Prison Officers & Junior Doctors: Strikes & Personal Injury Law

A recent strike of nearly 10,000 Prison Officers throughout the UK was ended by a swift and decisive verdict in the ‎High Court.
This had followed recent reports, some in the media, about concerns over conditions in British prisons. Inmates themselves have to be treated and jailed in line with the Human Rights Act (1998); prisoners should have adequate living conditions, and be treated ‘humanely’ whilst in jail. Further, prisoners must have access to their lawyer.
Some concerns have been raised regarding the treatment of prisoners recently. However, by far the major concern has been for Prison Officers, and prison staff. Aside from long running concerns over pay, pension and welfare issues, very high levels of‎ violence have been cited in recent court hearings, along with other workplace complaints. The Home Office and Prison Governors Association (PGA) had been made fully aware of the ongoing issues in British prisons; an investigation by a Parliamentary committee into the issues raised was halted for the duration of the High Court hearing, but has now been resumed.
The level of violence cited before Mr Justice Kerr is significant: in the last, two weeks such incidents had included ‎30 assaults by inmates on Prison Officers, 14 hostage situations and 13 escapes, attempted escapes or abscond.
The Ministry of Justice ‎countered by accusing the Prison Officer’s Association (POA) of “seeking to take over the control of jails from governors and run them on a controlled lock-down basis”, and that the “danger [to the public was] ramping up [with] each hour that goes by with the prisons unmanned”. The strikes had impacted upon prisoner transport, thus in turn affecting or even halting court hearings ‎-including that of Thomas Mair, who stands accused of murdering Labour MP Jo Cox.
After hearing the arguments, the High Court very recently imposed an injunction upon the striking officers, ordering them back to work – but at the same time expressing concern at the issues raised. The Prison Officers Association complied, stating that it had achieved its main aim of securing a meeting with Lib Truss MP (Justice Secretary & Lord Chancellor) within 48 hours.
Whilst ‎it is illegal for prison officers to strike, the POA had argued in court that the government had acted to ensure a safe working environment. Under employment law, the government and Civil Service are obligated to provide a safe working environment, and to take all reasonable efforts to avoid an accident at work.
Accidents can easily happen in any workplace, ranging from falling from scaffolding on a construction site, tripping over an unsecured computer c‎able, or suffering an injury whilst restraining a violent prisoner. Regardless of the cause – a workplace accident can result in horrific injuries. Time off work to recover, specialist treatment, adjustments to home and family life and similar could all be necessary. Further, even if the employer has dedicated financial assistance for workplace injuries and resulting illnesses, being off work will result in a loss of earnings and financial stress and pressure.
However, if injured at work in an accident that was not ‎the employee’s fault, and certain criteria are met (such as the accident occurred within the last three years), then the injured employee can claim compensation for their injuries. In accordance with law, employers must have employer’s liability insurance, from which policies any workplace accident compensation‎ claims would be paid.
Often a key matter for workplace accident compensation litigation is causality. ‎If not the employee’s own fault, then in most cases the employer will be held liable under law for the accident and the ensuing injuries at work. Legally, it was the employer’s negligence in providing a safe workplace, and taking all reasonable measures, that was ultimately responsible for the accident, unless the facts of the case prove otherwise. The same rules bind all employers, from a small family business, to a multinational IT company, to the Civil Service and its various agencies and employees – such as Prison Officers.
By making their case mainly on a point of employment ‎law, the POA lawyers were probably trying to avoid the issue of Prison Officers being forbidden to strike. Whatever current legal thoughts and policies – taking into consideration human rights legislation – on Trade Unions and (un)lawful strikes, the case could have escalated into an awkward constitutional matter. With Mr Justice Kerr’s injunction, that is not the case – luckily. Equally luckily, the POA is content with the terms and intention of the injunction, and will not be launching a legal challenge against it.
Consequently, an awkward constitutional issue was resolved ‎- in favour of a workplace accident and personal injury point of law. But what relevance is this to the healthcare sector?
Doctors have over the last year staged their own protests and industrial action against government policies – in their case, in the infamous and very public row over new Junior Doctor contracts. That matter is resolved – very uneasily. The Junior Doctor’s contracts row is an issue waiting to come back like a boomerang upon the unfortunate Health Secretary Jeremy Hunt MP.
For the POA and prison officers, a swift strike, struck down by the courts, has got them to a position where the Home Office and Parliament are engaging in dialogue over the issue. After much media attention and several strikes (not declared illegal by the courts), and the BMA still has not fully resolved the issue. Maybe the doctors could learn from the prison guards here.
Of course, that is by far an overly simplistic comparison. The two issues are totally different, with different political factors at stake as well. Indeed, the groundswell of popular support has put the Department of Health in a tight corner regarding imposing the contracts – which could help resolve the matter. For the prison officers – although satisfied now, much work and discussion is needed to resolve their concerns.
Overall, both the BMA and the POA are acting to ensure the safety and wellbeing of their members. For that, both should remember that employers have a statutory duty of care towards their employees, and that employers (such as and including the government) ‎have to take all reasonable care to avoid accidents at work. As such – maybe both doctors and prison officers could apply personal injury law to their respective issues.
After all, no employer likes being sued for negligence over an accident at work.

Three Person IVF: Law vs Ethics

Legal permission ‎has finally been given for scientists to go ahead with three person IVF.

Officially called “early pronuclear transfer”, three person IVF involves removing the key genetic material of the parents from an embryo within hours of fertilisation. What is left behind is the woman’s faulty mitochondria. The removed parental DNA – containing all the key genes responsible for character and appearance and similar – is then transferred into another embryo. From a donor woman, that embryo has had its nucleus removed – but had healthy mitochondria. The nucleus is supplied by the removed parental DNA from the first embryo. Consequently, a healthy embryo is created, free of any genetic defects from the original embryo.

The key scientific matter here concerns mitochondria. Mitochondria are tiny structures which are outside the nucleus of a cell, and convert food into useable energy. Predisposed ‎genetic faults in the mitochondrial DNA (mDNA) mean that the human body overall has insufficient energy for certain key functions. The result of that can cause a large range of serious genetic illnesses, including muscle weakness and hearing loss. Faulty mitochondria, and bad mDNA, ‎are always passed on via the mother. Although causing illnesses, faulty mitochondria ‎is not currently believed to impact upon appearance or personality.

Three person IVF is seen as way to eliminate certain genetic disorders.  The UK is the first nation to approve what is a dynamic but controversial IVF procedure. Now that permission has been granted, further studies will be done at Newcastle University – under the watchful eyes of the Human Fertilisation & Embryology Authority (HFEA), the regulatory body for such scientific experiments.

