Lord Winston, Professor of Fertility Studies at Imperial College, London University, issued a warning in the House of Lords on 8 September 2011 that the inability  to communicate effectively of nurses from Eastern Europe is putting patients within the NHS at risk.  Lord Winston fears that the problem will worsen unless action is taken.

The Nursing and Midwidfery Council is unable to test nurses arriving from European countries on their langauge ability or clinical skills under EU law.  The law is intended to prevent restricion of the free movement of labour within the EU.

According to the GMC, doctors from the European Economic Area constitute about 10% of the doctors working in the UK.  The number of European nurses registering to work in the UK has doubled since tests on their language and clinical skills were abandoned. 

The House of Lords’ enquiry into free movement of medical workers within the EU was told that patients were being put at risk by medical staff who cannot speak English or understand  basic medical terminology such as ‘nil by mouth’. 

Lord Kakkar, a surgeon, agreed with Lord Winston’s views:  “It is not right for fellow practitioners to have to work with these individuals.  But most of all it is not right for the citizens of our country, who at times when they are unwell and becoming patients in our health care systems need to be absolutely certain that the practioners to whom they are exposed are  competent, meet the standards of medical practitioners in our country and therefore can with certainty provide the quality of care that citizens in our country deserve”.

From this it is difficult to see how any medical; or nurse practitioner can effectively treat a patient without the ability to communicate adequately to obtain an accurate history from the patient.

Clinical negligence is a specialism of Blackburn and Co. If you would like to discuss a clinical negligence issue with us simply call or contact us

Blackburn & Co are running a free legal advice clinic on the first Wednesday of every month from 5.30pm to 7.30pm.  If you wish to attend please contact Emily Dale on 01305 858050 tomake an appointment.

Blackburn & Co are running a free drop in legal advice clinic on Sunday 7th November from 11am – 1pm.

If you have any legal questions please feel free to come and see us.

Joint tenants or tenants in common? Do you know the difference and the implications of how you hold your property?

There are two forms of ownership of property, namely, legal and benficial ownership. Legal ownership is when you are registered owner of the property whereas beneficial ownership could be when a declaration of trust has been executed in favour of someone else let’s say ‘Mr P’ and therefore for tax purposes it is Mr P and any income tax liability is that of Mr P and not the legal owner.

In most cases the legal and the beneficial owner are the same.

It is the beneficial ownership which can be held as joint tenants or tenants in common.

Holding property as joint tenants means that on the death of one of the joint tenants the property will pass automatically by survivorship to the other tenant irrespective of any Will that was made. As joint tenants will have equal rights to any income arising from ownership of the property.

As tenants in common if one of the tenants dies then that tenant’s interest or share in the property will pass by that tenant’s Will or by the rules of intestacy (ie when there is no Will). Any income arising from the property are not necessarily equal and the proportions often may vary. For example, 60/40.

Holding a property as tenants in common offers much more flexibility for tax planning purposes. A property which was originally purchased as joint tenants can easily be changed to tenants in common by an act of severence. This can simply be done by giving the other tenant notice in writing. The other tenant does not have to give their consent.

Positive action should always be taken in structuring property ownership.

If you are not sure how you hold your property or indeed what the better option is for you taking into consideration all the surrounding factors then it is important that you arange for a free consultation appointment without delay.

Divorce & Family Matters and any other legal issues can be dealt with by our Solicitors at a free drop-in clinic on Sunday 7th November from 11am to 1pm, we are the only firm in the area to be offering this service.

Also as part of the Dorchester BID, if you instruct us to act for you, we will refund up to 2 hours parking fee paid by you on production of your parking voucher when you come to see us on any other day. Don’t forget we offer a free advice clinic from 5.30pm – 7.30pm on the first Wednesday of every month, by appointment.

A pre-nuptial agreement is binding on the husband, so say the Supreme Court in the case of Radmacher, upholding the Court of Appeals decision. This is the first case in which this view has been held and indicates a change of approach by the courts.

Thorpe LJ in the lead judgment stated “In future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties entered freely”.

It is therefore important for anyone considering entering into a pre-nuptial agreement to seek independent legal advice before signing the same.

Setting up a power of attorney in supportive communities like Dorchester can help. Have a look at the case below to understand furhter.

In April 2009 an elderly lady suffering from dementia was snatched from her daughter’s house by social workers and taken into care. It was against the family’s wishes but social services did not agree with the lady’s daughter that it was in her best interests to be cared for by her daughter in her daughter’s home.

How could this have been avoided?

A health and welfare lasting power of attorney allows the person donating the power to make decisions about matters such as where they live, how they are cared for and what healthcare they receive. It allows the donor to make such decisions whilst they have mental capacity to do so. Attorneys can only use the power if the document setting out the power has been registered and the donor no longer has capacity to make decisions themselves.

