Mills & Reeve: Health and Care Update

Redundancy, Agenda for Change and employment tribunal claims

The Employment Appeal Tribunal (EAT) has confirmed that separate claims for statutory and contractual redundancy payments can be made in the employment tribunal. That is despite the fact that under national NHS terms and conditions (Agenda for Change) contractual redundancy payments are inclusive of statutory redundancy pay. This ruling mitigates the effect of the £25,000 cap on the compensation employment tribunals can award for contractual claims, but will not result in any additional contractual liability for the NHS.

Mrs Ugradar was made redundant during a re-organisation and later brought an employment tribunal claim. One of the questions the tribunal had to decide was whether Mrs Ugradar was entitled to a statutory redundancy payment (of £5,868) as well as a contractual payment calculated in accordance with Agenda for Change (which came to just under £44,000).

The tribunal originally said the statutory entitlement was “subsumed” into her contractual entitlement because of the set-off provisions in Agenda for Change, and her contractual claim was capped at £25,000. That was all she was entitled to.

The EAT disagreed. It ruled that Mrs Ugradar was entitled to the statutory payment in addition to the contractual payment (capped at £25,000). In other words, the statutory payment fell outside the cap.  The EAT did not interpret Agenda for Change as restricting the right to recover the statutory payment, rather as allowing it to be set off against any contractual payment. Had it not been for the £25,000 cap on the tribunal’s jurisdiction, an award would have been made to account for the contractual payment of just over £38,000, when offset against the statutory payment.

The upshot is that a statutory redundancy payment can still be offset against any contractual redundancy payment at the point of payment. This case is really only a warning about how employment tribunals are likely to apportion compensation in claims for unpaid redundancy payments which are brought in the tribunal and exceed £25,000.  And of course, a reminder of the very significant contractual benefits that NHS employees are entitled to in the event of redundancy.

Jog Hundle, Partner

Out of hours locum GP was a worker, not self-employed

A provider of NHS out of hours GP services has lost its appeal against a ruling that one of the GPs it supplied was a worker, and not self-employed. That is a different outcome to the last time the employment status of out of hours GPs was considered by the Employment Appeal Tribunal.

Community Based Care Health Limited, a not-for-profit provider of GP services for what were then Primary Care Trusts, had engaged Dr Reshma Narayan to provide out of hours services as a GP. She was one of 12 out of a total of 80 or so GPs who regularly worked the same shifts for CBCH, and she did so for about 10 years.

Following a complaint about telephone advice, and an issue about her swapping shifts at short notice, CBCH informed her that it would not be using her services again. She responded by bringing a number of claims, including unfair dismissal.

The employment tribunal concluded that Dr Narayan was a non-employee worker, and this decision has now been upheld by the EAT. But why was this outcome so different from the case of Suhail v Herts Urgent Care, when the EAT said the employment tribunal had been right to conclude Dr Suhail had been self-employed?

Although on the face of it Dr Narayan and Dr Suhail were providing exactly the same service, the way in which the arrangements were set up and operated in practice were different. 

For example:

• Dr Suhail had signed a detailed “service level agreement” with the provider, while in Dr Narayan’s case the documents were found to be “sparse”.
• Dr Narayan was able to swap shifts with other GPs approved by the provider without permission, but Dr Suhail had to hand back her shifts if she couldn’t do them.
• Dr Suhail worked as an out of hours GP for a number of other providers, but Dr Narayan for the most part worked the same shifts for a the same provider over an extended period of time.

It’s become a cliché that these employment status cases are very fact specific, but there is no better illustration of that principle than this pair of cases. Often the way the arrangement is set up and operated is more important than the nature of the work performed when it comes to determining status. The lesson for health care providers is to pay attention to the legal arrangements. It seems that in this latest case CBCH has paid a price for failing to do this.

Jog Hundle, Partner

An update: Brexit and transitional rules for EU nationals

The Government has now published updated guidance on transitional arrangements for EU nationals that will apply in the event of a ‘no-deal’ exit from the EU.

