After various court judgements and scrutiny of the deprivation of liberty safeguards, there is the temptation for healthcare staff “practise defensively” but the law can help protect them, rather than take them to court, say Neil McKay and Ben Troke

You don’t need a lawyer to tell you that there are plenty of sobering facts about the ageing population, not least that the UK population over 80 will double by 2030.

But for all the discussion about the strain this will put on the structures and resources of the health and social care system, the impact on increasing potential liabilities and other legal issues has been comparatively neglected.

Neil McKay

Neil McKay

‘The impact on increasing potential liabilities and other legal issues has been comparatively neglected’

This is critically important because apprehension about liabilities, or misapprehensions about legal issues more widely, could be a real obstacle to some of the steps required to tackle this issue.

For instance, integration may prove to be a key part of the essential response to the changing world, but it is difficult to make this happen on the ground without an appreciation of, among other things, governance and accountability issues, and the practicalities arising from anxiety over the balance between information sharing and confidentiality, for example.

Full inquest increase

The ageing population is just one of the factors leading to ever increasing complaints, compensation claims and inquests across health and social care, and an ever greater proportion of them now involve care of very elderly patients and service users.

Reviewing the work we do for a fairly typical acute trust, we found that well over half of its inquests involved a patient who was over 75.

Alongside the demographics, various changes in coronial law and practice are driving an increase in the number of deaths of very elderly patients that are going to a full inquest, and in turn, increasing the level of detail and therefore the extent of the evidence, staff time and resources involved. 

Every aspect of delivery of care will be under greater scrutiny, with expectations always arising against a backdrop of limited resources. Any failings in care are seen through the lens of what happened at Mid Staffordshire, while the level of regulation and consequences of failures are intensifying in response to the Francis report

Ben Troke

Ben Troke

‘Every aspect of delivery of care will be under greater scrutiny, against a backdrop of limited resources’

The government is currently consulting on a statutory duty of candour, applying to every provider of health and social care registered with the Care Quality Commission. The effect of this on levels of compensation claims, complaints and inquests remains to be seen. 

And whether services are delivered by the NHS and local authorities or by the private or voluntary sectors, the consequences of failure can be “business critical”. Irreparable damage can be done to an organisation’s reputation in an increasingly competitive marketplace.

Learn the lessons of the past

While we routinely advise on managing the fallout of an incident, the real challenge here is to capture and apply the lessons from previous experience, and reduce your chances of having to explain and deal with another similar failure.

More broadly, the ageing population will also bring pressure on legal issues around access and funding – most explicitly around age discrimination. We saw this in the recent controversy over alleged comments by the National Institute for Health and Care Excellence that access to drugs should be limited according to a patient’s age, and the continuing healthcare arguments over the profoundly important but blurry line between free healthcare and means tested social care, especially as this applies, for example, to patients with dementia.

‘The use of direct payments will be a challenge for an increasingly elderly, frail and vulnerable population’

The use of direct payments will be a challenge for an increasingly elderly, frail and vulnerable population – not only from a safeguarding point of view, but given the implications of imposing on them the legal duties of employers.

The increase in the elderly population with dementia also brings real challenges in safeguarding and in making decisions about care or residence in their best interests where they may lack the capacity to do so for themselves, balancing the contradictory principles of autonomy and paternalism.

Safeguarding social care

More and more cases are likely to go to the Court of Protection, especially after the recent House of Lords report of post-legislative scrutiny on the Mental Capacity Act and the deprivation of liberty safeguards was scathing about the poor understanding and implementation of the act, decrying the health sector’s “paternalism” and the “risk aversion” of social care. 

Already, 73 per cent of deprivation of liberty referrals involve patients over 65, and this is magnified by the Supreme Court judgment on Cheshire West and Chester Council in March.

‘There’s risk that those in health and social care are preoccupied with the ever growing risk of being taken to court’

The judgement is likely to significantly lower the bar for identifying deprivation of liberty, requiring either the court or the deprivation of liberty safeguards system to scrutinise and authorise the situation, affecting many tens of thousands of people and with colossal resource implications. 

It would be understandable if those who work in health and social care were preoccupied with the ever growing risks of being taken to court, and the temptation of “defensive practise”. It can be easy to forget that the law is not just a stick to beat professionals with, but also, used wisely, is a shield to protect them in a highly scrutinised environment, fraught with risk, and where good practice is no guarantee of good outcomes.

Understanding this is the key to not only protecting yourself and your organisation from the increasing risk of liabilities, but also to protecting the welfare and the rights of those you care for. 

Sir Neil McKay is a consultant and former chief executive of NHS Midlands and East, and Ben Troke is partner of Browne Jacobson solicitors

To promote discussion on these issues, Browne Jacobson hosted a national conference, “Reducing legal risk in an ageing Britain”, in March. Chaired by Sir Neil, former chief executive of NHS Midlands and East, it covered a full range of the topics discussed in the article. Speakers included clinicians, academics, policymakers and lawyers.

Further information about the event and copies of the presentations are available. You can also register an interest in attending next year’s event.