06/06/2019

Welcome to the latest edition of Healthline. We hope that you will find the following articles interesting and helpful. If you have any comments about any of the articles or want to make a suggestion in relation to the topic of a future article, please get in touch with Claire Bentley.

 

Capacity and sexual relations

Laura Pearce and Hannah Taylor explore how the courts seek to strike the right balance between promoting autonomy for this basic human right and protection in the face of a potentially very vulnerable context.

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When to charge overseas visitors for hospital care

The National Health Service (Charges to Overseas Visitors) Regulations 2015 are increasingly keeping Trust legal teams busy. In two recent High Court cases, Bevan Brittan successfully defended Trusts whose decision-making around charging was being challenged by way of judicial review.  Susan Trigg examines the learning points for Trusts which arise from these cases.

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A virulent disease? What healthcare professionals need to know about knife crime

Claire Bentley reviews what healthcare professionals need to know about knife crime, recent knife crime data and a government consultation on serious violence.

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Capacity and Sexual Relations

Introduction

Capacity for sexual relations is an important issue and one over which partners, family members, professionals and the courts can be faced with seeking to strike the right balance between promoting autonomy for this basic human right and protection in the face of a potentially very vulnerable context.

The spectrum of cases considering capacity and sexual relations is broad; but the context is crucial. For example, concerns about sexual relations can arise where an individual has sexual disinhibitions and is exposed to abuse and exploitation from others. In sharp contrast are those cases involving long-standing consensual relationships where one partner has developed a progressive neurodegenerative disorder.

Unsurprisingly, it is an issue that has repeatedly been considered in the Court of Protection, most recently in Re NB [2019] EWCOP 17. In that case, we are awaiting the substantive judgement of Hayden J – who is currently carefully considering the case law in detail. At the same time, the Court of Appeal is also considering capacity in relation to sex – along with residence and social media in the case of B (Capacity: Social Media: Care and Contact) [ 2019] EWCOP 3

The Capacity Assessment

As with all capacity considerations, the starting point is that an individual is presumed to have capacity to consent to sexual relations. It is only if there is a reasonable belief that they lack capacity that a formal capacity assessment should be completed. Professionals should exercise caution against conflating best interests with capacity and the protection imperative. A person is not to be treated as unable to make a decision about sexual relations unless all practicable steps to help him/her to do so have been taken without success.

There is much, and ongoing, debate about whether the test for capacity to consent to sexual relations should be person/partner-specific (i.e. capacity to consent to a sexual relationship with a particular person) or general/issue-specific (i.e. capacity to consent to the act of sexual relations per se). As is recognised by Hayden J in Re NB, proponents for a person-specific test suggest that there is arguably nothing more person or situation-specific than sexual relations – and that an issue-specific test gives rise to a risk of assessing capacity in a vacuum detached from P’s reality. Given the potential criminal ramifications, it is also suggested by some, that parallels should be drawn with the test for sexual offences (which is person-specific).

Others suggest that a person-specific test might lead to a practicable impasse for a P who it is considered may lack capacity, but who does not have an identified sexual partner. In the judgment of IM v LM & Others [2014] EWCA Civ 37, Mr Justice Peter Jackson noted “it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.”

Where there is consensus, as recognised by Hayden J, is the desire to ensure that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities.

The current case law adopts a general/issue specific test for capacity to consent to sexual relations. However, this is (as we’ve set out above) currently being considered by the Courts. In terms of the “relevant information” - the individual needs to be able to understand, retain and weigh in the balance the following (recognising that the level of knowledge must not be overly demanding):

  • The mechanics of the act – no need for a complete or sophisticated knowledge, but they do need a rudimentary understanding of what the act comprises of;
  • The act is sexual in nature - an intimate activity which is of a different nature to other forms of contact;
  • Proximate health risks – generally that there are health risks involved;
  • Sex between a man and a woman may result in the woman becoming pregnant (generally considered to not be relevant in the context of where it is clearly established P is homosexual); and
  • Refusal – they have a choice as to whether or not to have sex, and that they can refuse to engage in sexual relations if they so wish.

