Health Care Law

According to the Cambridge Dictionary, "health care" is defined as the “set of services provided by a country or an organisation for the treatment of the physically and the mentally ill” persons. To put it simply, health care lawyers are tasked with ensuring this service is upheld to the expected standard through their role of holding individuals or groups accountable when standards fall below the threshold. Health care law concerns itself with the binding rules in regard to health, which govern both the rights and responsibilities of governments, health workers, companies, and society as a whole. Those who practice in the field of health care law are essential because they provide clarity and guidance to others when dealing with significant issues and activities critical to health and safety, regulatory requirements and legal liabilities.

History of Health Care Law

It is difficult to locate a precise starting point for health care law as a discipline in England and Wales – there are some that argue that it has existed in some form or another since the onset of law in society. The introduction of health care law as a field is often attributed to the significant rise in case law and legislation dedicated to the area, as well as the emergence of academic courses and debate, which arose after 1980. After World War II, the concept of a state-funded hospital service was established in the UK with the most notable result being the introduction of the National Health Service (NHS) in 1948. During this time, there was a sharp focus on medical ethics and its relationship with both the law and society due to events such as the Nuremberg Trials. This developed the field of Bioethics, which in turn had huge ramifications for the emergence of health care law because academics were now aware of the ethical challenges that advances in medicine brought with it. The relationship between law and health care has been discussed for some time, but from 1980 the discipline became visible and notable as a distinct area of law in England and Wales. 

In the UK, the first notable legislation to acknowledge “health care” was the Equality Act 2010, which established equality duties for all public sector bodies. This legislation aimed to integrate a required consideration for the advancement of equality into the day-to-day business of all bodies subject to the duty. However, it was the Health and Social Care Act 2012 that first introduced legal duties designed at combating health inequalities in the UK. It included specific duties for health bodies such as NHS England, Department of Health, Public Health England, and Clinical Commissioning Groups that required them to take note of the issues and take steps to reduce health inequalities. The Health and Social Care Act also brought in changes for local authorities on public health functions. The Public Services (Social Value) Act 2012 was also a significant piece of legislation in this area because it required public sector commissioners (including local authorities and health sector bodies) to consider social, environmental and economic wellbeing when providing services and contracts. This has clear connections with efforts to reduce health inequalities by taking action regarding the acceptable standard of social health, for example, by providing necessary accommodation and employment for individuals and groups.

More recently, NHS England has produced a document for NHS commissioners on the duties covered by these Acts. These pieces of legislation may be seen as complementary in setting a framework for the public sector to take action to reduce inequalities within England at local and national levels.

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What subject areas does Health Care Law cover?

Health care law covers several other areas of law, with key ones including:

Employment Law

Employment law is intrinsically linked to health care law as an employer is subject to a wide range of duties, which are aimed at protecting the health and welfare of employees. The Health & Safety at Work Act 1974 is the central provision for safety in the workplace and this imposes a responsibility on the employer to take reasonable steps to ensure safety at work for all their employees. Like other employees in the UK, health care professionals are protected by this – in fact this is especially evident through the work of Doctors Defence Service lawyers who handle employment law cases for medical practitioners.

Tort Law

A “tort” is a civil wrong that unfairly causes a claimant to suffer harm or loss, culminating in legal liability for the person or group committing the tortious act in the form of damages. The tort of negligence is the most common tort, which imposes an obligation to uphold one’s duty of care and it’s therefore no surprise that this intersects significantly with the healthcare sector. Clinical negligence cases make up a considerable amount of health care law work, which means that knowledge of tort law is essential.

Contract Law

There can be many issues that arise within health care employment contracts and negotiations, and a health care lawyer will be tasked with remedying, reviewing and adjusting these for their client (employer or employee). This is particularly relevant when offices or clinics seek assistance in reviewing and preparing contracts because there are issues unique to the industry. For example, non-compete, ownership of patient records and work schedules clauses are all very important issues. Contract law can often apply more generally to the profession when practitioners make certain promises in regard to the patients’ health, which they later become liable for when not fulfilled. It is the role of the health care lawyer to provide guidance to individuals or groups to ensure that situations like this do not arise. 

