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Resurgence of Corporate Reorganisations

The New Year rush shows no signs of abating, with another busy week having just passed. This week I have been working with clients on a number of interesting corporate and commercial arrangements.

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Intellectual property

In particular, I have been assisting a client with the implementation of an intellectual property rights licence agreement. The client’s group is involved in the development of certain intellectual property rights relating to the renewable energy sector (some of which have been patented). As part of a new business venture, the client wishes to exploit some of these ideas and bring them to the market. Of course, one of the client’s key concerns is to ensure that its intellectual property rights are protected from the trading risks associated with this new business venture.

For this reason, we have decided to implement a group structure with a parent company owning and licensing the relevant intellectual property rights to its wholly owned subsidiary. One of the key benefits of having a non-trading holding company in place above of a trading subsidiary is that the holding company’s assets are ring-fenced from the ordinary trading risks and liabilities of the subsidiary. This concept can also be extended beyond intellectual property rights to other critical assets, such as commercial premises, goodwill and, perhaps most importantly, cash reserves. Of course, often lenders and other creditors will seek to curtail the benefits of this structure by requiring intra-group guarantees and other security; nonetheless, it is always worth exploring whether or not such a group structure is of benefit to a particular business.

Corporate reorganisations

My department has seen a resurgence of corporate reorganisations in the last 12 months or so, with clients looking to take advantage of the benefits discussed above, and we expect this trend to continue throughout 2018.

Law Firm advice for Work Experience Students

As you’re most likely aware, one of the most important things for a legal career is experience. As such, many law students and aspiring solicitors will seek and hopefully obtain work experience. It’s vital to make the most of this, and there are a few simple things you can do to help you do so.

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1. Apply in plenty of time

Law is a competitive field. It’s sensible to make sure you apply early to give yourself the best chance of scheduling in some work experience, as firms often have limited availability.

At Lanyon Bowdler we recommend students apply at least 12 months in advance, particularly if you are looking to spend a week with us in June. Undergraduates or students who are happy to join us for a week during school/university holidays still need to apply well in advance, but may find there are more options available.

2. Be prompt

Lateness is a bad sign. Make sure you arrive on time, ready for the day, every day!

3. Be enthusiastic

It might well be that you’re lucky enough to experience a variety of departments during your work experience, to give you an overview of several areas of law – certainly here at Lanyon Bowdler we try to offer this. We appreciate you might not know anything about the departments you join, so enthusiasm is really key for making sure you pick up as much as you possibly can to try to understand what life in that department is really like.

4. Ask questions

We love talking about our jobs. We really do. We very rarely have an excuse to do this, so please, take advantage – we’re very happy to answer any questions you might have!

Lanyon Bowdler does offer work experience placements. If you are looking for such a placement please contact info@lblaw.co.uk

Best of luck!

Proposals for Births to End at Bridgnorth Community Hospital

It has recently been reported that our local community hospital in Bridgnorth is to lose its status as a birth centre (Bridgnorth Journal 7 December 2017).

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It was announced that following a review by the Clinical Commissioning Group, Shropshire’s midwifery services would undergo a quite dramatic overhaul. The proposed plan is that only prenatal and postnatal services will be offered at Bridgnorth, with the same proposals for Oswestry and Ludlow.

Was due to reopen

Services will now be centralised in Telford and Shrewsbury, with mothers travelling to these centres to give birth. The Bridgnorth unit has been closed for six months due to staffing issues, and was due to reopen on 1 January 2018.

The Bridgnorth, Ludlow and Oswestry centres would offer a broad range of services to include antenatal and postnatal care from a midwife, scanning, fetal monitoring and day assessment. There would also be support with emotional wellbeing and mental health related to pregnancy and early parenthood, as well as healthy lifestyle services. These services would also be offered in Shrewsbury and Telford.

Needs of local people have been overruled

Dr Jess Sokolov, Shropshire CCG’s Clinical Lead for the midwifery led services review, said: “This proposed new model improves services for women and staff by making the best use of resources in line with what women and their families want and need”.

