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Injecting some reality into Health and Social Care Act 2012 Death is the only certainty in life, the prospects of appealing a so why has the law on assisted GMC Fitness to Practice Panel Legal issues arising from claims dying been branded "inadequate concerning negligence in relation to the diagnosis of renal failure E-disclosure: survival guide NHS strike action When will a doctor's negligent acts or omissions attract
criminal liability
Page 4
Injecting some reality into the prospects of appealing a GMC Fitness to Practice Panel determination
The recent decision of Mrs Justice
Dr Cornish appealed against the FPP's Lang highlights the hurdles a doctor
determination that his name be erased faces in seeking to successfully
from the medical register, and against appeal a decision of the GMC's
the FPP's determination on the facts. Fitness to Practice Panel (‘FPP'). It
He did not contest the FPP's finding also emphasises a general reluctance
that his fitness to practice was of the courts to interfere with
impaired on the grounds of his determinations of the FPP.
previous conviction, his misconduct or his adverse physical and mental health. He did, however, appeal against Dr Cornish, a consultant anaesthetist at the FPP's determination that he self- Yeovil District Hospital, had been struck administered drugs within the hospital off the register. The FPP had found that buildings of Yeovil District Hospital. his fitness to practice was impaired on a number of grounds including a At the hearing, he admitted to self- previous conviction for theft of drugs administering drugs in the hospital from his employer, misconduct (for car park, in his car and at his home, taking drugs from the hospital and but he disputed the finding of fact administering them on Trust premises that he had also self-administered and at home) and his adverse physical within the hospital itself (in his or mental health (he had abused evidence to the FPP, Dr Cornish medicinal drugs such as Fentanyl and accepted that if he was found to be Morphine, obtained in the course of taking drugs whilst at work in the his employment, for many years and hospital buildings, it would impact on had also been diagnosed with Opioid his future employability).
The merged firm of Clyde & Co and Barlow Lyde & Gilbert
The FPP's finding of fact
In the second of those cases2, Laws LJ took the view The FPP concluded that it did not consider Dr Cornish to be that consideration should be given to the difference a credible witness given that he had consistently lied about in function of the FPP in imposing sanctions from that his drug history. Furthermore, and by his own admission, of a court imposing retributive punishment. Where Dr Cornish had told the FPP that at one stage his drug professional discipline is at stake, the relevant committee taking had become chaotic and there were times where he is not concerned primarily with the punishment of could not wait 20 minutes to get home to self-administer the practitioner concerned, but rather the reputation drugs. In light of this, the FPP considered that he could or standing of the profession. The consequences of a not have had the self-control not to self-administer drugs sanction (such as erasure) may be deeply unfortunate within the hospital. Dr Cornish had also been found to be for the individual concerned (i.e. an inability to continue storing drug paraphernalia in his hospital locker. practicing) although, in light of the reasoning above, does not necessarily make the sanction wrong. It seems The FPP was therefore satisfied that it could reasonably therefore that the court considers the reputation of the infer, on the balance of probabilities, that Dr Cornish had profession more important than the fortunes of any self administered drugs within the hospital building.
individual member.
The FPP's sanction of erasure
Mrs Justice Lang stated that the above principles constitute The FPP had determined that, in light of his previous the essential approach to be applied by the High Court conviction and misconduct, erasure was the appropriate on appeal. Interestingly, she went on to say that such sanction for Dr Cornish. Dr Cornish appealed on approach does not necessarily emasculate the High Court's the grounds that the decision was excessive and role in the appeal process. The court will, for example, disproportionate. He made a number of submissions correct material errors of fact and law and it will exercise including the fact the FPP had failed to attach any weight judgment, albeit distinctly and firmly as a secondary to evidence from colleagues that he was a well-regarded, judgment as to the application of the principles to the facts competent practitioner and there had been no formal or of the case.
informal complaints about his work with patients during In this particular case however, Mrs Justice Lang considered his 15 years of opioid dependence.
that the FPP had set out an impressive summary of the The High Court decision
evidence prior to its conclusions and that its reasons were fully and clearly stated. She considered the FPP was Mrs Justice Lang rather unsurprisingly dismissed both entitled, on the basis of the evidence before it, to conclude grounds of Dr Cornish's appeal in this particular instance. Dr Cornish had self-administered within the hospital In doing so, she considered the High Court's jurisdiction buildings. Furthermore, and in her judgment, Mrs Justice on appeal from a determination by the GMC in light of two Lang considered the FPP had correctly concluded erasure recent Court of Appeal cases. was the appropriate sanction, particularly bearing in mind In the first of those cases1, Auld LJ stated that it is plain the seriousness of Dr Cornish's misconduct. from the authorities that the court must have in mind and In Mrs Justice Lang's view, the FPP had correctly directed give such weight as is appropriate in the circumstances to itself on the relevant law and guidance, fairly assessed the the following factors: evidence, and reached conclusions which were justified on (i) the body from whom the appeal lies is a specialist the evidence before it. In light of this, she came to the same tribunal whose understanding of what the medical conclusions as the FPP such that any degree of deference to profession expects of its members in matters of medical the more specialist tribunal, in her view, was irrelevant.
