Category: Health

NHS must say when you have been harmed

The National Health Service (NHS) Constitution has been amended to take in the new duty to notify patients (or their families) when there has been a “safety incident” resulting in death or harm.

This duty applies equally to child and adult patients.

The revised Constitution, dated 27 July 2015, states:

“You must be told about any safety incident relating to your care which, in the opinion of a healthcare professional, has caused, or could still cause, significant harm or death. You must be given the facts, an apology, and any reasonable support you need.”

The accompanying Handbook to the NHS Constitution defines significant harm as:

“a permanent lessening of bodily, sensory, motor, physiologic or intellectual functions, including removal of the wrong limb or organ or brain damage, that is related directly to the incident and not related to the natural course of the service user’s illness or underlying condition.”

Although the Handbook’s definition uses the word “permanent”, the regulations governing the new duty of candour require incidents leading to moderate harm, prolonged pain or prolonged psychological harm to be reported to the patient, or his or her family. Article 39 has written to health minister, Ben Gummer MP, for clarification as to the different thresholds. We have also asked whether children’s distinct developmental needs were considered during the drafting of the statutory definitions of prolonged pain and prolonged pyschological harm, which both have time periods of 28 days for children and adults alike.

Supreme Court rules on benefits for disabled children in hospital

The Supreme Court has ruled that the human rights of three-year-old Cameron Mathieson were violated when the Department for Work and Pensions took away his disability living allowance (DLA) benefit after he had been in hospital for 84 days.

Cameron had cystic fibrosis and Duchenne muscular dystrophy, among other medical conditions. In July 2010, aged three, he was admitted to Alder Hey Hospital in Liverpool and stayed there until August 2011. His parents were his primary caregivers in hospital. Quoting the First-Tier Tribunal, the Supreme Court notes Cameron “was blessed with loving and caring parents who were utterly devoted to his care”. It cost Mr and Mrs Mathieson around £8000 to meet the costs associated with Cameron being in hospital for 13 months.

In November 2010, the family were notified that Cameron’s DLA benefit would be removed, because he was being “maintained free of charge” in hospital. This was in accordance with regulations passed in 1991 (for over 16s, the limit is just 28 days).

Very sadly, Cameron died in 2012 but his parents continued the legal challenge to the benefit rule. Their success means the cases of around 500 disabled children in hospital will have to be considered, and the Department for Work and Pensions must take action to prevent similar violations in future.

Lawyers representing Cameron cited his rights under the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities, which the UK ratified in 1991 and 2006 respectively.

Read the judgment here.