Case report: S –v- Frimley Park Hospitals NHS Trust

Kerry Fifield of the Clinical Negligence team has recently recovered damages for a man following a wrist injury.

In 2008 the client was playing football when he fell and sustained a significant wrist fracture. He was taken to A&E at Frimley Park Hospital where the wrist was manipulated and an x-ray taken.  The client was then put in cast for 6 weeks, when the cast was removed the wrist was swollen and deformed and malunited.  Despite the problems with the wrist the Claimant was unable to arrange an appointment with the original Consultant and sought a private opinion.

As a result of a private referral the client was advised that he would require an osteotomy which took place in March 2009.  Further surgery was required to remove the plate.

Medical evidence was obtained confirming that the correct treatment following diagnosis was internal fixation using plate and screws.

If the client had been treated appropriately he would not have need the osteotomy and would have avoided the additional period of recovery and rehabilitation, the scar would have been less and grip strength better.

The Defendant Trust accepted breach of duty and causation and damages were agreed in the sum of £40,000 in respect of pain and suffering, private treatment, loss of earnings and care.

If you have suffered a similar injury or experienced a delay in diagnosing and treatment an injury please contact the Clinical Negligence team on 0800 316 8892 for advice.

Changing the tide on funding for personal injury and clinical negligence cases.

The dust is settling on LASPO, which came in to force 1 April 2013, sending personal injury and clinical negligence solicitors into a frenzy of activity in order to secure the best funding options for existing clients. 

Whilst scarcely reported in the press, LASPO has bought about probably the greatest changes to litigation funding ever made. This has considerable implications for personal injury and clinical negligence Claimants and their solicitors.

In essence, LASPO has removed the existing blanket of protection for a client without existing insurance between their litigation and the costs of their litigation.  The changes come in to force for any new client after 1 April 2013 or for existing clients who are not already on a CFA with insurance and who have not yet commenced court proceedings.

The key areas of change are in relation to;

· The recoverability of success fees under Conditional Fee Agreements (CFAs)

· The recoverability of After the Event insurance premiums

· The recoverability of the Defendant’s costs from unsuccessful Claimants.

· The recoverability of legal costs which are disproportionate to the compensation recovered.

· An increase of 10% on general damages (the award for pain and suffering)

· A potential 10% penalty for the Defendant who fails to accept a Claimant’s reasonable settlement offer.

The upshot of these changes is that it is unlikely to be possible for solicitors to offer Claimants litigation which is completely free from costs, even where the case is successful. 

It is particularly regrettable that these changes have been made despite the revelations of the Mid-Staffordshire hospital scandal.  These changes make it more difficult for Claimants to have cases investigated, yet now seems to be a more important time than ever for patients and Claimant to have a level playing field and fair representation.

Our funding pages are awaiting update, but please contact us in order to discuss your funding options in more detail.

On 1 April 2013 a number of changes will be introduced by the Health and Social Care Act 2012 which aim to improve the quality of services offered by the NHS and help people make informed choices about their health and social care.

Jess Connelly, a Solicitor in the Court of Protection Team looks at how the changes will affect the care and support of mentally disordered and vulnerable adults. Jess has represented many vulnerable adults and their family members and has particular experience in advising in cases involving deprivation of liberty.

The key changes

The changes taking effect on 1 April 2013 represent the largest shake up of the public health structure since its inception in 1948, as most of the responsibilities for commissioning health services will be taken away from Central Government and put into the hands of clinicians:

• Local Authorities will have public health responsibility for issues such as anti-smoking, obesity, vaccinations etc.
• Strategic Health Authorities and Primary Care Trusts (PCTs) which are currently responsible for organising and buying care for patients will be replaced by local Clinical Commissioning Groups (CCGs).  CCGs will largely be made up of GPs, supported by a new body called the NHS Commissioning Board, which is to take on its full statutory functions from 1 April 2013.
• New Regulations set overriding objectives to secure the needs of the people who use the services and improve the quality and efficiency of the services.
• Competition between providers will be encouraged, but integration of services (both health and social) is also required. Providers will be treated equally and in a non discriminatory manner.
• Failure to comply with the Regulations can result in action by ‘Monitor’ (the body that currently regulates NHS foundation trusts). Monitor will be developed into an economic regulator to oversee aspects of access and competition in the NHS sector regulator. The body was established in July 2012 and we are yet to see to what extent this will drive up standards.

