HEALTH CARE ANALYSIS VOL. 3:324-331 (1995)

Health Care Law Edited by Linda Delany

Introduction

The English legal system prides itself on the pragmatism of its approach to the resolution of disputes and problems. When judges develop law, and Members of Parliament examine legal initiatives, they often seem more at ease with practical considerations than with rational prin- ciples. Indeed, the interpretation of law at many levels relies heavily on what is possible rather than what is desirable, intended or justifiable.

This issue's Health Care Law feature provides three recent examples of legal pragmatism. The law report shows the reluctance of the courts to recognise that local councils might have absolute duties to provide community care services to those in need of them. The leading judgement ultimately rejected, as 'impractical' and 'unrea- listic', the 'very plausible' legal submission that a local authority's statutory responsibilities do not come to an end when its resources run out. In Confidential Information in the Health Market we review the efforts of the Department of Health to adjust the law on confidentiality as it pertains to patients and to staff in order to meet the conflicting demands for information and secrecy generated by the internal market in health care services. On a more positive note, in Funding Medical Negligence Claims we examine a newly implemented scheme which aims to make the legal system more accessible to, among others, patients who have received negligent treatment and staff injured at work.

Overall we conclude that while legal proce- dure, particularly in civil litigation, stands to benefit from reforms which focus on efficiency, cost and other practical factors, substantive law

needs protection from pragmatism if it is to avoid accusations of bias and inconsistency. What we need in the health care sphere is some respect for legal principle and legal theory in order to enhance legal developments.

Health Care in the Courts

R v Gloucestershire County Council, Ex parte Mahfood R v Gloucestershire County Council, Ex parte Barry R v Gloucestershire County Council, Ex parte Grinham R v Gloucestershire County Council, Ex parte Dartnell and another 1

All five applicants were pensioners in their seventies, living in Gloucestershire. They applied for judicial review of the County Council's decision to reduce the community care services they had previously enjoyed. All five suffered serious physical impairment: spinal injury in the case of Wesley Mahfood who had also suffered a stroke; a heart condition, hypertension and arthritis in the case of Violet Dartnell, whose husband Christopher, a double amputee, suf- fered from prostate cancer and arthritis; Constance Grinham was wheelchair bound with rheumatoid arthritis while Michael Barry was partially blind and had had several heart attacks.

The reason for the cut in council services was the decision by central government to reduce Gloucestershire's community care budget by s million. This had forced the Council to reconsider its priorities and to concentrate its resources on people even more seriously disabled than the five applicants. The Council had sent out a standard form letter, advising each of the applicants of its

CCC 1065-3058/95/040324-08 �9 by John Wiley & Sons, Ltd.

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intention to withdraw services. It did not offer to re-assess their needs in the light of the decision by central government. In response to the submission of the applicants, that the failure to re-assess their needs and the arrangements required to meet them was unlawful, the Council argued that there had been no need for re- assessments as its decision did not relate to the individual circumstances of the applicants, and that in any case it should not be accountable for matters over which it lacked control.

The Secretary of State for Health was per- mitred to intervene in the case and was represented in court. She claimed that central government provided enough money to allow councils to perform their duties.

Lord Justice McCowan, delivering the leading judgement of the Divisional Court of the Queen's Bench Division of the High Court, admitted that the argument that shortage of resources and the competing needs of other persons should not be legally allowed to interfere with the Council's duty to meet the applicants' needs, was very plausible:

'On reflection, however, such an interpretation would be impractical and unrealistic and was to be avoided if at all possible. A local authority faced an impossible task unless it could have regard to the size of the cake of resources so that it could know how fairest and best to cut it. Accordingly, a local authority was right to take account of resources both when assessing needs and when deciding whether it was necessary to make arrangements to meet those needs'.

However, the shortage of resources should never become an automatic defence to claims by individuals that a local authority was failing to make adequate provision. For some disabled people the physical risks of not being looked after meant that some practical assistance in the home would have to be forthcoming: if no reasonable authority would fail to conclude that help was necessary then help had to be offered as a matter of law.

In the particular circumstances before the court, the Council should have re-assessed the applicants in the light of all relevant factors, of which resources were only one. It was unlawful to treat the cut-back by central government as the

sole factor which needed to be taken into account. Accordingly the applicants were entitled to a declaration that the Council had, in deciding to reduce services, acted unlawfully.

Comment

Ever since the 1990 National Health Service and Community Care Act increased the local autho- rities" responsibilities for community care, 2 councils have warned that they are under-funded and have anticipated legal challenges to their allocation decisions. The outcome of the proceed- ings reported above will, it is estimated, cost local authorities across the country about s million in re-assessing community care claimants from whom services had been withdrawn fol- lowing central government cut-backs. 3 The re- assessments will presumably have to be paid for out of existing community care budgets and are thus likely to lead to further reductions in services.

