.

Stage 2 - Around 35 out of 100 people (around 35%) will survive their cancer for five years or more after diagnosis.

Stage 3 - Almost 15 out of 100 people (almost 15%) will survive their cancer for five years or more after diagnosis.

Stage 4 - Almost 5 out of 100 people (almost 5%) will survive their cancer for five years or more after they are diagnosed.

Treatment

How lung cancer is treated will also depend on a number of factors including the type of lung cancer, where it is, its size, whether it has spread and a person’s general health.

Researchers around the world are always searching for improved treatments for lung cancer. One of those of particular note is a tablet called sotorasib, which will soon be offered on the NHS to eligible lung cancer patients in England following approval by the UK Medicines and Healthcare products Regulatory Agency (MHRA). It will be used to treat adults with non-small cell lung cancer with KRAS G12C mutation.

This mutation is present in a quarter of all tumours and is referred to as the “Death Star” because of its spherical appearance and impenetrable nature. The sotorasib tablet attaches with the KRAS G12C mutation and inactivates it, thereby hindering cell division and cancer growth. It is expected that nearly 600 NHS patients in England will benefit from the treatment annually.

Here at Lanyon Bowdler we understand the difficulty our clients have in coming to terms with a cancer diagnosis, particularly when there are questions about the standard of care they have received. If you consider that your care has been affected by a delay in diagnosis, it is important to consider all the options available to you. Our team is happy to discuss the matter with you and guide you through the process sensitively.

What’s next for NHS Maternity Services?

On 11 August 2021, the Independent held a virtual event to discuss what improvements need to be made to NHS maternity services. ‘NHS maternity scandal: Inside a crisis’ was attended by two of our clinical negligence solicitors, given the large amount of maternity claims Lanyon Bowdler is pursuing against The Shrewsbury and Telford Hospital NHS Trust spanning across a number of years.

The speakers included midwife and chair of the independent investigation into the maternity services at The Shrewsbury and Telford Hospital NHS Trust, Donna Ockenden, the president of the Royal College of Obstetricians and Gynaecologists, Dr Eddie Morris, patient safety campaigner and bereaved father, James Titcombe, and the Independent’s, Shaun Lintern.

Donna Ockenden provided an update of her review, noting the review closed to new applications in July 2020 with a total of 1,862 families involved. Donna explained that her interim Emerging Findings Report was released in December 2020. This interim report did not contain any recommendations, but rather contained ‘must do’ immediate actions written by real doctors and midwives who are still working within the NHS. Donna likened the interim report to a call to action. Important areas, which were highlighted in the Emerging Findings Report, included the lack of listening to families, the lack of risk assessment, issues with obtaining informed consent, lack of training for staff and a lack of collaboration between staff.

James Titcombe was a member of the panel. He is a patient safety specialist following the death of his 9 day old son, Joshua, at Furness General Hospital. Joshua’s death sparked the Morecambe Bay maternity investigation. James explained that the most shocking factor for him involving the events with his son was how their family was treated after Joshua’s death. He explained there was an unkindness towards families. James felt the overzealous pursuit for vaginal birth had gone too far and the campaign for having a natural birth was unhelpful. James also recalled the lack of communication between the staff with the doctors and nurses not talking to each other. James explained that people thought the Morecambe Bay incident was an isolated issue rather than there being issues affecting maternity units across the country. He believes that systemic change is needed in every maternity unit.

Dr Eddie Morris considers that the resources put into maternity units have not kept up with rapid pace of change of expectant mothers in the UK. Dr Morris explained that there are increased risks for pregnant women with raised BMIs. Those women with raised BMIs risk developing gestational diabetes, having larger babies and there is an increased risk of needing intervention during labour. Dr Morris noted that during COVID maternity staff were being redeployed, which was inappropriate given that pregnant women were continuing to give birth to babies.

Donna Ockenden considers one of the major issues is that maternity units are not treated in the same way as accident and emergency units. Donna believes that maternity units should be treated as women’s accident and emergency units as the NHS staff do not know who is going to enter the front door on a day-to-day basis and must be responsive.

The NHS maternity services were granted £96 million in funding this year. Donna believes that with this funding maternity services have made some progress and more staff have been recruited. However, issues remain with the retention and wellbeing of staff. The retention of staff has to be an ongoing focus for the NHS.

Although the UK is considered one of the safest places to give birth, if you have been affected by any of the issues raised in this blog or indeed any wider issues relating to maternity care, please get in touch with our team, who are experienced in dealing with claims of this sensitive nature and will guide you at every stage.

SSP Rebate Scheme to Close

The COVID-19 SSP Rebate Scheme will close with effect from 30 September 2021.

This scheme has allowed employers with fewer than 250 employees (as of 28 February 2020) to apply to HMRC for reimbursement of up to two weeks’ statutory sick pay (SSP) per eligible employee for absences taken due to COVID-19. After 30 September, the funding of SSP will revert back to being met entirely by the employer: any absences after that date, which are related to COVID-19, will not be eligible for rebate.

It is also worth noting that employers will not be able to make a claim for any eligible SSP costs incurred up to and including 30 September after the earlier of (i) 31 December 2021 or (ii) one year after the last qualifying day in the period of incapacity for work to which the SSP costs relate.

For the government’s updated guidance to employers for claiming under the scheme, click here.

If you would like any advice in relation to the above changes, please contact a member of our employment team to arrange an appointment.

COVID-19 and the Impact on Cancer Diagnoses

It is no secret that the last 18 months have been difficult for us all with the COVID-19 pandemic hitting our global community and specifically the UK enduring numerous lockdowns from March 2020.

The COVID-19 outbreak has greatly affected the UK’s economy, education, and travel industry but specifically it has put immense pressure onto our healthcare services. The NHS has and continues to go above and beyond to care for patients during these difficult times and remains dedicated and focused, which we should continue to recognise. However, with the rise of COVID-19 patients in hospitals the NHS has been chronically understaffed and overworked, which has unfortunately caused a huge impact on cancer diagnosis, referrals, and treatment.

As of June 2020, MacMillan Cancer Support estimates that nearly 50,000 cancer diagnoses have been missed during the COVID-19 outbreak with 650,000 cancer patients suffering disruption or delays in their treatment, a number which is still rising today with an ever-increasing backlog of cancer treatments. MacMillan Cancer Support is referring to those suffering as the forgotten ‘C’ and is calling on the government to acknowledge the scale of the cancer backlog and commit the additional resources required to tackle it.

Early diagnosis is critical to increasing the chances of survival and treatment is more likely to be successful before the cancer has had chance to spread. Below are some examples of how an early diagnosis can really make a difference.

Early Diagnosis of Bowel Cancer

In England, more than nine in 10 bowel cancer patients survive the disease for five years or more, if diagnosed at the earliest stage.

Early Diagnosis of Breast Cancer

Almost all women diagnosed with breast cancer at the earliest stage survive their disease for at least five years.

Early Diagnosis of Ovarian Cancer

More than nine in 10 women diagnosed with ovarian cancer at its earliest stage survive their disease for at least five years. This falls to just over one in 10 women when ovarian cancer is diagnosed at the most advanced stage.

Early Diagnosis of Lung Cancer

Almost nine in 10 lung cancer patients will survive their disease for at least a year if diagnosed at the earliest stage. This falls to around one in five people when lung cancer is diagnosed at the most advanced stage.

Cancer Research UK conducted a survey of cancer patients early in the pandemic (1 – 28 May 2020) to understand their perspectives on the initial impact COVID-19 was having on their testing, treatment and care. Some key findings include:

  • Around one in three (34%) cancer patients reported that their testing had been impacted since the start of the pandemic.

  • Almost one in three (29%) cancer patients reported that their treatment had been impacted since the start of the pandemic.

  • Cancer patients who experienced delays and cancellations reported waiting on average 13.4 weeks for tests and 13.5 weeks for treatment.

In January 2019 the NHS Long Term Plan (LTP) was published and set out stretching ambitions and commitment to improve cancer outcomes and services in England over the next ten years. Their key ambitions state that by 2028, 55,000 more people each year will survive their cancer for five years or more and 75% of people with cancer will be diagnosed at an early stage (stage one or two). There is hope for our future, but this does not take away the significant delays in treatment and diagnoses that patients faced in 2020/2021.

Lanyon Bowdler Solicitors support clients daily in pursing clinical negligence claims relating to delayed diagnosis and/or treatment, some of which are sadly fatal claims. If you would like to investigate the care you or a loved one received, please feel free to contact a member of our clinical negligence team. In our latest podcast episode, Beth Heath and Katherine Jones from our clinical negligence team talk about the delay in diagnosis of cancer, using fictitious, but typical cases to illustrate the challenges people are facing.

For additional information from MacMillan Cancer Support regarding their findings of missed cancer diagnoses, please click here.

To receive more information about early diagnosis, visit Be Clear on Cancer - a campaign that aims to improve early diagnosis of cancer by raising public awareness of signs and/or symptoms of cancer, and to encourage people to see their GP without delay.

Drug Driving Convictions under Review Because of Faulty Lab Tests

It has recently come to light that, because of faulty lab tests, hundreds of drug driving convictions may now need to be reviewed.

In December 2020, Synlab Laboratory Services Limited discovered that there were issues with the way in which it analysed drug driving samples.

As a result, over 800 tests have now been deemed unreliable. For some this will mean the investigation against them will not continue.

However, for hundreds more, they may have already been convicted by the courts based upon this unreliable evidence.

The consequences of such a conviction will have resulted in a mandatory disqualification of at least 12 months.

Fallout from the driving disqualification, may have led to people losing their employment, accommodation and, maybe even relationships.

For many, they may not have been legally represented in court and they will now need assistance in lodging appeals to the crown court out of time to overturn unsafe convictions.

Please contact our crime team for more information.

Temporary Right to Work Checks Extended to 5 April 2022

It is unlawful to employ someone who does not have the right to reside and work in the UK or who is working in breach of their conditions of stay. Employers have a duty to prevent illegal working and must carry out certain right to work checks on all prospective employees before their employment starts (and should undertake follow up checks for current employees with time-limited permission to live and work in the UK).

As we have previously reported, on 30 March 2020, due to the COVID-19 outbreak, the government made the following temporary changes to the right to work checks to simplify the process for employers:

  • Checks can be carried out via video call (rather than in person).
  • Job applicants and existing workers can submit scanned copies or photographs of identity documents for checks (instead of providing original documents).

The end date for these adjusted checks was originally set as 16 May 2021, and this was then put back to 21 June, and then to 31 August. However, the government announced on 26 August that the end date has been deferred again, to 5 April 2022.

The government has said that it made this decision following positive feedback about the ability to conduct checks remotely, and that it intends to introduce a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens, that will enable checks to continue to be conducted remotely, but with enhanced security.

Click here for the full government guidance or if you would like to discuss this further, contact a member of Lanyon Bowdler’s employment team.

Footpath Diversion Means No Need to ‘Moooooove’

I am a specialist agricultural associate solicitor with Lanyon Bowdler, having joined at the start of the year. I have specialised in agricultural property matters since I qualified as a solicitor in 2007, having grown up on a farm in Oxfordshire.

I was recently contacted by an NFU member with a view to diverting a footpath in Shropshire. The footpath was in an unfortunate location, immediately adjacent to a large cattle shed and also very close to a site, behind which was earmarked for an additional cattle shed of the same size.

It was necessary for the two sheds to be parallel to maximise the benefit. There had also been instances of members of the public disturbing the cattle. The NFU member considered that it would be better for the footpath to be diverted, both from a health and safety perspective for members of the public using the footpath, but also, and a crucial point for the NFU member, for the long term sustainability of the farm (where the proposed development might otherwise have been stifled by the location of the footpath).

I worked with the NFU member and submitted the application to ensure that the footpath was diverted away from the farm buildings and the main yard. I then liaised with the council’s public rights of way team and ensured that the footpath was diverted under 119 of the Highways Act 1980 and also under section 53A (2) of the Wildlife Countryside Act 1981.

I achieved a successful result in a short time, and was granted the exact diversion modification requested within the application. The NFU member was delighted and the additional barn is now in place, looking fabulous, with lots of happy farmyard residents!

I attained Fellowship of the Agricultural Law Association in 2009 and have experience in a wide variety of agricultural property transactions, including land sales and purchases.

I also act for lenders, advising on partnership agreements, rights of way issues, adverse possession matters, sports and recreational sales, deeds of easement, option and overage agreements, contract farming agreements and share farming agreements.

I have been listed within the agricultural sections of Chambers UK since 2015 and The Legal 500 publication since 2018 (the two main legal ‘go to’ directories).

