Lester Aldridge https://www.lesteraldridge.com Advising businesses and individuals on an international scale. Fri, 21 Feb 2020 09:14:25 +0000 en-GB hourly 1 https://www.lesteraldridge.com/app/uploads/2019/05/cropped-la-favicon-32x32.png Lester Aldridge https://www.lesteraldridge.com 32 32 LA Celebrates 3 Years of Authorising Medallion Signature Guarantees https://www.lesteraldridge.com/blog/international-estates/la-celebrates-3-years-of-authorising-medallion-signature-guarantees/ Thu, 20 Feb 2020 10:51:15 +0000 https://www.lesteraldridge.com/?p=8704 To mark our firm’s third anniversary of becoming an authorised Medallion Signature Guarantee provider, we take the opportunity to address some of the questions frequently asked by our clients with regards to this service. What is a Medallion Signature Guarantee? A Medallion Signature Guarantee is a special signature guarantee stamp used for the transfer of … Continued

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To mark our firm’s third anniversary of becoming an authorised Medallion Signature Guarantee provider, we take the opportunity to address some of the questions frequently asked by our clients with regards to this service.

What is a Medallion Signature Guarantee?

A Medallion Signature Guarantee is a special signature guarantee stamp used for the transfer of securities, stocks and shares in North America. Sometimes they are referred to as a Medallion Guarantee or Gold Medallion Guarantee.

The stamp itself is a barcoded stamp which is affixed to relevant paperwork and assures any financial institution reviewing the papers that the relevant checks have been made to prevent the risk of fraudulent or unauthorised transfers being made.

When is a Medallion Signature needed?

A Medallion Signature Guarantee is needed whenever a transfer is being made in connection with securities, stocks and shares in the USA and Canada. In North America, a share registrar (transfer agent), will insist upon a medallion stamp being provided to them to limit their liability should a fraudulent transfer be made.

It should be noted that a ‘transfer’ on North American shares can include the mere changing of a surname due to marriage, as well as other scenarios which a shareholder may not consider to be a transfer of their securities. For example, an instruction to sell can sometimes require this stamp.

Who requires a Medallion Guarantee?

A Medallion Signature Guarantee is required by all North American transfer agents before a security transfer can take place. The most widely used transfer agents are Computershare, EQ, Broadridge and AST. They are appointed by the companies that people invest in to maintain the records of the security owners and they are regulated by the Securities and Exchange Commission (SEC). SEC Rule 17Ad-15 requires that Transfer Agents adopt an equitable methodology for the acceptance of signature guarantees from eligible Guarantor institutions. It is from this requirement that the Medallion Signature Guarantee program was born.

Where can you obtain a Medallion Guarantee Stamp?

You can usually obtain a Medallion Signature Guarantee stamp from your bank, if you are resident in North America, , as long as they are an enrolled participant of one of the medallion programs. You would need to be a long standing client of the participant institution before they would provide you with this service.

The Securities Transfer Agents Medallion Program (“STAMP”) owns and operates the official signature guarantee program that is recognised and approved by the financial industry and that is supported and endorsed by the Securities Transfer Association (STA). Participants on the program include Commercial Banks, Savings Institutions, Credit Unions, Trust Companies, Mutual Funds, Brokers/ Dealers, Government Agencies, Law Firms and Registered Investment Advisors.

Where can you obtain a Medallion Signature Guarantee in the UK?

To obtain a medallion stamp in the UK, it is much harder to achieve this through your bank. While it was hoped by the STA and SEC that many banks would take up participation in the program, in reality, most overseas banks have avoided this due to the liability that they would be exposed to. There are therefore very few UK provider banks.

For a time, UK investors could use certain trusted companies to obtain the stamp through their partnership with some of the biggest banks in North America. However, due to the deemed increased risk that the banks felt they were exposing themselves to through these international applications, there was a long period where none of the North American banks were happy to offer this service.

As it was becoming increasingly difficult for overseas investors to obtain the required medallion stamp, the program was opened up to international companies.

Due to the many years of being one of the trusted companies to obtain medallion stamps through the US banks prior to the changes, Lester Aldridge LLP applied to become a participant of the STAMP program and currently remains the only law firm in the United Kingdom who can act as a stamp guarantor.

The stamping equipment is held in our office and therefore allows us to process your application swiftly and not be subject to international provider delays. Medallion applications are processed at our Bournemouth office.

How much does a Medallion Stamp cost?

A medallion stamp costs £235, plus VAT for UK residents if using the “Medallion Only Service”. The fee is per transfer and not per stamp required.

This service is for those who only require their papers to be stamped in connection with a deceased shareholder and do not require any assistance or any guidance on the requirements of the transfer agents.

If you require assistance with the completion of the papers, or the process in general, and your transfer is in relation to a deceased shareholder, we do offer a full registration service. Fees for the full registration service start from £850 plus VAT and disbursements (third party costs, such as courier fees) for shares worth in excess of $10,000. The provision of a Medallion Signature Guarantee stamp is included as part of this service – there is no additional charge.

Please get in touch with our International Estate Team if you are interested in our full service, so that we can provide you with a fixed fee quote.

Should the transfer be in connection with a lifetime transfer, please get in touch with the team as we may be able to assist you. If it is not an application that can be completed through us, we will provide you with the contact details of a third party who will be able to assist you.

How are applications for Medallion Guarantees made through Lester Aldridge?