Does the approach of the court benefit those in need of community care at all? Yes, in so far as people at 'severe physical risk' are guaranteed some local authority help. No, in so far as the judgement appears to accept that local authority assessments may be largely resource- rather than needs-led. Until this case it was by no means clear that local authorities were entitled to deny services on grounds of cost if people had otherwise been assessed as needing them. Richard Gordon QC, the barrister who repre- sented the applicants, had indeed argued that the duty to provide community care services was not to be interpreted as subject to resource limita- tions and that it differed from the NHS duty to provide treatment 4 in this respect, but the submission was rejected by the court in favour of arguments to the contrary put forward by the Department of Health.

The case denies local authorities the legal precedent they needed to extract further com- munity care funding from the government.

References

1. The Times. (1995). 21 June.

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2. Delany, L. (1994). Health care law. Health Care Analysis 2(2), 140-146.

3. Murray, I. (1995). Disabled pensioners win com- munity care battle. The Times, 17 June.

4. Delany, L. (1993). Health care law. Health Care Analysis 1(2), 170-178.

Funding Medical Negligence Claims

Claiming compensation from health authorities has been notoriously, sometimes prohibitively, expensive in the UK. Successful claimants can, of course, normally recover most of their legal costs from the authority they took to court but will have had to pay for expert evidence and legal assistance during the case (though some solici- tors will waive their fees if confident of a successful outcome). Legal aid is in theory available but subject to increasingly restrictive financial limits which have steadily eroded adult eligibility. Only children, whose capital and income are no longer aggregated with their parents" means, usually have no difficulty in meeting the financial criteria of the legal aid scheme. However, like adults, they must per- suade the Legal Aid Board that their claim is worthwhile, i.e. neither too speculative, nor too insignificant in financial terms when measured against the likely costs of the proceedings.

Since summer, solicitors have been able to offer their clients the opportunity of suing their GP or health authority on a new basis. On 4 July the statutory instruments 1 which implemented s.58 of the 1990 Courts and Legal Services Act were signed by the Lord Chancellor. They introduced the controversial conditional fee scheme by which the government hopes to further reduce the country's legal aid bill.

In exchange for assuming the risks of litigation (the 'no win, no fee' aspect of the scheme) solicitors may charge more than their usual fees in the event of a successful outcome. The maximum so-called 'uplift' was set at 100%. It is anticipated that the negotiation of uplifts will be influenced by market forces and by the assessment of risk in each individual case.

As it is considered unfair to recover any uplift from the defendant to the proceedings it becomes the responsibility of the winning claimant, who will normally have no alternative but to pay out

of his or her newly acquired compensation. In an expensive case damages might be wiped out. The Law Society, which regulates solicitors, has published a model solicitor-client contract which caps the uplift at 25% of damages, but solicitors are free to do business on other terms.

Clients who participate in the scheme are liable to pay expenses such as court fees (set to rise sharply as part of a civil litigation reform programme), office disbursements and fees for expert evidence. Should they win, these should be recoverable from the other party to the proceedings but if they lose clients may be considerably out of pocket. They are also, of course, at risk of being ordered to pay the costs incurred by the successful opponent. Accord- ingly, conditional fee scheme clients will be offered the financial protection of specially designed insurance policies. Solicitor-client con- tracts must also be clear about the client's potential liability for expenses and costs.

Patients who are victims of medical malprac- tice will be among the first claimants able to use the scheme which is currently limited to cases involving personal injury or insolvency, and claims pursued in the Court of Human Rights at Strasbourg. NHS staff with occupational health claims and visitors injured on NHS premises may also proceed under the conditional fee scheme.

The scheme has been attacked as likely to produce an increase in spurious actions but it is hoped that the risk of receiving no fee at all will deter lawyers from backing hopeless claims. 2 A more serious worry is that there will be disputes between lawyers and clients as to what really constitutes a 'win' and that solicitors may want to settle cases when clients want to fight on. There is anxiety that many clients will be unable to grasp the complexities (and pitfalls) of the scheme and that no client will be in a position to work out what risk is taken on by the solicitor, and therefore what percentage uplift is fair. 3 It has been argued that any success fee is unjusti- fied if there is no real risk of losing the case. s There are fears that the Legal Aid Board, left with only the very riskiest of cases, will run out of funds.

