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Gender Critical Beliefs and Discrimination in the Workplace

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

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

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

Background

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

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

There is distinction between:

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

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

Facts

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

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

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

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

Decision

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

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

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

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

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

Comment

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

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

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

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

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

Hey Pharmacist…A New and Improved System?

Written by LM

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

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

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

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

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

Too good to be true?

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

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

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

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

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

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

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

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

What does this mean for the future?

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

Holiday Planning After Brain Injury

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

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

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

Preparation

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

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

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

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

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

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

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

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

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

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

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

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

Driving

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

Holiday Documents

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

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

Enjoy your Holiday

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

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

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

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

Discounted Travel

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

Top Tips

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

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

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

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

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

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

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

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

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

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

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

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

Work Experience Interview Tips

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

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

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

1. Try to stay relaxed

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

2. Be prepared to talk about yourself

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

3. Make a note of any questions you have

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

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

Patient Safety Fears after GP Surgery Limits Patient Access

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

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

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

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

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

Nottingham Maternity Review – Donna Ockenden Takeover

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

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

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

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

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

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

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

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

West Midlands Ambulance Service Faces ‘Titanic’ Collapse

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

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

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

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

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

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

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

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

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

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.

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