Issue 2 - 16th June 2008

Monday 16 June 2008

Share This Page

Email This Page

COMMUNITY CARE UPDATE No 2

News

Guardian, 14th May 2008: 600 families who commit crimes, have chronic drug abuse problems and fail at school and in the job market are being targeted by Westminster Council hoping to cut their cost to the state.
Scotsman, 15 May 2008: Scotland's health service could be hit by compensation claims for millions of pounds after a judge yesterday refused to throw out a raft of damages actions over the hospital superbug MRSA.

Counsel, May 2008: Looks at the innovative family court pilot, the Family Drug and Alcohol Court (FDAC), which fast tracks support for parents. The FDAC opened at the Inner London Family Proceeding Court on 28 January 2008. In addition to alcohol and drug detoxification, the FDAC will also address underlying problems such as housing, financial, mental-health and learning difficulties. To be successful, the project will aim to keep one in four children out of a lifetime in the care system.

Legislation

National Health Service (Performers Lists) Amendment and Transitional Provisions Regulations 2008: SI 2008/1187, commencement date 1st August 2008, new rules for ophthalmic medical practitioners from 1 August 2008.

General Medical Council (Fitness to Practice) (Amendment in Relation to Standard of Proof) Rules Order of Council 2008: SI 2008/1256, commencement 31st May 2008, the civil standard of proof applies to all new Fitness to Practice panel hearings from 31 May 2008.
Mental Health (Mutual Recognition) Regulations 2008: SI 2008/1204, commencement date 3 November 2008, a s 12 clinician approved in England may be also treated as approved in Wales, and vice versa.

School Admissions (Alteration and Variation of, and Objections to, Arrangements) (England) (Amendment) Regulations 2008: SI 2008/1258, amends the School Admissions (Alteration and Variation of, and Objections to, Arrangements) (England) Regulations 2007, reg 7, which sets out the time periods within which different categories of objections must be referred. Replaces the different time periods with a single deadline (31 July) by which all objections must be referred to the Schools Adjudicator under the School Standards and Framework Act 1998, s 90(1),(2).

Primary Care Trusts and National Health Service Trusts (Membership and Procedure) Amendment Regulations 2008: SI 2008/1269, commencement date 16th June 2008, amends the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 and the National Health Service Trusts (Membership and Procedure) Regulations 1990 so as to enable the Secretary of State to suspend the chairman or non-officer members of a PCT and the chairman or non-executive directors of a NHS trust.
Safeguarding Vulnerable Groups Act 2006 (Commencement No 2) Order 2008, SI 2008/1320, commencement date 19th May 2008, brings fully into force on May 19 2008, the Safeguarding Vulnerable Groups Act 2006, s 4 which makes provision for appeals against decisions of the Independent Barring Board to include an individual in, or not to remove them from, one of the barred lists. The Independent Barring Board is established under section 1 of the Act. The barred lists are the children's barred list and the adults' barred list established and maintained under section 2 of the Act.

Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008, SI 2008, 1315, commencement date 3rd November 2008, SI 2008/1315, contains details of the selection, appointment and termination of the appointment of a representative under the deprivation of liberty safeguards scheme.

Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008: SI 2008/Draft, commencement date 3rd November 2008, contains further requirements for the deprivation of liberty safeguards scheme.
Local Government and Public Involvement in Health Act 2007 Commencement No 6 and Transitional and Saving Provision) Order 2008: SI 2008/1265, commencement date partly 8th May 2008, alters methods of handling allegations made to the Standards Board for England that a member or co-opted member of a relevant authority in England has failed or may have failed to comply with the authority's code of conduct.

Adult Services

15th May 2008, Local Government Ombudsman, Tony Redmond found Ealing Council delayed in acting on a disabled woman's application for an increase in direct payments. The report says significant improvements in the woman's care package could have been achieved within six months of the initial request and welcomed the Council's agreement to pay £16,700 compensation to remedy the injustice and address procedure and training issues arising from the case.