The key points for employers and staff to be aware of are as follows:

• EU Settlement Scheme - EU nationals who are resident in the UK by 11pm on 31 October 2019 will be covered by the EU Settlement Scheme.  This will run whether there is a ‘deal’ or ‘no-deal’ Brexit, meaning the right of residence and ability to access benefits and public services should be preserved.  The deadline for applications will be 31 December 2020 (in a no-deal scenario) or 30 June 2021 (in a ‘deal’ scenario).  It may, however, be sensible for EU nationals to apply on or before 31 October 2019, so they are ‘in the system’ before exit date.  This may help in establishing that the person was resident in the UK before the UK’s exit from the EU.
• Euro TLR - EU nationals who are not resident in the UK on or before 31 October 2019 will continue to be able to enter the UK freely (without needing a visa) to live and work from the date the UK leaves the EU until 31 December 2020.  However, a person who moves to the UK after a ‘no-deal’ exit and wishes to remain resident beyond 31 December 2020 will need to apply under the new European temporary leave to remain scheme (Euro TLR).  It seems that the deadline for Euro TLR applications will be 31 December 2020, irrespective of the date when the person entered the UK after exit.  Euro TLR will grant the holder permission to remain in the UK for 36 months with the ability to study and work.  At the end of this period, holders of Euro TLR will need to apply for further permission to remain in the UK under the new immigration system (expected to be implemented from January 2021). Details of the new immigration rules and any switching requirements are not expected to be published for several months.  However, the Government has indicated that time spent in the UK with Euro TLR status will count towards residency requirements for future indefinite leave to remain/settlement applications.
• Frontier workers – there have been developments in respect of EU nationals who live in another EU country, but regularly travel to the UK in order work for a UK employer (often referred to as frontier workers).  There should be no change to their ability to enter the UK and work until 31 December 2020.  From 1 January 2021, the Government will be implementing a new ‘frontier worker permit’ to enable these individuals to continue to enter the UK for work purposes, although very limited details have been published to date.  These individuals may also be eligible to apply under the Settlement Scheme, but may only qualify for pre-settled status due to the number of absences from the UK.

Alex Russell, Principal Associate

Patient safety: embedding a workplace culture of learning rather than blame

Making simple shifts in approach and language to patient safety investigations can be key to changing the culture of health and care organisations.

The golden thread of patient safety continues with NHS Resolution’s recently published new guidance on how leaders of all health and social care organisations can support staff when things don’t go as planned. The guidance provides the latest “thinking, ideas and prompts” which will help to drive a just and learning culture within health and social care.

The need for change is clear: NHS Resolution received 317 claims valued short of £27.5 million in the last four years relating to staff stress and bullying in NHS trusts. The 317 claims cover a range of staff from doctors, nurses/midwives to AHPs within an organisation, reflecting the extent of the issue and that it can affect staff at any level.

The numbers are “significant” and are driven by a range of “avoidable factors” in relation to how staff are supported says the guidance.

These include:

• Failures to follow policies effectively relating to investigations and workplace stress
• Failure to follow advice given by Occupational Health an conduct timely investigations, grievance or appeal
• Failure to provide a safe system of work and have regard for staff members’ mental health and personal safety
• Failure to follow recommendations set out in the investigation report which caused the staff members’ trust and confidence to be undermined
• Failure to carry out suitable or sufficient assessments of the risks to the staff members’ mental health
• Failure to implement any adequate preventative or protective measures for the safety of staff members

Being fair guidance

This sets out what it means to have a just and learning culture for staff and patients when things go wrong. It is described as “the balance of fairness, justice, learning – and taking responsibility for actions. It is not about seeking to blame the individuals involved when care in the NHS goes wrong.” But the guidance accepts that whatever the culture, dealing with concerns about professional practice can be challenging.  

It advocates organisations adopting a more reflective approach to learning from incidents and supporting staff which it says can be key to improving patient care as well as the wellbeing of staff.

The guidance has drawn on NHS Resolution’s data set to explore best practice across the health system. It provides examples of practices used across the NHS as means for others to see the different ways in which a just and learning culture could be built. The guidance accepts that there is a variety of approaches being taken, with no single approach recommended over another and acknowledges that organisations are at different stages, and still working out what is effective.

Nevertheless, the consensus is that the use of an agreed tool, charter or framework by organisations is helpful in supporting a more consistent approach towards all staff groups.

Examples include:

• Just and learning culture charter
• Restorative approach – adopted by Mersey Care NHS Trust
• Triage system– adopted by Barts Health NHS Trust and the use of a triage system (pre-disciplinary checklist) to determine whether disciplinary action is necessary or inappropriate
• A just culture guide - NHS Improvement’s 2018 guide acts as an aide memoire for people to assess the appropriate response when something goes wrong

By embedding a more open and just culture it is hoped that this will lead to an avoidance of inappropriate disciplinary action against staff, including those from BAME backgrounds who appear to be disproportionately subject to such action.