practice deserves respect (ii) the tribunal had the benefit, which the court normally Perhaps the facts of this particular case are not the best does not, of hearing and seeing the witnesses on both example of how one might go about successfully appealing a FPP determination. The judge did not even need to stray (iii) the questions of primary and secondary fact and the into questions of deference as eluded to above, for example. overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which The case does, however, give a succinct view of what a High there may reasonably be different answers Court Judge has in mind when considering whether or not a FPP has come to the correct decision. The principles referred to by Mrs Justice Lang appear, on their face, unproblematic. On closer inspection however, the hurdles that must be overcome are difficult. 1 Meadow v General Medical Council [2007] QB 46s 2 Raschid v General Medical Council [2007] 1 WLR 1460

The court acknowledges for example, if the FPP has There is hope for any potential appeals however, and observed the witnesses and weighed their evidence, its consideration should be given to whether or not the FPP decision on such matters is more likely to be correct than has made material errors of fact, law and/or judgment. In any decision of the court which cannot deploy those these circumstances, the court should be more ready to factors when assessing the position. Furthermore, the overrule a determination.
court appears quick to defer to the FPP on issues which are relevant to the profession (issues of medical practice and the standing of the profession for example).
AssociateT: +44 (0)20 7876 6091 E: [email protected] E-disclosure: survival guide
The new rules on electronic disclosure affect healthcare
It is also good to remember that the rules on standard providers as the widespread use of technology in hospitals,
disclosure remain unchanged but the scope of ‘documents' surgeries and clinics means electronic documents have
which a party must consider has been extended. Therefore, become a key source of disclosure materials. This article
a party is still only required to make a reasonable search provides some practical guidance for healthcare providers
for documents that support his case or adversely affect or on what to expect in the future.
support another's case. The requirement to consider e-disclosure now applies in all The general principles of e-disclosure balance the duty to cases where proceedings started on or after 1 October 2010. disclose information with (a) the nature and complexity of proceedings; (b) the significance of any document that is Does it really apply to my case?
likely to be located during the search; and (c) the volume of Yes, the rules on e-disclosure set out under Practice documents involved.
Direction 31B of Civil Procedure Rules apply to multi-track cases with any cause of action which began on or after These considerations must be borne in mind by both parties 1 October 2010. To-date there have been both clinical and should specifically be considered during pre-case negligence cases and product liability cases which have been management conference discussions. If agreement cannot the focus of e-disclosure.
be reached between the parties the case should be referred to a judge for directions.
What is an e-document?
A ‘document' is anything in which information of any description is recorded. This broad definition now includes Given the ever-increasing volume of electronic data that is email, text messages, voicemails, word documents, created in the workplace the new rules on e-disclosure will radiographs, photographs and metadata. have far-reaching consequences.
Perhaps the biggest surprise to some is the fact this The best way to be prepared for e-disclosure is to ensure these includes deleted items or ‘metadata' as it is known. This electronic documents are manageable and easily searchable. will include documents stored on servers and back up Therefore, it is recommended a policy is adopted and systems. Therefore, it is important to ensure preservation of applied throughout the workplace for preserving documents documents as soon as litigation is contemplated (i.e. at the (including emails) and filing electronic documents. This will inquest or complaint stage).
make any search more manageable in the future.
Finally, those who create documents in the workplace need How will the rules affect my cases?
to be aware that these documents may need to be disclosed The new rules may cause some concern over the escalating if litigation is subsequently contemplated. In particular, costs of complying with e-disclosure. However, the many have been trapped by the informality of emails which e-disclosure rules are not intended to increase the cost burden later have been disclosed. Adopting a strict policy now can on the parties and there are ways of managing the costs.
save problems later.
The Practice Direction encourages and assists the parties to reach an agreement in relation to the disclosure of electronic documents in a proportionate and cost-effective manner.
T: +44 (0)20 7876 6008 E: [email protected] When will a doctor's negligent acts or omissions attract criminal liability?
