Healthcare Brief market insights

A summary of key developments which include the Ockenden review; recommendations for NHS litigation reform; proposals for fixed recoverable costs in lower value clinical negligence claims; the draft Mental Health Act Reform Bill; the Health and Care Act and the Judicial Review and Courts Act; and the Mental Capacity Act 2005 Code of Practice and Liberty Protection Safeguards system.

Ockenden review final report published

On 30 March 2022, the final report of the Ockenden review into the maternity services at the Shrewsbury and Telford Hospital NHS Trust was published.

In our recent article, we explore the key findings, recommendations, and lessons that can be learned following the largest review into maternity services at an individual NHS Trust.

Contact: Sarah Lord

Health and Social Care Committee publish wide-ranging report on NHS litigation reform

On 28 April 2022, the Health and Social Care Committee (HSCC) published a report on NHS litigation reform with the central recommendation that “the NHS adopt a radically different system for compensating injured patients which moves away from a system based on apportioning blame and prioritises learning from mistakes”.

Among the key recommendations for reform is the introduction of an administrative scheme under which access to compensation would be “based on agreement that correct procedures were not followed and the system failed to perform, rather than the higher threshold of clinical negligence by a hospital or clinician”.

The report also proposes that the administrative body “should be empowered to change the way compensation is awarded” to move away from a ‘once and for all’ payments to awards that are made with “periodical review built in so that they can become responsive to the changing needs of patients”.

Contact: Christopher Malla

Health and Care Bill granted Royal Assent

On 28 April 2022 the Health and Care Bill received Royal Assent, enacting what the Department of Health and Social Care described as “the most significant health legislation in a decade”.

The Act introduces measures to deliver more joined-up care, with a government announcement stating that “every part of England will be covered by an integrated care system (ICS) bringing together NHS, local government and wider system partners to put collaboration and partnership at the heart of healthcare planning”.

Contact: Camilla Long

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Draft Mental Health Act Reform Bill

The Queen’s Speech on 10 May 2022 – which sets out the government’s legislative programme for the new parliamentary session - included a new Bill to reform the Mental Health Act. Announcement of the draft Mental Health Act Reform Bill follows publication of the Department of Health and Social Care White Paper in January 2021 setting out proposals for reform of the Act.

The background briefing notes for the Queen’s Speech provide that the main elements of the Draft Mental Health Act Reform Bill include: “amending the definition of mental disorder so that people can no longer be detained solely because they have a learning disability or because they are autistic”. The briefing notes add that the Bill will change the criteria for detaining people, “so that the Act is only when strictly necessary: where the person is a genuine risk to their own safety or that of others, and where there is a clear therapeutic benefit".

Publication of the draft Bill is currently awaited.

Contacts: Rob Tobin and Roger Davis

Judicial Review and Courts Act 2022

Following its introduction by the government in July 2021, the Judicial Review and Courts Bill received Royal Assent on 28 April 2022, becoming law. The Act gives the courts the power to award suspended and prospective-only quashing orders, which will be subject to a statutory presumption. The new legislation also reverses the Supreme Court judgment in R (Cart) v The Upper Tribunal [2011], which means that certain decisions (subject to exceptions) of the Upper Tribunal will be protected from judicial review.

Contact: Daniel Freeman

Proposals for fixed recoverable costs in lower value clinical negligence claims

A new scheme aimed at streamlining the process for clinical negligence claims valued up to and including £25,000 is being consulted on by the Department of Health and Social Care.

The aim being to “to enable claimants and defendants to achieve faster resolution” of such claims “at a lower, more proportionate cost than under the current system”.

The proposals set out in the consultation, would introduce a new pre-issue claims process and mandatory fixed recoverable costs scheme for lower value clinical negligence claims (subject to certain exceptions). The new pre-issue claims process aligns closely with proposals set out in the Civil Justice Council working party report published in February 2019.

The consultation closed on 24 April 2022.

