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Written by: Sean Clement

Category: Healthcare Features

Published: 28 October 2010

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The quality of serious case reviews (SCRs) continues to improve but nearly one in six are still judged to be “inadequate”, Ofsted said today.

The watchdog looked at 147 SCRs for its Learning lessons from serious case reviews 2009-2010 report. It found that 42% were judged good, 42% adequate and 16% inadequate.

Ofsted warned that many of the cases reviewed “reveal the persistence of some key issues in practice which have contributed to shortcomings in the protection of the children involved”.

The report found that:

• The most common characteristics of the incidents were physical abuse or long-term neglect
• A consistent finding was a failure to implement and ensure good practice “even though established frameworks and guidance were available”
• There was often insufficient consideration of the child’s individual views and needs
• Statements from parents or other family members were not sufficiently challenged.

Ofsted’s report also revealed that “too often” agencies failed to share early enough information that could have contributed to a better understanding of children and their families. “For example, some parents within these reviews were receiving support from adult social care, adult mental health, substance misuse, housing and probation,” it said.

The SCRs covered incidents affecting 194 children. Some 90 of the cases related to child deaths, with the rest involving serious incidents. 

Of the 194 children involved, 119 children were known to children’s social care services at the time of the incident. 90 children were receiving services as children in need, of which 49 were the subject of child protection plans. Some 31 of the children who had died were receiving children in need services.

Christine Gilbert, Her Majesty’s Chief Inspector, said it was encouraging to see that more reviews were being judged good, with fewer reviews inadequate.

She added: “The case studies highlight the complexities of the situations which social workers and others are responding to. In undertaking these reviews, agencies have been able to reflect on what happened and learn from their experience. They have identified gaps in their approach and most important, have agreed actions to improve the protection of children and so reduce the chances of such serious incidents from happening again.”

Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The death of even one child is one too many. The number of cases of this type being reported to Ofsted is down by nearly 50% compared to the previous 12 months but there is no room for complacency.”

Ritchie stressed that social workers were part of the solution not the problem, and had protected tens of thousands of vulnerable children at a time when their workload has been growing.

She added: “It is the over-riding aim of every council in this country and indeed virtually every parent – that we do everything within our power to keep every child safe from harm.

“Councils are working tirelessly to improve how they identify and protect children at risk from neglect and abuse, and an outside perspective does help. When things tragically go wrong they need to be examined. There is important work to be done within the police and NHS as well as at a local government level, and Ofsted also has a role to play in making things better.”

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Written by: Sean Clement

Category: Healthcare Features

Published: 28 October 2010

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In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage. Alasdair Henderson looks at the reasoning.

Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.

The claimants, A and B, were children born as a result of IVF treatment provided by the defendant. The children’s parents were white, and so understandably (and following normal practice) the mother’s eggs were supposed to be inseminated with donated sperm from a white donor. Unfortunately, the defendant mistakenly used donated sperm labelled “Caucasian (Cape coloured)”. A and B therefore had skin colours that were markedly different from their parents, and different from each other.

The claimants brought claims for damages, saying that they had been called names by other children, had malicious comments made about them and their relationship to their parents, and had wondered whether they were adopted. As a result they said they had suffered emotional distress.

Duty of care

The first difficult question the court had to consider in A (a minor) and B (a minor) v. A Health and Social Services Trust [2010] NIQB 108 was whether or not the defendant owed the claimants a duty of care at the time of the mistake. As Gillen J explained, this was new territory for any court to explore: “The court is thus being asked to venture into the complexities of the creation of life involving a unique physical and scientific process and to develop the law to deal with an instance where harvested eggs were fertilised with what has been deemed inappropriate donor sperm. Was there a duty owed to the cells that the eggs would not be so fertilised?”

The judge went on to sidestep the scientific, philosophical and moral minefield that this question opens up by finding that it was for Parliament to “grasp the nettle” on this issue, not the courts, and that “absent the imprimatur of Parliament” the claimants did not have sufficient status at the relevant time to be owed a duty of care.

It is dangerous to venture where the learned judge feared to tread, but this decision must be correct. The common law position is that while an unborn child does not have legal personality, there is a duty to take care not to cause damage to it while still in its mother’s womb, and a child is deemed to be possessed at birth of all the rights of action which it would have had if it had possessed legal personality at the date of any accident befalling its mother (see Burton v. Islington HA, which was considered by Gillen J). However, it is another step entirely to say that a duty of care is owed to a single egg, when a child is only a twinkle in its father’s eye, or (as the case may be) a solitary cell at the bottom of a test-tube. If a duty of care were owed to human cells, this would have much wider ethical and legal implications than IVF clinics having to be a bit more careful.