R (Pajaziti) v Lewisham LBC [2007] EWCA Civ 1351: the Court of Appeal (Sedley, Maurice Kay and Rimer LJJ) allowed the asylum-seeker's appeal, holding that the local authority had erred in deciding that the appellant asylum seekers were ineligible for accommodation and assistance under the National Assistance Act 1948 s 21. The asylum-seeker required care and attention because of being destitute and requiring shelter, food and warmth. The question was whether that need arose solely because of destitution or was made more acute by a depressive disorder the local authority had failed to answer that question. Note that R (M) v Slough BC was heard in the House of Lords on the 9th and 10th June 2008.

Sandford and another v London Borough of Waltham Forest [2008] EWHC 1106 QBD (Judge Richard Seymour QC sitting as a judge of the High Court): the claimant executors of the deceased's estates' claim for damages from the authority, based on the authority's alleged failure to act in accordance with its duty of care under s 47(1) of the National Health Service and Community Care Act 1990, read with s 29(1) of the National Assistance Act 1948 and s 2 of the Chronically Sick and Disabled Persons Act 1970, was dismissed as the authority had not owed the deceased the duty of care relied on to found the claim against it, namely to fit cot-sides to her bed at home, because an actionable duty at the suit of a private individual did not arise under the relevant legislation and because, in any event, in performing its duties, the authority had not voluntarily assumed any responsibility but was doing that which was required of it by statute.

McCann v United Kingdom (App No 19009/04), European Court of Human Rights, the summary procedure available to a local authority landlord under which a joint tenant was dispossessed of his home when the other joint tenant served notice to quit violated Article 8 of the Convention. The loss of a person's home was a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of that magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under art 8 of the Convention, notwithstanding that, under domestic law, his right of occupation had come to an end. The joint tenant dispossessed had no possibility of having the proportionality of the measure determined by an independent tribunal and therefore there was a lack of adequate procedural safeguards.

Secretary of State for Education and Health v KM [2008] All ER (D) 179 (May) (Ouseley J): the Secretary of State's appeal against the Care Standard Tribunal's decision to order the removal of the respondent's name from the list of people unsuitable for working with vulnerable adults, on the balance of the evidence before it and on the basis that the Secretary of State had failed to satisfy s 86(3) of the Care Standards Act 2000, was allowed as the tribunal had erred in neglecting to make adequate findings of fact concerning the evidence of the respondent, which vitiated its conclusions. The matter would be remitted to a fresh tribunal for re-hearing.

R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin): the divisional court (Pill LJ, Silber J) held that it was not incompatible with Articles 8 or 14 of the Convention to have a policy that (subject to narrow exceptions) prohibited smoking in hospitals, and no longer provided designated smoking rooms in mental health hospitals, so that long-term detainees in high security psychiatric hospitals who were not permitted to leave the building to smoke, were wholly unable to smoke. The Court held that there was no breach of Article 8(1) because the law might place restrictions on a person's freedom of action without interfering with their right to respect for their private lives under Article 8: "the privacy and freedom of action to which a person is entitled, for the purposes of article 8, will in our view vary with the nature of the accommodation in which that person is living and the circumstances in which he is living there. Whether article 8 is engaged in relation to a particular activity will depend on those factors as well as the activity in question, and all the circumstances in which it is sought to practise it. Distinctions as to what is required in different accommodation may be justified". However, even if there had been a breach of Article 8(1) it was justified under Article 8(2) for health and security reasons, although there might be rare cases where the protection of mental health required facilities for smoking to be made available. It should be noted that by virtue of s 3, Health Act 2006 and Reg. 5, Smoke-free (Exemption & Vehicles) Regulations 2007, designated bedrooms and other rooms in care homes are not required to be "smoke free".

R v C [2008] EWCA Crim 1155: the Court of Appeal (Lord Phillips LCJ, Bean J, Wilkie J) held that a person did not lack capacity to consent to sexual activity "for any other reason", for the purposes of Sexual Offences Act 2003, s 30, simply because the person held an irrational fear that prevented the exercise of a choice whether or not to engage in sexual activity. There was little, if any, difference between the test of capacity to choose in s 30 and the common law approach to capacity to consent, see X City Council v MB [2006] EWHC 168 Fam, [2006] 2 FLR 968.