The Newcastle University experiments would get the healthy mitochobdria and mDNA of a donor woman to combine with the DNA and embryo of the existing parents. The result would be babies potentially free of some genetic illnesses – and with 0.1% of their DNA from the donor woman. It is that genetic material which would be passed down to future generations, thus eliminating the genetic illness from the family.

Recent experiments ‎with three person IVF had led to safety concerns. Further, existing studies have shown that the technique does not always work; but this is in common with all IVF techniques. Earlier initial studies and experiments showed that the technique was not always successful. The amount of faulty mDNA transferred during the procedure was indded less than 2%, as predicted. However, one in five of the stem cell lines created via the technique actually showed an increase in carryover of defective DNA from the original embryo.‎

A  recent study conducted involving in excess of 500 eggs from 64 donor women established that the new procedure did not adversely affect the development of the embryo. Further, the procedure significantly reduced the amount of faulty mitochondria being passed on. Following that and related studies, the procedure is now considered to be safe by scientists – and the HFEA agrees. With the necessary permission now granted, work can begin in earnest in trialling, understanding and improving three person IVF. Aside from the safety fears, the process is controversial.

The issue here is whether scientists should actually be using three person IVF. Essentially, the scientists are playing God by using human genetics to eliminate some genetic disorders. Although the instinctive desire is to help those with such disorders, and to prevent those illnesses in future – should we be doing that?

The medical profession always seeks to heal people, to cure, and to ‘do no harm’. Doctors and scientists will agree that preventing children from inheriting such diseases is ideal, and a way forward for medicine, and science. However, the ethics and morality are questionable. Should science be interfering with a natural process? Should science be effectively ‘designing’ such illnesses out of embryos? What are the side effects of eliminating such inherited traits? After millenia of evolution, and adapting to our surroundings and environment, human beings are at a stage unique to our species. As a species, we can now define and control our own genetic composition. As a species, we can influence and determine the next stages of our evolution. As a species, we now have the science to control our own destiny, genetic or otherwise.

Although the Newcastle University scientists will only be researching three person IVF, under regulatory rules, it is but the next step, and the next stage, in acquiring knowledge and power – over ourselves, and our own genetics.

The question is whether we should actually be carrying out such experiments – and, further on, should we be applying such knowledge. Although improving individual’s lives, and designed to ensure individual health by tackling genetic illnesses – that will be at a cost to humanity as a species, as we interfere with, and alter, genetic material which we still understand so little about. Although intended to help – such medicine could actually harm.

The debate has yet to be had – but already science has advanced to make such genetic research and implementation a moral and ethical issue and minefield. With each scientific advancement – the questions only increase.

Setting aside the moral ambiguity, what is certain is that such research needs, currently, to be controlled and regulated. Oversight and a legal framework and basis is vital at this early stage of such dramatic research.

The HFEA and government has over the last year given legal permission for further studies and research into three person IVF. Although the law is allowing for such study, for medical science – what about the morality and ethics undying such research?

Rugby In Schools: The Conflicting Priorities For Public Health

Doctors recently voiced their concerns over rugby being played in schools across the United Kingdom and Ireland.

In a recent open letter to Ministers, over 70 academics, experts and doctors expressed their concerns over the risk of serious injury and concussions from this “high-impact collision sport”. Many doctors and public health officials consider tackling to be dangerous, and a cause of many a horrific injury. A suggestion from many doctors is to introduce touch rugby to schools instead, to minimise the risk of injury.

According to one signatory, Professor Allyson Pollock (from Queen Mary University of London), “if you’re thinking of a million children playing every year with this risk of injury you’re looking at 300,000 extra injuries a year, including up to 100,000 concussions.” However, whatever the medical profession thinks – sports and schools think differently. In response, former England rugby player Matt Perry stated that he himself “took a risk when I started rugby at seven and I’m afraid at school level if that tackle is taken out we’ve lost one of the great games and one of the great cultural games.”

Childhood Obesity vs Rugby Injuries

Childhood Obesity vs Rugby Injuries

Many sports and school leaders have come out in favour of rugby. Not only do they consider that it builds character, but life lessons learned are invaluable. Skills such as teamwork, leadership, sportsmanship, a healthy sense of competition, and a certain ruggedness are all developed. Of course, the world of professional rugby would be the first to admit to the dangers – but they say that is part of the benefits. Learning how to assess and deal with such risk, and learning how to face such risk and danger, is again another vital skill for the young to learn.Sports and schools do agree with the doctors that scrums and tackling can be dangerous – but disagree over any ban. As such, they are calling for proper training in tackling and scrums, and better Rugby technique, being taught, as opposed to an outright ban. Many point out that most injuries happen as a result of bad tackling, or poor technique. Teaching children how to play the sport properly, with proper techniques, would go a long way to eliminating a lot of the risks – to the relief of doctors.

The doctors, though, definitely (as always) have the best intentions, and the children’s’ interests at heart. Having had to deal with the aftermath of too many rugby tackles gone wrong, serious injuries in scrums, and often life altering damage done on the rugby pitch, their desire is to prevent any further serious sporting injuries among the youth of today. Banning rugby in favour of touch rugby or similar is absolutely in the best interests of safety, and will prevent many further injuries.

Most sports, from football to badminton, squash to athletics, carry with them an element of danger and risk. As such, where does this end? Could football be considered to dangerous and risky? What about tennis? The very traditional English sport of cricket would also be a prime candidate to be banned or made easier (soft cricket balls?). Sports by their nature often carry a degree of risk. As sportsmen and women, and teachers, have been saying in response, that is a great part of what builds young character and spirit: that reaction to such risk, and facing and assessing what can be quite dangerous. Aside from that, many life lessons are learned whilst playing competitive sports – from camaraderie to sportsmanship.

Further, it is well known that childhood obesity rates continue to rise – and continues to be a great social and national health issue. More and more children are turning to the XBox and tablet as opposed to the rugby ball and sports. The 21st century electronic revolution is changing the habits of thousands of children from the outdoors, sports, and team pursuits into sedentary, isolated computer based pursuits. Sports and PT in schools are often the only time for many children that they will actually be physically active. Of course, there are many thousands of children and teenagers who embrace sports, outdoor pursuits, martial arts, the uniformed services and similar – but there are many more thousands who do not.

Faced with such a cultural problem amongst the young, doctors and schools are united in trying to reverse the trend, and to address what is a worrying public health trend. If left unchecked, the current generation of children are more likely to develop medical issues such as diabetes, heart conditions, and some forms of cancer, than in previous generations. Those diseases will also manifest themselves much younger. Schools, youth charities and organisations, and relevant public health initiatives are all working hard to address this. As such, this call by leading doctors to ban rugby seems like an own try or conversion.

