Speiler' S Law Relating to Hospitals Speiler' S Law Relating to Hospitals

Speiler' s Law Relating to Hospitals Speiler' s Law Relating to Hospitals Seventh edition John Finch Senior Lecturer in Law, Leicester University Formerly member of the Mental Health Act Commission for England and Wales Springer-Science+Business Media, B.V. Firstedition 1947 by H.K. Lewis & Co. Ltd. Subsequent editions 1949, 1956, 1965, 1971 and 1978 Seventh edition 1994 © 1994 Springer Science+Business Media Dordrecht Originally published by Chapman & Hall1994 Softcoverreprint of the hardcover 7th edition 1994 Typeset in 10/12pt Palatino by Photoprint, Torquay, Devon ISBN 978-0-412-41000-0 ISBN 978-1-4899-7122-7 (eBook) DOI 10.1007/978-1-4899-7122-7 Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the UK Copyright Designsand Patents Act, 1988, this publication may not be reproduced, stored, or transmitted, in any form or by any means, without the prior permission in writing of the publishers, or in the case of reprographic reproduction only in accordance with the terms of the licences issued by the Copyright Licensing Agency in the UK, or in accordance with the terms of licences issued by the appropriate Reproduction Rights Organization outside the UK. Enquiries concerning reproduction outside the terms stated here should be sent to the publishers at the London address printed on this page. The publisher makes no representation, express or implied, with regard to the accuracy of the information contained in this book and cannot accept any legal responsibility or liability for any errors or omissions that may be made. A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication data available @J Printed on permanent acid-free text paper, manufactured in accordance with the proposed ANSIINISO Z 39.48-1992 and ANSI Z 39.48-1984 Contents Preface xxviii Acknowledgements XXX Specialist consultants xxxi Table of cases xxxii Table of statutes Table of statutory instruments and rules lxvi 1 Hospitals: definition and classification 1 1.1 Definition of 'hospital' 1 1.1.1 General 1 1.1.2 National Health Service 2 1.2 Voluntary and public authority hospitals 4 1.2.1 Voluntary hospitals 4 1.2.2 Public authority hospitals 6 1.3 Functional classification of hospitals 6 1.3.1 General and special hospitals 6 1.3.2 Specialist and general practitioner staffed hospitals 7 1.3.3 Changes in use of hospitals: voluntary hospitals 7 1.3.4 Closure or change of use of National Health Service buildings and facilities 10 1.4 State hospitals 11 1.5 Provisions affecting the psychiatric special hospitals 13 2 Hospitals managed under the National Health Service Act 1977 18 2.1 Outline of the legislative structure of hospitals within the National Health Service 18 2.1.1 Introductory 18 2.1.2 The constitutional position of health authorities 21 2.1.3 Effect of the National Health Service Reorganisation Act 1973 21 2.2 Executive bodies 21 2.2.1 Regional Health Authorities 21 Introductory 21 Admission of press and public to meetings 22 vi Contents Fundions of Regional Health Authorities 24 Wales 24 2.2.2 District Health Authorities 24 Introductory 24 Determination of Districts 24 Establishment of District Health Authorities 25 2.2.3 Functions of Regions and Districts 25 2.3 Relations of health authorities with other statutory bodies under the National Health Service Act 1977 29 2.3.1 Central administration 29 2.3.2 Clinical Standards Advisory Group 31 2.3.3 Local Advisory Committees 32 Regional Advisory Committees: recognition and functions 32 Duties of Advisory Committees: obligation of Regional Health Authority 32 Welsh Advisory Committees: recognition and functions 32 Expenses of Advisory Committees 33 District Advisory Committees: recognition and functions 33 2.4 Co-operation and assistance between health authorities, local authorities and voluntary bodies 33 2.4.1 Local authorities and voluntary bodies 33 Health authorities and local authorities: establishment of consultative committees 33 Supply of goods and services by or on behalf of the Secretary of State 34 Supply of goods and materials to persons providing general medical, dental, ophthalmic or pharmaceutical services 35 Supply of goods and services by local authorities 35 2.4.2 Voluntary organisations and other bodies 36 Provision of services under the National Health Service Act 1977 by voluntary and other bodies and persons 36 Provision of facilities (including goods or materials, premises and vehicles) to persons and bodies providing services 36 Power to make payments towards expenditure on community services 37 2.4.3 Ancillary services provided on behalf of the Secretary of State 38 2.4.4 Community Health Councils 38 Performance of functions by Community Health Councils 43 Contents vü Special provision for