Open Learning 2015 Medical Lawwrkbk

8/20/2019 Open Learning 2015 Medical Lawwrkbk

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School of Law

MEDICAL

LAW



Module Tutor:

Michelle RobsonTel: 0191 2273965e-mail:[email protected]

mailto:[email protected]




Northumbria University, School of Law Medical Law

CONTENTS

CHAPTER CONTENTS PAGE

Study Materials 1

1 Introduction 42 The NHS 83 Contract Law 134 Judicial review 195 Clinical Negligence 306 Duty of care 397 Standard of care 558 Causation 739 Damages 10110 Litigation 12211 Consent to Treatment 14112 Medical Confidentiality 17413 Access to Medical records 20414 Beginning of Life 21015 Ending of Life 23416 Human rights 255




1

Study Materials

WHO TO CONTACT ABOUT THIS MODULE

Your tutor is Michelle Robson. She is the joint LLM Medical Law Programme Leader, M Law

Medical Law Module Tutor, Open Learning Medical Law Module Tutor and is a Senior Lecturer

in Law in the School of Law at the University of Northumbria specialising in medical law. If you

have any queries about the module then contact her on 0191 227 3965. Her e-mail address is:

[email protected].

AIMS OF THE MODULE

The overall purpose of this module is to provide students with a knowledge and appreciation of

the underpinning theory, law and practice of medical law in England and Wales.

LEARNING OUTCOMES

The learning outcomes for this module are:

To have an appreciation of the distinction between legal rules and ethical rules and the

consequences of not observing either.

To have an appreciation of Medical Law as a discrete subject of study

To have a general knowledge of: the application of contract to medical negligence;

judicial review and complaints.

To have a detailed knowledge of the substantive and procedural rules associated with a

claim in clinical negligence

To understand and speculate on how the Human Rights legislation will impact on

various areas of the syllabus

To know (where appropriate) how other jurisdictions deal with the issues that we will be

focusing on

To be able to comment upon the legal and ethical issues arising from the latest topical

issues







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To know, understand and analyse the latest relevant case law, statute, articles in

relation to the areas covered.

2. ASSESSMENT

The module is assessed by way of a three hour exam. Further details regarding the assessment

will be given once the module has begun.

3 METHOD OF STUDY

All materials for this module can be located on the E-learning Portal (ELP). On the ELP you will

find the teaching materials which provide an overview of the law. Other materials are available

through hyperlinks within the module materials.

The hyperlinks from the electronic workbook to case law are designed to link you directly to the

Westlaw database to which the university subscribes. This database may require you to

provide your database password each time you link to the database. This will mean that you

can only link to the home page for the database, and will then need to provide the case

reference detailed in the workbook before you can access the case itself. Having logged in

once, Westlaw should allow you to link directly to subsequent cases provided you remain

logged on. Hyperlinks for other documents are provided to sites which are freely available

through the internet. Since internet links do frequently change or move, if you have difficulties

accessing any of these hyperlinked materials then please let the module tutor know. Equally, if

you do have difficulties logging into the ELP please do let us know. Students should note that

when accessing sites through the hyperlinks, students will be responsible for abiding by any

copyright or other restrictions imposed on such sites.

Each chapter of the workbook will have a learning outcome(s) which you should be able to

satisfy at the conclusion of your reading of the relevant chapter, the self-test questions and the

recommended reading. Where there is no reference to specific pages of a textbook, it is

intended that the material in the workbook should be enough to enable you to complete the self-

test questions; however, if at all possible you should try and do some additional reading.

The material in this module workbook is only an introduction to the area(s) of law under

consideration. Consequently the workbook will focus on the main legal issues/principles; but on

its own the workbook will not suffice: you must read more widely from both the recommended

textbooks and the other sources as indicated. In addition under Teaching Materials on the ELP

you will find all medical lecture slides used on the M Law Medical Law module. This module

follows broadly the same syllabus as the open learning.




3

The recommended textbook for this module is:

Text, Cases and Materials on Medical Law and Ethics: Stauch & Wheat (Routledge, 5th ed)

If you wish to use a revision book then the recommended text is:Robson, Swift et al: Q & A Law Express Medical Law (Pearson) 1

st ed

Other Recommended Reading

Medical Law, Cases and Materials by Emily Jackson 3rd

ed (OUP)

Jonathon Herring Medical Law and Ethics 4th ed (OUP).

Margaret Brazier and Emma Cave: Medicine, Patients and the Law (Penguin Books) (5th

edition)

Pattinson, Shaun: Medical Law and Ethics, 4th ed, (Sweet and Maxwell)

Khan, Robson & Swift: Clinical Negligence (Cavendish Publishing) 2nd edition

Herring, Jonathan, Medical Law and Ethics, 4th ed (OUP)

Mason, McCall Smith & Laurie: Law and Medical Ethics 9th edition (OUP)

Kennedy and Grubb: Principles of Medical Law (Butterworths)

Journals

Professional Negligence

British Medical Journal

Solicitors JournalNew Law Journal

Medical Law Review

Clinical Risk

Reports

The majority of cases cited in this text are located in either LS Law Med (formerly Lloyds

Reports (Medical also known as the Medical Law Reports) or the All England Law Reports;

GMC –http://www.gmc-uk.org/; DOH –http://www.dh.gov.uk; BMA –http://www.bma.org.uk/;

MDU –http://www.the-mdu.com/;NHA –http://www.nhs.uk/

http://www.gmc-uk.org/#_blank



http://www.dh.gov.uk/#_blank



http://www.bma.org.uk/#_blank



http://www.the-mdu.com/#_blank



http://www.nhs.uk/#_blank











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CHAPTER 1

INTRODUCTION

1.1 SCENARIO

Consider the following scenario:

X, a patient, who has been involved in a motor cycle accident, is treated at the A&E unit

of his local hospital. Unfortunately, because of a misunderstanding in the instructions

given by the casualty doctor over the telephone to the nurse, the wrong injection for a leg

wound is given to X. The result is that seven days later X has to have an operation on his

leg which in turn has caused him to have to stay off work for six months. Advise X.

Whether as a student or a practitioner the advice you will offer to X will very much depend

on certain key basic questions, such as:

Was X treated as an NHS patient?

What does X want? An explanation? An apology? Compensation?

What exactly caused the damage? Human error? The faulty contents of the

injection?

