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Landmark Health and Social Care Insight
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This is the latest update on developments in health and social care law from Landmark Chambers. We hope you will find this briefing useful; please feel free to forward it to your colleagues.
Editors: David Lock QC, Samantha Broadfoot QC, Leon Glenister and Hannah Gibbs.
Assistant Editor: Faryal Shafi
Click here to make an enquiry or for further information about our specialist public law barristers.
Please be advised that the information contained within this newsletter does not constitute legal advice. Click here for details.
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| Divisional Court finds law permitting abortion of fetuses with Down’s Syndrome after 24 weeks lawful |
| Yaaser Vanderman |
| The High Court has ruled in (R (Crowter and others) v SSHSC [2021] EWHC 2536 that the law permitting abortion without time-limit of seriously handicapped foetuses —including those diagnosed with Down’s Syndrome—is compatible with the ECHR. |
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Strasbourg awards damages to social care worker for accusations of professional misconduct by a Family Court Judge
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| Joe Thomas |
| In SW v United Kingdom, Strasbourg awarded damages to a social care worker whose Article 8 and 13 rights were held to be breached by the family court judge’s directions to disseminate his adverse findings as to the social care worker’s professional conduct to her employer and professional regulator. |
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This case highlights that in the specific context of court proceedings, it is first and foremost the responsibility of the presiding judge to ensure that the Article 8 rights of persons giving evidence are adequately protected.
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| When is a local authority liable to pay relatives who care for children in need? |
| David Lock QC and Alex Shattock |
| Three recent cases have highlighted a recurring problem for local authorities’ social services departments, namely the circumstances in which a local authority is obliged to make payments to family members who step in to care for children when parents are unable to do so. |
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The cases stress that the test is a question of fact, and decisions can be knife-edged, depending in part on whether the local authority takes a major role in making the arrangements for the children to move to their relatives.
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Which local authority pays for aftercare after repeated detentions? DHSC’s current position on determinations on s117 Mental Health Act 1983 disputes |
| Leon Glenister |
| Following the grant of permission to appeal by the Secretary of State for Health and Social Care in Worcestershire, no new determinations will be made on cases which raise the issue of provision of after-care services to patients who have been detained in hospital for treatment on more than one occasion under s.3 MHA after 2 June 2020, until the outcome of the case is known. |
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Pending the outcome of appeal, such cases should be referred to the DHSC without resulting in a gap to provision of services..
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The latest update on: Placement of looked-after children in unregulated accommodation
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| Samantha Broadfoot QC |
| Following the new regulations which limit the types of accommodation in which a looked after child under 16 can lawfully be placed by children’s services and the judgement by Mr Justice MacDonald, in MBC v AM & others (DOL Orders for Children under 16) [2021] EWHC 2472 (Fam), the Court of Appeal will determine whether the Court retains jurisdiction to authorise the deprivation of liberty of a child in the context of an unlawful placement. |
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Relatedly, a further cohort of cases is listed in the Family Court to consider whether it remains open to the court to exercise the inherent jurisdiction in cases where the unregulated placement is either unable or unwilling to seek registration.
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Learning the lessons from the judgment of the Court of Appeal in R (Bell) v Tavistock and Portman NHS Foundation Trust
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| David Lock QC |
| In reversing the High Court’s decision in Bell, the Court of Appeal ruled that Court should not have gone any further by giving guidance to govern future medical practice in the controversial area of treatment for children presenting with symptoms of gender dysphoria. |
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Instead of going to the court, those who have concerns about the way medical practice in this difficult area is carried out should use the established mechanisms of review within the NHS. The judgment also contains a clear warning to all parties to a judicial review case to strictly follow the rules about the admission of expert evidence.
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Webinar: The Freedom of Speech Bill: Necessary, superfluous or dangerous?
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| The debate about freedom of speech in public service is a constant theme with relevance for those working in health and social care settings. Some professionals working in health and social care also have active roles within universities and the culture from universities can have a direct influence on how health and social care settings operate. |
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Public Law at Landmark Chambers
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Public law involves the rules that govern the way all aspects of government interact with citizens, companies, non-governmental organisations, public bodies and other governments.
It covers everything from the grant of telecommunication licences to major corporates, all aspects of the law of the NHS, through to the rules affecting the detention of asylum seekers.
Each area has its own complex set of rules but there are overriding principles of public law which govern how public bodies are required to act. Our public lawyers have, between them, a huge depth of experience.
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| Webinar: Can NHS Trusts seek s106 funding from developers to meet the costs of extra patients arising from a housing development? |
An introduction to how NHS bodies may be able to seek funding to cover additional costs arising from housing developments. Is this compatible with the CIL regulations and is it permissible?
How does NHS funding work and how should NHS Trusts be funded for extra patients arising from a housing development.
Is this really permissible? An examination of the counter-arguments. |
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