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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, Hannah Gibbs and Charles Bishop.
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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| Planning and NHS revenue contributions; Twin cases of R (University Hospitals of Leicester NHS Trust) v Harborough District Council [2023] EWHC 263 (Admin) and R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills District Council & Ors [2023] EWHC 1995 (Admin) start to answer this conundrum |
| David Lock KC and Dan Kolinsky KC |
| Two challenges to the refusal by local authorities to impose a requirement on a developer to make contributions to a local NHS trust to fill gaps in their funding to cover the population growth have been unsuccessful. |
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| The challenges concerned claimed contributions under s.106 of the Town and Country Planning Act 1990 to cover revenue funding to assist an NHS Trust with the costs of operating NHS facilities. In each case the High Court found that the NHS Trust had failed to prove whether a future funding gap existed or, if there was a gap, how large it was. The Court also indicated that a local authority could legitimately come to the decision not to make a s106 contribution for this type of case. |
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| Court finds waiting times for gender identity health services that breach NHS targets give rise to no legal remedy |
| Charles Bishop |
| The Court of Appeal has upheld the High Court in finding that the waiting times for gender identity health services faced by the claimants did not breach the various public law duties on the NHS. |
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| Those duties were “target duties” and it could not be said that the NHS had acted irrationally in respect of any of the steps it had taken to try to satisfy those duties. While the court gave a wide interpretation to the protected characteristic of “gender reassignment”, it found that the waiting times did not directly or indirectly discriminate against the claimants. The NHS was also not in breach of the public sector equality duty. |
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| Does the right to autonomy include a right to demand a medical treatment that a clinician does not advise? Court of Appeal says “no” |
| Leon Glenister |
| The Court of Appeal in JJ v Spectrum Community Health CIC [2023] EWCA Civ 885 held that the scope of the right to autonomy did not extend to a right to demand medical treatment where that treatment was not clinically indicated and therefore not offered by clinicians. |
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| In this case with stark facts, the Court held that a quadriplegic individual’s right to autonomy did not include a right to demand to be fed unsafe food by carers. |
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| High Court dismisses challenge to pharmaceutical pricing-agreement scheme |
| Yaaser Vanderman |
| In R (BGMA) v SSHC [2023] EWHC 1725 (Admin), the High Court dismissed the challenge to the Secretary of State’s decision to exclude the British Generic Manufacturers Association (the “BGMA”) from formally negotiating the next phase of VPAS – the mechanism by which the price of branded medicines provided to the NHS is controlled. |
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| It was held that the Secretary of State has a wide discretion under ss. 261 and 266 of the NHS Act 2006 and, in this case, he acted rationally when deciding that BGMA was not an “industry body” for the purposes of the Act. |
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| Transplants for patients with learning disabilities examined in Manchester University NHS Foundation Trust v William Verdun |
| David Lock KC |
| Should uncertainties as to the outcome of a transplant operation and the challenges of post-operative management of a transplant patient, mean that a patient who has learning difficulties and so may not co-operate with the complex post-operative regime should be denied a transplant in their best interests? |
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| Judgment clarifies principles applicable to the assessment of lawfulness of treatment amounting to further deprivation of liberty |
| Faryal Shafi |
| Norfolk and Suffolk NHS Foundation Trust v HJ [2023] EWFC 92 concerns the lawfulness of treatment of a patient detained under Mental Health Act 1983 where the treatment was for a condition unrelated to the patient’s mental health and involved imposition of restraint. |
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| The High Court ruled that it will only be in exceptional circumstances that the treatment of a lawfully detained patient will amount to a further deprivation of liberty for which court approval will be needed. |
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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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