However, this view does not appear to be that of the Communities affected. Despite street protests, marches in support of keeping the Midwifery led services open and attendance by local representatives at Consultation Workshops, it would appear that the will and needs of local people have been overruled. Bridgnorth Councillor Julia Buckley said ‘How can they ignore the overwhelming feedback to retain the rural birthing centres and deliberately cause women to travel further putting them a risk”?

2011 study

The Birthplace National Prospective Cohort Study (2011) found that having a planned birth in a Midwife Led Unit was just as safe as having a baby in an obstetric unit. Women reported greater satisfaction with their care, had less intervention and were more likely to succeed if they choose to breastfeed their baby.

History of Bridgnorth Infirmary

Bridgnorth Infirmary opened on Northgate for the first time on 17 September 1896. It was extended in 1908 with further alterations in 1927-8, 1934 and 1948-93. In 2012 further alterations were made, it was renamed as Bridgnorth Community Hospital and described as being ‘at the heart of the local Bridgnorth and South East Shropshire community’.

On a personal level I am very sad to hear of these proposals; my sons were born there in 1987 and 1989. In those days we lucky mums spent a week in hospital following the birth. This gave us time to recover physically and gain confidence in caring for a new baby. On the final night before discharge home the kind midwives and health care assistants would babysit for a couple of hours while you spent a last ‘date night’ with your partner before embarking on life as new parents. Almost unbelievable now I know but true!

In the 1990s my friends and I successfully campaigned to keep Bridgnorth maternity unit open as it was under threat then. We await the final decision which is now affecting our children and grandchildren. It is hoped the decision will be based on the needs and safety of mothers and babies and not a financial one.

Registering your Property Rights

According to Land Registry statistics, approximately 25% of property in England and Wales remains unregistered. All land has an owner; it being unregistered just means there is no record of it with The Land Registry. A portion of that unregistered land may be owned by a business, local authority, charity or other such body. the Land Registry estimates that 20% of that land is rural, which suggests a portion is owned by farmers/estate owners.

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Land registration is now compulsory in the UK when properties change ownership or are being mortgaged for the first time. Examples include transfers of land by sale or gift, by an assent, a deed of appointment of a new trustee or by a court order. The full range is set out on The Land Registry website.

The unregistered land is land that has not been transferred, had a first mortgage since the compulsory registration came into force or been voluntarily registered.

Voluntary Registration

The Land Registry has recorded a rise in voluntary registration over the last 10 years for residential, commercial or agricultural properties.

There are certain benefits to voluntary registration, one being that the land registry fee is lower. The most important thing about property being registered is that it gives greater security of ownership, which means more protection against claims that may be made against it. Sometimes with commercial and agricultural property, until the deeds are reviewed, the owner may actually be unaware of exactly how much land they own or if they have other rights over pieces of land. This happens more frequently than you might think.

For voluntary registration, the Deeds to the property are carefully reviewed so that an accurate boundary of all land owned can be registered which clears up any uncertainty there may be.

Land that has been voluntarily registered can make it easier later if it is to be sold and can avoid additional delay. The Land Registry often have a large amount of work meaning registrations can take a while following submission.

If you are an owner of commercial or agricultural property/land which is unregistered, here at Lanyon Bowdler, our commercial and agricultural property team can assist you with voluntary first registration, including going through all of the deeds to ensure there is an accurate plan.

Other rights

Often commercial or agricultural property/land owners may have rights of way, easements or other such rights over land owned by another. This may be a formal or informal agreement. The best way to protect such a right is to have it registered at the Land Registry. Such rights can be important and they often relate to access, so protecting them can be vital.

If you believe you have a right over another piece of land or if you are just not sure, it is a good idea to ask about it as it might be something that could be protected by registration.

“The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it's the only thing that lasts" Gerald O'Hara, Gone with the Wind.

Occupational Stress at Work - A Star Wars Story

When The Force Awakens was due to come out, I posted a blog about whether Han Solo could bring a successful personal injury case following the events of Star Wars: The Empire Strikes Back.

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Since that blog I have now qualified as a solicitor in our personal injury department and couldn’t let the latest Star Wars film pass without a new blog. I thought that this time I would focus on whether Finn could bring a claim against the First Order, for the stress caused to him as part of his employment as a stormtrooper.

