Cloisters
10 Experts
11 Contributions by Cloisters Experts
PRACTICE NOTES
What is the best value duty?
The best value duty (BVD) obliges a local government organisation to show that it has arrangements to secure continuous improvement in the way it exercises its functions, in other words, how it delivers its work. In practice, this typically covers how the authority manages core responsibilities such as:
balancing its budget
providing statutory services, including adult social care and children’s services
The BVD was created by the Local Government Act 1999 (LGA 1999). That Act remains the governing legislation, though it has been substantially amended, particularly by the Local Government and Public Involvement in Health Act 2007 (LGPIHA 2007).
Much of the detail on what BVD is and how it should be applied in practice is set out not in the LGA 1999 itself but in statutory guidance, which is issued from time to time under section 26 of that
TMT
PRACTICE NOTES
Remoteness and foreseeability
An injury arising out of clinical negligence does not, by itself, ensure a claimant will be granted damages by the court. A tort gives rise to damages only where each constituent is established:
duty of care
breach of that duty
causation, i.e. the breach caused loss
injury
Remoteness of loss and foreseeability are elusive notions that pervade every stage identified above. They are the judicial instruments through which common sense and policy are applied.
Failure to treat/loss of chance
Where, but for the clinical negligence, the claimant had a prospect of recovering from illness or injury without adverse consequences, or held a strong chance of a cure, how do the courts handle causation and what damages are awarded? These issues concern causation intertwined with remoteness. In Hotson v East Berkshire Area Health Authority, a 13-year-old fell from a tree,
PI & Clinical Negligence
PRACTICE NOTES
Definition
Guidance for doctors who provide cosmetic interventions, issued by the General Medical Council (GMC) in 2016 and revised in December 2024, defines cosmetic interventions as any procedure, treatment or intervention undertaken chiefly to alter some aspect of a patient’s physical appearance. This spans surgical and non-surgical options, encompassing both invasive and non-invasive approaches. In recent years, cosmetic surgery activity has surged markedly; online discounting has played a part in fuelling this rise. As the volume of procedures increases, so too does the likelihood that complications or undesired outcomes may occur...
PI & Clinical Negligence
PRACTICE NOTES
This Practice Note expands on the core principles of cosmetic surgery claims, with particular attention to claims arising from breast enlargement, reduction or augmentation. As with other cosmetic surgery matters, the surge in social media use has contributed to a higher volume of such procedures. See Practice Note: Cosmetic surgery claims.
Definitions
Breast enlargement is an operation to increase breast size by placing implants. These are breast-shaped sacs featuring a silicone outer shell, filled with either silicone gel or saline solution.
Breast augmentation is surgery aimed at improving breast shape where there is asymmetry or a marked size difference. Misshaping may result from breast trauma, a mastectomy, or a congenital deformity.
Breast reduction is a procedure to decrease breast size. It is commonly performed for women with very large breasts that cause neck and back pain, or
PI & Clinical Negligence
PRACTICE NOTES
What is a health care associated infection?
Health care associated infections (HCAIs) describes any infection acquired:
as a direct consequence of treatment received in, or contact with, a health or social care setting
as a direct consequence of health care delivered in the community
from an infection first picked up outside a health care setting (e.g. in the community) and then brought into a health care setting by patients, staff or visitors and transmitted to others within that environment (e.g. norovirus)
There is a closely corresponding legal definition in section 20(6) of the Health and Social Care Act 2008 (HSCA 2008): ‘health care associated infection’ means any infection for which an individual may face exposure or become susceptible (or more susceptible) in circumstances where:
(a) health or social care is being, or has been, provided to that individual or any other
PI & Clinical Negligence
PRACTICE NOTES
The National Health Service (NHS) in England and Wales operates as a publicly funded system. Provision is overseen by the Department of Health and Social Care (DHSC), with central taxation and National Insurance financing the service. Healthcare is provided without charge to people living in England and Wales. Limited fees apply in areas considered less politically sensitive, including dental treatment and optical services. The National Health Service Act 2006 (NHSA 2006) brings together earlier statutes governing the NHS and healthcare delivery.
