Health Sector news – Review of November 2019

Blake Morgan’s Health Sector legal experts have put together a round-up of the latest news within the area.

Welcome to the review of the November edition of Health Sector News, a digest of legal issues hitting the headlines in the health sector.

Decriminalisation of abortions in Northern Ireland

On the 22^nd of October abortion was decriminalised meaning Northern Irish women will no longer be limited to being able to terminate their pregnancy if there is a risk to their life or a risk of them suffering permanent mental or physical harm. A 6 week public consultation has begun to determine how abortion services will be implemented in the country from 31 March 2020, which is the date at which the UK Government is legally required to have implemented guidelines for abortion services. In the meantime those who require an abortion will have expenses such as transport, treatment costs and accommodation paid for by the UK Government. In addition, medical professionals in Northern Ireland will now be permitted to provide information on abortion services in the rest of the UK. All criminal proceedings against those facilitating or receiving abortions have been halted.

The consultation can be found here.

The consultation closes on 16 December and the Government has said that it welcomes comments from ‘anyone in Northern Ireland with an interest or view, particularly those directly impacted by the current law and any proposed changes and health professionals.’

Amazon’s Alexa and health data

The Department of Health and Amazon US (Amazon Digital Services LLC) have a health information licensing partnership whereby its artificial intelligence audio assistant Alexa can provide NHS verified answers to certain health queries such as ‘Alexa, how do I treat a migraine?’. The NHS website states that they are confident that Amazon will not use individuals’ voice question data for marketing purposes or share it with third parties. There are however concerns as to privacy, data protection issues and what Amazon may do with this data following reports in April that Amazon employees listen to Alexa recordings and the fact that Amazon has been moving more into the digital healthcare sector.

A Freedom of Information request was submitted by MedConfidential and a redacted copy of the agreement was provided by The Department of Health on 31 October 2019. Concerns have been raised that the agreement does not seem to restrict what can and cannot be done with the health data gathered. However, both the Department of Health and Amazon have stated that all data will be kept confidential and encrypted in English data centres.

The Department of Health’s full response to the Freedom of Information Request can be found here.

Health secretary considers bans from school for unvaccinated children

The Health Secretary Matt Hancock has taken legal advice from government lawyers as to the banning of unvaccinated children from school. This comes as a response to falling vaccination rates and to Britain losing its ‘measles-free’ status this summer. However healthcare experts are concerned that the move could backfire and that the bigger problem is the difficulty parents face in getting a doctor’s appointment and the lack of reminders. Germany has since passed legislation to make measles vaccinations compulsory for children, with fines of €2,500 for parents who fail to immunise their children, and the potential for children to be excluded from school.

Legal Challenge to Maternity Charges

The charity Maternity Action has launched judicial review proceedings against the Government in relation to the policy of charging migrant women for maternity services received in the UK. The charity argues that the government is in breach of the public sector equality duty as the charging has a disproportionate, negative impact on women and that the Government has not investigated this. Maternity services fall within ‘immediately necessary services’ therefore the maternity care will not be refused to migrant women, however the cost of treatment is up to £7,000. The charity claim the current exemptions to charges intended to cover vulnerable women are not working as they regularly hear from domestic abuse or sexual violence survivors who are also facing the charges.

A spokesperson for the Department of Health and Social Care has said:

“While we expect overseas visitors to contribute to the cost of their care just like British taxpayers do, the NHS will never refuse maternity care – regardless of whether someone can pay – and vulnerable people, including asylum seekers, are exempt … We recently invested £1m to expand a team of NHS experts so hospitals understand and implement our charging rules and exemptions fairly and consistently, making clear that urgent or immediately necessary treatment – including all maternity services – must never be withheld.”

Changes sought to the law on the detention of vulnerable young adults

Parliament’s Joint Committee on Human Rights is seeking changes to the law in England concerning the detainment of vulnerable young people under the Mental Health Act following an inquiry as to the detention of young people with autism or learning difficulties. The Committee is seeking the creation of legal duties on Clinical Commissioning Groups and local authorities to ensure the right services are available in the community, and the narrowing of the Mental Health Act criteria to avoid inappropriate detention.