By replacing rugby with touch rugby, doctors are potentially sacrificing one set of public health goals for another. If such competitive and ‘dangerous’ sports are banned – then potentially it will be harder to encourage good physical fitness habits amongst the young.

Whilst it is important that rugby and other sports are promoted and not banned, this call by many in the medical profession does highlight the inherent risks and choices surrounding public health. Often, public health officials and doctors have to make decisions which are in the best interests of as many people as possible.

Those decisions will not always be popular – but they have to be made, to the sake of protecting and safeguarding public health issues and concerns, whatever they may be. Indeed, with that in mind, sometimes public health might contradict itself, as is the case here.

Although banning rugby (and potentially other sports) seems absurd and contrary to trying to promote physical activity and better public health – it does help to tackle another set of public health concerns, namely serious sporting injuries.

Public health officials and doctors are often (as here) faced with conflicting priorities – which are often both contradictory, but complementary at the same time. It can be difficult to balance such conflicting priorities – but a middle ground has to be found.

At time of writing, England are currently one of the leaders in the Six Nations Rugby, following their victory over Wales. As such, there is all the more reason to inspire and develop the next generation of Will Carling’s, Jonny Wilkinson’s, Gethin Jenkinson’s, and Brian O’Driscoll’s – as opposed to making the sport safer and more risk averse.

Subtle Change For Government As Alcohol Guidelines Change Drastically

As many have finished recovering from festive and New Year hangovers, 2016 sees the government guidelines on alcohol and drinking change. The limits have been greatly reduced, and come with a stern warning that no level of alcohol is safe.
The new limits are quite simple, and gender neutral. For both men and women, the new guidelines state that they should drink no more than 14 units over the course of three or more days. That is equivalent to a bottle and half of wine over that time, or six pints. Alternatively, it is 14 shots of spirits over a week.

Those who do drink are advised to drink “moderately” over three days, remaining sober the other days. People are strongly advised against “storing up” their units, and drinking the equivalent of 14 units in one go.

For pregnant women, the advice has changes as well. The new rules strongly forbid drinking any alcohol at any time whilst pregnant. Following the introduction of the new guidelines, the Chief Medical Officer for England, Professor Dame Sally Davies, said that “I want pregnant women to be very clear that they should avoid alcohol as a precaution. Although the risk of harm to the baby is low if they have drunk small amounts of alcohol before becoming aware of the pregnancy, there is no ‘safe’ level of alcohol to drink when you are pregnant.”

In a significant change, the new guidelines state clearly that there is no drinking level at all. In an effort to avoid alcohol related diseases and cancers, no amount of regular drinking, regardless of how low, is considered safe now. Again quoting from Dame Sally Davies, the new rules reflect that “drinking any level of alcohol regularly carries a health risk for anyone, but if men and women limit their intake to no more than 14 units a week it keeps the risk of illness like cancer and liver disease low.”

The old guidelines concerning alcohol and drinking have been in existence for 21 years, and have remained unchanged. Aside from a few alterations to the guidance for young people and pregnant women over that time, the advice has always been to keep your drinking to 3-4 units a day (men) and 2-3 units a day (women), and to keep your drinking throughout the week to 21 units, with millions being lectured on those figures regularly.

Since the initial government guidelines on alcohol were established in 1995, doctors have always advocated and recommended that over a week men and women should limit themselves to 21 and 14 units respectively. Essentially, these new guidelines are finally catching up with doctors’ recommendations- and interpreting those recommendations very strictly.

Echoing the new viewpoint that no level of alcohol drinking is safe, according to Professor Matt Field of the University of Liverpool “any amount of drinking is associated with increased risk of a number of diseases; the often-reported protective effects will not apply to the majority of people and where they do apply, they refer to very low levels of drinking. So, any amount of alcohol consumption carries some risk… It is also important to emphasise why this advice is being issued. This is not about telling people what to do. Instead, people have a right to accurate information about alcohol and its health risks so that they can make informed decisions about their drinking behaviour.”

In that last statement of Professor Field’s, there is a great departure from government guidelines previously seen. The previous guidelines were seen as mandatory and expected – these new guidelines are not.

The Department of Health (DoH) and Dame Sally Davies take care to point out that these new guidelines have been set out do the public can make an “informed decision” regarding alcohol and drinking. They are not expected to be considered as rigid and mandated as the old rules.  The guidelines are merely for informative and advisory purpose.

In a democracy, there is only a certain level to which the government can actively interfere in the ordinary lives of the public. Although in some cases (e.g. national security), obviously the State has a lot of power and control – but in everyday life, there is always a limit as to what the State can dictate to the public, and tell the public how to behave and act. Interfering in the private life of the average citizen is contrary to the independence and freedom of choice that that citizen has.

In the US, landmark decisions such as Roe v Wade (1973) and Doe v Bolton (1973) clearly set out to what extent the state can interfere in the lives of the ordinary citizen. Sadly, in the UK, there is no such landmark case, or statute. It is constitutional convention in its entire complex, unsaid mystique that governs that matter.

Although the alcohol recommendations have been set out with the best of intentions – there is an undemocratic element to them. Although the rules are there for public safety, and with the public health in mind, and for the overall benefit of the public- it is absolutely not the government’s place to set out how much the public can and cannot drink. That is a personal freedom and choice that every citizen makes individually. Although such choices regularly end very badly for many – that is their choice, and right, which the government should not interfere with.

As such, by stating clearly that the new guidelines are for the purposes of information only, and for people to be informed regarding their drinking, Dame Sally and the DoH have avoided such a democratic and legal pitfall. They have set out the latest scientific and medical facts and opinions, and set out what is for the greater good of public health. However, they are absolutely not telling the public what to do, and not overstepping the mark of a democratic government.

Wine : Undemocratic?

Wine : Undemocratic?

That in itself shows a subtle but marked policy shift for social and public health. The last decade has seen a ban on smoking in public places, a ban ion smoking in cars with children, increasingly rough laws and regulations concerning drinking, increased regulation and of the alcohol industry, and increased duty on some alcohol, and most recently making driving whilst under the influence of drugs a criminal offence. The spirit of those and other regulations is very much mandatory: those matters were all banned or forbidden, or controlled for the greater of good of public health. Perhaps slightly undemocratic in their interference with everyday life- but absolutely for the benefit, safety and protection of the public, and putting public health first.

However, with these new guidelines being merely advisory- maybe that shows a slight in the government’s approach towards social issues relating to public health. Perhaps a more advisory, as opposed to mandate, approach will help to tackle such social and public health issues. A more advisory approach is also more democratic and legal. As such, the subtle shift in government approach is welcome.