An application for a medallion stamp can be made to Lester Aldridge LLP by following the instructions on our ‘Medallion Checklist’. If you require assistance with the transfer or the process generally, please first get in touch with our international solicitors who can advise you on the requirements to provide you with a fixed fee quote and confirm initial documentary requirements.

Can a Notary Public provide a signature guarantee instead?

A Notary Public can confirm the identity of document signatories, however, a notarisation on a document requesting a transfer of North American securities will not be accepted by the US or Canadian transfer agents. It is a statutory requirement for a Medallion Signature Guarantee stamp.

It is quite usual for there to be a Medallion Signature Guarantee required on one part of the transfer paperwork, and a further requirement for a notary stamp to be provided on another part of the same transfer papers. Therefore, shareholders often have to arrange both.

Is a credit check completed as part of the Medallion Signature Guarantee application process?

Some UK providers having started using certain databases to check details of applicants. These checks can leave a mark on your credit history, although should not affect your credit rating.

Lester Aldridge does not use these databases. Our medallion guarantee solicitors request that all applicants sign their papers in the presence of a solicitor or Notary Public, who can complete our form to verify this action.

As it is very usual for the transfer agents to require further papers to be completed which may require a notary stamp (such as an affidavit of domicile), we usually suggest to applicants that they do the signatures at the same time. You can call any local solicitor or notary to arrange for them to witness your signature.

Will the transfer of shares be completed in more than one stage?

Sometimes it can be necessary for Medallion Signature Guarantee providers to request that more than one set of transfer papers is competed to allow for the desired transfer to go through due to the value of the shares. Each provider will have a stamp that will allow them to guarantee signatures up to a certain value – the surety limit.

For our Medallion Signature Guarantee only clients, our international solicitors use a stamp with a surety bond limit of US$500,000.00. For our full service clients, we have a stamp with a surety bond limit of US$750,000.00. For transactions over these limits, please do get in touch so that we can discuss the possible options.

Lester Aldridge offers a wide variety of additional services. Our international lawyers have many years of experience of attending to estates with international aspects and we attend to assets in North America on a daily basis. We offer the following services in connection with North American assets:

  1. 706-NA applications for federal clearance certificates from the IRS;
  2. Affidavits of domicile;
  3. Completion of the transfer papers to meet the requirements of the transfer agents – this can either be to complete a transfer or to also arrange a sale of the securities;
  4. Safe and secure delivery of the transfer papers to the North American transfer agent;
  5. Attending to the collection of escheated (abandoned) assets;
  6. Collection of uncashed dividend cheques and funds;
  7. Letters of transmittal and completion of other papers in connection to transfers where there has been a corporate action, such as acquisition or merger.

Our team is also home to a Notary Public, who can assist you with the legalisation (apostille) of documents.

If you would like any further information on Medallion Signatures, please visit our page or contact our international estate solicitors to discuss your requirements. Call on 01202786161 or email online.enquiries@la-law.com.

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Brexit: Court Cases and Arbitration https://www.lesteraldridge.com/blog/marine/brexit-court-cases-and-arbitration/ Wed, 19 Feb 2020 15:12:39 +0000 https://www.lesteraldridge.com/?p=8684 The UK is currently working through its notice period, having told the European Union “EU” that it wishes to take a different direction. That notice period (known as the ‘transition period’) will come to an end on 31 December 2020. Up until that deadline, on paper at least, the EU will continue to treat the … Continued

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The UK is currently working through its notice period, having told the European Union “EU” that it wishes to take a different direction.

That notice period (known as the ‘transition period’) will come to an end on 31 December 2020. Up until that deadline, on paper at least, the EU will continue to treat the UK as if it were a member state but the UK is no longer allowed to take part in any of the EU institutions and government structures, which includes the European Court of Justice. All 78 UK members of the European Parliament and a single Judge on the ECJ panel of 11 Judges have now packed their bags.

Meanwhile, behind the glare of the media headlines over the future relationship, life continues as usual.

Court cases in the UK and the European Union:-

  • The European Court of Justice will continue to deal with any cases brought against the UK up to 31 December 2020, whereupon it will cease to have any right to deal with such cases except for a small number of exceptions e.g. dealing with treaty issues before the UK gave notice to leave.
  • Judicial co-operation between the two blocs will continue on any contract concluded before the end of the transition period – which gives a right to claim damages
  • The Brussels Regulations, dealing with the choice of law or the choice of jurisdiction, will also apply up to December 2020.
  • On enforcement and recognition – the Brussels Regulations will also apply to any proceedings taken before the end of the transition period.
  • The service of documents and the regulations on taking evidence will also continue under December 2020.

