Healthcare Features
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The High Court was recently asked to consider approving the withdrawal of treatment from a woman in a minimally conscious state. Alex Ruck Keene, Victoria Butler-Cole and Josephine Norris look at the case.
In W v M [2011] EWHC 2443 (Fam) M had suffered a non-traumatic brain injury some eight years ago, following which she was diagnosed as being in a vegetative state. On further examination, it transpired that M did not meet the criteria for vegetative state and was in a ‘minimally conscious state’ (‘MCS’). M was severely disabled and dependent on others for all aspects of her care. She had no functional communication and only intermittent awareness of herself and her environment. So far as it was possible to tell, M was capable of experiencing pain, and did experience pain though not constantly. She was apparently able to have pleasurable experiences for example hearing music and being massaged. She was kept alive through artificial nutrition and hydration (ANH).
M’s sister and partner were adamant that M would not have wanted to be kept alive in this condition. She had been very independent and had expressed views about not wanting to end up in a care home or dependent on others. There was no realistic prospect of M recovering, and it was estimated that her life expectancy was a further 10 years. The family sought a declaration under the MCA 2005 that it was in M’s best interests for ANH to be withdrawn.
The application was opposed by the PCT responsible for commissioning M’s care and by the Official Solicitor on behalf of M, who argued that M’s quality of life was not so burdensome to her she should be allowed to die, and that her previously expressed wishes and likely views were too uncertain to be given significant weight. The Official Solicitor further submitted that the court could not carry out a balancing exercise at all in the case of a patient in MCS who was clinically stable, because to do so would be to make impermissible value judgments about another person’s quality of life.
Mr Justice Baker found against the Official Solicitor on the question of what approach the court should take to the application, holding that a best interests decision had to be made, and that there was no rationale for extending the approach set out in Bland (whereby there was no balancing exercise to perform in respect of someone who was permanently insensate) to patients in MCS.
In M’s particular case, the judge found that M’s life was not overly burdensome, saying in his summary that "M does experience pain and discomfort, and her disability severely restricts what she can do. Having considered all the evidence, however, I find that she does have some positive experiences and importantly that there is a reasonable prospect that those experiences can be extended by a planned programme of increased stimulation." The preservation of life was a fundamental principle, and the views of M’s family about her likely wishes were not to be given significant weight.
Comment
It is unsurprising that a court will be extremely reluctant to sanction steps which result in the death of an incapacitated person, and is likely to err on the side of choosing life over death, given the gravity and irreversibility of the decision to withdraw ANH.
However, it is interesting to note that in any other case, the previously expressed views of a now-incapacitated person, and their likely view of their present circumstances, would be paid considerably more attention.
Perhaps the most important lesson to draw from the judgment is that given the inherent cautiousness about refusing medical treatment on the part of an incapacitated person, there should be much greater use of advance decisions about medical treatment, for those people who are uneasy about the prospect of a court making decisions on their behalf if they should lose capacity.
Alex Ruck Keene, Victoria Butler-Cole and Josephine Norris are barristers at 39 Essex Street.
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The Information Commissioner is to prepare the business case for extending compulsory audit powers to local government, the NHS and the private sector in a bid to ensure compliance with data protection laws.
The ICO currently only has compulsory audit powers over central government departments. In all other cases it requires consent before being able to conduct an audit.
Speaking at the 10th annual data protection compliance conference in London, Christopher Graham said: “Something is clearly wrong when the regulator has to ask permission from the organisations causing us concern before we can audit their data protection practices. Helping the healthcare sector, local government and businesses to handle personal data better are top priorities, and yet we are powerless to get in there and find out what is really going on.
“With more data being collected about all of us than ever before, greater audit powers are urgently needed to ensure that the people handling our data are doing a proper job. I am preparing the business case for the extension of the ICO’s Assessment Notice powers under the Coroners and Justice Act 2009 to these problematic sectors.”
Graham’s comments came as the ICO reported that 19 out of the 47 undertakings it had agreed since April this year involved the healthcare sector.
The ICO also revealed that businesses remained the sector generating the most data protection complaints. However, less than one in five companies contacted by the watchdog accepted an offer of undergoing an audit.
The watchdog said it had written to 29 banks and building societies, but only six had agreed to an audit. There was a similar reluctance in the insurance sector as well, with only two out of 19 insurance companies accepting the ICO’s offer.
The Information Commissioner told the conference that the overall number of new data protection complaints was up by 2% compared to the same period last year. The number of freedom of information complaints has also risen by 5%.
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The NHS Employers organisation has produced guidance on managing industrial disputes in the NHS in a bid to help employers deal with the legal, practical and operational risks involved.
“Early engagement with local staff side partners and honest, open discussions are a key to successfully resolving disputes before they escalate,” NHS Employers said. “Unfortunately there are occasions where partnership working can break down and industrial action can follow."
The guidance, drawn up with the assistance of law firm Beachcroft, added: “The purpose of industrial action is to put pressure on employers, with a view to resolving a dispute.
“The key issue for employers in the NHS will be to ensure that any consequent disruption does not jeopardize patient welfare or safety. There are a number of ways in which NHS bodies should prepare for industrial action, to minimise that risk.”
The document, Managing industrial disputes: guidance for employers in the NHS, covers:
- Advice on the preparation of an options analysis in response to the threat of industrial action
- Negotiating a protocol with the principal unions, setting out the approach that the employer and the unions will take in the event of industrial action
- Contingency planning to minimise the disruptive effect of industrial action.