We have advised recently on a number of incidents where
To be convicted of gross negligence manslaughter, a doctor it is alleged that a doctor was criminally responsible for
must have breached a duty of care owed by them to the the death of his/her patient. Rachel Morse examines
patient causing death and the breach of the standard the current law behind gross negligence manslaughter
of care must be ‘so grossly negligent as to justify a criminal allegations and offers some practical points.
conviction'. The standard of care demanded of the doctor is the standard of the reasonably skilled and experienced Imagine the scenario. It is the end of a busy shift in A&E when doctor in the doctor's particular field of medicine. It is patient A is admitted. The attending doctor reaches a rapid ultimately a question of fact for the jury to determine conclusion that the patient is, sadly, in the process of dying whether the standard of care provided was so badly and that intervention would be futile. The attending relatives negligent that it can properly be condemned as criminal. are upset with that decision. Patient A dies shortly thereafter.
In Dr Adomako's case, he failed to notice for over four Two months later, the doctor receives a request from the minutes that the tube administering oxygen to the police to attend a formal interview under caution. The patient had become disconnected. One prosecution expert family has obtained evidence to suggest that A's presentation described his standard of care as abysmal and said that was treatable, the decision not to treat was negligent, basic any competent anaesthetist should have recognised medical tests were not undertaken and the independent complete disconnection of the tube within 15 seconds. expert providing that evidence considers the doctor's The jury found the standard of care fell so far below decision fell below basic medical care.
the standard of the competent anaesthetist they were While this picture is, thankfully, uncommon, it does arise persuaded Dr Adomako's conduct went beyond a civil from time to time. The effect on the individual doctor breach of his duty of care and should attract the sanctions subjected to these investigations is catastrophic, they are of the criminal law. He was accordingly convicted of gross faced with potential criminal charges which may result in a custodial sentence and would, in any event, endanger their In R v Prentice and R v Sullman (1993) two junior doctors were registration and livelihood.
acquitted of manslaughter on appeal after they wrongly injected vincristine intrathecally into the patient's spine when the cytotoxic drug should have been administered The case of R v Adomako (1995) sets down the current test for intravenously. This resulted in the patient's death. It was gross negligence manslaughter. The defendant was a locum held that the question for the jury to answer in relation to anaesthetist at an operation to correct a detached retina. He a charge of gross negligence manslaughter was whether, in failed to notice that a tube had become dislodged during the the case of each doctor, the jury was sure that the failure course of the operation which resulted in the patient being to ascertain the correct mode of administering the drug deprived of oxygen. The patient suffered a cardiac arrest and was negligent to the point of criminality. The jury should died. The defendant was convicted of manslaughter and be directed to have regard to all of the circumstances of the appealed to the House of Lords (as was) on the basis that case. The case ultimately turned upon the fact there were gross negligence was not the correct test for involuntary many mitigating circumstances in the case and the jury manslaughter. The House of Lords dismissed his appeal and found although the doctors had acted negligently, they had held that gross negligence is the correct test. not acted grossly negligently.

In practice
Keeping accurate and detailed medical records is essential Whether or not a jury will find a doctor's actions to be because this may be the only record or evidence that a ‘grossly' negligent as opposed to negligent is dependent jury or a police investigation has to support the doctor's on the individual facts and circumstances of a specific version of events. Inadequate or muddled notes and lost case and on whether the jury decides to attach sufficient records may lead to an inability to rebut the prosecution's weight to any mitigating factors put in evidence before case. Best practice is to ensure all clinical developments them so as not to render the doctor's acts or omissions are noted together with investigations undertaken, action criminally liable. Although it is ultimately a matter for the on results and notes on future management, referral and jury whether or not an individual practitioner's acts or follow up in a patient's medical notes. omissions are so culpable as to attract criminal liability, In order to reduce the risk of undertaking acts or omissions there are certain things doctors can do to minimise the which a jury may find as being grossly negligent, medical risk of committing negligent acts that may or may not be practitioners should ensure they keep up to date with deemed ‘grossly' negligent. current medical practice within their own speciality and As demonstrated by R v Prentice and R v Sullman, when keep within the limits of their own expertise. Where delegating tasks to other doctors, the delegating doctor there are standard protocols or guidelines for dealing with should always check that the individual is competent particular conditions and these guidelines are not to a reasonable standard and communicate any tasks followed, individuals must be prepared to justify their effectively. The delegating doctor in this case failed own management by reference to a responsible body of to check whether Dr Prentice was competent to give medical opinion. cytotoxic drugs intrathecally and the supervising doctor, Police investigations are traumatic, both for the relatives of Dr Sullman, thought that he was only there to supervise the deceased and for the doctor concerned. It is, ultimately, the use of the needle to make the lumbar puncture but for the CPS to decide whether or not to prosecute bearing in had no responsibly over the administration of the cytotoxic mind the prospects of securing a conviction and the public drugs. Had there been clear communication between the interest. The quality of the notes, the adherence to policies delegating doctor, the supervising doctor and Dr Prentice, and the awareness of competency are factors which would the negligent administration of vincristine would not have weigh heavily in the CPS decision.