X and another v Hounslow London Borough Council [2008] EWHC 1168 QB (Maddison J): where the defendant local authority had become aware that the claimants, vulnerable adults with learning difficulties, were being exploited by youths on the estate upon which they lived in a flat owned by the authority, but had failed to move them from that flat before they were imprisoned there by those youths and repeatedly assaulted and abused, the authority was liable in negligence.

The court ruled:
(1) The correct approach was to consider the authority as a single entity. Each of the sections and departments (i.e. the housing and social services department) was under a duty to communicate with the others and amongst its own members of staff the information that it had received. The authority was, in law, a single entity, and was sued as such. Moreover, each relevant department and section knew that the others were involved with the claimants or their children, and they had, in practice, communicated with each other from time to time. Further, to move the claimants from their flat might require input from both of the departments in question.

(2) On the evidence, it was reasonably, indeed clearly, foreseeable that either or both of the claimants would suffer a serious physical attack from local youths in their flat. Further, as the authority was their landlord and, being aware of their disabilities, provided social services for them, there was a relationship of sufficient proximity to give rise to a duty of care. Finally, it was fair, just and reasonable to impose a narrow duty of care to move the claimants out of the flat in response to the unusual, but highly dangerous, situation that had developed. The extension of a duty of care to the claimants would involve a small step from the authorities in which duties of care had been found to be owed by local authorities to children, rather than a giant leap, as the claimants, though adults, both functioned in many ways like children. Previous authorities also demonstrated a greater willingness to find the existence of duties of care subsequent to the passing of the Human Rights Act 2003.

(3) On the evidence, the authority could have invoked its emergency system to move the claimants, it should have done so, and had it done so, alternative accommodation would have been found. The situation presented by the claimants involved severe violence and harassment, and therefore satisfied the authority's own test for the invocation of that system. The reality of the case was that, by virtue of whatever statutory provisions, the authority actually had in place a procedure that it could have used before the relevant weekend. The claimants' claim was not based on narrow considerations of housing policy, but involved both the authority's housing and social services departments, the interaction between them and the manner in which they had reacted or had failed to react to the information received about the claimants' predicament. In all the circumstances, that breach of duty had caused the claimants' injury and loss.

Atlantic Housing Ltd v Secretary of State for Communities and Local Government and another [2008] All ER (D) 198 (May), Collins J: the claimant's challenge to the planning inspector's decision, refusing it permission to redevelop an estate which afforded the elderly accommodation was allowed, and the matter remitted for reconsideration, on the basis that the claimant had led the inspector into error by failing to supply him all the relevant materials on which to base his decision and the inspector had erred in finding that the residents' rights, under art 8 of the European Convention of Human Rights, as set out in Pt 1 of Sch 1 to the Human Rights Act 1998, would be infringed as, in finding that the claimant's plan to redevelop its estate was legitimate and necessary, he had erred in finding that the plan was not proportionate.

Gichura v Home Office and another [2008] All ER (D) 257 (May), Court of Appeal (Waller, Buxton and Smith LJJ): a district judge had been wrong to strike out the entirety of a claim under the Disability Discrimination Act 1995 on the basis that the facilities in an immigration detention centre did not amount to a provision of a service for the purposes of s 19 of that Act. Some functions were plainly government-like, such as the administrative handling of a detainee upon arrival, and thus, applying settled principles, were outwith the Act. However, the fact that it was incidental to detention was not enough to exclude a service from the reach of the 1995 Act if, when performed by an ordinary person, it would be the provision of a service within the meaning of the Act. It was only if there were overriding reasons to take it outside of the Act that one could say that a service was not being provided for the purposes of s 19.