Will people actually listen to the new guidelines? With so many used to the old limits, it will take time for the British public to get used the new guidelines. Further, the new guidelines fail to address the most significant issue related to alcohol. In many cases, it is not drinking which is the problem – but addiction.

Maybe tackling addition should be the next project of the Department of Health and Public Health England.

Montgomery: Informed Consent for Modern Medical Negligence Law

There are several leading cases in medical negligence law, which over the decades have given rise to legal tests and principles that govern medical negligence, and personal injuries arising from medical negligence. Once such case is Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. 

Sidaway set out the principle of informed consent in the UK jurisdiction; doctors need to inform patients of the risk of any procedure or operation. It was established that exact details are not needed, neither is an overly full description of the procedure or remedy, and every single possible side effect. What is necessary under Sidaway is for the doctor to provide the patient with sufficient information, and in sufficient detail, for patients to come to a considered opinion, and to make an informed choice, as to any medical risk. It is also up to the patient to ask and enquire regarding their healthcare and treatment.

As mentioned in a previous, post (http://www.legalseagull.org/medical-law/from-sidaway-to-montgomery-informed-consent-revised/ ) the 2015 case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 revisited Sidaway, and called the traditional medical negligence test into question. Many feel that the scope of Sidaway may be limited as a result of the verdict in Montgomery.

In 1999, Mrs Nadine Montgomery gave birth to a baby boy at Bellshill Maternity Hospital, Lanarkshire, in Scotland. She alleges that her obstetrician, Dr McLellan, failed to sufficiently warn her regarding the risks inherent in her pregnancy and the birth of her child. Mrs Montgomery has diabetes; it is established medical fact that women with diabetes are more likely to have large babies. With that, there is a subsequent 9% – 10% risk the of baby developing shoulder dystocia- where the baby’s shoulders are too large to pass through the pelvis, and are damaged. Shoulder dystocia poses several health risks upon both mother and baby. Although raising concerns regarding delivery, Dr McLellan had not fully informed Mrs Montgomery of the risks, it not being her policy to do so with diabetic mothers. In Dr McLellan’s professional opinion, the risk to the baby of shoulder dystocia was small, but diabetic mothers might very well opt for a caesarean section if told of the risks, which was not in the mother’s interests normally. During delivery, Mrs Montgomery’s child was born with serious disabilities.

Mrs Montgomery pursued a claim of medical negligence through the Scottish Courts, who found for NHS Scotland that the various aspects of medical negligence law (with reservations) had indeed been met; Dr McLellan had acted professionally, and in line with medical and legal practice.

Appealing the verdict, the case made its way from Scotland to London, and before the Supreme Court. In their (nearly unanimous) verdict, the Supreme Court realised that times have changed since the paternalistic doctor/patient relationship of previous years. These days, patients are encouraged to understand fully what the treatments and procedures for their healthcare are- and what the consequences could be. It is not uncommon for doctors to be challenged in their medical opinions, or for frank discussions to be had, as patients get more involved in their medical treatment. Amidst an era of doctor/patient consensus, in their (near unanimous) verdict, Lord Kerr and Lord Reed found that informed consent is still necessary- similar to Sidaway. Aside from that similarity, the Judges seemingly moved away from Sidaway- and found for Mrs Montgomery.

The legal issue is that Sidaway did not set out that level of knowledge required for informed consent to be considered. This was with the good of the patient in mind, and with the intention of avoiding worry or concern on the part of the patient. That has changed, with Montgomery setting on a defined footing the nature of informed consent. Applying Montgomery, as much detail and information as is required with each individual patient is seemingly the standard now for informed consent. It is not sufficient to give the patient just enough information; patients must now be fully informed as regards their healthcare and treatment.

This is something that doctors have known about, and been practicing, for the last decade or so. In this instance, Montgomery is a case of the law catching up with standard practice, not the other way round. Indeed, Lords Reed and Kerr tacitly acknowledge this. Further, the case does raise an interesting point. Although the nature of informed consent, as defined in Montgomery, is praiseworthy, and of benefit to both patients and doctors- should judges be playing doctors? Should judges be deciding exactly what doctors need to tell patients, and what should be withheld? That, however, is matter for another post.

Montgomery is further one of those case where the Supreme Court was effectively asked to apply the 1966 Practice Statement. Under the 1966 Practice Statement, it was established that the House of Lords (now Supreme Court) could derogate and move away from a verdict of the House of Lords. This was with the intention and idea of allowing the law to develop, and to modernise as times, legal issues, and society changes. Since 1966, the House of Lords has been surprisingly eager to use the 1966 Practice Statement as and when is required to update the law, and to move away from archaic legal concepts. Montgomery is but one of those cases.

In this regard, Montgomery is similar to the infamous tort law shipping case of The Wagon Mound (No1). That case originated in Australia- and established the famous test for remoteness of damage that is now one of the elements of a claim under tort law. When the case came before the Privy Council, the existing test for remoteness arose from the case of Re Polemis. When The Wagon Mound was handed down, Viscount Simonds in the House of Lords stated that the reasoning in Re Polemis was “out of the current of contemporary thought.” Under Re Polemis, a defendant was held accountable for anything that happened as a result of their actions in breach of a duty of care. Under the Wagon Mound, a defendant is only liable for anything arising from such an action in breach if that consequence is reasonably foreseeable. It must he noted that, although the Wagon Mound test is favoured, and used, the reasoning and test in Re Polemis is still considered binding legal precedent.

It is undoubtedly useful that the 1966 Practice Statement exists; this allows the law to be altered, and therefore kept up to date. The House of Lords, and now Supreme Court, has used the Practice Statement to good effect over the years. An issue here is- how far does the Supreme Court go with the Practice Statement? How drastically can Their Lordships derogate from their former verdicts? And to what potential detriment to those affected?

In the case of Montgomery, though, such a change is for the better. Doctors are now legally obliged to fully advise patients regarding their health and treatment. Not only is this more professional- but helps to prevent medical negligence from occurring, and accident compensation claims for medical related injuries. Being fully advised prior to any medical or surgical procedures will help to avoid errors which could lead to accidents such as medical negligence.

As medicine and healthcare advances, surgical and medical techniques and procedures are increasing modern and complicated. In many cases, there may be several options open to the patient. As such, it is regretfully easy for a mistake to be made, leading to medical negligence. An increased emphasis on informed consent can only help to reduce the risks of such accidents – and to bring medical negligence and personal injury law in line with the advances of modern medicine.

Medical Ethics, Embryos & Divorce

Following on from the Californian case mentioned in the previous post, the court formalities are concluding over in sunny San Francisco. Amidst tough questioning, and emotive arguments from both sides, Superior Court Judge Anne-Christine Massullo has yet to retire to consider her verdict.

