Key Legal Developments update – February 2017

We’ve highlighted the latest key legal developments within healthcare.

The below snapshot of information covers land mark rulings from mental health to inquests and a number of other interesting developments in the legal world.

Deprivation of liberty in acute medical settings

R (LF) v Senior Coroner for Inner South London [2017] EWCA Civ 31

MF, a young woman with a severe learning disability, died in an intensive care unit.

The Coroner decided that he was not required to hear the inquest in the presence of a jury as MF was not in ‘state detention’ for the purposes of s7 of the Coroner’s and Justice Act 2009 (CJA) at the time of her death. MF’s family judicially reviewed the Coroner’s decision not to sit with a jury arguing that MF was in state detention as she was deprived of her liberty at the time of her death on ICU.

The Court of Appeal concluded that in general patients receiving treatment for physical illness in a ICU setting are not deprived of their liberty.

Withdrawal of care

Lindsey Briggs v Paul Briggs (by his litigation friend, the Official Solicitor) & Ors

The Court held that a man in MCS with the possibility of improvement should have his continuous artificial nutrition and hydration withdrawn as it was felt that, were he to have had capacity, he would not have wanted to continue to live in such a way.

This case supports the premise established in the case of Aintree that the purported wishes of P are to be given very heavy weight in determining what is in his best interests.

It further adds to the well-established case law in this area and, in contradicting some of those cases that have gone previously, emphasises the fact specific nature of these cases.

Bed-blocking

Sussex Community NHS Foundation Trust v Price

The Court granted an NHS trust’s application for possession of a bedroom occupied by a patient in a hospital care unit. P was admitted to the rehabilitation facility with a broken femur. She had recovered and medically fit for discharge.

The High Court held that the trust had clearly established the right to possession of the bedroom occupied by P. It had attempted to engage with P but she had refused to communicate with the trust or the Local Authority, and there was no reason why she could not return home. The Trust was also awarded £8,000 in costs.

Many Trusts are likely to have patients refusing to leave. Trusts should work closely with the local authority to resolve the issue for issuing proceedings. However, if discharge arrangements are being obstructed by a patient’s refusal to engage, this evidence can be used in support of the application for possession.

Inquest law

R (Tainton) v HM Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin)

A prisoner at HMP Preston died from mestastisised cancer of the oesophagus. Despite reporting respiratory symptoms and weight loss, the relevant NHS Trust did not refer him for medical review for 6 months.

At inquest, the Coroner determined that a jury could not safely consider whether the delay in diagnosis led to the prisoner’s death due to a lack of factual evidence. The family’s representatives brought a claim for judicial review citing that the Coroner should have left the issue to the jury.

The Court determined that the Coroner appropriately directed the jury. It also found that the Coroner should have included the shortcomings in care (admitted and agreed by the NHS Trust at the inquest) on the Record of Inquest – even though they did not relate to the cause of death.

This case raises the prospect that juries may be able to consider a wide range of ‘non-causative’ factors  on the inquest record.

MCA v MHA – DOLS ineligiblity

BHCC v KD [2016] EWCOP B2

KD had a long history of schizophrenia and slowly progressive dementia. She had been detained under s3 MHA 1983 on a number of occasions and was deprived of her liberty in a care home under a standard authorisation. The issue was whether she was ineligible for a DOLS. She was taking Clozapine which required regular blood tests and medication was being provided covertly. There was a risk that if she did not have a DOLS in place the only way she would receive treatment would be by admission to hospital under s3 MHA and all agreed that would not be in her best interests.

Farquhar LJ noted the issue was whether the desired goal could be achieved under the MCA or whether KD was ineligible to be deprived of her liberty by this act, as per Schedule 1A of the Act. He concluded that she did not fall within the scope of the MHA and therefore she was not ineligible for DOLS.

Inherent Jurisdiction

Al-Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen) [2016] EWHC 2151 (Fam)

AA is an 18 year old with capacity. She is a dual citizen of the UK and Saudi Arabia. She lived in Wales until almost 17 years old. Her father took her to Saudi Arabia in 2012 against her will when she was 16 and she has been held there continuously since then.

The Court confirmed for the first time that the High Court can exercise its inherent protective jurisdiction over a vulnerable British adult on the basis of their nationality, even if they are not habitually resident in England/Wales. The Courts had previously exercised such jurisdiction in respect of children. The Court was aware that their order had no effect in Saudi Arabia, but it noted that if an order was made directly to the father he would be in contempt of Court if he tried returning to the UK without complying with the order.

Judicial review  of GDC decision

DP v General Dental Council [2016] EWHC 3181 (Admin)

An unpublished warning was given to a dentist by the General Dental Council (GDC) in relation to treatment provided. The dentist requested that the GDC exercise its power to review the decision under s27A(11) of the General Dental Council (Fitness to Practise) Rules. The GDC refused on the basis that it did not believe it had the power to do so, as it would be a retrospective decision.

An Order was granted by the Court quashing:

• The GDC’s decision refusing to review the warning warning.
• Paragraph 4 (iii) of the GDC’s Guidance which states that s27A(11) does not have retrospective effect.

Dental practitioners may now apply to the GDC for a review of warnings that were issued in the last two years

Habitual residence involving adults

RE DB; Re EC [2016] EWCOP 30

EC and DB were both born in Scotland. They each required a high level of care and were moved from Scotland to specialist placements in England at the age of 21 and 26 years old respectively. They had spent the last six and a half and seven years respectively in England. Both made applications under s21 of the MCA 2005 seeking to set aside their standard authorisations.

The Court found they had acquired residence in England.

Data protection

Information Commissioner ruling

A staff member at Whitehead Nursing Home  in Northern Ireland’s laptop containing unencrypted information about staff and residents was stolen from their home.

The ICO investigated an incident and found widespread systemic failings in the nursing home’s data protection practice. It was fined £15,000 for the breach of the Data Protection Act 1988.

In light of this health service providers are urged to review their data protection and data security policies.

Court of Protection procedure

New COPDOL10 form

A new form has been introduced for applications which required judicial authority for a deprivation of liberty falling outside the Deprivation of Liberty Safeguards scheme (eg outside of hospitals and care homes). The form is much more prescriptive as to what is required by the Court and will hopefully reduce the number of applications returned by the court pre-issue.

Court of Protection procedure

New CoP procedure pilots

There are now 3 pilots running at the Court of protection:

• Transparency – the default setting is that hearings are now in public. P remains anonymised.
• Case management – built on the family court model this is intended to ‘front load’ applications and thereby ensure a more efficient resolution.
• S49 reports.

For further information on any aspect of this legal update, please contact Georgia Ford or Nadya Wolferstan.

This legal update is made available on the basis that no liability is accepted for any errors of fact or opinions it may contain. Professional advice should be obtained before applying the information to particular circumstances.