Others, including the Consumers' Association, see the scheme as a radical move to widen access to justice at a time when only the very rich, the

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very poor, and children, dare to start legal proceedings. They argue that it is beneficial to free claimants from the risk of unlimited liability and that market forces will ensure that lawyers do not profit excessively from the new scheme.

The effects of the introduction of conditional fees will no doubt be closely monitored, not least because the government hopes to extend the scheme. Coupled with other proposed civil litigation reforms, it may considerably increase the chances of efficient redress for those whose injuries are caused by health care managers or practitioners.

References

1. Conditional Fees Order 1995 and Conditional Fees Regulations 1995.

2. Lord Mackay. (1995). Reducing risks for clients. The Gazette 92/26, 5 July.

3. Zander, M. (1995). Well anyway, conditional fees should be a bonanza for lawyers. New Law Journal 920.

Confidential Information in the Health Market

Introduction

Information in the National Health Service seemed to acquire new worth with the develop- ment of the so-called 'internal market'. Managers argue that the efficient and competitive delivery of health care requires not only ever more detailed knowledge of patients and their treat- ments, but also new restrictions on what staff may disclose about their work environment. Their claim that these concomitants are legal is examined below.

Patient Information in the NHS

In the new NHS:

'Costs have to be ascribed to activities and activities then have to be identified, recorded and evaluated. No information can be immune from scrutiny in this process ... describing some information as confidential and thus off-

limits to the managerial process is at least awkward if not downright obstructive')

Accordingly, draft guidance issued last year by the Health Care (Administration) Division of the Department of Health 2 proceeds to offer a new Department of Health interpretation of confiden- tiality law. In part this interpretation accurately reflects the current legal position which, briefly, is as follows: patients' personal health details, whether provided by the patients themselves, imparted by others or discovered through observation, diagnosis or tests, must be kept confidential unless patients give express or implied consent to their disclosure. Implied consent arises where patients in the care of more than one person would expect, and benefit from, the sharing of their personal health details. It can be terminated by expressly forbidding any further disclosures. In the absence of either express or implied consent, the duty to maintain confidentiality is overridden only when a court order, statutory provision or the public interest require it. Disclosure in the public interest is justified by a grave risk to public health or to the health or safety of individuals; courts have been reluctant to recognise other justifications for the release of medical information.

One controversial aspect of the legal advice offered in the draft guidance is its insistence that the 'functioning of the NHS' is an adequate basis for implying patient consent to disclosure. Para- graph 4.9 deserves to be quoted in full:

"Patients implicitly authorise that their records, including health information obtained from other sources, will be used by the NHS and Depa~-tment of Health for wider NHS purposes which are essential to the delivery of high quality health care to themselves and the population as a whole. These wider NHS purposes include:

Health purposes, e.g. clinical audit; the monitoring and maintenance of public health; clinical research conducted entirely within the NHS.

Administrative purposes, e.g. the management and planning of services; the payment of health professionals and provider units for services provided; duties of medical secretaries and other support staff; public accountability

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and financial audit, including audit by external auditors appointed by the Audit Commission; the operation and maintenance of computer systems (also subject to the provisions of the Data Protection Act); the transfer of health records; the investigation of complaints.

Statistical purposes in support of both clinical and management functions'. 3

While the guidance concedes that details should be "anonymised unless the recipient needs to know the identity of the patient (or any other individual concerned) to fulfil his [sic] NHS responsibilities' it fails to point out that a patient may revoke any implied consent whenever he or she chooses. It also misrepresents the law, which is much slower to imply consent to breaches of confidentiality than the guidance seems to assume. As indicated earlier, hospital teams or partners in general practice may rely on the concept of a patient's implied consent to dis- closure of medical details where shared access to those details is necessary to serve properly the

"The guidance fails to point out that a patient may revoke implied consent

whenever she chooses"

patient's current medical needs. The law is willing to presume that patients would readily consent to those disclosures which would permit additional professional involvement likely to enhance treatment. But this is very different from supposing that individual patients are so clearly convinced of the beneficial effects of a well- organised and efficient health service (and of the link between providing information and effi- ciency) that they agree to make their details available to every manager, accountant, auditor, planner or office clerk who requires access to them.