Please note that for my analysis below, I have assumed English Law would apply, that Finn would be considered an employee of the First Order (although we are never told about control and whether they receive a salary, sick leave, holiday etc) and that Finn had no pre-existing psychiatric history prior to the events of The Force Awakens. I have also assumed the First Order would be considered a genuine employer as opposed to a criminal enterprise.

Occupational stress

This can be a particularly difficult area of law as while there are some principles that govern this type of claim, the issues that arise in the different claims are often varied and a lot of the law is case specific.

It is accepted however that every employer has a duty to provide a safe place and safe system of work. The normal principles of duty, breach, foreseeability and causation will apply i.e.

  1. Does the employer have a duty of care?

  2. Has that duty been breached?

  3. Did that breach cause the claimant to suffer loss/damage? If so, was that loss or damage a reasonably foreseeable consequence of the breach?

We will assume that the First Order had a duty of care in their role of the employer of Finn. The next and more difficult question is whether the duty has been breached.

Breach – A disturbance in the force

Employers are only held to be in breach of their duties if they have failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, together with the justifications for running the risk. Employers are required to conduct a suitable and sufficient risk assessment, including identifying the risk of stress arising from the work activity.

The work activity we are looking at here is attacking and slaughtering innocent villagers in order to further the advance of the First Order. I am confident that any reasonable risk assessment would identify this work activity is likely to be stressful. The risk of significant psychological damage arising from engaging in this activity is likely to be high. The First Order would subsequently have had a duty to take reasonable steps to prevent their employee from succumbing to the effects of this stressful work activity.

Reasonable steps can include the following:

  1. Changing or adapting the work activity to reduce the level of stress

  2. (This is unlikely to be an option as the First Order’s main work activity seems to be killing people. However, an interesting point to note is that Finn’s work responsibilities appear to have changed as he refers to previously working in sanitation at the First Order Base. This would mean we would need to see why his role was changed to one of active combat, and whether adequate risk assessments and employee evaluations took place prior to changing his role. It also potentially would have been an option to move Finn to a non-combat role once it was identified the stress of combat was causing him to suffer psychological injury)

  3. Have an effective grievance procedure through which the employee can raise concerns about the work activity and the stress it is causing them.

  4. Respond appropriately to concerns raised by the employee e.g. allowing time off to recover, or referring to Occupational Health. It also can help an employer if they can show that they offered a confidential advice service, with referral, to appropriate counselling or treatment services.

Based on the information we are provided with in the film, none of these safeguards appear to be in place. It is unclear what, if any, steps have been taken by the First Order to avoid or minimise the effects of stress on their employees, or even to identify symptoms of stress in the first place.

Causation and foreseeability – I have a bad feeling about this…

If Finn was to pass the tests in relation to duty and breach, he would then have to show that he suffered a psychiatric injury which was caused by the First Order’s breach and that this was a reasonably foreseeable consequence of the breach.

Generally speaking an employer is entitled to assume its employee can withstand the normal pressures of their job unless aware of some particular problem or vulnerability. In this situation, I think there would be a good chance of showing that psychiatric harm, arising from the stress of being forced to kill strangers, was a reasonably foreseeable consequence of the activity. Finn would need to show the First Order should have foreseen the risk of him specifically suffering this harm (rather than it being a risk to the workforce in general). This might be difficult, as we would need to show that Finn’s behaviour was such that the First Order should have been alerted to the risk of him specifically suffering psychiatric harm.

Finn would have difficulty showing his workload was more than would be normal for that job, or that unreasonable demands were put on him when compared to colleagues in comparable roles. As far as we know, all stormtroopers are required to shoot people when commanded to, and Finn was not treated differently. We could potentially look into whether there were indications that other stormtroopers were suffering from harmful levels of stress, (indicating this was a problem within the First Order’s organisation). If stress-related illnesses were prevalent among stormtroopers then this would be good evidence that psychiatric injury was a reasonably foreseeable consequence of the work. We would ideally want to see the employment records of all stormtroopers which would be a logistical and practical challenge, although these records should be disclosable by the employer in a redacted form which hides the other employees’ identities.

