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Santa Claus Isn’t Coming to Town: A Cardiac Cautionary Tale

Introduction

Now that Christmas has come, it is that time where people come together, share stories old and new, and enjoy food and drink together. It is, however, a time where hospitals come under increasing pressure due to many a familiar festive illness and injury. It is now well accepted that there is an increase in death rates the colder it gets. Respiratory diseases flare up and, for the purposes of this blog, cardiovascular admission rates increase over the festive period.

To outline the issues around this time of year is with a tale. A cardiac cautionary tale. A story of the big man in red himself, Mr Santa Claus.

The facts

On 24 December, Mr Claus was travelling on his sleigh, making stops at every single house to drop gifts for all and to fill up on his pre-requisites of milk, cookies, and brandy. By 3am, he has visited many houses and gorged on many a festive treat. After stopping off at the next house on the list, this time to leave a lump of coal, he starts to fall ill. Not wanting to risk it, he decides to take a detour to the local hospital, Winter Wonderland Hospital. On admission to the hospital, Mr Claus is taken to Accident & Emergency. A past medical history notes the following:

1. A high BMI and poorly controlled diet characterised by copious amounts of milk, brandy, and cookies,

2. Profuse sweating,

3. Long periods of remaining stationary as a result of extended travelling on his sleigh,

4. A previous resolving chest pain in the last 12 hours.

The decision is made that his symptoms are just aches and pains. No urgent follow up or investigations are required. This was a fatal error. Mr Claus is triaged back to Accident & Emergency. He does not receive an ECG or blood tests. Three hours later, another patient notices Mr Claus slumped to the side. He has suffered a totally avoidable heart attack.

What is a myocardial infarction?

A myocardial infarction (MI) is more commonly known as a heart attack. This is where plaque inside one of the coronary arteries builds up which can lead to the cessation of blood flow to the myocardium. This can have grave, and often fatal, consequences if left untreated.

What are the guidelines?

The NICE Guidelines (GC95) make clear that in the presence of previous chest pain, initial assessment should include considering the following points:

1. Whether there was current or previous chest pain in the last 12 hours,

2. The history of that chest pain,

3. The presence of cardiovascular risk factors,

4. Any history of heart disease,

5. Previous investigations.

In particular, pain in the chest and or other areas lasting longer than 15 minutes is considered to be a concern. There may also be nausea, vomiting, sweating, and breathlessness. If, following such an examination, an MI is expected then this must be treated as an emergency. Pain relief should be offered as soon as possible, particularly if a MI is suspected. A single loading does of 300mg of aspirin should be given as soon as possible unless there is clear evidence to the contrary.

The usual diagnostic pathway for a suspected MI or other acute coronary conditions is to take a 12-lead ECG and a blood test. The ECG will look for features that indicate an MI including changes to particular waves on the ECG. The blood test is intended to indicate any biochemical markers that are suggestive of an MI such as a raised troponin level. Troponin is one of the regulatory proteins that is released into the blood stream in the event of an MI.

If an MI is expected, there are two options for treating the symptoms. First, medical management by providing either aspirin and/or clopidogrel. Second, reperfusion therapy which is where the blood flow is restored through a combination of drugs, thrombolytics, and/or surgery. The most common procedure is called a percutaneous coronary intervention (PCI) where a catheter is used to place a stent to open up the vessel narrowed by the plaque.

What makes Mr Claus’ cardiology treatment negligent?

A common failure is the failure to diagnose an MI in spite of clear warning signs. In Mr Claus’ case, the poor diet and BMI are considered to be risk factors that increase the possibility of plaque build-up in the arteries pumping blood to the heart. Chest pain is the classic sign of an MI as well as profuse sweating. Even if an ECG was performed, there are still risks of a failure to correctly interpret the ECG.

In law, the test for determining whether there has been failure is whether the actions of the hospital when triaging a patient fell below the standard considered by a reasonable body of medical opinion. If the failure on triage was considered to be a breach of duty, the next step is to consider whether the mistake caused the injury sustained. For example, if Mr Claus had received either the medical treatment or the surgical treatment, such as the PCI, the outcome would have been prevented. Only with both the breach of duty and the thereafter flowing causation can there be a case. Whilst of course, the tragedy of Mr Claus is fictitious in this scenario, it is crucial for anyone who suspects their cardiology treatment was wrong to contact a medical negligence specialist for advice.

What If Father Christmas Lost Capacity To Manage His Property and Affairs?

It’s that time of year where festivities are in full flow both at home and work. People are busy preparing for gatherings with their loved ones over the Christmas break, but no one is busier at this time of year than Father Christmas and his wife Mrs Christmas.

Whilst capacity is an issue most would not wish to have to deal with at any time of year, any capacity issues may be at the forefront for some this Christmas.

I will set the scene.

