<!-- wp:paragraph --> <p>We are pleased to announce we will be sponsoring &amp; attending the AvMA Court of Protection Conference on Monday 09 November 2023. The conference will be held at the Hilton Hotel, Leeds City.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden's <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> will be chairing the event with <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-barclay-semple/">Tom Barclay-Semple</a> also speaking.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The programme for the event can be found <a href="https://www.avma.org.uk/events/court-of-protection-conference-9-november-2023-hilton-leeds-city-hotel/">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Parklane Plowden's <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> will be speaking at the British Orthopaedic Association Congress, next week in Liverpool. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Anna will be in the OTS/ Medico-legal session on Thursday 21^st 10:30am – 12pm, on the panel session which explores the topic of ‘<em>How to avoid being sued in trauma and when on call’.</em> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>More information can be found <a href="https://www.boa.ac.uk/boa-annual-congress-2023/programme.html#tab-accordion-session-day-BDCCB282-F07D-4079-A37B9CBDC3E8F49D-3">here</a>. </p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The final report of the independent review of maternity services at the Shrewsbury and Telford Hospital NHS Trust, led by Donna Ockenden, was published on 30 March 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The independent review commenced in the summer of 2017 with the remit to examine 23 cases of concern. The review was however expanded and considered the maternity care of 1,486 families, the majority of which were patients at the Trust between the years 2000 and 2019.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report investigated all aspects of obstetric care, including cases involving maternal deaths, stillbirths, neonatal death, hypoxic ischaemic encephalopathy, maternal morbidity and cerebral palsy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The report</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The findings of the report were best summarised by Chair of the review, Donna Ockenden, who stated that <em>‘the reasons for these failures are clear. There were not enough staff, there was a lack of ongoing training, there was a lack of effective investigation and governance at the Trust and a culture of not listening to the families involved.’.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notable findings were:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>There was a ‘<em>concerning and repeated culture’ </em>at the Trust of not declaring adverse outcomes. It was notable that when reviewing stillbirth and neonatal deaths between 2011 and 2019, 40% of still births and 43% of neonatal deaths which considered by the review team did not have a Trust investigation. Indeed, the review team identified cases where similar and continuing errors in practice had occurred over a prolonged period. A central criticism of the report is that the failure to investigate led to missed opportunities to learn, improve and prevent future incidents.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>When investigations were undertaken by the Trust, they were of poor quality and the subsequent complaint responses lacked <em>‘transparency and honesty’</em>, especially with regards to clinical care.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>There was a constant change over the period to the Trust’s executive team and board. This led to a failure in oversight and an inability to deliver service change and improvement.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>As recent as March 2022, staff reported to the investigating team that they felt unsupported and were encouragement not to escalate any concerns with regard to patient safety.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>There was poor provision of medical staffing which contributed to delays and led to poor maternity outcomes. It was noted that there was a high reliance on the locum medical workforce without documented appropriate supervision.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The recommendations</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report makes 15 recommendations for immediate action to drive forward improvements in maternity services. The focus of these recommendations is on:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Staffing levels and in particular the need for Trusts to invest in recruitment and retention to alleviate pressures on an already depleted workforce.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>A well-trained workforce and the need for protected time to allocated to staff training.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Robust investigation into incidents and the lessons learnt to be the basis of a multidisciplinary training plan. Any change from clinical practice identified from an incident investigation must be evidenced by six months after an incident has occurred.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Importantly, the report also reinforces the need for clinicians and Trusts to listen to patients with regard to their care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report is a damming and distressing read. It is hoped that the outcome of the report has provided the families with a voice and some resolution that they have now been listened to. Ms Ockenden is clear that the Trust’s maternity services <em>‘failed both families across Shropshire and sometimes their own staff over a prolonged period of time’</em>. Sadly, the findings raised by the report may not be unique to Shrewsbury and Telford Hospital NHS Trust.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The 15 recommendations for immediate action are intended to have implications for maternity services across the NHS. The report comes at a time when the NHS is already under immense pressure and both resources and staff are depleted due to covid-19. The concern will therefore be as to whether the recommendations, particularly in relation to staffing issues, can realistically be implemented. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A key area of the recommendations is the importance of robust and transparent internal investigations. This is a reminder of what should be considered best practice in any event and in accords with the duty of candour.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From a clinical negligence perspective, a robust internal investigation may be useful in clarifying failures of care. It is therefore essential for both Claimant and Defendant lawyers that an investigation is obtained at an early stage in proceedings and is shared with the medical experts. Furthermore, a thorough investigation and open approach at an early stage may lead to better communication with the patient and a timely resolution of failures in care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> is a specialist Clinical Negligence barrister. She has a special interest in claims arising out of obstetric and gynaecology care and is able to be understanding with clients &nbsp;on sensitive issues which arise in these types of cases.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The central issue in this assessment of damages case was whether the provision of state-funded care was a sufficient reason to refuse to award future care costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a result of the Defendant’s negligence, the Claimant had suffered physical injuries and a brain injury that had resulted in severe neurological impairment. The Claimant also had a pre-existing diagnosis of Emotionally Unstable Personality Disorder and paranoid schizophrenia which had led to an extensive psychiatric history.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s care requirements could be separated into her mental health needs (which the Defendant was not responsible for) and her physical needs (which were as a result of the negligence). The Claimant was in receipt of a package of care, funded through s.117 Mental Health Act 1983, which supported both her mental health and physical needs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Quantum</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although there were several quantum issues, the most interesting was in respect of the Claimant’s future care package.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought a claim for a privately funded care package, which would meet both her mental health and physical needs. The Defendant contended that as the Claimant would continue to receive s.117 funded care, which also covered her physical needs, an award for future care would result in double recovery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judge Bird considered whether the Claimant’s s.117 care was sufficient to put her in the position she would have been in had the negligence not occurred. He noted that the Claimant had a good relationship with carers and that she was happy with the care provided. The Judge, however, applied weight to the evidence that she had also requested a more extensive package of care at home. Judge Bird accepted the Claimant’s evidence that she wanted <em>‘more support than the package provides her with’</em> and concluded that the s.117 care package was not sufficient to put her in the position she would have been in but for the negligence. He therefore found that she was entitled to an award for care for the entirety of her expected lifetime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With regard to the Defendant’s argument in respect of double recovery, Judge Bird commented that <em>‘I am satisfied that any possibility that Miss Martin might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Capacity</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was an issue as to whether the Claimant had capacity to manage and control any money awarded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was accepted by all parties that the Claimant had an impairment of the mind or brain. Judge Bird preferred the expert opinion who had assessed the Claimant in a ‘<em>real life setting’</em> rather than a <em>‘controlled clinical setting’</em>. In Judge Bird’s opinion, this allowed the expert to see the Claimant <em>‘balance the demands on her time, recall details, juggle facts and make decisions’ </em>and was preferrable to psychometric testing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge accepted the Claimant was vulnerable, he found however that this was due to her personality disorder rather than her brain injury. The Judge applied substantial weight to the Claimant’s father’s evidence that his daughter had sought his advice regarding lending £10,000. In the Judge’s opinion, this showed that she had retained information (as she had been able to relay it to her father), that she had insight into her vulnerability (as she had sought her father’s advice) and that she was then capable of accepting and acting on that advice. &nbsp;The Judge therefore concluded the Claimant had capacity and thus was not entitled to Court of Protection and Deputy costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The adequacy of the state funded care is crucial to the assessment of double recovery. In many cases, state funded care is unlikely to be sufficient to place the Claimant in the position they would have been but for the negligence, especially if there is a requirement for expensive care costs such as overnight care.&nbsp; Where the state funded care is not adequate, it seems that double recovery will not be a barrier for a claim for a more extensive care package even if there is an overlap in the care provided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also a useful reminder of the evidence required in capacity cases. Significant weight is likely to be placed on an assessment which follows a pragmatic rather than theoretical approach to the Claimant’s ability to understand, retain and weigh up information.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>, specialises in Clinical Negligence and Court of Protection work and has experience in cases where there are an overlap in these two areas. </p> <!-- /wp:paragraph -->