Transcript Document

An insight into support &
resources following Clinical
Negligence
Gill Edwards & Richard Copson
IIC Show
14TH & 15TH February 2014
www.pannone.com
Support & Resources
Introduction:
1. How can a clinical negligence claim help?
2. Support & resources for vulnerable and
disabled children
3. 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 care
2. 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 Duty
Was 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
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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:
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Any
Any
Any
Any
local authority.
local education authority.
local housing authority.
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
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HM Government Guidance March 2013.
Principles underpinning the assessment framework.
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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:
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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
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Section 2 Chronically Sick and Disabled Persons Act 1970
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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”.
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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:
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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
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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:
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(b)
shall carry out an assessment of his need for those services; and
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
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Section 47 National Health Service & Community Care Act 1990
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Section 47(3):
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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
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Section 117 Mental Health Act 1983
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People detained under Sections 3 or 37 of the Act.
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Cease to be detained – question voluntary patients and fitness for discharge.
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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
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All assessments should be comprehensive and person centred
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Seeking a comprehensive overview of a person’s circumstances, problems
and care needs.
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The importance of the carer’s views and insight.
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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
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– 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
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Primary healthcare services available to children and adults.
A Primary health need?
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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
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European Convention on Human Rights 1953.
Human Rights Act 1998.
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Section 6
It is unlawful for a public authority to act in a way which is incompatible with a Convention right
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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
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Local authority complaints procedure.
NHS complaints procedure.
Local Government Ombudsman.
Health Service Ombudsman.
Judicial Review.
Gill Edwards & Richard Copson
Pannone LLP
t:0161 909 3000
e: [email protected]
e: [email protected]
www.pannone.com