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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…

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