Contact: Christopher Malla

Government consultation: proposals to change the Mental Capacity Act 2005 Code of Practice and implementation of the Liberty Protection Safeguards

On 17 March 2022, the government published a consultation on proposed changes to the Mental Capacity Act 2005 Code of Practice. The Code of Practice includes guidance on the new Liberty Protection Safeguards (LPS) system and the consultation also seeks views on “the LPS regulations, which will underpin the new system”.

Two key reasons for updating the Code of Practice are cited within the consultation as follows: "First, there has been new legislation and case law, organisational and terminological changes, and developments in ways of working and good practice since the MCA came into force in 2007. Second, the new LPS scheme means that changes are needed to the Code. It is important that professionals and practitioners understand and apply the principles of the MCA into the LPS process".

Under the LPS system, NHS bodies will have “a role in arranging assessments and authorising arrangements”.

The launch of the consultation follows confirmation from the Department of Health and Social Care in December 2021 that the LPS system would not be implemented in April 2022, as previously planned. The intention being to ensure that those called upon to implement the reforms have the appropriate time to prepare for the changes, particularly in light of the impact of the pandemic. The consultation closes on 7 July 2022 and a new target date for implementation of the LPS system is awaited.

Contacts: Amanda Mead and Indi Kaur

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Judicial College Guidelines: 16th edition published

In May 2022, the 16th edition of the Judicial College ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’ was published, the introduction to which stating that the figures in this updated publication “reflect that at the end of September 2021 the general increase in RPI since the last edition has been 6.56%”.

The 15th edition was published towards the end of November 2019.

Among the key changes in the guidelines, general damages for injuries of the utmost severity, categorised separately under ‘very severe brain injury’ and ‘tetraplegia’, are each now £403,990.

Contact: Christopher Malla

Damages Claims Portal: mandatory for defendants from 2 June 2022

In May 2021, HM Courts & Tribunals Service 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 Practice Direction 51ZB. The DCP is set to become mandatory for defendants from 2 June 2022.

The service allows legal representatives to progress claims digitally up to providing information for a directions questionnaire. Cases are then referred to a judge for track allocation and managed in the usual way, under the Civil Procedure Rules.

In the long term, HMCTS’ goal is to create an end-to-end transformed digital service for claims in the County Court, from pre-action to enforcement.

The DCP is applicable to all damages claims which would traditionally follow the Part 7 claims process in the County Court, provided that:

The claim is not made under one of the provisions of the Consumer Credit Act 1974.
The claimant is aged 18 years or over, or if under 18 has a litigation friend.
The claimant is not a protected party.
The claimant does not have a civil restraint order or similar in force against them.

Contact: Rob Tobin

New Northern Ireland discount rate announced

The Damages (Return on Investment) Bill received Royal Assent on 2 February 2022, and on 22 March 2022 the Department of Justice confirmed that a new discount rate of -1.5% has come into effect. This means that Northern Ireland continues to have the lowest discount rate in the UK.

According to the Department, “the discount rate remains low as a result of high expected inflation in the short to medium term, low expected interest rates in the longer term and the anticipated returns on bonds and equities remaining low”. This will be disappointing news for insurers and compensators.

The next review of the rate will be in July 2024.

Contacts: Ian Martindale and Frances Thompson

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Dispute resolution in England and Wales

On 29 March 2022, the Ministry of Justice (MoJ) published its summary of responses to Dispute resolution in England and Wales: call for evidence, which sought insights on how disputes might be best settled out of court. While the MoJ made no specific recommendations off the back of the 193 responses, it has said the exercise will inform its work on how to utilise dispute resolution processes to “deliver swifter, more cost-effective and more consensual access to justice”.

Notwithstanding the progress already made within the HM Courts and Tribunals Service (HMCTS) reform programme, a perfect storm of circumstances seems to have converged, driving a push towards embracing and harnessing the full potential of technological solutions.

There are a number of interesting themes arising out of the report which are explored in more detail here.

Contacts: Christopher Malla and Roger Davis

Read other items in Healthcare Brief - May 2022