In the absence of a lasting power of attorney, social services can make decisions on behalf of a vulnerable person if they think they lack mental capacity and believe it is in their best interests. They do not have to follow what the family want.

What happened to this elderly lady may never happen to you but if it does, you and your family will be glad you made the power. At Blackburn & Co we are able to guide you through the process of making a lasting power of attorney and complete all the documentation on your behalf. You can also make a power of attorney to cover decisions relating to your financial affairs and we will advise you in relation to this.

Dorset residents with clinical negligence enquiries are invited to contact us to arrange an appointment at our new free no obligation evening  clinical negligence advice clinic which is held at our office at Wessex Chambers, 33 Trinity Street, in Dorchester every Wednesday between 5.30 p.m. and 7.30 p.m.  Each appointment will last at least 30 minutes.

It is hoped that this will assist those people whose day-time commitments make it difficult for them to see a solicitor during the day.

We are happy to make home or hospital visits in appropriate cases.

Please contact Sarah White on 01305 858050 if you would like to make an appointment for advice concerning clinical negligence.

Less than a quarter of non-UK EU GP’s are currently being tested for their ability to speak English and their clinical skills,  according to an investigation by Pulse, the medical newspaper.

In 2008, Dr Daniel Ubani, a German doctor, killed a patient, David Gray, by giving him a massive overdose of more than 10 times the normal dosage of diamorphine on his first out-of-hours GP shift in the UK.  Dr Ubani later admitted that he had never heard of the drug.  Dr Ubani could not speak English well.  Dr Ubani was struck off by the GMC after being described as the coroner, who ruled that Mr Gray had been killed unlawfully, as “incompetent”.  However, Dr Ubani still practices in Germany.

Mr Gray’s case was not in isolation:  in 2008 a pensioner was killed as a result of mistake made by a German doctor with a  poor ability to communicate in English.

Under the new GP contract of 2004, British GP’s no longer have to provide out-of-hours care for their patients.  Instead, this care is contracted out to firms which often rely on overseas doctors from both inside and outside the EU.

Whilst non-EU doctors face stringent evaluation of their ability to communicate in English and provide competent medical treatment, EU law providing for the free movement of labour prevents the GMC from testing clinical competence in non-UK EU doctors without applying the same test to UK EU doctors. 

There is however no such prohibition on testing the ability of non-UK EU doctors to speak English.  Indeed, Niall Dickinson, Chief Executive of the GMC, stated that “Both the government and the GMC have reminded PCTs of their responsibility to ensure that doctors they employ or contract with are fit for purpose; this includes making sure they can communicate effectively”.

108 of the 152 Primary Care Trusts (“PCT’s”) in England responded to a Freedom of Information (“FOI”) request.  Worryingly, over two thirds (74 of 108) do not collect data on whether the ability of these doctors to speak English and their clinical skills had been verified.   Only 23% of non-UK EU GP’s had been tested in English language, according to the 35 PCT’s which provided information on language testing;  clinical skills had been tested in only 17% according to data from the 20 PCT’s which provided such information.

Locally, of the two local PCT’s which have actually collated the data to be able to respond, in Dorset, NHS Bournemouth & Poole have tested the language skills of 2 out of 7 non-UK EU GP’s. At NHS Somerset, 2 out of 6 have had their English language skills checked. Neither PCT has examined the clinical competence of these doctors.

Extrapolating these figures suggests that up to 1,500 non-UK EU GP’s in England and Wales may not have had their English skills tested.

Mr Gray’s son, Dr Stuart Gray, who is a GP, was “horrified” by these results: “What more does it take?  It’s only a matter of time before there is another death”.

Professor  Steve Field, Chairman of the Royal College of GP’s, commented “We’ve given PCT’s a wake-up call and it’s disgraceful they still aren’t taking the issue seriously”.

Please contact Blackburn & Co. if you or your family have  been harmed or affected as a result of problems similar to those experienced by Mr Gray.

Clinical negligence claims in Dorset, as elsewhere, are sometimes perceived by members of the public as unethical.  However, a lot of the commonly held views are not supported by the evidence.

Frank Furedi, a Professor of Sociology at the University of Kent, has suggested in national newspapers that it is “immoral” for personal injury victims to sue public bodies.

David Bott, the Vice President of the Association of Personal Injury Lawyers (“APIL”),  debated this issue with Professor Furedi on the Jeremy Vine show broadcast on Radio 2 on 27 September 2010.

