Key Legal Developments Update

 
 
 
 

 Governance

Bribery Act 2010

This important Act comes into force on 1 July 2011 and introduces a corporate offence of failing to prevent bribery by a person acting on behalf of an organisation. This will be a strict liability offence and the only defence will be to demonstrate that the organisation has adequate procedures in place to prevent bribery and corruption.

 Information Security

Information Commissioner issues monetary penalty for serious breach of Data Protection Act

The Information Commissioner’s Office has fined Surrey County Council £120,000 in relation to three separate emails. On each occasion sensitive personal details were sent to the wrong email lists, some of which included external organisations.

 Funding

R (on the application of (1) M (2) G (3) H) v Birmingham City Council        

This case involved the judicial review of a Local Authority’s decision to reduce spending by providing adult social care for people with disabilities only for those whose need was critical. The High Court held that this decision was unlawful in that it failed to assess the impact of the reduction and went against the disability equality duty (Disability Discrimination Act 1995 s.49A)

 Employment

Gosden v Lifeline Project Ltd   

This case involved the dismissal on an employee who had sent an offensive email from his home computer and outside working hours to an acquaintance who worked for a client of the employer resulting in damage to the employer’s reputation. It was held that this dismissal was not unlawful and that there was no infringement of the right to privacy. The employee had clearly intended this email to be forwarded and it was therefore not confidential.

 Mental Capacity Act

In the matter of G (TJ)

This case involved the review of orders made in 2007 which made maintenance payments to the children of Mrs G, a patient under the MHA 1983. The judgment provides useful guidance on assessing ‘best interests’, most notably the need to consider the past and present views of the person lacking capacity and recognition that best interests are not necessarily confined to self interest.

  Employment

Guidance on Agency Workers Regulations

In May, the government published the final draft of guidance for hirers and agencies in relation to the Agency Workers Regulations 2010 which come into force in October and award temporary agency workers rights equal to permanent workers in relation to basic working conditions.

 Inquests

Reforms on medical examiners to be taken forward

The Department of Health has confirmed that the introduction of medical examiners will go ahead. The purpose of the role will remain to scrutinise all deaths that are not referred to the Coroner. The Health and Social Care Bill proposes that the appointment of these examiners fall to Local Authorities and not to Primary Care Trusts. These reforms are at present expected to come into force in April 2013.

 Employment

Employment Rights (Increase of Limits) Order 2010

This came into force in February 2011 and increases the maximum awards that can be given by the Employment Tribunal. For instance, the maximum compensatory award for unfair dismissal rose from £65,300 to £68,400.

 Social Care and Healthcare

Law Commission publishes report on adult social care

These recommendations come at the end of a three year review and propose putting adult social care on a firm legislative grounding. Important recommendations include the health secretary to define eligibility for NHS continuing healthcare and allowing direct payments to be used for residential care. It is thought that the government will introduce legislation next year.

 Employment

Gisda Cyf v Barratt

The Supreme Court upheld the ruling of the Court of Appeal and confirmed that the limitation period for bringing an unfair dismissal claim runs from the date when the employee reads the dismissal letter, or has had a reasonable opportunity to do so, and not from the date of sending or delivery.

 Funding

Guidance on the identification of the ordinary residence of people in need of community care services

The Department of Health published in April an updated version of pre-existing guidance to clarify eligibility for NHS continuing healthcare following recent legislative changes. The overriding principles of the guidance remain unchanged in that the best interests of the individual should be prioritised and care should never be delayed because of funding disputes.

 Employment

Equality Act 2010 (Guidance on the Definition of Disability) Appointed Day Order) 2011

This order brings into force updated guidance on the matters to be taken into account in determining questions in relation to defining disability.

 Whistle-blowing

Fecitt and other v NHS Manchester

The Employment Appeal Tribunal held that the correct causation test in cases of detrimental treatment following whistle-blowing is the same as that for victimisation i.e. that the employer must demonstrate the ground on which any act (or failure to act) was done and that the protected act did not play a contributory part in the resulting detriment.

The Tribunal also confirmed that an employer may be vicariously liable for victimisation of those employees within the whistle-blowing provisions.

 Funding

Implementing the Overseas Visitors Hospital Charging Regulations 2011

The Department of Health has issued new guidance in relation to making and recovering charges from overseas visitors for NHS treatment. This guidance will be of use as of 1 August 2011 when the Regulations are due to come into force.

 Judicial Review

R (J) v Hackney LBC

Judicial review proceedings following a refusal by the defendants to assist the destitute claimants. Proceedings were settled early and the claimants sought their costs. Costs were awarded on the basis that it was obvious the claimants would have succeeded in the judicial review in any event and because of the defendant’s conduct. The court highlighted the need for prompt response by the public body not only to the claimant’s need but also to the court proceedings.

 Court of Protection

R (on the application of (1) M (2) G (3) H) v Birmingham City Council

This case concerned withdrawal of treatment from an adult patient suffering from brain stem encephalitis. Judge Baker provided some helpful guidance in relation to reporting restrictions in the Court of Protection. The general rule remains that hearings are in private and that the Court must show a good reason to order otherwise. In making this decision the Court must balance the respect for private and family life with freedom of expression.

 Information Governance

New Guidance on Data Sharing

The Information Commissioner’s Office published guidance in May to provide assistance and exemplify best practice in relation to information sharing. This guidance includes a number of Public Sector case studies and a summary checklist to be used as a quick reference guide.

 Inquests

Ministry of Justice publish draft Charter for the Coroner Service

The consultation on this Charter was launched in May and will close in September ready for final publication in December 2011. It proposes publishing the Charter in tandem with the pre-existing guide to inquests in order to fully educate all of those involved with the system and encourage consistency. This draft is much reduced from its predecessors and offers no suggestion as to when, or even if, there will be substantial coronial reform.

 Inquests

Ministerial statement details plans on how to accomplish coronial reform without the Office of the Chief Coroner

In a statement of 14 June the Secretary of State for Justice detailed the Government plans to transfer the judicial functions of the Chief Coroner to the Lord Chancellor or the Lord Chief Justice via the Public Bodies Bill. A Ministerial Board will be convened in order to oversee the non-judicial services.

 Inquests

Ministry of Justice publish 2010 Coroners Statistics

In a report published in May it was detailed that 47% of all deaths in England are reported to coroners of which less than half are subject to a post mortem. Only 13% of reported deaths go to inquest and it takes an average of 27 weeks from the report to the conclusion of the inquest.

 Employment

National Minimum Wage (Amendment) Regulations 2011

The government have announced the annual increases in the rates of the national minimum wage which will come into force in October 2011. The adult rate will increase by 15 pence to £6.08 and the rate for 18-20 year olds by 6 pence to £4.98.

 Inquests

R (on the application of Carol Mack) v HM Coroner for Birmingham & Solihull

The Court of Appeal quashed an inquest involving a hospital death since the Coroner had failed to call as a witness the consultant with responsibility for the patient for the 10 days preceding death and did not give a rational explanation for this omission. As a result the inquest was not able to respond to the concerns of the family in relation to this period.

 Employment

Mehta v Child Support Agency

This was a case in the Employment Appeal Tribunal which offered helpful guidance on the preparation and presentation of witness statements in the employment tribunal, including the recommendation that previous guidance stating that routinely witness statements should be read out whatever the circumstances should be reconsidered.

 
 
 
 

Authors

 
Picture of John Holmes

John Holmes

Partner, London
Mental Health, Healthcare Litigation
020 7484 7557
Picture of Helen Edwards

Helen Edwards

Solicitor, London
Healthcare Litigation
0207 484 7596
 
 

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