Arbitration proceedings

  • Remain completely unaffected by the UK and the countries making up the EU.
  • The recognition and enforcement of arbitrations is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which became effective in 1959 (agreed in 1958)and now has 161 countries signed up to it. This enables a party with an arbitration award in its favour to turn an arbitration award into a judgement in the country where the losing party has its assets.
  • European countries have entered into the Convention of their own volition, not as a European bloc.
  • There are some interesting developments going on behind the scenes in advance of the December 2020 deadline.
  • It should be possible for the UK bloc and the European bloc to come to some form of agreement on reciprocity in relation to issues like service of documents across national borders.
  • In relation to enforcement, however, matters are likely to be overshadowed by other developments on the international stage. The Hague conference members (which currently encompass 82 individual states worldwide ) approved the convention of 2 July 2019 on the recognition and enforcement of foreign judgements in civil or commercial matters, also known as the Hague Judgement Convention. This Convention seeks to bring Court Proceedings to the same level as arbitration award when enforcing foreign judgements everywhere in the world, i.e. countries to the Convention will recognise each other’s Judgements and allow them to be enforced using a simple procedure, if assets are ground in their jurisdiction. This is a welcome development in terms of cross-border trade. Enforcing the decisions of courts in different jurisdiction, whether they are in the EC or not, is currently fraught with difficulty, where there is no mutual reciprocity agreements. In practical terms, enforcing an arbitration award is a much simpler process than trying to enforce a Judgement of a particular court.
  • The European Union bloc are currently in the process of evaluating whether the Convention should be adopted by its member states. All the signs are that will encourage their member states to sign up. A public consultation is due to start in March/April 2020.
  • For the UK Bloc, taking up the 2019 Hague Judgement Convention would appear to be a no brainer as it effectively circumnavigates the need to come to separate agreements with the EU and other nations stares across the world in relation to the enforcement of legal proceedings in different jurisdictions.

If you would like more information from our marine solicitors, please call us on 01202786161 or email online.enquiries@la-law.com.

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CQC: What does an outstanding GP practice look like? https://www.lesteraldridge.com/blog/healthcare-social-care/cqc-what-does-an-outstanding-gp-practice-look-like/ Wed, 19 Feb 2020 10:53:16 +0000 https://www.lesteraldridge.com/?p=8679 The Care Quality Commission (CQC) is responsible for inspecting GP practices in England. Services are assessed following the key lines of enquiry to see whether a service is safe, effective, caring, responsive and well-led. In CQC’s recent State of Care report, it was highlighted that the quality of services in the primary care sector was … Continued

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The Care Quality Commission (CQC) is responsible for inspecting GP practices in England. Services are assessed following the key lines of enquiry to see whether a service is safe, effective, caring, responsive and well-led.

In CQC’s recent State of Care report, it was highlighted that the quality of services in the primary care sector was high. The overall ratings for 6,706 GP practices that were reviewed show that 90% are rated as ‘Good’ and 5% are rated as ‘Outstanding’. Just 1% of GP practices (the equivalent of 82 practices) were rated as ‘Inadequate’.

CQC’s guidance sets out the characteristics for each possible rating, including ‘Outstanding’. Some examples of ‘Outstanding’ characteristics include being proactive to all areas of operation, including managing risks and areas of improvement and having an empowering culture that encourages learning where all staff contribute.

CQC publishes inspection reports on its website, and this is a helpful way of observing how other practices have achieved an ‘Outstanding’ rating. The following examples of ‘Outstanding’ practice can be noted from recent inspection reports:

Safe

  • Patients were protected by a comprehensive safety system and a focus on openness, transparency and learning.
  • Safety concerns raised by staff and patients were highly valued as integral to learning and improvement.
  • One surgery, in particular, has created the role of ‘Patient Safety and Quality Manager’ who is responsible for ensuring there is a thorough analysis of significant events that occur in the surgery to ensure that these events do not reoccur.
  • When things go wrong, patients received reasonable support, truthful information and a written apology from the surgery and informed of actions taken to avoid the same mistakes.

Effective

  • The practice had a very proactive approach to encouraging parents to take their children for childhood immunisations resulting in 100% uptake.
  • Clinical audits are being used effectively to demonstrate quality improvement.
  • One surgery is in the process of attempting to reduce the number of prescriptions of antibiotics through the use of an antibiotic tool kit audit from the Royal College of General Practitioners.
  • Resources are being invested in clinical training to upskill the GPs in six clinical areas; dermatology, gynaecology, ophthalmology, orthopaedics, urology, and ear nose and throat. This additional training meant that this surgery was able to better manage referrals to meet the needs of people using the service.

 Caring

  • Feedback from patients was consistently positive and higher than local and national averages. Patients have noted that they felt they were involved in decisions about their care and treatment.
  • Dementia Cafés have been installed to support all kinds of physical and emotional needs of dementia patients and their relatives.
  • A dedicated service for homeless patients has been implemented which over 150 homeless patients use.

Responsive

  • The practice created bespoke systems to capture and analyse patient information, which resulted in improved patient outcomes.
  • The practice had taken an active role in engaging with the rural community in aspects of social prescribing. It had secured funding for a social prescribing project to reach out to services in the local community to create a directory to enhance residents health and wellbeing.
  • Complaints were used positively to drive forward care, to learn and improve practices.
  • Staff workshops are being created in complaint management for all the team to get involved in.

Well-led

  • The practice achieved a number of accreditations such as; autism friendly, dementia friendly and military veteran aware accreditation.
  • A pattern of staff retiring rather than resigning due to high levels of support given from managers and a robust organisational structure.
  • The practice has a clear vision with quality and safety as its top priority.
  • The practice engaged with the patient participation group through social media platforms to gain feedback on how to improve the quality of the surgery.

In summary, the GP practices, which tend to achieve an ‘Outstanding’ rating, appear to have the following characteristics in common:

  • They involve the whole staff team
  • They have strong working relationships with external professionals
  • They go beyond the minimum obligations
  • They adopt innovative approaches to care outcomes
  • They are dedicated to continuous learning and development of their staff

Key issues in primary medical service

CQC recognises some of the key issues in the primary care system in their State of Care Report, published towards the end of 2019. Although there are concerning trends across the sector, the report contains positive examples of changing practice, with a view to overcoming some of these issues.