occurred, the patient would not have died and there would have been no charges of gross negligence manslaughter. Rachel Morse
The case also illustrates that delegated duties should not Trainee Solicitor be accepted unless the doctor is confident of completing T: +44 (0)20 7876 4767 them to a reasonable standard. – Trusts should, so far as possible, be prepared to offer the individual doctor as much legal and professional support as possible. While, strictly, the allegations do not affect the Trust and may be characterised as matters on which the individual's defence organisation should assist, it would be preferable for the Trust to be involved with the investigations – A successful defence would be predicated on the clarity, accuracy and coherence of the original medical records – The process is likely to be protracted. Depending on the nature of the allegations, Trusts will need to reassure themselves that there are no adult or child protection issues raised by the allegations which would suggest the individual should not undertake front-line duties in the interim – It is unlikely the police or the CPS will have access to the same in depth understanding of medicine or hospital practice; by offering an understanding of local and national procedures, the Trust can seek to inform the nature and scope of the investigation

Health and Social Care Act 2012
Regardless of any political view the lay observer may
– NHS Trusts are to move towards foundation trust status, hold, it must be common ground that the Health and
allowing greater financial flexibility in the provision of Social Care Act 2012 has, after a somewhat tortuous
healthcare and the promotion of public health. Failure journey, taken huge steps to reinvent the landscape of
provisions are set out healthcare provision. Comprising 309 sections and 23
– Monitor's remit is expanded to a general duty to schedules, the Act has implications for the entire NHS.
promote effective, economic and efficient healthcare The rationale for the change, and the effectiveness of
services. It carries ongoing oversight, licensing and tariff the provisions now in force, remain a matter of debate;
responsibilities for both NHS and private providers and the Government would appear not to have made the
is under a positive duty to eliminate anti-competitive case for change as compellingly as perhaps they would
practices. Provisions are made to ensure that providers have wished.
cannot simply cherry pick the most desirable or It would be impracticable to attempt to summarise the profitable patients or services, and to ensure reasonable workings of the Act within a few short paragraphs, never and transparent consistency of pricing. Monitor and mind to try to reconcile the reactions and implications the Care Quality Commission are also required to work of the Act, particularly where key issues on the together in a step towards the Government's goal of a implementation of the Act remain unclear. A short account comprehensive health and social care system of the key points, however, may be of assistance: – Patient representation is sought to be enhanced through local Healthwatch organisations reporting to Monitor, the – The Act seeks to define the duties attendant on the Secretary of State and other bodies Secretary of State, Monitor, clinical commissioning groups, NICE and other bodies within the new NHS. The The legislation is imposing in its breadth. It seems extent to which those duties can be easily reconcilable remarkable that, despite the physical size of the Act, there is perhaps a moot point; pertinently, there would seem remain questions as to how it will in fact work; guidance to be an inevitable tension within the expanded remit documents setting out how Monitor will exercise its of Monitor both to control price and efficiency and to functions are awaited, for example.
maintain or improve quality Andrew Lansley stated that his aim was to ".deliver power – PCTs and SHAs are in the process of being abolished. In to clinicians, … put patients at the heart of the NHS, and.reduce their place, the Act establishes clinical commissioning the costs of bureaucracy".
groups to provide a nationwide network of commissioners answering to the NHS Commissioning In a time of financial crisis, with Trusts struggling to make Board. Some may say that in order to achieve effective financial savings and with clinical and nursing morale bargaining leverage, a critical patient density and to seemingly heading towards an all time low, it can only attract suitable experienced commissioners, the new be safely said that the costs of reorganising the NHS will CCGs will in effect simply be old PCTs reinvented be considerable. The benefits of change, and whether Mr – The Board itself is subject to a range of duties, including Lansley's aims have in truth been achieved, still remain those to promote innovation and quality of care, reduce somewhat undefined.
inequality and promote the interests of the individual. Sam Holden
Again, there may be a tension between the various duties, and it would also appear that showing compliance with T: +44 (0)20 7876 6041 those duties will be burdensome Legal issues arising from claims concerning negligence in relation to the diagnosis of renal failure
High blood pressure (hypertension) is extremely common
Recurring allegations centre around the instigation in western societies. In England alone approximately 34%
and/or adjustment of treatment in order to reduce of women and 37% of men have high blood pressure.
risk factors and delays in arranging referral for Hypertension, on its own, is the second most common
specialist opinion.
cause of end-stage renal failure (next to diabetes) and it
is customary for all types of chronic kidney disease to
For patients who have high blood pressure and kidney eventually cause hypertension. As such, routine blood
disease ACE inhibitor (ACEi) and angiotensin II receptor pressure management forms an integral part of the
blocker (ARB) drugs lower blood pressure and protect prevention and detection of these conditions and clinical
the kidneys from further damage. As such, allegations of negligence claims alleging a delay in the diagnosis of
negligence may concern an alleged failure or delay in the progressive renal failure are becoming more widespread.