Even though the case has not concluded, let alone been decided upon (or even appealed), the whole litigation involving Mr Stephen Findley and Dr Mimi Lee and the fate of their embryos joins the (growing) canon of case law in this area. Indirectly, the whole legal matter throws up several issues.

The case may be straightforward matter of divorce, and contractual obligations- but the underlying issues are far greater. At the key is that aforementioned issue of personal privacy, and the fundamental rights and freedoms that every American has regarding state control.

A major matter raised is that the litigation in recent years concerning frozen embryos (sometimes including feuding parents) revisits Roe v Wade, and brings that key case into the 21st century. The age old concern of personal privacy and control versus state control us revisited – but by deciding what happens to embryos. Personal privacy (as referenced in the Bill of Rights) is still of great importance- as Edward Snowden and NSA/GCHQ eavesdropping shows quite clearly. Although the case might be one for the divorce courts, or for medical lawyers- the underlying principle of personal control and privacy is still of the greatest legal importance.

A verdict in Dr Lee’s favour would allow her the “unfettered right” to do whatever she wanted with the embryos; in legal proceedings she has repeatedly referred to them as her “children”. However, she would be able to choose exactly when to use the embryos –resulting in grave unfairness to Mr Findley, who could be informed, without his consent, at any time, that he is to be a father with his ex-wife. Indeed, the court has taken great consideration of Mr Findley’s right to choose- whether to be a parent or not. That is equally as important as Dr Lee’s right to use the embryos. It is question of balancing two conflicting sets of legal rights- which bizarrely are concerned with the same thing, the right to choose, and the rights to personal freedom and privacy.

Another point is the exact nature of embryos created in a lab, using the latest IVF techniques, and modern science. Embryos, and related genetic material, are rapidly being considered to be property (either personal or intellectual) as opposed to life, or the building blocks of human life. To take the legal disputes in recent years in America concerning feuding parents and embryos, increasingly the divorce courts have seen the embryos as property to be allocated to one parent or another. Further, the clinics who created the embryos have often cited their contractual relationship and involvement with the embryos. In the whole proves, in the many varied legal situations that have arisen (divorce, business or contractual), the embryos have ceased to be seen as Life- and more as an inanimate object, property whose fate rests with others.

The couple signed an agreement with the fertility clinic stating that the embryos would be destroyed if there was any divorce. As such, the fertility clinic has stepped up to assert its contractual rights. Dr Lee, a trained medical doctor, has been criticised in court for not realising the full extent and nature of the simple agreement that the couple initially signed. That aside, there is the moral and ethical question as to whether the fate of the embryos, essentially Life, should be reduced to a simple contractual, business agreement, and set of contractual laws an obligations. Those arguments, however moral and philosophical, are beyond the scope of Judge Massullo’s courtroom.

It is a very sad state of affairs, but is becoming more and more common. However, with religious and abortion sentiments still controversial and a heated topic of debate throughout society and the political elite- embryos, abortion and similar matters will still be humanised, and seen as more than property. Despite Roe v Wade, and other cases, the abortion debate still resounds throughout America- bringing with it matters concerning IVF and embryos. In recognition of the need to humanise the embryos, and not see them as mere property, Judge Massullo was moved to state during closing arguments that “It’s a hard issue… Describing it as property doesn’t really capture what this is [because the embryos…] could result in the birth of a child.”

With advances in fertility treatment, genetics, IVF and related areas of medicine, morally, ethically and legally there is a massive grey area where there is both little understanding, and even less regulations, oversight, and legal guidance. These medical advances are only set to become greater as science increases our knowledge and understanding. Whatever we can do in labs and hospitals regarding the birth and creation of human life currently- we are stepping into the unknown as regards the future powers and potential of such science and medicine. Although many disagree as to such research, and the eventual use and application of such knowledge, there is almost universal consensus that greater oversight is needed, and a legal framework is needed now, to protect ourselves from future science. After all, one medical breakthrough, one scientific revolution, could be our downfall.

Before such a legal framework is even contemplated, there remains the matter of Findley v Lee. In this case, probably Judge Massullo herself wishes that she has greater legal guidance and precedent. The precedent that she does have sets privacy of person, and personal rights, of an individual over that of the rights of the (hypothetical) child. The precedent that she has means that the state can only rule and intervene so far in such cases.

For Judge Massullo and the docket before her, such guidance is sufficient. For a future judge, with a future case of medical and scientific ethics and law before them- that case law will not be sufficient.

Judge Massullo, and other Judges in the US hearing similar cases, have to consider that what they deicide will help to guide those future judges. Her generation of judges is creating case law and precedent for those future judges, and their future cases of unknown medical breakthroughs and advances.

Although this generation of judges is acutely aware of that- how can you hand down a verdict to protect against future medical advances that have not yet come to pass?

Divorce & Medical Law: Roe v Wade for the 21st Century

Roe v Wade set legal precedent across the United States of America.

Although the landmark case involved in an abortion matter, by the time the case had reached the federal Supreme Court, it effectively set out and discussed the limits of power and control that the US executive and government has over the average citizen. Its impact and effects are still felt today.

Although by no means as significant as Roe v Wade 410 U.S. 113 (1973), a case currently being decided by the Supreme Court in California will be similarly significant and binding, and will itself be guided in some measure by Roe v Wade. The case before the Supreme Court involves frozen embryos, and feuding parents.

Given advances in IVF treatment, fertility treatment, creating embryos from donors, and an abundance of medical technology, for childless couples such medical advances have been very welcome. Indeed, many couples are choosing to resort to such treatments. It was only inevitable that such medical treatments would become the subject of legal disputes.

Indeed, in the US, several states have heard cases concerning this very matter. With the complicated state and federal legal system that characterises the US, there is yet to be any definitive nationwide guide or legalisation; rather, the matter is arbitrated on a state by state basis. Further to that, not every state has the legislation or case law in place to adjudicate in such cases- California being one of those states.

Business executive Stephen Findley married Dr Mimi Lee in 2010. Shortly before their marriage, she was diagnosed with breast cancer. The cancer and the subsequent treatment mad pregnancy unwise, and left Dr Lee infertile. However, prior to their marriage and her (successful) course of treatment, the couple created several embryos, and had them frozen, so that they could have biological children together at a later date. Additionally, at the fertility clinic, an agreement was signed by both of them stating that the embryos would be destroyed in the event of a divorce.