Workforce challenges

Whilst this issue has been acknowledged by the NHS Long Term Plan, NHS staff shortages are still likely to be at the forefront of a healthcare provider’s mind. Despite this, a number of GP practices have attempted to become more effective.  For example, a large GP practice with over 40,000 patients, approximately 180 staff and a rating of ‘Outstanding’, has developed a single electronic patient record to reduce duplication and effort and increase accuracy when sharing data.

Access to care

In NHS England’s 2019 GP Patient Survey, 68% of people said it was easy to get through to their GP on the phone, down from 70% last year. Patients commented that they find there are barriers to accessing non-urgent services such as obtaining a routine appointment.

Whilst this is largely due to an ageing population and demand for treatment increasing, surgeries have found mechanisms to make this problem more manageable. An increasing number of primary care services are working together to deliver a more efficient service as resources can pull together. This allows patients to visit other local practices or community health centres without having to re-register as this can often be a lengthy process.

Emerging trends

CQC has reported a number of patterns emerging from the primary care sector, some of which, once implemented fully, will make practices a lot more effective. For example, there are a growing number of practices working as part of a larger GP network or federation, which is in line with the NHS Long Term Plan. This plan sets out how the NHS will increasingly be more ‘joined up’ and co-ordinated in its care so people can see the NHS as one working unit rather than separate institutes, even though each institute may play a role in their care

Changes to the workforce

As well as GPs, there are several new roles being implemented in GP practices to assist with the heavy workload GPs are often tasked with. These roles include nursing and physician associates, mental health practitioners and district nurses who can assist with patients in their field specifically. In some practices, there have been opportunities for healthcare assistants to gain sponsorship to train as registered nurses.

Technological innovations

Technology has a variety of aims, for example, improving patient access, efficiency, supporting more frequent sharing of information between services and enabling independence among patients. Some technological advances are used by a number of ‘Outstanding’ practices and are likely to show good results. For example, some practices are using software for a video call with a GP for people who are unable to make their way to their local surgery alone.

If you would like more information, please contact our healthcare solicitors in our Bournemouth and Southampton offices. Call us on 01202786161 or email online.enquiries@la-law.com.

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Challenging the withdrawal of NHS funded care: A case study https://www.lesteraldridge.com/blog/community-care/challenging-the-withdrawal-of-nhs-funded-care-a-case-study/ Wed, 19 Feb 2020 10:24:20 +0000 https://www.lesteraldridge.com/?p=8675 We have recently reported on the issue of whether the withdrawal of the fully funded NHS care package (formally known as NHS Continuing Healthcare) by a Clinical Commissioning Group (CCG) can be challenged. The answer is yes. More information on the process for appealing a decision to remove eligibility can be found by clicking here. … Continued

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We have recently reported on the issue of whether the withdrawal of the fully funded NHS care package (formally known as NHS Continuing Healthcare) by a Clinical Commissioning Group (CCG) can be challenged. The answer is yes. More information on the process for appealing a decision to remove eligibility can be found by clicking here.

Whilst the statistics, reported by NHS England, demonstrate the real difficulties in succeeding when it comes to challenging the withdrawal of NHS Continuing Healthcare funding; approaching the appeals process in a planned, forensic and structured way makes a big difference to the likely outcome of your challenge.

Withdrawal of NHS continuing healthcare case study

Recently, we assisted an Attorney to challenge the CCG’s decision to withdraw his mother’s NHS Continuing Healthcare funding.

The Attorney’s mother has an acquired brain injury following an aneurysm suffered in January 2011. CT scans completed at the time of the aneurysm demonstrated severe damage to her frontal lobe. An assessment by a Consultant Psychiatrist identified that, as a result of the lady’s progressive medical condition, it was highly unlikely that she would ever recover from the significant damage to her cognitive faculties, and as a consequence, it was unlikely her condition would ever improve.

After multiple eligibility assessments post injury and an appeal to NHS England, an Independent Review Panel (IRP) concluded in September 2013 that the multiple eligibility assessments completed by the CCG were flawed and agreed that the patient ought to have been found eligible for fully funded NHS care.

As a result of the IRP’s decision, the CCG took over the funding of the patient’s package and the Attorneys successfully recovered over £100,000 paid when the CCG should have funded her package from the outset.

Fast forward to July 2018. The CCG conducts an Annual Review without notifying the Attorney. The Annual Review fails to consider all the relevant evidence, nor take account of the patient’s extensive medical history. The Annual Review is wrongly used as the basis to commission a full re-assessment of need and the patient’s NHS Continuing Healthcare funding is wrongly withdrawn.

We completed a forensic analysis of all the available evidence from medical and care records, witness testimony from the family, and the reasoning used by the IRP to justify overturning the CCG’s previous decisions in 2013. All of this culminated in well-structured and detailed appeal submissions, along with an Analysis of Records which explained why the CCG’s decision to commission a re-assessment following the Annual Review and subsequently to withdraw NHS Continuing Healthcare was fundamentally flawed.

After meeting with the CCG at the Local Resolution Meeting (LRM), the LRM Chair agreed that our extensive analysis demonstrated there had been no change in the patient’s condition to justify the withdrawal of her funding. The CCG agreed to overturn its decision and took over providing the patient with a fully funded package of NHS Continuing Healthcare again.