instigation of this treatment. Whilst ACEi and ARB drugs were being widely used to treat hypertension by the mid This article considers trends in the legal issues associated 1980s (particularly ACEi) they were recommended by with these claims.
the BHS as ‘second line' agents (after thiazide diuretics and beta blockers) until the introduction of the ‘AB/CD' Complaints often concern the adequacy of blood algorithm in 2004. Consequently, it may be possible to pressure control and/or a failure to monitor renal defend these allegations prior to this date. ACEi can rarely function and/or a failure to act on results.
cause serum creatinine to rise after starting or increasing The British Hypertension Society (BHS) Guidelines advocate dosage in some patients and, therefore, the British National a minimum of three blood pressure readings spread Formulary recommend that U&Es are measured before out over some months before considering a diagnosis of and after starting treatment and at periodic intervals hypertension and it is recommended that once a diagnosis thereafter. A failure to adhere to this guidance is likely to of hypertension is made (after several elevated readings) constitute a breach of duty. Further, it is now accepted that routine investigations should include urine analysis the prescription of non-steriodal anti-inflammatory drugs (Dipstix) and the measurement of serum electrolyte and (NSAIDS), such as ibuprofen, may worsen renal function urea (U&Es) or creatinine concentrations. Analysis of and, accordingly, their prescription is contraindicated in claims relating to a failure to diagnose and/or monitor some patients with kidney disease. This has not always renal function suggests that claimant lawyers frequently been the case and any allegations of negligence relating rely on a failure to act on a single elevated blood pressure to the prescription of NSAIDS should be analysed in the result as evidence of negligence often at the same time context of the medical knowledge available at the time and overlooking subsequent entirely normal readings. In order without the benefit of hindsight. to defend allegations of this nature it will be necessary to Patients tend to develop symptoms of renal failure only demonstrate sufficient attempts were made to follow up a when the disease is relatively far advanced and patients potentially ‘rogue' result otherwise a practitioner is likely to will often seek legal redress for what they feel must have been a diagnostic delay resulting in recourse to a There is some evidence from the late 1990s that GPs lifetime on dialysis or transplantation. Kidney disease omitted to carry out urinalysis in newly hypertensive is rarely cured by medication and, therefore, the chain patients, however, notwithstanding this, the general of causation may be weak and it may be possible to consensus amongst expert opinion is this was not an restrict quantum.
acceptable practice (the guidance has been in operation Although there is evidence that good blood pressure since 1993) and claims of this nature will be difficult to control with ACEi can retard the progression of renal defend. When considering what constitutes an abnormal failure, it is important to determine if earlier intervention result it is important not to apply today's standards to the would have avoided the development of renal failure or past and what may be considered an abnormal creatinine if earlier diagnosis could have led to measures to slow level now may not unreasonably have been considered the progression of renal disease or prepare patients for essentially normal several years ago. Furthermore, the renal replacement therapy. This is often difficult to predict normal range for serum creatinine is variably quoted with certainty. There is a tendency for claimant lawyers depending on the reporting laboratory and elevated not to investigate causation by obtaining independent creatinine levels do not necessarily mandate referral to expert evidence and to assume that the instigation of a renal physician provided there is evidence of recurrent effective therapy at an earlier stage would have avoided the development of renal failure altogether. The allegations of

causation are often poorly particularised and sometimes Patients undergoing dialysis require haemodialysis three demonstrate a careless analysis of the medical records. times a week in a hospital or satellite unit or, potentially, For instance, any subsequent normal serum creatinine by home dialysis. Home treatment may entail a claim and urinalysis results will act to undermine any assertion for accommodation to enable the installation of a clean that renal function would have been abnormal before room or the costs of treatment in the private sector. Where this time insofar that renal function rarely improves with transplantation is anticipated, given the uncertainty as the passage of time. In addition, ACEi may have been to the availability of donor grafts, compensation for an instigated indirectly to control hypertension rather than extended period of dialysis will be sought in order to as a direct response to renal failure and, as such, its effect take account of this. The median survival of living and on preserving renal function may have been overlooked. It deceased donor grafts is approximately 20-25 years and 14 is, therefore, crucial to obtain expert opinion on causation years respectively. Therefore, the costs of more than one since more often than not it is possible to demonstrate that transplantation in a claimant's lifetime (or further recourse a diagnostic delay has exacerbated the onset of a patient's to dialysis) may be sought. In this instance it will be requirement for renal replacement therapy rather than important to consider if a claimant has any comorbidities, having actually caused it. This has significant implications since is maybe arguable that by the time a replacement for the assessment of quantum insofar that in this instance transplant is required the claimant's anticipated life it will be possible to argue that the mainstay of any claim expectancy has been exceeded. for special damages would have been incurred in any event (albeit at a later stage).