For more information about this or any other agricultural matter, please contact our agricultural team.

Footpath Diversion Means No Need to ‘Moooove’

I am a specialist agricultural associate solicitor with Lanyon Bowdler, having joined at the start of the year. I have specialised in agricultural property matters since I qualified as a solicitor in 2007, having grown up on a farm in Oxfordshire.

I was recently contacted by an NFU member with a view to diverting a footpath in Shropshire. The footpath was in an unfortunate location, immediately adjacent to a large cattle shed and also very close to a site, behind which was earmarked for an additional cattle shed of the same size.

It was necessary for the two sheds to be parallel to maximise the benefit. There had also been instances of members of the public disturbing the cattle. The NFU member considered that it would be better for the footpath to be diverted, both from a health and safety perspective for members of the public using the footpath, but also, and a crucial point for the NFU member, for the long term sustainability of the farm (where the proposed development might otherwise have been stifled by the location of the footpath).

I worked with the NFU member and submitted the application to ensure that the footpath was diverted away from the farm buildings and the main yard. I then liaised with the council’s public rights of way team and ensured that the footpath was diverted under 119 of the Highways Act 1980 and also under section 53A (2) of the Wildlife Countryside Act 1981.

I achieved a successful result in a short time, and was granted the exact diversion modification requested within the application. The NFU member was delighted and the additional barn is now in place, looking fabulous, with lots of happy farmyard residents!

I attained Fellowship of the Agricultural Law Association in 2009 and have experience in a wide variety of agricultural property transactions, including land sales and purchases.

I also act for lenders, advising on partnership agreements, rights of way issues, adverse possession matters, sports and recreational sales, deeds of easement, option and overage agreements, contract farming agreements and share farming agreements.

I have been listed within the agricultural sections of Chambers UK since 2015 and The Legal 500 publication since 2018 (the two main legal ‘go to’ directories).

For more information about this or any other agricultural matter, please contact our agricultural team.

Could it be Sepsis?

A warning has been issued to NHS trusts across the country to ensure that their sepsis screening tools are up to date. The Royal College of Emergency Medicine has recently highlighted the danger of using out of date triage tools following several reported incidents in emergency departments.

Sepsis is the body’s abnormal and extreme response to an infection which sets off a reaction that can result in tissue damage, multi-organ failure and death. For reasons that we don’t fully understand, the body goes into overdrive as a response to an infection which can start anywhere in the body. The infection could be from a chest infection, UTI or from an infected cut or wound.

Sepsis affects more than 250,000 people in the UK every year and is more common than heart attacks. It kills more people than bowel, breast, and prostate cancer and road traffic accidents combined, totalling 52,000 per year including 1000 children.*

Despite these staggering facts, awareness of the signs of sepsis are low and symptoms are often mistaken for other illnesses meaning that there are up to 14,000 preventable deaths in the UK every year.

Symptoms of sepsis include:

Slurred speech or confusion

Extreme shivering or muscle pain

Passing no urine (in a day)

Severe breathlessness

It feels like you’re going to die

Skin mottled or discoloured

Symptoms in babies and small children varies slightly but includes breathing very fast, having a ‘fit’ or convulsion, looking mottled, bluish, pale or having a rash that does not fade when you press it. Being very sleepy, cold to touch, not feeding or vomiting repeatedly and not passing urine for 12 hours are all signs of sepsis in babies. If you spot any of these signs then call 999 and just ask, “could it be sepsis?”

Unfortunately sepsis is a very serious and life-threatening condition and can develop very quickly. As soon as a patient has been diagnosed as possibly having sepsis, there is a “Golden Hour” when medical staff will, amongst other things, start antibiotics, give IV fluids and measure urine output.

NHS staff are currently working incredibly hard in very difficult conditions but the sooner that treatment can start, the better the patient outcome. Sadly one in four people who develop sepsis suffer permanent, life-changing after-effects, including amputations.

For more information on sepsis or further support, contact The UK Sepsis Trust.

(Source: The UK Sepsis Trust).

Vaccinations for Care Home Staff Will Be Compulsory from 11 November 2021

The government passed legislation on 22 July requiring CQC-regulated care homes in England to take steps from 11 November to ensure that all those who enter their premises are fully vaccinated against COVID-19, unless they cannot be vaccinated for clinical reasons or are exempt.

The restrictions are aimed at workers, as exempted categories include residents, their friends and relatives or otherwise those visiting dying residents, those providing comfort or support to a bereaved resident, and all those under the age of 18.

Categories of worker who are exempt are restricted to emergency services personnel and otherwise those providing “emergency assistance”, and those undertaking urgent maintenance work. As well as care home staff, therefore, a variety of tradespeople who might need to visit a care home will also be subject to the requirement to be fully vaccinated, unless they cannot be for clinical reasons.

Care homes have been provided with a 16 week period before the legislation comes into effect to encourage their workers to get vaccinated, warn of the consequences if they do not, and make any necessary alternative staffing arrangements in the light of refusals.

We would remind employers that whilst refusal to be fully vaccinated without a clinical reason will be a potentially fair reason for dismissing an employee with over 2 years’ service, a dismissal must still be reasonable in all the circumstances, including that a fair procedure must be followed.

The government is reportedly considering whether vaccinations should also be compulsory for other health and social care settings.

Employers who would like more information on these issues should contact a member of Lanyon Bowdler’s employment team.

Employment Tribunal Cases Published in Response to COVID-19 Health and Safety Concerns in the Workplace

An issue for many employers during the pandemic has been how to deal with concerns raised by employees about health and safety and returning to the workplace.

The below two cases involve employees who were dismissed early on in the pandemic and who had not been employed for the two years needed to obtain ordinary unfair dismissal protection. Both of the employees claimed their dismissal was automatically unfair under s100(1)(e) Employment Rights Act 1996 (for health and safety reasons). For such a claim to be successful an employment tribunal must find that the employee took appropriate steps to protect themselves in circumstances of danger which they reasonably believed to be serious and imminent and that they were dismissed as a result. Employees do not need to have any particular length of service to be able to make such a claim.

Accattatis v Fortuna Group (London) Ltd

Mr Accattatis was employed on 8 May 2018 as a sales and project marketing co-ordinator by Fortuna, a company that sells and distributes PPE.

During the first lockdown, Mr Accattatis expressed that he felt uncomfortable commuting to work by public transport and attending the office, due to concerns for his health. He made repeated requests to work from home or to be placed on furlough. Fortuna denied his request to work from home as the nature of his role meant that he needed to be on the premises, dealing with daily deliveries. Fortuna suggested that Mr Accattatis took holiday pay or unpaid leave if he wanted to self-isolate. Mr Accattatis declined this proposal and asked three more times to be furloughed. He was dismissed on 21 April 2020.

Mr Accattatis made a claim, amongst others, for automatic unfair dismissal. The tribunal took into account Mr Accattatis’ emails expressing his concerns and the government announcement on 14 February 2020, classifying COVID-19 as a serious and imminent threat to public health. The tribunal accepted that there were circumstances of danger which Mr Accattatis could have reasonably believed to be serious and imminent. It then went on to consider whether Mr Accattatis took appropriate steps to protect himself and was of the view that not only wanting to stay at home (which had been agreed) but also demanding that he either be placed on furlough or be allowed to work from home were not appropriate steps to protect Mr Accattatis from the danger. His claim therefore failed.

The tribunal also went on to state that, even if it had found that Mr Accattatis had taken appropriate steps to protect himself, his claim still would have failed because its finding was that the sole or principal reason for Fortuna’s decision to dismiss was not that Mr Accattatis took or proposed to take the appropriate steps to protect himself. Instead, the tribunal found that the reason Fortuna dismissed Mr Accattatis was because it perceived him to be a difficult and challenging employee who wrote impertinent emails and it wanted to prevent him from achieving two years’ qualifying service and therefore protection against ordinary unfair dismissal.

Gibson v Lothian Leisure

Mr Gibson commenced employment as a chef with Lothian Leisure in February 2019. As a result of the first lockdown, the restaurant closed temporarily and Mr Gibson was put on furlough. Mr Gibson was later asked to undertake some work at the restaurant in preparation for the re-opening. Mr Gibson expressed concerns about the lack of PPE or other COVID-secure measures in place and communicated to his employer that he was worried about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable and shielding. The employer's response to this was robustly negative, and he was told to "shut up and get on with it".

Mr Gibson was dismissed by text message with immediate effect on 30 May 2020, with no prior discussion or process. The message stated that Lothian Leisure were changing the format of the business and would be running the day-to-day business with a smaller team. Mr Gibson did not receive any notice pay or pay for accrued untaken annual leave.

Mr Gibson brought a number of claims, including one for automatically unfair dismissal. The tribunal found that Mr Gibson was dismissed either because he had taken steps to protect his father as he reasonably believed the pandemic posed serious and imminent danger, or by unfair selection of redundancy as he had taken those steps to protect his father.

The tribunal held that Mr Gibson had been automatically unfairly dismissed and also awarded Mr Gibson pay in lieu of notice and untaken holiday and payment in relation to underpaid furlough pay and pension contributions.

What do these cases mean for employers?

These cases, although not binding on future tribunals, provide helpful guidance for employers in a situation where an employee is refusing to attend the workplace as a result of the pandemic or for other health and safety reasons.

Complying with relevant workplace COVID safety guidelines and ensuring that there is clear communication with employees about safety measures in the workplace and return to work plans will be key to defending such claims. Workplace guidelines remain in place in England and in Wales respectively, notwithstanding relaxations in certain elements of the public health guidance.

Employers should carefully consider employees’ concerns regarding health and safety at work before making any decisions regarding their employment, regardless of the amount of time they have been employed.

For further information, contact a member of Lanyon Bowdler’s employment team.

What is a Deputy?

Many people will be familiar with the terms ‘Power of Attorney’, whether that be Lasting Powers of Attorney or Enduring Powers of Attorney. A person can give as much or as little authority as they wish to their attorney providing they have the capacity to do so, but what happens when a person lacks capacity to manage their finances and they haven’t appointed an attorney?

A person may become incapacitated suddenly and unexpectedly, for example acquiring a brain injury in an accident or they may have an illness, such as Alzheimer’s or dementia causing a slow deterioration of their mental capability. It doesn’t matter how someone becomes incapacitated but it does matter how their affairs are managed. Unfortunately it isn’t as straightforward as being someone’s next of kin. Being next of kin does not legally authorise someone to manage a person’s affairs however, this does not mean that hope is lost; the Mental Capacity Act 2005 provides that an incapacitated person’s property and affairs can be managed by a court appointed deputy.

What Is a Deputy?

A deputy is appointed by the Court of Protection to manage the property and affairs of someone who lacks capacity to act for themselves.

What Do Deputies Do?

As a deputy you will be responsible for making best interests decisions regarding an incapacitated person’s (“P”) finances and property. Deputies are expected to manage the day-to-day finances and liaise with the necessary third parties such as banks and utility companies to ensure P’s finances remain in order. The court order will detail what you are authorised to do, for example it is common that a deputy will be authorised to manage P’s bank accounts, savings and investments but not authorised to sell or buy property belonging to P without express permission from the Court of Protection.

How Do I Apply to Become a Deputy?

In order to become a deputy an application must be made to the Court of Protection. The application must evidence that P lacks capacity to manage their property and affairs and that the proposed deputy is a suitable person to manage P’s affairs.

What If Someone Needs a Deputy but There Is No One Suitable?

Usually deputies are relatives or close friends of P. However, if there is no one suitable, or P’s affairs are complex and therefore no one wishes to take on the responsibility of being a deputy there are alternative options. In these circumstances a professional, such as a solicitor can be appointed as a professional deputy. This is a service which is offered at Lanyon Bowdler and the team would be happy to discuss this with you should you wish to enquire for further information regarding this service.

Who Can Assist with an Application?

Between January 2020 and March 2020, 3,885 applications were made to the Court of Protection for the appointment of property and affairs deputies. Although the application papers are intended to be user friendly, we understand that they can often seem difficult and overwhelming. We have a dedicated, specialist Court of Protection department at Lanyon Bowdler, all of whom have a wealth of knowledge on hand to assist with any deputy enquiries you may have. Whether you require assistance making the application or guidance on your role and responsibilities as a deputy the team is on hand to assist.

Parental Responsibility Update

The removal of parental responsibility is the subject of many client enquiries. There are a large number of cases whereby one parent is looking to remove the other parent from the birth certificate and/or remove the parental responsibility they hold for a child. The process for removing parental responsibility can be long and expensive due to the serious implications that the decision can have. Given this, there is a high threshold that must be met for the court to agree to remove such rights. Generally speaking, if domestic violence or child abuse is involved, the court is more likely to lower this threshold.