1.2 NHS v PRIVATE

The reader needs to distinguish between patient/claimants who receive their medical

treatment on the NHS as opposed to privately. The distinction is important because the

private patient may, if/when things go wrong, sue in contract and/or tort, whereas the

NHS patient can only sue in tort. The law has consistently said that there is no contract

between an NHS patient and the NHS on the ground that the requirements of a contract,

such as voluntariness and consideration, are missing. (See Pfizer v Ministry of Health

[1965] AC 512 and Reynolds v Health First Medical Group 2000).

1.3 EXPLANATION v COMPENSATION

It is important, when things go wrong and lawyers are asked for advice that they should

try and find out what the patient/claimant wants. For example, if an explanation is needed

for the patient’s family to be able to draw a line under the episode , then litigation is not

the most appropriate route; instead, using the NHS resolution procedure may provide the

patient with both the explanation being sought and a reassurance that something similar

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might not happen in the future to another patient. But if compensation is required then the

right approach will be to consider the courts and litigation.

1.4 OTHER LAW OPTIONS

Based on the facts in front of him a lawyer will know that there are other legal options

open to him and the patient/claimant. For example, if the medical misadventure was

caused by a medicinal product he would do well to consider the possibility of a remedy

under the product liability legislation in the form of the Consumer Protection Act; again if it

is a “policy” decision which might have a future adverse effect, for example a decision not

to fund a certain medical procedure (see Rogers v Swindon NHS PCT & Secretary of

State for Health [2006] EWCA Civ 392 one might want to think about judicial review as a

remedy.

1.5 SOURCES OF ENGLISH MEDICAL LAW

* Statute Law – Primary and delegated legislation.

* Common Law – (Judicial Precedent).

* International Conventions, such as the European Convention on Human Rights

(ECHR).

* Professional Disciplinary Rules - health carers will belong to a particular

professional body which will ensure that professional standards are maintained. * Circulars, Protocols, Guidance Notices, Guidelines, Executive Letters. In general

these “laws” are not legally binding, but a failure to follow them will be closely

looked at by both courts and professional bodies.

* European Rules.

* Patients Charter.

READING:

Stauch Text, Cases and Materials on Medical Law and

Ethics (Routledge, Chapters 1 & 2

Pattinson Medical Law and Ethics 4th ed (Sweet &

Maxwell Chapter 2 (overview only)

Jackson Medical Law Text, Cases and Materials 3rd

ed

(OUP) Chapter 3 introduction only

Brazier & Cave: Medicine, Patients and the Law (5th

ed)

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(Penguin Books), Chapter 1

Herring Medical Law & Ethics (4th ed) Chapters 1 & 2

SUMMARY

At the end of this chapter you should be able to:

* appreciate some of the different branches of law making up the study of medical

law




7

NOTES




8

CHAPTER 2

THE NHS AND PROFESSIONAL BODIES

2.1 INTRODUCTION

The purpose of this chapter is to introduce you briefly to the structure of the NHS and to

act as a brief guide to some of the governing bodies of the medical profession. The NHS

however is still in a period of transition following the enactment of the Health and Social

Care Act 2012 (HCSA) on 27 March 2012. An outline only of the structure of the NHS

follows below but frequent reference should be made both to the NHS and DOH websites

for the latest guidance. Much of the material in this chapter is taken from the saidwebsites.

However by way of reference the following paragraphs give an overview of the NHS and

the regulatory bodies governing the medical professions. They also serve as a glossary

of the more common terms you will come across.

Please also refer however to the supplementary material on the eLP under teaching

materials.

2.2 THE NATIONAL HEALTH SERVICE

The NHS was established in 1948 “to provide healthcare for all citizens, based on need,

not the ability to pay.” It is funded by the taxpayer and is therefore accountable to

Parliament. The NHS employs more than 1.7m people, just under half of which are

clinically qualified, including nearly 40,000 general practitioners (GPs), over 400,000

nurses and 18,450 ambulance staff. When the NHS was launched in 1948 it had a

budget of £437million (roughly £9billion at today’s value). In 2015/6 the NHS budget

£115.4 billion.

2.3 DEPARTMENT OF HEALTH

The Department of Health controls the NHS. The Secretary of State for Health (currently

Jeremy Hunt) is the head of the Department of Health and reports to the Prime Minister.

Under HCSA the new Act the Department of Health (DH) will be responsible for strategic

leadership of both the health and social care systems, but will no longer be the

headquarters of the NHS, nor will it directly manage any NHS organisations.

2.4 THE NHS ACT AND THE SECRETARY OF STATE

The National Health Service Act 1977 is the seminal piece of legislation and empowers

the Secretary of State and the Department of Health to make provision for health care.






10

It is worthwhile remembering that care may be provided outside the NHS. This is often

funded by insurance policies. Treatment may also be provided by an independent

hospital, where the care has been commissioned (paid for) by the NHS.




11

2.7 REGULATORY BODIES

2.7.1 The Care Quality Commission (CQC)

The Care Quality Commission is the health and social care regulator for England

established in 2009 to regulate and inspect health and adult social care services in

England. These services may be provided by the NHS, local authorities, private

companies or voluntary organisations. The Commission is also responsible for

protecting the rights of people detained under the Mental Health Act. The Health and

Social Care Act 2008 empowers the Commission to carry out its role.

2.7.2 National Institute of Clinical Excellence (NICE)

Set up in 1999 it seeks to promote the highest quality in treatment and technology in the

NHS and looks at the cost-effectiveness of the NHS services for example see NICE’s

decision restricting the use of certain drugs for the treatment of Alzheimer’s disease

considered further in Chapter 2. NICE also advises on the best clinical practice and

issues guidelines in order to provide uniform quality of treatment across the country.

2.7.3 Professional Bodies

All doctors must be registered with their governing body, the General Medical Council(GMC). The equivalent body for nurses is the Nursing and Midwifery Council, for

dentists, the General Dental Council These bodies set the standard of best professional

practice which their members are required to adhere to and have the power to discipline.

Additionally the Medical (Professional Performance) Act 1995 gives the GMC power to

act where the doctor’s conduct is found to be seriously deficient in performance of his

professional duties. The GMC have a number of publications one of which is entitled

“Good Medical Practice”. Although these guidelines have no legal basis it is suggested

that any departure from them could be used as evidence to show that the doctor is in

breach of his standard of care.

2.8 COMPLAINTS PROCEDURE

If medical treatment goes wrong what can the patient do? If he wants the matter

investigated and followed up (possibly) by an explanation and/or an apology and/or a

reassurance that a similar thing will not happen in the future, then using NHS resolution

procedure may be the way forward.