The evidence was clear. The patient’s acquired brain injury had left her with a severe cognitive impairment, an inability to communicate her care needs, a requirement to be PEG fed, which when considered in their totality, was clearly complex and intense to manage.

The Attorney is set to recover over £30,000 in care fees incurred.

When asked to comment on the difference the Community Care team’s approach made on both occasions where Lester Aldridge assisted to challenge the CCG’s decisions, the Attorney explained:

“I would highly recommend LA’s services with respect to health care. The service I have received has been excellent with regards to this matter. I have been very impressed with the diligence of the work undertaken and the quality of the submissions raised. A highly diligent, thorough and consistent quality of service. Insightful and comprehensive analysis of extensive medical and care records and reports”.

If you would like to discuss how to improve the prospects of successfully challenging the withdrawal of NHS Continuing Healthcare funding, please contact the community care solicitors by telephone on 01202786161 or by email at communitycare@la-law.com

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Learning Disability Services: An Opportunity for Change? https://www.lesteraldridge.com/blog/healthcare-social-care/learning-disability-services-an-opportunity-for-change/ Tue, 18 Feb 2020 15:05:57 +0000 https://www.lesteraldridge.com/?p=8670 With CQC consulting on new guidance and the Equality and Human Rights Commission bringing a legal challenge against the Health Secretary, is this an ideal opportunity for a detailed review of the provision of learning disability services? In 2017, the Care Quality Commission (CQC) published its ‘Registering the Right Support’ policy on registrations and variations, … Continued

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With CQC consulting on new guidance and the Equality and Human Rights Commission bringing a legal challenge against the Health Secretary, is this an ideal opportunity for a detailed review of the provision of learning disability services?

In 2017, the Care Quality Commission (CQC) published its ‘Registering the Right Support’ policy on registrations and variations, aimed at those providing care and support to people with learning disabilities.

Last year, CQC carried out an engagement exercise to discover how the guidance could be improved. Feedback indicated that the guidance should be “clearer and should better reflect personalised care and outcomes for people”, so CQC has revised the guidance with a view to making it more clear. However, CQC appears to have achieved the exact opposite. There is uncertainty about the status of the updated guidance – is it intended to replace the existing guidance, or act as a supplement? It was our understanding that the new guidance would replace the previous version, but the draft guidance itself casts doubt on that position.

The new, shorter, guidance includes a change of title – ‘Right support, right care, right culture’ – and is in two parts. The first document sets out how providers can demonstrate that they are meeting the necessary requirements and the second document provides a number of case studies. CQC has stated that there will be more case studies in the final version.  We can see how the new draft guidance might assist providers who wish to make applications to register or vary their services, but if the existing guidance is to be replaced with the draft, it is unclear if this is adequate.

CQC’s application of the existing guidance has been strict, with providers often struggling to overcome the criteria. For example, many providers wishing to register services with more than six beds are often refused by CQC, on the basis that the service would be too large. This is despite the guidance explicitly stating that there is no intention to apply a “one size fits all” approach.  Several cases have been heard by the Care Standards Tribunal, exploring the merits of CQC’s application of the restriction on bed numbers and whether they fall under the meaning of a ‘campus’ or ‘congregate’ setting, which are also not permitted under the guidance.

Unfortunately, the new guidance does not appear to provide any real clarity for providers. CQC has stated in the draft guidance, “Our policy on regulating providers that support autistic people and people with a learning disability remains unchanged”.  We feel that CQC has missed an opportunity to provide clear, detailed guidance for providers.

It also appears that CQC may be adding to the problem. With concerns about thousands of people with learning disabilities remaining in secure hospitals, miles away from their families, there is a real and urgent need to provide those people with the opportunity for independent community living. However, CQC’s strict interpretation of the guidance means that many providers who are willing to provide this type of service are being prevented from doing so, often for trivial reasons. For example, applications to extend from six beds to eight beds may be refused because they would be deemed too large, despite the fact that the service is well run, rated ‘Good’ by CQC and the residents living there are happy.

The recent Panorama exposure of abuse at Whorlton Hall, an independent hospital, has brought into sharp focus the risks associated with such settings.

Interestingly, on 12 February 2020, the Equality and Human Rights Commission (EHRC) initiated a legal challenge against the Secretary of State for Health and Social Care for a repeated failure to move people with learning disabilities and autism in to appropriate accommodation. The EHRC has sent a pre-action letter to the Health Secretary arguing that the Department of Health and Social Care has breached the European Convention of Human Rights for failing to meet targets set out in the Transforming Care and Building the Right Support programmes.  The EHRC is further concerned that the deadlines set out in the NHS Long Term Plan and Planning Guidance, will not be met. The Commission is arguing that by missing these deadlines, this “suggests a systemic failure to protect the right to a private and family life, and right to live free from inhuman or degrading treatment or punishment.”

The Health Secretary has 14 days to respond to the letter. We will be monitoring this legal challenge closely; it will be interesting to see how the Health Secretary responds and what, if any, action will be taken.

If you are making an application to register or vary your registration in respect of a learning disability service, or if you have any questions arising from the matters above, please contact our experienced healthcare lawyers to see how we can assist. Contact our healthcare solicitors by emailing online.enquiries@la-law.com or telephoning 01202 786161.

