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Capsticks LLP

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Case 1: Real Estate

Joint Clients: The Christie NHS Foundation Trust, Manchester and University College London Hospitals NHS Foundation Trust

Capsticks acted for two UK leading hospital trusts to procure the first national service delivering high energy proton beam therapy (“PBT”).

PBT is a state of the art large particle radiotherapy technique used increasingly worldwide for difficult to treat cancers such as those of the brain, eye and spine, and paediatric cancers.

Each project entailed the installation of a sub-atomic particle synchrotron and beam delivery system that requires stringent building performance in terms of structural stability, complex mechanical and electrical services and radiation shielding properties.

Capsticks was able to co-ordinate separate commercial arm’s length equipment and build procurements for each Trust over a period of just under two years and to complete the transactions on time to meet NHS service commencement in 2018/2019.

Capsticks negotiated with the leading suppliers worldwide in PBT technology and also with leading UK and international building contractors. 

The UK project contracts are amongst the first worldwide to provide for installations in inner city locations rather than greenfield campus sites.

Capsticks also drafted the development agreements between the DH/NHS England and the Trusts to deal with funding and the allocation of residual risk that could not be transferred to the various suppliers and contractors.

The UCLH project was particularly technically challenging with an above ground and subterranean development in a highly congested central London location requiring the control of site conditions and neighbouring property rights.

Externally, Capsticks provided contracts between the Trusts and the suppliers and contractors that provided for integrated project delivery, collaborative working and co-operation, and full provision for risk management and mitigation at the various stages of the project.

Internally to each Trust, Capsticks was also able to work with the Trusts and their procurement and design/build teams and with each Trusts’ clinical and medical physics stakeholders, and to assist in the preparation of reports to respective Trust boards and to advise Trusts so as to obtain DH and NHS England sponsors’ approvals at various gateway stages.

Case 2: Employment
Client: NHS Employers and all NHS employing Trusts in England

In 2015 and 2016, Capsticks’ Employment team has been advising the NHS on one of its biggest employment law challenges – the national dispute with the British Medical Association and the junior doctors. We have been providing strategic advice to NHS Employers and to all NHS employing Trusts in England. We have advised on issues relating to the implementation of the new NHS junior doctor contracts, and the related industrial action. The action followed national balloting of circa 53,000 doctors in training in England, and led to a series strikes by doctors for the first time in over 40 years. We prepared advice and FAQs for the NHS Employers’ website, and provided guidance and advice in webinars attended by NHS HR Directors nationally. We participated in regional discussion groups of NHS employing Trusts and operated the national NHS Employers Industrial Action Helpline. NHS Employers were named as an interested party in two judicial reviews in the High Court brought against the Secretary of State for Health and in both proceedings we have advised NHS Employers.

Alongside the Department of Health’s legal team we are also currently providing advice on the impact of any changes to the contract and its implementation, as well as the management of further industrial action threatened for the autumn and winter of 2016.


Case 3: Information Law
Client: (Client name is confidential but case is publishable)

We advised on complex issues surrounding a Freedom of Information Act request made by a prominent national newspaper. The information related to an investigation into alleged fraud at a mental health trust.
Given the importance attached now to ensuring transparency in NHS investigations, our clients regularly face demands to disclose sensitive information.  However, as in this case, it is often of paramount importance to them that the details of such investigations remain confidential. This is not only for reputational reasons, but also to protect staff and ensure the effective functioning of future investigations, in the public interest.
Following our advice, the Trust refused to disclose the information and the newspaper subsequently made a complaint to the Information Commissioner’s Office (ICO). Both the fact of the investigation and the Trust’s failure to disclose have been reported on heavily in the national media at that stage. The Information Commissioner agreed with the Trust’s application of exemptions, in accordance with our advice. The applicant then appealed to the Information Tribunal – but subsequently abandoned its appeal. Our advice therefore protected our client’s information from inappropriate disclosure throughout the life-cycle of the information request.
Because of our specific knowledge of the complexities of and pressures on the healthcare sector, as well as the intricacies of this specialist area of law, we were able to provide timely, sound, and practical legal advice, which achieved the right result for our client. We also advised the client more broadly on other matters connected with the underlying issue, providing a joined up service.

