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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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| Early medical abortions at home to be made permanent following temporary pandemic provisions |
| Hannah Gibbs |
| This article provides a commentary and summary of the parliamentary and legal journey to the present position, whereby there will be permanent provision for at home early medical abortions. |
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| This makes permanent the temporary provisions introduced during the Covid-19 pandemic, which allowed women to receive both of the two different early medical abortion medications at home, rather than the initial medication in a hospital or clinic. |
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| Care Quality Commission to report to local authority only if the likelihood of a service provider’s business failure is more than 50%
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| Admas Habteslasie |
| Following the failure of Southern Cross in 2011, the government introduced the Market Oversight Regime. This establishes a framework designed to respond to the risk of failure of care providers who, by reason of their size or concentration, would be particularly difficult to replace in the event of that failure. |
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| In Advinia, the Administrative Court held that the Care Quality Commission could only raise the red flag of potential business failure of the care service provider to the relevant local authority if it was satisfied that it was more probable than not that business failure was likely – i.e. more than a 50% chance. This arrangement strikes the right balance between protecting the service users and keeping the sensitive, commercial information of the service providers confidential.
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| Council held in contempt of court for breaching High Court Order as a result of its repeated failures to complete future placement planning for the disabled claimant |
| David Lock QC and Faryal Shafi |
| The High Court has found Cardiff City Council in contempt of court for its failure to comply with a Court Order to complete future placement planning for a disabled young man. |
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| The Mandatory Court Order required steps to be taken by the Council within the set time and the Council was in contempt of court (and hence could be fined) for failing to take those steps. It was also publicly “named and shamed” as a public body that acted in breach of an order of the High Court. |
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| Divisional Court hands down judgment in judicial review of Government’s COVID-19 policy on care homes |
| Charles Bishop |
| Some of the government’s care home policies during the first wave of the Covid-19 pandemic have been found unlawful by the court. |
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| The Divisional Court concluded that certain policies adopted by the Defendants were irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative for COVID-19) was admitted to a care home they should, so far as practicable, be kept apart from other residents for 14 days. However, the Article 2 ECHR challenge failed because there was no Strasbourg authority that the operational duty extended to as broad and undefined a sector of the population as all residents of care homes or the elderly. |
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| Court of Protection confirms the principles to be applied in cases concerning the administration of vaccines for individuals who lack capacity |
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| The court also gave guidance on the procedure to be used if a party wishes to rely on “expert” evidence, warning experts cannot be instructed in COP proceedings without specific permission. |
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| Let’s go halves: Splitting the cost of s.117 after-care services |
| Katharine Elliot |
| The funding of after-care packages for patients discharged from mental health detention under s.117 of the Mental Health Act 1983 has been a source of tension between local authorities (“LAs”) and Clinical Commissioning Groups (“CCGs”). |
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| Katharine Elliot explains that, in the absence of a s.117 after-care funding agreement between an LA and a CCG, the default position should be a 50/50 apportionment of the total cost of any care package. Further, if (without agreement) either the LA or the CCG overpays, they may be able to recover overpayments in restitution from the other public body. |
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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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