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GMC Recognises Doctors are Facing Increasing Pressure https://www.lesteraldridge.com/blog/healthcare-social-care/gmc-recognises-doctors-are-facing-increasing-pressure/ Thu, 13 Feb 2020 10:40:56 +0000 https://www.lesteraldridge.com/?p=8660 Each year for the past 9 years, the GMC has published its state of medical education and practice report, highlighting trends in the delivery of healthcare in the UK. This year, the trends show the pressures on medical professionals remain critical and there is evidence that these pressures are having a direct impact on patient … Continued

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Each year for the past 9 years, the GMC has published its state of medical education and practice report, highlighting trends in the delivery of healthcare in the UK. This year, the trends show the pressures on medical professionals remain critical and there is evidence that these pressures are having a direct impact on patient safety.

Year on year, the UK demand for healthcare increases, with mental health concerns and dementia among illnesses more prevalent in today’s society. The report shows that this increasing demand is building on the existing pressures faced by medical professionals. The GMC’s recent report confirms that doctors are increasingly at risk of burnout. GPs in particular are at risk, with 65% of GPs reportedly working beyond their rostered hours on a daily basis and 90% doing so weekly. The risk of burnout is closely linked to dissatisfaction in doctors’ day to day work. According to the report, 45% of GPs reported dissatisfaction, often because of high workloads and long hours.

The GMC’s workforce report published earlier in 2019 reported that 7 out of 10 doctors said they were likely to make a career change in the next year. Those questioned indicated they were considering reducing their hours, taking a break or leaving the profession permanently.

The report sets out five key areas where action is required:

  1. Retain and build on the workforce.
  2. Increase flexibility in training and working patterns.
  3. Reduce system pressures and ensure doctors are practising in work places that support their wellbeing.
  4. Enable regulatory reforms to make regulation more efficient and fit for purpose.
  5. Create more multi-professional teams made up of medical associate professions such as physician associates.

The GMC states that the focus in 2020 is to respond to the trends identified. As part of that focus, the GMC should use its powers to ensure increased flexibility and robust support is provided to all medical professionals. The government has placed the NHS at the top of its ‘to-do’ list and has promised increased funding and recruitment. It is hoped that the “biggest ever cash injection” in the NHS’s history will start to alleviate the system pressures, but it will not be a quick fix and with winter in full swing, it probably seems difficult to see beyond the long appointment lists and A&E queues.

If you require any advice or assistance in relation to healthcare matters, contact our experienced health and social care solicitors to see how we can assist. Call us on 01202786161 or email online.enquiries@la-law.com

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Civil Partnerships, Popping the Question; but Which Question? https://www.lesteraldridge.com/blog/family/civil-partnerships-popping-the-question-but-which-question/ Wed, 12 Feb 2020 14:57:11 +0000 https://www.lesteraldridge.com/?p=8651 With Valentine’s Day approaching, many couples will be thinking about the future and some will be wanting to make a legal, but not necessarily religious, commitment to each other. With marriage rates on the wane, what question should they be popping? Until 31st December 2019, there was only one choice for heterosexual couples – marriage. … Continued

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With Valentine’s Day approaching, many couples will be thinking about the future and some will be wanting to make a legal, but not necessarily religious, commitment to each other. With marriage rates on the wane, what question should they be popping?

Until 31st December 2019, there was only one choice for heterosexual couples – marriage. For same sex couples, they already had been given the choice of a civil partnership or marriage, with many of them opting for the former. This opportunity was extended to mixed sex couples from the beginning of this year and it is estimated that 84,000 mixed sex couples will now choose to form civil partnerships.

Marriage does not always fit with everyone’s ideologies. For example, for those who see marriage as being steeped in patriarchal tradition, where women are “given away” by their fathers and promise to “obey” their husbands, the concept of a civil partnership will be much more appealing. Remaining a so-called “common law” husband or wife can be equally unattractive. This terminology, which is often used to refer to couples who cohabit but are not married, does not confer on them any legal rights. When the relationship breaks down, possibly many years later (and even after children), the more vulnerable party – who may not have any assets to their name – can be left destitute. Their legal rights are no different from that of a single person.

A civil partnership can be an attractive alternative to many since it is a legally recognised relationship, offering many of the same benefits as a conventional marriage in terms of tax benefits, pension, inheritance and in the event that the relationship breaks down but without the religious connotations.

For more information, please contact our civil partnership solicitors in our Bournemouth, Southampton and London offices. Get in touch by emailing online.enquiries@la-law.com or by calling 01202786161.

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GMC: Showing Insight in Fitness to Practise Hearings https://www.lesteraldridge.com/blog/healthcare-social-care/gmc-showing-insight-in-fitness-to-practise-hearings/ Wed, 12 Feb 2020 14:09:55 +0000 https://www.lesteraldridge.com/?p=8642 How does a doctor show insight when they dispute the allegations? In April 2019, the High Court handed down a decision in the case of Blakely v GMC [2019] which considered the issue of demonstrating insight when a doctor does not accept allegations faced in fitness to practise proceedings. In this case, Dr Blakely was … Continued

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How does a doctor show insight when they dispute the allegations?

In April 2019, the High Court handed down a decision in the case of Blakely v GMC [2019] which considered the issue of demonstrating insight when a doctor does not accept allegations faced in fitness to practise proceedings.