From the perspective of health and social care provision, it is encouraging to see a duty of co-operation with the Care Quality Commission (CQC) and that the role of the CQC is strengthened.

The appointment of Mental Health Commissioners has meant that mental health hospitals are now being robustly investigated and the CQC’s 2011/2012 Annual Report highlights where improvements are necessary. Such thorough, informative and useful reports of other care providers and hospitals would be welcomed and perhaps the changes brought in by the Act will ensure this.

Prevention of mental illness to be promoted too

Section 1 of the Act, which has been in force since 27 March 2012, provides that the health service must:

‘secure improvement: (a) in the physical and mental health of the people of England, and (b ) in the prevention, diagnosis and treatment of physical and mental illness.‘

This replaces the similar duty contained within the National Health Service Act 2006, which intended to secure improvement, but not to prevent, mental illness. The difference in wording is minor, but recognises the importance of treating mental illness, before individuals reach crisis point.

The reality is that a large number of mental health hospitals are being closed and increasingly only the most unwell are being provided with treatment. If this change can prevent so many crises happening, then the mental health system could perhaps start to maintain itself more evenly.

In cases brought by patients trying to enforce duties set out in the 2006 Act, the Courts have generally not interfered with how these ‘target duties’ ought to be fulfilled, other than considering whether a PCT (on behalf of the Secretary of State)Secretary of State had acted unlawfully in public law terms.

So, in terms of individuals being able to enforce these duties, the 2012 Act may not be of much help, but in recognising that prevention is better than cure, this is a step in the right direction.

If you have any queries in relation to the issues raised in this blog, please contact Jess Connelly who will be pleased to provide further advice and assistance.

Deprivation of liberty safeguards

Jess Connelly, a Solicitor in the Court of Protection Team looks at how the changes introduced by the Health and Social Care Act 2012 will affect the care and support of mentally disordered and vulnerable adults in deprivation of liberty cases

Deprivation of liberty safeguards – transfer of responsibilities

The changes in the NHS taking effect on 1 April 2013 represent the largest shake up of the public health structure since its inception in 1948.

A welcome change is the transfer to local authorities and Clinical Commissioning Groups (CGC) of the responsibility for protecting mentally unwell individuals who have been deprived of their liberty.

In 2004 a decision of the European Court of Human Rights (ECHR) determined that individuals were being held in care homes and hospitals in the UK against their will and without a Human Rights compliant framework in place. As a result, the Deprivation of Liberty safeguards (DOLS) were incorporated into the Mental Capacity Act 2005 in 2009 and established a framework which applies to individuals who lack the mental capacity to consent to being placed in a care home or hospital.  

If the individual says that they want to leave, or if their movement is being controlled or restricted, it may be that they have been deprived of their liberty. If this is the case, then their placement must be ‘Authorised’ by the supervisory body responsible for the care home or hospital.  Individuals may appeal against an Authorisation by applying to the Court of Protection for their circumstances to be reviewed.

With the abolition of Primary Care Trusts (PCT), the responsibility for any future Authorisations will lie with the local authority where the individual has ordinary residence. CCGs will have responsibility for dealing with matters relating to any Authorisation granted by its equivalent PCT.

Support for this change

To assist Local Authorities and CGCs with the practical changes, the Social Care Institute for Excellence (SCIE) has produced a good practice resource to ensure a smooth transition of responsibility. The guide sets out the following helpful information:

• Each hospital managing authority will need to continue to actively understand the wider requirements of the Mental Capacity Act 2005.
• Each hospital managing authority will need to become more familiar with practice concerning ordinary residence.
• In preparation for the transfer, the ‘sending’ PCT supervisory body will need to identify the ‘receiving’ local authority for each patient subject to a Standard Authorisation. This will not necessarily be the local authority in which the hospital is situated.
• Each local authority will need to be prepared to receive applications from hospitals in Wales or any part of England.
• CCGs will be responsible for commissioning services in hospitals that comply with the Mental Capacity Act and the Deprivation of Liberty Safeguards.

These changes will no doubt bring the inevitable settling in problems: a clash of personalities as health care professionals hand over more responsibility to social care professionals; the rush to review any individuals who may have slipped the net before the transfer is made; and a lack of additional funds for already stretched local authorities to cover the new case load; but having responsibility and consistency of approach will enable local authorities to respond to local need more cohesively.