It’s the week before Christmas and Father Christmas and Mrs Christmas have been busy finalising their Christmas Eve plans, but Mrs Christmas notes that throughout the year Father Christmas has been having some problems making financial decisions and ensuring the bills are all paid. They have both been so busy, they’ve not had chance to seek advice and have just kept going as best they can.

Christmas Eve comes and goes and the presents have all been delivered although Mrs Christmas has had to do much of the planning this year, ensuring all the finances are in order to make sure they can provide gifts for the children next year. They sit down on Christmas day with their family and Mrs Christmas is pulled aside later by her children who are a bit worried about their father and his ability to make financial decisions. Father Christmas has loudly proclaimed through lunch how he wishes to give the children even more expensive gifts next year and isn’t worried if they don’t have the funds to fuel the workshop or pay the elves.

Mrs Christmas explains that Father Christmas has had some difficulties throughout the year and she has had to take over organising their finances. She had been so busy that it had slipped to the back of her mind, however, she feels that they cannot continue ignoring this, in fact she is concerned they have not prepared a Lasting Power of Attorney (LPA) and therefore she simply isn’t sure what can be done.

What happens if someone lacks capacity to manage their property and affairs?

Most people will be aware of Lasting Powers of Attorney but they will not be familiar with deputyships. If someone is suspected to lack capacity to manage their property and affairs the first step is for their capacity to be assessed.

Once a capacity assessment has been completed if that person is deemed to lack capacity to manage their property and affairs then a deputyship application would need to be made to the Court of Protection. If the capacity assessment determines a person does have capacity to manage their property and affairs, it would also need to be considered whether they have capacity to create a LPA.

When deciding who should be deputy, loved ones would need to consider whether this is something they would be able to manage on top of their own financial affairs, or whether it would be a better option for a professional deputy to be appointed. We offer advice on the merits of both lay applications (applications where a family member or members apply to be appointed) and a professional application, where members of the firm apply to be appointed. This advice is tailored to each client on an individual basis. We understand that a one size fits all approach does not work for people; we always ensure any advice is tailored to your specific circumstances.

If you would like more information regarding LPAs or deputyship applications please do not hesitate to contact us on 01743 280280 or at info@lblaw.co.uk.

The Abolishment of IHT That Never Was...

The slashing of Inheritance Tax (IHT) in the 2023 Autumn Budget failed to materialise as anticipated by the media. It had been suggested that the Chancellor either intended to cut the 40% rate or raise the Inheritance Tax threshold.

It is widely believed that Jeremy Hunt made this U-turn due to the IHT levy set to raise nearly £10 billion a year by the end of the decade. The Office for Budget Responsibility revealed that the £7.1 billion tax levy in 2022-23 is forecast to hit £9.8 billion by 2028-29, a 38% increase.

What is IHT?

In very simple and basic terms, IHT is a tax on the estate (the property, money and possessions) of someone who has died.

There is normally no IHT to pay if either:

• The value of your estate is below the £325,000 threshold, or

• You leave everything above the £325,000 threshold to your spouse, civil partner, a charity or a community amateur sports club

You may still need to report the estate’s value even if it’s below the threshold.

If you gift your home (via your will) to your children (including adopted, foster or stepchildren) or grandchildren, your threshold can increase to £500,000 (if certain criteria are met).

If you’re married or in a civil partnership and your estate is worth less than your threshold, any unused threshold can be added to your partner’s threshold when you die.

Inheritance tax rates

The standard IHT rate is 40%. This is only charged on the part of your estate that is above the threshold.

Example

Your estate (which does not include a property) is worth £400,000 and your tax-free threshold is £325,000. The IHT charged will be 40% of £75,000 (£400,000 minus £325,000).

The estate can pay IHT at a reduced 36% rate on some assets if you leave 10% or more of the ‘net value’ to charity in your will. (The net value is the estate’s total value minus any debts.)

Reliefs and exemptions

Some gifts you make while you are alive may be taxed after your death. Depending on when you gave the gift, ‘taper relief’ might mean the IHT charged on the gift is less than 40%.

Other reliefs, such as Business Property Relief and Agricultural Property Relief allow some assets to be passed on free of IHT or with a reduced bill. 

Who pays the tax to HMRC?

Funds from your estate are used to pay IHT to HM Revenue and Customs (HMRC). This is done by the person dealing with the estate (called the ‘executor’, if there is a will).

Your beneficiaries (the people who inherit your estate) do not normally pay tax on their inheritance. They may have related taxes to pay, for example if they get rental income from a house left to them in a will.

People you give gifts to might have to pay IHT, but only if you give away more than £325,000 and die within seven years of those gifts.

How could the burden of IHT be eased in the future by a Government?

Reduce the rate of IHT from 40% to 20%. It has been estimated this could save the taxpayer £15.4 billion over the next three years.

