2011 02 Health Care

Tuesday 1 March 2011

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Re AVS; CS v A NHS Foundation Trust [2010] EWHC 2746 (COP) (Sir Nicholas Wall P): AVS suffered from CJD and at a previous hearing it had been declared that he lacked capacity to instruct solicitors or make medical decisions. The best interests question was: 'is it in AVS's bests interests that PPS treatment continues to be administered to him?'. The applicant wanted it to recommence but the Defendant Trust did not. It was determined that the applicant’s brother was not an appropriate next friend as the relationship between him and the clinicians had broken down completely and he lacked the necessary objectivity: the Official Solicitor would be invited to act. In the court's 'best interests' analysis embraces all the circumstances of the case and clinical opinion is not necessarily determinative. However, it is unlikely that the court would order a clinician to undertake a medical intervention which the clinician did not believe to be in the best interests of the patient. The court considered these proceedings would be doomed to failure without a clinical opinion favourable to the applicant's case. A doctor had been identified as willing to take over AVS's care and administration of PPS. The proceedings would be dismissed after 14 days unless a report from the doctor was filed to answer the Trust's reports. (click here for judgment)

Re SB [2010] COP 19/10/10 (Hogg J): SB lacked capacity to consent to potentially life-saving treatment for aplastic anaemia. The Court held it was lawful for the clinicians to administer the treatment and restrain her for that purpose; also, if the they decided that it was too distressing, they could decide to stop. (click here for press report)

Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7: (Ward, Patten and Black LJJ). The Court of Appeal refused permission to appeal from Court of Protection decision in medical treatment case concerning treatment for CJD. (Click here for transcript).

Health and Social Care Bill 2011: Parliament website via the Department of Health for the Bill: 'To establish and make provision about a National Health Service Commissioning Board and commissioning consortia and to make other provision about the National Health Service in England; to make provision about public health in the United Kingdom; to make provision about regulating health and adult social care services; to make provision about public involvement in health and social care matters, scrutiny of health matters by local authorities and co-operation between local authorities and commissioners of health care services; to make provision about regulating health and social care workers; to establish and make provision about a National Institute for Health and Care Excellence; to establish and make provision about a Health and Social Care Information Centre and to make other provision about information relating to health or social care matters; to abolish certain public bodies involved in health or social care; to make other provision about health care; and for connected purposes.' (Click here for link) and to track the Bill through Parliament (Click here). In respect of the Mental Capacity Act 2005 the amendments to be made are set out at Schedule 5, Part 1, paragraph 47- 50 of the Bill (page 268-269), and it is paragraph 50 that confirms that Local Authorities will be supervisory bodies for the purposes of DOLS authorisations in hospitals, in place of PCTs, and though there is no timeline for that transition, the longstop must be the abolition of PCTs, in April 2013 at the latest.

R (on the application of Sharon Moore) v (1) Skipton Fund Ltd (2) Secretary of State for Health [2010] EWHC 3070 (Admin). (Kenneth Parker J): The claimant sought judicial review of the terms of the ex gratia compensation scheme set up to compensate those who had received blood or blood products contaminated with the virus hepatitis C when undergoing treatment by the NHS. The Claimant was given blood infected with hepatitis C when in hospital in 1987. Later blood tests showed she been infected by hepatitis C but was no longer carrying the virus. The claimant applied for compensation to the fund which had been set up by the Secretary of State. This provided for an ex gratia payment of £20,000 to any person who had hepatitis C as a result of receiving infected blood, products or tissue from the NHS prior to September 1991. Those who had cleared the virus as a result of treatment, or who had cleared it spontaneously after a period of chronic infection, were also eligible for payments. The scheme also provided for a further payment of £25,000 where the hepatitis C infection had led to advanced liver disease. In a minority of people referred to as "natural clearers" where the body's immune system successfully fought the virus and cleared it from the body with no long-term effects, and the disease did not progress to a chronic, long-term phase. If these events occurred, in nearly all cases it was in the acute phase of the infection within six months. The scheme did not provide for compensation under the scheme where a person had cleared the virus spontaneously in the acute phase of the disease. The Secretary of State's guidance indicated that it would be assumed that the virus had been cleared in the acute phase unless there was robust medical evidence that the patient had experienced chronic infection. The Claimant claimed that (1) the scheme was wrong to impose the burden of proving persistence of hepatitis C infection beyond the acute phase on a claimant seeking compensation when such proof was "scientifically impossible"; and (2) the guidance could not be relied on because it was unpublished and the requirement of the guidance for "robust" medical evidence was unlawful.

The Court, on dismissing the claim, held that two fundamental points had to be kept in mind. First, the probability of spontaneous clearance of the virus after six months was very low indeed. In such cases, there was nothing irrational or unfair in requiring those in the relevant position and claiming an ex gratia payment from public funds to show spontaneous clearance of the virus after six months which was statistically very unlikely indeed to occur, had in fact occurred. Secondly, the Claimant and similar applicants were not at risk of illness or disease by reason of the fact that they had become infected with hepatitis C as a result of receiving contaminated blood or blood products. The court reasoned that since they had cleared their hepatitis C infections they were not at risk of the consequences of infection, particularly serious liver disease and liver cancer. The court held that the relevant category was not empty or illusory given there was a real possibility that some persons might be able to show that they had entered the chronic phase even if the Claimant could not. Consequentially the first ground failed [paras 37-40, 47, 53, 54]. The Court further held it was no more than common sense that, given the statistical improbability of an infected person clearing the virus spontaneously after six months' infection, any decision-maker would begin with an assumption that the applicant did not fall within that statistically small category, unless medical evidence showed that he or she was more likely than not to have cleared the virus spontaneously after such period. Therefore the statement "robust" did not add much, if anything. The court held the word did no more than remind the decision-maker that, given the statistical improbability of the asserted contingency, he or she should look with care at the particular medical evidence put forward to ensure it was accurate and reliable and that it was in fact probative of what was asserted. In this context it was no more than common sense. The Could held that In the circumstances the guidance was not unpublished in any relevant sense, nor was it in conflict with, or inconsistent with the published criteria and the second ground failed [paras 60-61]. (click here for transcript).

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