Consent in Clinical negligence Cases

 

Montgomery v Lanarkshire Health Board [2015] UKSC 11 has been decided this year by the highest court in the country and has transformed the law on consent in cases of clinical negligence.
The starting point for consent cases is to remember that in law any form of intentional trespass to a person without consent is a claimable as a tort, known as battery and could be a criminal offence as well. As such when a doctor operates on a patient it is crucial that consent is obtained in most cases, and this explains why during a course of treatment the patient will be asked to sign a form of consent to the treatment. 

In relation to consent it is therefore crucial that a doctor explains the various risks to the patient to ensure they are properly informed and able to make an informed decision. In those circumstances, if the patient has not been given that information or has not been given sufficient information then a claim in negligence can be pursued if it can be shown that but for insufficient information being given, the patient would have made a different decision or perhaps reflected and had the surgery at a different time.

The Montgomery case concerned the extent of the duty on a doctor to provide informed consent to treatment. Prior to Montgomery the case of Sideway v Board of Governors of the Bethel Royal Hospital [1985] was the main case authority and held that the party bringing the claim had to show that the information provided to provide consent “fell below that which would have been provided by a responsible body of medical practitioners”.  This meant that if a doctor defending a claim in negligence could show that a reasonable body of doctors doing the same procedure would have done the same, then he had not been negligent and the claim should fail, regardless of the fact that not all doctors would have done the same.

If we fast forward 30 years to 2015 and Montgomery, seven Law Lords sitting in the Supreme Court have overturned the decision in Sidaway, acknowledging that the manner in which healthcare services are now provided and the way in which patients view their relationship with their doctor has changed. In the leading judgement it was acknowledged that the legal position now is that:
“A doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”

As such, applying the facts in Montgomery, whist the doctor followed the views of a responsible body of medical opinion and did not advise of a small but serious risk which under the old law would be a defence to the claim, applying the new test the claim succeeded before the Supreme Court as it was acknowledged that the risk was one to which the patient would attach significance if informed.
As a closing note of caution it should be observed that a claim in Clinical negligence cannot succeed solely on the absence of consent. The claim is in negligence and therefore the party bringing the claim must show a duty of care was owed, that there has been a breach (possibly the absence of material information to provide consent) and that the breach of duty has caused the loss. Clinical Negligence claims can often be some of the most complex to pursue and therefore expert legal advice is crucial in relation to such claims.

Rogers & Norton Clinical Negligence team can advise on all forms of clinical dispute and offer a free initial consultation. The team can be contacted on 01603 666001 or by email on mbh@rogers-norton.co.uk or tsn@rogers-norton.co.uk.

Bye Bye Buy to Let?

The announcement in the Chancellor’s Autumn Budget indicating the Government’s plans to increase the Stamp Duty Land Tax levy against additional homes has sent shockwaves through the buy to let market. 

The proposals made are set to increase the rate of Stamp Duty to 3% on any property bought as a buy to let or a second home and have been referred to by lettings experts as ‘catastrophic for the private rented sector’. 
The unveiling of these plans comes as an additional blow to the property investor market after George Osborne’s announcement of a crackdown on mortgage interest tax relief in the Summer Budget.  

What do the changes mean? 

Currently, Stamp Duty Land Tax is charged at a rate of 2% for properties valued at between £125,000 and £250,000, the average price band that investment properties fall into.  A second property falling into this bracket will now attract an additional 3% tax. For a landlord purchasing a property at £175,000 under the new rules Stamp Duty Land Tax will sky rocket from £1,000 to £6,250.  Not a negligible sum at even the lower end of the market.  When you look a properties falling within the next price bracket (£250,001-£500,000) the stamp duty on a £300,000 would over quadruple, going from £3,000 to £14,000. 
When you consider that in addition to this hike the maximum tax relief will drop from 45% and 40% to just 20%, a landlord with a £150,000 buy-to-let mortgage on a property worth £200,000 will see net annual profits drop from £2,160 a year to just £960. 

But why now?

For a number of years now there has been growing concern about the shortage of affordable housing stock available for families and first time buyers, so much so that the Bank of England has been closely monitoring the buy to let increase.  In 2000, buy to let accounted for 4% of mortgage lending, by the second quarter of 2015 this had risen to 16%.  The Council of Mortgage Lenders reported the number of buy to let mortgages has increased by 36% over the last 12 months.  Unfortunately for the ‘average’ buyer, this all points towards a lack of affordable properties.

According to the Chancellor ‘Fifteen years ago around 60% of people under 35 owned their own home, next year it’s set to be just half of that’. 
So it would seem that the clear motivation behind this move is to effectively ‘put off’ property investors and make buy to let an unattractive form of investment. 
So what does this mean for the housing market?