Criminal Law

This area intersects with the health care law context by prompting people or groups to comply with standards deemed desirable and necessary for the sector. Criminal law proclaims that the mistreatment of others is wrongful and worthy of a criminal law offence. The more serious cases that health care lawyers handle will often intersect with criminal law so knowledge of the relationship between the two is essential.

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Why is Health Care Law important?

Those who practice in the field of health care law carry out an essential role because they are tasked with providing clarity and guidance to others when dealing with significant issues and activities which are critical to health and safety, regulatory requirements, and legal liabilities. Both the health care profession and the law are intrinsically linked, and one cannot practice as a health care professional without having a thorough knowledge of the ethical standards and code of conduct expected. This relationship is summarised eloquently by Bonnie F Fremgen, a prominent figure in the field of Medical Law and Ethics, as follows: “Every effort should be made to provide a quality of care for patients that will not only help them recover their health but will also avoid lawsuits.”

As such, when a health care professional breaches their duty of care and this results in injury, there will be a penalty to pay. The health care lawyer will either be tasked with reducing these scenarios for their client (usually organisations) or acting to retrieve compensation for a client who has suffered in these instances (usually individuals). Whatever side you find yourself on, the health care lawyer’s role remains vitally important for individuals and groups alike.

Health care law is a field that is constantly changing and updating due to the constant new challenges it faces. This will no doubt result in both alterations and introduction of key pieces of legislation, which will impact the field. At present, the field of health care law is particularly relevant worldwide in light of the current Covid-19 Pandemic, which has placed the health care system at the forefront of everyone’s attention. It is no surprise that the field of health care law has followed it into this limelight due to its intrinsic nature with the former. This is evidenced by recent publication by NHS England that looks at the “Action required to tackle health inequalities in latest phase of COVID-19 response and recovery”.

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What is the best route into Health Care Law?

The intrinsic relationship between health care law and the health care system in general puts this area of law in a unique position whereby you can gain a good feel for the field before making significant inroads into law. This is particularly useful if you are undecided on whether to pursue a career in this field and want to gain a good understanding before doing so. Below are some useful steps that will help you along your journey to become a health care lawyer:  

1. Attain relevant work experience:  It is sensible to gain some relevant work experience in the health care field (legal or not) as this will allow you to gage an understanding for the health care sector as a whole and determine if its right for you. The next steps that follow will not be helpful if you do not have a passion for the field of the health care law. Work experience opportunities are discussed later on this article. 

2. Attend law fairs: This is a great way to get a snippet of what life is like at a particular law firm that specialises in the field of health care law. You will want to carry out extensive research on the firms that are in attendance on campus to pinpoint which ones specialise in this area. This will also ensure that you are armed with useful questions to ask the lawyers or trainees representing their firms and heighten your understanding of then field and the firm.

3. Sign up to open days: If you have carried out the above steps and pinpointed what firms you want to pursue further, a great option is to attend their open days and law school events. This will provide further information on what a health care law specialist looks like and the type of work you can expect to come across. This is a great opportunity to ask more in-depth and personalised questions relating to the particular firm or their trainees/solicitors.   

4. Complete a vacation scheme: If you have attended a law firm’s open day and liked what you have seen, the next useful step is applying for a vacation scheme.  Most law firms will run vacation schemes annually and these often span the course of a week, sometimes two weeks. During this time, you will essentially be working as a health care lawyer and carrying out the work you can expect to complete as a trainee and qualified lawyer. This is a fantastic way to get a good feel for the firm and work alongside specialists in the field before making any major commitments. 

5. Apply for a training contract: Once you have undertaken the above steps and determined a law firm you want to work for in the field of health care law, you will need to apply for a training contract. The application process differs between firms – it often entails sending a CV and cover letter before completing a competency test/day and/or an interview if you have been successful during the prior stages. Unsurprisingly, at this stage you will need to have a thorough understanding of the field and the law firm you are applying to if you want to be successful in attaining a training contract. If you have been successful, you will undertake a two-year training period where your vocational academic knowledge is put into practical use before finally qualifying as a health care lawyer.

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How does Health Care Law differ around the world?