Conclusion
In conclusion, it will be necessary to obtain expert
If a claimant can demonstrate that, but for the alleged evidence early on to investigate both breach of duty and negligence, he would have avoided the development causation. As a number of these cases are defensible of renal failure, then his claim is likely to sound in a (or partly defensible) on causation (i.e. expert evidence significant claim for damages.
suggests the claimant will establish an exacerbation of his/ Whilst for the majority of the time prior to the need for her condition rather than causation in full), consideration renal replacement therapy patients will remain relatively should be given to an early Part 36 offer in order to limit well from a renal perspective, once renal function has litigation costs.
fallen below 20 ml/min it is generally accepted that they will become symptomatic. Beyond this point claims for Kate Erskine
loss of earnings and care/assistance are likely to succeed. AssociateT: +44 (0)20 7876 6031 E: [email protected] NHS strike action
Doctors staged their first industrial action since 1975 over
of outpatient appointments were required to be rearranged. the ongoing debate on pensions. Sarah John of Clyde &
Whether the scale of the action met the BMA's anticipation Co's employment team considers steps Trusts could take
and whether it had any practical effect on the ongoing in the event of further action.
pension debate, are moot points. It remains to be seen whether the BMA will propose further industrial action.
On Thursday, 21 June 2012, British Medical Association (BMA) members across the UK commenced strike action What is strike action?
for a 24-hour period in a dispute over pensions. Under Strike action is ‘a concerted stoppage of work by workers the terms of the strike, all participating doctors were told with the purpose of disrupting the employer's business'. to attend their place of work so that they were available It is the most serious form of industrial action open in the event they were needed to provide urgent and or to employees, and can cause considerable disruption emergency care. However, they were not to undertake their in the workplace. This is in contrast to ‘action short of normal day to day duties. strike', which can take a number of forms, including an In the event, the disruption to services feared by many did not overtime ban, ‘go-slow', working to rule and withdrawal of materialise; NHS London, for example, reported to the BBC that 11% of non-urgent operations were cancelled and 6%

What can an employer do?
Where strike action constitutes ‘protected industrial action' So, what are the options open to employers when faced with as in the case of the recent BMA action, employees would a striking workforce, and what risks should an employer be be entitled to take industrial action for a minimum of 12 aware of when attempting to deal with strike action? weeks without being dismissed. Employees do not however enjoy the same protection The core principle in an employment contract is that against unfair dismissal if the statutory notification an employee is paid for work done. Where an employee requirements have not been complied with. refuses to work during their contracted hours he or she is The limited nature of the action at this stage may not be not therefore entitled to be paid, and in most cases will be sufficient for Trusts to consider whether or not to take in breach of his or her employment contract. steps against those involved in the dispute. In the event of An employer is therefore entitled to withhold an further action, however, Trusts may be required to respond.
employee's pay for the time during which they did not work. If an employee is paid on an hourly basis, and his Sarah John
or her employment contract specifies normal working hours, deductions should be calculated by reference to the T: +44 (0)20 7876 6219 hours lost. Where employees are salaried, unless stated differently in the employee's contract, salary is deemed to accrue from day to day, and this means calendar day, not working day, and salary should be deducted on this basis.
In this instance, where doctors attended their workplace but did not carry out work unless it was urgent or emergency care, determining what an employee is entitled to be paid is not a straightforward process. Furthermore, NHS employees are employed on a range of atypical arrangements including flexible hours of work and rota arrangements, making it harder to establish whether an employee has been involved in strike action and for what period of time. Care should be taken to ensure consistency of treatment of full-time and part-time staff when deciding how to calculate the level of pay to be withheld. It is good practice to seek to agree an ‘Interruption of Work During Periods of Industrial Action' Policy Statement for dealing with these issues to avoid disputes arising when strike action commences.
Dismissal?
There is a certain amount of protection afforded to employees
who are partaking in strike action. However, the rules relating – Action was aimed at disrupting non-urgent services; to whether a dismissal that occurs while an employee is Trusts and the public should be reassured that urgent taking industrial action is ‘automatically unfair' are complex care would still be provided and should be reviewed on a case by case basis. – Trusts should work with affected patients and The legal position of employees will depend on whether the clinicians to rearrange as soon as practicable action they are taking part in is: cancelled operations and clinics – Unofficial – not authorised or endorsed by a union – Liability for incidents arising due to insufficient staff on duty during the period of the action is unlikely to – Official – authorised or endorsed by a union but not be avoided; Trusts still retain their duty to provide reasonable care to patients – Protected – official action which is taken in response to – Careful legal advice would be recommended in the a valid trade dispute and following a properly conducted event any Trust seeks to take steps against doctors ballot and proper notification of the employer and the involved in protected industrial action participating employees – Consider introducing a clear policy statement regarding pay if further action is likely to occur

Death is the only certainty in life, so why has the law on assisted dying been branded ‘inadequate and incoherent'?
