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Our multi-disciplinary team of legal healthcare experts is here to help. We work with NHS organisations throughout England, from the Scottish Borders to Cornwall, every day. We offer a full legal service and our breadth and depth of experience mean we understand your world and can use our expertise to support your needs.
The current landscape includes financial constraints, recruitment and retention challenges, increasing workloads, a need for capital investments, a need for clarity around emerging transformation models such as integrated care systems, growing demand and expectation levels and regulatory requirements. We can help you with all these issues and more.
We are nationally recognised as one of the most experienced legal healthcare teams in the country and our expertise is underpinned by a dedicated and substantial support base. Our team delivers a full service offering, with a breadth and depth of experience in the sector, and a razor-sharp focus on achieving the best outcome for you.
We are members of:
- NHS Shared Business Services framework
- NHS Commercial Solutions framework
- HealthTrust Europe framework
- North of England Commercial Procurement Collaborative framework
To see our experience with ambulance trusts and other emergency services, click here
Work we have done
PFI
- We advised an NHS Trust on a dispute with its out-sourced FM provider
- We advised an NHS Trust on the operation of the market testing and benchmarking provisions of its PFI contract
- We advised an NHS Trust with issues on completion of the last two phases of their Project as well as issues arising with operation and service failures by the PFI provider. We assisted in the strategy, planning, correspondence and overall negotiations for settlement
- We advised two CCGs on their procurements of, respectively, integrated MSK services and community services. Our role included advising on the drafting of the procurement documentation and evaluation, as well as ad-hoc procurement queries throughout the process
- We advised two Foundation Trusts on disputes under their PFI schemes. One has already been through adjudication on some of the disputed issues and the second scheme is moving swiftly towards adjudication
- We undertook a review of a PFI contract for an NHS Trust to identify ‘deal creep’ and potential for efficiencies and improvements in the services
- We worked as technical advisers for an NHS Trust to assess operational issues, potential for savings and management resourcing. We produced a list of potentially significant annual savings amounting to £2 – £2.5m and operational initiatives including Trust step in where Project Co fails and to carry out additional requirements more cost effectively than Project Co
Construction
- Acting for an ambulance NHS Trust on a £1 million dispute involving the building contractor and other parties regarding defective air conditioning at their headquarters and main control centre. This involved dealing with litigation proceedings, a mediation and other settlement attempts. We have recently achieved settlement of the dispute
- Acting for an NHS Trust in drafting and negotiating the construction contracts for the demolition of a hospital
- Acting for an NHS Trust in relation to the building contract for the redevelopment of a hospital under the ProCure21 framework
- Acting for an NHS Trust in relation to the construction documents for the development of a new site for mental health facilities, including setting up an escrow arrangement for the project costs
- Acting for an NHS Trust in the drafting and negotiation of the building contract and consultant appointments for the construction of a new multi-storey hospital car park
- Advised an ambulance trust on a dispute with the building contractor regarding the repayment of retention monies following car parking and security works at an ambulance station
- Advising an ambulance service NHS Trust in relation to a payment dispute following works at an ambulance station
- Advising an NHS Trust in relation to a £10 million plus dispute regarding a fire at a recently opened hospital
- Advising an NHS Trust in relation to a potential claim regarding fire protection defects at a hospital
- Advising an NHS Trust in relation to a potential claim regarding fire protection defects at a hospital
Data Protection
- We advised a CCG who had received a request from the Information Commissioner’s Office to respond to a complex freedom of information request in relation to a contested procurement decision
- We advised an NHS Trust on FOIA aspects of a procurement challenge regarding the award of a contact contract including the engagement of exemptions and options
- We advised an NHS Trust on the FOIA code of practice requirement to consult with third parties when releasing commercially sensitive information
- We advised NHS Trusts on complex freedom of information/environmental information requests, including in relation to PFI litigation, and in appeals to the Information Commissioner and Information Tribunal
- We provided training on GDPR individual rights and data protection impact assessments to a number of NHS Trusts including an NHS acute trust and an NHS mental health trust (working together as an STP)
Employment
- Employment law general advice
- We advised a Trust on its travel policy and in particular a variation by means of a local agreement under paragraph 17 of Agenda for Change
- We have advised two NHS Trusts on them incorporating and agreeing with union representatives their own versions of MHPS relevant to medical and dental staff
- We regularly advise Trusts on all types of contracts of employment/engagement, in particular recently on the use of honorary contracts, and have drafted bespoke honorary contracts for Trusts
- We have advised an Acute NHS Trust on whether bank staff could look to argue that they had the benefit of Agenda for Change terms and conditions due to the way in which their relationship with the Trust had changed over time
- We have advised an NHS Trust as regards the potentially different treatment of doctors who were regulated by different consultants’ terms and conditions. We provided a contractual analysis of the steps that were required to be undertaken to protect the Trust’s position