Health care systems around the world can differ significantly, which in turn creates discourses in the application of health care law as a discipline. The idea of a global health care law is now starting to come to the forefront but at present there still remains differences on a global scale. The World Health Organization – the specialised agency of the United Nations that is responsible for international public health – defines Universal Health Coverage to be that: “all people and communities can use the promotive, preventive, curative, rehabilitative and palliative health services they need, of sufficient quality to be effective, while also ensuring that the use of these services does not expose the user to financial hardship”

The difference types of health care systems are summed up well by US primary care specialists Vera Whole Health, who distinguish four models:

From the systems illustrated in this table it is apparent how the field of health care law can differ internationally. In countries where health care is heavily privatised, you can expect a health care lawyer to be predominantly involved in private practice, whereas in countries where government-funded health care takes precedence, you can expect to find health care lawyers working in the public sector, for example the Government Legal Department in the UK.

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What skills do you need to be a successful Health Care Lawyer?

This table illustrates some of the key skills needed to be a successful health care lawyer:

As a health care lawyer if you are working on behalf of an organisation you are likely to spend a large proportion of your working day advising hospitals, doctors, insurance providers and other medical facilities of their legal rights and obligations. On the other hand, you could find yourself representing individuals who are bringing a claim against the above which will require a high degree of interpersonal skills to show understanding to the client and gage a good overall understanding of the facts of the case. Trainees in field often find themselves assisting solicitors in meetings with their clients, conducting extensive research of the law relating to the case and examining any medical reports relied on, drafting statement given by witnesses and other relevant parties, and attending hearings on some occasions when appropriate. Targetjobs notes that more senior lawyers in the field can expect to have around 30 to 40 cases at any given time which no doubt requires a high degree of organisational and time management skills. Due to the nature of the cases, they can require a significant amount of time within a short timescale, but this doesn’t often transcend into late nights and weekend work. Those who are passionate will thrive of working multiple cases where you will be assisting a vast amount of people.    

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Day in the life of a Health Care Lawyer

As health care law encompasses a wide variety of subject areas, the daily tasks you can expect to carry out as a health care lawyer may vary dependent on what route you choose. There are common tasks applicable to most areas and these are as follows:

  • Advising health care providers who are involved in civil or criminal investigations of alleged violations, or individual clients who are seeking to bring a claim against the former.
  • Drafting template contracts or company policy documents for health care providers to use in their relationship with health care professionals.
  • Interviewing witnesses and any associated parties to gather statements and relevant information for your case.
  • Examining medical reports and the advice of health care professionals when establishing your case.
  • Writing legal documents and preparing for filing suits.
  • Researching similar case law to support your case.
  • Negotiating with lawyers representing the opposing party.
  • Advocating on behalf of your client if the case reaches court.

Studying an LLM in Health Care Law

Health Care Law is a fascinating field to specialise in at LLM level and there are plenty of great law schools to choose from for your Master of Laws studies. You can find out more about studying an LLM in Health Care Law in our dedicated article.

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Health Care Law work experience

Due to the far-reaching scope of the health care sector, there is ample opportunity to gain work experience whether this be specifically legal or more general. Health care work experience can be a great way to expose yourself to this area, thereby enabling you to make an informed decision as to whether or not you want to pursue a legal career in health care law. You can seek health care work with the NHS, private healthcare, or private/non-profit organisations within a range of different setting such as hospitals, care homes, people’s homes and paralegal work. As the Covid-19 pandemic has placed great pressure on the sector, there is plenty of work experience available for those who are passionate about making a difference to people’s lives and pursuing a career in health care law.

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Health Care Lawyer salary expectations

The salary you can expect to receive as a health care lawyer will depend on numerous factors. These are: 

The stage of your career – as with any other area, this often determines how senior your position is and thus what salary you can expect.

Size of your organisation – working in a larger health care law firm will likely attract a higher salary.

The sector you choose to work in – private sector often attracts a higher salary than working for the government and other areas of the public sector.

The organisation’s location – this can influence factors such as living costs which will in turn have an impact on your salary.

The average health care solicitor salary in the United Kingdom according to Talent.com is £41,740 per year. Trainee level positions start at around £27,500 per year while the most experienced workers in the field can earn up to £60,167 per year.

In contrast, according to Salary.com, the average health care lawyer in the United States earned $94,805 in early 2021, but the salary range typically falls between $82,290 and $107,507.

