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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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| Covid-19 vaccinations for children in care |
| High Court holds that a local authority can arrange for vaccinations of children in care against Covid-19, despite parental objections. The Judge also held that, in the “great majority of cases”, there would be no need for the local authority to seek court approval to do so. |
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Court of Appeal decides care workers will act unlawfully if they arrange a sex worker for a disabled person: But were the wrong questions asked?
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| David Lock QC |
| The Court of Appeal overturns the High Court decision to lawfully include visits by sex works in the care plan of consenting, disabled persons. |
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The Court of Appeal decided that care workers would be in breach of s.39 Sexual Offences Act 2003 if they assisted a patient who had the capacity for sex, but not the capacity to secure arrangements for it, because they would be responsible for ‘causing’ a person with a mental disorder to engage in sexual activity. Although decided on the facts of the case, this decision imposes a blanket ban on assistance by care workers to support people with a mental disorder to protect their convention right to a sexual life. |
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| Double-vaccination rule for care home workers found lawful by High Court |
| Yaaser Vanderman |
| The rule requiring care home workers to be double-vaccinated has come into force on 11 November 2021 and survived a High Court challenge. In dismissing the challenge, the High Court held the rule: |
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(a) to be within the ambit of the enabling Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021;
(b) to be a political and social policy issue which could not be legitimately intervened with by the courts and
(c) did not interfere with the workers’ Article 8 and/or 14 rights, or if it did, it is justified in the context of the pandemic and the urgent need to protect care home residents from COVID-19. |
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High Court rules that patients with capacity receiving care and treatment in the community will not suffer the distress of hospital detention if such detention would breach their Article 5 rights |
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This significant decision strikes a fine balance between permitting patients to be detained in less restrictive settings and ensuring the protection of the public.
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Placement of looked-after children in unregulated accommodation – yet another update
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Whilst we await the judgment, the High Court has handed down a further judgment dealing with some of the practical implications of the Tameside decision in Derby City Council & others [2021] EWHC 2931. Together, they constitute an important step towards addressing the immense challenges surrounding provision of care to some of the most vulnerable children in society.
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Consent – is there a new way of thinking about an old problem?
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| David Lock QC |
| Have the procedures gone awry by separating the medical decision-making process from the consent process? This article suggests that a unified process for patients, doctors and NHS bodies, which follows the patient through their clinical journey, and the existing good practice, might produce better clinical governance. |
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High Court to hear challenge to change of control of London GP practices from local GPs to a US-based corp
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| The High Court is due to hear a challenge in early 2022 to the decision of North Central London Clinical Commissioning Group to authorise a change of control of six GP practices in London to Operose Health Ltd, a subsidiary of US-based Centene Corporation. |
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The ruling in this case arises from an attempt to change the ownership of dozens of GP practices. Patients fear that any move to hand control to a US based healthcare provider may adversely affect the provision of care to hundreds of thousands of patients in London and have concerns over the financial stability of the new controller. |
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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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