Healthcare Brief market insights - December 2020

A summary of key developments, including the reintroduction of ‘shielding’ in England; updated guidance from the General Medical Council on decision making and consent; the discount rate in Northern Ireland and the Republic of Ireland; bereavement damages for cohabitees; publication by the Office of National Statistics of the 2020 first ASHE release data; and new guidance from the Information Commissioner’s Office on subject access requests.

Reintroduction of shielding in England                         

As of 4 November 2020, individuals in England who are deemed “clinically extremely vulnerable” in relation to COVID-19 are advised to stay at home at all times, unless for exercise or doctors’ appointments, for the duration of the four week lockdown.

Individuals on the Shielded Patients List are now strongly advised “to work from home” and “if you cannot work from home, you should not attend work” until 2 December 2020, at least. This marks a return to the previous “shielding” advice, which was in place during the previous United Kingdom lockdown but was relaxed in August. We consider here what this new guidance means for healthcare employers.

Related item: COVID-19: Reintroduction of shielding in England – what does this mean for employers?

General Medical Council Guidance – decision making and consent

Updated GMC Guidance came into effect on 9 November 2020. Consent is all about shared decision making. The Guidance sets out seven principles of Decision Making and Consent.

Principles one, three and four highlight that all patients have the right to be involved, the right for patients to be listened to and the need to find out what matters to patients.

It is principle two however which appears to encompass so much of what is required. Namely, the fact that decision making is an ongoing process focused on ‘meaningful dialogue’. This dialogue being the exchange of relevant information, which is specific to the individual patient.

The Updated Guidance (which can be found here) builds on what is already known from case law on informed consent. There is reference to finding out what matters to the patient. When finding this out, it is the patient’s health and his or her wishes and fears that need to be explored. Further, the activities that are important to a patient’s quality of life, both personally and professionally, should be established.

Information given to patients is to be based on the ‘best available evidence’. When discussing the options with patients there is a need to consider the potential benefits and risks of harm of the alternatives discussed. Including the option to take no action.

Consent is a legal and ethical right. The quality of the consent process, an ongoing process, will be assessed against the background of this Updated GMC Guidance and its seven principles. Consent remains fundamental to good medical practice.

Contact: Ed Glasgow

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Discount rate consultations in Northern Ireland and Republic of Ireland close

The discount rate consultations in Northern Ireland and in the Republic of Ireland closed on 14 August and 31 August, respectively, with the outcome of both awaited.

The rate in Northern Ireland is currently 2.5%, although earlier this year the Department of Justice mooted a radical change to -1.75%. In both our responses, we have called for a mechanism that reflects the impact on all interested parties and reflects what injured people actually do with their compensation in real life.

On 22 October representatives of the Department of Justice appeared before the Justice Committee at Stormont reporting that the discount rate will remain at 2.5% pending the passing of a Bill which is expected to provide a new legal framework based on the Scottish model.

Contacts: Amanda Wylie and Joanne O’Sullivan

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Fatal Accidents Act 1976 (Remedial) Order 2020: bereavement damages for cohabitees

The Fatal Accidents Act 1976 (Remedial) Order 2020 came into force on 6 October 2020, enabling cohabiting couples to claim bereavement damages if the surviving party had lived together with the deceased for at least two years prior to the death. This brings cohabitees in line with couples who are married or are civil partners (The Fatal Accidents Act 1976 already allowed for cohabitees to claim for dependency).

This legislative change follows the 2017 case of Jacqueline Smith v Lancashire Teaching Hospital NHS Foundation Trust and Others in which the Court of Appeal declared that the exclusion of a deceased’s cohabiting partner from the entitlement to bereavement damages under section 1A of The Fatal Accident Act 1976 was contrary to the European Convention of Human Rights.

The bereavement award under the Fatal Accidents Act increased to £15,120 for deaths occurring on or after 1 May 2020.

Contact: Lauren Packer

Office of National Statistics publish the 2020 first ASHE release data

The Annual Survey of Hours and Earnings (ASHE) is published by the Office of National Statistics (ONS) and has replaced the New Earnings Survey. It is a snapshot of earnings of employees taken in one particular week each year in April within industries, occupations and regions. The survey is broken down into hundreds of standard occupational codes (SOCs).

Earlier this month, the ONS released the 2020 first release data. This shows an increase across all percentiles, meaning claimants’ periodical payments will increase from last year. The highest annual increase of 6.27% was at the 20th percentile and the lowest annual increase of 3.18% was at the 90th percentile.

Contact: Christopher Malla

ICO provides clarity in relation to subject access requests

The Information Commissioner’s Office (ICO), the regulatory body for data protection compliance in the UK has published new and detailed guidance regarding subject access requests (SARs). The key points for organisations that handle personal data are:

1. Timescale for responding

If the recipient of a SAR processes a large amount of information about the data subject and the scope of the SAR is unclear, the organisation may request that the scope of the SAR is clarified. In these circumstances, the statutory one month timeframe for responding to a SAR will be paused until such clarification is received.

2. Fees for dealing with SARs

Organisations can charge an administration fee for dealing with excessive, unfounded or repeat requests, as long as this is reasonable, proportionate and consistent. This fee can include time and costs involved in:

  • Photocopying, printing, postage and any other costs involved in transferring the information to the individual (e.g. The costs of making the information available remotely);
  • Equipment and supplies (e.g. discs, envelopes or usb devices); and
  • Staff time.

Further details of fees that can be charged appear at pages 21-23 of the new ICO guidance, which can be accessed here.

3. Manifestly excessive SARs

The guidance also clarifies how to assess whether a SAR is “manifestly excessive”.   

The ICO warns that:

  • A SAR “is not necessarily excessive just because the individual requests a large amount of information”
  • Presumptions should not be made based on previous requests submitted by the same individual
  • Organisations must have “strong justifications” for concluding that a request is “manifestly excessive”.  

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