Concerns about equity and fairness were raised back in 2012 by the Court of Appeal in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust in which the court remarked on the “….almost automatic response of many employers to allegations of this kind to suspend the employees concerned…irrespective of the likelihood of the complaint being established…”.

It is worth noting that NHS Improvement recently published guidance to help NHS trust boards deal with investigations and disciplinary procedures – implementing this guidance across the NHS will contribute to ensuring we treat people fairly and protect their wellbeing.

Other identified challenges to creating a just and learning culture include: bullying and harassment and fear of being inappropriately blamed following an incident, the effect on future employment and what peers will think. Those factors risk preventing NHS staff from sharing and learning. There is no doubt that there is more work to be done but the guidance, it is hoped, will start the conversation which might lead to a change in mindset and attitudes to current practices across the NHS.

Do get in touch if you would like support with any of the issues discussed – we have a friendly and expert team ready to help.

Rebecca Pallot, Principal Associate

New NHS patient safety strategy: The ‘golden thread’

The idea of the ‘golden thread’ isn’t new; Theseus followed a golden thread given to him by Ariadne to find his way out of the Minotaur’s cave in Greek mythology – and it has been used in many ways since then.

The Secretary of State asked NHS England and NHS Improvement to develop a new Strategy for Patient Safety as a ‘golden thread’ running through healthcare. A consultation was launched in December 2018 with a set of ideas – in excess of 500 responses were received from organisations and individuals (staff, patients and carers). The final strategy – the first of its kind was launched at the Patient Safety Congress earlier this month.

Described by Aidan Fowler, NHS National Director of Patient Safety in his foreword as a “collective intent” to improve safety recognising that improvements are required in the way we learn, treat staff and involve patients. The intent is that it will be adapted over time with an update published annually every summer.

This strategy will sit alongside the NHS Long Term Plan and the LTP implementation framework published in June. There is also a cross reference to the independent sector at pages 43 and 44 of the strategy document.

Getting patient safety right could save 1,000 extra lives and £100 million in care costs each year from 2023/24

Simply put the strategy is about: “maximising the things that go right and minimising the things that go wrong” for people that are experiencing healthcare. The strategy describes how the NHS will improve patient safety over the next five to ten years.

Getting the foundations for safer care right can be summed up using this simple formula: patient safety culture + patient safety system = safer care.

Three strategic aims will support the development of the patient safety culture and the patient safety system

So, the three “Is” are:

• Insight (pages 19 – 33): improving understanding of patient safety using multiple sources of patient safety intelligence

Within this strand of work, the new Patient Safety Incident Response Framework will replace the 2015 Serious Incident Framework – a framework that organisations have struggled to deliver according to national reviews, patients, families, carers and staff and an engagement programme in 2018.

The new PSIRF proposals include:

“A risk based approach:… organisations should develop a patient safety incident review and investigation strategy to allow them to use a range of proportionate and effective learning responses to incidents. The proposal is to explore basing the selection of incidents for investigation on the opportunity they give for learning...”.

“Governance and oversight: taking a different approach…emphasising the role of provider boards and leaders in overseeing individual investigations”.

New digital technologies are to be employed to support learning with National Reporting and Learning System / Strategic Executive Information System to be replaced with a new system.

This section also references the medical examiner system, the Healthcare Safety Investigation Branch and Getting It Right First Time.

• Involvement (pages 34 -44): up-skilling patients, staff and partners to improve patient safety

This is about creating new “patient safety partners” (PSPs), a recommendation made by Don Berwick’s when he said, “patients and their carers should be present, powerful and involved at all levels of healthcare organisations from wards to trust boards”. The aim is to have two PSPs by April 2021 in all safety related clinical governance committees.

Other initiatives are the development of a network of patient safety specialists in local systems and plans for a universal patient safety syllabus and training programme for the whole of the NHS – and arguably “it will have more impact than any other action this strategy”.  

There is also a commitment to better align patient safety standards between the NHS and independent sector healthcare with the adaptation of a “whole systems approach” to safety.

• Improvement (pages 45 – 61): designing and supporting programmes that deliver effective change in the most important areas

The strategy looks at a number of areas including medicines safety, maternal and neonatal safety, preventing deterioration and sepsis and mental health safety.

The graphic below summarises the NHS Patient Safety Strategy

Delivering the strategy – how?