In a recent undisclosed case, a judgment was passed down by HHJ Vincent with regards to the removal of parental responsibility and the change of surname for the children in question. It was stated within the judgment that orders which deprive a parent of parental responsibility and remove their surname from a child should only be made by a court if there is a solid and secure evidential and factual basis for doing so. Also, and more importantly, any order that is made by the court must be in the best interests of the child.

Subsequently, within the judgment, certain criteria are set out to help the court establish whether it is appropriate to remove parental responsibility and/or change a child’s surname.

In respect of parental responsibility it was highlighted that:

  • The child’s welfare is to be the court’s paramount consideration.

  • Under Section 4(2A) of the Children Act 1989, only the court can make a decision to bring an end to a person’s parental responsibility.

  • Parental responsibility describes an adult’s responsibility to secure the welfare of a child, which is to be exercised for the benefit of the child, not the adult.

  • The relevant factors to be considered by the court include: the degree of commitment which the parent has shown the child, the degree of attachment which exists between the parent and the child, and the reasons why the application has been made.

  • Article 8 of the European Convention is triggered in respect of all of the family members and any interference to these rights needs to be justified.

In respect of change of name it was highlighted that:

  • The case of Dawson v Wearmouth is relevant. Within this judgment it was stated that changing a child’s surname is a matter of importance and that the welfare of the child is of upmost importance. As well as this, it was highlighted that factors need to be considered in the present and the future.

  • From previous case law, it is standard that the following are importance considerations: the reasons for the initial registration of the surname, future and present factors, the reason for the request to change the surname and any changes of circumstances since the original registration.

  • The marital status of the parents is important. If they were married, there would have to be strong reasons to change the name if the child was so registered. If they were not married, the mother had control over the registration and hence, if the child was registered, the degree of commitment to the child and the quality of contact will be important considerations.

Furthermore, criminal convictions were considered within this judgment and overall it was held that a criminal conviction is to be accepted as evidence of any underlying facts which are to be relied on. Therefore, except in exceptional circumstances, the family court will proceed on the basis that a criminal conviction is correct.

If you require any further information regarding parental responsibility and/or changing a child’s name, please contact the family team to book an initial appointment.

Group B Streptococcus

July is Group B Strep Awareness Month, an annual campaign to highlight the importance of group B strep awareness, education and research.

Many people may not have heard of group B streptococcus (GBS). It is a type of bacteria that is very common in both men and women and usually lives in the bottom (rectum) or vagina. It affects two to four women in 10. GBS is normally harmless and most people will not realise they have it.

GBS is common in pregnant women and rarely causes any problems. However, it is the most common cause of severe infection in newborns and can lead to sepsis, pneumonia or meningitis.

Infection in newborns may be divided into two types:

Early Onset Disease (EOD)

This occurs in the first week of life and is usually acquired through bacteria from the mother.

Late Onset Disease (LOD)

This occurs between the seventh and ninetieth day of life. In these cases the baby is presumed to have been infected after birth, and infection may have been acquired while in hospital. The exact mode of transmission in late onset disease is unclear although outbreaks in hospitals are known to occur.

According to the Royal College of Gynaecologists on average, in the UK, every month 43 babies develop early-onset GBS infection. Of those, 38 babies make a full recovery, three babies survive with long-term physical or mental disabilities and two babies die from their early-onset GBS infection.

Data from Public Health England reveals that rates of group B strep infections in babies have risen by 77% in the past 24 years.

In the UK GBS is not routinely tested for, but may be found during tests carried out for another reason, such as a urine test or vaginal swab. If GBS is found in the urine, vagina or rectum during pregnancy, or a previous baby has been affected by a GBS infection, you may need extra care and treatment such as antibiotics.

The charity Group B Strep Support is trying to raise awareness and has called for action to educate parents, doctors and midwives about the bacteria and potential problems for newborns.

If you are worried about group B strep, speak to your midwife or GP for advice. Talk to them about the risks to your baby and ask their advice about whether to get tested.

Most babies with a group B strep infection make a full recovery if treated.

For more information, please contact our clinical negligence team.

Wingardium Lawyerosa

Lucy Speed and I recently led a workshop with Idsall School and this is what one of their students, Matthew Jones, had to say.

On 6 July, the worlds of law and Harry Potter collided in the Year 12 negotiation workshop task, where we investigated a personal injury case involving Ron Weasley.

We were given a booklet which related our activity to the working world of law, containing law terms such as ‘contributory negligence’ and ‘capacity’, while outlining the boundaries for what the claimant can realistically argue from the defendant - if the injured person has never bothered to buy a car before, they do not now need a flying lamborghini.

The booklet then shifted from the muggle world to the facts of the case: in this universe, Ron Weasley is thirty, alone, living in a two bedroom flat, owns a dog called Fluffy, works as a barman at the Leaky Cauldron and made the reckless decision to travel with Harry Potter.

On the afternoon of Wednesday 24 January 2018, Harry crashed his BMW i8, leaving Ron, who did not put on his seatbelt, with severe head injury, fractured pelvis, broken left wrist, dislocated left shoulder and fractured left ankle - I thought there was a spell for that.

The experts - everybody from Professor Snape to Dean Thomas - gave us more vital information, such as the prices of nearby accommodation, and the cost of a case manager, while Ron’s friends relayed his current condition - sleeping 12 hours a day, and unable to keep money, while Ron said he does not know if anybody would want to be with him now.

After having an hour to read over the booklet, each group took on roles as claimant and defendant to crunch the numbers to get a realistic estimate of how much each part of the case would cost, highlighting the need for numeracy skills and being able to give a confident argument in the world of law, effectively taking skills from opposite ends of the curricula.

My team - the only one containing two defendants and one claimant; and yet the claimant still defeated the defence’s point nearly all of the time - relayed our agreed figures first, including the controversial £0 for a dog walker, since we thought Ron shouldn’t have Fluffy anymore, with the primary goal to be as perceptive as possible into the conditions of the case in our argument.

Subsequent groups perhaps did this better than ours, picking up on obscure details that passed our minds - such as Ron not needing 16 hour care when he’s only awake for 12 hours, while taking the claimant and defendant figures and compromising on a number that followed a logical course of thinking, rather than our approach of choosing either the claimant or defendant figures and hoping one would magically be right.

Overall, every team spoke about a detail of the case others did not get to, implying a sense of individuality in law: in being equally analytical but reaching different, but equally correct, conclusions, while getting a taste of being a lawyer in a case that would probably never happen - a former wizarding chess champion falling victim to a car crash.

Even if some of us do not end up in the field of law, the skills in practice at the workshop are key to nearly all professions - reading carefully, working well with other people, arguing your point succinctly, handling numbers and being a confident speaker.

Thank you very much to Matthew for an informative, entertaining and insightful blog, and to everyone at Idsall School who took part.

As Matthew has outlined, extra curricular activities, such as mock trials and mooting competitions, are an excellent way to develop skills and experience. We regularly run mock trials for local schools.

Please contact us if you are would like to find out more. If you are interested in work experience, please click here.

Wingardium Lawyerosa!

We recently led a workshop with Idsall School and this is what one of their students, Matthew Jones, had to say.

On 6 July, the worlds of law and Harry Potter collided in the Year 12 negotiation workshop task, where we investigated a personal injury case involving Ron Weasley.

We were given a booklet which related our activity to the working world of law, containing law terms such as ‘contributory negligence’ and ‘capacity’, while outlining the boundaries for what the claimant can realistically argue from the defendant - if the injured person has never bothered to buy a car before, they do not now need a flying lamborghini.

The booklet then shifted from the muggle world to the facts of the case: in this universe, Ron Weasley is thirty, alone, living in a two bedroom flat, owns a dog called Fluffy, works as a barman at the Leaky Cauldron and made the reckless decision to travel with Harry Potter.

On the afternoon of Wednesday 24 January 2018, Harry crashed his BMW i8, leaving Ron, who did not put on his seatbelt, with severe head injury, fractured pelvis, broken left wrist, dislocated left shoulder and fractured left ankle - I thought there was a spell for that.

The experts - everybody from Professor Snape to Dean Thomas - gave us more vital information, such as the prices of nearby accommodation, and the cost of a case manager, while Ron’s friends relayed his current condition - sleeping 12 hours a day, and unable to keep money, while Ron said he does not know if anybody would want to be with him now.

After having an hour to read over the booklet, each group took on roles as claimant and defendant to crunch the numbers to get a realistic estimate of how much each part of the case would cost, highlighting the need for numeracy skills and being able to give a confident argument in the world of law, effectively taking skills from opposite ends of the curricula.

My team - the only one containing two defendants and one claimant; and yet the claimant still defeated the defence’s point nearly all of the time - relayed our agreed figures first, including the controversial £0 for a dog walker, since we thought Ron shouldn’t have Fluffy anymore, with the primary goal to be as perceptive as possible into the conditions of the case in our argument.

Subsequent groups perhaps did this better than ours, picking up on obscure details that passed our minds - such as Ron not needing 16 hour care when he’s only awake for 12 hours, while taking the claimant and defendant figures and compromising on a number that followed a logical course of thinking, rather than our approach of choosing either the claimant or defendant figures and hoping one would magically be right.

Overall, every team spoke about a detail of the case others did not get to, implying a sense of individuality in law: in being equally analytical but reaching different, but equally correct, conclusions, while getting a taste of being a lawyer in a case that would probably never happen - a former wizarding chess champion falling victim to a car crash.

Even if some of us do not end up in the field of law, the skills in practice at the workshop are key to nearly all professions - reading carefully, working well with other people, arguing your point succinctly, handling numbers and being a confident speaker.

COVID-19 & The Coroner’s Court

As the UK approaches another grim milestone of registering nearly 130,000 deaths due to COVID-19*, significant pressures have been placed upon those working for Her Majesty’s Coroner Service nationally, as different regions have had to cope with a considerable increase in death referrals being made.

*128,222 deaths as at 04/07/21, where death occurs within 28 days of a positive test (statistics here).

Under s.1(2) of the Coroners and Justice Act 2009 (“CJA”), a coroner is under a duty to investigate a death where there is reason to suspect that:

  • the deceased died a violent or unnatural death,
  • the cause of death is unknown, or
  • the deceased died while in custody or otherwise in state detention.

Anyone can refer a death to a coroner, but The Notification of Deaths Regulations 2019 set out the duty of medical practitioners to refer certain deaths to the coroner. The Notification of Deaths Regulations 2019 were also relaxed during the pandemic by The Coronavirus Act 2020 to allow a medical practitioner, who attended the deceased within 28 days before death (a new longer timescale, and could be by video call), or attended after death, to register the death in the normal way, by the medical practitioner completing a Medical Certificate of Cause of Death (“MCCD”).

Ordinarily, as COVID-19 is a naturally occurring disease, any death arising from COVID-19 would constitute a “natural death”. Where a person dies a natural death, a coroner has no duty to investigate under s.1(2) CJA because there is no reason to suspect that the death is “unnatural”. This is confirmed in the Chief Coroner's Guidance No. 34 paragraphs 17-23.

However, a coroner’s duty to investigate may be engaged where a natural death becomes “unnatural” due to some form of human error or mistake. The question of what amounts to a death by “natural causes” was considered in the case of R (Touche) v Inner London Coroner [2001] QB. In that case, on 6 February 1999 Laura Touche gave birth to twins, delivered by caesarean section. On 15 February 1999, tragically, she died. She was only 31. She died from a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The medical evidence suggested that had her blood pressure been monitored in the immediate post-operative phase, her death would probably have been avoided.

In Touche, it was held by the Court of Appeal that a death by “natural causes” should be considered an “unnatural death” where it was wholly unexpected and would not have occurred but for some culpable human failing. Lord Justice Brown stated that: “It is the combination of their unexpectedness and the culpable human failing [emphasis added] that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes, though undoubtedly they are, should plainly never have happened and in that sense are unnatural…”

In the context of COVID-19, this will be a fact-specific issue. It is well known that patients could contract the disease whilst in hospital as they are effectively “hubs” where the disease can spread from COVID-19 positive patients. Simply because a patient contracts COVID-19 whilst in hospital does not necessarily mean that the death was “unnatural” – it must be shown that the natural death was turned unnatural by a culpable human failing.

It would be fair to say that during the first wave, hospitals struggled to deal with the influx of COVID-19 positive patients and how to safely treat and isolate them away from the general hospital population, in addition to the difficulties of sourcing lack of personal protective equipment (“PPE”) for staff. Over time, proper PPE was sourced and provided; “Red zones” were set up for high risk patients (such as those who tested positive for COVID-19) who were isolated and treated by staff wearing full personal protective equipment; whilst “green zones” were established to treat patients considered at a medium to low risk.

