Healthcare Brief: market insights October 2022

A summary of key developments which include the second report on the Early Notification Scheme; the draft Mental Health Bill 2022; the Data Protection and Digital Information Bill; the Damages Claims Portal; proposals to increase the use of mediation in the civil justice system; the costs review launched by the Civil Justice Council; and the current position regarding proposals to change the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards.

Publication of the second report on the Early Notification Scheme

On 29 September 2022, NHS Resolution published ‘The second report: The evolution of the Early Notification Scheme’.

Established in April 2017, the Early Notification Scheme – as set out in the report - “introduced an innovative approach for the early reporting of babies born with evidence of a potentially severe hypoxic brain injury following term labour”.

The report outlines the progress that has been made in relation to the six recommendations made in the first report (published in 2019), and provides that “with impactful new qualitative and quantitative research, national action groups have been commissioned to develop tools to improve care and take forward new national policy initiatives”.

Specific to the findings set out the second report, three recommendations have been made with guidance given as to how each recommendation should be achieved at a national and a local level. The recommendations are as follows:

Recommendation 1: “NHS Resolution to support the work of royal colleges and wider stakeholders to improve antenatal counselling before trial of vaginal birth after caesarean”.
Recommendation 2: “NHS Resolution to support the work of royal colleges and wider stakeholders to improve awareness in relation to response to harm for families and staff”.
Recommendation 3: “NHS Resolution to support the working relationships with NHS providers and wider stakeholders, encouraging a joined-up approach between trust legal services and maternity & risk teams”.

Contact: Christopher Malla

Draft Mental Health Bill 2022 published

On 27 June 2022, the government published the draft Mental Health Bill 2022 “for pre-legislative scrutiny” – the detailed examination that is carried out by a parliamentary select committee prior to the Government drawing up the final draft version which is then subject to the various stages of parliamentary review.

The explanatory notes set out that the draft Bill includes (amongst other matters) reforms to:

“Better ensure that detentions and treatment made under the MHA [Mental Health Act] are necessary, with revisions to the criteria which must be met in order for a person to be detained, treated, or otherwise made subject to the MHA and provide faster, more frequent reviews and appeals of both detentions and treatment”.
“Strengthen the voice of patients – with reforms adding statutory weight to patients’ rights to be involved with planning for their care, and to make choices and refusals regarding the treatment they receive”.

This Bill, with its aims of improving the criteria required to detain people under the civil sections of the MHA, is a welcome development. The definition of appropriate medical treatment will strengthen the requirement for such treatment to have a therapeutic benefit as it must have a reasonable prospect of alleviating or preventing the worsening of the disorder of manifestation of such. There are also added protections for individuals with learning disabilities and individuals who are on the autistic spectrum. The encouragement of advance care planning in mental health, closely aligning with the Mental Capacity Act is another welcome aspect of the Bill.

A particularly positive move towards improving patient protection is the proposed introduction of the offer of independent mental health advocates for informal now, as well as, detained patients.

Contact: Rob Tobin

Data Protection and Digital Information Bill

On 18 July 2022, the government placed the Data Protection and Digital Information Bill before Parliament, and it was given its first reading in the House of Commons. Publication of the Bill follows the outcome of the government consultation ‘Data: A new direction’.

With the regard to the health and adult social care system, the Explanatory Notes state that “to work efficiently and effectively, data needs to flow through the system in a standardised way, so that when it is accessed by or provided to an organisation for any purpose, it can be read, be meaningful to, and be easily understood by the recipient and/or user of the data”.

Adding that this is reliant on “data being collected, processed and shared in a consistent way”, the Bill “would support appropriate data-sharing across the wider health and adult social care sector, beyond the current crisis”. Whilst the detail is yet to be debated, measures are proposed against vexatious or excessive requests by data subjects with new duties and powers for the Information Commissioner’s Office.

The Bill was due to have its second reading in the House of Commons on 5 September 2022. A rescheduled date for the second reading is awaited. We will continue to track this important piece of legislation and provide more detailed guidance on what it will mean for healthcare organisations at the conclusion of the parliamentary review process.

Contact: Camilla Long

Related items:

Damages Claims Portal now mandatory for defendant legal representatives

In May 2021, HM Courts & Tribunals Service (HMCTS) launched a Damages Claims Portal pilot scheme (DCP), a digital scheme for the issuing and initial progression of litigation in certain claims. On 4 April 2022, the DCP became mandatory for all claimant legal representatives dealing with claims in the County Court which come within the scope of PD 51ZB.

As of 15 September 2022, it is mandatory for instructed defendant legal representatives to use the Damages Claims Portal (DCP) to respond to claims falling in scope of Practice Direction 51ZB ‘The Damages Claims Pilot’. If a defendant representative has not been instructed, the claim will be handled in the “heritage system”.

The claimant is required to give the defendant at least 14 days’ notice of their intention to bring a claim using the DCP “unless it is impractical to do so”. If this condition is satisfied and the defendant has instructed a legal representative before the claim is started in the DCP (i.e. issued under the Part 7 county court claim paper process) then it is mandatory for the defendant representative to confirm to the claimant that they have been instructed and provide a notification email address for use in the DCP.

The claimant must then provide the defendant representative’s email address for claim notification to the court using the DCP. There are specific fields to complete to confirm this information and the defendant legal representative’s reference.

The circumstances in which it would be “impractical” for the claimant to provide at least 14 days’ notice to the defendant of their intention to bring a claim using the DCP are not clearly defined in the CPR and PD updates. However, limitation would be one example which may be considered impractical.

The CPR and Practice Direction updates do not specify sanctions for failure to comply with PD51ZB. It is anticipated that sanctions will be for the judiciary to decide.

Contact: Samantha Williams

UK Government consults on increasing the use of mediation in the civil justice system

The Ministry of Justice (MoJ) is proposing that all defended small claims (claims under £10,000) should be automatically stayed for 28 days and referred to the Small Claims Mediation Service for a free appointment with a mediator provided by HM Courts and Tribunals Service (HMCTS). The MoJ is also considering whether its proposal should be expanded beyond small claims.

These proposals follow the MoJ’s Call for Evidence on Dispute Resolution in England and Wales, which was launched in August 2021 and sought insights on how disputes might be best settled out of court.

The consultation closed on 4 October 2022.

Contact: Christopher Malla

Civil Justice Council launch holistic costs review

The Civil Justice Council (CJC) Costs Working Group, set up at the request of Sir Geoffrey Vos Master of the Rolls, is taking a "strategic and holistic look at costs, particularly given the ongoing transformation of civil justice into a digital justice system". As part of the review exercise, the group launched a consultation that closed on 14 October 2022.

Although no specific proposals are being put forward at this stage, the four areas that the CJC Working Group is seeking comments on are:

Costs budgeting
Guideline hourly rates (GHRs)
Pre-action protocols and the digital justice system
Wider consequences of extending fixed recoverable costs

Underpinning these topics are three ‘dimensions’ identified by the group, namely: digitisation, vulnerability and the economic significance of the civil justice system.

Contacts: Lewis Thompson and Christopher Malla

Related items:

Consultation outcome awaited: proposals to change the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards

Following its publication on 17 March 2022, this joint consultation held by the Department of Health and Social Care and the Ministry of Justice, closed on 14 July, with the feedback now being analysed. A new target date for implementation of the LPS system is awaited.

Contacts: Amanda Mead and Indi Kaur