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Are there specific Health Care Law firms?

There are some excellent law firms that specialise in health care law.

US law firms

Here are some of the top US law firms to specialiase in this field:

Source

UK law firms

And some of the best of British...

Source

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Why is working in Health Care Law so fulfilling?

The impact your work can have on people’s lives as a health care lawyer is significant and this can be a very rewarding aspect for those passionate about helping others in their time of need. While you will often deal with upsetting cases, if you are able to assist with compensation this will no doubt help make the client’s lives easier during a difficult time. The cases that you will work on as a health care lawyer are likely to be varied and topical, making the area interesting to work in. It is field that is constantly evolving so it requires lawyers to constantly keep up to date with developments, so they fully understand any changes as they happen, which in turn keeps your clients updated on their legal obligations and helps them avoid unknown liabilities. This can make the field rather challenging but all the more rewarding, as you will constantly learning and adapting to change. While the standard health care case will often not gain a lot of media attention, there will occasions where very serious cases come along, those that involve large organisations with large sums of compensation being awarded. These cases will often attract media attention, which in turn can be rewarding if a positive outcome is achieved because your work and effort will be recognised.  

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Interview with a Health Care Law professional

Ellis Meade is currently working as a Trainee Solicitor within the Nursing Care Department at Hugh James Solicitors in Cardiff, where he deals with numerous health care law issues on a daily basis. Ellis recently started his Training Contract after spending several years as a paralegal in the Nursing Care Department.

What daily responsibilities do you have in your role?

My daily responsibilities include the management of emails and tasks relating to the files which are in my name. As a trainee you are required to manage all of the key dates which relate to your files, therefore it is my responsibility to ensure that all deadlines which are set by the health authorities and NHS England are met appropriately.

What’s the first thing you do when you get into the office?

As soon as I get into the office, I check my emails to firstly ensure that nothing urgent has cropped up. Then I will check my taskbar and prioritise my workload for the day, ensuring that work relating to imminent deadlines is dealt with first.

What is a breakdown of how you spend your average working day?

My average working day will consist of a mixture of emails and correspondence with clients, as well as more substantial work such as letters of appeal and advice. I also participate in appeal meetings with the health authority and NHS England on a fairly regular basis.

How do you handle, organise and prioritise your workload?

My workload is managed by my taskbar, which distinguishes the priority level of tasks from normal to high. I try to effectively organise my workload by using a spreadsheet, which details my list of key dates and deadlines for the upcoming weeks and months. I ensure that the most imminent deadlines are dealt with as soon as possible before beginning work on other tasks to ensure that my workload is always kept at a level that is manageable.

How much do you correspond with other colleagues on a daily basis?

When working in the office as part of my role I correspond with other colleagues throughout the course of a working day. This involves both general conversation as well as discussions about work. Due to the pandemic and working remotely, the amount at which I correspond with colleagues has been reduced but we still maintain contact via Microsoft Teams daily meetings.

How much contact do you have with clients on a daily basis?

The amount of client contact varies on a day-to-day basis but during an average day I will correspond with clients via telephone, email or Microsoft Teams during the day. This will relate to their case and I will be required to deal with any queries they may have as well as keeping them informed of any updates that have occurred. 

If you have an important client are you likely to be in touch with them every day?

I would say that every client is of equal importance to our department. We aim to keep all clients updated on a regular basis and do not prioritise particular clients. 

What aspects of Health Care Law do you deal with in your field and do these tend to differ client by client?

In my field we deal with NHS continuing health care. Specifically, we deal with the recovery of care fees wrongly paid by individuals. Work in this area is based around the National Framework for NHS continuing healthcare. Although each case differs, they all relate to the recovery of care fees. 

How is communication done with client? What do you think is the most effective means of communication?

Communication is extremely important as a health care lawyer. Clients need to be kept up to date with their claim on a regular basis and all queries must be dealt with. Good communication fosters a level of trust between lawyer and client.

How important is communication when it comes to being a Health Care Lawyer?

Communication with clients is largely dependent on the task and the nature of the update required. We provide standard updates via email or post, but it can often be more appropriate and efficient to discuss matters over the telephone. Further, in some instances, face-to-face contact is required and at present during the pandemic this can be facilitated over Microsoft Teams. 