The strategy document includes a matrix identifying the objectives, who will deliver this and by when at pages 64 – 72. There are actions for local systems, the national patient safety team, Health Education England, NHS England and NHS Improvement. For example, local systems are to set out in their LTP implementation plans how they will work to embed the principles of a patient safety culture and how they will implement the new PSIRF.

Chief executives and boards must ensure that they establish nonpunitive environments and systems for reporting errors within their health and care organisation – of critical importance will be developing the “just culture” of safety. The health and care system has seen a shift in culture in recent years to one that is more just, open and transparent – this has been supported by improved practice around whistleblowing and speaking-up culture.

How can we assist

We deliver risk management programmes and training so please do not hesitate to contact us to discuss this new strategy.

Jill Mason, Partner and Head of Health & Care

New guidance to help trusts deal with investigations and disciplinary procedures

What can HR teams and NHS Trust boards learn from the Amin Abdullah case.

NHS Improvement chair, Dido Harding has written to trust chairs and chief executives detailing the findings of an independent analysis by an advisory group following the very tragic death of Amin Abdullah in 2016. The letter includes guidance relating to the management and oversight of local investigation and disciplinary procedures and a call to action to review the guidance against current procedures and make adjustments to ensure your health and care organisation is in line with best practice.

The new national guidance on NHS disciplinary processes cover seven themes – implementing these across the NHS will contribute to ensuring we treat people fairly and protect their wellbeing.

The seven dos of investigation and disciplinary procedures:

1. Adhering to best practice

(a) “The development and application of local investigation and disciplinary procedures should be informed and underpinned by the provisions of current best practice, principally that which is detailed in the Acas ‘code of practice on disciplinary and grievance procedures’ and other non-statutory Acas guidance; the GMC’s ‘principles of a good investigation’; and the NMC’s ‘best practice guidance on local investigations’ (when published)."

(b) "All measures should be taken to ensure that complete independence and objectivity is maintained at every stage of an investigation and disciplinary procedure, and that identified or perceived conflicts of interest are acknowledged and appropriately mitigated (this may require the sourcing of independent external advice and expertise)."

2. Applying a rigorous decision-making methodology

(a) "Consistent with the application of ‘just culture’ principles, which recognise that it is not always appropriate or necessary to invoke formal management action in response to a concern or incident, a comprehensive and consistent decision-making methodology should be applied that provides for full and careful consideration of context and prevailing factors when determining next steps."

(b) "In all decision-making that relates to the application of sanctions, the principle of plurality should be adopted, such that important decisions which have potentially serious consequences are very well informed, reviewed from multiple perspectives, and never taken by one person alone."

3. Ensuring people are fully trained and competent to carry out their role

(a) "Individuals should not be appointed as case managers, case investigators or panel members unless they have received related up to date training and, through such training, are able to demonstrate the aptitude and competencies (in areas such as awareness of relevant aspects of best practice and principles of natural justice, and appreciation of race and cultural considerations) required to undertake these roles."

4. Assigning sufficient resources

(a) "Before commencing investigation and disciplinary procedures, appointed case managers, case investigators and other individuals charged with specific responsibilities should be provided with the resources that will fully support the timely and thorough completion of these procedures. Within the overall context of ‘resourcing’, the extent to which individuals charged with such responsibilities (especially members of disciplinary panels) are truly independent should also be considered."

5. Decisions relating to the implementation of suspensions/exclusions

(a) "Any decision to suspend/exclude an individual should not be taken by one person alone, or by anyone who has an identified or perceived conflict of interest. Except where immediate safety or security issues prevail, any decision to suspend/exclude should be a measure of last resort that is proportionate, time bound and only applied when there is full justification for doing so. The continued suspension/exclusion of any individual should be subject to appropriate senior-level oversight and sanction."

6. Safeguarding people’s health and wellbeing

(a) "Concern for the health and welfare of people involved in investigation and disciplinary procedures should be paramount and continually assessed. Appropriate professional occupational health assessments and intervention should be made available to any person who either requests or is identified as requiring such support."

(b) "A communication plan should be established with people who are the subject of an investigation or disciplinary procedure, with the plan forming part of the associated terms of reference. The underlying principle should be that all communication, in whatever form it takes, is timely; comprehensive; unambiguous; sensitive; and compassionate."

(c) "Where a person who is the subject of an investigation or disciplinary procedure suffers any form of serious harm, whether physical or mental, this should be treated as a ‘never event’ which therefore is the subject of an immediate independent investigation commissioned and received by the board. Further, prompt action should be taken in response to the identified harm and its causes."