Having known each other for years, both knew that, whilst Mr Findley wanted children, Dr Lee did not. The couple divorced in 2013, with Mr Findley on the record as saying that he felt “stepped on and run over” by his now ex-wife throughout their marriage. During the divorce, the embryos became contentious issues, as if they were an asset such as money or property to be discussed and divided between the separating couple and their lawyers. Indeed, Mr. Findley claims that during divorce proceedings, Dr Lee put a financial value on the embryos. He wants them to be destroyed, as per the prior agreement. However, Dr Lee is now claiming that the embryos are now her only way to have biological children.

In court filings, Dr Lee wants ‘custody’ and use of the embryos, against her ex –husband’s wishes. According to her lawyer, the embryos are their joint genetic property. The case has been heard by San Francisco Superior Court Judge Anne-Christine Massullo, who is expected to hand down her verdict within a few weeks. It is expected that the losing side will appeal.

 

 

The case will set legal precedent in California, which currently has little or no legislation or case law in such matters. However, Judge Massullo can look across state lines, and consider prior leading cases in other states.

 

 

Related cases are Davis v Davis (1993, Tennessee), Kass v Kass (1998, New York) and A.Z. v. B.Z. (2000, Massachusetts). In those, the story was very similar; the wife wanted to use the frozen embryos, but the husband did not. Citing different legal precedents and grounds, the various states all found the same way: the father’s wishes were upheld, and the women were unable to use the embryos against the father’s wishes. Even in the materially different case of Litowitz v. Litowitz (2002, Washington), the legal arguments used were the same.

What the courts were working towards was the idea that either genetic parent has the absolute right to prevent any frozen embryo being brought to term, and can forbid the other parent from doing just that. That right of veto is seemingly the most important right, over that of another person to have a child, and the contractual rights that the fertility clinics might have. Although virtually nothing is a legal absolute- the wording and arguments in the various cases nationwide suggests that that right of veto is as close to a legal absolute as possible.

In the midst of this, and sitting uncomfortably in the background, is Roe v Wade, with its sibling Doe v Bolton. Firstly, the courts are bound by those cases as regards interfering with the choices and decisions of US citizens, and the right to privacy.

Both of the cases concerned abortions; by an extension of medical law, cases involving frozen embryos often draw upon legal arguments concerning abortion rights and wrongs. In most abortion cases, the mother’s right to control her own body, and her right to privacy, overrides other legal and moral arguments. With frozen embryo cases, that principal is also seen as of first importance- unless the other spouse vetoes the use of the embryos.

It is that right to privacy of person, set out in the Bill of Rights, that emerges to defeat all other arguments and rights.

Although Judge Massullo has yet to hand down her verdict, it is highly likely that she will rule in favour of the father, and the c0ntractula rights of the fertility clinic. However, it is unlikely that the embryos will be destroyed any time soon, as it is likely that Dr Lee will appeal. The case is still being deliberated upon at time of writing.

Of course the case of Findley v Lee is a Californian case. However, the issues raised, that of frozen embryos and parental rights, are global. The case, and its related cases, does raise the question; what would the verdict be if the case appeared before the High Court in London, UK?

From Sidaway to Montgomery: Informed Consent Revised

Heard recently by the Supreme Court, the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 revisited many old grounds of medical law. Old principles concerning the doctor/patient relationship were raised, as were issues of causation, medical opinion and advise. The case law canon is this regard is already weighty- with Montgomery now adding to that list.

In 1999, Mrs Nadine Montgomery gave birth to a baby boy in Lanarkshire. The boy was born severely disabled. In subsequent legal proceedings, Mrs Montgomery attributed the disabilities to the negligence of her gynaecologist, Dr Dina McLellan, who had delivered the baby, and been her gynaecologist throughout.

Two claims of negligence were advanced against Dr McLellan. Firstly, it was stated that Dr McLellan should have given adequate advice concerning the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) in a regular birth, and should have advised a caesarean section. The other claim of negligence was that Dr McLellan had failed to perform a caesarean section after medical evidence suggested that that might have been the best course of action medically.

Lord Bannatyne, the Lord Ordinary, rejected both claims. In his 2010 ruling, he found that even if advised to do so, the patient would not have elected to have a caesarean section. He also gave considerable weight to Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871. Under that landmark ruling, a failure to inform the patient of an extremely low or virtually non-existent risk or adverse side effect would be in line with good medical practice if that was in supported by a respectable body of medical opinion, as per the Bolam test.

With Sidaway considered, both the Court of Session in 2010 and the Scottish Inner House in 2013 rejected the appeals. The case made its laborious way from Scotland to London, and ended up before the Supreme Court.

Throughout the proceedings, Mrs Montgomery’s diabetes was raised. It is medical fact that women with diabetes are more likely to have large babies; consequently, in labour there is a 9%- 10% risk of the baby suffering from shoulder dystocia. Such a risk can be alleviated during labour, but health risks to both baby and mother. It was the policy of Dr McLellan, an experienced gynaecologist, not to routinely advise about the risks of shoulder dystocia, due to the very low risks attached to it for the baby, and the risks attendant with alternative procedures. However, if asked about it, she would routinely inform the patient. In acting in the best interest of mother and child, Dr McLellan’s considered medical opinion was not to routinely warn about shoulder dystopia.

In their joint verdict, Lord Reed and Lord Kerr spoke at length on the first ground of appeal; the lack of medical advice and information given by the gynaecologist. Straight away, the two judges admit that they are essentially being asked to move away from the leading case of Sidaway, and to essentially overturn a House of Lords ruling.

Indeed, Sidaway and its cousin Chester v Afshar [2004] features heavily in their 35 page verdict- as does a lengthy summary of the case facts, and the considerations of the lower courts that brought Montgomery from Lanarkshire to London. It is only at p.39, that an analysis of the case begins in earnest- with a detailed dissection of Sidaway itself. After finding numerous arguments and evidence to support Sidaway, and cases from around the Commonwealth that support that verdict, the judges also find that doctors can actually in some cases give too much information to patients; there is informed consent, then there is a level at which the patient’s level of detailed knowledge can potentially be detrimental to their decision making (p.74). However, it is clear that both judges consider that the doctor/patient relationship has advanced and changed since Sidaway in the 1980’s (p75 et seq), and that patients are now more consumers with rights, than passive patients. It is further noted that patients are able to inform themselves more regarding their ailments due to the Internet and similar resources, as knowledge has become more widespread- not just about medical matters.

In that way, the two judges slowly come full circle; after praising Sidaway, they start to slowly distance themselves from it. Indeed, they are seemingly seeking to update the very legal precedent set by Sidaway; whilst admitting that there are some times where a doctor still should withhold details of patient’s diagnosis or the risks of a medical procedure, the criteria for doing so has changed (p.88).