The recent judgment of Hayden J considers the “relevant information” and recognises that the general/issue-specific test for capacity may not be suitable for married individuals, or for those in monogamous relationships. By way of context, NB suffers from general global learning difficulty and has an impairment in her ability to communicate with others. She is married. The Local Authority was concerned that she might be vulnerable to sexual exploitation from her husband and started a safeguarding investigation. NB was provided with sex education and, after completion of it, capacity assessments were conducted. They concluded that she lacked capacity to consent to sexual relations; as she didn’t understand the association between sexual intercourse and pregnancy, contraception and sexually transmitted diseases.

Hayden J identifies the following potential issues in his Judgment:

  • NB is only likely to have a sexual relationship with her husband, so it is entirely artificial to assess her capacity in general terms;
  • There is no reason to suggest that NB’s husband has sexual relations outside of his marriage, so NB’s lack of understanding of sexually transmitted disease may not be relevant to her ability to consent to sexual relations with her husband; and
  • If a person specific test was applied, the outcome of the assessment may be different.

Conclusion

The presumption of capacity should be the starting point. Before conducting a formal capacity assessment, professionals and those engaged with P should take reasonable steps, without delay, to assist an individual to achieve capacity, for example, offering sex education. Professionals may want to put therapeutic plans in place to engage the individual in discussions about sexual relations and should investigate routines and strategies to explore activities that will encourage engagement in any such discussions.

It is recognised that where there are serious concerns about the safety of an individual who lacks capacity to consent to sexual relations, safeguarding steps may need to be considered. There should be careful consideration of the necessity and proportionality of any proposals, ensuring that they are the least restrictive alternative and in the individual’s best interests. Authority may need to be sought from the Court of Protection.

We will provide an update once Hayden J’s decision in Re NB and the Court of Appeal’s decision in B become available.

This update was written by Laura Pearce, Legal Apprentice and Hannah Taylor, Partner.

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When to charge overseas visitors for hospital care?

The National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the Charging Regulations”) are increasingly keeping Trust legal teams busy. In two recent High Court cases, Bevan Brittan successfully defended Trusts whose decision-making around charging was being challenged by way of judicial review.  A number of learning points for Trusts arise from these cases. 

The Charging Regulations

The Charging Regulations set out the framework under which hospital trusts are required to charge overseas visitors for treatment.  An overseas visitor is defined as a person who is not ordinarily resident in Great Britain.

Changes to the Regulations in October 2017 introduced a requirement for trusts to seek upfront payment of an estimated treatment charge, unless doing so would delay the provision of an immediately necessary or urgent service.  This change has resulted in:-

  1. trusts having to withhold various forms of treatment from overseas visitors who do not have the means to pay upfront; and
  2. clinicians being forced to make decisions about whether treatment is immediately necessary or urgent, and therefore should be provided without seeking payment upfront.

Challenges to charging decisions

R (on the application of  Johnson) v Royal Free London NHS Foundation Trust [2019] 3 WLUK 572

The meaning of ordinary residence and immediately necessary or urgent treatment.

PJ has dual Nigerian and British citizenship.  She first presented at the Royal Free Hospital via A&E in September 2015 with breast symptoms and she was diagnosed with breast cancer.  PJ received treatment at the Hospital over a period of years but sadly the cancer was terminal and she was commenced on palliative chemotherapy intended to attempt to slow down the progression of the disease. 

In January 2019, the Trust became aware that PJ may not be ordinarily resident in the UK but rather, she may have been visiting the UK only for cancer treatment.  The Trust asked PJ to provide evidence of her ordinary residence in the UK in the form of bank statements, utility bills and so on; but PJ was unable to provide such documents, stating that she did not keep paperwork.  The information provided verbally to the overseas visitors team by PJ and her relatives was inconsistent and, in some respects, contradictory.

The Trust sought information from the Home Office regarding PJ’s travel history and the information provided suggested that: a) PJ had predominantly resided in Nigeria in the preceding five years; and b) the times when PJ travelled to the UK had coincided with her appointments for cancer treatment. 