Historical reorganisation of the NHS
NHS England heads the NHS in England. It determines priorities and strategic direction, allocates billions of pounds, and holds bodies to account for how money is used for patients and the taxpayer. Following the transfer of the National Patient Safety Agency (NPSA) functions, NHS England also has a duty to safeguard and advance patients’
PI & Clinical Negligence
PRACTICE NOTES
What is a private law claim for breach of statutory duty?
A private law claim for breach of statutory duty arises where:
the defendant was subject to a statutory obligation to take a specified action
that action was not carried out
and the breach caused damage to the claimant
Such a cause of action can be pursued against any entity bound by the duty, whether a public authority or a private organisation. For instance, section 41 of the Highways Act 1980 enables highway users to bring proceedings for a failure to maintain the highway. Additionally, where a public authority acts in breach of a statutory obligation, an adversely affected individual may seek a public law remedy by applying for judicial review. However, many statutory duties do not confer a private right to sue. Consequently, most claims against public
PI & Clinical Negligence
PRACTICE NOTES
The public sector equality duty (PSED)
Set out in Part 11 of the Equality Act 2010 (ss 149–159), the public sector equality duty (PSED) comprises a general equality duty applying UK-wide to public bodies listed in Schedule 19 of the EqA 2010, alongside specific duties intended to support delivery of the general duty and enhance transparency. Although the general duty is identical across England, Wales and Scotland, the specific duties made under EqA 2010, s 153 vary. In Wales, listed public bodies must meet particular specific duties that sit alongside the UK-wide general duty. These specific duties bind listed Welsh bodies only. They do not extend to non-devolved public authorities operating in Wales. Under EqA 2010, s 149, the general duty requires public authorities and those exercising public functions to have 'due regard' to the need to:
eliminate
Public Law
PRECEDENTS
IN THE [ COUNTY COURT AT [ Insert ] OR HIGH COURT ]
Claim Number: [ Insert claim number ]
Parties: [ Insert name of Claimant ] Claimant [ (a patient, by his son and litigation friend XX (insert name of LF)) ] -and- [ Insert name of Defendant ] Defendant
PARTICULARS OF CLAIM (CLINICAL NEGLIGENCE)
The parties
Throughout the relevant period, the Claimant, a patient, received nursing and personal care from the Defendant, delivered by its staff and authorised agents.
During all material times, the Defendant ran, managed and administered a residential care home known as [ Insert care home name ], located at [ Address ] (‘the care home’)...
PI & Clinical Negligence
PRECEDENTS
[ In the County Court at [ insert ] OR in the High Court of Justice ]
[ [ Specify division ] ]
[ [ Specify specialist court ] ]
[ [ Insert location ] District Registry ]
Claim No. [ insert claim number ]
Between [ Insert name and details of the Claimant ] Claimant
-and-
[ Insert name and details of the Defendant ] Defendant
Particulars of claim
1 At all relevant times, the Claimant was in the employment of the Defendant as a [ insert Claimant’s job title and location eg mail sorter at its Islington office ] and was acting within the scope of [ his OR her ] employment. The Claimant’s employment began on [ insert date ]. Throughout this period, the Claimant reported to [ insert name of Claimant’s line manager, eg Mr Bloggs ]. [ Mr Bloggs’ ] own manager was [ insert name, eg Mr Jones ]. The
PI & Clinical Negligence
PRECEDENTS
IN THE [ County Court at [ Insert ] or High Court ]
Claim No: [ Insert claim number ]
Parties
[ Mrs Jane Bloggs ] — Claimant
[ A Care Home ] — Defendant
PARTICULARS OF CLAIM
The parties
At all relevant times, the Claimant was under the care of the Defendant, through its staff or agents, in relation to her nursing and personal care.
Throughout the relevant period, the Defendant ran, directed and oversaw a private residential care home called [ A Care Home ], located at [ Address ] (‘the care home’).
...
PI & Clinical Negligence
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