Returning to Montgomery, at p.94 et seq, Lord Reed and Lord Kerr apply their circuitous legal thinking to the facts of the case, dallying with causation along the way. At p.106 the judges wrap up their judgement with a crisp statement- that allows the appeal. Indeed, Lady Hale supplies an interesting and informative dissenting judgement, with her typical liberal approach. However, even she finds that she allows the appeal.

Sidaway, although not totally overturned, now ceases to become good and binding case law. Doctors should beware, and fully realises that that when it comes to advising patients, they may have to rethink their approach.

In some ways, Montgomery in itself is similar to NHS reforms. Reform after reform is planned concerning the health service. Each reform, be it more powers for GP’s, efforts to streamline administration practices, or anything in between, are considered at length, announced with much fanfare by hopeful Health Secretaries- then criticised and roundly denounced by the medical profession, the media, patients groups, and everyone else. Indeed, each Health Secretary starts with such great promise- only to be laid into by doctors and the media at large during their time in charge, with most past Secretaries ending up quite unpopular amongst the medical profession.

Reform follows reform. Scandals (such as West Staffs) come and go with regularity similar to the banking sector. Still the NHS carries on, creaking at the seams, needing more and more public money and government support. When (often needed) private enterprises, resources and capital is introduced- such practices are roundly condemned, and seen as a ‘creeping privatisation’ of a beloved national institution.

In Montgomery, medical law has indeed changed regarding informed consent. Although admitting that old practices should remain, for the sake of progress, the Supreme Court essentially did away with a key point of medical law. What Health Secretaries past and present have been trying to do over many years- the Supreme Court did with one verdict. Mr Hunt could learn a few things from Lord reed and Lord Kerr if he himself wishes to institute change to the NHS.

Since Sidaway was handed down in 1985, there has been little challenge to it, although some similar cases have been heard by the House of Lords since. It is only now, 30 years later that it has been significantly altered. That is in contrast to the NHS. Despite more than 50 years of government meddling and reforms, it remains the same- a greatly troubled, administrative heavy, cumbersome, much welcomed and loved British institution, similar in its complexity and bizarreness as that other institution, the rule of law.

A Scottish Solution to the NHS- but a headache for the West Lothian Question

A public health service is designed to be a public service, dealing with healthcare issues, and providing everyday care and treatment for the public as a whole.

Such a simple principle has seemingly been forgotten in recent months, as the much loved and much criticised NHS has been endlessly debated about and discussed to secure votes and support from Parliament and public alike. Many being treated by the NHS quite often are not overly concerned about the politics and financial crises facing the public health service: all they want is to see a doctor, be cared for by a nurse, and to receive the healthcare and treatment that they need.

As May 7th draws ever near, the NHS has become a political battleground, with prospective MP’s stating their support and ever more crazy measures to fund and secure the NHS for the future. However, it was way before Parliament was dissolved, and the historic seven way leader broadcast that heralded the start of election season, that the discussions over the future of the NHS began, from all corners of the British Isles- including Scotland.

After the Lib Dem ‘bounce’ prior to the 2010 election, this 2015 election has seen the similar meteoric rise of the SNP, invigorated by their success in the 2014 Scottish referendum. Following on from 2014, and a very credible and powerful performance in the leader’s debates, the SNP has seen increasing support- even from English voters. The irony is that whatever voters from the rest of the British Isles might think of Ms Sturgeon, only 5.2 million (those in Scotland) out of a total population of 64.1 million will actually be able to vote for her party, either ‘aye’ or ‘nae’.Such limits imposed on the reach of the SNP have not deterred Ms Sturgeon from attempting to influence the Westminster scene- with healthcare being one matter in question.

In Scotland, healthcare is a devolved issue, and is overseen by the Scottish Parliament in Holyrood. The NHS operates in Scotland- but as a separate entity, NHS Scotland. The SNP have remained committed to securing the best deal for the NHS, and is protecting NHS Scotland, and other public healthcare agencies and matters, for future Scots. To that extent, before the ink was even dry on draft agreements following the 2014 referendum, Ms Sturgeon stated that the SNP would vote if necessary on matters relevant to English healthcare, and the NHS and related matters in Westminster.

In an interview given to veteran political reporter Nick Robinson (recently back at the BBC following successful cancer treatment) in January, Ms Sturgeon was quite blunt: “[The SNP] would be prepared to vote on matters of English health because that has a direct impact potential on Scotland’s budget…So, if there was a vote in the House of Commons to repeal the privatisation of the health service that has been seen in England, we would vote for that because that would help to protect Scotland’s budget.”

She went on to admit that it was a matter of Scottish self-interest, but also mentioned the simple fact that any further cuts or privatisation to the NHS overall would have a “direct knock-on effect to Scotland’s budget and our ability to protect the funding of Scotland’s health service”.

Although any effort to stop the creeping privatisation of the NHS, to secure the necessary funding it so desperately needs, and to train and recruit healthcare professionals, are welcome, this determination by the SNP to protect such a British institution opens up the whole West Lothian question yet again. It is faintly absurd that the only party ready to back up their commitment to protect the NHS with the drastic action that is necessary (the SNP MP’s in Westminster effectively voting and debating on matters out of their jurisdiction) is a party that only a small part of the nation can vote for.

Following national sentiments regarding more power for the regions, and moves towards further devolution and potential federalisation of the UK, the prospects of Scottish MP’s voting on English issues raises the question of “English votes for English laws”. In country whose legal and democratic principles are based on fairness, why is it that five million Scots can have both great autonomy and virtual self-government, and a say in the public and government matters of the remaining 59 million British? Furthermore, the British can have virtually no say in the matters of that five million. Although that is putting a delicate matter too simplistically, recent moves over the last decade towards devolution have led towards such a political situation arising.

Similar to perceptions of the NHS, there is very much a sentiment that the West Lothian question is a public issue that is a problem. For both the NHS and the West Lothian question, many admit that there is no easy solution. The only consensus seemingly achieved for both issues is the acknowledgement of the issue itself. As regards a solution- there is much talk, debate and discussion- but few if any moves to resolve either actual issue.

Currently, the SNP has six MP’s in Westminster. Overall, there are 59 Scottish seats to fill this Election. Pundits, polls and commentators are all in agreement that the SNP could secure most of those seats following their recent successes. Some figures suggest that up to 55 of those seats could end up with SNP MP’s. Such a large number of MP’s following May 7th that Westminster will undoubtedly have a significant impact on national laws and politics, both in their native Scotland and throughout the British Isles. Although strongly denied by the SNP leadership, power sharing or coalition agreements could be necessary if a hung parliament is returned to power yet again.