The current IHT threshold has not been increased since 2009 when inflation was considerably lower. The IHT threshold could be increased to £500,000 for every individual rather than simply increasing the threshold for those leaving their home to their children. Raising the threshold would mean than an estimated 12,500 estates would not be liable to IHT.

What can I do in the meantime?

Lanyon Bowdler recommend reviewing your will at least every three to five years to ensure that it still caters for your needs and wishes.

Our Private Client Team is highly experienced and ranked as Tier Two in The Legal 500 and Band One in Chambers UK HNW guide. With extensive experience in tax planning and wealth preservation we can ensure that your will is prepared in the most tax efficient manner taking the ever changing tax laws, including IHT, into consideration.

Gender Pain Bias: What a Pain In The Lass!

‘Gender pain bias’ refers to the phenomenon in which a woman’s pain is poorly understood and often underestimated and mistreated in comparison to men’s pain, due to gender stereotypes and biases. These gender stereotypes expose a significant gender bias, leading to disparities in medical treatment and intervention.

Despite one in six women experiencing severe pain every day, they can often be perceived by doctors to be oversensitive to pain and exaggerate their symptoms. This belief not only can lead to under-treatment but also illnesses and diseases being misdiagnosed or even missed entirely.

There is a false belief that women have a lower pain threshold than men and based on this belief, men are more likely to be taken seriously when reporting pain to their doctor. This can have a devastating impact for women if a medical professional shuts-down their symptoms and perception of pain.

Statistically, women are more likely than men to report their pain to a doctor, which begs the question: why does society encourage men to speak to someone but then downplay women when they do the same? In the UK, a survey of 5,100 women and men revealed that 56% of women feel their pain is ignored or dismissed by medical professionals. Studies have shown that this is often because women are perceived as being more expressive, such that their pain is often discounted (in a ‘the boy who cried wolf’ type of way). In contrast, men can be perceived to be more stoic when suffering pain, therefore there can be an assumption that they must be in absolute agony to have finally reported it.

A prime example of this bias is when women report issues with their menstrual cycle to their GP – a common issue and yet one that is commonly misunderstood. Perhaps a young girl is having excruciating pain and is unable to attend school or can’t come to work because she can’t stand up without crying and the only thing that helps her is a boiling hot water bottle which leaves a heat rash on her belly. Despite clearly being in pain and suffering, a GP may not offer a sympathetic ear as ‘every girl gets a period’ and recommend taking pain-killers and told to “get on with it’ because ‘periods are meant to hurt’. But what happens if there is actually something sinister going on? What if, by dismissing those concerns, a completely treatable disease becomes significantly worse, or even incurable?

It might sound like I am being cynical but sadly I have personal experience of my pain symptoms not being properly understood. I suffered with excruciating pain for a long time, leading to my inability to attend work, social events or having to skip commuting to college and university because I simply could not stand up. I attended my local GP over a long time and was constantly met with glazed over eyes just waiting for me to stop complaining, swiftly followed by that same discouraging phrase every time, ‘we will monitor your symptoms and see how you get on’. After many (very many) months of ‘monitoring my symptoms’ I put my foot down and was finally referred to a specialist.

Luckily (or perhaps unluckily) the specialist explained that she saw this all the time. A mildly reassuring, yet frightening phrase - one that made me feel like I was finally in the right hands, yet at the same time angry that this happens to women all the time. So when I was asked to write this blog post, I immediately knew this was the topic I wanted to write about.

I had always known that the pain I was in was not, in fact, normal. I finally felt calm and reassured that someone was actually listening to me and that my pain was real. Following my consultation with the specialist, I underwent surgery, and I’m pleased to say this has brought me relief from my symptoms.

But, I did have to ask myself – why did no one believe just how much pain I was really in? Why did I have to demand to be taken seriously? Unfortunately, this is the case for many women up and down the country. It may be uncomfortable for a patient to challenge a doctor, but they should feel empowered to say something when they know something is not right.

Can I Sue if I Signed? - Waivers, Personal Injury Claims and Extreme Sports

Have you been known to engage in extreme sports or adventure activities? If so, you would be forgiven if you thought that signing a waiver or consent form before-hand discharges your host from responsibility for any injuries you sustain in the course of the activity. However, in the wake of two former trampoline park bosses being charged with health & safety offences it is important to understand that signing a waiver does not prevent a person from claiming compensation where the venue or event holders are found to have been negligent.

What is a waiver?

Many will be familiar with being asked to sign a waiver or consent form prior to being able to, for example, taking part in a sporting event or adventure activity, or having a day out at an adventure park. The purpose of this document is to make sure you understand and acknowledge that there are risks of injury associated with the activity, which you may not have already appreciated as an inherent risk of sports or physical activity. However, a waiver does not remove an individual or business’s duty of care to ensure that you are not unnecessarily exposed to risks that might harm you.

Why do they ask me to sign it then?

