Article 2: right to life in a state-funded care home?

On 10 June 2020, the Court of Appeal handed down its judgment on the case of Maguire v Her Majesty’s Senior Coroner for Blackpool and Fylde and ors. This landmark judgment considered the engagement of Article 2 of the European Convention on Human Rights (ECHR) in the context of inquests relating to vulnerable adults who lack capacity living in state-funded care homes.

The facts:

The deceased, known as Jackie, had learning disabilities, behavioural difficulties and some physical limitations. She lived in a care home supervised and funded by the local authority which provided accommodation and care for vulnerable adults, like Jackie, who lacked capacity to make decisions about their living arrangements and welfare. Jackie was subject to Deprivation of Liberty Safeguards (DoLS) and had a history of objecting to medical treatment.

Jackie died in hospital on 22 February 2017. The cause of death was 1) perforated gastric ulcer and peritonitis and 2) pneumonia. A number of failures by care staff and medical professionals were identified and investigated during the inquest. Jackie’s family were critical of actions taken during the 48 hours prior to her death including:

  1. the GP’s decision to triage Jackie by telephone instead of attending in person
  2. a failure by an NHS call handler to relay a full account of Jackie’s history to the paramedics and
  3. the absence of a care plan to address Jackie’s refusal to attend the hospital.

Continue reading “Article 2: right to life in a state-funded care home?”

MPs hear evidence of how other countries have managed COVID-19 in care homes

The Health and Social Care Committee is a cross party body of Westminster MPs that scrutinises the work of the Department of Health and Social Care and associated bodies.  It is presently dealing with several Inquiries concerning the Covid19.  One its Inquiries is looking at the management of the Coronavirus outbreak. This week it heard evidence from Hong Kong and Germany as to how these countries have managed to prevent the spread of Covid19 in care homes.

The Inquiry heard from Professor Lum, the head of Social Care at Hong Kong University and Isabell Halletz, the CEO of a German employers association for care homes.  Both gave evidence as to the strict regime put in place in respect of patients being discharged from hospitals to care homes, whereby such patients would require a negative test for Covid19 before they could be admitted to a care home.   Any persons diagnosed with Covid19 would be quarantined, as well as other people they have come into contact with.  In contrast the Department of Health and Social Care until very recently stated in official guidance that a negative test for Covid19 was not required prior to admission to a care home.

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COVID-19 crisis – indemnity for those being redeployed or returning to practise

Last week the government rushed legislation through Parliament to deal with the coronavirus outbreak in the form of the Coronavirus Act.

The Act contains a range of provisions to deal with the crisis including the emergency registration of nurses and other health care professionals and social workers, the aim being to ensure that as many healthcare professionals as possible are available to the health service.

Those who return or are redeployed may well be concerned about whether they will be covered in the event that they face a claim for damages arising out of a breach of duty which results in the injury or death of a patient.

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Dentistry amid the COVID-19 crisis

In the midst of a healthcare crisis, there has been a flurry of activity and publications aimed at the dental profession which has continued to update with the changing landscape.  Although likely to become outdated in the coming weeks possibly even days, the below provides a consolidated overview of the current guidance and advice for dental practitioners from the GDC, the four Chief Dental Officers of the devolved NHS and the BDA.

The General Dental Council

The current approach of the GDC is based on two core principles:

  1. Minimising the burden of time and attention imposed on registrants.
  2. Maximizing the flexibility of registrants to manage their professional activities in response to the challenges of COVID-19.

Business Continuity – The GDC recognise that whilst efforts may be focused on how best to deal with the changing requirements there is still a role for regulation. The GDC does not expect any dental professional to be providing treatment unless they consider it safe for both patients and the dental team. Treatment is now limited to  urgent treatment. This will surely pose questions for practitioners about how best to offer services to such patients.

CPD – For those concerned about the cancellations of face to face CPD courses, practitioners should consider other activities such as web based learning. To further reassure, the GDC highlight that it is perfectly acceptable for practitioners to submit a return of zero hours if 10 or more hours were recorded in the previous year. They state that they will look sympathetically at the circumstances of those who may be left with a shortfall for the declaration they are due to make this year and that nobody will be removed from the register due to a lack of access to CPD during this period.

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Post Covid-19 – how will this affect litigation and regulatory work in the social care sphere?

It’s impossible at the moment to predict the future as our normal way of life is disrupted in every area due to Covid-19.  However once life returns to normal, be that in weeks or months from now, what sort of issues might we see arising in litigation arising in social care?

The first and most obvious point is that the claims market will likely see a significant upsurge.  At the moment prospective claimants will probably not see making a claim for damages as a top priority.

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Coronavirus Bill: health & care practitioners

The Coronavirus Bill announced yesterday will introduce a number of emergency measures to respond to the continuing spread of COVID-19 and the increasing pressures on the provisions of care and services.

The bill addresses a number of areas relevant to health and care practitioners, including the following:

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Covid-19 update for the care sector – official guidance and measures to protect vulnerable persons in social care

In the last few days further measures have been implemented by the CQC and Department of Health and Social care to protect the most vulnerable in society who are in receipt of social care.  The official guidance can be found here. It has been separated into specific areas of residential living, home care and supported living provisions.  The guidance includes points such as:

  • Encouraging care services providers to work with local authorities to share information and plan
  • Policies in place for outside visitors to minimise transmission
  • How to deal with a suspected case of Covid-19 in residents

Some residential settings have taken matters further by banning all outside visitors.  This has been a controversial decision as some commentators think it is crucial to “flatten the curve” of infection, whilst others think this would be detrimental to residents’ well being.  This is explored further in a Guardian article here.