R (on the application of Kromah) v Southwark London Borough Council and another [2008] All ER (D) 207 (May) (Underhill J): it was common ground that the question of which local authority owed the duty under s 21(1)(a) of the 1948 depended upon which borough the claimant was found to have been ordinarily resident in, and that the question of ordinary residence was one that fell to be determined by the Secretary of State. The issue in the instant case was the determination of which local authority was responsible for providing interim assistance pending the Secretary of State's determination. The court ruled that s 24(3)(b) of the 1948 Act and the provisions of DoH Circular LAC 93 (10) imposed an obligation on local authorities to make arrangements to provide residential accommodation, to an individual entitled under s 21(1)(a) of the Act, where that person was within the area of the local authority and, while not ordinarily resident within that area, was in urgent need of residential accommodation.

R (on the application of S) v Lewisham London Borough Council and others [2008] All ER (D) 195 (May) (Davis J) in order to be 'a person in the area of' a local authority for the purposes of s 24(3) of the National Assistance Act 1948, it was sufficient that that person was physically present in the area of that authority. No degree of residence was required.

Children's Services

Guidance: Personal Education Allowances for Looked After Children: Statutory Guidance for Local Authorities, published 29th May 2008, by the DCSF) relating to the duty to promote the educational achievement of looked after children under s 22 (3A) of the Children Act 1989. Inter alia, local authorities should provide personal education allowances for all of their children in care who are at risk of not reaching the expected national standards of attainment, to obtain additional educational support.

25th April 2008, Local Government Ombudsman Jerry White found Wiltshire County Council mishandled the social care needs of a family, and failed to provide properly for one of their daughters' special educational needs and recommended £10,000 compensation. The report said "...education and social care professionals did not work together effectively with one another and with the health care professionals involved, to ensure that not only [the girl]'s needs, but those of her parents and siblings were met......The failures here had significant consequences for the health, happiness and wellbeing of the whole family, as well as for [the girl]'s development at an important stage of her life". It recommended the Council to pay £10,000 compensation and review its arrangements to avoid any recurrence of these problems
Murray v Express Newspapers plc and another [2008] EWCA Civ 446, Court of Appeal (Sir Anthony Clarke MR, Laws and Thomas LJJ): the appeal would be allowed because:

(1) Subject to the facts of the particular case, the law should protect children from intrusive media attention, at any rate to the extent that a child had a reasonable expectation that he or she would not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That did not mean that the child would have a guarantee of privacy. To hold that the child had a reasonable expectation of privacy was only the first step. The next step was the balance which had to be struck between the child's right to respect for his or her private life under art 8 of the Convention and the publisher's right to freedom of expression under art 10 of the Convention. In the circumstances of the case, the judge had been wrong to strike out the claimant's claim on the ground that he had no arguable case that he had a reasonable expectation of privacy. The fact that he was a child was of greater significance than the judge had thought. The judge had focused too much upon the parents and not enough upon the claimant. The claimant had his own right to respect for his privacy distinct from that of his parents. The judge had erred in holding that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depended upon the circumstances of the case. The position of an adult might be very different from that of a child. Understandably, the judge had not considered whether, if art 8 was engaged, the claimant had an arguable case that the balance should be struck in his favour. Accordingly, the claimant's parents should be permitted to take his claim to trial on his behalf.

(2) Part of the judge's reasoning which led to his striking out the claimant's claim under the 1998 Act was his conclusion that art 8 of the Convention was not engaged and that the second defendant had been entitled to publish or procure the publication of the photograph in the exercise of its right to freedom of expression contained in art 10 of the Convention. If the trial judge were to hold that art 8 was engaged and that the balance to be struck between arts 8 and 10 balance should be struck in the claimant's favour, it would follow that the second defendant's admitted processing of the claimant's personal data was unlawful. In those circumstances, the issues under the 1998 Act should be revisited by the trial judge in the light of his or her conclusions of fact.