2.9 LEGAL ACTION






13

NOTES




14

CHAPTER 3

CONTRACT

3.1 INTRODUCTION

The major distinction between any patient who is treated privately and one who is treated

on the NHS is that the private patient, if dissatisfied with the treatment, can seriously

contemplate a claim for breach of contract. Such a claim is not open to the NHS patient

on the ground that there is no equality of bargaining between the parties – health care

has to be provided, see Pfizer Corp v MOH [1965] AC 512 . In Pfizer the House of Lords

ruled that where services are provided pursuant to a statutory obligation there is nocontractual relationship for the element of compulsion is inconsistent with the consensual

basis of contract; the fact that the patient makes some payment is irrelevant. The NHS

patient can only sue in tort because there is no freedom of bargaining power; the parties

must enter into the relationship in order to fulfil their obligations.

The private patient however can pursue a claim for breach of contract as well as a tort

claim. As contracting parties the patient and the health carer are free to determine their

own obligations and responsibilities, except that the health carer is unable to exclude

himself from liability for injury to the patient caused by his negligence (see the Unfair

Contract Terms Act 1977, section 2).

3.2 WHEN IS A CONTRACTUAL CLAIM AVAILABLE?

As regards contract, unless there is clear evidence that the defendant, by words,

gestures etc., was guaranteeing a successful outcome, then the courts would only imply

into the contract that the defendant was agreeing to carry out the contractual treatment

with reasonable care and skill. For example, a husband contracts to undergo a

vasectomy operation. Two years later, his wife becomes pregnant. The husband

decides to sue the defendant consultant on the ground that the latter broke his agreement

in that he had contracted to render the husband sterile which has clearly not happened.

Did the defendant contract to make the husband sterile? If there is evidence that he did

then he is in breach of the agreement. But if the agreement is silent on a guaranteed

outcome then the courts will not read such an outcome into the contract; instead they

would simply assert that the agreement was to carry out a vasectomy operation with

reasonable skill and care. If that was, in the eyes of the court, achieved then no breach

of contract claim is possible. In this area see Thake v Maurice [1986] 1 QB 644 and Eyre

v Measday [1986] 1 ALL ER 488. It is possible that some courts may hold, more as a

matter of policy, that certain types of elective treatment e.g. cosmetic surgery, lend




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themselves more easily to an argument founded in contract, given that the arrangement

resembles a business agreement. In La Fleur v Cornelis (1980) 63 APR 569 (Canadian)

a plastic surgeon was held liable in contract for scarring consequent on surgery to reduce

the size of the claimant’s nose.

Contract may continue to assume greater significance in the future as more and more

elective surgery e.g. cosmetic surgery is done privately. In these cases the courts will

more readily imply into the contract that the health carer guaranteed a specific outcome

e.g. a nose of a specific length, breast reduction to a certain size etc. In Thompson v

Sheffield Fertility Clinic [2000] MLC 0282 £20,000 was paid by Sheffield Fertility Clinic to

the claimants in an out of court settlement for breach of contract. The claimants had been

receiving IVF treatment at the Sheffield Fertility Clinic. The defendants had transferred

three embryos back to Mrs Thompson who claimed that she had agreed with the

defendants that they would only transfer two embryos back. No signed consent form had

been obtained from the claimants. The Clinic’s actions were held to be a breach of

contract.

In Jane Dove v Andrew Jarvis (6 February 2013) the court concluded that an assurance

given by the defendant private consultant orthopaedic surgeon that the operation would be

“well done” did not create a contractual duty of skill and care higher that the tortuous

(Bolam) duty of skill of care (see further Chapter 6). Whilst in Silverstone v Mortensen &

Oxford University Hospital NHS Trust [2012] EWHC 2706 one of the terms pleaded was

that the surgeon would exercise the skill and care of a world authority. There was no

dispute that he was a world authority but the judge held the term did not add anything to

the ordinary duty in contract and tort that the surgery would be performed to the standard

expected of a consultant surgeon. Moreover the judge continued and held that although it

was a private contract, the standard of care expected was the same as that required in the

sur geon’s NHS practice.

Finally if the contract is one to provide medicinal products such as a wheelchair or a heart

pacemaker, then certain provisions under the Supply of Goods and Services Act 1982,

such as the product being fit for its particular purpose or the goods matching their

description, will become relevant and applicable.

3.3 CONTRACT OR TORT

The contractual duty of reasonable care and skill is similar to the tort duty of reasonable

care. Consequently there is, at first sight, no obvious advantage in suing in contract

instead of tort and the courts have been at pains to confirm that one type of patient

should not be seen to have an advantage over the other. It was Lord Donaldson who said

in Hotson v E. Berkshire A.H.A. [1987] 1 AC 750,

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“…I am…unable to detect any rational basis for a state of the law…whereby

in identical circumstances, Dr A who treats a patient under the national

health service, and whose liability…falls to be determined in accordance with

the law of tort, should be in a different position from Dr B who treats a patientoutside the service and whose liability…falls to be determined in accordance

with the law of contract…”

But having said that, there are indeed differences between a tort claim and a contract

claim; these include:

Different limitation periods;

Loss of a chance claims are possible in contract but doubtful in the tort of clinical

negligence ( see Hotson v E. Berkshire A.H.A. [1987] 1 AC 750, Gregg v Scott

[2005] UKHL 2 and

Measure of damages is different.

Further reading

Brazier & Cave: Medicine, Patients and the Law (5th

edition) (Penguin Books),

Chapter 11 pages 307 et seq & Chapter 10

Khan, Robson & Swift: Clinical Negligence (Cavendish Publishing) 2nd

edition, pages

71, 87

Jackson: Medical Law Text Cases and Materials (Oxford University Press)

Chapter 3 pp 102-104

Pattinson Medical Law and Ethics (4th

ed) Chapter 3 (opening pages only)

Herring: Medical Law and Ethics 4th ed (OUP) Chapter 3

Stauch Text, Cases and Materials on Medical Law and Ethics

(Routledge, Chapter 6 (introduction only)





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SUMMARY


* identify some of the advantages/disadvantages of bringing a claim in contract.




18

SELF-TEST QUESTIONS – CHAPTER 3

1. In what circumstances (if any) will the private patient succeed in an action for

clinical negligence whereas an NHS patient will fail?

2. What is the legal standard of care that a private patient may expect from his health

carer? Does it differ in any way from his NHS contemporary?