The guidance also misleads about the circum- stances in which 'the public interest' may in law justify disclosure of confidential material. At paragraph 4.18 the guidance claims that publica- tion of health information 'for public accountability and monitoring purposes (e.g. publication of NHS statistics)' has joined 'serious risk to public health or individuals' as a legally valid ground for the disclosure of medical

details. At paragraph 4.27 the guidance intimates that the planning by social services of community care could also amount to a 'public interest' justification for breaches of confidentiality. The Department of Health does not cite any legal authority to support its assertions that in the context of the law of confidentiality 'public interest' now carries an extended meaning, which is not surprising given the traditional restrictive judicial interpretation of the phrase 4,5 and the complete lack of any evidence that the courts or parliament wish to review this approach. Unfortunately, health professionals

'The Department of Health does not cite any legal authority in support of its interpretation of "public interest""

and NHS managers who read the guidance are likely to believe that its dubious legal advice is accurate and may thus be misled into unlawful breaches of confidentiality. Even worse, from the patients' point of view, is the possibility that in time the law may come to ratify the errors in the guidance. Where medical confidentiality is con- cerned, the courts have more than once been guided in their formulation of the law and their resolution of conflicts by the advice issued to health care professionals by the latter's regula- tory bodies 5 and it is conceivable that judges might be similarly influenced by briefings issued by the Department of Health.

It could, of course, be argued that as long as medical details stay confidential within the NHS, patients would not resent the greatly increased access to their health information, which should remain protected from those outside the Service by the strict duty on NHS employees not to disclose. But some patients at least may balk at sharing their confidences with one of Europe's larger workforces, and may continue to value the traditional intimacy of the doctor-patient rela- tionship. Moreover, the improper disclosures by NHS staff which already occur, whether inten- tionally or carelessly, are likely to grow in number with any widening of access to patients' details. It is also worth noting that in relation to personal information held on computer, the Data Protection Registrar has publicly disagreed with

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the Depa~tuLent of Health view that details may be used for purposes beyond the care and treatment of the patient concerned. 6

Ironically, the Department of Health's new interpretation of confidentiality coincides with an Audit Commission attack on the inadequacy of NHS medical record-keeping. 7 According to the Commission, hospital case notes are poorly structured and indexed, sometimes illegible and frequently lost. Furthermore, the inadequate coding of the data contained in the notes renders the latter worthless for NHS contracting and auditing purposes. It seems to follow from the Commission's findings that the invasion of patient confidentiality promoted by the Depart- ment of Health's new guidance may not even be able to serve the aims which underpin it.

NHS Information

While the NHS management oversees the erosion of patient confidentiality, it has become more secretive about its own concerns. Much of the information which is collected about patients is deemed to be commercially sensitive, as are organisational and budget details, s According to the editor of the British Medical Journal:

'speaking up on deficiencies within a hospital was once a public duty, now it is viewed as a betrayal of the competitive interests of the NHS trust. Gagging clauses have been written into the contracts of the NHS consultants and other employees, and there have been several high profile cases of whistleblowers being persecuted'. 9

"Much patient information is deemed "commercially sensitive""

Little more than a year after the implementation of the legal reforms 1~ which introduced market principles into the NHS, the government con- ceded that worries about health authority strategies discouraging staff from drawing atten- tion to deficiencies were justified, and promised guidelines. Eventually published in June 1993, the Guidance u permits hospital trusts to con- tinue to insert so-called gagging clauses into staff

contracts and directs staff to pursue complaints or concerns through the local line management structure or via the designated manager respon- sible for such issues. Employees who have exhausted local procedures might wish to contact their Member of Parliament or, 'as a last resort', consider the possibility of disclosing their con- cern to the media though:

'Such action, if entered into unjustifiably, could result in disciplinary action and might unreasonably undermine public confidence in the service'. 11

The Guidance is consistent with employment law which imposes a duty of fidelity on employees. The duty prohibits conduct calculated to under- mine the mutual trust and confidence regarded as underpinning the employer-employee rela- tionship and in particular 'any disclosures which may embarrass or cause harm to an employer'. 12 Sanctions for breach of the duty range from disciplinary action, including dismissal, to pro- ceedings by the employer for damages and injunctions. Employees in turn may seek redress by claiming unfair dismissal or that they had 'just cause' for their breach of the duty of fidelity. Unfair dismissal proceedings require evidence that the employer acted unreasonably whereas the defence of 'just cause' relies on proof that the matter disclosed was of grave public concern. Unfortunately, in the context of whistleblowing, what constitutes unreasonable behaviour by a health authority, or is regarded as of grave public concern, is far from clear, and:

'revelations to the media, particularly when no other channels have been explored, are likely to be frowned on by the courts', u

Recommendations for change have recently emerged from two quite different sources. The first of these is the report of the Inquiry into Standards in Public Life 13 conducted by Lord Nolan, a House of Lords judge. The Nolan Committee, as part of its investigation into 'sleaze' in British politics and public life, scruti- nised NHS trusts and acknowledged that 'gagging clauses' can militate against detection of malpractice. Accordingly it recommended that employees wishing to raise concerns should not always be forced to use the normal internal channels for complaints but should be able to

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liaise with a specially nominated representative of the employers, and should have anonymity guaranteed.

