29/09/2020

Welcome to the Autumn edition of Healthline. We hope that you will find the following articles interesting and useful.

Autonomy and End of Life - recent cases from the Court of Protection

This article examines the circumstances under which the Court may give greater weight to P’s autonomy than the need to preserve or prolong their life.

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Covid-19 and regulation by the HSE and CQC

This article considers work related deaths from Covid-19 and the enforcement action that organisations may face where there is a possible breach of health and safety legislation.

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Maternity Services in England

This article looks at the new inquiry that has been launched by the Health and Social Care Committee to investigate recurrent fallings in maternity services and to what action should be recommended to improve safety for mothers and babies.

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Bevan Brittan Health and Social Care Publications

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Autonomy and End of Life - recent cases from the Court of Protection

In a recent series of serious medical treatment decisions, the Court of Protection has emphasised the primacy of P’s autonomy, even in circumstances where adhering to P’s wishes and feelings involves a significant risk of death. This recent elevation on P’s autonomy over and above the presumption that life should be preserved is illustrated  in the cases of Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26, Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37 and Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40. This article examines the circumstances under which the Court may give greater weight to P’s autonomy than the need to preserve or prolong their life.

Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26

MSP had long standing gastrointestinal problems and had consistently expressed to family and friends that he would not tolerate life with an irreversible stoma. MSP had written an (improperly executed) Advanced Decision detailing a refusal to life-sustaining treatment which would result directly or directly in an irreversible stoma.

However, MSP capactiously consented to having a stoma formed when admitted to hospital with a life-threatening obstruction of the small bowel. MSP subsequently required to be sedated and ventilated and was unable to communicate his wishes regarding whether clinically assisted nutrition and hydration should be withdrawn.

Mr Justice Hayden ruled that it would be in MSP’s best interests to withdraw clinically assisted nutrition and hydration. MSP’s clear and consistently expressed wishes, including in the Advanced Decision (though not legally binding), were that he was not prepared to contemplate life with an irreversible stoma. MSP’s personal autonomy was determinative and rebutted the presumption that his life should be preserved.

In Mr Justice Hayden’s words, MSP had made “a practical, utilitarian calculation that life in these circumstances is not what he wants. In a real sense this is not a case about choosing to die, it is about an adult's capacity to shape and control the end of his life. This is an important facet of personal autonomy which requires to be guarded every bit as jealously for the incapacitous as for the capacitous.”

Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37

Bevan Brittan represented Avon and Wiltshire Mental Health Partnership Trust in this complex case regarding WA, a former Palestinian asylum seeker with a history of abuse and torture.  WA had been refusing nutritional intake, a maladaptive coping strategy in response to psychological distress, and was at significant risk of death without nasogastric feeding being given. He had expressed a desire to die.

Mr Justice Hayden concluded that WA lacked capacity to make decisions about his nutrition and hydration. However, it was not in WA’s best interests to receive clinically assisted nutrition and hydration against his will. Any degree of coercion, albeit motivated to preserve WA’s life, might be retraumatising and trigger a relapse of WA’s PTSD and depression.  

Mr Justice Hayden remarked, “I recognise that intense effort is being directed towards the preservation of a life which is recognised to be ripe with promise…But, it must be emphasised that loss of capacity does not override respect for personal autonomy. Protecting the autonomy of the incapacitous is every bit as important as protecting the autonomy of the capacitous.

Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40

AB had chronic and severe anorexia nervosa, with previous traumatic experiences of restraint and forcible nasogastric feeding. At serious risk of death, forcible nasogastric feeding was the only treatment option available.

Mrs Justice Roberts concluded that AB lacked capacity to make decisions regarding treatment for anorexia nervosa, but that despite the life-threatening consequences of further weight loss, it was not in AB’s best interests to receive nasogastric feeding against her will or under sedation. It was accepted that this would be distressing and traumatic for AB, and would likely be futile and precipitate her death in any event. The Trust’s proposed palliative care plan was endorsed.

