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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 finds legislation banning protest outside abortion clinics lawful |
| Yaaser Vanderman |
| The Abortion Service (Safe Access Zones) Bill bans protests, or similar activity, within 100 meters of abortion clinics to allow women and girls to safely access abortion clinics in Northern Ireland. |
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| In REFERENCE by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, the Supreme Court has held that the proposed legislation does not breach Article 9/10/11 ECHR rights of those involved in protests outside abortion clinics as the protesters can protest elsewhere, but the women and girls seeking abortion services will not be able to avoid such protests, which will adversely impact their health. The ruling gives effect to the democratic decision to permit safe abortion. |
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| Alternative Providers – can the rights ever be exercised? |
| David Lock KC |
| With ever growing waiting lists, the “rights” that patients have to be treated by a “suitable alternative provider” within the waiting time limit of 18 weeks has never been more important. |
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| The NHS Constitution suggests patients have the right to insist the NHS refers them to someone who can treat them within 18 weeks. However, in practice, this rarely if ever happens. This article identifies the steps that a patient would have to take to exercise his or her “right” and explains why, in practice, it is virtually impossible for any patient to exercise this their legal right to secure NHS funded medical treatment after being referred to a suitable alternative provider. |
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| The Hewitt Review into Integrated Care Systems |
| Harriet Wakeman |
| The Hewitt Review into the recent changes in the NHS structure under the Health and Care Act 2022 is well underway. |
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| While the final report is due this month, this article sets out the scope and purpose of the Hewitt Review, which broadly seeks to assess the performance of the 42 Integrated Care Boards (ICBs), which replaced the Clinical Commissioning Groups (CCGs), against two key parameters of accountability and autonomy. |
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| Exclusion of legacy benefits from Covid-19 uplift justified |
| Siân McGibbon |
| During the Covid-19 pandemic, the Government introduced a temporary uplift of £20 per week to the Universal Credit, but excluded from this uplift those already in receipt of ‘legacy benefits’ (including Employment and Support Allowance, Income Support, and Jobseeker’s Allowance). |
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| The Court of Appeal has held that this exclusion does not breach Article 14 ECHR rights of those in receipt of legacy benefits. The uplift, the Court has ruled, was not exclusively intended to alleviate poverty but was adopted to support those who were making claims for social security for the first time as a result of the pandemic. |
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| Court of Protection refuses permission for posthumous sperm donation |
| Miranda Butler |
| The Court of Protection has refused the application by the parents of a young man, who had suffered a stroke and was not expected to survive, to collect and store his sperm for the future conception and birth of their grandchild. |
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| The Court deemed the procedure invasive, and in the absence of strong evidence of the young man himself wanting his sperm to be collected and stored, the application was refused. |
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| Abortion law does not stigmatise living disabled persons – Court of Appeal |
| Yaaser Vanderman |
| The Court of Appeal has ruled that the provision of the Abortion Act 1967, which permits abortion of fetuses with Down’s Syndrome (“DS”) anytime after 24 weeks’ gestation, is not incompatible with Article 8 of the ECHR. |
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| The Court rejected the arguments of two Claimants with DS and a mother of a child with DS that by allowing abortion of fetuses with DS, the law promotes negative stereotypes about them. The Court ruled that the Act was not concerned with living disabled persons. The Claimants have applied to the Supreme Court for permission to appeal. |
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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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