The view expressed by Professor Furedi about claims against public bodies generally  appears to reflect those which are held by many members of the public in Dorset about clinical negligence claims, which include the following :

• “Everyone makes mistakes.  Doctors try their best to treat patients and should not be sued just because they, like the rest of us, are only human”.  This view is based on the incorrect presumption that all mistakes by medical  staff automatically allow a claim to be made for compensation. It is entirely correct that the vast majority of medical  staff  use their utmost care and skill when treating patients and perform their jobs  well.   However, mistakes do happen.  To be legally actionable, such  an  error must be negligent.  According to the test used by the courts, a clinician is only  negligent if no responsible body of medical opinion would regard the actions and omissions (including mistakes) as reasonable₁.  Put another way, a doctor is not negligent if supported by a minority of responsible medical  opinion – even if most doctors are critical.   Thus, it is only mistakes which no responsible minority body of medical  opinion would regard as reasonable  that give the patient the right to recover damages.

• “It is not fair to judge the actions of medical  staff with the benefit of hindsight”.  The courts judge the standard of care of a clinician according to the information which was or should have been known  in the circumstances of and at the time of the treatment complained of.  Once again, therefore, this objection is incorrect.

• “Medical  claims are used to make money by opportunistic and greedy people and their lawyers”.  Damages are awarded to put the victim in the same position, as far as possible, as (s)he would have been in, had (s)he received the minimum acceptable standard of care.  In catastrophic cases, large damages are needed  to pay for past and future  expenses and losses which the injured person would have avoided if (s)he had  received the minimum acceptable standard of care.  These can include the cost of care which the claimant would have been able to provide him/herself  and the earnings lost as a result of the injured person being unable to work.  Damages do not include an element of profit.  This  point is therefore misconceived.

• “Injured people should not claim damages for clinical negligence as the welfare state will  look after them”.  A catastrophic  negligent injury or fatality to a family’s  breadwinner can leave  the injured person’s family with no option but to claim  state benefits, leaving them considerably worse off than they should have been had the breadwinner received the minimum acceptable standard of care.  The only way to put the injured person and their family into this position is to claim damages.  This argument would be  more convincing if made by a person or a member of the  family of someone who has been  severely injured as a result of clinical negligence.   Incidentally, any benefits paid to an injured person, who successfully recovers damages for the same loss,  are repaid to the state via the compensation recovery unit of the DWP.

• “The NHS is creaking under the financial strain of clinical negligence claims as a result of our ‘litigation culture’”.    According to the NHS litigation Authority’s own figures, the average annual amount of damages and legal costs paid between 2005 and 2008 was about £525 million – a very large amount of money₂.  However, this needs to be put into perspective.  It represents 0.57% – just over half of one per cent - of the annual NHS budget which was £90.7 billion in 2007-2008₃.  Furthermore, the cost to the NHS of treating people who:
• had suffered injuries  whilst being treated by the NHS was £2 billion (2.2%)₄;
• had been harmed by hospital acquired infections was £1 billion (1.1%)₄ ;
• suffered from obesity was £1 billion (1.1%); and
• smoke was £1.55 billion (1.7%)₅.

• “The NHS is improving patient safety and should not be distracted by clinical negligence claims”.   Unfortunately, the number of accidents and near misses have been increasing.  885,832 were reported in 2004 and 974,000 in 2005₆.  Hospital acquired infections harm approximately 300,000 patients every year₆.  Of concern is the fact that many patient safety alerts, which are often prompted by dangerous occurrences and are designed to prevent recurrence of such medical accidents, have not been implemented.  The recent progress of the NHS in improving patient safety compares unfavourably to the reduction of accidents at work reported by the HSE₈ and the number of air safety incidents reported to the Civil Aviation Authority.

• “Clinical negligence claims are all about money.  They  do nothing to prevent the same  thing from happening again”. Studies have suggested that potential legal liability for substandard medical care will reduce the provision of such substandard  care₉.

In conclusion, whilst the arguments  set out above about the morality of clinical negligence claims make useful soundbites, they do not withstand proper analysis.  Injured people and their families are and should be   entitled to seek damages whether they are injured by the negligence of  a private or a public body.

1. Bolam –v- Friern Barnett Hospital Management Committee (1957) 1 WLR 582, QBD.  Maynard –v- West Midlands RHA (1984) 1 WLR 634.
2. House of Commons Hansard  Written Answers for 6^th May 2008:

1. Financial Management in the NHS: Report on the NHS Summarised Accounts 2007-8.
2. National Audit Office “A Safer Place for Patients:  Learning to Improve Patient Safety” 3^rd November 2005.
3. Parliament Select Committee Report:  The Economic Costs of Obesity.  These are the direct costs only.  When the indirect costs are added, the total cost comes to £3.5 billion.
4. British Medical Journal (2001) 332 BMJ 517 and National Audit Office “A Safer Place for Patients:  Learning to Improve Patient Safety” 3^rd November 2005.
5. HSE Report “Health and Safety Statistics 2007/2008.
6. Economic Journal 114 June 2004  “The Economics of Clinical negligence Reform in England”

Contact John Blackburn for more information about clinical negligence claims in the Dorset area