Mrs Justice Roberts drew attention to AB’s statement on the importance of her personal autonomy: Some people might think that it is a life limited in quality as well as quantity, and, in some ways it is, but in so many others, it is not… Many, many aspects of it are aspects that I have chosen for myself. That is what I mean when I say that it is a decision made by me as opposed to my illness.”

When is P’s autonomy more important than the preservation of life?

It is a foundational principle of the Court of Protection that each case is considered on its own unique set of facts. Nevertheless, the aforementioned cases suggest that under the following circumstances, the Court may consider that P’s autonomy to refuse life-sustaining treatment will take precedence over the need to preserve P’s life.

  • Where P has expressed clear and consistent objections to the form or consequences of the life-saving treatment proposed. For example, MSP had consistently expressed that he could not accept life with a stoma, which he would have to do if he were kept alive by the provision of clinically assisted nutrition and hydration.
  • Where the life-sustaining treatment in question would be traumatic and distressing for P. MSP, WA and AB had all had previous traumatic experiences with the form of treatment in question, such that it was not considered in their best interests to be subject to this treatment against their will.
  • Where P’s circumstances detail a history of having had personal autonomy taken away from them. This is most starkly illustrated in the case of WA, but also alluded to in the evidence of AB. Comments from Mr Justice Hayden particularly emphasise the Court of Protection’s role in safeguarding the personal autonomy of the incapacitous.

For the full judgments, please see:

If you would like any further guidance on the topics raised in this article, please contact Melanie Lothbrok and Julia Jones.

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Covid-19 and regulation by the HSE and CQC

This article considers work related deaths from Covid-19 and the enforcement action that organisations may face where there is a possible breach of health and safety legislation.

Does an organisation need to report Covid-19 cases under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”)?

Whilst there is no requirement under RIDDOR to report deaths of the public, patients, care home residents or service users from Covid-19, an organisation must report the following types of incidents:

  1. an accident/incident at work has or may have led to the release of Covid-19; or
  2. a person at work has been diagnosed with Covid-19 which has been attributed to an exposure to the virus whilst at work; or
  3. a worker dies as a result of occupational exposure to Covid-19.

Where there is reasonable evidence that the Covid-19 element of the exposure occurred in the workplace a duty to report under RIDDOR is likely to be triggered. Reasonable evidence may include a large number of confirmed cases in one particular area of the workplace contracted over a short period of time.

For health and social care businesses registered with the Care Quality Commission (“CQC”), deaths of service users in regulated settings should be reported in accordance with CQC guidance. Organisations should also comply with their duty of candour obligations where these arise; failure to comply can result in fines for health and social care providers.

In addition, failure to report to the regulator where required under RIDDOR or the CQC’s reporting requirements is a criminal offence.

Will an inspection from the Health and Safety Executive (“HSE”) or the CQC follow?

The HSE investigates reports of fatalities in the workplace in its role as health and safety regulator, including Covid-19 work related deaths. For other reports under RIDDOR it does not automatically follow that an inspection will take place.

Whilst prima facie breaches of legislation risk prosecution by the HSE or CQC, the HSE has indicated that their regulatory approach will continue to take proportionate account of the risks and challenges arising from the Covid-19 pandemic. The CQC’s approach is to engage and share knowledge, but on the understanding that it expects those it regulates to do everything in their power to keep people safe, and that it will use its enforcement powers where it finds unsafe or poor care. 

Enforcement options open to the HSE or CQC

These include:

HSE

CQC

Improvement Notices – notifying an organisation that the HSE inspector considers there has been a breach of the law which needs to be remedied within a certain period of time.

Warning Notices - notifying a health and social care provider that CQC considers there has been a breach of the law which needs to be remedied within a certain period of time.

Prohibition Notices – requiring an organisation to cease a work activity or process immediately or within a short timescale.

Imposition of Conditions of Registration – requiring a health and social care provider to take certain steps to remove the risk.

Prosecution – where the regulator considers there has been a serious breach of the law.

 

Police investigation

Following a Covid-19 work related death, the Police may investigate whether there is evidence to warrant a charge of gross negligence manslaughter or corporate manslaughter. Corporate manslaughter investigations focus on whether an organisation managed or organised its activities in such a way that amounted to a gross breach of the duty of care it owed to the deceased, and that this breach caused the death – e.g. an organisation taking insufficient/no steps to protect its staff against Covid-19 or knowingly permitting an infected individual to closely work alongside another.