urgent closure 44 Limits on the obligation of the health authority to consult other relevant bodies 45 Information to be furnished by relevant District Authority or Family Health Service Authority 45 Inspection of premises by Councils 46 Meetings between the Council and the relevant District Authority 46 Access to information 46 2.5 Internal arrangements 47 2.5.1 Default and emergency powers of the Secretary of State 47 2.5.2 Contracts 47 2.5.3 Conditions of employment and the appointment of officers 48 2.5.4 Protection of members and officers of health authorities and trusts 48 2.5.5 Finance 50 Financial provision for health authorities 50 Travelling allowances for health authority members 50 Travelling expenses of officers 51 Travelling expenses of patients and visitors 51 2.5.6 Health Services Act 1980: fund raising by National Health Service authorities 51 Health and Medicines Act 1988: income generation 51 2.5.7 Motor vehicles used for hospital purposes 52 Registration and licensing 52 Insurance 52 2.5.8 Land 53 2.5.9 The purchaser-provider relationship and the 'internal market' 56 2.6 National Health Service trusts 58 2.6.1 Membership and procedure of National Health Service trusts 59 2.6.2 Constitution and proceedings of National Health Service trusts 63 2.6.3 Duties, powers and status of National Health Service trusts 65 2.6.4 Dissolution of National Health Service trusts 68 2.6.5 Financial and supplementary provisions relating to National Health Servicetrusts 69 2.6.6 Consultation on establishment of National Health Service trusts 69 Vlll Contents 3 Voluntary hospitals 73 3.1 Governing bodies and their powers and duties 73 3.1.1 Chartered hospitals 73 3.1.2 Hospitals incorporated by private Act of Parliament 74 3.1.3 Hospitals incorporated under the Companies Act 75 3.1.4 Unincorporated hospitals 75 3.1.5 Hospitals administered under a scheme established by the Court or the Charity Commissioners 76 3.1.6 Effect of Health Service Acts on voluntary hospitals 77 3.2 Powers of voluntary hospitals 77 3.2.1 Limits of powers of incorporated hospitals 77 Acts in excess of powers 77 Indemnity for Board members 78 3.2.2 Powers of unincorporated hospitals 78 Limits on the powers 78 Indemnity for trustees and committee 79 3.3 Loans and overdrafts 79 4 Nursing homes: registration, conduct and inspection 82 4.1 Registration and conduct of residential care homes 83 4.2 Nursing homes and mental nursing homes 89 4.2.1 Imposition of conditions on nursing home registration 95 4.2.2 Urgent procedure for cancellation of registration 96 4.3 lnspection of homes 97 4.4 Registered Hornes Tribunals 98 4.4.1 Constitution and functions 98 4.4.2 Limitation on the power of the Registered Hornes Tribunal 99 4.5 Offences 100 4.6 Nursing Hornes and Mental Nursing Hornes Regulations 1984 101 5 Legal proceedings against health authorities and trusts 107 5.1 Vicarious liability 107 5.1.1 Employee distinguished from independent contractor 107 5.1.2 The course of employment 108 5.1.3 Vicarious and direct liability distinguished 109 5.1.4 Health authority staff as employees 110 5.1.5 Financial aspects of liability: National Health Service indemnity arrangements 113 Who is covered by the health authority indemnity scheme? 116 Contents IX 5.1.6 Other relationships involving care and treatment 117 Liability of negligent employee to indemnify his employer 120 Vicarious liability of nursing harne proprietor 121 Vicarious liability when hospital services are provided for the Secretary of State under contractual arrangements 122 Vicarious liability of agency supplying nurse to hospital 123 5.1. 7 Personal liability of members of governing body or proprietors 123 5.1.8 Addition of defendants 124 5.2 Limitation of actions 125 5.2.1 Generally 125 5.2.2 The 'date of knowledge' period 126 More than one injury 128 Misleading medical advice 128 5.2.3 Extension of the Iimitation period: persans 'under a disability' 129 5.2.4 Discretionary exclusion of time limits 130 5.2.5 Fraud of the potential defendant 131 5.2.6 Timelimit for claiming contribution between joint tortfeasors 132 5.2. 7 Limitation periods and retention of records 132 5.3 Access to records, reports, notes and data 134 5.3.1 Access to medical records prior to the commencement of legal proceedings 135 'Likely to be a party to subsequent proceedings' 135 The claim must be 'in respect of personal injury or death' 137 What documents are covered by the section? 138 Legal professional privilege 139 To whom may disclosure be ordered? 140 In what circumstances will an order for pre-action discovery be restricted to the applicant' s professional advisers? 141 Order for discovery in an action for personal injuries made against persans not themselves parties

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