We would also need to know whether Finn has ever alerted his superiors to the stress he is suffering. On the face of it, this seems unlikely as the first time he appears to suffer a stress reaction is while on Jakku. He then returns to the base and is confronted by his superior but does not tell them that anything is wrong. He quickly decides to leave his employment after that confrontation. Assuming these are all the relevant facts and there were no previous incidents, it would be very difficult for Finn to establish that the First Order knew or should have known he was suffering from stress. His employer was under no obligation to interrogate him following his return from Jakku. There was no reason for them to conclude he was suffering from stress (again assuming there is no previous history that we are unaware of). It may be however that Finn could establish Kylo Ren had actual knowledge of his psychiatric injuries. Kylo appears to notice Finn has a significant reaction while on Jakku, and when later told that one of his employees has had a breakdown, released a prisoner and absconded with company property, immediately identifies that Finn is the most likely perpetrator. This is compelling evidence that the First Order was aware of the impact of the work on Finn.

Finn’s failure to report stress would also need to be considered within the work context Finn operated in. The First Order seems to be a rather hostile work place, where those who disagree with their superiors are likely to be throttled and where their current leader (Kylo Ren) regularly has violent tantrums in the work place. It is consequently understandable that Finn would not report his symptoms of stress, or complain about the work demanded of him out of fear of punishment. This evidence would also help to show that in breach of their duty as an employer, the First Order has not ensured that there was a suitable grievance procedure for Finn to use in order to deal with his stressful work activities.

Armed forces

A further complication Finn would encounter in bringing his claim is that the First Order is no ordinary employer. He is effectively employed as a member of the armed forces (albeit an evil armed forces). Assuming this would be analogous to the Ministry of Defence (MOD), the First Order could argue that they have the defence of combat immunity for any and all injuries sustained by their employees in combat situations. As Finn’s psychiatric injury arose from the battle at Jakku, he would not be able to claim for this injury.

However, like the MOD, the First Order is not just an employer, but also a provider of medical services. Finn could consequently bring a claim for the failure to adequately diagnose and treat his psychiatric injury. He would need to show, however, that the symptoms of stress were made known to the First Order and/or that there was not a proper system available for him to use, in order to complain and make it known that the situation was unacceptable and causing him psychological harm.

Do bring a claim or do not?

As discussed in the paragraph above, no claim can be brought for injuries specifically caused in combat. However, the ineffective systems the First Order had in place, to allow the proper reporting of stress-induced illness, could give rise to a claim for failure to adequately diagnose and treat Finn’s psychiatric injury.

Consenting to Gender

It has recently been in the press about the alleged sub-standard treatment of intersex patients and their families, particularly with regard to whether families consented to life changing surgery on their children and psychological care.

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The BBC carried out an investigation into Great Ormond Street Hospital and found that doctors may not have properly discussed with parents irreversible surgery to determine their child’s sex. It was also reported that, in some situations, there was no access to psychological care for patients and their families. Consequently, the health regulator, Care Quality Commission (CQC) is making enquiries.

So, what does intersex mean?

Intersex is a generic term used to describe Disorders of Sex Development (DSDs). DSDs are rare conditions (occurring in approximately 1 in every 1,500 babies) caused when the reproductive organs and genitals of a baby do not develop as expected during pregnancy. DSDs can be inherited but often occur randomly and are usually identified either at birth or during adolescence.

An individual with a DSD may have typically male or female genes but their genitals and reproductive organs may be of the opposite sex to their genes, a mixture of male and female genes or not obviously either. A person growing up with a DSD might have both male and female characteristics. It is estimated that around 1.7% of the world’s population have intersex traits.

What happens when a baby is born intersex?

Firstly, if a DSD is suspected, tests are carried out to establish a baby’s internal and external organs, as well as their genes and hormones. If a baby is diagnosed with a DSD, doctors should then work with the baby’s parents to decide on the baby’s gender. Unfortunately, there is very little information available to the general public as to how this decision is arrived at.

A change in usual practice

In years gone by, intersex babies were generally raised as females. They would have any male genitalia removed during their early years. The decision seems to have been made due to fears that it would be harder for intersex children to grow up as males with “inadequate” male genitalia.

