Healthcare Features
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The London Borough of Southwark appears narrowly to have escaped a monetary penalty after misplacing a computer and papers containing personal information on 7,200 people.
The computer and papers were found in a skip earlier this year. They had been left at one of Southwark’s buildings when it was vacated in December 2009.
A new tenant of the building discovered the computer and papers in June and disposed of them.
According to the Information Commissioner’s Office, the information included details of peoples’ names and addresses, along with other information relating to their ethnic background, medical history and any past criminal convictions.
The watchdog’s investigation found that policies Southwark had in place about information handling and decommissioning were not followed. However, it also said the council had failed to make sure the information on the computer was encrypted.
The Acting Head of Enforcement at the Information Commissioner’s Office, Sally Poole, said: “The fact that thousands of residents’ personal details went missing for over two years clearly shows that Southwark Council’s policies for handling personal information are below standard. As this information was lost before the ICO received the power to issue financial penalties we are unable to consider taking more formal action in this case.”
Southwark has agreed to:
- introduce new processes governing the transfer and disposal of personal information
- ensure that all portable devices used to store sensitive information are fully protected
- undergo an ICO audit in 2012.
The ICO has also secured an undertaking from Central Essex Community Services after it lost a birth book containing information about the general health of 249 mothers and their babies.
The watchdog’s investigation found that the book – which has never been recovered – should have been stored in a locked filing cabinet. However, a lack of secured storage space meant it was stored on top of the cabinet in a locked room.
Central Essex Community Services has agreed to train staff on data protection and to monitor compliance with its guidance.
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The Court of Appeal last week handed down a landmark ruling in relation to deprivations of liberty. Ben Troke and Neil Ward assess its impact.
“Deprivation of Liberty” has always been a slippery concept, in a health and social care setting, but with huge risks if you get it wrong. A deprivation of liberty without lawful justification, and due legal process for scrutiny, would be a breach of the person’s rights under Article 5 of the European Convention, with all the adverse consequences of possible liability in damages, or punishment in legal costs and, increasingly, very public criticism in court and the media, especially in the cases of public authorities which fall foul of this.
The Court of Appeal Judgment in P v Cheshire West and Chester Council (9 November 2011) raises fundamental issues which seem likely to significantly reduce the number of cases where there is found to be a deprivation of liberty in the first place.
P was a 39-year-old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care. In April 2011 a judge held that he was deprived of his liberty in his local authority placement at Z House, as staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating.
The Court of Appeal says, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.
Lord Justice Munby’s thorough review of the case law revisits two key issues – “purpose”, and “normality”, which the court also wrestled with in the case of “MIG and MEG” (known as “P and Q” in the Court of Appeal).
He accepts that subjective good intentions do not render innocuous a situation that would otherwise be a deprivation of liberty (though he does think that acting in bad faith could turn a situation into a deprivation of liberty) (para 71). He distinguishes this from the objective issue of the aim of the restrictions, put in terms of the "purpose" or "reasons", which he says must be relevant to whether or not a situation is a deprivation of liberty (para 75-76). This may seem a fine distinction, but its real significance is clear when Lord Justice Munby goes on to look at the context and "normality" of the placement.
He said the key is to assess the “relative normality” of P’s life, taking into account the particular care needs arising simply from his physical or mental condition. It is not appropriate to compare P with a healthy adult, who would clearly be deprived of his liberty in these circumstances. “Some adults are inherently restricted by their circumstances”, and the court of protection is dealing with adults “with significant physical and learning disabilities whose lives are dictated by their own cognitive and other limitations”. The appropriate contrast to draw is with “the kind of lives that people like [P] would normally expect to lead” (paras 86, 97 and 102). There may be those who find the language of judging X’s care according to the life expected by "people like X” (para 102) a little uncomfortable, in the context of trends towards individual care and personalisation.
The Court of Appeal said that the first instance judge failed to see that the restrictions and limits on his life at Z House were nothing more than "the inevitable corollary of his various disabilities" (para 110), and “there was nothing to show the life he is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead…." The reality is that P was "living a life which is as normal as it can be for someone in his situation", and therefore he was not being deprived of his liberty (para 110, 116).
This is hugely significant, and seems to raise a number of issues which the courts will have to continue to clarify over the next few years.
