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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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| Sexual Violence as a public health issue? |
| Fiona Scolding QC |
| There is ample evidence to suggest that public harassment of women and girls is common in England and Wales. Harassment and sexual violence cause long-term problems for women and girls and cost our economy untold billions. |
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Yet despite the growing awareness, the efforts at tackling the “epidemic” of sexual violence against women and girls are at best piecemeal, calling for a collective reckoning of our approaches, values and attitudes, including in the public services. |
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Online Safety Bill Aims & Limitations
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| Samantha Broadfoot QC |
| The Online Safety Bill is ambitious legislation that aims to reduce the amount of harmful content available online, in particular to children and vulnerable individuals. |
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It proposes to do so by:
a) the appointment of Ofcom as a regulator,
b) reducing access to illegal content,
c) imposing a duty of care on some types of providers— such as some porn sites —which might lead to the development of improved age verification systems and
d) imposing a duty of care on search engines to filter out harmful content. Whether the cumulative effect of the proposals would render the online space ‘safe’ can only be speculated, the task at hand is monumental, its aims laudable. |
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| Mandatory Hotel Quarantine Scheme does not breach Article 5 ECHR |
| Julia Smyth |
| The High Court has ruled, once again, that the hotel quarantine rules do not breach the Article 5 ECHR rights of those subject to them. |
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The rules were challenged on the basis that they:
i) constitute a deprivation of liberty;
ii) are unlawful because Article 5(1)(e)—which permits detention for the prevention of spreading of infectious diseases—does not apply; or
iii) even if it does apply, mandatory hotel quarantine, especially of fully vaccinated persons, is arbitrary and disproportionate.
In rejecting these arguments, Fordham J held these rules to be unarguably necessary and proportionate, emphasising the individual choice to visit a red listed country against Government advice, as well as the relatively short duration of quarantine.
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Administrative Court rules on the meaning of “urgent treatment” in the context of the NHS charging scheme for migrants |
| Admas Habteslasie |
| A patient, categorised as an “overseas visitor”, has lost his High Court challenge to the Royal Free London NHS Foundation Trust’s decision to refuse scheduled dialysis, requiring him to undertake repeat assessments of whether he needs the treatment on a ‘urgent’ basis at the A&E instead. |
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In so ruling, Ritchie J held that patients—overseas or ordinarily resident—were not entitled to demand a certain standard of care as that decision is a matter for the clinician’s judgment and depends on the organisation of the NHS services. |
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Supreme Court decides that a person’s capacity for sex includes knowing that the other person must consent to sex
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| Charles Bishop |
| The Supreme Court has decided that a person’s capacity for sex includes a consideration of whether that person understands that the person with whom they engage in sexual activity must be able to consent and does in fact consent. |
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Such understanding not only serves to protect those whose capacity for sex is being called into question but also all those with whom they engage or may engage sexually.
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The legal issues around delayed discharge of individuals with learning difficulties from Mental Health detention |
| David Lock QC |
| Despite meeting the criteria for discharge, patients continue to remain in detention under the Mental Health Act 1983, often for very lengthy periods, due to the difficulties in securing arrangements for their safe transfer to the community. The local authorities, or the CCGs, either do not operate appropriate facilities or cannot find the right private sector service providers. On the other hand, the creation of bespoke facilities for a single patient can easily cost up to £1M per annum. |
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In these circumstances, the NHS bodies can either detain a ready-to-discharge patient for unduly long periods or arrange discharge to a less than satisfactory facility. Either way, the NHS bodies risk facing a legal challenge based on the breaches of the concerned patient’s human rights. |
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Abortion in Northern Ireland – High Court finds Secretary of State in breach of statutory duties |
| Yaaser Vanderman |
| Despite the enactment of the Abortion Regulations in March 2020, the Department of Health and Executive Committee in Northern Ireland have failed to commission and fund the comprehensive abortion regime therein. |
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Women who are more than 10-weeks’ pregnant do not have access to abortion services, save in a medical emergency, whilst in some areas even women under 10 weeks’ gestation still have to travel to England to access the services or resort to abortion pills from unregulated providers over the internet. Consequently, in a judgment delivered on 14 October 2021, the High Court found that the Secretary of State had breached his statutory duty to secure abortion in Northern Ireland expeditiously, as well as expressing the undesirability of the use of judicial review as a means to force the Executive to perform its statutory duties. |
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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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