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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 KC, Samantha Broadfoot KC, 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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| Supreme Court to decide on the future of public rights to open spaces |
| Alex Goodman |
| Historically, local councils have held public places ‘in trust’ thereby protecting public right to open spaces. Recently, Shropshire Council granted planning permission for one such protected space without inquiring into its status. A local man is seeking to quash the planning permission granted by the council to a developer who has bought that land. |
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| In deciding this challenge, the Supreme Court will determine whether public rights to recreation over parks and other open spaces are retained, suspended or extinguished where that land is sold to private developers, and whether such rights are material to planning decisions. |
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| New public procurement rules for Integrated Care Boards on the horizon |
| James Neill |
| New rules applying to the procurement of health services by Integrated Care Boards are forthcoming: section 80 of the Health and Care Act 2022 repeals the NHS Procurement, Competition and Patient Choice (No.2) Regulations (“the NHS Procurement Regs”) while the 2015 Public Contract Regulations (“PCRs”) will be replaced by the provider selection regime under the provisions of the Procurement Bill. |
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| These changes are intended to address the overlap between the existing set of rules, which often led to undesirable complications such as the CCGs (predecessors of ICBs) being exposed to liability for damages under the NHS Procurement Regulations well after the expiry of the much shorter limitation periods under the PCRs. |
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| Challenge to exclusion of Hepatitis B from infected blood support scheme fails |
| Miranda Butler |
| The Court of Appeal considered the exclusion of people who contracted Hepatitis B (HBV) from the English infected blood financial support scheme (EIBSS), finding their exclusion to be lawful. |
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| Notwithstanding the severe effects of HBV compared to those infected with Hepatitis C, including cirrhosis and liver cancer, the Court applied the Supreme Court’s judgment in SC, and ruled that the DHSC was ‘obliged to draw the line somewhere to make the cost affordable’ and ‘there was not yardstick by which the court could judge which claims were more or less deserving’. |
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| Delayed Transfer of Care leads to £100k legal bill for an ICB |
| David Lock KC |
| On Tuesday 8 November, the High Court left the NHS with a legal bill of over £100k after it ordered the Manchester ICB to pay the costs of a patient who had brought judicial review proceedings against the ICB in a delayed discharge case. |
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| The Claimant challenged the ICB’s refusal to conduct an NHS Continuing Care Assessment of a patient who was stuck in hospital awaiting a care package, and challenged the ICB’s alleged failure to follow the Secretary of State’s Guidance on Hospital Discharge arrangements. Although the case was resolved on the day of trial, the case gives rise to lessons that NHS and social care bodies should learn so as to avoid similar challenges. |
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| Exclusion of families of people who could not work because of life-long disability from bereavement benefit declared unlawful |
| Faryal Shafi |
| The High Court in Jwanczuk v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin) has decided the contribution requirement for entitlement to receive bereavement support payment is incompatible with Article 14, read together with A1P1 of ECHR. |
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| The contribution requirement under Pensions Act 2014 was declared unlawful because it failed to differentiate between those who could not work due to lifelong disability and those who were able to work but chose not to. |
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| High Court rules on whether a disabled prisoner, who cannot feed himself, can require carers to feed him an unsafe diet |
| David Lock KC and Leon Glenister |
| R (JJ) v Spectrum Community Health CIC [2022] EWHC 2440 (Admin) involved challenges to the Defendant healthcare provider’s decision to refuse to feed the disabled prisoner Claimant a diet of his choice instead of a safer, liquid diet. |
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| The Administrative Court considered that a patient’s right to autonomy does not entitle them to insist on receiving a particular medical treatment regardless of its nature, including that which a professional considers is adverse to the patient’s clinical needs. The Court dismissed the challenges on the basis that administering a non-liquid diet presented a risk of choking, and possibly death, which could expose the Defendant to the risk of criminal prosecution or a regulatory sanctions. |
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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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