There is an inherent risk in any sporting or physical activity and not all times you suffer injury will it be someone else’s fault. By way of example, if you attend a trampoline or adventure park and exercise beyond your capability causing muscle strain, you likely have acknowledged the risk of this injury as part and parcel of the experience under the waiver and as such will probably not be able to claim against the park for this, provided the injury was not their fault. However, if the trampoline park is over-crowded and unsupervised, the equipment faulty, and staff have no health and safety training, and you sustain an injury because of any one of these things, the park may have breached its duty of care and could still be found negligent, regardless of whether a waiver has been signed or not.

One of the main reasons why you are often asked to sign a waiver prior to completing an activity is for confusion and prevention, as most people think that once they sign the waiver they cannot bring a claim. However, any terms within the waiver or contract attempting to exclude liability for personal injury or death resulting from negligence are in fact unenforceable. If you are in doubt about whether an individual or business is at fault, you should speak with a personal injury lawyer.

What is the law about waivers?

Under the Unfair Contract Terms Act 1977 (“UCTA”), you cannot by reference to any contract term or to a notice given, either generally or otherwise, exclude or restrict liability for death or personal injury resulting from negligence. It should be noted that an individual or business must have caused you injury as a result of their negligence in order to bring a successful claim, but this will come as a surprise to many. The Act applies to both individual persons and businesses and will, for the most part, render any such term void. Further, a person who has agreed to this exclusion cannot, by reason of their agreement alone, be said to have knowingly and voluntarily assumed risk.

What now?

Following an investigation of 270 incidents over a seven week period, the former bosses of Flip Out Chester have pleaded guilty to health and safety offences. This illustrates that, whilst places of high intensity activity are never going to be completely risk-free, this does not absolve venues of their duty to ensure risks are mitigated and their customers protected.

If you or a loved one have sustained an injury in circumstances like these, we understand what a difficult time this must be for you and how the prospect of claiming against large organisations can be intimidating. Should you wish to discuss an injury you think may have been sustained through negligence, please contact our experienced team for more information.

You can read more about the Flip Out cases here and here.

For more information about trampolining injuries, please see our previous blog: What Goes Up Must Come Down: The Reality of Trampolining Incidents.

What is Melanoma? Why is Early Diagnosis Key?

Melanoma is one of the most common cancers diagnosed in people aged 15 - 34 and cases are on the rise, with just under 13,000 people in the UK being diagnosed per year.

Melanoma is a type of skin cancer. It is more aggressive than other forms of skin cancer and can spread to other areas of the body quickly, developing in existing moles on the skin or in otherwise normal looking skin.

The main cause of melanoma is ultraviolet light associated with exposure of skin to the sun and sunbed use.

The chances of getting melanoma are often higher if you have a large number of existing moles, pale skin and if you have your own previous or a family history of skin cancer. Melanoma is slightly more common in women than men, and is more common in older people. Women are most likely to develop melanoma on the legs, and in men on the chest area and back. Melanoma can, however, appear anywhere on the body, with some rarer types affecting the eyes, soles of the feet, palms of the hands and genitals.

A correct diagnosis of melanoma, with the instigation of timely and appropriate treatment, is key to ensure the best outcome for an individual. If left untreated, a late diagnosis can mean the difference between making a full recovery and suffering spread of the cancer and/or development of malignant melanoma of which the prognosis is much more severe and sadly even fatal.

Symptoms of Melanoma. How to check and what to do!

Check, check and check again! It can be difficult to assess changes in your skin, but if you think an existing mole, an existing freckle, or previously normal-looking skin has changed, the ABCDE checklist can help to explain what to be looking for.

A - Asymmetry
Melanomas are most likely to be an irregular shape or asymmetrical, whereas ordinary moles are usually symmetrical with both halves looking the same.
B - Border
Melanomas are more likely to be uneven and may have a blurred or irregular border with jagged edges. Ordinary moles are usually round with a well-defined, clear, smooth-edged border.
C - Colour
Melanomas tend to be more than one colour or a mix of different shades. For example brown mixed with a black, red, pink, white, blue or even grey tint. Normal moles tend to be one shade of brown or a single colour.
D - Diameter (width)
Melanomas are usually larger and more than 6mm wide, whereas normal moles are ordinarily usually smaller.
E - Evolving (changing)
Normal moles do not usually change over time. A mole which may be a melanoma may change over time and become larger and change in shape or colour. This can include a change in shape with the affected area becoming raised or dome-shaped.

Other signs to consider are if an existing mole becomes itchy, is bleeding, crusty, swollen or sore.

Should you think any of the ABCDE criteria apply or if you have any other concerns, you should contact your GP as soon as possible.

What treatment is available to me?

Your GP should physically examine you; take a history of your concerns, and consider whether a referral to a specialist dermatology unit at hospital is necessary.

This may, in the first instance, mean a photograph of the affected area is sent to a dermatologist to review and report back to your GP with next steps.