3. Annie has recently undergone an operation to reduce the size of her breasts.

Unfortunately she is very unhappy with the result and wishes to sue her private

consultant Dr Corgy. What further information would you require in order to advise

Annie as to her chances of success?




19

NOTES




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CHAPTER 4

JUDICIAL REVIEW

4.1 INTRODUCTION

It is possible to argue that, since the Secretary of State for Health has overall political

responsibility for the nation’s health, policy decisions that impact directly or indirectly on a

patient can be challenged in a court of law. Normally the way to do this is by judicial

review in the High Court. A patient who applies for judicial review asks the court to rule

that a decision by a health authority/trust not to provide treatment is unreasonable and

that decision has been made irrationally, illegally or is undermined as there are several

procedural irregularities. If the decision is viewed as unreasonable then the court may

quash the decision. In R v Secretary of State for Social services, West Midlands RHA

and Birmingham AHA (Teaching) ex p. Hincks & Others (1980) 1 BMLR 93 the court

looked at the meaning of section 3(1) of the National Health Service Act 1977 (see now

NHS Act 2006, s.1) and in particular whether the Secretary of State was under an

absolute duty to provide services regardless of available funding. Unsurprisingly the

court refused to grant a declaration in those terms ruling that the Secretary of State must

have regard to available funding.

4.2 RESOURCES AND OTHER ARGUMENTS

In general, arguments concerning the use of resources are likely to fail simply because it

is difficult to satisfy the court that the decision taken has been that unreasonable.

An illustration of this point is the case of R v Cambridge District Health Authority ex parte

B [1995] 2 All ER 129. B, a ten year old girl, suffering from myeloid leukaemia had

previously undergone a bone marrow transplant which was unsuccessful. The healthauthority refused to fund further treatment. B’s father challenged their decision. The

Court of Appeal held that where there was conflicting medical opinion it was not for the

court to decide how the health authority should spend its budget where there were

competing claims on its resources.

4.3 WHEN SHOULD THE APPLICATION BE MADE?

Ordinarily any application for judicial review should be made within three months from

when the grounds of the application first arose. In St George’s Healthcare Trust v S

(Application for Judicial Review) [1998] 3 All ER 673 a case which was widely reported in

the press, the applicant had been detained under section 2 of the Mental Health Act 1983

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and subjected to a caesarean operation without her consent. She sought judicial review

of both decisions but the application was made four months after the expiry of the time

limit for such applications. The Court of Appeal held that although in most cases a delay

of this kind would be a complete bar to granting leave where the case raised genuine

matters of public importance that might as a matter of public policy constitute a goodreason to extend time.

Note that the application for judicial review is very much a last resort. In R v Portsmouth

Hospital NHS Trust [1999] Lloyds Rep Med 367 (see www.lawtel.co.uk) (another case

that was widely reported in the press concerning the dispute over the treatment of David

Glass a 12 1/2 year old child suffering from cerebral palsy) the court denied the mother’s

application for judicial review and held the more appropriate application was for a best

interests declaration with the assistance of the Official Solicitor. This case was then heard

by the European Court of Human Rights where it was held that the decision by the Trust

that it could take no active steps to prolong David Glass’s life was in breach of Article 8 o f

the European Convention on Human Rights in the absence of express authorisation by

the courts; see Glass v United Kingdom MLC 1095 [2004] Lloyds Rep Med 76 .

4.4 EXAMPLES OF SUCCESSES AND FAILURES

From reading the cases listed below it is evident that no-one has an indisputable right to

health care treatment and/ or facilities. Where the complaint is that the health carer is

failing to provide treatment, the courts have repeatedly demonstrated that they will not

intervene in hospital policy and matters of resources.

Consider:

(i) R v Central Birmingham Health Authority ex parte Walker (1987) 3 BMLR 32

(ii) R v Central Birmingham Health Authority ex parte Collier (1988) Lexis transcript 6

January

Both cases concerned “hole in the heart” babies where the respective parents brought an

application for judicial review that the decision to postpone their babies operations had

been arrived at unlawfully and unreasonably and they sought an order for mandamus to

compel the health authorities to carry out the operations. The court refused to intervene

ruling that the case was not justiciable.

(iii) R v St Mary’s Ethical Committee ex parte Harriott [1988] 1 FLR 512 . Refusal of

IVF treatment on the grounds that Mrs Harriott had been a prostitute; the court

refused to intervene.

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But there have been some successes. In R v North Derbyshire HA ex parte Fisher [1997]

8 Med LR 327 Mr Fisher, a multiple sclerosis sufferer, applied for judicial review of North

Derbyshire Health Authority’s decision not to fund his treatment with the drug beta

interferon on the grounds of insufficient resources. Previously the NHS Executive had

issued a circular requesting that all NHS hospitals should continue prescribing this drug.The respondent, however, stated that its policy was to fund the drug only as part of

clinical trials and then stated that it would not be participating in any trials. The

respondent also cancelled a £50,000 budget for the drug when it found that it had

overspent in its overall budget.

The court allowed Mr Fisher’s application finding that the respondent had failed to give

serious consideration to the advice given in the NHS circular and that its policy was not in

conformity with the circular. Hence the blanket ban on the drug was unlawful and the

decision to refuse to fund Mr Fisher’s further treatment would be quashed.

Two further cases which again caught the attention of the public were R v North West

Lancashire Health Authority, ex parte A, D&G [2000] 1 WLR 977 and R v NE Devon HA

ex p Coughlan [1999] 8 Lloyd’s Rep Med 306 see www.lawtel.com. In Coughlan, Ms

Pamela Coughlan successfully challenged the decision of her health authority to close

Mardon House as being unfair and an abuse of process after previously promising her a

home for life. In reaching the decision per curiam the court held that s.1 (1) of the NHS

Act 1977 does not place on the Secretary of State a duty to provide a comprehensive

health service but to promote such a service. Relying on the decision in Hincks see

Chapter 2 paragraph 2.1 the court held that the Secretary of State is required to take into

account the resources available and the demands on those resources. Notably the court

also found that the decision to close Mardon House was in breach of Article 8 of the

European Convention of Human Rights.

In R v North West Lancashire Health Authority, ex parte A, D&G the defendant authority

had formulated a policy which, although recognising that gender identity dysphoria

('trans-sexualism') is a medical illness, had allocated virtually no funding for its treatment.