Practical Tips

Where an organisation fails to take reasonable steps to keep employees or other members of the public or service users reasonably safe from Covid-19 they risk being subject to enforcement action by the HSE or CQC. Some practical tips for organisations are as follows:

  1. Have you considered the sector-specific guidance issued by the Government?
  2. Have you reviewed and considered the HSE guidance on Covid-19?
  3. Have you reviewed and considered the CQC guidance on Covid-19 (healthcare and social care providers only)?
  4. Have you updated your relevant risk assessments to take into account any risks associated with Covid-19 in your workplace? This should be recorded and updated whenever there is a substantial change in Government guidance or the circumstances at your workplace.
  5. Have you identified the mitigating steps/actions that need to be taken in response to the risk assessment? In determining actions, it is important to ensure that measures are not discriminatory and that all reasonable adjustments are made.
  6. Have you trained your staff on the new systems and processes in place to reduce the risks associated with Covid-19? A training record should be kept.
  7. Are you regularly auditing compliance with any measures put in place to minimise the risks associated with Covid-19? Further audits should be undertaken to assess the suitability of the control measures and risk assessments in place, particularly in anticipation of a second wave of Covid-19. Any auditing should also include a review of staff compliance and consider the need for any additional training.
  8. Do you need to put in place new methods of auditing if traditional methods, eg in the form of regional management visits, are impacted by Covid-19?
  9. Is a proactive notification to the CQC required (healthcare and social care providers only)?
  10. Have you reported any Covid-19 work related death to your insurer and relevant regulatory body?
  11. Organisations may need to consider further training of staff or invoking staff management practices to ensure compliance with internal processes and procedures.

If you would like any further guidance on the topics raised in this article, or would like to receive any health and safety training, please contact Samantha Minchin and Carlton Sadler.

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Maternity Services in England

The Health and Social Care Committee has launched a new inquiry to investigate recurrent failings in maternity services and to review what action should be recommended to improve safety for mothers and babies. In addition, two independent investigations are currently underway investigating maternity failings identified at two separate Trusts[1].

Submissions to the Health and Social Care Committee can be made by Friday 30 October 2020. Some of the issues it seeks to explore are:

  • the extent to which previous recommendations on maternity safety are being consistently and rigorously implemented across the country;
  • how effective the training and support to maternity staff is, and what improvements could be made; and
  • whether medical advice and decision making is affected by a fear of a “blame culture” and whether any changes should be made to the clinical negligence and litigation process to improve the safety of maternity services.

A review of the Report on Action to Prevent Future Deaths (“PFD Report”) made by Coroners in 2020 may help to identify some trends in maternity concerns across Trusts.

A Coroner has a duty to make a PFD Report if their investigation of a death has led them to conclude that circumstances creating a risk of death will occur, or continue to exist, in the future and action should be taken to prevent the occurrence or continuation of such circumstances or to eliminate or reduce the risk of death created by such circumstances.

PFD Reports for baby death inquests concluding in 2020 suggest that Trusts delivering maternity services should be aware of the following areas:

  • There may be a national issue with the recruitment, assessment and supervision of locums on obstetric and gynaecology wards. A recommendation has been made for NHS England and the Royal College of Obstetricians and Gynaecologists to review this and to consider if the publication of new guidelines is appropriate.
  • Trusts should implement a system for consultants to review prospective new locums prior to their appointment and, once in post, those locums should undergo a period of assessment on the ward.
  • Trust policies, procedures and record keeping should be reviewed where there is an unexpected baby death to ensure they are suitable, robust and implemented appropriately by staff.
  • Timely briefings to staff following unexpected deaths may be a useful way to share knowledge and improve understanding and communication on the wards.

If you would like any further guidance on the topics raised in this article, please contact Samantha Minchin and Simon Lindsay.


[1]               East Kent Hospitals University Trust, Shrewsbury and Telford NHS Hospital Trust

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