Healthcare Brief market insights - December 2021

A summary of key developments including the NHS litigation reform inquiry, Liberty Protection Safeguards, the Health and Care Bill, the Assisted Dying Bill, and an updated clinical negligence protocol in Northern Ireland.

Health and Social Care Committee launch NHS litigation reform inquiry

On 22 September 2021 the Health and Social Care Committee launched a new inquiry “to examine the case for the reform of NHS litigation against a background of a significant increase in costs, and concerns that the clinical negligence process fails to do enough to encourage lessons being learnt to promote future patient safety”.

The terms of reference of the call for evidence included:

  • “The impact of the current cost of litigation on the financial stability of the NHS and the provision of patient care”.
  • Changes the government should consider to simplify clinical negligence processes “so that patients can receive redress more quickly” and how collaboration between legal advisors can be “strengthened to encourage early and constructive engagement between parties”.
  • Changes that should be made to clinical negligence claims “to enable a move away from a blame culture” towards one of learning.

The closing date for written submissions was 20 October 2021.

As part of the inquiry, on 16 November 2021 the Committee heard from bereaved parents who have lost a child due to failures in care, in order to consider the impact of litigation on families. The Committee also heard from a panel of legal experts to explore the effectiveness of the current clinical negligence system, in terms of enabling harmed patients to seek redress and the extent to which it ensures there is learning from errors.

Contact: Christopher Malla

Liberty Protection Safeguards

The new Liberty Protection Safeguards (LPS) system is due to be implemented in April 2022, replacing the current Deprivation of Liberty scheme (DoLS) we currently adhere to.

Code of Practice and Regulations on the legislative scheme are currently awaited, expected to become available this winter.

As with the current system in place, these safeguards will govern authorising deprivations of liberty in health and social care. Its implementation will significantly alter the status quo as we know it.

Some key features to note differentiating the LPS system from the DoLS process:

  • Applications will now be applicable to young people aged 16 years old in England and Wales.
  • The introduction of the ‘AMCP’ (Approved Mental Capacity Professional) who will carry out assessments where it is believed that the person is objecting to the care arrangements.
  • The burden of making applications will be spread across to other organisations such as the Clinical Commissioning Groups / the proposed Integrated Care Systems, and NHS Trusts.
  • Applications will apply in any setting rather than just care homes and hospitals.
  • Longer authorisations can be more than the usual 12 month timeframe.

Until the regulations and the Code of Practice are published, significant ambiguity will remain on what exactly will be required under LPS. We will be providing more details upon this information being made available.

Contact: Indi Kaur

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Health and Care Bill – next steps

Introduced to the House of Commons on 6 July 2021, the Bill has undergone the first and second reading, committee stage (where a line by line examination is carried out) and report stage (where MPs are given the opportunity to consider further proposals to amend the Bill) within the House of Commons. The Bill has now moved to the House of Lords, with the first reading carried out on 24 November 2021 and the second due to take place on 7 December 2021.

The Bill is aimed at integrating health and social care through the use of statutory integrated care systems across the country. This follows the publication on 11 February 2021 of the Government’s White Paper 'Integration and Innovation: working together to improve health and social care for all'.

The Bill forms one part of the wider 'levelling up' agenda to improve health outcomes across the country with the intention of making NHS England, in combined form, accountable to government and parliament in its delivery.

Contact: Camilla Long

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Assisted Dying Bill progresses following second reading

On 26 May 2021 Baroness Meacher presented the Assisted Dying Bill to the House of Lords. The aim of this Private Members’ bill (i.e. a public bill and not one introduced by a government minister) is to enable adults who are terminally ill to be provided, at their request, with specified assistance to end their own life in what is expected to be the final six months of their life.

On 22 October 2021 the Bill underwent its second reading in the House of Lords, a stage which involves a general debate on all aspects of the Bill. The Bill now moves to the Committee stage (date to be announced) where a detailed line by line examination will be carried out on the clauses and schedules within the Bill.

Contact: Eirlys Hughes-Jones

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Updated clinical negligence protocol in Northern Ireland supports cards on the table approach

An updated clinical negligence protocol is now in force in Northern Ireland as of 1 October 2021 and will be welcomed by legal practitioners practicing in this area. The Protocol for Clinical Negligence Litigation (the Protocol) will revoke the previous 2012 protocol of the same name and its initial draft, the 2009 Pre-Action Protocol for Clinical Negligence Litigation.

The Protocol will accurately reflect how this area of practice has developed in recent years and address important case management issues such as expert meetings, which the 2012 protocol did not adequately deal with. It also seeks to promote timely and efficient resolution of claims within 48 months (save in exceptional circumstances) from the date of the issue of the writ.

The Protocol certainly supports a cards on the table approach to clinical negligence claims which should be welcomed by both plaintiff and defence legal representatives. The days of each side holding their cards close to their chest until a late stage certainly seem to be drawing to a close. There is discussion however over implementing cost sanctions to further strengthen the impact of the Protocol and to address non–compliance. The Protocol is not intended to encourage applications for costs for every breach, but costs and other sanctions will be seriously considered by the court for flagrant or on-going breaches.

Contacts: Amanda Wylie and Megan Boyd

Related item: Updated Clinical Negligence Protocol in Northern Ireland

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