With this in mind, and given the lack of evidence to support PJ’s contention that she was ordinarily resident in the UK, the Trust held that she was chargeable and they issued invoices for the cancer treatment she had received.  It was also decided that once her current cycle of palliative chemotherapy was completed, she would not be given further cycles unless she paid up-front. 

PJ sought a judicial review of the Trust’s decision that she was chargeable; and she also sought interim relief in the form of a direction that the Trust should continue to provide palliative chemotherapy.

The court held, on the basis of witness evidence from a treating clinician, that PJ’s palliative chemotherapy was not immediately necessary or urgent.  The application for interim relief was declined.  The Court also held that regardless of her British citizenship, PJ was not ordinarily resident in the UK and was therefore chargeable.  This was despite the fact that by the time of the Court hearings, PJ had secured universal credit and also a council tax reduction.   The Court indicated that if PJ had made, or in the future made, a decision to settle in the UK, she could provide evidence of this to the Trust for them to reconsider her charging status.

What does this case mean for Trusts?

  • British citizenship alone does not indicate ordinary residence; Trusts should seek evidence of settled living in the UK.
  • If in doubt, Trusts can access information from the Home Office to assist in determining a patient’s ordinary residence.
  • Clinicians should be supported in making decisions regarding what treatment is immediately necessary and urgent; and should be given clear explanations of what these terms mean under the Charging Regulations to ensure that they are applying the correct test.

R (on the application of ERA) (Claimant) v (1) Basildon & Thurrock University Hospitals NHS Foundation Trust (2) Southend University Hospitals NHS Foundation Trust (Defendants) & Secretary of State for Health & Social Care (Intervenor) [2019] EWHC 1249 (Admin)

Exemptions from charging under Regulation 15 of the Charging Regulations. 

ERA is a Nigerian national who was diagnosed with breast cancer in 2015.  She came to the UK under a private medical treatment visa to receive cancer treatment on a paid basis.  In February 2017, she applied to extend her leave to remain, stating that removal back to Nigeria would breach her Article 3 rights because she would not be able to receive the same level of medical care in Nigeria and would therefore suffer inhuman and degrading treatment.  Her application was refused by the Home Office in April 2018 but ERA appealed to the First-tier Tribunal and a decision is awaited. 

In October 2018, the First Defendant determined that ERA was chargeable under the Charging Regulations and therefore raised invoices for the care provided. 

ERA sought judicial review of the Trust’s decision to charge her on the basis that she had an outstanding claim for asylum which exempted her from charges under Regulation 15b – an exemption for those with undetermined claims for asylum, temporary protection or humanitarian protection.

The Department for Health and Social Care intervened in the judicial review proceedings on the basis that it had never been intended that the Charging Regulations would offer an exemption from charges to persons in ERA’s situation. 

The Court ruled against ERA, finding that Regulation 15b could not be relied upon to exempt overseas visitors from charging simply on the basis of differential healthcare standards.

Interestingly, ERA initially challenged the Trusts in respect of a decision not to give her palliative systemic anti-cancer treatment which, she argued, was immediately necessary and/or urgent.  That challenge was abandoned following service of witness evidence from treating clinicians confirming that ERA would not have been well enough to receive such treatment in any event. 

What does this case mean for Trusts?

  • Trusts should ensure that their decision-making regarding charging is robust and well documented. They should also communicate the decision and reasoning clearly to the patient. 
  • Not all patients with outstanding applications for leave to remain which cite human rights grounds will be exempt from charges; the nature of the application is key and Trusts should investigate.
  • As before, it is important that clinicians understand the meaning of immediately necessary or urgent treatment under the Charging Regulations. Decision-making about treatment should be carefully documented in the medical records.

This update was written by Susan Trigg, Senior Associate.

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A virulent disease? What healthcare professionals need to know about knife crime

Since January 2019 more than 100 people have been fatally stabbed in the UK. Young men aged 16 to 24 are more likely to be both the victims and perpetrators of knife crime. Youth stabbings have renewed public and policy interest in the problem of violence. This has resulted in a call from the Home Secretary, Sajid Javid to treat the issue like the “outbreak of some virulent disease.”