Although democracy is supposed to favour the majority of public opinion- in this matter, the NHS could be safeguarded by a minority of voters, in an ironic result of the British political system. However, it must be stated that all the political parties have put forward their own plans and schemes to ‘save the NHS’, each as implausible and unrealistic as the other. Ironically, the unfairness of the West Lothian question, and belligerent Scottish nationalism, could be the best way to safeguard the NHS.

As the debate, discussion and political point scoring continues, the NHS continues to provide the amazing healthcare it does, and treating the patients it does, uncertain of its own future.

The Future and Realities of A Privatised NHS

Amidst an upcoming general election, the NHS has become a major battlefield. Many agree that it is vital that the principle of a free health service, and healthcare freely available to all, are vital. Many strongly believe in and want the nearly 70 year experiment to continue relatively unchanged. However, amidst financial pressure from government (despite the NHS budget being ring fenced and protected on numerous occasions), and a Byzantine and labyrinthine organization and administration system, that dream is under threat as never before.

Such outsourcing in the NHS is nothing new; it has been happening for the last 15 years or so, under both Conservative and Labour governments. Although not necessarily front line patient care or casualty services, many medical and patient facing services have increasingly been given to private companies. In addition, many functions such as IT, medical (and other) supplies, catering, and similar are also increasingly being performed by private companies. Indeed, Department of Health figures show that NHS money spent on such private outsourcing has increased from 2.8% in 2006- 07, to 6.1% in 2013-14. Further figures indicate that the private health sector’s turnover from public contracts has risen from £6.9bn in 2010 to £12.2bn in 2013. The NHS Confederation has stated previously the financial benefits to the health service overall of divesting the public health service of certain patient facing and support functions. Furthermore, such outsourcing has proved efficient and beneficial (administration, some medical tests, etc), and has shown the efficiencies and resources of the private sector, and used those benefits for a public service.

For a long time, the NHS has been a mixture of public, private and voluntary services and providers working together. As such, this creeping privatisation is of little or no surprise to the health sector. Indeed, GP’s (the essential backbone of the NHS) are themselves not government employees, rather independent private contractors to the NHS. However, amidst the slow but inevitable moves towards privatisation, Hinchingbrooke Hospital in Cambridgeshire and private healthcare company Circle Holdings show the flaws behind any moves towards a total privatisation.

2009 saw Hinchingbrooke Hospital burdened with £40m of debt, and failing to provide adequate healthcare. As such, the Labour government made the significant decision to bring in a private company to manage the hospital. Following a bidding process, it was the current Coalition government that in 2011 awarded the contract to Circle Holdings, and oversaw the first ever handover of a public hospital into private ownership, as the hospital faced closure by the Department of Health. Circle has been involved in running and providing public healthcare in other places; the company manages private hospitals in Reading and Bath (both of which accept NHS patients), and runs NHS treatment centres in Nottingham and Bedfordshire. Despite that experience, Circle’s business models and operations proved unequal to the demands of a public NHS hospital.

Circle took on the debts of the previous incarnation of Hinchingbrooke, and payments were made by Circle to the NHS Trust, totalling nearly £4.8m. The main problem in recent years was that Accident & Emergency numbers soared, and such resources were stressed, according to Circle, putting pressure on resources and money overall. There was also a lack of care places for patients awaiting discharge. Further, funding had been cut by just over 10% over the last financial year.

A Care Quality Commission (CQC) inspection of January 2015 found significant shortcomings. Many departments were found to be performing well, but some departments, particularly Accident & Emergency services, were found to be failing. Overall, Hinchingbrooke was labelled as inadequate by the CQC, and recommended to be put into special measures. Amidst all of those factors, January saw Circle end its ten year contract early, and state its intention to withdraw. It will probably still be eligible for final support payments of an estimated £169,000. Clauses in the contract with the NHS Trust state that Circle can withdraw from the franchise if the money invested by Circle into the hospital exceeded £5m. Spokesmen and executives from Circle have expressed their regret at the difficult decision they had to make, stating that continuing to run the hospital was ‘unsustainable.’

The Department of Health has been at pains to stress that there would be minimum disruption to patient care in the transition back to public ownership. In response to the withdrawal of the private company, Shadow Health Secretary Andy Burnham stated that “patients who rely on Hinchingbrooke will be worried about their hospital following this announcement… It was the decision of the Coalition in November 2011 to appoint Circle and they must take responsibility… The government were explicitly warned two years ago about the risky business model Circle were operating, but failed to take any action.”

The whole episode just goes to show the reality of private companies and a public health service. By their very nature, private companies (unless non-profit) are designed to generate money, to make a profit for the board, investors, and stakeholders (in Circle’s case that includes its employees, who have partial ownership). That is not the case for a public agency, where profit is secondary to providing public services. In the case of Hinchingbrooke, it was agreed that any profit in excess of £2m would be shared equally with the NHS. That shows that both structures and business models had to accept compromises to accommodate the alternative business structure.

However, the figures and results have shown that the rigour, resources, structure and discipline of a profit and result focussed private company can be effective in providing public services. Under Circle ownership, waiting times fell, and the hospital’s patient care and service provisions improved. However, financially, a private company running a public service was always going to be questionable, given the differing business structures involved, and the need for increasing amounts of money to provide a public service.

As the debate and furore over NHS services, funding, structure and patient care rumble on, many in government and elsewhere are seeing the rise of a privatised NHS as inevitable, and an increasing part of a public health service. Admittedly, privatised services are here to stay. Support functions and front line medical services will increasingly be awarded to private companies. However, Hinchingbrooke Hospital goes to show that there is only so far that the NHS can be privatised.

Unless a (North American) health insurance system is introduced (which would be widely unpopular amongst healthcare professionals, politicians, and the British public alike) hospitals and key services (such as casualty and A&E) will have to remain in the public domain. Whilst this is welcomed by all, amidst less public funding having to provide more public services, the financial pressure on a public health service will be immense- even if the NHS budget is ring fenced or protected.

Some predict that what increasingly will be seen will be a public/private partnership. Public healthcare services, particularly support services, will increasingly be operated by, run or be outsourced to, the private sector. However, key services and overall management and oversight will undoubtedly remain in the public sector. Consequently, it is predicted that public and private health services will increasingly operate and work together. Such a partnership would bring out the best of both the public and private sector, and would potentially benefit patients, and the public purse. However, the two differing business models could clash (as Hinchingbrooke showed), and the question of funding still remains unanswered. As is always the case, no system is perfect.

Despite the fiasco of Circle Holdings, as the General Election nears, it does teach a vital lesson- whatever the limitations and issues, whatever the pressures on public services and funding, the NHS, despite its failings and shortcomings, will prevail. Although the NHS will see more and more privatisation, the basic concept of a free and publicly funded health service is here to stay.