Case 4: Public Law. Case name: Darnley v Croydon Health Services NHS Trust [2015] EWHC 2301 (QB).
Client: Croydon Health Services NHS Trust
The question that arose in Darnley was whether there was a legal duty on receptionists, who were not clinically qualified, in a hospital A&E department to provide accurate information about waiting times to a patient who had attended for treatment in the Department. The issue is significant because the evidence is that approximately 5% of patients leave an A&E department without being seen and the most commonly quoted reason is the length of waiting times. In 2011 it was estimated that approximately 450,000 patients leave A&E before being seen.
The claimant had been attacked and struck on the head and went with a friend to A&E. The judge found that the patient was told by the receptionists that he would have to wait 4 to 5 hours before being seen and he left after waiting for 19 minutes.  The judge concluded that he should have been triaged by a nurse within 30 minutes of attendance.
The judge analysed the legal test for establishing a duty of care (Caparo Industries plc v Dickman [1990] 2 AC 605) and concluded that the issues of proximity and whether it was fair just and reasonable to impose liability were not made out. The role of receptionists did not impose a legal duty to guard patients against harm caused by a failure to wait to be seen. In addition, information about waiting times from receptionists was a matter of courtesy and did not impose a legal liability in damages. The potential consequences of the imposition of such a duty were that receptionists would be instructed not to answer queries. Finally, the claimant should take responsibility for the decision to leave given that he knew what had happened to him and that he would ultimately be seen.
The claimant’s appeal against this judgement is outstanding.

Case 5: Professional Discipline
Client: Professional Standards Authority for Health and Social Care
A key case for our Regulatory team in 2016 saw us acting for the Professional Standards Authority for Health and Social Care in a referral to the High Court under section 29 of the NHS Reform and Health Professions Act 2002.

The appeal was from a decision of a Panel of the General Medical Council’s Medical Practitioners Tribunal Service to suspend a doctor, Steven Burn, from its register for 12 months.  This appeal was important as it was high profile and involved where the threshold should be drawn in relation to conduct that is fundamentally incompatible with continued registration and therefore requires the highest sanction of erasure.

The Panel had found that Dr Burn had accessed over 60 indecent images of children on his work computer, and that he had received a criminal conviction for this.

The Authority submitted that the sanction imposed by the Panel was unduly lenient and that it should be substituted for an order for erasure.

The original criminal and regulatory proceedings both received wide media coverage, including public criticism by the Chief Constable of the area police force who condemned the Panel’s determination for being ‘lame’, ‘flawed’ and ‘ill-judged’.

Both the GMC and Dr Burn conceded the PSA’s appeal on all grounds and, because we had succeeded in bringing the case to a conclusion by consent, the High Court was able to order that Dr Burn be erased without the need for a full public hearing.

We worked with our client and the GMC to co-ordinate the public statements following the appeal and to manage the media interest.  Our client was delighted with the outcome, confirming in a press release that it “firmly marks the seriousness of the offence of possession of child pornography, strengthens public confidence in the medical profession and protects the public’. 

Case 6: Social Housing
Client: Poplar Harca
We acted for Poplar Harca on what is believed to be the first multi-minor injunction applications, applying for injunctions on a without notice basis against 6 Defendants, 5 of which were under 18. The interim injunctions were granted together with powers of arrest and exclusion orders.
Few firms would have had the strength in depth and expertise to obtain these new orders and within the timescales (injunctions obtained within one working day of instruction). This was therefore a unique successful multi-injunction application against minors, undertaken at speed.
We educated the Youth Court on the process as this was the first they had encountered and a very strong message was sent by the Registered Provider that it would not tolerate anti-social behaviour irrespective of the age of the perpetrators.

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