The policy had specified that gender 'reassignment' would not be offered, subject to an

exception of overriding need in order to avoid 'serious mental illness'. The applicants'

requests for reassignment surgery were refused and they sought judicial review. Auld LJ,

discussing the decision-making process stated:

“[I]n establishing priorities-comparing the respective needs of patients suffering from

different illnesses and determining the respective strengths of their claims to treatment-it

is vital for an authority: (1) accurately to assess the nature and seriousness of each type

of illness; (2) to determine the effectiveness of various forms of treatment for it; and (3) to

give proper effect to that assessment and that determination in the formulation and

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23

individual application of its policy.”

Despite acknowledging that trans-sexualism is an illness, the health authority had

grouped gender reassignment alongside conditions such as minor cosmetic surgery,

tattoo removal, homeopathy and 'alternative medicine' in a list of priorities. The courtfinding for the applicants ruled that the health authority had failed to give sufficient weight

to the facts. In AC v Berkshire West Primary Care Trust [2010] EWHC 1162, a recent

case again concerning gender dysphoria treatment, the court ruled that the health

authority’s policy to refuse funding for breast augmentation was not irrational or in

contravention of the Sexual Discrimination Act 1975.

A case which made the headlines was Rogers v Swindon NHS PCT & Secretary of State

for Health [2006] EWCA Civ 392. Ann Marie Rogers, (R) appealed against a decision

refusing her application for judicial review of a decision of the respondent PCT (S) to

reject her application for funding for treatment with Herceptin, an unlicensed drug. R had

breast cancer. Her consultant stated that she had a 25% chance of remaining free of the

disease after 10 years, and a 57% chance of dying within that time. Clinical trials of

Herceptin, which had been licensed for only late stage breast cancer, indicated that it

also produced considerable therapeutic benefit in the early stages of certain forms of

breast cancer. R’s consultant had already commenced treating her with Herceptin, and

she had been paying for the treatment privately. However, she could not afford to pay for

a full course of treatment.

S had funds available to provide the drug for all patients within the eligible group who

fulfilled the clinical requirements for Herceptin treatment, and whose clinician had

prescribed it. However, its policy was to refuse funding for Herceptin unless a patient

could demonstrate “exceptional personal or clinical circumstances”. R argued that S’s

policy was irrational.

At first instance Bean J firstly held that the Secretary of States duties under the then s.3

NHS Act 1977 were not absolute, the judgments in Hincks and Coughlan applied (see

above). Bean J also ruled that the defendant’s policy requiring an applicant for Herceptin

to show exceptional circumstances among the eligible group for Herceptin was not

unlawful and arbitrary. In reaching this decision he stated that what other PCTs did could

not be determinative of the defendant’s policy nor of its lawfulness, “rationality in law is

not determined by counting heads” (para 67). Bean J firmly placed policy issues in the

political arena ruling that it was not a matter for a judge however at para 70 he did have

this to say:

“I emphasise, however, that in my view decision-makers in this difficult field

must continue to keep their policy under review in the light of the up-to-date

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24

evidence and any further guidance from the Secretary of State. If the

verdicts from the EMEA and NICE are unequivocally favourable the position

would plainly be transformed. Even in the meantime, if medical opinion in the

UK moves towards a consensus in favour of using Herceptin to treat early

stage HER2+ breast cancer sufferers that is something to which Trustsshould give careful consideration.”

Bean J perhaps emphasising that decisions must be constantly reviewed and the health

authorities must always be able to justify their decisions which would of course find

accord with Laws J in R v Cambridge District Health Authority ex parte B [1995] 2 All ER

129.

On appeal however Mrs Rogers was ultimately successful. The Court of Appeal held a

policy of withholding assistance save in “exceptional circumstances” would be rational

only if it was possible to envisage, and S did envisage what those exceptional

circumstances would be. However, if it were impossible to envisage such circumstances,

the policy would, in practice, amount to a complete refusal of assistance, and as such

would be irrational because it was sought to be justified not as a complete refusal but as

a policy of exceptionality. In deciding whether S’s policy was rational or not, the court had

to consider whether there were any relevant exceptional circumstances that could justify

granting funding to treat one patient, but refusing it to another within the same eligible

group. There could be no rational basis for distinguishing between patients within the

eligible group on the basis of exceptional clinical circumstances, nor on the basis of

exceptional personal circumstances. Once S had decided that it would fund Herceptin for

some patients, and that the question of cost was irrelevant, the only reasonable approach

was to focus on the patient’s clinical needs, and therefore to fund patients within the

eligible group who had been properly prescribed Herceptin by their physician. This would

not open the floodgates as only a few patients suffering from breast cancer satisfied the

criteria needed to qualify for the eligible group. Thus S’s policy was irrational and

consequently unlawful and R’s appeal was allowed.

Since the Court of Appeal decision, Herceptin has been cleared for use by the European

Medicines Evaluation Agency (EMEA), which has approved the drug for use in patients

with early stage breast cancer. This was the first time a drug had been given accelerated

assessment by the EMEA’s committee for human medicinal products. NICE has now

issued its final guidance to English and Welsh Trusts on the use of Herceptin for the

treatment of early stage breast cancer in women with HER2 disease who are free of heart

disease. Now it has NICE approval it will be very difficult for PCTs to refuse to fund it.

What this case does serve to illustrate is that decisions must be constantly reviewed and

the health authorities must always be able to justify their decisions which would of course










25

find accord with Laws J in R v Cambridge District Health Authority ex parte B [1995] 2

All ER 129.

4.5 HUMAN RIGHTS?

The key question addressed in R (on the application of Condliff) v North Staffs PCT

[2011] EWCA Civ 910 was whether a policy that only considered clinical factors in

determining requests for funding unlawful in breach of Article 8? Mr Condliff had a BMI in

excess of 40kg/m2. North Staffordshire PCT would only provide laparoscopic gastric by-

pass surgery for those with BMI more than 50. It was not in dispute that Mr Condliff would

benefit from the surgery. Moreover Mr Condliff also fell within NICE guidelines which

recommended surgery. On this basis he applied for an Individual Funding Request. The

PCT had the following policy for deciding whether an individual’s circumstances were

exceptional: “non-clinical or social factors including social value judgments about the

underlying medical condition or the patient’s circumstances are never relevant”. Article

8(1) of the ECHR provides: “Everyone has the right to respect for his private and family

life, his home and his correspondence.” Thus Mr Condliff argued that Article 8 of ECHR

makes it unlawful for a PCT to adopt and individual funding request policy which

considers requests for individual funding solely by reference to clinical factors. The Court

of Appeal however were not persuaded by this argument stating that Article 8 cannot be

relied on as giving rise to a positive duty to take account of welfare considerations and

moreover even if Article 8 was applicable there were legitimate equality reasons for thePCT to adopt the policy that it did.