In this case, Dr Blakely was found to be misleading and dishonest for arranging covert recordings of consultations between a colleague and patients, without knowledge or consent. Dr Blakely was concerned that her colleague was undercharging and losing the company money. When patients found out about the recordings, Dr Blakely told them that she had acted on advice from the GMC and CQC, which was later proved incorrect. Dr Blakely was initially suspended for a period of six months. At a review hearing, she was suspended for a further nine months after the reviewing Tribunal considered that she had not demonstrated sufficient insight into her dishonest behaviour and there was a risk of repetition.

The High Court dismissed Dr Blakely’s appeal on the basis that the Tribunal had not erred in law. This case demonstrates the difficulties faced by doctors who deny the allegations against them. How can a doctor demonstrate sufficient insight when they deny the allegations? The High Court suggested that doctors could accept the findings of the Tribunal, with the benefit of hindsight, even if they did not accept their conduct was dishonest at the time. However, the false acceptance of the Tribunal’s findings can often be undone through cross-examination and result in a positive demonstration of a doctor’s lack of insight.

The High Court suggested an alternative would be to accept that the public would view the conduct as dishonest even if the doctor does not accept that they were.

This is a complex issue, frequently seen in fitness to practise proceedings. Those facing an investigation by their regulator, should obtain early legal advice, so that tactical considerations can be given to any issues that arise.

If you require advice or assistance regarding a GMC investigation, please contact our experienced healthcare solicitors to see how we can assist. Contact us by calling 01202 786161 or emailing online.enquiries@la-law.com.

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A GPs guide to inquests https://www.lesteraldridge.com/blog/healthcare-social-care/a-gps-guide-to-inquests/ Tue, 11 Feb 2020 15:04:08 +0000 https://www.lesteraldridge.com/?p=8633 What is an inquest? An inquest is a fact-finding inquiry, held by a Coroner. It is not a trial and the Coroner does not seek to apportion blame. The purpose of an inquest is to find the answer to four key questions – who the deceased was, when they died, where they died and how … Continued

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What is an inquest?

An inquest is a fact-finding inquiry, held by a Coroner. It is not a trial and the Coroner does not seek to apportion blame. The purpose of an inquest is to find the answer to four key questions – who the deceased was, when they died, where they died and how they died. As a doctor, you may be asked by the Coroner to provide medical records and a report. During the inquest itself, the Coroner will consider all the relevant evidence before coming to a conclusion. The Coroner may give a short form conclusion, such as natural causes or accident. Alternatively, the Coroner may give a narrative conclusion, which is a short factual statement about how the deceased came about their death.  The Coroner has an additional function of considering whether there is a risk of future deaths and if appropriate, the Coroner may issue what is referred to a ‘Regulation 28’ or ‘prevention of future deaths’ report

Notification of Deaths Regulations

The Notification of Deaths Regulations 2019 came in to force on 1 October 2019 and brought with them, much needed clarity. These new Regulations place a duty on registered medical practitioners to notify the Coroner of an unnatural death. The full list of circumstances are set out in Regulation 3 and include violence and neglect.

A failure to notify a death under the Regulations, may lead to referral to the GMC or disciplinary action. Therefore, it is important to read and fully understand your obligations under the new Regulations. Guidance from the Ministry of Justice has been published to assist medical practitioners in understanding their obligations under the Regulations. The guidance can be found here.

How to respond to a request from the Coroner

As a doctor, it is possible, that at some point during your career, a Coroner will ask you to provide them with a copy of the notes of a deceased patient, or even a report detailing the patient’s medical history and any involvement you may have had in their care. In most circumstances, this is a standard request for information, as part of the Coroner’s fact finding obligations. However, in some circumstances, the Coroner may be more interested in your role leading up to the patient’s death and you may be asked to give evidence at the inquest. If the Coroner explores your involvement in a patient’s care, there may be a risk of your practice being criticised during an inquest.

If a Coroner asks you to prepare a report, it is important that you reply within the deadline prescribed, or otherwise in a timely manner. Your report should be an accurate, factual account based on your knowledge and the patient’s medical records. It is important that your report is detailed in order to assist the Coroner with their investigation in to the patient’s death. You should set out the patient’s previous medical history and details of relevant consultations. If you use any medical terminology, it is often helpful to provide an explanation. Most Coroners these days are from a legal background and may not have in-depth medical knowledge and experience. Additionally, your report is likely to be shared with the family and other non-medical Interested Persons. An Interested Person is usually someone who is centrally involved in the circumstances leading to the patient’s death, for example, family members and treating clinicians. We usually advise against copying and pasting sections of the patient’s records into your report as entries in records often lack detail and clarity.

If you are asked to provide a report, it does not necessarily mean that you will be required to attend the inquest. However, if you are asked to attend, you should clarify whether you are an Interested Person or a witness. If you are identified as an Interested Person, you are entitled to receive disclosure and have legal representation at the hearing. In some cases, you may be at risk of criticism during an inquest and therefore, it is essential to obtain legal advice and ensure you are fully prepared.

As a doctor, you are required to assist the Coroner with their investigation and a failure to do so may lead to a referral to the GMC and maybe even a criminal conviction. In 2019, we saw the first ever conviction for failing to provide the Coroner with information requested – indicating that Coroners are willing to use their legal powers to require witnesses to assist them. You cannot escape your obligation by relying on confidentiality, as Good Medical Practice clearly states that one of the circumstances where you must disclose relevant information about a patient who has died is to help a Coroner with an inquest.

