An insight into support & resources following Clinical Negligence Gill Edwards & Richard Copson

An insight into support & resources following Clinical

NegligenceGill Edwards & Richard

Copson

IIC Show14TH & 15TH February 2014www.pannone.com

Support & Resources

Introduction:1. How can a clinical negligence claim help?2. Support & resources for vulnerable and

disabled children3. Support & resources for vulnerable and

disabled adults

What is clinical negligence?

• Tort - a civil wrong• Not a criminal case - no punishment

arising from a claim• Not an Inquiry

What is clinical negligence?

What has to be established?1. Patients are owed a duty of care2. Was that duty of care breached?3. Did the breach of duty cause, or

materially contribute, to a significant injury?

Breach of Duty

• It must be shown that the treatment fell below an acceptable standard ie that no responsible body of medical practitioners practising in that area would have treated the patient in that way at that particular time.

Breach of DutyWas there a breach of duty?

• A person is negligent if he/she does what no reasonable practitioner would do in the circumstances.

• A professional is not negligent if he has acted in accordance with a responsible body of practitioners.

What evidence is needed?• Witness statements from the patient and/or relatives.

• Medical records.

• An independent expert report from an expert in the same specialism – ie the practitioner is judged by his/her peers.

Causation

• In addition to proving breach of duty, a claimant must also prove causation

• ie that, on the balance of probabilities, the negligent treatment caused a significant avoidable injury.

Compensation: Support & Resources

If the claim is successful, we can claim the cost of:• Private care• Adapted accommodation• Equipment• Therapies – physio, OT, SALT• Adapted vehicle• Holidays

Compensation: Support & Resources

• What happens if there is no claim for compensation or more support is required?

• How do you access support and resources?

Accessing Support & Resources

For vulnerable or disabled children

Children Act 1989• Section 17

A general duty of every local authority to:

• Safeguard and promote the welfare of children within their area who are in need and;

• Promote the upbringing of such children by their families by providing a range and level of service appropriate to those children’s needs.

Children Act 1989• Section 27

A duty on agencies to cooperate in the assessment, planning and provision of services for children in need.

Duty upon:

• Any local authority.• Any local education authority.• Any local housing authority.• Any health authority.

Children Act 1989• Schedule 2, paragraph 3

Assessment of a child in need can be undertaken at the same time as any other assessment including assessments under:

• The Chronically Sick and Disabled Persons Act 1970.• The Education Act 1996.• The Disabled Persons (Services, Consultation and Representation)

Act 1986.

Working Together to Safeguard Children

• HM Government Guidance March 2013.• Principles underpinning the assessment framework.

• Are child centred:• Are routed in child development:• Are focused on action and outcomes for children:• Ensure equality of opportunity:• Involve children and families:• Build on strengths as well as identify difficulties:• Are integrated in approach:• Are a continuing process not an event:• Lead to action, including the provision and review of services:• Are transparent and open to challenge.

Working Together to Safeguard Children

• Timescales for assessment:

• Within one working day of a referral – assess response required.• Within a maximum of seven working days from referral – initial

assessment.• Within a maximum of 45 working days from referral –

completion of an assessment of need.

• The importance of safeguarding.

Accessing Support & Resources

For vulnerable or disabled adults

Community Care services• Community based care and support provided to enable those with

care needs, be they children or adults, to live as independent a life as possible.

• Section 46 National Health Service & Community Act 1990

Care and support services which a local authority may provide, including services under these provisions:

• Part III National Assistance Act 1948• Section 117 Mental Health Act 1983

Community Care services• Section 29 National Assistance Act 1948:

– Local authority power to “make arrangements for promoting the welfare of … persons aged 18 or over who are blind, deaf or dumb or suffer from mental disorder … [or] are substantially and permanently handicapped by illness, injury or congenital deformity or such other disabilities as may be prescribed”.

– For people ordinarily resident in the local authority’s area.

Community Care services• Section 2 Chronically Sick and Disabled Persons Act 1970

• Services which a local authority can make available to disabled children and adults – people to whom Section 29 NAA 1948 applies.

• “Necessary in order to meet the needs of that person”.

• Practical assistance in the home. • Short breaks.• Recreational facilities.• Travel and other assistance.• Home aids and adaptations.• Holidays.• Educational facilities.