- We advised an NHS Trust on rectifying a situation where they had failed to deal with a flexible working request within the prescribed time limits
- We advised an NHS Trust on whether a doctor was entitled to maternity pay due to her ongoing failure to return to work due to self-imposed sabbaticals
- We advised an NHS Trust on a claim in relation to failure to grant a flexible working request
- HR Policies
- We advised an Acute NHS Trust on the assimilation of its bullying and harassment and grievance procedure into one simple document in order to prevent a multitude of proceedings, for example a complainant bringing a bullying and harassment complaint which was rejected which then resulted in the same complainant bringing a grievance. The benefit of this to the client was that it reduced the number of policies that could be relied upon by an employee and the administration this would cause having the various different hearings associated with each separate policy
- We have also reviewed and made suggested amendments to the following policies of NHS Trusts: use of social networking sites, mobile telephone usage, equality and diversity, family friendly policies
- We advised a Trust on its collective consultation process for the changing of the employment contracts of its Radiology Assistants over 2 sites. This involved dealing with 2 separate trade unions and over 40 employees
- We advised a CCG on the individual redundancy process of 10 employees following a reduction of particular services that were to be provided by the CCG
- We advised an NHS mental health Trust on the closure of a site and the relocation of over 100 staff to a new site and the consultation requirements in relation to that location move, in particular the discussions with the recognised union
- We advised an NHS Trust on an organisational change where there was particular emphasis on avoiding the need for contractual redundancy payments, by means of offering suitable alternative employment
- We advised an NHS mental health Trust on the consultation process regarding a temporary relocation of over 200 employees to allow for essential maintenance work to be carried out at their current place of work
- TUPE
- We advised an Ambulance Trust on the transfer of 40 staff to the Trust’s wholly owned subsidiary limited company. We advised on the contracting in for an NHS Trust of over 700 staff from a neighbouring trust providing a full range of TUPE advice (including information and consultation advice) and due diligence
- We advise on a daily basis both NHS organisations and independent/private healthcare organisations on TUPE transfers in and out of the NHS – recent examples include advising a hospice on the transfer of services to it from an Acute NHS involving the transfer of 15 employees, advising an NHS Trust on the transfer of catering services from a private sector organisation back into the NHS Trust
- We advised on the transfer of over 300 employees from one NHS Trust to our NHS Trust client when the contract to operate a service was awarded to our client Trust
- We advised on the transfer of over 40 staff working in a prison from one NHS Trust to our NHS Trust client
- We advised on the transfer of a sexual health team from our NHS Trust client to another NHS Trust
- We advised the transfer of domestic services from our NHS Trust client to a private sector organisation
- In relation to the above examples, we advised the Trusts on their communications and interactions with the transferring employees and where appropriate their recognised unions, in particular when consultation was required
- We understand the challenges that are faced by NHS Trusts in relation to TUPE, in particular when taking new staff on. We have designed a bespoke due diligence employment questionnaire for an NHS mental health Trust to use in such circumstances and they have found this beneficial in getting a better understanding of the staff that they are inheriting, rather than simply relying on the employee liability information provided under TUPE
- Employment Tribunals
- We defended an NHS organisation in relation to a high profile fraud case, involving allegations of race discrimination and unfair dismissal as well as assisting in the drafting of press briefings the Trust made
- We defended a claim of unfair dismissal, disability discrimination and statutory and contractual redundancy pay (under Agenda for Change) for an NHS Trust
- We defended a Trust in relation to a constructive unfair dismissal and disability discrimination claim by an employee who was made redundant following the reorganisation of a drug and alcohol service
- We defended a Trust in relation to a dismissal of employees viewing pornography at work, staff dismissed said others did the same and management of service were complicit in practice
- We defended a Trust in relation to a claim brought by a bank telephonist of alleged breach of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations. We argued successfully that the claimant did not have employment status and therefore was unable to proceed with her comparison with full time employee
- We defended a South London based CCG in the preparation of a multi-day race discrimination, unfair dismissal and protected disclosure case in Croydon Employment Tribunal
- We defended an NHS mental health Trust on a case involving the question of the employment status of a counsellor engaged by a local GP practice (funded by the NHS Trust)
- We defended an NHS mental health Trust on a case relating to a refusal to grant a flexible working request
- We defended an Acute Trust on the unfair dismissal of a sexual health nurse who had been dismissed on grounds of capability
- We defended an NHS mental health Trust on a multiple claimant TUPE case where the claimants claimed that they should not transfer out of the NHS to a private sector organisation
- Employment agencies, bank staff and other temporary workers
- We advised an NHS Trust in a review of the contracts offered to bank medical staff
- We advised an NHS Trust on the establishment of nurse banks and similar arrangements for casual staff and in particular in relation to the drafting of documents to avoid a contract of employment being formed and practical steps to be taken in operating a nurse banks
- We advised an NHS mental health Trust on whether agency staff are entitled to overtime rates under Agenda for Change.