Since the introduction of the Deprivation of Liberty Safeguards (DOLS), massive effort has been spent on education that a "deprivation of liberty" is not necessarily a bad thing, or inappropriate, but simply requires scrutiny and lawful authorisation (whether through DOLS in a care home or hospital, or the Court of Protection in other circumstances). Anecdotally, one of the reasons given for apparent underuse of DOLS is that professional staff understandably find “deprivation” a pejorative term, and are reluctant to recognise it in the care provided which is, usually, assessed in good-faith to meet the needs of P’s physical and mental condition. Lord Munby’s judgement, perhaps, shows that they have been right all along.
If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful (whether by DOLS authorisation or by Court of Protection order) as being in P’s best interests, necessary and proportionate, and the least restrictive option. It would seem that all the conditions that are required to make any deprivation lawful will, in effect, mean in most cases that there is no deprivation at all. Education and training that has emphasised the need to separate the primary question of whether there is a deprivation of liberty from the secondary question of lawful justification may now have to be revised.
As with the health and social care system as a whole, the issue of choice is paramount. If there is no realistic alternative to his current placement and circumstances, then it seems there is no deprivation of liberty (para 58). Taken together with the recent high-profile case of Neary v Hillingdon, it seems the most likely circumstances where a deprivation of liberty is found to exist arise when a family and a public body offer competing proposals for care, and in particular where the state tries to assert some control over what would otherwise be family life, protected by article 8 as much as article 5.
If that is the case, we may wonder if there is a discriminatory effect against those vulnerable people, lacking capacity, who do not have family offering alternative proposals, who may therefore be deemed not deprived of liberty, and will not have the benefit of any scrutiny of their care, either through DOLS or the court. The experience of recent scandals and reports about care of the most vulnerable in society might encourage a public view that more procedural scrutiny and safeguards are required, rather than less. The deprivation of liberty safeguards were introduced because the European Court of Human Rights found that HL was deprived of his liberty at a mental hospital where he was detained as an informal patient, for which the common law doctrine of “necessity” was insufficient justification or safeguard. Lord Justice Munby observes that this is a far cry from cases in which someone is in a family or foster home, or small residential unit. Despite this observation, apart from the fact that in HL his foster carers wanted to bring him home it is difficult to see why such there is a significant difference. The purpose or aim of the hospital managers in HL was to keep him safe and to care for him in what was believed to be the best way possible in his best interests, the same purpose or aim as the local authority in this case.
In the absence of family, or others, pressing for an alternative, the reasoning in Chester seems to risk going full circle - back to before HL and DOLS - re-establishing deference to a professional assessment, with any restrictions put in place in good faith according to the physical and mental health needs being deemed not to be a deprivation of liberty, without significant scrutiny and perhaps not so very far, in practice, from the old common law idea of "necessity".
Strictly speaking, there may be no need to bring cases to the court if it is not felt, or disputed, that there might be a deprivation but we tentatively suggest it would be prudent to continue to seek confirmation from the court where there is any doubt. Lord Justice Munby hints at this when he says that many cases coming to court will be fairly obviously no deprivation - for example “if someone is being cared for by their parents, friends or relatives in a family home …or in a foster placement or its adult equivalent in small specialist sheltered accommodation” (para 103) - and the court will be able to deal with most cases of this type "fairly but at the same time simply and quickly… on the basis that there is no deprivation of liberty" (para 104).
This would certainly ease the pressure a little on public authorities, the Official Solicitor and the court, who are all currently snowed under with applications, particularly in the wake of Neary, but it remains to be seen whether the notions of "purpose" and particularly "normality" in turn raise more questions than answers.
See also: Local authority wins appeal in landmark ruling on deprivations of liberty
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The first-ever judicial review challenge in the High Court brought by one NHS organisation against another has succeeded.
The Royal Brompton & Harefield NHS Foundation Trust (RBHT) took legal action over the outcome of the Safe and Sustainable consultation on the future of children’s heart surgery.
The consultation had recommended to the Joint Committee of Primary Care Trusts (JCPCT), the relevant decision-making body, that Great Ormond Street Hospital and Evelina Children’s Hospital be chosen as the two children’s heart surgery centres in London.
But, in a judgment published today, Mr Justice Owen ruled that the consultation was unlawful and should be quashed.
He rejected the vast majority of RBHT’s complaints, including that:
- the determination to have two rather than three London centres providing paediatric congenital cardiac services had been taken prior to the consultation exercise, as far back as 2010
- the Joint Committee had acted irrationally in excluding three London centres from the preferred options in the consultation and in excluding the Royal Brompton from the two London centre options
- the consultation was fundamentally flawed and had misled the public
- the consultation process was vitiated by bias, or by the appearance of bias was rejected as well.