In the short term it is likely that we will see a sharp increase in the number of investment properties being snapped up as investors scramble to increase their property portfolios prior to the new legislation coming into force in April 2016.  This will inevitably make house prices more sensitive and could even cause the collapse of transaction chains as we near the deadline date should completion prior to 1^st April appear to look unlikely.

Certainly in this short term this will not assist Mr Osborne’s plan of preventing investors from ‘squeezing out families who can’t afford a home to buy’.
In the longer term, the move could prove good news for first time buyers and families.  The hurdles of the increase in stamp duty, reduction in mortgage interest tax relief and also the reduction in annual wear and tear allowance will no doubt mean some landlords decide that buy to let is no longer a viable business model.    First time buyers are rejoicing at the news.  Duncan Scott of PricedOut, a campaigner for affordable housing has stated ‘we welcome the continued tax clampdown…it is good to see action against investors who price out aspiring first time buyers’.

However it may not all be good news for buyers.  The changes may result in landlords buying up lower priced properties for renovation, thus decreasing their initial tax outlay but increasing their rental yield.  This could have the affect of not only a remaining shortage of affordable but properties but also limiting the amount of new housing stock brought to market as the properties are retained for rental, as well as causing a rise in rents making it harder for first time buyers to even be able to save the money for a deposit.
Don’t forget that these changes won’t affect just buy to let landlords.  The second home and holiday letting market, which is particularly buoyant here in Norfolk, will inevitably be hit.  It is likely that at least initially this market will be inhibited by the changes as people decide against a largely discretionary investment.

So whilst on the face of it Mr Osborne’s plans appear to be the light at the end of the tunnel for those hoping to hop onto the housing ladder, only time will tell whether or not these radical stamp duty changes will indeed stamp out the UK’s housing shortage. 

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Contact the Rogers & Norton conveyancing team on 01603 666001 or email web@rogers-norton.co.uk for more info.

Attleborough Office continues to expand

Rogers & Norton continues to expand and strengthen the Attleborough office with the appointment of two new staff members.

Wenke Lie-Critchley joins from our Norwich office to further strengthen the Private Client department.  She will be ably assisted by Laura Rumsey, who is entering the final stages of her training with Rogers & Norton.

Wenke, a chartered legal executive, brings with her many years of experience in dealing with wills and probate, and sees the Attleborough operation as a real opportunity to help and support the local community in such a vitally important area.

Wenke Lie-Critchley, Marc Greig & Laura Rumsey

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Email Wenke on wlc@rogers-norton.co.uk or call 01953 453774 for more information.

The Importance of Wills

Following our article on the well publicised case of Ilott v Mitson (20 October 2015) in which Mrs Ilott successfully appealed to the Court of Appeal and received £163,000 from her mother’s estate despite not being named as a beneficiary under the Will, our Wills and Probate team has seen a considerable increase in clients wishing to update their wills.

In summary, Mrs Ilott was brought up solely by her mother following the death of her father before her birth.  At 17 Mrs Ilott left home to live with Mr Ilott without her mother’s approval.  She later married and had 5 children with Mr Ilott but her relationship with her mother never improved.  Mrs Ilott lived in a housing association property and her family was supported by various benefits.

Mrs Ilott’s mother passed away leaving a Will, supported by two side letters explaining her reasoning, leaving nothing to her daughter or wider family but leaving her estate valued at £486,000 equally between three charities.  The claim was brought by Mrs Ilott under the Inheritance (Provision for Family and Dependents) Act 1975 which allows, amongst other categories, children of the deceased to bring a claim upon the estate for reasonable provision.

It was found that Mrs Ilott should not be penalised for a lack of expectation of receiving anything from her mother’s estate as the charities had no expectation either as the deceased had no previous connection with the charities in her lifetime.  It was also found that the estrangement between the parties should not deprive the appellant of an award.  The appellant’s income, earning capacity and lack of pension contributed to the court’s reasoning that despite Mrs Ilott being an independent adult child she survived on such a basic level of resources that she was awarded £143,000 to purchase her local authority house.  She was also given the option to receive a further award of £20,000 from the estate to provide extra income without affecting the benefits she receives.

We have seen many clients who are now re-visiting their Wills.  It is daunting to have to plan for your death but by having a Will in place you will save your family unnecessary distress at an already difficult time.  Even if you only have modest assets, a Will enables your estate to be administered in accordance with your wishes and stops the worry and trouble that can often come with dying intestate (i.e. without a Will). 

Writing a Will is especially important if you have children as it gives you the opportunity to appoint guardians.  A number of events can affect who is able to bring a claim against an estate.  Changes in financial circumstances, marriage, cohabiting with a new partner are reasons to make and amend a Will.  Consideration should also be given about making lifetime gifts. It also allows you to achieve tax planning objectives and to consider protecting your assets from future care fees.