- We advised an Acute NHS Trust on them transferring the operation of their banks to NHS Professionals and on an indemnity agreement from the Trust to NHS Professionals in relation to any acts or omissions that might have occurred while our client operated the bank
- We have advised NHS Trusts on whether the use of employment agencies may give rise to a contract of employment between the agency worker and the Trust and how best to avoid such situations
- We have trained NHS clients on the Agency Worker Regulations
- Recruitment
- We advised an NHS Trust on reviewing the way in which conditional job offers were being made to successful job applicants, in particular consultants. This review came after the Trust was involved in the dispute with a consultant who the Trust wished to withdraw an offer of employment from and he claimed that he was owed 6 months’ notice due to the removal of the offer
- We advised an NHS mental health Trust on the dismissal of a nurse who should not have been recruited due to her not meeting the necessary job specification
- Organisational Change
- We acted on the two largest transfers of staff from one NHS Trust to another in the country. In total over 1400 staff were transferred and the combined value of the contracts was almost £80million. Both transactions involved advice on employer liability information, a detailed analysis of assigned staff and drafting of bespoke warranty and indemnity agreements. A fund was negotiated with the transferor to assist the transferee in making some staff redundant
- We acted for an NHS care Trust that sought to integrate a social care element which involved consideration of COSOP with a view to the transfer of various council staff into the Trust. Advice was given as regards restructuring and possible methods of seeking to harmonise policies, terms and conditions
- We have advised a mental health Trust on a social and residential care reconfiguration/provision. The services transferred out of the Trust into both public and private sector providers and involved 54 homes and 650 staff
- However, in recent years since the impact of COSOP has seemingly become less customary, we have advised NHS Trusts on the employment aspects of them setting up wholly owned limited companies and the issues of having staff transfer to the company on their NHS terms and conditions and the recruitment of new staff on different terms and conditions
- Disciplinary Process and Appeal
- We advised an NHS mental health Trust throughout the investigation and disciplinary process (including dismissal) of a mental health nurse who had made inappropriate statements about patients on social media. The process was complicated due to the employee’s erratic behaviour. We assisted the disciplinary panel in making their decision, in particular on the legal risks of dismissal and assisted in the drafting of the letter of dismissal
- We advised an NHS Trust on the investigation and disciplinary process (including dismissal) of a health care assistant who made highly offensive comments to his colleagues. We became involved when the employee had claimed that he had a personality disorder that might have been the reason why he made such comments, but refused to go to occupational health. We progressed the matter to a hearing, without the input of occupational health due to the persistent delaying tactics by the employee. He subsequently brought an Employment Tribunal claim but withdrew prior to the tribunal hearing
- Maintaining High Professional standards in the NHS
- We acted for an NHS Trust in relation to a consultant who, it was alleged, gave misleading information about an untoward incident to a patient’s relative. We advised on the procedure to be followed under MHPS and supported the Trust throughout the process, from exclusion to dismissal
- We defended an NHS Trust against a claim of a BME doctor in training who was dismissed for gross misconduct. The matter was complex as the incident did not occur in the employing trust. Although a technical unfair dismissal was found, the doctor received no compensation and was ordered to pay part of the Trust’s costs
- We acted for an Acute NHS Trust in relation to an MHPS investigation (and hearing) of a Clinical Lead of Paediatrics, who was also under GMC investigation (referred by another senior colleague) due to safeguarding concerns and the accuracy of case notes
- We advised an NHS Trust on the dismissal of a NHS dentist through MHPS, who had treated his wife and father on Trust premises but had pretended he had treated two other patients to cover up his actions
- Discrimination
- We advised an NHS mental health Trust on whether a disabled employee who was waiting for reasonable adjustments to be made to their area of work should be considered as being on sick leave or on “disability leave” under the Trust’s sickness absence policy
- We advised an NHS Trust on the drafting of their Equality and Diversity Annual report and in particular in relation to their duties as a public body and the actions that they should look to take in the coming 12 months
- We advised an NHS Trust on the grievance outcome to be sent to a student nurse who had raised claims of race and age discrimination by her colleagues