Alternatively, you may be referred to hospital for an appointment with a dermatologist face-to-face should the GP consider that your condition needs to be investigated straight away. You should be given an appointment with a two week time frame if this is the case.

If a specialist at hospital determines that the area is concerning they may surgically remove this in minor surgery, together with a small border of skin around this area. This would then be sent for testing to determine whether the area is a melanoma. If not, you likely shall require no further treatment. If testing is positive for melanoma, the specialist will advise accordingly but you would typically immediately require a further excision of skin and further testing to consider any spread of the disease.

What if I think a melanoma diagnosis has been missed or delayed? Can I make a claim?

Firstly, do not further delay in seeking any further medical assistance and treatment required to deal with your condition.

Should you consider that any element of your diagnosis and/or treatment has been missed or delayed then you may have a potential claim for clinical negligence and should consider seeking the appropriate legal advice. Specialist advice can include a close examination of your medical records and potentially the instruction of medical experts to consider the facts of your case. Specifically a medical expert, such as a GP and/or a specialist cancer oncologist, may be instructed to comment upon any potential breaches of duty and to further comment upon whether any delay or missed diagnosis has made a difference to your outcome i.e. the staging of cancer.

Lanyon Bowdler’s Clinical Negligence Team has a wealth of experience in dealing with cases concerning melanoma and other skin cancers and includes members of the Law Society’s Clinical Negligence Panel and AvMA panel. Please get in touch to discuss matters further with a member of our team who shall guide you through the process sensitively.

Credit to www.nhs.uk and The Christie NHS Foundation Trust website – 16 November 2023

Rehabilitation of Offenders

The Rehabilitation of Offenders Act 1974 (“the Act”) is intended to allow the rehabilitation into employment of reformed offenders.

Once a caution or conviction has become spent under the Act, unless an exception applies, it need not be disclosed, including when completing an application for employment or at a job interview.

The exceptions to this rule are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. They mainly relate to employment in particularly sensitive areas such as work with children, work in law enforcement and the legal system, and high level financial positions.

On 28 October 2023, the Act was amended to shorten the length of time for which some criminal convictions must be declared to employers. The changes reduce the rehabilitation period for less serious offences, provided no further offence is committed in that time and introduce a rehabilitation period for custodial sentences of over four years, which were previously unable to become "spent". The reforms do not apply to serious sexual, violent, or terrorist offences which are never able to be spent or otherwise to roles where basic or enhanced DBS checks are required.

The position for adult offenders is as follows.

Type of conviction: Custodial sentence of over 4 years

Previous length of time required to disclose: Never spent

New length of time required to disclose: 7 years, although certain offences are exempt and never spent including offences classified in the Sentencing Code as ‘serious violent, sexual and terrorism offences’

Type of conviction: Custodial sentence of 2 ½ years - 4 years

Previous length of time required to disclose: 7 years

New length of time required to disclose: 4 years

Type of conviction: Custodial sentence of 1 - 2 ½ years

Previous length of time required to disclose: 4 years

New length of time required to disclose: 4 years

Type of conviction: Custodial sentence of 6 months - 1 year

Previous length of time required to disclose: 4 years

New length of time required to disclose: 1 year

Type of conviction: Custodial sentence of up to six months

Previous length of time required to disclose: 2 years

New length of time required to disclose: 1 year

The new time periods are extended in the event of re-offending during the declaration period. Any new conviction attracts its own disclosure period and both the previous conviction and new conviction need to be declared until the end of the original conviction’s active period or, if later, the end of the new disclosure period applied to the more recent conviction.

For those under 18 at the time of the conviction, half the adult rehabilitation period applies.

It remains that convictions subject to (Adult) Community Orders and Youth Rehabilitation Orders become spent on the last day on which the order has effect.

Employer’s might wish to note, however, that although the Act states that an employer cannot refuse to employ or dismiss someone because they have a spent caution or conviction unless an exception applies, there is no penalty attached to that, and the law does not provide any individual who is refused employment contrary to the Act with any entitlement to compensation or any other remedy.

However, as failure to disclose the detail or existence of spent convictions is not a lawful ground for dismissal, an employer cannot rely on such a failure as grounds for dismissal without notice; and any employee dismissed for such a reason after they have acquired unfair dismissal protection (which is currently after two years’ continuous employment) will be unfairly dismissed.

Navigating the Court of Protection: Selling Property to Cover Care Fees

As the population continues to age, the issue of financing long-term care for seniors has become an increasingly prevalent concern. One solution that families often turn to is selling property to cover the costs of care. However, when individuals lack the capacity to make decisions about their property and finances, due to mental incapacity, and they have not created a lasting power of attorney giving authority to deal with the sale of their property, the Court of Protection steps are required to authorise the sale.