Take one hypothetical example: Patient A is admitted into hospital with symptoms of stroke and is cared for on a low risk “green” ward. This ward had no COVID-19 positive patients when Patient A was admitted, and Patient A himself was COVID-19 negative upon admission. However, within a week, doctors and patients in the adjacent beds began to test positive and soon after Patient A also tested positive. He subsequently developed respiratory symptoms, and died 10 days later from hospital acquired COVID-19 pneumonitis. An internal investigation carried out by the hospital afterwards confirmed that staff members were not adhering to social distancing and that they were not changing PPE between patients, which caused an outbreak of COVID-19 on the low risk green ward.

In the above scenario, it is clear that the “culpable human failure” was the failure to adhere to social distancing and not changing PPE between patients, thus increasing the risk of staff-to-patient infection.

However, a coroner would then have to consider if that failure was causative – i.e. it was the failure to comply with social distancing and not changing PPE between patients that caused Patient A to become infected from COVID-19, and that he did not contract it naturally from some other means.

The question of causation was discussed in the case of R (Chidlow) v Senior Coroner for Blackpool and Flyde [2019] EWHC 581 (Admin) 12 March 2019 where it was determined that the culpable human failing must have contributed more than “minimally, negligibly or trivially” to the death, on the balance of probabilities.

In Patient A’s case, if it can be proven that the failure to comply with social distancing and not changing PPE between patients more than minimally, negligibly or trivially contributed to Patient A contracting COVID-19 and dying, this would render the death unnatural. In these circumstances, the coroner may then return a narrative conclusion which highlights the failings and causative link, and which would then be recorded for posterity on a Record of Inquest.

In summary, COVID-19 has posed significant challenges to Her Majesty’s Coroner Service – not only due to the sheer volume of deaths being referred, but also complex factual, medical and legal issues which a coroner is required to consider. As the death toll continues to rise (albeit at a slower rate than in 2020), it is likely that these pressures will continue for some time to come.

For more information, please contact our medical negligence team.

No Fault Divorce New Legislation

The Divorce, Dissolution and Separation Act received royal assent on 25 June 2020. The government has recently committed to implementing the said Act from 6 April 2022. They state the delay in implementing the said Act of Parliament is primarily to allow time for the necessary IT changes to be made to the HMCTS online divorce system.

New Divorce Process

One of the main aims of the new legislation is to provide a new divorce process which will “work to reduce conflict”. The main changes being the introduction of a ‘no fault divorce’.

The sole ground for obtaining a divorce remains irretrievable breakdown of the marriage. However spouses will no longer have to prove one of the previous five facts required such as adultery or unreasonable behaviour.

The legislation introduces the ability for spouses to make a joint application, where the couple both agree that the marriage has irretrievably broken down. It also removes the ability of the other spouse (respondent) to contest a divorce.

Terminology

Other significant changes include changes in terminology. For example the petitioner will now be known as an applicant, the decree nisi will be known as a conditional order and the decree absolute will be known as a final order.

Time Estimate

Unlike the current process, the applicant will not be able to apply for the conditional order (formerly known as a decree nisi) until 20 weeks have passed since the date the divorce proceedings had been commenced. They will also still have to wait six weeks from the date the conditional order was made before they can apply for the final order (formerly known as the decree absolute). Therefore the minimum time a divorce will take (as from April 2022) will be six months, save for exceptional circumstances where applications can be made to expedite the conclusion of divorce proceedings.

If you would like to know more about the new divorce process, please contact a member of our family team.

National Bereaved Parents Day – 03 July 2021

This blog is written by Chloe Forrester in our clinical negligence department.

Losing a child is an unimaginable loss and something no parent should have to go through. Sadly, in the UK 14 babies are stillborn or die within four weeks of birth (1) and in 2018 there were 2,488 infant deaths (aged under one year) (2)

Saturday 03 July 2021 is National Bereaved Parents Day, hosted by charity A Child of Mine based in Stafford, UK. The focus of this day is to raise awareness of any and all parents, who have sadly lost a child of any age under any circumstance. Throughout the year A Child of Mine hosts various fundraising events to raise money to continue to offer families within the UK the support they need. They run pop-up café events which welcome anyone affected by the death of a child, miscarriage support groups and playgroups for bereaved parents and their children born before or after loss.

It is important to find support during this incredibly difficult time. There are numerous charities, helplines and support groups to help any parent with grief and other children within your family, who may need some support following the loss of a sibling.

Occasionally, the grief of a parent or guardian can be exacerbated by concerns that their pregnancy, birth or subsequent medical care was not managed appropriately. If you would like to investigate the care you or your child received, please feel free to contact a member of our clinical negligence team.

Other support available:

SANDS, still birth and neonatal death charity;

Young Minds, a charity to help support young people with grief and loss;

When a child dies. A guide for parents and carers (NHS England); and

(1) https://www.sands.org.uk/about-sands/media-centre/news/2019/11/significant-fall-number-babies-dying

(2) https://bit.ly/2SGf0bE

More Avoidable Suffering for Parents and Their Babies as Another Maternity Scandal Comes to Light

At Lanyon Bowdler we work on behalf of a significant number of families affected by the maternity failings at The Shrewsbury and Telford Hospital NHS Trust. Therefore the recent news coverage regarding Nottingham University Hospitals NHS Trust tells a highly concerning, yet familiar, story.

An investigation into the maternity services at Nottingham University Hospitals NHS Trust (“the trust”) has revealed that dozens of babies have died, or were left with severe brain injury, following errors made during their mother’s pregnancy and labour. The findings mirror the recent maternity scandals at The Shrewsbury and Telford Hospital NHS Trust and East Kent Hospitals University NHS Foundation Trust.

Investigations

An investigation has concluded the services provided by the trust over the past decade fell below the reasonable standard of care expected and that the deaths and the injuries to a large number of babies were avoidable.

It is alleged that that the trust failed to investigate concerns, altered reports to divert the blame from the maternity unit and/or lessen the severity of incidents, and key medical notes were missing or never made.

It is reported that there have been 201 clinical negligence claims against the trust’s maternity services since 2010, with half of those being made in the last four years. Those claims included 15 neonatal deaths, 19 stillbirths, 46 cases of brain damage and 18 cases of cerebral palsy. Most of those claims arose from one or more of the following: a delay in diagnosis and treatment; a failure to escalate; a failure to recognise complications and inadequate monitoring.

CQC Findings

In October 2020 The Care Quality Commission (CQC) carried out an inspection whereby they identified numerous failings where staff had failed to interpret, classify and escalate concerning foetal heart rates.

The CQC identified between July and September 2020 that there was 488 reported incidents at the trust’s maternity unit. The CQC found a number of incidents were inappropriately graded. In one instance, as recently as 2020, the death of a mother was categorised as a low harm incident and babies or women who were admitted to intensive care were labelled the same.

In May 2021 the CQC inspectors determined that despite improvements there were still areas to address.

Lessons to Be Learnt

The CQC has reported that there are concerns about the safety of maternity units across the country with 41 per cent being rated as inadequate or requiring improvement on safety.

At Lanyon Bowdler we are astutely aware of the importance of lessons being learnt and this is something we believe is imperative for these maternity units across the country.

We have extensive experience of dealing with maternity cases. If you have concerns about the maternity care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively.

A Collaborative Approach to Resolving Financial and Children Issues

We have recently reported that the Divorce, Dissolution and Separation Act is hopefully coming into force, heralding the availability of no-fault divorces, in around April 2022. So in this era where blame is being cast aside in favour of enabling couples to recognise when the marriage has irretrievably broken down and to get a divorce purely on that basis, might it also be a good time to focus on a collaborative approach to sorting out the financial and children issues that arise?

At its heart the collaborative process, which has in fact been available to all separating couples (save where domestic abuse or other exceptions apply) for over a decade now, enables separating couples to discuss options and work towards constructive solutions around a table, each with a specialist, collaboratively-trained solicitor to support and advise them. There are no adversarial court proceedings. The couple choose the collaborative process and agree that they will negotiate in good faith and in a transparent and open way. Each has his or her own collaborative lawyer by their side to provide advice and support. The issues are resolved in face-to-face meetings called four-way meetings and correspondence will generally be kept to a minimum. The parties and their lawyers sign a participation agreement. This confirms that they will work in a respectful way with dignity, and agree to provide financial information openly to enable legal advice to be given, negotiations to proceed in the four-way meetings and, at the end of the process, for the court documentation to be drawn up and submitted to secure a binding court order. This is just as enforceable as an order that has been obtained through the formal court process but usually at about a third of the cost and importantly, enabling the parties to maintain a good co-parenting relationship, retaining goodwill towards their former partner and knowing that they had been an integral part of a client driven process.

The collaborative approach still enables the parties to have expert advice and guidance from independent financial advisers, pension actuaries, family therapists and, if necessary, neutral evaluations from collaboratively trained barristers or determination of any tricky legal points through arbitration. Professionals can join the four-way meetings and speak directly to the couple answering their questions there and then so keeping meetings fluid and speeding the process along. Often collaborative cases are resolved in around a quarter of the time that formal financial remedy or children act proceedings can take.

How to Retain a Collaborative Lawyer.

All collaborative lawyers are members of Resolution, the body of family lawyers committed to resolving matters in a non-inflammatory, constructive and cost-effective fashion. Collaborative lawyers can be found on the Resolution website. Shropshire has an active collaborative group with seven lawyers, plus a collaboratively trained independent financial adviser and a specialist relationship therapist. A list of members can be found here.

At Lanyon Bowdler Lisa Grimmett is the collaboratively trained lawyer and is happy to speak to any interested potential clients for an initial telephone chat.

Once the collaborative lawyer is engaged, he or she will then make contact with the spouse of the client and invite them to consider a collaborative resolution. Ideally that party will then consult a collaboratively trained lawyer as the collaborative process is only open to parties who both recruit collaboratively trained solicitors. The lawyers will then agree with the parties an agenda for the first meeting and look at drafting up anchor statements setting out the aims of the parties and drawing out the areas of common interest; most usually the approach towards the care of the children and the recognition that both parties are striving to secure a fair outcome for each other.

The first four-way meeting enables introductions to be made and the participation agreement to be discussed along with the general aims of the collaborative process and how it differs from the court approach. Collaborative law is more client-focused, client-driven and tailor-made to the clients’ specific requirements. Importantly all discussions are “without prejudice” which means that they cannot be referred to should the process break down. This gives the couple confidence to share ideas and proposals that may have been thought of as possible options for resolving things, without having to be concerned that that information might be used against them in any way. All financial disclosure provided through the process is on an open basis which means that it can be relied upon as true and accurate and used in support of a consent application once an agreement has been reached.

If you would like any more information about a collaborative approach to matters, whether you are in the process of divorce currently or choosing to wait until the no-fault divorce option becomes available next spring, please do not hesitate to contact us.

Same Sex Relationships – Wills and Inheritance

Same sex relations are accepted within England and Wales. Indeed, two people of the same sex are able to enjoy an intimate relationship and since 2005 have been able to enter into civil partnerships and, since 2014, have been able to get married.

However, what issues can being in a same sex relationship have on the drafting of wills and inheritance?

Same Sex Couples

Under the laws of England and Wales, same sex civil partners or spouses are treated the same as opposite sex civil partners or spouses. As such, if a same sex couple are married or in a civil partnership any assets that pass between these individuals under the terms of a will shall be exempt from inheritance tax. This is regardless of the value of the assets in question.

As this has the potential of the first to pass not being able to use their nil rate band (the value of a person’s estate which can be gifted under the terms of a will before being subject to inheritance tax, if the gifts are not exempt), the surviving civil partner or spouse can claim the unused nil rate band of the first to pass. This allows the surviving civil partner or spouse to benefit from the unused nil rate band, potentially minimising inheritance tax.

Additionally, a same sex couple who are not married or in a civil partnership, or who do not have wills, do not have an automatic right to the assets in their partner’s estate following their passing.

This mirrors the situation with opposite sex couples.

Children of Same Sex Couples

An issue may arise, however, when a same sex couple leave, in their will, gifts to their children. Does this mean the biological children only, or step children as well? What is the situation for any child conceived via fertility treatment or via surrogacy?

In the first instance, we would turn to look at how the will has been drafted. If a will has been drafted in such a way as to define who constitutes the children of a same sex couple then the will is to be interpreted using that definition.

However, if there are no definitions set out in the will, or there is no will, different rules may apply.