- We advised a Trust on whether the imposing of a new rota system for radiologists would be potentially indirectly discriminatory towards female members of staff
- We advised a Trust on the capability dismissal of a disabled employee, in particular on whether the adjustments requested by the employee to allow him to remain in work could be considered reasonable by an Employment Tribunal.
- We advised a Trust on a case where we felt not adjourning a disciplinary hearing could lead to a possible disability discrimination claim
- We advised a Trust on the dismissal and re-engagement of a community nurse who said that she could only work certain days due to her needing to care for her disabled children. The nurse claimed that her working hours had been agreed through a flexible working request and/or had become contractual by custom and practice. We advised on the prospects of successfully defending a potential claim prior to dismissal and re-engagement
- Employee Payments
- We advised an NHS Trust where a number of employees had been given pay protection when they started another job in the Trust due to a redundancy situation, but they continued to be paid for approximately a further 4 years on the higher rate of pay
- We advised on the interpretation of retention payment clauses in contracts of employment/side letters in response to consultants claiming that they had not been paid what they believed they were owed by the Trust
- We advised the Trust where a number of nurses were working through their unpaid breaks and they were looking to be paid for the hours which they said they worked during this period
Governance and Public law
- Corporate Governance
- We advised an NHS Trust on the setting up of a joint venture company with a neighbouring trust. Amongst the issues we helped to resolve is the governance of the new joint venture company and its relationship with our client Trust
- We advised an NHS Trust on the creation of a subsidiary which will enter into innovative joint venture arrangements with housing providers in order to provide out-of-hospital care to patients who might otherwise be treated as in-patients. Our role has included advising on an appropriate governance structure to enable the Trust to control the business of the subsidiary, but to allow it to trade independently
- We advised a CCG on the development of its conflicts policy and its consultation in the light of new government guidance and the move to co-commissioning of primary care services
- Our recent experience includes advising an NHS Foundation Trust in respect of proposals to develop more integrated working arrangements with a local NHS Trust and the governance implications for both entities, including in respect of management of potential conflicts of interests, required adjustments to director level job descriptions and compliance with existing constitutional requirements
- Research Governance
- We advised an NHS Trust, working in collaboration with a University, on various legal aspects of a number of clinical research agreements, including use of the model clinical trial agreement (mCTA), advising on the implications and coverage of the ABPI form of indemnity, negotiations with various clinical trial sites, advising on issues relating to the ownership and use of the results of the clinical trials and intellectual property rights and contractual rights and remedies
- We delivered training to an NHS Trust on the legal and ethical implications of entering into clinical trials agreements in order to assist with the development by the Trust of its strategic approach to conducting clinical trials at an increased level
- Clinical Services Reorganisation and Public Consultation
- We represented an NHS Trust in a judicial review of its decision to close a large mental health hospital in York following an inspection by the CQC, the Trust having recently taken over the Hospital from another NHS Foundation Trust. The allegation was that the Trust had failed to comply with its public law obligation to consult prior to the closure. We successfully representing the Trust through the judicial review “pre-action process” and at a “permission hearing” in the Administrative Court, at which the claim was dismissed. This claim was high profile (receiving national press coverage) and was politically sensitive
- We advise various CCG’s during active consultation processes where queries have been raised of the CCG by stakeholders regarding the consultation processes adopted. In each case we have advised the CCG how to proceed, striking a balance between best protecting the CCG against potential legal action and an efficient and effective
- We advised an NHS Trust in relation to a formal threatened claim for Judicial Review in relation to an options appraisal for the location of a new hospital. We obtained detailed instructions from the Trust, collated relevant paperwork and instructed counsel prior to preparing a detailed rebuttal to the claim as part of the pre-action process. The claim was not progressed following the exchange of pre-action correspondence
- Judicial Review