Further recommendations for reform are con- rained in the Whistleblower Protection Bill introduced in Parliament's House of Commons on 28 June 1995. The Bill aims to protect:

'those who raise important issues in good faith without desire for reward, believing them to be genuine, and who have already raised their concerns internally, unless there are compelling reasons for not doing so'. 14

Whistleblowers would be given new rights to compensation for loss of earnings and stress, and to injunctions halting any intimidation by employers.

Conclusion

The government has accepted the Nolan recom- mendations 'in principle' and the Whistleblower Protection Bill has all-party support. There seems to be agreement that 'a new culture of openness and responsibility' is needed and NHS staff should be among the first to benefit, with useful repercussions for the patients. The pressures to infringe the latter's privacy are not, however, likely to grow weaker, and have so far received little public attention: they should provoke a search for new data-processing methods which do not merely serve market management but are fully intelligible to patients, allow efficient retrieval for treatment purposes and are consis- tent with the preservation of patient confidentiality.

References

1. Kennedy, I. (1994). Between ourselves. Journal of Medical Ethics 20, 69-70, 100.

2. Department of Health. (1994). Confidentiality, Use and Disclosure of Personal Health Information. Draft Guidance, Department of Health, London.

3. Department of Health (1994. Confidentiality, Use and Disclosure of Personal Health Information. Draft Guidance, para. 4.9, Department of Health, London.

4. See, for example, the case of X v Y [1988] 2 All ER 648.

5. See, for example, the case of W v Egdell [1990] 1 All ER 835.

6. Data Protection Registrar. (1994). Tenth Report of the Data Protection Registrar, HMSO, London.

7. Audit Commission. (1994). Setting the Records Straight: A Study of Hospital Medical Records, HMSO, London.

8. Craft, N. (1994). Secrecy in the NHS. British Medical Journal 309, 1640-1643.

9. Smith, R. (1994). An unfree NHS and medical press in an unfree society. British Medical Journal 309, 1644-1645.

10. Enacted by the National Health Service and Community care Act 1990.

11. Department of Health National Health Service Management Executive. (1993). Guidance for Staff on Relations with the Public and the Media, Executive Letter (93)51, Department of Health, Leeds.

12. Rose, N. (1995). Whistleblowing: time for a change? New law Journal, 113-115.

13. The Lord Nolan. (1995). First Report of the Committee on Standards in Public Life, Cm 2850-I, HMSO, London.

14. House of Commons. (28 June 1995). Official Report, Cols 911-912.

News Brief

Genetic Tests by Mail Order

Predictive tests, the results of which will disdose genetic predisposition to hereditary disease, may become subject to legal regulation in the UK following recommendations by the select com- mittee on science and technology which reported to Parliament in July 1995.

Complaining in the NHS

New 'simplified and fairer' complaints proce- dures, detailed in the free publication Acting on Complaints, are to become available to NHS patients on 1 April 1996. From that date the health service ombudsman will assume jurisdic- tion over general practitioners as well as all matters of clinical judgement. Patients will be expected to exhaust internal NHS procedures before referring their complaint to the ombuds- man. The new proposals incorporate many of the recommendations of Being Heard, the report of a committee chaired by Professor Wilson. A review of Being Heard appeared in Health Care Analysis 2(4), 320.

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No Liability for Wrong Diagnosis of Sex Abuse Dutch Neonaticide

The House of Lords, in its capacity as final court of appeal, has confirmed that medical staff and psychiatric workers in the UK cannot be sued for negligence in respect of a careless misdiagnosis of child abuse: 'In my judgement, the courts should proceed with great care before holding liable in negligence those who have been charged by parliament with the task of protecting society from the wrong-doing of others' said Lord Browne-Wilkinson, in a negligence action brought by a mother and daughter who sought compensation from their local authority and a child psychiatrist after unfounded suspicions of child abuse had led to their enforced separation. According to the court, the imposition of a duty of care on potential witnesses in child protection cases would cause delays, increase workloads and inhibit legitimate intervention.

A Dutch court in accepting that Dr Hank Prins was justified in killing a severely disabled baby at its parents' request, has extended the system of granting immunity from prosecution in cases where doctors actively help patients seeking euthanasia to die.

Withholding Treatment in Ireland

In the first ruling of its kind in the Irish Republic, the Irish High Court granted an application by the family of a patient, who had been in a coma for 20 years, and declared that the patient's life support system could be switched off.