Healthcare Brief: latest decisions April 2021

Supreme Court ruling on ‘sleep in’ care workers entitlement to national minimum wage

Royal Mencap Society v Tomlinson-Blake [19.03.21]

The Supreme Court has ruled that time spent sleeping by a sleep-in care worker does not attract the national minimum wage.

Unanimously dismissing the appeal, the Supreme Court agreed with the position taken by the Court of Appeal, namely that sleep-in time should not be counted for the purposes of the national minimum wage.

We provide a brief overview of the conclusion reached by the Supreme Court and offer our initial observations on the outcome here.

Related item: Care workers who ‘sleep in’ are not entitled to the national minimum wage for the duration of their shift

Remote assessments under the Mental Health Act

Devon Partnership NHS Trust v Secretary of State for Health and Social Care [22.01.21]

In this case, the High Court considered the interpretation of physically examining a patient and whether it could and should be done in person or remotely, in the particular context of the requirements contained in sections 11(5) and 12 of the Mental Health Act 1983 (MHA).

Section 11(5) of the MHA requires a person making an application in respect of “admission for assessment, admission for treatment or guardianship” to have “personally seen” the patient. The requirements of section 12 include that a medical practitioner has “personally examined” the patient before making a medical recommendation in support of the patient’s detention in hospital.

The Trust sought declarations that the requirements contained in sections 11(5) and 12 of MHA, could be fulfilled by a patient being seen or examined remotely rather than in person.

The declarations sought by the Trust were refused by the Court which determined that the phrases “personally seen” in section 11 (5) MHA and “personally examined” in section 12 MHA require the physical attendance of the person in question on the patient.

Whilst empathetic of the Trust’s position, the Court, in closing, determined that the difficulties that the statutory provisions caused the Trust and others exercising functions under the MHA, was a matter for Parliament to address.

Contacts: Daniel Freeman and Matthew Bebb

Related item: High Court finds that Mental Health Act assessments cannot be undertaken remotely

High Court reemphasises the scope of its inherent jurisdiction

NHS Trust v X [18.01.21]

The High Court has reaffirmed that common law remains ‘good law’ where medical treatment for Gillick competent children, and children under the age of 18 are concerned.

The Applicant sought a two-year rolling order to authorise blood transfusions for X (a Gillick competent child) - as part of her treatment for serious sickle cell syndrome - until she reached 18 years old. X argued that this form of treatment was against her religious beliefs and upon reaching the age of 16, she should be presumed in law to have decisional capacity to decide her own medical treatment. She submitted that common law was overridden by the provisions in the Mental Capacity Act 2005 and the Human Rights Act 1998.

The Court dismissed X’s application for such a declaration, and reaffirmed the common law position, which is that a child does not have the absolute right to accept or refuse medical treatment, and that the Court could exercise its inherent jurisdiction in cases concerning a Gillick competent child, or a child aged 16-17 years old. The Court could continue to overrule the child’s decision where the consequence of such a decision is thought to be serious risk to health or death.

The application by the NHS Trust for a rolling order was also denied. The Court agreed that the decision to give medical treatment is highly fact-specific and is not anticipatory, especially in this case where there had not been a pre-requisite testing of medical evidence. The Court held that to make such an order on these facts would run the risk of privileging “medical paternalism” over judicial protection.  

Permission to appeal was refused on the basis that the law was clear and an appeal would not have a real prospect of success. The Court did not accept the submission that the difference in the Court’s approach where a competent 16/17 year old, and anyone over 18 years old is concerned is unjustified on the basis that the distinction is based on age, and is inherently arbitrary.

Contact: Amanda Mead and Uzma Malik

Related item: Deprivation of liberty: Supreme Court rules on Article 5 rights and parental responsibility for 16 and 17 year olds

The operation of Part 36: the ‘heavy burden’ of disapplying the normal Part 36 consequences

Pallett v MGN Limited [19.01.21]

The underlying litigation was a libel action. The claimant offered to settle her claim in October 2020 ahead of a trial due to begin in January 2021. As with all standard Part 36 offers, the offer was open for acceptance for 21 days. The defendant deliberately delayed acceptance of the offer until the 22nd day.

The court was asked to accept the defendant’s proposition that because the defendant delayed, it was not now obligated to pay almost any of the claimant’s costs since the litigation commenced. The defendant pointed to the claimant’s alleged failure to engage with the settlement process as evidence of poor conduct. The judge held that the defendant had failed to establish that the alleged failure fell so short of the expected court standards to justify that the usual cost rule should be disapplied.

This decision serves as a reminder of the court’s discretion in deciding the liability for costs regarding the late acceptance of a Part 36 offer. Helpfully for defendants, the judge warned that this case “should not be taken as a green light for all claimants to decline to enter into negotiations before disclosure is complete. Such a posture would not be correct in every case”.

Contact: Joy Middleton

Read other items in Healthcare Brief - April 2021