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On your marks!

Jeremy Hunt, when he held the position of Health & Social Care Secretary, published a letter to independent hospitals on 8 May 2018 urging them to “get their house in order and improve safety.”  One of the triggers for this was the Care Quality Commission (CQC) identifying that a third of independent hospitals “required improvement” as they demonstrated poor practice and unsafe care.

The Independent Healthcare Providers Network (IHPN) has now produced a Medical Practitioners Assurance Framework (2019) which has been described by Chair, Sir Bruce Keogh as the equivalent of firing “a starting gun …to improve care and confidence in the private sector.” A link to this framework is provided here

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Duty of candour prosecutions – is silence golden?

The statutory duty of candour has been hailed the greatest reform in patient rights in the modern era. It was brought in under the Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 as amended, in response to the Mid Staffordshire Inquiry.

The regulation 20 duty of candour requirements are detailed and specific.  There is an overriding obligation to be open and transparent, coupled with clear requirements to notify patients and/or their families where there is any unintended or unexpected incident, whether this amounts to an error or not.  This notification must be prompt. Whilst the requirements are dependent upon the level of harm sustained, the underlying principles governing the provisions are focussed on ensuring that patients are kept properly informed and that errors and/or other unintended consequences are not ‘brushed under the carpet’.

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Liberty Protection Safeguards – the new ‘gilded cage’

The Mental Capacity (Amendment) Act 2019 received Royal Assent on 16 May 2019 and the Deprivation of Liberty Safeguards (DoLS) will be replaced with the Liberty Protection Safeguards (LPS).  The DHSC has confirmed that the intention is for  the LPS system is to come into force on 1 October 2020.

Under the new LPS, just as with the DoLS, there is no statutory definition of deprivation of liberty and it is given the same meaning as it has under Article 5(1) of the European Convention on Human Rights (ECHR).  Guidance is to be given in the LPS code of practice about the type of arrangements that would give rise to a deprivation of liberty. Progress is being made and the final draft of the Code is expected to be prepared by Spring 2020.

The LPS will authorise deprivations of liberty only (Article 5) and will not authorise interference with or breaches of Article 8 ECHR (right to private and family life).

The acid test for what restrictions constitute a deprivation of liberty will continue to be whether a person is under ‘continuous supervision and control and not free to leave’, as per the Supreme Court ruling in P v Cheshire West [2014] UKSC 19.

What has changed?

  • The LPS apply to any setting (and will include supported living, private and domestic settings, unlike before) so authorities will no longer need to apply to the Court of Protection for individuals not in a care home or hospital.
  • The LPS will be extended to all those aged 16 or above (DoLS only applied to those aged 18 or over).
  • A responsible body will be able to authorise arrangements that give rise to a deprivation of liberty (in any setting or more than one setting):-
    1. Where the arrangements are in an NHS hospital this will be the “hospital manager” (the trust or health board).
    2. Where the arrangements are mainly in an independent hospital, the responsible body will be the “responsible local authority” in England and the equivalent health board in Wales.
    3. In cases of NHS continuing health care, the relevant clinical commissioning group or health board.
    4. In all other cases the responsible local authority.
  • Before a responsible body can authorise the arrangements, the following three conditions must be satisfied:-
    1. The person lacks the capacity to consent to the arrangements.
    2. The person has a mental disorder (as defined in section 1(2) of the Mental Health Act 1983.
    3. The arrangements are necessary to prevent harm to the cared for person and proportionate in relation to the likelihood and seriousness of harm to the cared for person.
  • Before arrangements can be authorised the responsible body must consult with defined individuals to try and ascertain the cared for person’s wishes or feelings about the arrangements.
  • A pre-authorisation review must be carried out by person who is not involved in the day-to-day care or providing treatment to the person.
  • If there are any challenges/objections then an Approved Mental Capacity Professional will be appointed provide an additional level of scrutiny to make the process more workable and proportionate.
  • Authorisation can have effect immediately or up to 28 days after.
  • Unlike DoLS, under the LPS authorisation can be renewed. Initial authorisation will be for up to 12 months, another 12 months thereafter and then for up to three years and measures for reviewing authorisations are to be maintained, provided that the authorisation conditions continue to be satisfied.
  • The responsible body must arrange a programme of regular (as well as statutory) reviews.


The Court of Protection will continue to have jurisdiction to hear any challenges, including whether the LPS apply to the arrangements, whether the authorisation conditions are met and the duration of the authorisation. The court can also vary or terminate the authorisation or direct the responsible body to vary the authorisation.


It is inevitable that there will be an increase in the number of applications in the care home setting to which the new LPS regime will apply and the impact will be significant. Care homes will need to implement transitional arrangements for current DoLS authorisations and familiarise themselves with the LPS, the code of practice (once drafted) and the additional responsibilities.

In circumstances where the arrangements are wholly or partly carried out in a care home, the responsible body will have to decide whether to arrange the necessary assessments or whether the care home manager should do so. The responsible body can delegate tasks in relation to renewal to a care home manager in relation to care home arrangements.

The responsible body/care home manager must ensure that the detention arrangements do not go beyond the scope of the authorisation. The Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers has not been taken forward but the government has taken the view that the tort of false imprisonment should provide an adequate remedy, by way of civil claim, against private care providers responsible for the deprivation. It is likely that this will be revisited as such cases arise.

Written by Jane Lang and Aliyah Hussain at BLM