- Advising a mental health trust in relation to a judicial review claim brought by an ex-employee for human rights act damages and an order from the court requiring the Trust to re-employ him. The claim arose following an order by an Employment Tribunal finding that the employee had been unfairly dismissed and ordering his re-employment. Given the background to the matter the Trust refused to do so giving rise to the judicial review proceedings. The claim was initially refused permission to proceed on paper, but the application for permission was then renewed successful at an oral hearing. The case was later successfully settled for the Trust shortly before a final hearing of the dispute. The case involved substantial reputational issues for the Trust and the case required very careful handling and we were required to provided regular updates at Board meetings
- Acting for the CQC in relation to threatened challenges by judicial review to its decision making processes to terminate registrations of nursing/care homes. We have acted for the CQC on several occasions in relation to challenges brought by care home operators arising from the CQC’s decision making processes. Most decisions are dealt with via appeals to the Lower and Upper Tribunal. However, some issues, for instance the introduction of new policy by the CQC, have given rise to claims within the Administrative Court
Mental Health
- Mental Health Legislation and Governance
- We advised an NHS Trust on whether a detention was valid because the wrong nearest relative was identified
- We reviewed the policies of a mental health trust client to ensure they complied with the updated Mental Health Act Code of Practice issued in January 2015 and have provided education sessions on the implications of the Human Rights Act 1998 for the treatment of people with mental illness and learning disabilities
- Admission, Detention and Discharge issues
- We assisted a Trust with strategic planning for changes to the provision of section 136 of the Mental Health Act when the Policing and Crime Act 2017 came into force in circumstances where it is recognised that bed availability may hinder compliance with the new time frames
Pensions
- Advising an Acute Foundation Trust on the pensions consequences of the restructuring and re-tendering of various services
- Advising NHS Trusts on a number of issues affecting the NHS pension scheme including salary sacrifice and surrogacy
- Advising three NHS Trusts on the pensions implications of outsourcing their respective “back office” functions to BT. A pathfinder project due to the multi-party nature of the outsourcing and potential harmonisation of staff across Local Authority and health, in which we worked closely with experts from DH pensions team to put in place acceptable measures and preserve the rights of transferring NHS staff to retain their NHS pensions
Procurement
- Advising an NHS trust on the re-tender of stockpiling and distribution services for essential vaccines/supplies for pandemics, emergencies and similar. Our input including advising on the choice of procurement procedure, OJEU notices, tender documents, clarifications and communications; assurance in relation to the process; tailoring Cabinet Office model contract and thoroughly considering TUPE, pensions and transition arrangements and mitigating any incumbent advantage
- Advising an NHS trust on the procurement of IT support services through a multi-sourced bundle environment. Our advise included:
- Assisting with transition arrangements
- Three complex procurements covering MIS, WAN/LAN, telephony, delivered within a challenging programme
- Networks contracts under CCS RM1045: MIS procurement using an iterative competitive procedure with negotiation
- Contractual and procurement documentation, statement of requirements, voluntary standstill, Regulation 84 reports and contract management handover
- Analysis informing prior market engagement
- Multidisciplinary support including commercial, procurement, IP, IT, IG, employment and pensions
- Detailed technical scope input
- Contract negotiations/finalisation
- Bespoke collaboration schedule in view of multi-supplier model
- Advised on options, training to independent expert evaluator and advice following a CCS Mystery Shopper investigation
- Subsequent variations to the contracts
Property
- Acquisitions and Disposal of Property
- We advised an NHS Trust on the disposal of a former mental health facility to a residential developer for the development of housing. The transaction presented significant challenges and we advised on:
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- Mines and minerals rights which had been registered against the titles and options on resolving risks
- Complex overage provisions
- The deferred payment of consideration and a legal charge to protect instalments
- Numerous conditions to be satisfied before the transfer would proceed where responsibility had to be allocated including planning, drainage and highways solutions to be formulated and agreed, and the decommissioning of services
- Provision to protect the Trust’s adjoining land and its future development potential and all necessary covenants were imposed
- The client was under pressure to exchange contracts by a deadline after which Government grant funding would be withdrawn. We were able to agree the transaction; including resolving all of the above to each party’s satisfaction so that the funding was achieved