R (on the application of C) v Lambeth London Borough Council [2008] All ER (D) 277 (May) (Blake J), the claimant, who had been a 'looked after child' by the defendant local authority for the purposes of s 22(1) of the Children Act 1998, was successful in challenging the authority's decision that it's obligation to educate and train her to redress her lack of basic skills had ended after she became 21. The authority was under a continuing obligation to the claimant to carry out an objective in a pre-agreed pathway plan, namely the addressing of her lack of skills by her attendance at a local college, that remained to be implemented and which had survived her 21st birthday.

Education

18th April 2008, Local Government Ombudsman Anne Seex found Wirral Metropolitan Borough Council had refused to take responsibility for a boy with special educational needs and recommended compensation of £1655 be paid. The report says "No reasonable authority would have relied upon such insubstantial information to make decision about a vulnerable child..." and recommended it to agree with the parents and the school on what can be done to help the boy catch up on his missed education, and to pay compensation. The boy lost almost a year of education at the school specified in his statement of special educational needs, his parents paid for private tuition, and they experienced stress and anxiety in trying to resolve the issue.

25th April 2008, Local Government Ombudsman Jerry White found Wiltshire County Council mishandled the social care needs of a family, and failed to provide properly for one of their daughters' special educational needs and recommended £10,000 compensation. The report says "...education and social care professionals did not work together effectively with one another and with the health care professionals involved, to ensure that not only [the girl]'s needs, but those of her parents and siblings were met." He adds "The failures here had significant consequences for the health, happiness and wellbeing of the whole family, as well as for [the girl]'s development at an important stage of her life. He recommended the Council to pay £10,000 compensation and review its arrangements to avoid any recurrence of these problems.

Davies v General Teaching Council for Wales [2008] EWHC 1175 Admin (Blair J): in the instant case, the General Teaching Council for Wales' Professional Conduct Committee had erred in its approach to the question of sanction, following its finding that the appellant was unfit to continue work as a headteacher of a particular primary school. The PCC's approach to the Council's guidance on 'the application of disciplinary orders', and to the numerous testimonials which the appellant had received, could not be criticised. Its approach, however, to specific matters that the governors of the school had referred to, before the appellant came before the Committee, was flawed. In the result, the court was of the view that it would be appropriate to quash the PCC's determination insofar as it related to sanction, and to impose in its stead, an order of suspension for a period of seven months.

R (on the application of G) v Tower Hamlets London Borough Council [2008] All ER (D) 182 (May) (Langstaff J): in the instant case, the local education authority's refusal to comply with a direction of the Special Educational Needs and Disability Tribunal, namely that the claimant's child had to be subjected to further assessments, for the purposes of updating her statement of special educational needs, could not be justified on the basis that the child's welfare would be compromised because the assessments would be 'intrusive, unnecessary and abusive'. The starting point was that the tribunal's direction had been rational and valid. Had the authority wished to object to the tribunal's direction, the proper course would have been for it to have mounted a challenge either by way of an appeal to the High Court, an application for judicial review, or on points of law before the Court of Appeal.

S v Special Educational Needs and Disability Tribunal and another [2008] All ER (D) 67 (May) (Dobbs J): the first respondent tribunal's decision that the second respondent local education authority, and the school at which the applicant's autistic son had attended, had acted reasonably when conducting a risk assessment in relation to the son, prior to his re-integration with the school, and had made reasonable adjustments to accommodate him, was upheld as, on the evidence before them, the tribunal had been entitled to come to the conclusion it had, and had come to that conclusion having taken into account all relevant material.

S and others v Chapman and another [2008] All ER (D) 270 (May), Court of Appeal (Ward, Sedley and Rimer LJJ). where W, who was severely autistic, had been excluded from school and where his family claimed damages for negligence and personal injury against the head master and board of governors of the school, the master had been correct to strike out parts of the claimants' pleadings since he had given them detailed guidance as to how to amend them and they had been no better than the original particulars of claim. Moreover, the judge had not erred in dismissing the appeal. The claimants would never be able to satisfy the Bolam test and find that the school had not acted in a proper manner.