7. Board-level oversight

(a) "Mechanisms should be established by which comprehensive data relating to investigation and disciplinary procedures is collated, recorded, and regularly and openly reported at board level. Associated data collation and reporting should include, for example: numbers of procedures; reasons for those procedures; adherence to process; justification for any suspensions/exclusions; decision-making relating to outcomes; impact on patient care and employees; and lessons learnt."

Where next. Taking stock.

HR teams and trust boards need to review their health and care organisations current procedures and processes against the updated guidance, making sure it reconciles with the seven principles.

Dido Harding specifically draws trust chairs and chief executives attention to item seven: board-level oversight and asks them to consider how their organisation overseas investigations and disciplinary procedures.

In addition, for cases currently being considered and all future cases, Harding asks teams to consider five questions (and, where necessary take corrective action). The questions are set out in her letter of 24 May 2019, covering issues such as whether there is sufficient understanding of the issues or concerns, and the circumstances relating to them, to justify the initiation of formal action and whether the application of a formal procedure represent a proportionate and justifiable response in the circumstances.

Do get in touch with Jog Hundle or Stuart Craig if you would like to discuss issues relating to investigation and disciplinary procedures and training for your Boards and senior managers.

NHS workforce: promoting utopian thinking on race equality standards

The NHS’s Chief People Officer, Prerana Issar says NHS organisations “need to do more” and “at pace” to improve workforce race inequality. Black, Asian and minority ethnic staff constitute almost a fifth of the total NHS workforce, yet they are still more likely to face unfair treatment and discrimination in the workplace.

In new guidance, published on 3 July, NHS England and NHS Improvement’s NHS Workforce Race Equality Standard strategy: A fair experience for all: Closing the ethnicity gap in rates of disciplinary action across the NHS workforce presents the NHS with the opportunity to make a real difference in this area.

The document is described as an evolving guide to help support local commissioner and provider practices in promoting workforce race equality. The focus is to reduce the disproportionate ethnicity gap in entry into the formal disciplinary process – and to reduce the overall rate of unnecessary disciplinary action across the NHS.

“Stretching but achievable goals” for the NHS by 2022

A set of national aspirational goals have been set for the “expected rate of improvement” in closing the gap in the likelihood of BAME and white staff entering the formal disciplinary process within NHS trusts for 2020, 2021 and 2022. These national goals relate to all NHS trusts, CCGs and national healthcare arm’s length bodies.

Supporting the delivery of this ambition, the guidance is upon both sharing good practice, as well as supporting the transformation of cultures within organisations to those that are underpinned by learning and compassion. In addition, the guidance reiterates NHSE/I’s recommendations released last month that all NHS boards should consider how they oversee investigations and disciplinary procedures following the Amin Abdullah case.

Stepping up interventions to leverage improvement

The guidance has outlined a helpful set of interventions, but good leadership, accountability and a person-centred approach with a focus on safeguarding people’s health and well-being will help the NHS community reach the “goal of a fully inclusive and fair NHS for all staff”.

Progress in this area will be published as part of the annual WRES data collection and publication.

A key step for all NHS employers is to train and support managers in identifying and resolving workplace issues before they escalate, underpinned by an understanding of wider cultural approaches.

Jog Hundle, Partner

Next steps on the implementation on the NHS Long Term Plan

Last month brought the publication of the NHS Long Term Plan Implementation Framework which kick starts the process of “strategic system planning”.

But what does this mean? Simply put: it sets out the approach Sustainability and Transformation Partnerships and Integrated Care Systems are asked to take to create their five-year strategic plans based on “realistic workforce assumptions” and deliver all the commitments within the Long Term Plan.

The expectation is that these plans cover off issues, such as what service changes will be taken forward and how local systems will be developed paying attention to workforce, digital and estates, and how financial balance will be delivered. But the framework does allow local systems the freedom to respond to local needs and priorities. The framework articulates 10 principles that systems plans must cover – this is set out in chapter one.

So what about delivering the new service models fit for the 21^st century? The service changes outlined in chapter two are described as “foundational commitments” within the Long Term Plan and must feature in the system plans. We now have 1259 Primary Care Networks covering all patients in England as from 1 July – described as the most significant reform to general practice.

Going forward system plans will be grouped into a national implementation programme for the Long Term Plan in December 2019, taking account of the Spending Review in the autumn with final plans due in November 2019 covering the period 2019/20 to 2023/24.