- We advised an NHS Trust in relation to their proposals to develop a world class Child and Adolescent Mental Health Services and Learning Disabilities Unit. The site was in the Green Belt and the funding of the scheme was dependent upon the development of a residential and care village on land which was surplus to requirements. We drafted and negotiated the related Section 106 agreement which dealt with a number of matters including affordable housing and provisions concerning the funding and delivery of a new hospital development through the capital receipts generated by the sales of the new housing units
- We advised an NHS Trust in relation to an asset realisation programme to fund the provision of new clinical buildings and facilities at the existing mental health and rehabilitation facility. Here we drafted and negotiated the Section 106 agreement in support of the Trust’s application for a hybrid planning permission for development of hospital buildings and 250 dwellings on surplus land
- We assisted an NHS Trust in negotiating an extremely favourable clawback sum following the disposal of part of a former hospital site to a residential developer
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- Leases and Licences to Use Land
- We advised an NHS body on the steps required to reconfigure its portfolio of leasehold logistics premises across the country held directly by its service providers. This included dealing with changes of landlord and consequential variations to the service providers’ direct arrangements with the landlords, the approval of lease renewals to cater for the extension of the service contract and providing advice on the retender of the service contract and impact on the leases
- Advice and Documentation on Related Property Issues
- We advised an ambulance trust on a disposal of a major site, incorporating an overage which subsequently yielded a payment of over £300,000 to the ambulance trust
- We advised an NHS Trust on the transfer of part of its estates into an estates vehicle
- Site Developments
- We advised an NHS Trust on a pathfinding joint venture between a special purpose vehicle set up by the Trust and a social housing provider, to provide sheltered accommodation to vulnerable patients
- We advised an NHS Trust on Underlease Plus Agreements within two LIFT buildings
- We advised an NHS Trust on its land assembly for the purposes of a new extension to a hospital for GP and ambulance premises involving NHS England grant funding. This required a nomination agreement in favour of NHS England, contracts and transfers with complex title issues and indemnity insurance, agreements for lease and leases to the Ambulance Trust and GPs who are acquiring leases of part of the new build areas on completion of the works, and dealing with construction aspects to ensure consistency with the building contract to be awarded for the works
- We advised an NHS Trust on its acquisition of a freehold site for development of a new in-patient facility, involving due diligence with various historic title issues to resolve, negotiating a contract conditional on the seller’s acquisition of the land and dealing with offsite works to be carried out by the seller for which the Trust was to contribute via a retention account, and various infrastructure agreements
- We advised an Acute Trust on the acquisition of a new car park from the Council. This included drafting dealing with joint inspection, the certification of practical completion and reviewing and advising on the construction documentation and negotiating provisions regulating the provision of warranties and step-in rights
- We are currently advising a Trust on its Underlease Plus Agreement of a new clinic to be constructed under the LIFT programme. This includes reviewing and advising on the title, the Lease Plus Agreement and all aspects of the construction, project monitoring, practical completion, commissioning and facilities management process
- Property Litigation and Landlord and Tenant Matters
- We acted for an NHS Trust in respect of a restrictive covenant benefitting the Trust’s land. The owner of the adjoining land had obtained planning permission to build a large number of residential properties on the land and sought a release of the covenant from the Trust on the basis that an application to the Upper Tribunal to release the covenant would be successful. Advice was provided to the client on the “ransom potential” of the covenant, taking into account the fact that the client was not the sole beneficiary of the covenant and the likelihood of the covenant being discharged or modified in circumstances (as well as taking into account the cost to the adjoining land owner to apply to modify or discharge the covenant). Time was of the essence in respect of the instruction in circumstances where the Trust wanted to benefit from its position prior to the sale of its land to a house builder
- We advise NHS organisations on leases with NHSPS and other landlords including litigation advice on historic arrangements, lease status, dilapidation claims and other disputes
Inquiries and Inquests