Crowley v Surrey County Council and others [2008] EWHC 1102 (QB) (Foskett J), the claimant's claim against the defendants for damages arising out of an alleged failure by the defendants to recognise and act appropriately in respect his learning difficulties was dismissed. Had the defendant not been the diagnostic conundrum that he was, it was possible that his needs (whatever they had been) could have been addressed actively and timeously, and his level of functioning improved.

Bedfordshire County Council v Haslam and others [2008] EWHC 1070 (Admin) (Judge Mackie QC sitting as a judge of the High Court) the local education authority's appeal against the decision of the Special Educational Needs and Disability Tribunal was allowed because the Tribunal had been wrong not to name the school proposed by the LEA in Part 4 of the SSEN on the ground that the parents refused to agree to the child living in residential care where he would receive non-educational provision relevant to the educational provision, where if the child did not live in the residential care facility the school placement could not go ahead.

Health

Report: Our NHS Our Future: NHS Next Stage Review -- Leading Local Change, 9th May 2008, DoH, the "our NHS, our future" Review team, led by leading clinician and Health Minister Lord Darzi, published a report containing five pledges to ensure that changes in the NHS are transparent and based on the best evidence

Summary
Suggests that whilst the NHS must never back away from necessary change to improve services and save lives, there should be important checks which any change has to undergo before it proceeds. Accordingly makes five pledges on change in the NHS, to which Primary Care Trusts (PCTs) will have a duty to have regard:

  • change will always be to the benefit of patients. This means that change will improve the quality of care that patients receive, whether in terms of clinical outcomes, experiences, or safety;
  • change will be clinically driven. It will be ensured that change is to the benefit of patients by making sure that it is always led by clinicians and based on the best available clinical evidence;
  • all change will be locally-led. Meeting the challenge of being a universal service means that the NHS must meet the different needs of everyone. Universal is not the same as uniform. Different places have different and changing needs, and local needs are best met by local solutions;
  • the local NHS will involve patients, carers, the public and other key partners. Those affected by proposed changes will have the chance to have their say and offer their contribution. NHS organisations will work openly and collaboratively; and
  • existing services will not be withdrawn until new and better services are available to patients so they can see the difference.
  • Sets out eight key steps to make those five pledges a reality, namely:
  • driven by clinical need -- your local NHS will carry out a planning and needs assessment led by local clinicians. This will look at current services and how they fit with the latest developments in clinical practice and current and future needs of patients;
  • early involvement in proposals -- based on the understanding of clinical needs, your local NHS will develop proposals for improving services, in conjunction with local authorities, the local third sector, local stakeholders and the public, ensuring that local people have the chance to have their say early on in the process, and that all proposals respond to their needs;
  • a high clinical bar for change -- all proposals will be subject to independent clinical and management assessment. This will be made possible through the Office of Government Commerce's Gateway Review process, a process of peer review that identifies risks and issues at an early stage. This will be supported by the National Clinical Advisory Team, whose membership will be drawn from members of the Clinical Working Groups. This means there will be a high clinical bar for change everywhere in the NHS, so that change is always to the benefit of patients;
  • listening to you -- there will be a formal period for everyone affected by a substantial change to have their say. Public consultation on the proposals for change will take place normally for a minimum of 12 weeks, although it may be possible to reach local agreement about a different timescale where appropriate. This will mean patients, the public and staff will be involved in the process;
  • responding to you -- the local NHS will analyse what you have said, helping to inform, shape and strengthen local proposals for change;
  • local decision -- a decision on whether to go ahead with the proposed changes will be taken locally, based on the clinical and management case put forward, the benefits for patients and consultation responses;
  • making sure it's right -- the Local Authority, through its Overview and Scrutiny Committee, may review and scrutinise the proposal; and
  • appeal -- the Overview and Scrutiny Committees will reserve the right to refer the decision to the Secretary of State for Health if they believe that the proposal is not in the interests of local health services. The Secretary of State may then ask for expert advice from the Independent Reconfiguration Panel, whose advice will be made public.