Further information relating to Deprivation of Liberty safeguards (DOLS) can be found here and recent developments in the case law will be covered in a series of articles on our elderly law blog in the near future.

A change for the better?

There are many criticisms that have been and will continue to be levied against these changes and the speed with which they have been implemented.   Many of the changes will work well, but will they save money and will they ensure that the vulnerable are better protected?  Only time will tell.

If you have any queries in relation to the issues raised in this blog, please contact Jess Connelly who will be pleased to provide further advice and assistance.

Scandal-hit Mid-Staffordshire NHS Trust to go into administration

Further to our recent blog (http://www.claimssolicitoruk.co.uk/news/index.php/mid-staffordshire-nhs-trust-report-published/) about the Francis Report concerning serious failings within Mid-Staffs NHS Trust, the BBC has today reported that the organisation is to be put into administration.

In addition to one of the worst scandals in NHS history concerning neglect, abuse and hundreds of avoidable deaths, the Trust also faced serious financial problems. The Government incurred £20 billion in 2012 to try and save the failing Trust.

NHS Regulator ‘Monitor’ has determined that the Mid-Staffs Trust is no longer clinically or financially sustainable in its current form.

An independent administrator will shortly be appointed to take over the running of the Trust and to consider any proposals for the longer-term. It is possible that the Trust will close down altogether, in which case it is hoped that other nearby Trusts would continue with essential services currently provided by the Stafford and Cannock Chase Hospitals.

If you have concerns regarding treatment at Mid-Staffs or any other NHS facility, please contact one of the medical negligence team for advice and assistance.

In conjunction with St John’s Chambers, Clarke Willmott’s Personal Injury and Clinical Negligence team hosted a successful spinal cord injuries seminar and drinks reception, raising over £1,700 for leading national charity Spinal Injuries Association (SIA). 

The event was held at the Marriott Royal Hotel on 20th February and was attended by over 60 delegates.  Guests had the opportunity to meet members of the SIA team, as well as learn more about the charity’s recent activities and the people driving them.

Martin Pettingell of Clarke Willmott chaired the seminar, with Head of St John’s Chambers’ Personal Injury Practice Group Glyn Edwards, and personal injury and clinical negligence specialist Emma Zeb spoke on two areas of interest to those involved in the management of catastrophic injury cases. Peter Hutchings, Outreach Service Manager for the SIA presented a presentation on community peer support – brigding the gap, which was extremely well received.

Investigation into potential misclassification of septicaemia deaths

As reported by the BBC (http://www.bbc.co.uk/news/uk-england-manchester-21600440), an investigation is underway into the number of recorded deaths at Royal Bolton Hospital attributed to septicaemia (blood poisoning).

The hospital has recorded 800 deaths from septicaemia between March 2011 and April 2012, which is four times higher than other hospitals of comparable size.

The Chief Executive of the NHS Trust which governs the hospital has stepped aside after initial findings revealed discrepancies in the data regarding causes of death.

It is suggested that attributing deaths to septicaemia (rather than other causes) made the hospital’s mortality rates look better. In addition, hospitals who deal with higher numbers of infections such as septicaemia receive additional funding from the government.

The investigation is underway and if it is determined that any deaths have been incorrectly recorded by the hospital, further steps will need to be taken to notify families.

If you have concerns regarding treatment you have received, please contact a member of our specialist medical negligence team for advice.

Tighter controls urged on the use of painkiller Tramadol

The UK’s Advisory Council on the Misuse of Drugs (ACMD) has raised concerns regarding the increase in the number of deaths linked to misuse of Tramadol.

It is a widely-prescribed painkilling drug which has opioid properties, meaning it blocks pain receptors to the brain. It is used mostly to relieve pain in cancer patients and those with musculoskeletal problems (such as arthritis). Such drugs can also cause too much serotonin to be released into the brain, which can be fatal, and overdoses can cause rapid heart-rate, high blood pressure, vomiting and seizures.

The ACMD Chairman has called for Tramadol to be made into a Class C drug, due to increasing cases of illegal supply. The penalty for supplying Class C drugs is 14 years’ imprisonment, and up to two years for possession.

The number of deaths relating to Tramadol misuse have increased from 83 in 2008 to 154 in 2011.

The Home Office and Health Secretary are currently considering the ACMD’s recommendations.