Who is the Court of Protection?
The Court of Protection is a superior court and has jurisdiction over the property, financial affairs and personal welfare on behalf of individuals, who are deemed to lack mental capacity to make decisions for themselves. When it comes to selling property to cover care fees, the Court of Protection plays a crucial role in ensuring that the process is carried out in the best interests of the individual.

The Sale of Property to Cover Care Fees:

1. Assessment of Mental Capacity: The first step in the process involves an assessment of the individual's mental capacity. This assessment is typically carried out by medical professionals and social workers. If the individual is found to lack capacity, the Court of Protection becomes responsible for making decisions regarding their property and finances.

2. Application to the Court: In order to sell the property to cover care fees, an application must be made to the Court of Protection. This application is usually submitted by a family member or a trusted individual known as a "deputy." The application outlines the reasons for the sale and provides details about the property and care fees.

3. Best Interests: The Court of Protection’s primary consideration is the best interests of the individual. This means that any decision made regarding the sale of property must be in the individual’s best interests, taking into account their wishes and feelings as much as possible, along with any views expressed by family members or healthcare professionals.

4. Valuation and Sale: The Court will often require a professional property valuation to determine the property's market value. Once the valuation is obtained, the Court may authorise the sale of the property to cover care fees. The proceeds from the sale are typically used to fund the individual's care and meet their ongoing needs.

5. Ongoing Reporting: The Court of Protection maintains ongoing oversight of the individual's financial affairs, including how the proceeds from the property sale are managed. This ensures that the person's best interests are continually protected.

Selling property to pay for care fees through the Court of Protection can be a complex and emotionally challenging process. As every case is unique, and the court’s decision will be based on specific circumstances, it is crucial to navigate this process with the best interests of the individual in mind. At Lanyon Bowdler, we act as professional deputies on a number of cases and our highly experienced Court of Protection department will be able to advise and support you when dealing with such matters, as it is essential to comply with the legal requirements and ensure that the individual’s wellbeing is upheld throughout the process. Please contact our Court of Protection Team on 01743 280280 or email info@lblaw.co.uk, use the contact form on our website or message us through Live Chat - whichever suits you.

What Is a Health & Welfare Lasting Power of Attorney (LPA) and Are Medical Staff Bound By It?

A Health & Welfare LPA gives authority to an attorney(s) in relation to the donor's (the person who has created the LPA) health and care in circumstances where they lack the capacity to make such decisions for themselves.

A Health and Welfare LPA can be used to make decisions about a number of issues, including the following:

  • a donor’s daily routine, for example washing, dressing and eating;
  • where the donor lives; and
  • what medical treatment the donor should receive – and in some cases, whether the donor should receive life sustaining medical treatment or not.

Acting as an attorney under a Health & Welfare LPA

If you are an attorney under a Health & Welfare LPA, it is important to make sure that you are clear about exactly what decision making powers have been granted to you.

This will ensure you can work with medical staff in the continuing best interests of your loved one if they become unwell.

A Health & Welfare LPA allows attorneys to make decisions about medical care, however there may still be some medical decisions which remain outside of your remit.

The Health & Welfare LPA may include very little detail, or it may go into a lot of detail about the type of decisions you have authority over.

Such detail could either direct you to make certain decisions or prevent you from making certain decisions. For example, some people may ask to be cared for in their own home, while some people may wish to refuse a blood transfusion.

If you are an attorney for someone whose Health & Welfare LPA contains guidance or instructions, you should obtain legal advice prior to making any decisions on that person’s behalf to ensure that you are not overstepping your authority, which could see you removed as an attorney by the Court of Protection.

It is important that a decision does not go against any existing law. For example an attorney cannot be granted authority for euthanasia, which is illegal in England and Wales.

Decisions about life-sustaining treatment

When making a Health & Welfare LPA, the donor must choose whether to allow their attorney to consent to or refuse life sustaining treatment if they are unable to make that decision themselves. The Donor choses either:

  • for their attorney to make that decision in which case, hopefully they had discussed their own preferences with you prior to loosing capacity, but it will be for you to decide what is for the best; o
  • for the medical professionals in charge of their care to make that decision

Why might medical staff go against your decisions?

If a donor made an advance decision (also referred to as a ‘living will’) after the date of their Health & Welfare LPA, the advance decision will take precedence. As such, you would no longer have authority for the specific decision referred to in the advance decision. Advance decisions are no longer widely used and are limited in their scope, only allowing for the refusal of treatment, and require rather specific details about the type of treatment that is to be refused.

If the attorney has not been authorised to make a certain decision, there is no effective advance directive and no other person has the power to make such a decision, medical staff will perform a “best interests” assessment. This would involve (if practicable) consulting with people involved in the care of the donor, amongst other things. It is of course possible that an attorney’s view may conflict with medical practitioners.

If a Health and Welfare LPA does grant an attorney authority to make medical decisions on another’s behalf, attorneys will always be bound by the various provisions of the Mental Capacity Act 2005. The overriding provision is to act in the best interests of the donor. If a doctor does not believe an attorney is doing so, or that an attorney is contravening the Mental Capacity Act in any other way, they can challenge your decision and bring the matter before the Court of Protection.