The appendices include an introduction to industrial action, covering the legal status of both industrial action and picketing, an outline of the steps that must be followed before lawful industrial action can be called by a union, and answers to frequently asked questions on legal and practical issues.
The guidance is intended to be “an easily accessible source of basic information”. However, NHS Employers warned that this was a complex legal area and that in individual cases trusts should consult their legal advisers on the detailed local situation.
NHS Employers has also provided a suggested template for policy statements on pay and related issues. “It is important that during a balloting period, individuals understand the consequences for them of deciding to take part in any form of industrial action,” it said.
ICO orders Department of Health to disclose legal advice on application of EU competition law to NHS
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The Information Commissioner has ordered the Department of Health to disclose legal advice on EU competition law given to ministers in relation to a key part of the Health and Social Care Bill.
The complainant wrote to the Department of Health in April in the following terms:
- “What legal advice was given to the Secretary of State or other Ministers in the Department about the implications of “any willing provider” in the Health and Social Care Bill on EU competition law or EU procurement law either for the Explanatory Notes or at any time? And
- I would also like to seek information on the legal implications for the replacement wording ‘any qualified provider’?”
In its response the Department said legal advice was integral to its advice to ministers on the introduction of the Bill. But it said that no separate legal advice was commissioned by officials on the impact of the Bill upon the application of EU competition law to the NHS.
The Department added that legal advice was sought in 2007 on the application of EU competition law during the process of setting up the Cooperation and Competition Panel (CCP). It argued that the 2007 advice was exempt from disclosure due to legal professional privilege.
The DoH also said that advice to ministers was exempt from disclosure under s. 35(1)(a) of the Freedom of Information Act as it related to formulation of government policy.
The complainant then asked for an internal review of the Department’s decision.
After carrying out the review, the DoH told the complainant that legal advice relating to the implications of “any willing provider” on EU competition or procurement law had not been the subject of submissions to ministers. It said it therefore did not want to rely upon s. 35(1)(a).
The Department also explained that specific legal advice on the application of EU competition law to the NHS was commissioned by officials at the time the CCP was established. It said the advice was exempt under s. 42 FOIA (legal professional privilege). The DoH also confirmed that the information in part 2 of the request was not held.
The complainant then wrote to the Information Commissioner to complain about the handling of his request, and to ask whether the Department was correct in withholding the legal advice.
The Information Commissioner concluded that:
- There was a very strong public interest in promoting openness, transparency and accountability in the DoH’s decision making processes, “particularly in relation to changers to the NHS as it impacts such a large number of people”
- There was a high level of interest in how the NHS is organised and who delivers services
- There was a very strong public interest in allowing the public to be fully informed when legislation such as the Bill is being debated, “enabling them to fully engage in the debate”
- He had taken into account the public debate taking place about the competition aspects of the Bill at the time the request was made and the extent of information available to the public that would enable them to understand the government’s position on the implications of the Bill in terms of EU competition law
- He had considered the argument that there was already information in the public domain about EU competition law and the NHS from different sources “but this does not negate the public interest in the public seeing the legal advice the government holds on the matter”
- The complainant had argued that once the private sector expanded and the state’s provision reduced in the NHS, EU competition law may become more prevalent
- The Commissioner did consider there was a very strong public interest in the DoH being able to obtain full and thorough legal advice to “enable it to make legally sound, well thought out and balanced decisions without fear that this legal advice might be disclosed into the public domain”
- He considered that disclosure might have a negative impact upon the frankness of legal advice provided “and may even have an impact upon the extent that legal advice is sought”. This could in turn have a negative impact on the quality of decisions made by the DoH which would not be in the public interest
- He did not accept that disclosure would lead to the DoH or its legal advisers failing to record legal advice thoroughly in the future.
The Information Commissioner acknowledged that it was “a finely balanced case”. However, he ruled that the public interest in maintaining the exemption did not outweigh the public interest in disclosure.
A spokesman for the Department of Health said it was currently considering whether or not to appeal the Information Commissioner's decision.
The application of competition law to the NHS has been a controversial issue throughout the summer. In August campaign group 38 Degrees published a legal opinion that claimed that reforms in the Bill would increase competition within the NHS at the expense of collaboration and integration and/or make it "almost inevitable" that UK and EU competition law would apply.
38 Degrees said the likelihood of the courts finding NHS services fall within the scope of UK and EU competition law would be further increased by other government NHS policies, such as the extension in July 2011 of the right of Any Qualified Provider to be given a contract to deliver health services.
The campaign group also claimed that the new commissioning groups created by the Bill would be subject to "costly" EU procurement rules when they commissioned local health services, and that the plans would lead to a system geared heavily in favour of private companies.
It warned that it was unclear whether commissioning groups would have the procurement expertise to deal with complex procurement processes and avoid legal action from disgruntled bidders. "This could mean that the NHS ends up spending a lot of time and money fighting legal action instead of investing in patient care," 38 Degrees said. "Or worse, it could mean they are reluctant to commission any services for fear of being sued."
In its response the Department of Health said it did not agree with all the conclusions reached – in particular about the capacity and capability of commissioners to comply with procurement law and the steps being taken to address this.
"We have never said that competition law doesn't apply to the NHS or that the Bill would prevent it applying," the DoH said. "On the contrary, we have consistently said that competition law would apply where it applies, with or without this Bill. However, we have also acknowledged that there is legal uncertainty as to when competition law would apply in the NHS due to the absence of relevant case law."
The Department also rejected allegations from 38 Degrees that the Bill would do nothing to prevent "cherry-picking" by private health providers.
Philip Hoult