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If you would like to discuss making a Will, or changes to an existing Will, please contact Louisa Shailes on 01603 675655 or email louisa.shailes@rogers-norton.co.uk.

Employment Law Bulletin November 2015

Welcome

Snowballs and open fires aside, winter isn’t all fun and games.  Dark mornings and dark afternoons pose their own mood-detracting challenges for workers and employers alike. And that’s not all.

Acas has a guide to dealing with winter’s workplace issues. It lists adverse weather, colds and flu, a flurry of holiday requests, and wellbeing in the workplace as seasonal issues that employers must carefully manage. Plan in advance, is the advice.

So, go on. Sort out your policies, get your systems in place, and grab winter by the horns. 

The meaning of ‘public’

Underwood v Wincanton

In May this year we reported the case involving the estate agents, Chestertons.
 
It was about whistleblowing; in particular, the requirement that a worker must reasonably believe that their disclosure is in the public interest in order to benefit from whistleblowing protection. The case decided that something that was of interest to 100 senior managers could be in the public interest.
Underwood v Wincanton builds on that. Mr Underwood was dismissed after he and colleagues made disclosures to their employer about the unfair distribution of overtime to drivers. He claimed that he had suffered detriment and had been automatically unfairly dismissed because he had made protected disclosures. But did the disclosures have the necessary ‘public interest’ element? The tribunal held not and struck out the claim at a preliminary stage. The complaint was about a group of workers who had an identical grievance about an aspect of their employment contracts; this wasn’t in the public interest, the tribunal said.

By the time the case arrived at the Employment Appeal Tribunal (EAT), the Chestertons case had been decided. It was clear that ‘public’ could be a subgroup, even if made up only of people employed by the same employer on the same terms. So the EAT reached a similar conclusion in the Underwood case: it is at least possible for a matter to be in the public interest even if it’s only about a contractual dispute between a group of employees and their employer.
The upshot is that the claim will now proceed and it will be for the tribunal to decide the outcome. The EAT made reference to the fact that the Chestertons case is being appealed, and that until that hearing takes place in October 2016, its conclusions should be followed. So, for now at least, workers who disclose information in the right way about a breach of their (and their colleagues’) employment contracts could have whistleblowing protection.

Zero hours guidance

Does your business rely to some extent on casual labour? If so, you may well be using zero hours contracts. They can be really useful, flexible ways of covering things like staff illness, seasonal work, projects and ‘on-call’ duties.

But you won’t have failed to notice that zero hours contracts have been in for some criticism recently. A huge bone of contention has been around exclusivity clauses; terms within these agreements that stopped workers topping up their (fluctuating) earnings by working elsewhere. Now that these clauses have been banned, zero hours contracts have clawed back some popularity. But are you comfortable about when and how to use them?

 This guide from the Department for Business, Innovation & Skills should help.
It has some really clear pointers about appropriate and inappropriate use. It’s also good on best practice and on alternative arrangements that you could put in place.

And, while we’re on the subject, the Government has published draft regulations (the ‘Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015’) which could thwart employers who ignore the ban on exclusivity clauses. Yes, these clauses will be unenforceable and, yes, employees could choose to take no notice of them. But the regulations will offer certain specific protections for people working under zero hours contracts:

- The dismissal of an employee (however long they have been employed) will be unfair if the reason, or main reason, is that they didn’t comply with an exclusivity clause; and
– The right for workers to not suffer a detriment because of failure to comply with an exclusivity clause.

In a group to TUPE?

Inex Home Improvements Ltd v Hodgkins

Where an organisation is to take over the delivery of a service, workers who currently do that work sometimes transfer over to that new service provider. It’s a fundamental rule of TUPE. However, only workers who are assigned to an “organised grouping of employees” make the move. And that was the key point in this case.

Mr Hodgkins was employed by Inex. Work was subcontracted to Inex in tranches by a company called Thomas Vale. There was a pause in the work supplied and Inex laid Mr Hodgkins and some of his colleagues off under the terms of a construction industry national agreement. It was a temporary stoppage and Inex continued to employ them.

 When Thomas Vale issued its next batch of work (which was pretty much the same work as Inex had previously completed), it went to a different subcontractor. Had Mr Hodgkins and colleagues transferred to that new subcontractor?

The tribunal held not; they weren’t an organised grouping working on Thomas Vale’s contract immediately before the service passed to the new subcontractor. The Employment Appeal Tribunal took a different view, however. Just because there has been a temporary absence from work, or work has stopped, that doesn’t mean that there can’t be an organised grouping of employees who had been involved in the relevant activities. They don’t have to have been engaged in those activities immediately before the transfer.

Gender equality

As part of moves to close the gender pay gap, the Government has announced that larger employers – those with more than 250 employees – will be forced to publish details of the bonus payments they make to male and female staff. This is expected take effect in the first half of 2016.
Other measures will include requiring the public, as well as the private and voluntary, sector to publish average pay details for male and female staff. The Government also wants to eliminate all-male boards in the FTSE 350.