Rt Hon Harriet Harman MP QC, Chair of the Committee, said:

“This inquiry has shown with stark clarity the urgent change that is needed and we’ve set out simple proposals for exactly that. They must now be driven forward, urgently … It has been left to the media and desperate, anguished parents to expose the brutal reality of our system of detention of people with learning disabilities or autism. We must not look away. The horrific reality is of whole lives needlessly blighted, and families in despair. What we saw does not fit our society’s image of itself as one which cares for the vulnerable and respects everyone’s human rights. It must not be allowed to continue.”

The Committee’s report can be found here.

100,000 more people to be given personal health budgets

Legislation was laid before Parliament on 31 October 2019 which will come into force on 2 December 2019 whereby everyone in England who is eligible for an NHS wheelchair, and those who require aftercare services under s117 of the Mental Health Act, will have access to a personal health budget. It is envisaged that this will give 100,000 more people access to personal health budgets.

Personal health budgets are planned and agreed between the individuals and their healthcare professionals and are aimed to give individuals greater control, flexibility and choice over their health and care support.

Personal health budgets have the aim of allowing individuals to live independent, healthy lives and may be spent on: exercise classes, personal assistants trained to an individual’s needs, and specially adapted wheelchairs, amongst other things.

Currently over 70,000 benefit from personal health sector budgets but the Government is planning to increase this to up to 200,000 by 2024 under its NHS Long Term Plan.

Read more here.

Care home consultant given custodial sentence for refusing to attend inquest in first case of its kind

In the first case of its kind in England and Wales, a care home consultant has been given a custodial sentence for withholding information from an inquest into the death of a teenager who was a resident of the care home. Duncan Lawrence, the lead clinician at Lancaster Lodge care home, refused to engage with the inquest into Sophie Bennett’s death and was initially fined £650 by the coroner but was later charged with intentionally withholding evidence of documentation in relation to an inquest. He was jailed for four months and ordered to pay court and victim fees.

Legal challenge against the Royal College of Physicians

Following the decision taken by the Royal College of Physicians (RCP) in March to drop its opposition to assisted dying, and take a neutral stance, three doctors have launched legal action against the RCP. The doctors argued that the RCP had broken charity law in the way the decision and the decision-making processes were carried out, and are therefore seeking judicial review. The RCP carried out a poll as to its members’ views on assisted dying however, decided to adopt a neutral stance on the subject unless there was a 60% majority for or against it, in which case it would have adopted the more popular view. The poll’s results showed that 43% of respondents opposed a change in stance, 32% backed reform and 25% backed a neutral stance.

The Charity Commission withheld permission for the doctors to progress legal action on the basis that the Commission had instead raised its concerns directly with the RCP as to the way the decision had been made. However the High Court has now overruled the Commission’s decision and has allowed the doctors to challenge the RCP’s decision and bring legal action.

NHS Commercial Framework for Medicines

Following the 2019 Voluntary scheme for Branded Medicines Pricing and Access, NHS England has produced a draft Commercial Framework for Medicines for consultation, setting out how NHS England work together with NICE and the pharmaceutical industry in order to introduce clinically and cost effective treatments into the NHS in England.

Blake Dark, the Commercial Medicines Director of NHS England stated:

“There are no new proposals in this document, but it is designed to be a guide on how best to work fairly with the NHS and reflects what we have learned over the last year which has allowed us to put deals in place for Spinraza for spinal muscular atrophy, Hemlibra for haemophilia, and most recently Orkambi and Symkevi for cystic fibrosis.”

The objectives of the Framework are to:

• reduce delay in discussions over medicines to enable faster access to new medicines,
• clarify the commercial options open to companies so that smaller or less experienced companies understand the range of options available to them;
• drive earlier and more purposeful engagement between the NHS, NICE and the pharmaceutical industry

The consultation is open until 10 January 2020 for comments.

Read more here.