Can you explain what responsibilities you could expect to have as a trainee working in this area of law? Is it quite hands-on role or is it more research-based?

I would say that being a trainee in this area of law is quite a hands-on role. There are some requirements for research but perhaps not as much as other fields, this is due to the fact that our work is based on the National Framework for Continuing Healthcare, which is a document set out by the government. The main responsibilities are handling caseloads, drafting appeals and advice and attending panels. 

What aspects of your work do you find takes up the most of your time?

The most time-consuming areas of work are the drafting of appeals and advice. Prior to drafting you must carry out a thorough review of the evidence, which often spans over several years. You must adopt a meticulous approach and will often be required to redraft work based on amendments made by the department management team. 

What is it about Health Care Law that first attracted you?

I was attracted to health care law by the prospect of using my legal qualifications to benefit others. In particular, I was attracted to nursing care due to the rewarding nature of the work. 

What specific skills do you think a Health Care Lawyer needs to have to be successful?

A lawyer working in health care law must have good communication skills and be empathetic towards clients who are often experiencing a difficult situation. A lawyer in this area must also be rigorous in their attention to detail and be analytical when it comes to dealing with vast quantities of evidence. 

Please describe you academic and career path to this position?

I completed my GCSEs and A-levels. I then studied History as an undergraduate at Cardiff University, before completing the GDL Law Conversion course and then the LLM Legal Practice Course (LLM and LPC combined). I then began my training contract with Hugh James solicitors in Cardiff. 

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What qualifications do you need to become a Health Care Lawyer?

In the UK, the two qualification routes to become a health care lawyer are as a solicitor or barrister

 Solicitors route to becoming a Health Care Lawyer

The current route to qualify as a health care lawyer in UK is:

Law route:

Study a Qualifying Law Degree (LLB> Complete the Legal Practice Course (LPC) after your LLB > Undertake a Training Contract at a firm specialising in Health Care Law.  

Non-law route:

Study any undergraduate degree > Complete the Graduate Diploma in Law (GDL) to transfer your undergraduate degree > Undertake the LPC and Training Contract as above.

The future route that comes in to force in September 2021 as the primary means to qualify as a solicitor in the UK sees the introduction of the Solicitor’s Qualifying Exam (SQE) which will replace both the GDL and LPC. There are four aspects to the SQE:

Let's look at these four components in further details

1. Attaining a university degree or equivalent (any subject)

2. Passing both Stage 1 and Stage 2 of the SQE:

Stage 1 - functioning legal knowledge section that tests legal knowledge and but practical application. It comprises of two exams, each containing 180 multiple-choice questions on the following:

Exam 1 covers topics such as:

  • Legal system of England and Wales
  • Contract
  • Tort
  • Business Law and Practice

 Exam 2 covers topics such as:

  • Land Law
  • Criminal Law and Practice
  • Trusts
  • Property Law and Practice

Stage 2core legal skills section that entails both written and oral and written assessments designed to test your practical application:

Assessed skills cover areas such as:

  • Advocacy
  • Interviewing
  • Legal research and written advice

Assessed subjects cover areas such as: 

  • Criminal Practice
  • Property
  • Business Practice

3. Pass the character and suitability test set by the Solicitors Regulation Authority

4. Undertake a Training Contract at a law firm specialising in Healthcare Law 

 Barrister route to becoming a Health Care Lawyer

The initial stages of the barrister route are similar to the above for a solicitor:

1.     Study LLB or any undergraduate degree with the GDL

2.     Pass the Bar Course Aptitude Test (BCAT)

3.     Commence the Bar Professional Training Course (BPTC)

4.     Complete a pupillage with a barrister (Similar to a Training Contract)

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Useful publications

NHS England, Key Legislation

Axene Health Partners, International Healthcare Systems: The US Versus the World

World Health Organization (WHO), Global Health Observatory (GHO) data

The Commonwealth Fund, International Health Care System Profiles

Vera Whole Health, Global Healthcare: 4 Major National Models and How They Work

Medical Law and Ethics by Bonnie F Fremgen (2016)

The Historical Development of Health Care Law and Bioethics in England and Wales: A Symbiotic Relationship? By Ernest Owusu-Dapaa (2014)

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