Interestingly, a review by an American University of 94 intersex children found that over half of those who had had surgery during their early years to make them female later transitioned to become males.

Nowadays, in the UK, it is more usual for intersex babies to be brought up as males.

Problems in the UK

Sadly, whilst there is very little information available from UK sources to inform people about DSDs in this country, there are numerous stories concerning the seemingly insensitive or inadequate care and treatment parents and patients alike have received from NHS hospitals. An article in The Guardian tells the story of Juliet Swire being advised by doctors not to announce the birth of her son but keep him a secret until his gender was decided.

Meanwhile, the BBC produced a documentary on Joe Holliday (Joella at the time of the documentary in 1998) who was brought up as a girl but suffered from years of depression, anxiety, self-harm and attempted suicides because, genetically, he was male.

Outside the UK

It appears that the UK is perhaps lacking in understanding DSDs and the general approach taken to managing these conditions is a long way behind other countries around the world.

Germany, for example, allows intersex babies to be considered neither a boy, nor a girl, but both. In 2015, Malta passed laws to prevent surgery being allowed to be performed on intersex people who were unable or too young to consent to the procedure themselves. In South America, the Chilean government said that doctors would be allowed to refuse a parent’s request for corrective surgery on their child without facing any legal consequences.

What does this mean for intersex patients and their families?

Essentially, we don’t yet know and we will need to await the outcome of the CQC’s involvement.

Regardless of the outcome, however, it does raise questions about performing corrective surgery on very young children before they have had chance to find out which gender most suits them. Some people suggest that we should wait until babies have grown into children or adults and are able to express their preference.

It appears that DSDs are still fairly misunderstood in the UK and, at this point in time, the information publicly available is extremely limited. Unquestionably, with this nationwide lack of understanding, it is of the utmost importance that doctors are providing families with comprehensive information about DSDs and offering proper psychological support to both patients and their families.

The Ghost of Christmas Future

As unpleasant as it is, regardless of your age or state of health, try to imagine this is the last Christmas you spend with your family.

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We all learned years ago that our Christmas presents don't magically appear under the tree. This year you can make sure when the year finally comes that your family and friends face their first Christmas without you, you have left all that you can behind for them without saying "Merry Christmas" to HM Revenue and Customs any louder than necessary, and all your assets and finances are addressed correctly to whom you want to enjoy them.

Wrapped but no labels

You can also take the time to say any final words of comfort or encouragement you want, written for your loved ones. You don't always get the chance to say those words out loud.

Imagine everything you have is wrapped up under the Christmas tree and nothing has a label on it, does one person get everything while the rest of the family looks on, relying on the charitable nature of your closest relation? Or is there a free for all?

Settle the debate

Why not take the time to become The Ghost of Christmas Future and have one last say after you're gone? Settle the debate on who gets the clock in the dining room or the watch your dad gave you when you turned 18. Losing someone at any time of the year is hard on those left behind. And it doesn't always bring out the best in people. Making your last Christmas wishes clear can bring your loved ones closure, and give you a chance to look out for them after you're gone.

Get your turkeys in a row

We want to wish you a Merry Christmas, but for those of you who've lost someone, or will lose someone, we would like to offer our help in removing as much bitterness and conflict from the process as we can. You may not think this applies to you or your loved ones, but grief doesn't always bring out the best side of us, and that's understandable. Sometimes we need our wishes written down before grief raises its head.

It’s hard to be reminded of uncomfortable subjects at what should be a happy time but putting your affairs in order, your turkeys in a row so to speak, for the New Year and any year to come is always a good idea.

We wish you Merry Christmas and a good Will for you all. Pun intended

Don't Drink and Drive or Drug Drive This Christmas

It’s that time of year with the office Christmas party on the horizon that the Police begin their drink drive, and this year drug drive, awareness campaigns.

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Most people are sensible enough not to risk driving the same evening they have been out, but many fail to realise they could still be over the legal limit the following day or beyond as the drink and possibly recreational drugs flow freely.