Under the common law, the mother of a child is defined as the woman who carries the child, while the second parent is considered the genetic father.

As such, if one party in a same sex couple has parented a child with somebody of the opposite sex, the same sex partner (whether they are in a civil partnership, married or cohabiting) will not be considered the child’s parent.

In this situation, wills for the same sex couple would need to be carefully drafted to ensure that the child of the couple would be able to inherit from both parties.

If, however, the partner of the biological parent were to adopt their partner’s child there would be no reason to define the term ‘child’ within the wills.

This would also be the same result if a same sex couple both adopted a child together. In this situation, the adopted child of both parties would be considered their child with regard to inheritance.

Children Conceived via Fertility Treatment

The situation is slightly different if a child is conceived following fertility treatment.

Following fertility treatment, the woman who carries the child is considered the child’s mother. If the mother is married or in a civil partnership (regardless of whether their partner is of the same or opposite sex) that spouse or civil partner is considered to be the child’s second parent. If, however, the woman is not married or in a civil partnership but is in a same sex relationship, the woman’s partner can consent to be the second parent of the child.

Children Conceived via Surrogacy

Finally, if a child is born to a surrogate, a same sex couple can apply for a court order, known as a parental order, to be deemed that child’s parents. This can be done regardless, of if the couple are married, in a civil partnership, or simply cohabiting and living as partners in an enduring family relationship. However, one of the parties must be that child’s biological parent.

Of course, until the court order has been finalised the child will remain the child of its biological mother. This is further complicated in a situation where a woman donates an egg for another to carry to term.

Therefore, it is imperative that all parties who enter into a surrogate parent agreement all have wills drafted by professionals to ensure that no complications arise.

Summary

As you can see, while the situation of inheritance between same sex couples mirrors that of opposite sex couples, difficulties can arise as to who, under the law, are ‘children’ of a same sex couple for inheritance purposes. This can, unfortunately, lead to some issues with regard to inheritance if proper consideration is not given to how wills for same sex couples are drafted.

Lanyon Bowdler understands that wills and inheritance are not the most straightforward of concepts. Our dedicated private client department is always willing to help.

Should you have any questions or queries, please contact a member of our team who will be able to assist.

Congenital Diaphragmatic Hernia

Congenital Diaphragmatic Hernia (CDH) is a potentially fatal birth injury. It can be an extremely serious condition and a newborn affected by CDH will require immediate treatment following delivery. Therefore early and accurate diagnosis is enormously important.

June 2021 is CDH Awareness Month and I suspect that not many people will have heard of CDH as it is a rare condition. Following a baby receiving a diagnosis of CDH some parents will face a heartbreaking decision, as they will have to decide whether to continue with their pregnancy. The survival rate for CDH is around 50%. Sadly some babies are severely ill after their birth and do not survive, and those that do survive often have other complex needs.

What is Congenital Diaphragmatic Hernia (CDH)?

CDH affects the organs in the abdomen and chest. It occurs when the diaphragm fails to close during the baby’s development creating a hole. This consequently allows the small intestine and liver to move partially into the chest. As a result this pushes the heart and lungs to one side impacting their growth and development.

Images available at: https://cdhuk.org.uk/about-cdh/what-is-cdh/ [Accessed 21 June 2021]. Thanks to CDH UK.

When Can It Be Diagnosed?

CDH can be diagnosed at the 12 week routine scan, but it is more commonly diagnosed at the 20 week routine scan. In some cases, the baby may not be diagnosed until the final weeks of pregnancy or after the baby is born. In rare cases, CDH can also be diagnosed later in life during routine medical appointments or procedures.

If the sonographer notices something unusual on the scan or suspects the organs are not where they should be, the mother is likely be invited for further scans and antenatal appointments. If diagnosed early, babies can receive treatment before birth which may increase their chances of surviving.

Notable symptoms of CDH which can be identified after the birth of a baby include difficulty breathing, fast breathing, fast heart rate, blue tinge of the skin, difficultly feeding, the chest may be lopsided or the abdomen may be caved in.

Treatment

Commonly the baby will undergo a surgical procedure after their birth to move the organs back into the abdomen and to repair the hole in the diaphragm. However, the severity of the condition will be assessed following diagnosis and there is a chance a minimally invasive operation could be performed during the pregnancy to help the development of the baby’s lungs.

Ongoing Problems

Babies with CDH may have ongoing problems with their lungs, hearts, digestive systems and cognitive development. They may have feeding difficulties, suffer from reflux and there is a risk of re-herniation. They can also suffer from hearing loss and have speech and developmental issues as a result of ventilation and long periods of hospitalisation.

Although most cases of CDH are diagnosed during pregnancy, a third are missed despite increased ultrasound scans and improved guidelines to aid the detection.

CDH UK provides helpful information and support if you, or somebody you know, has been impacted by CDH.

If you, or your child, has been affected by the above, please do not hesitate to contact our clinical negligence team.

Back Behind the Wheel

Driving might not be possible for everyone after a brain injury, but for many it is a realistic target, which can greatly increase independence and quality of life. As a complex and potentially dangerous activity, it is important that everyone approaches driving carefully and follows legal requirements.

There are a couple of questions, which are asked frequently.

How Can Driving Be Affected by Brain Injury?

Driving is a complex activity requiring cognitive and physical skills, as well as the ability to co-ordinate these.

A brain injury can affect these skills, as well as a range of other skills, which are relied on by driving. Some of these are listed below:

  • Poor concentration. You may become distracted or confused when there is a lot going on, or easily lose the sense of what you are doing.
  • Reduced reaction time, due to slower speed of information processing.
  • Difficulty switching or dividing attention.
  • Reduced ability to think ahead or anticipate what may happen.
  • Difficulty interpreting what is seen (‘reading the road’), which increases the time needed to make a decision.
  • Poor memory. You may forget where you are going or how to get there, or what to do in a complex road situation.
  • Poor judgement of novel situations.
  • Perceptual difficulties – e.g. inability to pick out a ‘stop’ sign at a busy junction, or to judge speed or distance.
  • Impulsive behaviour, not thinking through the consequences of actions.
  • Inability to control one’s temper or to cope with the frustrations of traffic delays.

While you may feel able to carry on driving after a brain injury, it is important to remember that it can take time to recover and to fully discover the long-term effects of the injury. It might be difficult to accept that, while you still may have the technical ‘know-how’ for driving, other skills relied on by driving have been affected. Alternatively, relatives may be overanxious to protect you if they think you could still be a competent driver. An objective assessment of your abilities could therefore be helpful for both yourself and your family.

A survivor’s ability to drive may change over time as the effects improve or worsen.

Who Do I Need to Inform about My Brain Injury?

By law, you must tell the licensing authority (DVLA in England, Scotland and Wales, and DVA in Northern Ireland) about your brain injury, as they are responsible for making the decision on whether you are safe to drive or not. You can notify the relevant authority by using the government website. Failure to inform authorities could result in a fine of up to £1,000. It would also mean that your licence is not valid and that you would be uninsured in the event of an accident.

You should also tell your vehicle insurance provider about your brain injury.

It can take over six weeks in some cases to hear back from the licensing authority. In the meantime, you should consult your doctor or neurologist as to whether you can continue driving whilst waiting for a decision.

Following the decision, you may be allowed to continue driving as normal, or there may be conditions such as needing to take an expert driving assessment, having the vehicle adapted to make it more suitable, or having a time-related licence after which you will be re-assessed. Your licence may be withdrawn, but you may have the option to reapply later.

If You Are Allowed to Keep Your Licence

You will no doubt feel very pleased and relieved to be told that you are fit to drive. Some general tips for safer, less stressful, driving should still be kept in mind:

  • When you start driving again after your brain injury, it is advisable to have another adult in the car as a passenger for the first few journeys, and to keep those first journeys short.
  • Alcohol will most likely affect you more than it used to before your injury. NEVER DRINK AND DRIVE.
  • Check with your GP about the possible side effects of any medication you are taking, particularly if this has been started recently or the dose has been altered.
  • You may find that you get more tired than usual. Do not drive when you are fatigued. Plan your journey to take account of your best time of day.
  • Plan your route before you set off, including places to stop for breaks on longer journeys.
  • Use a satellite navigation device and be sure to set your route before you start driving. This removes the need to constantly think about your route while driving.
  • Be prepared to alter your plans if you do not feel well enough or alert enough to drive that day.
  • Check the car for fuel and water levels and tyre tread before your journey, especially if you are planning a long journey.
  • Have adequate breakdown cover, and take a mobile phone with you (with credit, and charged). If you receive the higher rate mobility component of Disability Living Allowance (DLA), or scored eight or more points in the ‘moving around’ area of a Personal Independence Payment (PIP) assessment, you will be entitled to a ‘Blue Badge’ for free parking.
  • Inform your insurance company of any modifications to your vehicle or any changes in your condition which could affect your policy. Remember, if there is anything else which may affect your ability to drive, if you develop any other condition, or if an existing condition gets worse, you MUST inform the licensing authority.

If you would like to speak to a member of our Court of Protection team, please contact us.

Happy, safe, driving!

Private Law – Vaccination of Children

Following a year of lockdowns, the UK is beginning to open up again due to a vaccination programme set to vaccinate 22 million people in the UK by spring 2021. In light of this, there are considerations surrounding the vaccination of children. It is the right of any adult of sound mind to make a choice as to whether or not they wish to be vaccinated against a known disease. However, when it comes to children, it is the decision of the parents (or those with parental responsibility). If the child’s parents have differing views on the issue, the correct procedural route is to apply to the court for a specific issue order.

Before making an application before the court, it is important to be aware of who has parental responsibility for the child in question. Establishing this is the first step. If the child’s parents are married, they will each have parental responsibility. If they are not married and father is not on the birth certificate, he will not have parental responsibility but the mother will. There are also circumstances where other parties will have parental responsibility in situations where there have been previous court proceedings to apply for such. If it is that both parents have parental responsibility and they disagree over the proposed vaccination(s), one or both of the parties will need to apply to court. This will also be the case if there are a number of individuals with parental responsibility.

In the most recent case, M v H (private law vaccinations) [2020] EWFC 93, the father’s initial application was for a specific issue order on the basis that it was in the best interest of the children (aged four and six) to receive vaccinations. This was initially limited to the MMR vaccine but later expanded to include all normal childhood, travel and COVID-19 vaccinations. Following her own research online and discussions with certain medical practitioners, the mother was opposed to such vaccinations. A specific issue order was granted in line with father’s application, in accordance with the normal NHS childhood schedule. However, an order was not made for travel vaccinations or COVID-19 vaccinations, on the basis that they are too speculative and too premature, respectively.

The court’s approach was heavily guided by a previous Court of Appeal decision (Re H (A Child) (Parental Responsibility: vaccination) [2020] EWCA Civ 664) in relation to public law vaccinations. There were a number of key points highlighted for these types of matters where parents cannot agree that were set out within the judgment. These can be summarised as follows:

  • The court will become the decision maker, through the mechanism of a specific issue order, if all other forms of dispute resolution have been exhausted.
  • Parental responsibility is where an adult has the responsibility to secure the welfare of the child. It was highlighted that this is to be exercised to benefit the child, not the adult.
  • In these cases, a specific issue order will only be granted if the court is content that it is in the child’s best interests, as this is their paramount consideration. Such an order should not be granted unless the child will be better off than they would be without the order.
  • Although no order was granted with regards to COVID-19 vaccinations due to there not being any formal guidance on this, it was noted that it was “very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court”.
  • Expert evidence was not necessary in these types of disputes when the vaccinations in question have been approved and are recommended by the NHS and Public Health England. If an expert were to be required, this must be a jointly instructed expert.
  • Unless there are special circumstances, it would be very difficult for a parent to successfully object to a public health recommended vaccine.
  • The strength of a parental objection to a vaccination will not be determinative. The court has the option to order vaccinations “in the face of rooted opposition from the child’s primary carer”.
  • Overall, the benefits of vaccination to prevent the child from the consequences of the diseases that they vaccinate against, and to the population more widely from the spread of such diseases, outweighs fundamental human rights.

To conclude, although the UK is not currently vaccinating children to prevent the spread of COVID-19, once this does begin, this is useful guidance as to how the court would handle any such application regarding these vaccinations. Generally speaking, if the NHS and Public Health England are agreeable to a vaccine programme for children, unless there are special circumstances in relation to a child, it does not seem likely that the court would deny the child protection via the vaccine.

If you require further information, please get in touch and ask to speak with our family team to arrange an appointment.

Call for Equality of Arms at Inquests for Bereaved Families

A long-awaited report by MPs into the coroner service of England and Wales has recommended that families should be entitled to public funding for legal representation, regardless of how much money they have.