As a postscript Mr Condliff was however successful with his second individual funding

request (IFR) a month after the Appeal Court’s ruling, the PCT finding that the new

supporting medical evidence made his circumstances exceptional.

It is always worthwhile remembering in these often very difficult and arbitrary cases the

words of the PCT in their ethical framework, “Every decision we make to fund one

treatment means that we are effectively taking a decision not to fund another treatment…

as a result … effectiveness, equity and patient choice – must be carefully balanced .”

4.6 GOING ABROAD FOR TREATMENT - R (WATTS) V BEDFORD PCT

[2006] 3 WLR 213

Mrs Watts suffered from osteoarthritis in the hips and was in considerable pain. She was

placed on the waiting list for a hip replacement, the waiting time approximately 12

months. Her condition then deteriorated and she was placed on a higher waiting list; waittime approximately 4 months. Mrs Watts asked for an E112 certificate to pay for her

treatment abroad in another state. Her application was refused though she went and had





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26

the operation anyway. Mrs Watts then demanded that her costs in funding the treatment

should be refunded and she succeeded in her claim. And the likely impact? Arguably

cases of this nature will increase pressure on NHS to reduce the waiting times and

improve clinical priorities in The UK. However this decision of the ECJ which effectively

has said that if “normal” treatment cannot be obtained at home without “undue delay” itmay be purchased in the EU abroad on the basis that the cost will be met by the home

HA does have its drawbacks. Such a decision undermines the role of exceptional case

review committees. If such treatment considered normal in the EU is unavailable in the

NHS but may be obtained irrespective of NHS cash flow problems then those willing and

able to travel abroad will have greater access to expensive treatments than those who

are too old, ill or disabled to travel. As the cost of funding care in the EC increases the

funds remaining to those at home will diminish.

4.7 THE IMPACT OF THE CORPORATE MANSLAUGHTER AND

CORPORATE HOMICIDE ACT 2007

Under this Act where there is a death and that death was caused by gross negligence or

criminal negligence, or manslaughter, by the directors and managers, the organisation

may be liable. So for example potential liability would extend to the DOH, HA, health care

trusts, hospitals, LA, private providers (BUPA) and pharmaceutical companies. There is

no crown immunity. (s.11). The personal liability of doctors, nurses and health

professionals remains as before.

Under s.3 matters of public policy are excluded from the duty of care including the

allocation of public resources or the weighing of competing public interests. So it will not

be open to argue that the Secretary of State did not put sufficient resources into a

particular type of treatment or hospital. If the corporation has a proper policy for allocation

of resources then the case against them will be thin. The case may be different if the

drug, as recommended by NICE, was widely and successfully used and not very

expensive yet was denied to a patient. Note that the new law applies to partnership as

well as corporate bodies so a GP practice could be liable, in addition to an individual GP.

Generally the new law is aimed at the policies of any organisation and its administration

rather than the individual.

Further Reading

Pattinson Medical Law and Ethics 4th ed

(Sweet & Maxwell) Chapter 2

Jackson Medical Law Text, Cases and




27

Materials 3r

ed (OUP)

Chapter 2

Brazier & Cave: Medicine, Patients and the Law (5th ed)

(Penguin Books), Chapter 2

Khan, Robson & Swift: Clinical Negligence(Cavendish Publishing) 2

nd edition,

pages 93,192

Mason, McCall Smith & Laurie: Law and Medical Ethics 9t ed (2011)

Oxford Chapter 11

Stauch Text, Cases and Materialson Medical Law and Ethics(Routledge, Chapters 1 & 2

For a case with local interest see:

R (on the application of Save our Surgery Ltd) v Joint Committee of Primary Care Trusts &Newcastle Upon Tyne Hospitals NHS Foundation Trust (interested party) [2013] EWHC 439.

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SUMMARY


* Appreciate when a claim for judicial review may be available.




29

SELF-TEST QUESTIONS - CHAPTER 4

1. In what circumstances will the courts intervene in respect of a resourceallocation decision by a health authority?

2. To what extent has the Human Rights Act 1998 affected, if at all, the above

answer?




30

NOTES




31

CHAPTER 5

CLINICAL NEGLIGENCE

5.1 INTRODUCTION

Suing your doctor is not a new phenomenon; there have been claims against doctors and

health authorities for many years. Everyone has an opinion on what they should be able

to expect from their health carers; combine that with the fact that as “consumers” we are

apparently more compensation minded today and one can appreciate why there is still so

much clinical negligence litigation and why strenuous efforts are being made to find viable

alternatives to the tort claim of negligence. (One question you may want to keep in mind

is this: is there a better way of dealing with clinical negligence than the tort action?).

5.2 WHY IS CLINICAL NEGLIGENCE LITIGATION DIFFERENT?

Practitioners and students should not assume that knowledge of tort law imports

knowledge of medical negligence. Tort is a most useful basis but consider the following

factors which are peculiar to clinical negligence litigation:

(i) The identity of the defendant. Who would have thought of suing their General

Practitioner fifteen or twenty years ago? Hardly anyone, considering the high

esteem in which they were (and are) held. Also there was the feeling you should

not sue people who were only doing their best for you.

(ii) The attitude of doctors. Will other doctors “tell tales” against their colleagues? Will

they be prepared to act for claimants?

(iii) The prevailing attitude of society. Are the doctors sued necessarily the “bad”

doctors? Will suing doctors necessarily make them “good” doctors?

(iv) The time the claim is brought may be several years after the incident. This may

cause problems with limitation periods and the fading memories of witnesses.

(v) Medical law is not an exact science: things can and do go wrong.




32

5.2.1 Alternatives to litigation

Sometimes the client only wants to know what went wrong. In such a situation the

solicitor must explain to the client the alternatives to litigation. Note, however, the

one thing that the NHS complaints procedure will provide you with is a written

report may indicate that there is a possibility of a clinical negligence legal claim.

Additionally the Clinical Negligence Protocol now actively encourages the pursuit of

the complaints procedure before resorting to litigation (see Chapter 9).