On average, it takes one hour for a healthy liver to process one unit of alcohol; meaning just three glasses of wine could take nearly seven hours to leave the system. However, this does depend on a number of factors, such as weight, gender, age, and even current stress levels, so it is not always easy to tell whether the alcohol will be out of your blood stream.

If you are not sure, then don't risk driving, as the consequences of a conviction nearly always leads to a ban from driving, which may cost you your job, and much more. As well as having dire consequences for your future employability.

What to do if the worse case happens

In the worst case scenario you could face a jail term of up to six months imprisonment for driving over the drug or alcohol limit.

If you find yourself in trouble then contact a nationally recognised Legal 500 Next Generation Lawyer, who is 'helpful, well-informed, sensible and good in court' and specialises in working with clients who have little to no experience of the criminal system, especially in youth matters.

Other satisfied clients add….

"Steve was great throughout the whole process, from the minute I met him at the police station to the court hearing. He was very helpful, supportive and understanding. He answered all of my questions and explained the law to me in detail so we could work out how to proceed with my case. I would highly recommend him and Lanyon Bowdler to anyone else needing a solicitor."

"The whole experience from start to finish from Stephen and his team at Lanyon Bowdler was very professional and straightforward, nothing was over complicated thoughout the process, and the end result could have not been better. I found in Stephen an understanding on how the law worked and his passion for his chosen profession showed."

So call someone you can trust for any legal advice or query, then Lanyon Bowdler’s crime and motoring team will be available 24/7 throughout the Christmas and New Year period. I can be contacted on 07776 184489 or alternatively one of the team on 07967 751277.

Health Minister Calls for Improvements in Obstetric Care in the UK

Here at Lanyon Bowdler, the clinical negligence team are passionate about our work and are committed to obtaining the best possible outcomes for our clients. Inevitably, this means winning compensation for our clients to try, as far as possible, to put them back into the position they would have been in but for the negligence.

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The same mistakes happening

Many of our clients recognise that no amount of compensation will ever bring back a loved one, rid them of a disability they will suffer from for the rest of their lives, or reverse an injury they have suffered and for those clients, there is often a bigger objective to bringing a claim. That is to ensure no one else goes through the same experience they did. That is why, with each claim we bring, we hope lessons can be learnt by the healthcare professionals involved.

It is disheartening therefore for us to see the same mistakes happening again and again to different clients, sometimes at the same hospital trust. This tells us that lessons are not being learnt. We have many cases arising from very similar facts and we commonly receive instructions from mothers whose children have sadly suffered a catastrophic brain injury during their delivery.

These mistakes not only change the lives of mother and child but also the rest of the family. A child who is injured at birth is usually dependent for life and therefore requires life-long care. These failings are consequently costing the NHS millions of pounds and it is common to see headlines detailing the huge amounts NHS Trusts are paying out each year to claimants.

Improvements will need to be made

This is why recent comments made by the Health Secretary, Jeremy Hunt are to be welcomed. Mr Hunt has recognised that there needs to be a move away from a culture of blame, and instead the focus needs to be on making improvements within the healthcare profession and learning from mistakes. Mr Hunt has highlighted this would reduce the number of deaths and brain injuries suffered in childbirth and by extension, the number of claims brought and the amounts paid out in compensation.

These comments follow on from a report published earlier this month by the National Maternity and Perinatal Audit (NMPA), which identified where improvements could be made in the care given to women and children in maternity services across the nation.

The report highlights that whilst most women have an uneventful birth, there were variations across the county. The NMPA identified that approximately one in every 80 babies requires breathing support upon delivery and out of 70,000 births each year, 1,000 babies die or are left with a severe brain injury.

Such mistakes are being made due to pressure on the NHS and a lack of staff. Mr Hunt has helpfully conceded that improvements will need to be made here through recruitment.
It is hoped that through a change in attitude and facing issues head on, improvements will be made in the healthcare profession, leading to fewer mistakes and the aim of ourselves and our clients, to prevent the same injuries happening to someone else will be achieved.

Cohabitation Awareness Week

Question - Common law husband/wife?

Question - Jointly own your home?

Question - Kids?

Question - Together over two years?

Question - Same rights as married couples?

Answer: WRONG!!!