The report follows a review by MPs on the House of Commons Justice Committee into the activities of the coroner service, details of which can be found here.

Presently, public funding for bereaved people to have legal representation at inquests is only available in exceptional cases and depends on how much money a family has. This has often led to concerns in large and complex inquests - such as the inquests into the 1989 Hillsborough disaster where many people were killed in a crowd crush - where public bodies facing criticism are usually represented by legal teams at public expense, but the bereaved families have to fight to receive public funding to be legally represented.

The committee said it was unfair that bereaved people should not have similar representation. Bereaved people, the report said, should not be put through the difficult process of meeting complex legal requirements – and be means-tested for legal aid – when the public authorities they sometimes have to face up to in court are legally represented and funded by the tax-payer. Allowing families an automatic right to have publically funded legal representation at inquests at the most complex inquests will ensure that they can fully participate.

The report also made other recommendations, such as:

  • the creation of a national coronial service for England and Wales;

  • to invest in pathology services to ensure there coroners can access the pathology services they need;

  • for an inspectorate for that service to ensure consistent standards; and

  • for a charter of rights for bereaved people.

These recommendations are a welcome acknowledgment of the problems that bereaved families have faced for many years. For too long, there has been criticism that public bodies can “lawyer-up” to defend themselves at inquests, whilst families often have to fund lawyers privately at great expense, or go it alone at a time when they are at their most vulnerable. The Ministry of Justice should therefore act now to ensure that the committee’s recommendations are put into effect with minimal delay.

For more information or advice, please contact our clinical negligence team.

New Changes for Those Injured in Road Traffic Accidents

Monday 31 May 2021 marks the date when two significant changes come into force regarding compensation for those unfortunate to be injured in a road traffic accident. The first of these relates to the contribution which the defendant or, more usually, their insurers have to pay towards the injured person’s legal costs, and the second relates to how the compensation is calculated for what are commonly described as whiplash injuries.

At the present time, the claim for the injuries has to be worth in excess of £1,000 for the insurers to have to contribute towards the injured person’s legal costs. For the vast majority of cases, that figure will rise to £5,000, a fivefold increase. The bad news does not stop there, because at the same time, a tariff system is being introduced to determine the value of such claims, and this will lead to a significant reduction in the levels of compensation recovered. At the bottom end of the tariff system is a fixed figure of £240 for those people who suffer a whiplash injury, which takes up to three months to settle. Under the current system for valuing injuries, the same person would be entitled to receive up to £2,300, this therefore represents a reduction of almost 90%. For a whiplash claim to be worth more than £5,000 under the new system, the symptoms would have to last for more than two years.

And the Good News?

The practical effect of this on those injured is that it will be uneconomical to instruct a solicitor to deal with the claim in the way they would now, so they will have to deal with it themselves, or make a significant contribution to their legal costs. The only good news is that it only applies to accidents on or after 31 May 2021.

An online portal has been designed, which is meant to assist people to pursue their own claims and a guide of no fewer than 64 pages has been issued. I have been doing this type of work for almost 20 years. I have watched several webinars about the changes as well as attending a full day course last week and I think that I have just about got my head around it all. I think it is completely unrealistic to expect people to deal with these claims on their own.

You might wonder what the justification is for such significant changes and I have been told there are two. The first is to reduce fraudulent claims and the second is to reduce insurance premiums. I have not seen anything within the changes, which will reduce fraud; in fact I heard one barrister explain recently that it will actually make it harder for insurers to fight fraudulent claims. This is because if they allege that the claim is fraudulent but such an allegation is not proved, the injured person would be able to recover the cost of instructing a solicitor and the insurers would also incur their own legal costs. It would therefore be cheaper for insurers to simply settle such claims.

Will I Save on My Insurance?

As to whether it will reduce insurance premiums, I would not recommend holding your breath on that. According to data published by the government, during 2020, due to COVID, the number of personal injury claims following road traffic accidents fell by 47% compared with 2019, yet over the same period, car insurance premiums fell by just 1%. The reforms are based on a promise by insurers to pass on to customers any savings made, but based on these figures, I just cannot see that happening. It is about time that insurers admitted that rising car insurance premiums have very little to do with personal injury claims and the government started thinking about the rights of those who have been injured by someone else’s negligence. The absurdity of the reforms are best explained by asking the following question:

How can it be right that someone who suffers a three month whiplash injury following a road traffic accident receives £240 and has to deal with the claim themselves, yet someone who suffers the exactly the same injury, following, for example, a fall at work, receives up to £2,300 and the assistance of a solicitor? Answers on a postcard please!

For more information please contact our specialist personal injury team.

Personal Injury Time Limit Within Overseas Operations (Service Personnel and Veterans) Act 2021

On 29 April 2021, the Overseas Operations Bill received Royal Asset.
What Does This Mean for Our Service Personnel and Veterans?

Part 1 of the Overseas Operations (Service Personnel and Veterans) Act (OOA 2021) ensures that when judges are deciding whether to prosecute service personnel and veterans of an overseas criminal offence, consideration is taken for the unique context of the alleged offence having occurred abroad.

Part 2 of the OOA 2021 encompasses civil claims, including personal injuries arising from overseas operations. Such claims are now subject to an absolute limitation period of six years from the date of the incident, or six years from knowledge of the incident, meaning that judges are unable to use their discretion to allow claims after this period.

Why Is the OOA 2021 Necessary?

The Ministry of Defence (MOD) asserts that the OOA 2021 is needed to protect military personal and veterans participating in overseas operations following an unprecedented increase in the number of legal claims, in particular regarding past operations in Iraq and Afghanistan. The government claims the OOA 2021 will create certainty and protect service personnel and veterans from the continued threat of repeated investigations and potential prosecution.

The Association of Personal Injury Lawyers (APIL) publicly rejected the foundations of such claims, stating that only the MOD will benefit from such amendments to the law, as the MOD will consequently avoid liability for compensating those injured as a result of their negligence. In fact, it also remains unclear to us, as to why the MOD has chosen to deny its valiant service personnel compensation by introducing a long stop limitation date that civilians (and those our forces are serving) are not subject to. In usual personal injury claims involving occupational liability, the judge usually has discretion to allow out of time claims. This option has been taken away from those injured by overseas operations for reasons that remain unclear and unsupported.

Six years may appear to be a generous amount of time to bring a claim, however APIL has cited two main difficulties with this “arbitrary” time limit:

  • Injured service personnel are often wrongly informed they are unable to pursue a claim or wrongly informed they don’t have a valid claim by those higher in rank.
  • PTSD is a common personal injury that is sustained within the forces and its symptoms can vary enormously. Some members may be unable to talk about what has happened to them even six years following a diagnosis.

Should we be denying justice to our servicemen and servicewomen because they are not able to talk about the devastating events that caused their psychological injuries in the near future? Should we be denying justice to our servicemen and servicewomen because they were wrongly manipulated or belittled into believing that their injuries were not caused by any negligence? It is also of note that a large proportion of claims are for noise-induced hearing loss, something which may not become immediately obvious and could remain latent and undiagnosed for decades.

Proposal of Amendment to Original Bill

The House of Lords appeared to recognise these issues and proposed an amendment to the original bill, calling to exclude “actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that [Part 2] imposes in respect of actions relating to overseas operations.” This amendment recognised the importance of those who put their life on the line by serving their country overseas. Although, some have argued it did not go far enough and indirectly created a two-tier system in which civilian employees or families of deceased personnel may have been unable to make claims.

The potentially discriminatory impact of the two-tier system became a moot point as the House of Commons rejected the Lords amendment in its entirety by a majority of 357 to 268. Part 2 applies in the same way “to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals” and the government states that “service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.”

During the debate in the House of Commons of the above amendment, it was argued by MP Leo Docherty that approximately 94% of the claims brought against operations in Iraq and Afghanistan were brought within the six year time limit. However, MP John Healey cited findings that if the bill had been enforced since 2007, then 195 troops would have been caught and prevented from pursuing a successful claim.

Regardless of statistics, we contend that no single person prepared to put their lives on the line for their country should be denied from seeking compensation and justice for their injuries sustained as a result of doing so. We can therefore see no justification for our armed forces having less protection for personal injuries than those they are fighting to protect. For more information, please contact our personal injury team.

Personal Injury Time Limit within the Overseas Operations (Service Personnel and Veterans) Act 2021

On 29 April 2021, the Overseas Operations Bill received Royal Asset.

What Does This Mean for Our Service Personnel and Veterans?

Part 1 of the Overseas Operations (Service Personnel and Veterans) Act (OOA 2021), ensures that when judges are deciding whether to prosecute service personnel and veterans of an overseas criminal offence, consideration is taken for the unique context of the alleged offence having occurred abroad.

Part 2 of the OOA 2021 encompasses civil claims, including personal injuries arising from overseas operations. Such claims are now subject to an absolute limitation period of six years from the date of the incident, or six years from knowledge of the incident, meaning that judges are unable to use their discretion to allow claims after this period.

Why Is the OOA 2021 Necessary?

The Ministry of Defence (MOD) asserts that the OOA 2021 is needed to protect military personal and veterans participating in overseas operations following an unprecedented increase in the number of legal claims, in particular regarding past operations in Iraq and Afghanistan. The government claims the OOA 2021 will create certainty and protect service personnel and veterans from the continued threat of repeated investigations and potential prosecution.

The Association of Personal Injury Lawyers (APIL) publicly rejected the foundations of such claims, stating that only the MOD will benefit from such amendments to the law, as the MOD will consequently avoid liability for compensating those injured as a result of their negligence. In fact, it also remains unclear to us, as to why the MOD has chosen to deny its valiant service personnel compensation by introducing a long stop limitation date that civilians (and those our forces are serving) are not subject to. In usual personal injury claims involving occupational liability, the judge usually has discretion to allow out of time claims. This option has been taken away from those injured by overseas operations for reasons that remain unclear and unsupported.

Six years may appear to be a generous amount of time to bring a claim, however APIL has cited two main difficulties with this “arbitrary” time limit:

  • Injured service personnel are often wrongly informed they are unable to pursue a claim or wrongly informed they don’t have a valid claim by those higher in rank.
  • PTSD is a common personal injury that is sustained within the forces and its symptoms can vary enormously. Some members may be unable to talk about what has happened to them even six years following a diagnosis.

Should we be denying justice to our servicemen and servicewomen because they are not able to talk about the devastating events that caused their psychological injuries in the near future? Should we be denying justice to our servicemen and servicewomen because they were wrongly manipulated or belittled into believing that their injuries were not caused by any negligence? It is also of note that a large proportion of claims are for noise-induced hearing loss, something which may not become immediately obvious and could remain latent and undiagnosed for decades.

Proposal of Amendment to Original Bill

The House of Lords appeared to recognise these issues and proposed an amendment to the original bill, calling to exclude “actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that [Part 2] imposes in respect of actions relating to overseas operations.” This amendment recognised the importance of those who put their life on the line by serving their country overseas. Although, some have argued it did not go far enough and indirectly created a two-tier system in which civilian employees or families of deceased personnel may have been unable to make claims.

The potentially discriminatory impact of the two-tier system became a moot point as the House of Commons rejected the Lords amendment in its entirety by a majority of 357 to 268. Part 2 applies in the same way “to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals” and the government states that “service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.”

During the debate in the House of Commons of the above amendment, it was argued by MP Leo Docherty that approximately 94% of the claims brought against operations in Iraq and Afghanistan were brought within the six year time limit. However, MP John Healey cited findings that if the bill had been enforced since 2007, then 195 troops would have been caught and prevented from pursuing a successful claim.

Regardless of statistics, we contend that no single person prepared to put their lives on the line for their country should be denied from seeking compensation and justice for their injuries sustained as a result of doing so. We can therefore see no justification for our armed forces having less protection for personal injuries than those they are fighting to protect. For more information, please contact our personal injury team.

Spinal Cord Injury Awareness Day 21 May 2021

#SCIAD21 is reflecting on the impact of the pandemic and looking at stories of adversity, strength and survival.

Following on from last week’s Mental Health Awareness Week, I thought it would be helpful to focus on the issue of mental health and how this impacts upon spinal cord injury. The pandemic has brought its own challenges, which coupled with an injury clearly has significant bearings upon individual mental health, not only in relation to treatment and support available, but to coping strategies too, both in newly injured spinal patients and those continuing with their spinal injury journey.