Guidance: Changing for the Better -- Guidance When Undertaking Major Changes to NHS Services, 9th May 2008, DoH, guidance including 15 recommendations intended to ensure the process of major change to local NHS services is open, transparent and fair

Summary
Provides guidance for patients, the public and NHS staff on the processes underpinning changes to NHS services in order to ensure that changes to local services are:

  • based on sound clinical evidence;
  • made in the best interests of patients; and
  • made as part of ongoing dialogue with local stakeholders about services in the area.
  • Makes the following recommendations:
  • each Strategic Health Authority (SHA) should oversee proposals for major service changes and improvement in its area, in line with the recommendations in the guidance;
  • each SHA should have a clear and coherent strategy and work programme in place covering all (current and future) service improvement proposals;
  • each SHA should ensure that there is appropriate capability and capacity at both SHA and Primary Care Trust (PCT) level to ensure that robust, evidence-based proposals are developed, effective involvement and consultation are undertaken and successful implementation is achieved;
  • each SHA should also ensure that the appropriate staff, skills, resources and project management arrangements are in place to deliver a successful change programme;
  • PCTs should normally lead the preparation and consultation on service improvement proposals;
  • a business case setting out the clinical and patient benefits of service change should be approved for all proposals, and should be reviewed by the SHA before consultation begins (the business case should also include implementation plans);
  • implementation plans should also be drawn up for all options. These should include the clinical model, clinical viability, affordability, implementation timetable and staffing implications. Resources for new facilities or services should be made available to open new facilities alongside old ones closing;
  • reconfiguration proposals need to be specific about the impact of the proposed change on the quality of patient services, including the number of lives saved, risk reduction, improvements in health inequalities and so on;
  • SHAs should ensure that there is a framework in place for testing the options to show that they are sufficiently robust and fit for purpose before formal consultation proceeds and for testing any new options that may result from the consultation;
  • a senior clinical lead should be identified at the outset, and be supported to help make sure that other clinicians are involved in the development of proposals for change;
  • Chairs, Chief Executives and Boards are accountable for and should take a personal lead in the formulation and delivery of proposals. They should actively champion proposals and act as advocates for these guidelines, ensuring their adoption and application locally. Their role must be proactive, not passive

Tinsa v General Medical Council [2008] All ER (D) 140 (May) (Underhill J): the decision of the fitness to practise panel of the General Medical Council to erase the appellant medical practitioner from the medical register would stand. The appellant's appeal against the panel's decision was dismissed on the basis that, on the evidence, it could not be said that the panel had erred, or that its decision had been rendered unfair, as, inter alia, it had been entitled to treat the appellant as being in a fit state to conduct his own defence, despite suffering from depression at the time the proceedings took place.

R (X) v A NHS Trust [2008] EWHC 986 (Admin)(Foskett J): as a matter of principle, a failure to comply with the 'place of safety' direction in s 37(4) of the Mental Health Act 1983, would not have the effect of depriving an order made under s 37(1) thereof from having legal effect. Section 37(1) of the 1983 Act constituted the authority for the admission and detention of an offender to a specified hospital; however, that subsection did not specify any time limit. Section 37(4) merely specified one of the requirements for the making of any order (namely that a place would become available within 28 days), and limited the duration of a 'place of safety' direction to one of 28 days. The court also commented that: (i) a specific and unequivocal direction had to be incorporated on the face of a hospital order, which had been made by way of a variation to a previous order, under s 155 of the Powers of Criminal Courts (Sentencing) Act 2000, so that an offender who was the subject of such an order, knew precisely when the 28 day period, for which a transfer from prison to hospital was to take place, had started to run; and (ii) whilst it might be the case that the psychiatric condition of the offender might no longer justify admission and detention in a hospital given the delay which might occur between the making of a hospital order and its effective implementation, the formal recourse for such a person would be to lodge an appeal out of time to the Court of Appeal.

Latest tweets from Garden Court Chambers

Follow us on Twitter

Tweets by gardencourtlaw

We are top ranked by independent legal directories and consistently win awards

+ View more awards