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Forget the myths. COHABITEES DO NOT HAVE RIGHTS TO:

  • Maintenance.

  • Pension shares.

  • A different split of the home sale proceeds to reflect your needs.

  • A share of savings, investments or assets owned by your cohabitee.

Married couples enjoy these protections. In Cohabitation Awareness Week, shouldn’t you find out what you can do to protect yourself?

Telephone me, Lisa Grimmett, on 01743 280280 to find out more.

Epilepsy Drug Epilim and its Potential Impact on Pregnancy

Sodium valproate, also known by the brand name Epilim, carries a one in 10 risk of physical abnormalities in unborn babies, such as spina bifida and cleft palate, and a 40% risk of developmental issues such as autism and learning difficulties.

It is estimated that around 20,000 UK children have been harmed by the drug since it was first licensed in the UK in the 1970s.

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Women still ill Informed on the risks

The drug has been making headlines recently, as it appears that the risks associated with taking Epilim during pregnancy have been known by prescribers for over 40 years and yet even now, many women taking the drug are still unaware of the adverse effect it can have on an unborn child.

Indeed, in 1973 a “Dear Doctor” letter, designed to alert doctors about important information regarding marketed drugs, warned health professionals that sodium valproate had been teratogenic in animals, meaning that it could disturb the development of a human foetus. However, the then regulators chose not to inform patients of this fact directly as it “could give rise to fruitless anxiety”. The then Committee on Safety of Medicines therefore decided that this warning was not to be included on the drug package inserts, as then there would be no danger of patients themselves seeing it.

An article published in 1997 titled “Best practice guidelines for the management of women with epilepsy” again illustrates that healthcare professionals have long been aware of the teratogenic effects of anti-epileptic drugs. The article stated that women with epilepsy should be given pre-conception counselling, to make them aware of the consequences of teratogenicity, and ensure they are fully aware of the risks and benefits of treatment to enable them to make an informed decision about future pregnancy. It also states that counselling should start at the time they are diagnosed with epilepsy and at repeated intervals thereafter. Despite this clear guidance, it seems that some women are still ill-informed about the risks 20 years later.

Calls for stronger warnings on the drug packaging

A recent survey of 2000 women, commissioned by three charities – Young Epilepsy, Epilepsy Society and Epilepsy Action. Found that out of 475 women currently taking sodium valproate, 68% had still not received the warnings as part of the “Valproate Toolkit” launched in February 2016. This toolkit was created by the Medicines and Healthcare products Regulatory Agency (MHRA) in an attempt to try and aid healthcare providers in talking to women suffering from epilepsy about the risks of using Epilim during pregnancy, after it concluded that the guidelines on the drug’s use in women of childbearing age needed to be strengthened. However, the above study also found that one in six women taking the drug were still unaware that it could negatively affect the development of their unborn baby.

It is not as if this toolkit is the first attempt at better informing takers of Epilim of its ill effects during pregnancy. Following a review of valproate conducted by the European Medicines Agency’s (EMA) Pharmacovigilance and Risks Assessment Committee (PRAC) in November 2014, the Coordination Group for Mutual Recognition and Decentralised Procedures – Human (CMDh) agreed to strengthen the warnings on the drug’s use in pregnancy due to the risk of malformations and developmental problems.

They stated that a review of then recent studies from 2008 to 2011 had shown that up to 30 to 40% of pre-school children exposed to valproate in the womb suffered from developmental problems, including difficulty with speech and language, lower intellectual ability and memory problems. It also stated that previous data had shown that unborn children exposed to sodium valproate were also at increased risk of autistic spectrum disorder (around three times higher than in the general population) and of childhood autism (five times higher than in the general population).

Legal battle against manufacturer forced to end

An attempt to sue the Epilim manufacturer Sanofi-Aventis, under consumer protection laws that were introduced after the well-known thalidomide scandal, began in around 2004 by a number of families, who claimed the warnings about the potential risks of Epilim were inadequate in the 1990s, which caused a number of congenital abnormalities to their unborn babies, including spina bifida and deformities to their hands and feet.