My own practice includes clients across the spectrum. In terms of age I have adolescents right up to the recent, sad case of an 80 year old involved in a life-changing, catastrophic road traffic accident. I am privileged to act for these clients, who have come through their individual challenges showing an unprecedented strength of character, as well as physical resources. Mental health support is so important both in relation to the consequences of the trauma of the accident, as well as dealing with the subsequent issues that can flow from the injury on a lifetime basis.

A client’s mental health can be influenced by many things, whether it is an encouraging smile from medical staff (more difficult from under a mask in the current pandemic), a cheery word or an acknowledgement of concern from the legal team, as well as professional mental health awareness therapies together with the knowledge that such things as bowel and bladder management, tissue viability and vocational, education and employment issues are being dealt with. This also includes support from and to the wider family and friends coping with the ramifications of traumatic spinal cord injury. Regaining independence and mobility, and working towards those goals that arise at all stages of the journey are fundamentally important. Good mental health is a building block to coping with all steps of that journey. Communication is the key, whether it is with medical or legal professionals, case managers or treating practitioners.

At all times good emotional health is a significant contributor to overall wellbeing, physical recovery and coping mechanisms.

Often we see many aspects of psychological challenge whether it is anger, frustration, tearfulness and this too can have a significant knock-on effect on relationships, both at work and at home. Add to that the usual plethora of emotional daily life changes, whether it is hormonal changes, puberty or menopause, family changes with having children, family relationship changes. Financial or social related issues of every scenario created within the family dynamics. Sometimes there may be a breakdown in a relationship or the focus of a new challenge, possibly work or community independence and often there may be a reluctance to talk about issues due to embarrassment, isolation or mental health taboos. These are all difficult enough, particularly when compounded with an injury that is then brought into the mix. Often chronic pain is a common feature of spinal cord injury with more than half the individuals experiencing some form of neuropathic pain, which again can have a negative impact upon both physical and psychological health. However, having a spinal cord injury does not mean that general health can only be assessed in terms of physical injury and the psychological wellbeing of our clients is paramount. The last 12 months and the impact of the pandemic have been difficult in terms of getting clients’ medical appointments and, in particular, counselling with what normally would have been face-to-face support. Having strategies in place to help with the emotional wellbeing has been paramount.

In addition to the usual headings in a spinal injury schedule of loss including loss of earnings, mobility, accommodation, case management, occupational therapy, tissue viability, bowel and bladder management to name but a few, counselling, relaxation, diet, sporting opportunities, holistic therapies and outdoor pursuits have become even more important.

I have recently read the Karen Darke article in the April 2021 issue of the Forward Focus Spinal Injuries Association magazine and note that her comment, “My world was not limited by being in a wheelchair. Our ability to do anything is a state of mind not a state of body”.

The challenges of the pandemic have made spinal cord injury limitations even more challenging, however we are constantly inspired and humbled by the stories of adversity, strength and survival of many who have overcome these obstacles. Whilst the pandemic has made things even more challenging. it has emphasised the need to strengthen the opportunity to not only focus upon physical fitness and motivation which can give rich, rewarding and fulfilling experiences, but also the need to ensure that the mental health building blocks and opportunities were well and truly established in the first place and to ensure that once restrictions are lifted those opportunities can be further embraced.

Climbing Out was formed in 2010 by Kelda Wood, who was profoundly affected by the dramatic effect that the outdoors had on her own physical and mental recovery after a serious injury. Kelda provided a motivational speech when she attended our staff conference, stating her aim was to challenge and inspire young people in helping them gain belief in themselves and develop the confidence to realise their full potential. The programmes that she offers through Climbing Out are fully funded and available to young people of 16 to 30, but for the pandemic two of my spinal injured clients were due to be assessed to attend Climbing Out. The pandemic has pushed their ability to do this back a little, however the focus is still both on the physical and psychological challenges and improving mental health wellbeing continues to be a driving force.

For more information, please contact a member of Lanyon Bowdler’s personal injury team.

Temporary Right to Work Checks Extended to 20 June 2021

It is unlawful to employ someone who does not have the right to reside and the right to work in the UK or is working in breach of their conditions of stay. Employers have a duty to prevent illegal working and must carry out certain right to work checks on all prospective employees before their employment starts (and should undertake follow up checks for current employees with time-limited permission to live and work in the UK).

It is important employers do not make any assumptions as to a prospective employee’s right to work in the UK or their immigration status. All potential employees should be required to demonstrate their right to work, otherwise the employer will be at risk of civil penalties and criminal prosecution in the event that the right to work does not apply. Further, if an employer is selective as to which prospective employees it subjects to checks, it may be open to claims for race discrimination.

On 30 March 2020, due to the COVID-19 outbreak, the government made the following temporary changes to the right to work checks to simplify the process for employers:

  • checks can be carried out via video call (rather than in person)
  • job applicants and existing workers can submit scanned copies or photographs of identity documents for checks (instead of providing original documents)

These changes were originally put in place until 16 May 2021, but the Home Office has announced that they will now remain in force until 20 June 2021. From 21 June 2021, employers will be required to once again check job applicants’ original documents or use the Home Office’s online right to work check tool. From that date, any document checks will have to be performed in the physical presence of the potential employee, or by a live video link as long as the employer is in possession of the original documents.

Click here for the full government guidance or if you would like to discuss this further, contact a member of Lanyon Bowdler’s employment team.

Planning and Judicial Review Reforms Announced in the Queen's Speech

The Queen, in her speech of 11 May 2021, set out the Government’s priorities for the upcoming year and a number of bills which will be debated in the near future. These include the Planning Bill which, if all goes according to the Government's plans, promises to deliver some of the deregulation of the planning system set out in the White Paper of July 2020.

The Government's accompanying document to the Queen's Speech states that the main elements of the Planning Bill will be:

  • Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.
  • Significantly decreasing the time it takes for developments to go through the planning system.
  • Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.
  • Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.
  • Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.

It is likely that the proposals in the White Paper to divide or ‘zone’ local areas into growth, restriction or renewal areas will be pushed forward in some form, with the allocations to be set out in the local plan. The White Paper states that growth areas will benefit from an automatic outline permission or permission for the principle of the development, with Councils left to determine such details as layout, landscaping, scale and appearance.

Restricted areas will include areas where special protections continue to apply, and development will continue to be scrutinised in those areas much the same as they are now. In renewal areas, there will be a presumption that planning permission will be granted for the type of development set out in the local plan in that area. We await the detail as to how deregulation in renewal areas will be achieved, and how they will differ from areas currently allocated in the local plan.

Achieving the benefits of zoning (like certainty and time as well as money savings) will be dependent on speeding up the process for making and reviewing local plans. The White Paper proposes shorter statutory time limits for adopting local plans – 30 months as opposed to the five year average, as reported by the Government, and moving some of the content in local plans to national policy as well as digitalising the system.

The proposals in the White Paper and now the announcement of the Planning Bill have attracted differing views from various sectors and stakeholders within the planning system. There is likely to be some impact on local democracy. For instance, the introduction of growth areas may remove the ability for local residents to get involved in debates about the principle of major development in their area, if such development already benefits from outline permission by the time their local Councils have to make a decision. This will make it more important to increase and monitor local involvement in the local plan process.

Developers and housebuilders hope the reforms will curtail the kind of organised objections to development they see as a drain on time, resources and the ability to bring forward much needed development, including affordable housing. Some interest groups are concerned about the potential loss of local residents’ ability to be involved at application level, while other groups are concerned about the standards of houses that will be brought forward, whether the issue of impact on neighbouring properties will be side-lined and whether development will be allowed to override critical and sometimes global environmental challenges.

The Judicial Review Bill has also been the subject of debate which is wider than planning. The Queen’s speech and accompanying paper state that the Government is concerned that judicial reviews are being over-politicised and judges are being dragged into the political arena inappropriately. The purpose of the Bill is stated to be to “introduce reforms to Judicial Review to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals’ rights.”

Judicial Review is obviously relevant to planning and is the only way in which an affected third party can hope to reverse a planning approval which they think is flawed. The planning courts have always been concerned to maintain the division of planning decisions, which they leave to planning decision-makers such as Councils and the Secretary of State, and legal issues which are the remit of the courts, and to restrict the ability of disgruntled members of the public and developers to re-open planning arguments via Judicial Review applications. This appears to be consistent with the Government’s aspirations above. The proposals in the Bill are said to be to:

  • Allow the court to suspend quashing orders in Judicial Review to allow the authority to rectify the identified decision. This is relevant to planning as the usual position is that if a planning decision is quashed or cancelled because of a legal error, the decision has to be made again by the decision-maker. Therefore, the application has to go through the whole process again if the developer wishes to proceed with development. Potentially, with these reforms, the planning permission could be kept safe in abeyance while the decision-maker corrects its errors. Correcting the errors may mean the planning permission can be saved or it may not.
  • Reversing the decision in Cart v The Upper Tribunal which allows certain decisions of the Upper Tribunal to be reviewable by the High Court.

The devil (or the saviour) as they say is in the detail. We know what the Government’s priorities are, we know which parts of the White Paper and Judicial Review reform proposals they want to bring forward – the question is how they’re going to do it?

Six Things to Consider When Entering into a Conditional Contract

A conditional contract is conditional on certain criteria being met and/or certain events taking place. Usually, this is obtaining a planning permission satisfactory to the purchaser developer.

So, What Should You Consider?

  • Have the conditions under the contract been adequately drafted? Ambiguous or vague conditions can lead to uncertainty in respect of ascertaining whether or not conditions have been satisfied.
  • Is the length of the contract sufficient to enable planning permission to be obtained and/or for the conditions to be satisfied and does it allow for planning appeal?
  • What happens if the conditions under the contract are not satisfied? What are the parties’ obligations? Should all or part of the deposit be forfeited, if any?
  • The land will often need to be sold with vacant possession. The parties should consider whether there are any existing tenancy agreements or licences affecting the land – these will need to be terminated in advance of the completion date.
  • The purchase price can be a fixed price, or can be a percentage of the market value of the land with the planning permission in place. Does the contract provide a means of agreeing or ascertaining the market value?
  • From a landowner’s perspective, tax advice should also be sought in respect of whether an option to tax in relation to VAT should be made in respect of the land being sold. From a developer’s perspective, the developer should ensure that a valid VAT option to tax has been made.

Of course, when entering into any form of conditional contract you need to seek legal advice and our team are on hand to assist and to guide you through the process. For further information, please contact us.

Shropshire Fire & Rescue Service Still Battling Large Blaze at Telford Recycling Plant

On Monday 26 April 2020, thick grey smoke could be seen billowing in the sky across Telford as a major fire broke out in the recycling centre on Greenway Polymers site in Wellington. Plastic waste and machinery caught fire at the plant sending disruption not only to nearby residents but to schools, businesses and M54 users.

It is now days later and the waste is still burning. Shropshire Fire Services are working tirelessly to control the fire and at the height of the fire over 60 firefighters were tackling the flames. Due to the complexity of the materials on fire, the fire services believe it could take around 7-10 days to resolve, with a clean-up operation potentially taking months.

It is thought that the recycling plant will now be demolished for safety reasons with the structure being dismantled to allow crews full access to the area.

Public Health England has given the following advisory message:

Any smoke can irritate airways, skin and eyes and cause coughing, wheezing breathlessness and chest pain. Chemicals in smoke can also worsen health problems like asthma and heart conditions so people should carry their medication if they are in areas affected by the smoke. Chemicals in the smoke can worsen existing health problems like asthma. People with asthma should carry their inhaler. If symptoms occur, people should seek medical advice or call NHS 111.

Fire officers have recommended that people stay away from the area and that nearby residents and businesses in close proximity continue to keep their doors and windows shut until the smoke has dispersed. Many have also been warned of the hazards of the ash in addition to the smoke.

An investigation has started to identify the cause of the fire and the environment agency is monitoring the air quality around the site as well as the water quality downstream of the fire.

If you have any of the above symptoms or experience a worsening of an existing condition, we firstly recommend that you seek medical advice or call 111. Secondly, if you go on to develop chest, heart or lung problems as a result of the toxic fumes from the fire and you would like advice, then please contact our specialist personal injury team for more information.

It is important to get advice as soon as possible and in any event within a maximum of three years from when you become aware of any problem.

Women and Babies Put at Risk at Worcestershire Royal Hospital

A senior doctor at Worcestershire Royal Hospital has been censored after raising concerns that changes being implemented within the maternity unit, in line with NHS England’s new model of antenatal care, have left wards dangerously understaffed.

Continuity of Carer

NHS England has introduced a new model of antenatal care known as “Continuity of Carer”. The model encourages women to be seen by the same midwife throughout their pregnancy and labour, with the aim that all women will be offered a continuity midwife across hospitals in England by March 2023.