- We work with Trusts in Homicide Investigations and concurrent safeguarding investigations and inquests. Examples include assisting a Trust in relation to a double murder committed by a patient shortly following assessment by a liaison practitioner, and the murder of a baby by her father who had been under the care of mental health services for a number of years and in respect of whom there were on-going safeguarding concerns
- We worked with the offender healthcare team of one of our Trust clients in relation to an Article 2 compliant public inquiry relating to the adequacy of care provided to an 18 year old offender, with a significant focus on demonstrating the changes in the delivery of mental health care generally, and more specifically in a prison environment
- We have also assisted a client Trust following the murder of two family members by a patient who had been assessed and discharged by the Trust two days before their death. Again we assisted the Trust in its internal investigations into the circumstances of the death, including assessment of the risk assessment tools used by the Trust. We assisted in preparing for the inquest and represented the Trust at a high profile three day inquest thereafter in connection with the Prevention of Future Deaths Report in relation to the risk assessment tools used by the Trust
- We advised an NHS Trust in relation to a Category A prisoner diagnosed with leukaemia who had refused treatment and wanted transfer to London for private treatment. The patient sadly died very shortly after transfer. An Article Two Inquest was held to look at all circumstances surrounding his death. We acted for the Trust dealing with both the complexities of the underlying medical condition and the difficulties in arranging transfer for detained prisoners
Mental Capacity
- Mental Capacity Act/Best interests, Lasting Power of Attorney and advance decisions
- We advised on the landmark case of GJ v The Foundation Trust (2009) EWHC2972 (Fam). In this case we advised a mental health trust with regard to GJ who was detained under the Deprivation of Liberty Safeguards. GJ was a known longstanding alcoholic with alcohol-related brain damage. He had a history of self-neglect and was also a diabetic. He had been admitted and detained at the client trust following the death of his partner who had assisted him in managing his diabetes. Following her death he had fallen back into a pattern of self-neglect. He was being held on a ward to ensure that he was taking his insulin on a regular basis until a suitable long term placement facility could be found, his history of violence was restricting the number of available facilities. GJ had instructed solicitors and argued it was inappropriate for him to be detained under the Deprivation of Liberty Safeguards and that he should be detained under the Mental Health Act. This was done on the basis that he wanted the opportunity to appeal the Mental Health Act detention. After giving this matter careful consideration we took the view that GJ was not being treated for a mental health condition and that even though his self–neglect was a manifestation of his mental health condition he was being detained merely because of an un-associated physical condition. On that basis we argued it was not appropriate to detain him under the Mental Health Act. GJ’s lawyers argued that the Trust had erred in law in coming to that conclusion. They argued that we were treating a physical disorder arising out of his mental health conditionThe matter was placed before Mr Justice Charles at the Court of Protection who was asked to decide whether or not the patient was eligible to be deprived of his liberty under the Mental Capacity Act 2005. The complex interaction between Schedule 1A of the Mental Capacity Act and the Mental Health Act had not been considered by the Court prior to this case. It was held that the Mental Health Act has primacy. The eligibility assessor under DOLS should ask themselves whether in their opinion Section 2 or 3 of the Mental Health Act criteria are met. The eligibility assessor must bear in mind the reality of the situation and separate out mental disorder treatment from physical treatment. Mental disorder treatment can include treatment for physical disorder only if connected to the medical disorder and/or likely to directly affect the mental disorder. The eligibility assessor should apply a “but for” test. In this case “but for” the package of physical treatment the patient would not need to be detained therefore the only effective reason for detention was the physical treatment. On that basis the patient is unlikely to be a mental health patient and therefore would be subject to DOLS. The position adopted by our client trust on our advice was therefore upheld.
- Interaction between Mental Health Act, Deprivation of Liberty, Safeguards and Mental Capacity Act
- We advised an NHS Trust on the discharge of a detained patient onto a CTO. This patient lacked capacity to decide where to live. The CTO could not specify where he should live and therefore Court of Protection proceedings were brought in relation to his accommodation to allow determination of where it would be in his best interests to live and to authorise a deprivation of his liberty at that accommodation.