Details of the rules on pay reporting will be published in new regulations. In the meantime, the provisions are being hailed by some as a start. The TUC General Secretary, Frances O’Grady, said, “Employers need to look at why women are still being paid less than men and do something meaningful about it.”

The sleepworking conundrum

Shannon v Rampersad (T/A Clifton House Residential Home)

Is a worker working when they’re on-call but not… working?

 Mr Shannon was an on-call night care assistant. It meant that he had to be present in the care home (which, significantly, was also his home) throughout the night to help the designated night care assistant. In reality, help was rarely needed.

Did all those night time hours constitute working hours, even though he slept during them? The tribunal held that he was only working when he was called on to help the care worker. As he was already being paid the National Minimum Wage for those times, he lost this aspect of his claim. The Employment Appeal Tribunal upheld that decision.

It’s important to remember, then, that just because a worker is at their place of work, it doesn’t mean that they are ‘working’. The usual rule is that if someone is available at or near work to do salaried work and is required to be available for work, then those are working hours. But, as this case has highlighted, it’s different where the worker is spending time at home. Then they’ll only be working when they are “awake for the purpose of working”.

It can be a difficult legal area to navigate and, as it’s so fact-specific, there’s plenty of scope for argument.

Companies have feelings too

EAD Solicitors v Abrams 

An interesting take on the concept of associative discrimination.
Mr Abrams was a member of a limited liability company and was due to retire at 62. He set up a limited company (he was the sole director) which then took his place in the LLP. The limited company was entitled to the profit share that Mr Abrams would have received directly, had he still been a member of the LLP. The company agreed to provide services of an appropriate fee-earner to the LLP.

The LLP didn’t want Mr Abrams to do the work after the time at which he’d normally have retired. On its face, age discrimination. But could the limited company claim discrimination on the basis of detrimental treatment because of its association with someone who had a protected characteristic?
Yes, said the Employment Appeal Tribunal. It’s not just individuals that are protected under the Equality Act. The law is about discrimination by one person against another person – and ‘person’ includes a limited company. As associative discrimination is well established when it comes to individuals’ claims, companies may also be protected.

And finally…..

Telecoms company TalkTalk has been the talk of the town for all the wrong reasons lately. But when it comes to protecting data, it’s not just hackers that businesses should fear. The problem can come from within, as supermarket chain Morrisons discovered. It’s being sued by 2,000 members of staff after its former company auditor uploaded the personal and financial details of nearly 100,000 Morrisons workers to a file-sharing site.

The auditor was jailed, but that didn’t put the business’ problems to bed. Far from it. Staff are claiming that Morrisons didn’t do enough to protect their data. The supermarket is reported to be denying liability for the actions of a rogue individual.

As every business knows, the stakes are high where personal information is concerned. Serious breaches of the Data Protection Act can attract fines of up to £500,000. And then there are claims and reputational damage to factor in – which, in some cases, hit hardest. We’ll have to wait and see how this one pans out. 

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Increase in instructions as business and individuals stock up for their Christmas trade

Rogers and Norton’s HMRC and Border Force team have reported an increase in instructions as business and individuals “stock up” for their Christmas trade. 

Peter Hastings comments “In the past few weeks, we have had a flurry of instructions from clients who have had their goods (alcohol and tobacco/cigarettes) seized at various locations throughout the UK. If HMRC’s officers consider the goods are for commercial purpose, for example if  the quantity exceeds the recommend guidelines of 1kg, they could seize the goods and also the car that has been used to transport the goods. We are challenging a number of seizures by way of condemnation proceedings, and  seeking the restoration of goods by way of Review and to the First Tier Tax Tribunal. In particular, we are contending that the seizure will cause hardship and that exceptional circumstances apply”.

 Peter adds, “We are  also challenging seizures for goods imported for the Christmas toy market, which HMRC have seized on the suspicion that there is some form of irregularity such as the documentation has discrepancies or the purchase cost is too low or the tariff is disputed. Recent seizures include goods valued at £60,000 and £75,000”.

The team is also busy on other HMRC and Border Force matters. Recently,  the team has been instructed to seek a VAT refund for a client in excess of £3 million, and is challenging a number of assessments where the tariff code is disputed, VAT and Duty issues, Anti-Dumping claims, and also Notices for Security under Paragraph 4 (2) a of Schedule 11 to the Value Added Tax Act 1994. The team is able to assist with both civil and criminal investigations instigated by HMRC, the appointments of Provisional Liquidators, appealing the refusal to register an applicant as an owner of excise goods under the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 and Alcohol Wholesaler Registration Scheme (AWRS).

For more information contact Peter Hastings on 01603 675603 or peter.hastings@rogers-norton.co.uk.