However, in November 2010 around 80 families, then involved in the group action, were forced to discontinue their six year legal battle against Sanofi-Aventis when their Legal Aid funding was withdrawn. This for some highlights the flaws in the Legal Aid regime, although that is another matter entirely.

Safety review held to see if more could be done

The PRAC branch of the EMA held a public hearing on 26 September 2017 as part of a safety review of the drug, to review how effective its 2014 recommendations, discussed above, had been in minimising the risk of harm to unborn babies and to see if more could be done. The results of the above survey conducted by the three epilepsy charities were presented at the hearing, along with insight and advice from other participants, including 28 patients and patient representatives, 19 healthcare professionals and academics, 11 from the pharmaceutical industry and seven from the media.

A number of proposals were made which included strong support for a visible reminder of the risks on the outer packaging of valproate medicines, accompanied by information and discussion of the risks every time the drug is dispensed, and regular reviews for all women receiving long-term valproate. Following this public hearing the PRAC will prepare a report on measures to reduce the risk of valproate-containing medicines and set out their conclusions.

Although the recent news coverage will understandably raise concerns with pregnant women, and women of child bearing age, currently taking Epilim, it is important to note that they should not suddenly stop taking their medication unless they have been advised by their healthcare professional to do so, as stopping suddenly can increase the risk of seizures and their severity. It is therefore recommended that they instead make an appointment with their doctor to discuss their concerns and explore any possible alternative treatment options.

Liability for Abuse Caused by Foster Parents

Judgment has been given by the highest court in the land, the Supreme Court, in the case of Armes v Nottinghamshire County Council [2017 UKS C60].

Foster_Care.jpg

Miss Armes was placed into foster care by the Council with Mr & Mrs A and Mr & Mrs B during the 1980s. She was physically and emotionally abused by Mrs A and sexually abused by Mr B.

Vicarious Liability

She brought a claim for damages for the injuries including psychiatric injury which she received and consequential losses. It was accepted between the parties that the Local Authority were not negligent in the selection or supervision of the foster parents and that the abuse could not have been foreseen. The claimant argued however that the Council was nevertheless liable for the abuse, on the basis that they were vicariously liable for the wrong doing of the foster parents.

Vicarious liability usually arises in an employment context. If a fellow employee of a claimant is driving a vehicle and drives that vehicle negligently, the employer is nonetheless liable for its employee’s negligence and the injured claimant can bring the claim against the employer. This principle is known as vicarious liability and is well established law.

The claim was dismissed by both the High Court and the Court of Appeal. However, in a landmark Judgment the Supreme Court allowed the appeal, finding that the Council was vicariously liable for the abuse committed by the foster parents. An important part of the claimant’s case was that a decision taken by a Council during her childhood not by her, but by the Council, as between whether to place her in a local authority children’s home, or into the care of foster parents would be the difference between whether or not she was entitled to compensation without proving fault on the part of the local authority.

Had, for example, the claimant suffered the same abuse as she did suffer from the foster parents, in the hands of an employee employed by a children’s home, she would have been entitled to be compensated as the local authority would be vicariously liable for the acts of the employee carrying out the abuse. Until the Supreme Court’s Judgment the claimant, or those in a similar position, were prevented from any remedy from the local authority simply because the relevant abuse had been carried out by foster parents into whose care the Council had placed her.

The Council were vicarious liable for the acts of the foster parents in the Armes case for the following reasons:-

Integration and Business Activity

The local authority carried out the recruitment, selection and training of foster parents, paid their expenses and supervised the fostering. In those circumstances the foster parents were not carrying on an independent business of their own, and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried out for the benefit of the local authority.

Creation of Risk

The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children, in circumstances where close control cannot be exercised by the local authority. This renders the children particularly vulnerable to abuse.

Control

The local authority exercise a significant degree of control over the foster parents: it exercises power of approval, inspection, supervision and removal. Micro-management or a high degree of control, are not necessary for the imposition of vicarious liability.

Ability to Pay Damages

Most foster parents have insufficient means to meet a substantial award of damages whilst local authorities can more easily compensate the victims of abuse.

There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at a much greater cost.

The decision of the Supreme Court now gives parity for victims, whether their abuse was caused by a council care home employee or by a local authority appointed foster parent.

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