This article examines the recently published report
by the Commission on Assisting Dying and discusses
So what would a clearer framework on assisted dying look the implications of its proposed new legal framework
like? The Commission's report places responsibility for for assisted suicide on doctors and other healthcare
implementing a set of safeguards to protect patients from abuse on health and social care professionals. This would On 5 January 2012, the Commission on Assisted Dying, include ensuring that certain eligibility criteria are met and which was set up in September 2010, published its that the patient has been fully informed of all available report on the current law on assisted suicide. From the options for treatment and care.
perspective of health and social care staff involved in end Inevitably, such a system would need to be underpinned by of life situations, the Commission concludes that the law improvements to health and social care services including is unclear and should not continue. It sets out a proposed adequate training and supervision, guidance and codes framework on assisted dying, should such a system be of conduct for the professionals involved. Consideration implemented in the UK. This places a striking emphasis would also need to be given to the inherent concern on health and social care professionals upholding of doctors that legalising assisted dying would have a and promoting suggested safeguards to prevent the detrimental effect on the doctor/patient relationship, which abuse of vulnerable groups, whilst strictly defining the is built on trust between practitioner and individual. Whilst circumstances in which terminally ill patients would be such concerns highlight the endemic tension between assisted in dying. providing greater clarity on the law for doctors and other professionals, and moving to a situation where doctors Criminality
are at the forefront of change on an issue which raises Under current legislation, encouraging or assisting legal, ethical and professional issues, the Commission has another person's suicide or attempted suicide is illegal in ultimately concluded that, should legislative change be England and Wales, and is punishable by up to 14 years' implemented, it should not be a crime for a doctor to assist imprisonment. However, the report sets out that there a person to take their life, if that person has an advanced, has been no prosecution of offences since the publication progressive, incurable condition that is likely to lead to of the Director of Public Prosecutions' policy on assisted their death within the next 12 months, and if the correct suicide in February 2010. Despite this, it remains at safeguards and procedures are observed. the discretion of the Director of Public Prosecutions to prosecute, which shrouds an ostensibly entrenched legal position in uncertainty. In turn, this provides great difficulty In March 2012, Tony Nicklinson, a man with ‘locked- for doctors who must act in their patients' best interests in syndrome', won the right to ask the court to make a and champion confidentiality, under the threat of criminal declaration that it would not be unlawful, on the grounds prosecution. This is especially pertinent in light of the of necessity, for a doctor to terminate or assist with the Commission's conclusion that health and social care termination of his life. As his case is due to be heard by the professionals are more likely than other members of public High Court, we can only speculate on the impact of a change to be prosecuted for providing assistance with suicide. in the law on assisted dying. What is clear, however, is the The overwhelming conclusion is that this issue needs lack of clarity surrounding such an important issue as doctor to be addressed.
assisted dying is inadequate and should not continue.
In a recent move, the British Medical Journal has called for the adoption of a neutral stance on assisted dying for T: +44 (0)20 7876 6084 the terminally ill by doctors' organisations. This coincides with the launch in February 2012 of the General Medical Council's (GMC) consultation on guidance for its decision makers when considering allegations about a doctor's involvement in encouraging or assisting suicide. The GMC is clear that nothing in the guidance should be taken to imply that the GMC supports or opposes a change in the law, but that greater clarity for its decision makers is required. Rabone No 2
This case was reviewed in previous editions of Health
argument that the risk had to be ‘imminent' was rejected, Law News. We reported that the Court of Appeal's
with Lord Dyson preferring to interpret ‘immediate' conclusion that NHS Trusts did not owe a positive
to mean ‘present and continuing'. Having reached the obligation to safeguard the lives of voluntary patients,
conclusion that the risk of the deceased attempting suicide must provide some comfort to increasingly beleaguered
was real and immediate, the decision to allow her home NHS Trusts. Unfortunately, that comfort proved somewhat
was described as one which ‘no reasonable psychiatric illusory as the Supreme Court has now reversed that
practitioner would have made'. Breach was established. decision. In this article, we examine the implications for
all NHS Trusts of this important judgment.