Community Care services• Section 21 National Assistance Act 1948

• Section 21(1):

“… a local authority shall … make arrangements for providing:• Residential accommodation for persons aged 18 or over who by reason

or age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

• Residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them”

Community Care services• Section 47 National Health Service & Community Care Act 1990

• Section 47(1):

“Where it appears to a local authority that any person … for whom they may provide or range for the provision of Community Care services may be in need of any such services, the authority:

(a) shall carry out an assessment of his need for those services; and(b) having regard to the result of that assessment, shall then decide

whether his needs call for the provision by them of any such services”

Community Care services• Section 47 National Health Service & Community Care Act 1990

• Section 47(3):

• During the assessment of need.• May be a need for the provision of healthcare services – referral to NHS bodies (for

example continuing healthcare assessment.• May be a need for services from the local housing providers (for example rehousing or

homelessness).• Notification of potential needs to the NHS bodies or local housing providers.• Invitation to them to assist in the assessment process.

• Emergency or temporary care and support – Section 47(5)

Community Care services• Section 117 Mental Health Act 1983

• People detained under Sections 3 or 37 of the Act.

• Cease to be detained – question voluntary patients and fitness for discharge.

• Section 117(2):

“It shall be the duty of the Primary Care Trust … and of the local social services authority to provide, in cooperation with relevant voluntary agencies, aftercare services … until such time as the Primary Care Trust … and the local social services authority are satisfied that the person concerned is no longer in need of such services.”

Community Care assessments• Section 47 NHS & Community Care Act:

– An absolute and legally enforceable duty to assess care needs.

– The relevance of the local authority’s resources?– R v Bristol City Council ex parte Penfold

(1998) 1CCLR 315

Community Care assessments• All assessments should be comprehensive and person centred

• Seeking a comprehensive overview of a person’s circumstances, problems and care needs.

• The importance of the carer’s views and insight.

• Eligibility criteria:– Department of Health guidance; Prioritising need in the context of Putting

People First; Whole system approach to eligibility for social care (Guidance on Eligibility Criteria for Adult Social Care, England – February 2010)

Community Care planning• Identifying care needs and the overlap with care planning.• The concept of “identified care needs”.• The true use of eligibility criteria.• Local authorities’ use of internal funding panels and resource

allocation/budgetary scoring systems.• Identified care needs and the importance of the care plan

– R (on the application of D) v Worcestershire County Council [2013] EWHC 2490 (Admin)

Carers services

• Section 1 Carers (Recognition and Services)Act 1995

• Section 1 Carers & Disabled Children Act 2000.

• A Carer’s stand alone right to an assessment of their needs.

Housing issues• A duty to rehouse children in need?• The overlap between duties under the

Children Act 1989 and housing/homelessness duties.

• R (on the application of AT, AG and HG) v Islington LBC [2013] EWHC107 (Admin).

Continuing Healthcare• Primary healthcare services available to children and adults.• A Primary health need?

• R v North & East Devon Health Authority ex parte Coughlan (2000) 2WLR 622

• National Framework for Children and Young People’s Continuing Care (Department of Health guidance March 2010)

• National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care (Department of Health Guidance November 2012).

• The Checklist and the Decision Support Tool).• The overlap with community care services.

Human Rights• European Convention on Human Rights 1953.• Human Rights Act 1998.

• Section 6

It is unlawful for a public authority to act in a way which is incompatible with a Convention right

• Section 8

Judicial remedies: In relation to any act or proposed act of a public authority which the court finds is, or would be, unlawful, it may grant relief or remedy as it considers just and appropriate.

Narrative: the concept of just satisfaction and compensation.

Human Rights• Article 2: The right to life.• Article 3: The prohibition of inhuman and degrading

treatment.• Article 5: The prohibition of deprivation of liberty

without lawful authority.• Article 8: The right to respect for privacy and family

life.• Article 14: The prohibition of discrimination.

Challenging decisions

• Local authority complaints procedure.• NHS complaints procedure.• Local Government Ombudsman.• Health Service Ombudsman.• Judicial Review.

Gill Edwards & Richard CopsonPannone LLPt:0161 909 3000e: [email protected] e: [email protected] www.pannone.com