With regard to private healthcare providers The Care Standards Act 2000

introduced a process of inspection and regulation. This Act has now been

amended by the Health and Social Care Act 2008 and the powers of inspection lie

with the Care Quality Commission. As the Care Quality Commission are now

responsible for the inspection and regulation of both NHS and private healthcare

providers and this could mean that The Local Authority Social Services and NHS

Complaints (England) Regulations 2009 (SI 2009/309) apply to non-NHS bodies as

well. The regulations state amongst other matters that all private hospitals that

provide care to NHS patients are to have complaints arrangements as if the

regulations applied to them.

Note also if the client wants disciplinary action against the person involved, then he

should contact the health carer’s professional body. Such bodies invariably have

the power to strike off or suspend the health carer.

However if the client wants financial compensation, then this will mean taking legal

action in the courts.

5.3 WHO TO SUE AND WHAT TO SUE IN?

From a practical view point if the patient decides to litigate, then the first task of the

lawyer is to decide who to sue and what to sue in.

Who are the possible defendants?

* The Trust - sue the Trust in its own name directly on the ground that it breached its

own legal duty to the client/patient or vicariously because a health care employee

of the Trust was negligent.

* The Health Authority – assuming it does not have Trust status.




33

* The Private hospital - sue the hospital and / or the consultant who provided the

private treatment. Such a claim may be based in either contract or tort depending

on the circumstances.

* The Consultant - is he treating the patient privately or under the NHS? If the

former, the nature of any claim will depend on his agreement with the private

hospital; if the latter, then he will be an employee of the NHS hospital and as such

the hospital will be vicariously liable. Such an individual is always liable, if

negligent, whether financially it is worth suing him or her is doubtful.

* Health carers, such as nurses, physiotherapists etc. Either sue them personally in

tort or sue their employers vicariously in tort or, if the treatment was provided

privately, in contract.

General Practitioner – GPs – the action is against the GP in question (and he is

vicariously liable for his staff) and /or the partnership.

5.4 INGREDIENTS FOR A CLINICAL NEGLIGENCE CLAIM

Substantively there are four “hurdles” which the patient claimant has to overcome; failure

to get or over any of the hurdles will be fatal for the success of the claim. Also it should

be remembered that the onus of proof is always on the claimant and the standard ofproof is on the balance of probabilities.

The four substantive hurdles are:

a) duty of care;

b) breach of that duty of care (also referred to as standard of care);

c) causation i.e. the link between breach and damage;

d) foreseeable damage.

The major procedural “hurdle” is the issue of limitation.

Further Reading


(Routledge, Chapters 6, (Introduction only)

Brazier & Cave: Medicine, Patients and the Law (5th ed) (Penguin

Books), Chapter 8 pages 218-222




34

Khan, Robson & Swift: Clinical Negligence (Cavendish Publishing) 2n

edition, Chapter 3 pps 86; 94-104

Pattinson Medical Law and Ethics 4t ed (Sweet & Maxwell)

Chapter 3

Jackson Medical Law Text Cases and Materials 3r

ed (OUP)

Chapter 3 (introduction only)

Herring: Medical Law and Ethics 4th

ed (OUP) Chapter 3

(introduction only)

SUMMARY


* identify the problems associated with a clinical negligence claim;

* identify the potential defendants in a clinical negligence claim;

* understand when it is appropriate to bring an action in contract and when the

claim should be brought in negligence.




35


1. In what circumstances could the patient have a contractual claim and a claim in

tort?

2. Why is it inappropriate to sue an employee of the health authority personally?

3. What must be shown to succeed in a clinical negligence claim?

.




36

NOTES




37

CHAPTER 6

THE DUTY OF CARE

6.1 INTRODUCTION

“In practice, within the NHS, the existence of a duty of care is seldom challenged ”(CMO

2003 51)

To bring a clinical negligence claim the claimant must first establish that a duty was owed

to him by the defendant. In doing this a number of questions will have to be answered

including:

(i) who owes the duty;

(ii) when exactly does the duty arise;

(iii) what is the extent of the duty;

(iv) is there one duty or a number of duties?

6.2 WHAT IS THE NATURE OF THE DUTY?

This will depend on whether the patient is being treated under the NHS or is receiving

private treatment. The NHS patient will be owed a duty in tort by the health carer(s) and /

or the health carer(s) employer(s) and this will commence as soon as treatment is

undertaken. The private patient will also be owed a duty in tort, however, alongside that

the private patient may rely on the contractual obligations that he is owed under the

contract he has with the health carer.

The scope of the duty owed by a Health Authority in relation to operational systems andprocedural arrangements for the provision of health care was considered in the case of

Hardaker v Newcastle HA & Chief Constable of Northumbria [2001] All ER (D) 157. The

claimant, who was an experienced diver developed decompression illness (DCI) while

diving off a sunken wreck one Sunday in 1994. There was a decompression chamber at

the RVI which was within a short flying time from the dive site but it was closed at

weekends. The Northumberland Police National Diving School at Sunderland also had a

chamber and there was an arrangement that the police chamber would be made

available as a back-up facility to emergency cases when the RVI was closed. Following a

medical assessment at the RVI as required by the arrangement, the claimant was taken

to the police chamber which there was some delay in opening. The claimant survived but

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sustained serious permanent disabilities. He alleged that, but for the delay caused by the

Health Authority’s arrangements for dealing with such cases, he would have made a full

or at least a better recovery.

It was held that the Health Authority owed the claimant a duty of care but that the dutywas qualified by the resources available. The Health Authority could not be held to be

negligent for failing to apply sufficient resources to the RVI chamber to keep it available at

all hours. Cases of DCI were relatively rare. It could not sensibly be suggested that

every coastal town should have a decompression chamber. Moreover, it was not

negligent of the Health Authority to make an arrangement requiring a suspected case of

DCI to attend the RVI for diagnosis because if the patient was not suffering from DCI he

could be admitted and dealt with there. Also, if the patient was suffering from an illness

such as pneumothorax which could be mistaken for DCI, it would have been dangerous

to have sent him to Sunderland. In any event the claim would have failed on the ground

of causation as there was no evidence to justify a finding that if the compression had

begun earlier the claimant would have made a full or better recovery.

6.3 IS THERE ONE DUTY OR SEVERAL DUTIES?

The English courts have answered this question by stating that there is only one duty, but

for simplicity, it is divided into separate components e.g. the duty to diagnose, the duty to

provide information (as defined by Bolam v Friern H.CC [1957] 2 All ER 118), the duty to

provide post-operative care etc. This means that the Bolam standard is applicable to all

forms of medical treatment.