Personal medical data shared by healthcare websites

A Financial Times investigation has found that some of the top UK health websites are sharing users’ sensitive medical data with dozens of global companies including Amazon and Google. Analysis of 100 websites found that 79% of the websites including WebMD, Heathline and BabyCentre/ BabyCenter have ‘cookies’ code imbedded in the browser which allows third party companies to track those individuals when they go elsewhere on the internet. It was found that WebMD shared information on users’ symptoms and diagnoses with Facebook, and that ovulation cycle data from BabyCentre/BabyCenter was shared with Amazon. It is not clear whether Facebook and Amazon received personal identifiers such as a unique ID or an IP address alongside the health data.

Whilst individuals’ data may be shared with consent, medical data is special category data meaning that stricter rules govern how it can be shared under the GDPR. Explicit consent would be needed by the health websites in order to share this data however this consent would need to be informed, therefore individuals would need to be told by whom their data will be used and how. The Financial Times’ investigation found that none of the sites tested requested this explicit informed consent.  There are concerns that advertisers will use this sensitive data to target individuals and prey on their vulnerabilities.

Simon McDougall, the executive director for Technology, Policy and Innovation at the Information Commissioner’s Office has stated:

“Special category data, such as health information, requires greater protection because of its sensitivity and the increased risk of harm to, or discrimination against, individuals. We will be assessing the information provided by the FT before considering our next steps.”

The High Court rejects review of assisted dying

The High Court has rejected an application for judicial review of the law on assisted dying. The Court decided that the courtroom is ‘not an appropriate forum for the discussion of the sanctity of life’ and some questions cannot be resolved by the courts as no objective, single, correct answer exists. Phil Newby, who has motor neurone disease, sought a review on whether the UK’s blanket ban against assisted dying is compatible with his human rights.

The Divisional Court judges Lord Justice Irwin and Mrs Justice May stated:

“The private views of judges on such moral and political questions are irrelevant, and spring from no identifiable legal principle. We struggle to see why any public conclusion judges might reach on matters beyond the resolution of evidence should carry more weight than those of any other adult citizen.”

Saimo Chahal QC, Newby’s solicitor has said:

“It is important that the highest court should have an opportunity to consider issues which it is accepted are of transcendental importance to Phil and many others in his situation. An appeal will shortly be lodged in the Court of Appeal as the prospect of parliament considering the issues is non-existent.”

Primary Dental Services Statements of Financial Entitlements (Amendment) Directions 2019

The Secretary for Health and Social Care has published the Primary Dental Services Statements of Financial Entitlements (Amendment) Directions 2019 pursuant to the National Health Service Act 2006. The Directions amend the General Dental Services Statement of Financial Entitlements 2013, the Personal Dental Services Statement of Financial Entitlements 2013 and the Prototype Agreement Scheme Statement of Financial Entitlements, and make changes to the payments made by NHS England to contracts under a dental service contract with effect from 1 April 2019.

The Directions implement changes to the 2019 to 2020 pay and expenses and training allowances settlement for dentists in England and inserts the applicable up to date statutory maternity allowance rate.

The Healthcare and Social care Directions can be found here.

A More Equal Wales: Strengthening Social Partnership

In response to the Fair Work Commission’s recommendations in March this year, the Welsh Government has published the White Paper, ‘A More Equal Wales: Strengthening Social Partnership’.

The aims of the White Paper are to reduce social and economic inequality in Wales whilst supporting economic growth. Workers in Wales should be provided with ‘fair work’, being where workers are fairly rewarded, heard and represented, secure and able to progress in a healthy, inclusive environment where rights are respected. The Welsh Government seeks to achieve its aims by working together with different parties in the workforce collaboratively to address social and economic challenges, and by imposing new duties on public bodies.

An article prepared by Blake Morgan on this White Paper can be found here.

The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (“the Regulations”) implemented the EU Directive on the accessibility of the websites and mobile applications (“apps”) of public sector bodies[1] (“the Directive”).

The aim of the legislation is to allow citizens, particularly those with a disability, to gain better access to public services by making public sector bodies’ websites and mobile apps more accessible, and harmonising varying accessibility standards within the EU, reducing barriers for developers of accessibility-related products and services.

An article prepared by Blake Morgan on these Regulations can be found here.

If you have been affected by any of the above topics, please speak to one of our health sector experts.

This newsletter was put together by Joanne Thompson and Rhian Davies.