What can you do if medical staff go against your decision?

If you are appointed as an attorney you should always seek legal advice before taking any other course of action, to ensure that your understanding of the LPA and your authority under it are correct.

If, having sought legal advice, you remain concerned about the medical staff’s dismissal of your decision, you should arrange a meeting with them to discuss the issue. A solicitor can assist you with any correspondence or by attending the meeting with you.

Should the medical staff continue to go against your decision, despite legal advice and having met with you, you are entitled to obtain a second opinion from another doctor.

The final and most serious step to take would be to raise your concerns with the Court of Protection by way of an application asking for the court’s intervention and interpretation. For this, you would need specialist legal advice from our Court of Protection Team, as to the implications.

How we can help

Whilst some people find it awkward discussing these sensitive matters with family and friends, it is important to have these discussions to ensure that a person’s wishes are followed.

Please contact one of the members of our Private Client Department who would be happy to discuss LPAs with you, and how they may assist in the future.

Titty-trekking Doctor on a Mission to Increase Breast Cancer Awareness!

Dr Laura Land is making it her mission this Breast Cancer Awareness Month to raise as much awareness as possible of the symptoms of breast cancer.

Alongside her role as a GP in Shropshire, Dr Land has spent the last three years completing extraordinary challenges with CoppaFeel! Charity, including Tour de Mont-Blanc and trekking through the Sahara Desert. She also recently completed the "Titty Trail" for Shropshire based cancer charity Lingen Davies Cancer Fund. Raising money and support for these vital charities has been so important to Dr Land over the past few years, with the cause of Breast cancer now being so close to her heart.

Whatever your age or gender, it is really important to get to know what is normal for your body. Symptoms of breast cancer may include:

1. Changes in skin texture, e.g. puckering/dimpling
2. Swelling in your armpit or around your collarbone
3. Lumps and thickening
4. Nipple discharge
5. A sudden, unusual change in size or shape
6. Nipple inversion and changes in direction
7. A rash or crusting of the nipple or surrounding area
8. Constant, unusual pain in your breast or armpit

“As a GP, I want everyone to know that you are never wasting your doctor's time if you are concerned about breast/chest symptoms. You should always feel empowered to get checked out, and I certainly always take my patients' concerns about breast/chest changes very seriously. Even if it turns out that it was nothing to worry about, at least you'll have that peace of mind.” says Dr Land.

If found early, breast cancer is very treatable and survival rates are higher. Dr Land explains that checking your chest is simple "Don't worry about looking or feeling for cancer, what we encourage people to do is to check themselves regularly (we suggest once a month) so that you become really familiar with what's normal for you. Then, if something does change, you'll know that it feels or looks different".

For lots more information about checking your chest regularly and what abnormalities you're looking for, head to https://coppafeel.org they can even send you monthly reminders to check your chest if you need a prompt! Just sign up via their website.

It is clear that raising awareness is a passion and Dr Land will continue to share her message and raise funds way beyond this Breast Cancer Awareness Month: “I will never stop banging this drum, and I will never stop helping charities raise money for these special causes. One in two people will get cancer. One in eight women will get breast cancer. I have some very special women in my life for whom these statistics are not just numbers, they are reality. The earlier any cancer is found, the better the chances of survival and I am therefore so passionate about empowering everyone to check themselves regularly, get to know their body, and make sure they go to their GP to get assessed if they have any concerns at all."

From Work Experience to a Training Contract with Lanyon Bowdler

By Nicole Cousins - we look forward to welcoming Nicole when she starts as a trainee with us in September 2024.

Work experience is an extremely valuable tool for an aspiring solicitor who wishes to learn more about a career in law and eventually apply for a training contract. Whilst any placement is bound to be helpful, completing work experience with a firm that you later apply to definitely helps to give your application an edge. I will be joining Lanyon Bowdler as a trainee solicitor and I hope to highlight how my work experience with the firm, completed whilst I was still in school, contributed to my successful training contract application.

My work experience placement not only gave me a more general insight into a legal career but also a glimpse into life at Lanyon Bowdler more specifically. From my week spent with the firm I was able to see firsthand the friendly atmosphere both towards colleagues and clients and I gained a more detailed understanding of the workings of several different departments. This is priceless information when it comes to a training contract application as, as well as making my application more catered to Lanyon Bowdler, I felt passionate and confident in my decision having seen what it was like to work for the firm. This confidence made the whole application process much less daunting. Furthermore, when it came to the training contract interview attending the premises before and meeting some of my interviewers previously really helped me to stay relaxed and focused. It was also helpful that, having interviewed for my work experience placement, this was not my first law related interview nor my first interview with Lanyon Bowdler.

