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A roundup of recent court decisions raising issues relating to payment of after-care services, lump sum and PPO Part 36 offers, Reporting Restriction Orders, and anticipatory declarations.
Supreme Court judgment provides clarity on payment of ‘after-care services’
R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [10.08.2023]
On 10 August 2023, the Supreme Court handed down its judgment in R (on the application of Worcestershire County Council) v Secretary of State for Health and Social Care [10.08.2023] allowing Worcestershire County Council's appeal.
This case concerned the proper approach to the determination of ordinary residence and which local authority should pay for after-care services to someone detained under section 3 of the Mental Health Act 1983 (the Act) following their discharge from hospital.
Local authorities and the integrated care board (ICB) have a duty to provide 'after-care services' for people under section 117 of the Act who leave hospital after a period of compulsory detention. After-care services may include healthcare, social care and employment services and supported accommodation. The services should meet a need arising from a person’s mental disorder and the aim is to reduce the risk of being readmitted to hospital.
The judgment provides clarity as to how ordinary residence should be determined. It also clarifies that the duty to provide after-care services under section 117 of the Act ends automatically when a patient is detained again under section 3 of the Act.
For more detail, read our article here.
Contacts: Daniel Freeman, Andrea Ward and Yasmin Brown
Related item: Supreme Court clarifies who should pay for ‘after-care’ services
High Court clarification on lump sum and PPO Part 36 offers
CCC (by her Mother and Litigation Friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [13.07.23]
On 13 July 2023, Mr Justice Ritchie sitting in the High Court found that a claimant must beat both the lump sum and a periodical payment element at trial to be awarded Part 36 advantages. This is the first authority on the point which in our view represents a sensible, pragmatic and workable solution.
It is also the most recent judgment dealing with quantum where Mr Justice Richie did not apply a gratuitous discount to the claimant’s mother’s past care, awarded two waking night carers and the costs of a hydrotherapy pool at home. The claimant recovered a retained lump sum of £6,866,615 with annual periodical payments of £394,940 pa.
Mr Justice Richie was also critical of the defendant’s expert and at paragraph 87 of the judgment highlighted the importance of experts having genuine experience. He said in relation to the defendant’s care expert the following:
What his CV did not set out was any experience actually being a case manager or putting together a care package recruiting carers, managing carers, managing the training of carers and hiring and firing carers.
Contacts: Christopher Malla, Avinder Sidhu and Stephanie Cuthbert
Related item: Beating the odds: High Court clarification on lump sum and PPO Part 36 offers
Reporting Restriction Orders
Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [31.03.2023]
On 31 March 2023, the Court of Appeal overturned the decision to grant indefinite anonymity orders to carers of patients involved in end-of-life proceedings. The Court concluded that parents’ Article 10 rights for free expression outweigh the clinicians’ Article 8 rights to be protected from harassment by anonymity.
This case concerned an appeal regarding the principles to be applied to an application to vary or discharge a Reporting Restriction Order (RRO) made during end-of-life proceedings that protected the anonymity of the patient, family, and carers.
For further detail, read our article here.
Contact: Rob Tobin
Related item: Reporting Restriction Orders: protecting clinician’s anonymity limited to the duration of the proceedings
Anticipatory declarations
Somerset NHS Foundation Trust v Amira [08.06.2023]
In this case, Mostyn J made obiter observations in relation to whether the court has the power to make anticipatory declarations. Here we consider those observations, which were made in light of the initial application brought by the Trust in respect of the patient’s obstetric care in the event she lost capacity during labour.
For further detail, read our article here.
Contact: Rob Tobin and Olivia Gittins
Related item: Does the court have the power to make anticipatory declarations for medical care?
Healthcare
United Kingdom