It is important to remember that if you do attend an inquest and you are criticised during the hearing, you may be required to report this to the GMC. If you are on the NHS Performer’s List in England, you may also be under an obligation to notify NHS England. The Coroner may also consider referring you to the GMC.

If you are concerned that you may be or have been criticised during inquest proceedings, you should obtain legal advice. Contact our experienced health and social care solicitors to discuss how we can help you. Get in touch by calling 01202786161 or emailing online.enquiries@la-law.com.

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Inquiry Labels the Healthcare System as ‘Dysfunctional at Almost Every Level’ https://www.lesteraldridge.com/blog/healthcare-social-care/inquiry-labels-the-healthcare-system-as-dysfunctional-at-almost-every-level/ Tue, 11 Feb 2020 10:28:20 +0000 https://www.lesteraldridge.com/?p=8629 In 2017, Ian Paterson was convicted of seventeen counts of wounding with intent and three counts of unlawful wounding. He was sentenced to 15 years in jail, which was later extended to 20 years. Despite this conviction, many of his victims, and their families, have been left with unanswered questions about how Paterson’s misconduct managed … Continued

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In 2017, Ian Paterson was convicted of seventeen counts of wounding with intent and three counts of unlawful wounding. He was sentenced to 15 years in jail, which was later extended to 20 years. Despite this conviction, many of his victims, and their families, have been left with unanswered questions about how Paterson’s misconduct managed to escape under the radar for so many years.

As a result, an independent inquiry was set up to investigate these wrongdoings. The findings have now been published and the opening words of the Right Reverend Graham James, the Chair of the Paterson Inquiry, make for uncomfortable reading. He states, “This report is not simply a story about a rogue surgeon. It would be tragic enough if that was the case, given the thousands of people whom Ian Paterson treated. But it is far worse. It is the story of a healthcare system which proved itself dysfunctional at almost every level when it came to keeping patients safe, and where those who were the victims of Paterson’s malpractice were let down time and time again.”

The inquiry seeks to peel back the many layers of Paterson’s wrongdoings, outlining the key issues at the heart of the inquiry, including how Paterson performed cleavage sparing mastectomies, other types of surgery which he was not qualified to carry out, unnecessary treatment and failure to complete diagnostic tests. The inquiry also reveals how Paterson falsified the coding on his patient’s records, coding their illnesses as cancer when often this was not the case. This later made it difficult for patients to obtain travel insurance, health insurance or a successful job, as many saw a cancer diagnosis as a red flag.

The report is critical not just of Paterson, but of his employers, both NHS and private hospitals, for the failure to investigate concerns raised against Paterson. His colleagues first raised concerns in 2003, but Paterson was only suspended 8 years later, in 2011. The report highlights how a number of colleagues were aware of Paterson’s unusual practices and to some extent, he was “hiding in plain sight”. What is still unclear is whether Paterson was actually acting alone. The report states that “Paterson was not acting in isolation”, and a number of healthcare professionals have been referred to the GMC and NMC.

The report insinuates that there may have been elements of financial motivation behind the lack of investigation into Paterson’s conduct, particularly in the private sector. Other factors considered by the report include the culture of ‘whistleblowing’ and the historic lack of protection. Despite the fact that healthcare professionals have a duty to raise concerns where they believe patient safety or care is at risk, in reality it is much more complicated than this. As an example, when four doctors raised concerns about Paterson, they later found themselves subject to a GMC investigation regarding their fitness to practise. Whilst this was not a direct result of their complaints about Paterson, it is likely that other healthcare professionals interpreted this differently, and would be reluctant to raise any concerns, as they may fear the consequences of doing so.

The report also highlights concerns about regulating bodies such as the CQC and GMC, and how patients felt let down by them. In particular, the report sets out there are differences in how CQC regulates, inspects and monitors the NHS and the independent healthcare sector. Interestingly, CQC did not attend the evidence sessions with the Inquiry, which was out of line with the other regulators, who fully engaged. CQC has responded to the Inquiry report, their response can be read here.

Despite a number of recent improvements across the healthcare sector, the report raises concerns that not enough has changed and there is a worry that it is “entirely possible that something similar could happen now”. The report has made a number of recommendations, including the need for a “single repository of the whole practice of consultants across England, setting out their practising privileges and other critical consultant performance data”. The report also recommends, “CQC, as a matter of urgency, should assure itself that all hospital providers are complying effectively with up-to-date national guidance on MDT meetings”. The report also suggests, “the Government should, as a matter of urgency, reform the current regulation of indemnity products for healthcare professionals…and introduce a nationwide safety net to ensure patients are not disadvantaged.” The full recommendations are set out between pages 218-222 of the report.

Nadine Dorries, Parliamentary Under Secretary of State for Mental Health, Suicide Prevention and Patient Safety, has stated “it is with deep regret that we acknowledge the failure of the entire healthcare system to protect patients from Ian Paterson’s malpractice and to remedy the harms”. She goes on to say “to conclude, we are absolutely committed to ensuring lessons are learned and acted upon from the findings of this shocking inquiry, in the interests of enhancing patient protection and safety, both in the NHS and the independent sector”.

It is unclear at this stage, whether the Government will implement the recommendations and how long it will take to see any changes.

If you would like to find out more, get in touch with our specialist healthcare solicitors by emailing online.enquiries@la-law.com

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