Whilst on my work experience, I got the chance to work with five different departments. In my future training contract application this meant that I was able to discuss the different areas that sparked my interest and that I had met a range of people, often offering advice on how to further myself and my future career prospects. Especially valuable was the time I spent with current trainee solicitors at the time who, having recently completed the application process, were able to share their experiences and inspire me to reach the same position. This left me with a more detailed idea of the application process and what a successful applicant looks like. Even following my placement and as I progressed to study law at university, the support from Lanyon Bowdler was ongoing and I turned to those I had met during my time for advice surrounding my future legal career. This helped me to make decisions regarding both future training contract applications and my general direction in life as I heard from those who had been in the same position as me previously.

Following such a positive experience of the firm, when it came to finally making my training contract application Lanyon Bowdler was a natural choice and I felt equipped to demonstrate my knowledge of the firm and genuine interest in working with them. I am very grateful that I had this opportunity, and I would encourage those interested in a career with Lanyon Bowdler in the future to apply for the work experience placement and put themselves on the front foot.

For more information regarding work experience and training contracts please see our Careers page.

Important Ruling: Holiday Pay

The law relating to employee holidays in England and Wales is complex – but it has just become a little simpler, in favour of employees.

Paid holiday entitlement

The starting point when determining an employee’s entitlement to holidays and holiday pay is the contract of employment – but whatever the contract states, this cannot be less generous than the statutory minimum entitlement.

(For agricultural workers in Wales, and also those in England who commenced employment before 1 October 2013 and whose holiday entitlement is still in accordance with the agricultural wages regime, the applicable Agricultural Wages Order will also have a bearing on minimum holiday entitlement, but that falls outside the scope of this article.)

The statutory minimum holiday entitlement under the Working Time Regulations 1998 is 5.6 weeks (28 days for a full-time worker), and there are different rules for calculating holiday pay for different parts of that entitlement.

In the case of four weeks of holiday in each holiday year (the minimum holiday entitlement stemming from European law – 20 days for a full-time worker), holiday pay cannot be calculated based on basic pay alone, but must be based on normal remuneration, including commission, overtime pay (as long as it is sufficiently regular) and other allowances earned during the last 52 weeks during which at any time the employee worked.

In the case of 1.6 weeks of holiday, holiday pay entitlement is determined in accordance with the Employment Rights Act 1996 as follows:

  • Generally, for a worker who has normal working hours, holiday pay will be the normal basic pay, disregarding any overtime hours (except guaranteed, compulsory overtime) and without any additional bonuses, commission payments, overtime premiums or allowances.
  • For workers with normal working hours whose pay varies by reference to the days on which the work is done, the times of day at which it is done or the amount of work done, holiday pay is calculated using an average of all the worker's remuneration for working hours over the last 12 weeks before the week in which the holiday began during which at any time the employee worked, excluding overtime premia.
  • Holiday pay is calculated for workers who have no normal working hours using an average of all the worker's remuneration for working hours over the last 12 weeks before the holiday began during which at any time the employee worked

Holiday pay claims

Workers can claim for underpaid holiday pay going back as far as two years from the date of a claim as unlawful deductions from wages in the Employment Tribunals.

Employees are required to commence Acas early conciliation within three months of the last in a "series of deductions", and then (in the absence of a settlement) commence proceedings within the applicable time limit (which will not be less than one month after the end of the early conciliation process).

(Workers also have up to six years to claim holiday pay owing under their contracts of employment in the courts, but most holiday pay claims relate to statutory minimum entitlements, which can only be brought in the Employment Tribunals.)

In 2014 in a case called Bear Scotland Ltd v Fulton, the Employment Appeal Tribunal decided that there would be a break in the chain of any "series of deductions" where a period of more than three months has elapsed between the deductions.

This, of course, limited the scope for workers to make substantial retrospective claims for underpaid holiday: an employee might have been paid less than their statutory entitlement for every holiday taken over a two year period, but if over that time there was a gap of more than three months between holidays (or, to be specific, the pay dates relating to holidays), that would break the series of deductions, and a claim could not extend back beyond that break.

In 2019, the Northern Ireland Court of Appeal reached a different view on this point in a case called Chief Constable of the Police Service of Northern Ireland v Agnew: it did not consider that whether there was a three-month gap between deductions was relevant to the consideration as to whether they were part of the same series. That decision was only binding in Northern Ireland, however.

What has changed?

The decision in Agnew has now been upheld in the Supreme Court, and that decision is binding throughout the UK.

The Supreme Court has decided that whether a claim in respect of two or more deductions is in respect of a series of deductions is a question of fact, and in answering that question all relevant circumstances must be taken into account, including their similarities and differences; their frequency, size and impact; how they came to be made and applied; what links them together; and any other relevant circumstances – but whether the deductions were more than three months apart is no longer relevant.

For advice relating to holiday pay, or any other employment-related legal issues, please contact our Employment Law Team.

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