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 liabilityPage 4
Injecting some reality into the prospects
of appealing a GMC Fitness to Practice
Panel determinationThe 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.
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  QB 46s 2 Raschid v General Medical Council  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
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
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.
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
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.
The case also illustrates that delegated duties should not
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
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
inequality and promote the interests of the individual.
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
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
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).
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
fallen below 20 ml/min it is generally accepted that they will become symptomatic. Beyond this point claims for
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
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.
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
– 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
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
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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
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
mental health patient would be subject to the wider Article
2 investigations, the position regarding informal patients
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has often been the subject of some discussion. Similarly,
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Εργαστήριο Σπουδών Φύλου και Ισότητας Λ. Συγγρού 134, 1ος όροφος, 17671 Αθήνα, τηλ. 210 9210177-8, fax 210 9210178 http://www.genderpanteion.gr, e-mail: [email protected] ΕΙΣΗΓΗΣΗ 22 Μαΐου 2007 Elizabeth Dermody Leonard, καθηγήτρια κοινωνιολογίας στο Πανεπιστήµιο Vanguard της Νότιας Καλιφόρνιας, Η.Π.Α
Eur Respir J 1997; 10: 2465–2473 Copyright ERS Journals Ltd 1997 European Respiratory Journal Printed in UK - all rights reserved The effect of inhaling a dry powder of sodium chloride on the airways of asthmatic subjects S.D. Anderson*, J. Spring*, B. Moore**, L.T. Rodwell*, N. Spalding*, I. Gonda+, K. Chan+, A. Walsh+, A.R. Clark+ The effect of inhaling a dry powder of sodium chloride on the airways of asthmatic