However, Mr Justice Owen concluded that the consultation process was unfair to the trust in the way that its capacity for research and innovation was assessed.
The judge said the unfairness was “of such a magnitude as to lead to the conclusion that the process went radically wrong”. It had also led to the distortion of the consultation, he added.
A ‘configuration evaluation’ that had been conducted as part of the consultation exercise had given RBHT a low score for research and innovation, but this rating was based on information provided for a separate exercise.
No request for specific information on the trust’s paediatric cardiac research programme had ever been requested.
Mr Justice Owen said: “Those responding to the Consultation Document would inevitably have proceeded on the premise that the RBHT’s capacity for research and innovation was poor.”
Reacting to the ruling, RBHT’s chief executive, Bob Bell, said: “It would have been so much easier to simply accept the plans of the Joint Committee of PCTs back in February, but we felt the stakes were simply too high. We could not sit back and watch while flawed plans to dismantle our specialist children’s services at Royal Brompton were drawn up by bureaucrats, plans which we knew would have a harmful effect on patient care.
“The real tragedy is that the judicial review could and should have been avoided. It was obvious to us from the outset that there were errors in the Safe & Sustainable process and we made Sir Neil McKay, chair of the Joint Committee of Primary Care Trusts, aware of our concerns. His refusal to consider these issues left legal challenge the only option open to us. This was highly regrettable, a decision of last resort.”
Bell said the position of RBHT remained that the number of paediatric cardiac surgery patients in London and the South East warranted a paediatric network system, comprising the three current outstanding centres. Each offered a different but complementary model of care, he argued.
Sir Neil said he was “disappointed that Mr Justice Owen decided to quash the consultation on an obscure technical point that had no material bearing on the JCPCT’s choice of consultation options”.
He welcomed the judge’s dismissal of all but one of RBHT’s claims and added: “We respectfully intend to appeal the judge’s decision based on his misunderstanding of the review process.”
On the score for research and innovation, Sir Neil said: “It is particularly disappointing that the judge upheld this claim as he conceded that the sub-score for ‘research and innovation’ had no material bearing on the JCPCT’s choice of consultation options.
“The judge acknowledged that even had RBHT been awarded the maximum possible sub-score for ‘research and innovation’ it would not have altered the JCPCT’s preference for Great Ormond Street Hospital and Evelina Children’s Hospital as these two hospitals would have still scored higher than RBHT against the other criteria."
Sir Neil said the work of the Joint Committee would continue and that a final decision on the future configuration of services would be made in the Spring of 2012.
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The dispute over NHS Gloucestershire’s plans to transfer services and more than 3,000 staff to a community interest company is to go to the High Court.
NHS Gloucestershire had planned to complete the transfer to Gloucestershire Care Services Community Interest Company (CIC) on 1 October.
However, Leigh Day, representing local resident Michael Lloyd, wrote to the trust warning that it would seek an injunction blocking the move.
NHS Gloucestershire decided to examine its position and agreed not to transfer services without providing the law firm with three days’ notice.
It has now given that notice and Mr Lloyd has formalised his legal challenge.
Jan Stubbings, Chief Executive of NHS Gloucestershire, said: “I have agreed not to sign the contracts required to effect the transfer pending the outcome of a hearing. The parties have made a joint application to the court for an early hearing to resolve matters as quickly as possible.”
Stubbings argued that concluding the arrangements for the transfer was in the interests of patients and staff and would ensure service continuity and stability.
“Timely resolution of outstanding legal matters is also in the interests of the taxpayer and public funds,” she said.
The NHS Gloucestershire chief executive insisted that the trust had followed all applicable policy and guidance in making its decision to transfer services to the CIC.
“Through this process, we believe we have identified the most appropriate solution for the future,” Stubbings added. “We now have a clear direction with the majority of our community health services becoming part of a social enterprise – working in the community interest and for the social good.”
In its warnings to the trust Leigh Day claimed that NHS Gloucestershire had failed to meet a legal duty to offer the opportunity to bid for the contracts to other economic operators, including NHS trusts which operate primary and community care services in counties near to Gloucestershire.
The trust’s attempt to enter into a contract with the community interest company constituted an unlawful procurement process, it added.
Philip Hoult