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Group B Streptococcus

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

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

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

Infection in newborns may be divided into two types:

Early Onset Disease (EOD)

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

Late Onset Disease (LOD)

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

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

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

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

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

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

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

For more information, please contact our clinical negligence team.

Wingardium Lawyerosa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COVID-19 & The Coroner’s Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For more information, please contact our medical negligence team.

No Fault Divorce New Legislation

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

New Divorce Process

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

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

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

Terminology

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

Time Estimate

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

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

National Bereaved Parents Day – 03 July 2021

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

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

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

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

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

Other support available:

SANDS, still birth and neonatal death charity;

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

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

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

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

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

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

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

Investigations

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

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

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

CQC Findings

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

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

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

Lessons to Be Learnt

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

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

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

A Collaborative Approach to Resolving Financial and Children Issues

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

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

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

How to Retain a Collaborative Lawyer.

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

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

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

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

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

Same Sex Relationships – Wills and Inheritance

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

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

Same Sex Couples

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

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

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

This mirrors the situation with opposite sex couples.

Children of Same Sex Couples

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

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

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

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

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

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

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

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

Children Conceived via Fertility Treatment

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

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

Children Conceived via Surrogacy

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

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

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

Summary

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

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

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

Congenital Diaphragmatic Hernia

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

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

What is Congenital Diaphragmatic Hernia (CDH)?

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

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

When Can It Be Diagnosed?

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

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

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

Treatment

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

Ongoing Problems

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

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

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

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

Back Behind the Wheel

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

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

How Can Driving Be Affected by Brain Injury?

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

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

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

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

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

Who Do I Need to Inform about My Brain Injury?

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

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

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

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

If You Are Allowed to Keep Your Licence

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

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

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

Happy, safe, driving!

Private Law – Vaccination of Children

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

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

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

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

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

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

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

Call for Equality of Arms at Inquests for Bereaved Families

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

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

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

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

The report also made other recommendations, such as:

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

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

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

  • for a charter of rights for bereaved people.

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

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

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