The Weekly Round-Up: Ministerial Maternity Leave, a New Offence and Guidance on Visiting Gran (pt. 1)

8 March 2021 by

On Monday the Ministerial and other Maternity Allowances Act 2021 came into force, allowing the Attorney General, Suella Braverman QC, to be the first minister to take maternity leave.  The Act grants cabinet ministers six months’ maternity leave whilst retaining their government post, whereas in the past MPs would have to resign to take time off to give birth.  The Act is not without its critics, including those saying it should apply to MPs outside the Cabinet, and include provisions for paternity, adoption and shared parental leave.  There was also heated debate in the Lords on the gender-neutral phrasing of the original Bill, with the Lords voting to replace ‘person’ with ‘mother’ in the final Act, despite its potential exclusion of trans and non-binary people.

A new offence of non-fatal strangulation has been included in the Domestic Abuse Bill following a campaign by the Centre for Women’s Justice, other organisations and the Victims’ and Domestic Abuse Commissioners.  The Bill is passing through the House of Lords and now includes the offence of intentionally strangling another person or otherwise affecting their ability to breathe.  Currently perpetrators are usually charged with common assault, with a maximum of just six months in jail.  The Bill also includes amendments strengthening the laws on ‘revenge porn’, making it an offence to threaten to share intimate images of a person with the intention to cause distress, and extends the coercive control offence to situations where perpetrators and victims do not live together.  The Victims’ and Domestic Abuse Commissioners welcomed the amendments but urged the Government to go further in creating a defence for people who commit offences due to domestic abuse.

On Friday the Women and Equalities Committee published the Government’s response to its report on the impact of coronavirus on BAME people, in relation to inequalities in health, employment, universal credit, housing, and the no recourse to public funds policy.  The Committee’s inquiry found that comorbidities in BAME people place them at risk of experiencing coronavirus more severely and with graver health outcomes.  Specific risks to BAME people include difficulty in accessing Government guidance, the disproportionate impact on BAME people of zero-hour contracts and being denied furlough, difficulties in applying for Universal Credit, and overcrowded housing due to housing inequality.

The Department of Health and Social Care on Friday published new guidance for care homes and visitors, to take effect on 8 March.  This is not a change in the law, as visits to care homes have never been unlawful, but the new guidance sets out the government’s advice on safe visiting practices.  This is that:

  • Every care home resident may nominate one regular visitor.  Visitors should take a Covid test at every visit, wear appropriate PPE and follow care home infection control measures.
  • Physical contact between visitors and residents should be minimal and should not include “close physical contact such as hugging”.
  • Residents with the highest care needs may also nominate an essential care giver
  • Care homes may allow visits from other friends and relatives to take place outdoors, in visiting pods, or behind “substantial screens” or windows.
  • Visits in exceptional circumstances such as end of life should always be enabled

It will not be mandatory for visitors or residents to have been vaccinated, but it is strongly recommended that they take the vaccination when it becomes available to them.  At step two of its roadmap the government will reconsider this guidance, possibly extending the number of visitors to two per resident.  The guidance specifies that visiting decisions should follow legal obligations under the Equality Act 2010 and Human Rights Act 1998 and should take into account “[t]he individual resident, their views, their needs and wellbeing”, the wellbeing of other residents, and involve the resident’s family and friends and the provider and other relevant professionals”.

The reality of coronavirus-related care home issues was apparent in Re E (Vaccine) [2021] EWCOP 7 earlier this year.  The Court of Protection declared that it would be lawful and in her best interests to give an 80-year-old care-home resident the Covid-19 vaccine, when she lacked capacity to decide for herself. This was despite her son’s objections primarily due to concerns about the speed with which the vaccine had been trialled and approved.

In the courts:

Basma v Manchester University Hospitals NHS Foundation Trust & Anr [2021] EWCA Civ 278 – this was a judicial review claim brought on behalf of Sophie Basma, a 10-year-old with Spinal Muscular Atrophy (‘SMA’), against a decision by an NHS Trust not to give her the new medication ‘Nusinersen’ because she met only six of the seven eligibility criteria.  Family and friends testified to her ability to satisfy the seventh criterion, namely being able to walk five steps unaided in the 12 months before the treatment decision, but the NHS England Clinical Panel concluded “family recollection” provided insufficient evidence. The Court of Appeal allowed Sophie’s appeal, finding that the judge at first instance had erred in concluding that the final criterion was wholly a matter of clinical judgement rather than straightforward fact-finding.  The Consultant doctor had unlawfully delegated her decision-making power to the Clinical Panel by taking its assessment as determinative not advisory. Furthermore, disregarding the family’s evidence of Sophie’s ability to walk five steps, when there was no clinical evidence available was irrational, as was the consultant’s reliance on the panel’s advice and disregard of informal evidence. A summary and commentary on the case by Rosalind English is here.

A And B (Minors) [2021] EWHC 455 (Admin)  – this was a judicial review claim brought on behalf of A and B, two young orthodox Haredi Jewish boys with medical and behavioural conditions.  The claimants submitted that their local authority’s decision to offer respite accommodation in a residential home in Birtenshaw, Manchester, instead of in an exclusively orthodox Jewish residential home in Bayis Sheli, London, was irrational and public law unreasonable and in breach of ECHR Articles 8, 9 and 14; sections of the Equality Act 2010 and the Children’s Act 1989 related to discrimination and provision of accommodation.  This was based on their contention that Birtenshaw could not ensure adequate compliance with the boys’ strict dietary and Sabbath-related religious requirements, particularly because the boys conditions meant they were unable to fully understand and follow these strict requirements alone.  The court found the decision to offer A a 12-week assessment placement at Birtenshaw public law unlawful and in breach of ECHR Articles 8 and 9, but that the decision to offer B one fortnightly overnight stay was neither unlawful not in breach of his ECHR or Equality Act rights.

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