However, concerns at Worcestershire Royal Hospital arose when midwives were pulled from core staffing in order to create dedicated continuity teams, leaving the maternity unit dangerously understaffed. Whistle-blowers revealed that the unit was short of five or six midwives per shift and as a result, women with high risk pregnancies were experiencing long delays in giving birth after being induced, some for up to five days.

Meanwhile, women with a continuity midwife, who were often considered low risk, were receiving accelerated care and able to skip the queue because their midwife was available straight away. For example, women in urgent need of a caesarean section were made to wait, whilst other low risk women who had been placed on the Continuity of Carer pilot proceeded to a planned or elective caesarean section first.

Jane Sandall, Professor of Women’s Health at King’s College London, previously warned that the Continuity of Carer model needed to be implemented carefully. She said, “All women should be prioritised according to need for escalation and ongoing treatment according to national and trust guidance, and whether they are in a continuity of carer model or not should make no difference to how this is managed by a trust. I don’t understand why this was allowed to happen”.

Ongoing Concerns

This follows after the Care Quality Commission (CQC) carried out an inspection at Worcestershire Royal Hospital in December 2020 in response to four separate alerts from concerned members of staff in relation to the safety of the maternity department.

A subsequent report published in February highlighted, amongst other things, dangerously low staffing levels and a reluctance by staff to raise concerns. The CQC ordered Worcestershire Acute Hospitals NHS Trust to make improvements and downgraded the maternity service from ‘Good’ to ‘Requires Improvement’.

Internal audits also showed that the maternity unit was short-staffed on the delivery suite for almost half of all shifts between July and December 2020. It is therefore worrying to hear that the same issues remain and that women and babies continue to be put at risk.

‘I Cannot in All Conscience Continue to Remain Silent’

The problems at Worcestershire Royal Hospital hit crisis point in April this year when the maternity department’s clinical director, Dr Catherine Hillman, resigned from her role after posting a message to staff on an internal Facebook page which was later taken down by senior bosses.

Within the post, she spoke out about the “gridlocked system”, saying that, “Women being cared for by core midwifery staff have been experiencing unacceptably long delays for induction of labour, resulting in bed blocking on the antenatal ward with enormous anxiety and frustration for all. Conversely, women being cared for under the continuity system have had a more streamlined experience, with timely care when required”.

Dr Hillman raised concerns that this has created a two-tiered system, where women were no longer being prioritised on clinical grounds.

However, the Facebook message was removed within hours and a further statement, supporting Continuity of Carer, was put in its place. On 10 April 2021, Dr Hillman resigned from her role, saying that the maternity unit was, “at best precariously safe” and ,“I cannot in all conscience continue to remain silent and simply watch and wait as events unfold.”

‘It’s Such a Stressful, Horrible Environment’

Since Dr Hillman’s resignation, other staff at the trust have also raised concerns. One midwife explained that, “The women have been induced medically and they’re waiting to go to the delivery suite to have their waters broken. These women are told they’re high risk and that their babies could potentially die and then they wait for days on the antenatal ward for a midwife to become available so that they can be cared for on the delivery suite. Every time, as a midwife, you go to put a lady on a monitor to check the baby's heartbeat, you are literally hoping it's there and it's all ok. It's such a stressful, horrible environment.”

It has also been revealed that four women have died at the Worcestershire Acute Hospitals NHS Trust between July 2019 and December 2020, with midwives stating that they work in fear of what might happen during their next shift.

In one incident, a women in her early 20s collapsed and died in the maternity unit after being on the ward for several days.

Future Implementation for Continuity of Carer

Despite clear issues, the roll out of Continuity of Carer is set to continue with NHS England issuing a statement last month saying, “Some potential barriers need tackling at the outset, including putting adequate staffing in place.” They consider that the model has been proven to significantly improve women’s overall experience of care and is safer for babies. However, others remain wary, particularly in regards to trying to speed up implementation across England, which may place additional burdens on midwives and maternity support workers.

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.

Inadequate Care for Children’s Mental Health at Telford Hospital

The Shrewsbury and Telford Hospital NHS Trust has been forbidden from admitting any new patients under the age of 18 who present solely with acute mental health needs after accusations that they have failed to keep young people safe.

This follows after the Care Quality Commission (CQC) carried out an unannounced inspection of the children and young people’s service at the Princess Royal Hospital in Telford on 24 February 2021 after receiving concerns about the quality and safety of treatment provided.

Safety Concerns

The inspection found that many children had not received an adequate risk assessment on admission and that staff "generally relied" on rapid tranquilisation, with one child receiving this 27 times during their admission. The inspection also found that staff had not received appropriate restraint training, and that some staff had not had any restraint training at all. Other concerns raised showed that staff did not fully understand how to protect children and young people from abuse and that they did not consistently follow local and national guidance for safeguarding referrals.

A Section 31 notice, which aims to prevent further harm, was issued two days later placing the trust under urgent conditions. The trust was ordered to review the records of all acute mental health inpatients under the age of 18, and not to admit any more unless they had associated physical needs. The CQC also ordered the trust to implement safeguarding systems and to train all staff working with under-18s with mental health needs to ensure they were “appropriately competent” to do so.

A Section 29a notice was also issued on 12 March which accused the trust of failing to take account of children, young people and their families’ individual needs and preferences, particularly in regards to food choices for those with eating disorders.

As a result of the inspection, the trust’s rating for children and young people’s services was downgraded from ‘Requires Improvement’ to ‘Inadequate’.

Improvements

Nursing Director, Hayley Flavell has since confirmed that the trust addressed some concerns immediately and drew up plans to correct others, including devising a system to track young patients’ location and to ensure that all staff have received appropriate training.

Ms Flavell said that, “There is now an opportunity to look widely at how we care for adults who attend our emergency department with mental health issues. We’re going to see more mental health coming into the organisation, so we need to make sure what we do isn’t just focussed on children and young people.”

Chief Executive at the trust, Louise Barnett agreed that the inspection had been an opportunity to improve, but said, “It absolutely shouldn’t take an inspection with a series of conditions and warning notices,” to provoke it.

The CQC continues to monitor the trust closely to ensure that patient safety improves and has confirmed that they will return to check that sufficient action has been taken.

The implications of the COVID-19 pandemic has created a surge in mental health problems amongst children and young people. It is therefore vital, now more than ever, that young patients are able to access the help and support they need. 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 mental health claims and if you have concerns about the care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively.

Life in the Court of Protection Department

Before joining Lanyon Bowdler I was a legal secretary in a small local firm and I was mostly based in the firm’s conveyancing department. I did a bit of everything though! I franked the post, I did dictations, and I filled in AP1 forms. Due to the small nature of the firm, I had a little taste of family law, conveyancing, and wills and probate, to name a few. When COVID-19 struck, the firm for whom I worked was affected financially and I was informed that my contract would be brought to an end. This taste of many areas of practice helped me form a more clear understanding of the kind of areas in which I would like to find myself working.

What Did I Know Before Starting in the Court of Protection Department at Lanyon Bowdler?

Practically nothing! The most I had learnt at university was during a discussion regarding the Mental Capacity Act in terms of establishing a defendant’s mental capacity in criminal law in my first year. I didn’t know what a deputy was or what their job was on day-to-day basis. I didn’t know how to become one and I didn’t know what important work they do and how important it is to many people’s lives.

What Preconceptions Did I Have Before Applying for the Role?

I believed that the bulk of the work would be surrounding LPAs and EPAs. Now, in practice, my role is so much more client-facing than I realised.

I am mainly responsible for the financial side of the deputyship order we have in place for some of our clients. I spend most of my day paying outstanding invoices and ensure the clients have received reimbursements for bills and invoices. This means that I am in close contact with a lot of our key clients on a daily basis. I’ve managed to get to know them on a deeper level so much more quickly than I expected. I also make phone calls on behalf of the deputies, whether that’s speaking to the case managers for the individual clients and ordering medical aids and equipment or speaking to utility companies and local councils. I take notes in meetings and draft attendance notes so that information discussed in meetings is correctly logged for future reference.

I’ve been exposed to so many aspects of the work the Court of Protection does and I am extremely grateful. The firm really fosters a mentality of making sure its employees are well trained and I was recently given the opportunity to take part in an online webinar introducing the key work of the Court of Protection. This was invaluable and helped me understand more of the work we do on a day-to-day basis.

What Does My Role Involve?

I did not realise how much I would get out of my job each day. Whether it’s a call from a client I’ve just helped with placing an order for aids and equipment, or whether it’s an email from a client who wanted to say thank you for helping them change their utilities over when they’ve moved. The work goes beyond the client; it affects and helps their families, especially when most of them are still going through an incredibly difficult time. Hearing in multi-disciplinary team meetings that the client has progressed, in the short timescale that we have been involved, is incredible and gives me great job satisfaction to know that I’m a small part of the big change in their lives.

The Court of Protection team itself has been amazing. From words of encouragement from the team I see daily when I didn’t know what I was doing in those first weeks to the emails and phone calls when you need a laugh after a trying moment with colleagues based outside the office. The team has welcomed me with open arms. As has the whole company. I didn’t expect to feel so at home within a mere couple of weeks. I thought that the current COVID-19 restrictions, with many employees working from home, would affect how I felt with my place here at Lanyon Bowdler. This has definitely not been the case! I couldn’t imagine a better start to my first three months here at Lanyon Bowdler.

Trench Déjà Vu

A few years ago, I released a blog having been contacted by a client who was adamant he was not the person who had allegedly been caught speeding at Trench Lock. Fortunately he had dash cam footage fitted in his vehicle that was able to support his assertion and completely exonerate him of any wrongdoing. Our expert confirmed it was, in fact, the person overtaking him who was at fault of speeding.

Here is the original link to that article together with the dash cam footage.

The incident was also picked up by the Shropshire Star and reported on.

West Mercia Police Camera Ticket Office suggested it was down to human error at the time.

However, in the past 10 days, I have now had four separate unconnected individuals contact me stating they believe they have been issued with ‘rogue' speeding tickets in the same location and they are now seeking my assistance in challenging the allegations before the court.

As locals with knowledge of the area, they always drive cautiously when negotiating the area and consequently believe that something must be wrong with the camera or the range it covers.

Is this something that has happened to you or a family member/friend? Did you just pay up and take the points as the easier option? For a free initial no obligation discussion, please contact me.

The NHS

During the COVID-19 pandemic, our NHS has fondly become a national treasure. We have supported and clapped our wonderful key workers and been grateful for their incredible and tireless work. The thought of suing this overstretched and underfunded service that is available to all could, to some, seem like a dreadful thing to do. But what if you have been affected by a failure of the NHS that has left you or a family member with devastating and life-changing consequences?

What Is Clinical Negligence?

All medical professionals, whether in the NHS or private sector, owe a duty of care to their patients. If the care delivered falls below a reasonable standard and this causes harm, injury, or death, then the medical professional is negligent in the eyes of the law.

Can I Get Compensation?

NHS Resolution is the legal arm of the NHS and recognises that things can “go wrong” and when that happens, those involved should be properly informed and compensation should be fairly paid.

While financial compensation cannot undo damage caused to a patient or bring back a loved one who has died because of clinical negligence, it can help to ease future financial burdens. For the child who now has additional care needs, compensation can help to give them the care and the quality of life that they and the family deserve. Our expert clinical negligence team has recently secured compensation of over £26 million for one client.

How Can I Make Sure This Does Not Happen to Someone Else?

We find that one overriding theme is that people who have suffered from clinical negligence want to make sure that the same thing does not happen to someone else. The only way that mistakes can be learned from, is if they are fully investigated so that improvements to practice can be made. NHS Resolution is also keen that the NHS learns from mistakes to prevent reoccurrence.

Here at Lanyon Bowdler, we are passionate about helping to bring about change to improve healthcare services to make them safer for all. If you think that you or a member of your family may have been affected by clinical negligence, then get in touch with our specialist clinical negligence team.

Delays in Diagnosis of Bowel Cancer

This blog is written by Katie Little in our clinical negligence department.

It is a subject that many find embarrassing and would rather not talk about, however bowel cancer is the fourth most common cancer and the second biggest killer in the UK and it can affect anybody. April 2021 is Bowel Cancer Awareness Month and it is important that you are aware of the signs and symptoms and when you need to take action. If the disease is diagnosed in the early stages, prognosis is normally good but as time passes, the prospects of recovery diminish significantly.

Symptoms of Bowel Cancer

The main symptoms of bowel cancer to look out for are:

  • Blood in your poo
  • A change in your bowel habit (i.e. going to the toilet more or less often than usual)
  • Lower tummy pain, bloating or discomfort