Better use of knife crime data to forecast homicide risk
A research study published in April called “Forecasting Knife Homicide Risk from Prior Knife Assaults in 4835 Local Areas of London, 2016–2018” argues for better use of knife crime data to predict attacks. The study reports that the number of assaults resulting in knife injuries over one year correlates with an increased risk of deadly knife crime in the same localised areas the following year. This data could help the police to develop a range of interventions, from closer monitoring of school exclusions to localised use of stop and search.

Government consultation - Serious violence: new legal duty to support multi-agency action
In April 2019, the Government launched a consultation called Serious violence: new legal duty to support multi agency action. The consultation paper sets out options for supporting a multi-agency or ‘public health’ approach. This includes options for the introduction of a new legal duty and a non-legislative option for partners to work together voluntarily to prevent and tackle serious violence.

The Cardiff Model
The Cardiff Model which was developed by the Violence and Society Research Group, is a mechanism of sharing and using anonymous data collected from violence-related Accident & Emergency admissions. This collates information about the details, locations and times of violent incidents and is used to develop and support effective policing, such as tackling crime hotspots and informing violence prevention strategies. In areas where it has been implemented, it has led to a significant reduction in admissions as a result of violent crime. A study in 2012 found that an effective information-sharing partnership between health services, police and local government in Cardiff led to substantial cost savings for the health service. Hospital admissions in Cardiff due to violence halved between 2002 and 2013.

GMC guidance
The General Medical Council has published guidance for healthcare professionals to follow when a patient presents with a gunshot wound or knife wound. The decision of whether or not to call the police in these circumstances is a professional judgement and is not mandatory in all cases.

Should the police be informed about gunshot and knife wounds and other violent injuries?
The police should normally be informed if a person comes to hospital with a gunshot wound or wound from a knife or other sharp instrument. The police are responsible for assessing the risk posed by someone who is armed/has used a gun or a knife. The police need this information to consider the risks of further attack on the patient, the risk of attack to others in the hospital and the risk of another attack near or at the site of the original incident. Statistical information can also help to inform crime reduction priorities and to improve the police’s understanding of how to tackle violent crime.

Involving the police
The first responsibility of the healthcare team is always the welfare of the patient, and the police should not have access to the patient if it might compromise the patient's treatment or recovery. Personal information about the patient does not need to be disclosed to the police in the initial contact. The GMC guidance also sets out the following:

  • If the police wish to speak to the patient, then a member of the healthcare team should ask the patient whether they are in agreement. If they are not, then everyone must abide by that decision;
  • The patient's consent should be asked for before providing personal information to the police, unless by doing so it may put the healthcare team/others at risk of serious harm or may undermine the purpose of the disclosure;
  • If the patient is unable to give consent because they are unconscious or refuse consent, then the doctor can disclose information if it is required by law or disclosure is justified in the public interest; and
  • Where there is no public interest reason to disclose information to the police then no personal information should be given. In such a situation the police can seek an order from the court.

Disclosures in the public interest
The decision as to whether there can be disclosure in the public interest should be made by/with the agreement of the consultant in charge and/or the Caldicott/data guardian. Disclosure may be justified if failure to disclose the information may put someone other than the patient at risk, and/or it may help in relation to the prevention or detection of a serious crime. A note should be made in the patient’s record stating the steps taken to seek consent, the reasons for disclosure without consent and the steps taken to inform the patient about the disclosure or reasons for not doing so.

What if the wound is an accident?
For gunshot wounds, the police should normally be informed about an accidental shooting as it will raise serious issues about firearms licensing. For wounds caused by sharp instruments, where the wound is an accident or self-harm, it may not be proportionate to contact the police, where for example:-

  • No-one other than the patient is at risk of harm;
  • Contact with the police may cause the patient harm or distress; and/or
  • Contact with the police may damage the patient/doctor relationship.

How Bevan Brittan can help

Making decisions about when to share confidential information can often be difficult and stressful. In relation to any decision, the issues and grounds of disclosure need to be considered, if appropriate debated with a senior colleague and then clearly documented in the notes.

Bevan Brittan has substantial experience in advising healthcare professionals in connection with the disclosure of confidential information. If you would like to discuss any of the issues raised please contact us. 

Resources

This update was written by Claire Bentley.

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