Loss and damage

The second difficult question Gillen J tackled was whether, if a duty of care was owed to the claimants, they had suffered any actual damage. The claimants were both perfectly healthy children. The only ‘problem’ was their skin colour – it was not what their parents had intended or expected. The judge held that “whilst the current circumstances could not fail to engage both sympathy and concern for the parents” as a matter of legal policy (see McFarlane v. Tayside Health Board) healthy children were a blessing for which damages could not be claimed, and that: “In a modern civilised society the colour of their skin – no more than the colour of their eyes or their hair or their intelligence or their height – cannot and should not count as connoting some damage to them. To hold otherwise would not only be adverse to the self-esteem of the children themselves but anathema to the contemporary views of right thinking people.”

As a result, he held that the children had not suffered any legally recognisable loss or damage.

This, too, must be the correct conclusion. No doubt the claimants had suffered abuse, but as the judge put it “the presence of persons sufficiently misguided and cruel as to issue racist comments directed at these children is no basis for a conclusion that they are somehow damaged.” To find otherwise would be to say that being of a particular colour was a detriment in some circumstances, which would be morally repugnant.

Postscript – anonymity orders

The defendant had argued that publication of the judgment in any form could compromise the privacy rights of the children under Article 8 and would lead to unnecessary disturbance of confidence in IVF treatments.

Gillen J held that an anonymised report of the case could be published. In balancing the Article 8 rights of the children against the important free press rights under Article 10, he noted that the parents of the children were neutral on publication as long as the claimants were not identifiable, and that: “[T]he issue of IVF (a subject on which differing views are held by the public at large ) and the general context of what has happened in this instance are matters of general public interest on which I should give effect to the right of the press to freedom of expression.”

Alasdair Henderson is a pupil barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK Human Rights Blog.

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Written by: Sean Clement

Category: Healthcare Features

Published: 27 October 2010

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The Care Quality Commission has vowed to use its regulatory powers to secure improved mental health services for patients subject to the Mental Health Act, after its research found “too much poor and unacceptable practice” and even potential breaches of human rights.

In its first annual report on use of the Act, the CQC said it had concerns about how some care providers – in both the NHS and private sector – were adhering to the principles of the Act and its Code of Practice.

The watchdog outlined three priority areas for improvement. These were:

• involving patients in decisions about their care and treatment
• assessing and recording patients’ consent to treatment
• minimising restrictions on patients and avoiding ‘blanket’ security measures.

CQC chief executive Cynthia Bower acknowledged that staff and managers who work in mental health services do not always get the recognition they deserve. “Many of the men, women and children who come under their care may owe their very survival to their dedication and compassion, both on the hospital ward and out in the community,” she said.

However, Bower added that the CQC had found “too much poor and unacceptable practice and this must be tackled. Our top priority is to protect the interests of patients, and we will use our powers to ensure that care providers address these issues and make real improvements.”

She said the CQC’s predecessor, the former Mental Health Act Commission, had driven significant improvements in mental health services but did not have the regulatory powers available to its successor.

The CQC has so far placed conditions on four trusts providing mental health services. In three cases, this was because patients were not being cared for in accordance with their rights. Bower said the trusts has all made improvements but warned that the watchdog would continue to monitor their performance.

Bower said that involving people in the decisions that are made about their care was a key factor in helping their recovery.

In relation to the assessment and recording of patients’ capacity to consent to their treatment, she said: “When our Mental Health Act Commissioners visit patients on the wards, they often find that what patients tell them doesn’t match up to what the records say. It may be recorded that they have given their consent, but either they apparently lack the capacity to do so or they say they have refused to do so, and this is a concern.”

The CQC chief executive also urged hospitals to minimise the restrictions they place on patients.

She said: “We recognise the importance of ensuring people’s safety, but more hospitals are keeping psychiatric wards locked at all times, even though they often accommodate voluntary as well as detained patients.

"In some places there are blanket bans on mobile phones and internet access. These sorts of measures could compromise patients’ privacy or dignity, hold back their progress and even breach their human rights.”

In its report the CQC also revealed that more than 4,000 people had been made the subject of a community treatment order in 2009/10, more than ten times the number the Department of Health had predicted.

These orders, introduced in November 2008, are designed to ensure there is effective care outside hospital for patients who, on being discharged, may refuse to take their medication or co-operate with community mental health services. One in five patients was recalled to hospital.