The question of whether the claimants enjoyed victim status within Article 34 of the European Convention on The facts
Human Rights was dealt with in short order. Lord Dyson The background of the case will be familiar, but by way was able to point to a clear line of European Court of of reminder, the deceased, Melanie Rabone, was admitted Human Rights decisions which provided that relatives of to Stepping Hill Hospital on a voluntary basis following a the deceased were able to claim in their own right. severe episode of a recurrent depressive disorder. Despite Finally, the Supreme Court was required to consider objections raised by her parents, the claimants to the whether the claimants would forfeit that status if they had action, the deceased was allowed home leave, during which already been awarded compensation in a negligence claim. time she committed suicide. The parties accepted that victim status would have been forfeited if the State has provided ‘adequate redress', and ‘acknowledged either expressly or in substance the breach A claim for negligence was compromised in the sum of of the Convention'. The Trust argued that both conditions £7,500, but the claimants also brought a claim for damages had been met, and therefore the claimants were not pursuant to the Human Rights Act 1998, alleging breach entitled to further compensation. of Article 2, the right to life. Furthermore, they argued that they were victims of the breach, and were therefore entitled That argument was rejected by the Supreme Court. The to compensation. The claim failed both at first instance and damages paid to the claimants in the civil claim were on appeal; although it was found on the facts of the case in respect of losses to the Estate under the Law Reform that had an operational obligation been owed it would have (Miscellaneous Provisions) Act 1934. The claimants had been breached. The claimants appealed to the Supreme received no compensation for their loss as the Fatal Court, and here, they were successful.
Accidents Act 1976 did not permit parents of an adult child to make such a claim. Thus, they had not received Supreme Court ruling
‘adequate redress'. However, the Supreme Court did go on In the leading judgment, Lord Dyson held the Trust was to find that although the claimants retained their status under a positive duty to safeguard the life of the deceased. as victims as a result, the fact the Trust admitted breach of Although a voluntary patient, the deceased was vulnerable duty was evidence of an admission of breach of Article 2. and posed a real suicide risk; she was under the control of Keep calm and carry on!
the Trust which had assumed responsibility for her. Whilst there is no doubt this is an unwelcome judgment, Having thus established an operational obligation was the important point to remember is that it does not impose owed, it came as little surprise that the Supreme Court additional burdens on treating clinicians; who remain found it had been breached. This was, after all, the under a duty to provide reasonable care to their patients. conclusion previously reached by the Court of Appeal. What it does mean is, if that duty is breached, then the Previous cases had established that the risk of death had consequences of that breach so far as a Trust is concerned to be ‘real and immediate'. The evidence of the psychiatrist are potentially greater, depending on the facts of the case. who gave evidence for the Trust, and whose evidence If the case involves a psychiatric patient, whether detained was preferred at first instance, described a risk of suicide or not, then breach of duty of care will also invoke the as between 5-10%. This was accepted both in the Court operational obligations of Article 2, which could mean of Appeal and by Lord Dyson as reflecting a ‘real' risk of payment of compensation in addition to an award of suicide, thus satisfying the first qualifying limb. The Trust's damages in a civil claim.

Whether the operational duty will be imposed only in cases there was uncertainty regarding the status of investigations of psychiatric patients is unclear. Lady Hale did emphasise where a mental health patient dies in an acute setting (e.g. that, in deciding the case in favour of the claimants, the suicide after admission to CDU). The thrust of the Supreme Supreme Court was not attempting to make "an exception Court's decision now suggests that in the presence of a real to the general rule that the State is not responsible for the deaths and immediate risk of suicide and where the patient has of hospital patients". However, given the parents of adult been admitted under the care of an NHS Trust, the wider children have no means of seeking redress for their loss, investigation responsibilities may well be triggered. In truth, claimant lawyers will doubtless redouble their efforts to however, it is our experience that even prior to the Supreme persuade her otherwise. Court's decision coroners were inclined to act as if Article 2 was engaged – to that extent, therefore, there may be no A more immediate practical effect may be seen in the realm practical difference in coronial practice.
of inquests. While it has been reasonably settled ground that investigations into the death of a compulsorily detained Sian Fisher
mental health patient would be subject to the wider Article 2 investigations, the position regarding informal patients
T: +44 (0)20 7876 6033 has often been the subject of some discussion. Similarly, Further information
If you would like further information on any issue raised in this newsletter please contact:
Claire Petts
Sam Holden
Senior Associate Clyde & Co LLP accepts no responsibility for loss Clyde & Co LLP is a limited liability partnership The St Botolph Building occasioned to any person acting or refraining registered in England and Wales. Authorised and from acting as a result of material contained in regulated by the Solicitors Regulation Authority. this summary.
Clyde & Co LLP 2012 No part of this summary may be used, T: +44 (0)20 7876 5000 reproduced, stored in a retrieval system or F: +44 (0)20 7876 5111 transmitted in any form or by any means, electronic, mechanical, photocopying, reading Further advice should be taken or otherwise without the prior permission of before relying on the contents Clyde & Co LLP.
of this summary.
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CC001468- July 2012

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