Where next ?

This table from the framework sets out the timescales in tabular form:

The framework includes resources to help with formulating the system plans – in addition, over the summer, there will be a programme of national and regional opportunities for systems to understand the support and resources that will be available to them over the planning period, and over the next five years.

The framework provides that local systems should work with their regional teams to work out what extra support they need to develop their local plans and plans should be developed in house. Additional support will be provided from national teams and commissioning support units.

For further details on the framework, the Healthcare Financial Management Association have produced a helpful summary paper which you can read here.

ICS autumn seminars

We are running a series of free ICS seminars across our national offices in the autumn:

• 22 October Birmingham
• 12 September Cambridge
• 24 September Manchester

If you would like to receive an invitation or register your interest, please email events@mills-reeve.com

Charlotte Lewis, Senior Associate and Rhian Vandrill, Partner

Enter the Court of Appeal: clarity on determining mental capacity in the vulnerable

Reconciling an individual’s dignity, self-determination against the need for protection and support is a fine balance. This latest decision looks at the factors relevant to determining if a vulnerable adult has capacity to make decisions about where to live, consent to sexual relations and use of social media.

On 11 June 2019 the Court of Appeal handed down its judgment in B v A Local Authority which addressed two important questions which will be of interest to health and care professionals working in a range of settings.

We hear from the CoA on two questions:

1. The factors relevant when determining mental capacity to:
   1. decide to use social media;
   2. consent to sexual relations; and
   3. decide on residence.
2. The approach to take when a declaration of capacity to make one decision conflicts with the declaration of capacity to make another decision.

Background

B is a 31- year-old woman with a learning disability. She frequently uses social media to communicate with strangers sharing intimate photographs, engaging in sex chats and searching for boyfriends who she quickly meets in person. Through this activity she met Mr C, a man in his seventies convicted of multiple sexual offences and subject to a Sexual Harm Prevention Order. Although advised of the risks, B refused to believe his offending history. She wishes to live with him and have his baby.

On 21 February 2019 the trial judge made declarations in relation to B’s capacity to make decisions which included her residence, care, contact with others, sexual relations and social media usage. He set out “relevant information” for decisions in respect of such issues.

This was an appeal by B (through her litigation friend, the Official Solicitor) and a cross appeal by the local authority.

What did the court say about:

Relevant factors?

The Official Solicitor did not challenge the trial judge’s declarations regarding B’s capacity; instead they objected to his reasoning. They argued he had erred in his formulation of the relevant information (guidance) which B needs to be able to understand, retain and use or weigh for the purposes of making the decision to use social media, to access the internet and to consent to sexual relations.

The judgment notes that it is a basic principle that an appeal is against an order and not just the reasoning of the judge in support of the order (which is not objected to). In addition, it does not matter if the guidance is a long or short list, it is simply guidance to be expanded or contracted or adapted to the facts of the particular case.

The appeal of B was ultimately dismissed.

Conflicts between declarations of capacity?

The trial judge decided that B had capacity to make decisions in relation to residence, i.e. to live with Mr C. However, the trial judge had also decided that she lacked the capacity to make other decisions, including the persons with whom she had contact with and consent to sexual relations. The local authority argued this made their care for and treatment of B practically impossible.

The Court of Appeal acknowledge that the Mental Capacity Act requires a decision specific assessment of capacity and the trial judge himself noted this can sometimes produce anomalous results. However, they concluded that it is important to take into account all relevant information. For example, in deciding that B had capacity to decide whether to live with Mr C, it was relevant that she did not have capacity to decide the persons who she has contact with.

The appeal of the local authority was ultimately upheld.

Comment

The judgment reminds us of the difficulty in reconciling a person’s right to autonomy when they are also vulnerable and need protection. We must not discriminate against those suffering from a mental disability by imposing too high a test of capacity.

Also, we must absolutely avoid deciding whether an individual has capacity simply by whether they make a good or bad decision.

Ruth Minnis, Principal Associate

Ambulance Trust appeal in Flowers litigation dismissed

The Court of Appeal has dismissed an appeal by the East of England Ambulance Service NHS Trust and ruled that regularly worked voluntary overtime should be reflected in the calculation of its workers' holiday pay.

The Ambulance Trust has applied for permission to appeal to the Supreme Court.

To find out more about the Court of Appeal decision, head over to our sister blog, hr law live.