In Chapter 6 you will see that the Bolam standard has been the source of constant

criticism as many academics and non-academics alike feel it allows the medical

profession to dictate what is the appropriate standard. The area where it has been

subjected to the strongest criticism is in relation to the disclosure of risks/information to

the patient. See for example the dissenting judgment of Lord Scarman in Sidaway vBoard of Governors of Bethlehem Hospital [1985] 2 WLR 480 ) where he attempted to

introduce the doctrine of informed consent and contrast this with the Australian case of

Rogers v Whittaker [1993] 4 Med LR 79 ) (these cases are considered in more detail in

Chapter 7).

6.4 WHEN DOES THE DUTY OF CARE BEGIN AND END?

The duty will begin when treatment begins and will end when the treatment is completed

or the patient or health carer dies. So, for example in the case of a GP treatmenteffectively begins when the patient attends the GP’s surgery or in the case of a consultant

when he sees the patient following a referral.




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40

the child whether there were any risks as a result of having chickenpox in pregnancy, that

it was incumbent upon the hospital doctor to discover what advice had been given by the

GP and to correct it. The Court of Appeal, however, held that the hospital doctor was

under no such duty and this argument went far beyond what was intended by Sidaway .

The mother had expressly asked the GP if her baby would be alright whereas no suchquestion had been put to the hospital doctor. After being told that the mother was aware

of the risks of chickenpox and was unconcerned the hospital doctor was entitled to

assume that she had been given the correct advice by a competent GP.

In contrast in the case of Deriche v Ealing Hospital NHS Trust [2003] MLC 1083, another

case in relation to severe damage sustained by a child after the claimant contracted

chickenpox whilst pregnant, the court held that a consultant should be satisfied that a

patient fully understood the risks involved. It was not enough to infer this from the

counselling of a previous doctor. The case ultimately failed on causation.

Once the duty has commenced it will extend to all forms of treatment whether or not the

patient is seen by the health carer e.g. the doctor who gives the nurse instructions for the

patient’s treatment, see Barnett v Chelsea and Kensington HMC [1968] 1 All ER 1068.

6.5 WHO OWES THE DUTY?

All those persons involved in the care of the patient, e.g. doctor, nurse, physiotherapist

etc. Inexperience has no bearing on the nature of the duty, see Wilsher v Essex A.H.A.

[1986] 3 All ER 801 where a junior doctor unsuccessfully argued that he did not have to

meet the same standard of care as his more experienced counterpart. The Court of

Appeal held that once the doctor had held himself out as competent to perform the

treatment then the claimant was entitled to assume that he had the necessary expertise.

This decision was obviously based on a sense of justice for claimants for whilst one could

have sympathy for the junior doctor who was “thrown in at the deep end”, a claimant

should not be penalised simply because he had the misfortune to be treated by someone

with limited experience. The Court of Appeal went on to say that the health authority

could be at fault for placing a junior doctor in a situation which he was ill equipped to deal

with. Thus a health authority could be directly liable for a failure in its organisational /

administration procedures in addition to being vicariously liable for the acts or omissions

of its employees. This does not mean that where the fault has arisen because of poor

resources that the court will impose direct liability, see Chapter 2 Judicial Review, rather

the court is looking at the operational set up, see for example Cassidy v Minister of

Health [1951] 2 KB 343 and Bull v Devon A.H.A. [1993] 4 Med LR 117). In the latter case

direct liability was imposed because the hospital should have had more staff involved to

deal with a difficult twin birth.

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The proximity test was again in issue in Farraj v King’s Healthcare Trust and Another

[2006] EWHC 1228. The question was whether there was sufficient relationship of

proximity between a laboratory (C) used by the trust to test samples of tissue, and the

claimants who were seeking damages for wrongful birth. F, the claimant, was seeking

damages for the wrongful birth of her son who had been born with a serious hereditaryblood disease which the family alleged should have been diagnosed during the

pregnancy. C had no direct connection with the family but had tested tissue for pre-natal

DNA analysis on behalf of the trust. F, the claimant, had provided a poor sample and the

laboratory argued that it offered only a limited service costing £80. The trial was of a

preliminary issue as to whether C owed a duty of care to F. The court held there was

sufficient proximity between the family and C for a duty of care to be established. It did

not matter that the parents and C did not communicate. The family would have expected

that there would be several processes involved in the testing of the samples and C would

be aware that family relying on the advice that it gave. As the hospital would be

vicariously liable for negligence on the part of staff no difference would be made between

a hospital and a private laboratory and hence C owed a duty of care to F. C was held

two-thirds liable and the trust one third liable as the court held the hospital should have

enquired of C whether the sample was a reliable source for genetic testing. This latter

finding however has been successfully appealed by the trust, see Farraj v (1) King’s

Healthcare NHS Trust (2) Cytogenetic DNA Services Ltd [2009] EWCA Civ 1203 . The

Court of Appeal held that the trust had entrusted the analysis and diagnosis of sampling

to an apparently competent laboratory and therefore there was no reason to impose a

non-delegable duty to P. Consequently C was held 100% liable.

Two other cases which are of interest on the scope and nature of the duty owed are West

Bromwich Albion Football Club Ltd v El-Safty [2006] EWCA Civ 1299 and St George v

Home Office [2008] EWCA Civ 1068. In West Bromich an independent orthopaedic

surgeon was held not to owe a duty of care to the football club either in contract or in tort

in respect of the negligent treatment he administered to P, one of the club’s players. As

the surgeon’s fees were settled by an insurance scheme taken out by the club it was heldthat the surgeon had not assumed any responsibility to the club in respect of foreseeable

economic loss. The St Georges case is of interest as it concerned the scope of duty owed

by a prison doctor. The prisoner, S was addicted to drugs and alcohol and had previously

suffered withdrawal seizures and epileptic fits. The prison were aware of this and yet

allocated S the top bunk in a prison cell. S subsequently fell and sustained brain damage.

The prison was found in breach of their duty of care and additionally the prison doctor

was found in breach for not arriving quickly enough.

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42

Finally in Woodland v Swimming Teachers Association [2013] UKSC 66 the Supreme

Court recognised that there might be in certain circumstances a non-delegable duty may

be owed by a defendant in respect of negligent care provided by a third party with whom

they sub-contract. In Woodland such a duty as owed by a local authority to a pupil

attending a swimming lesson conducted by an independent contractor

6.6 VICARIOUS LIABILITY

As mentioned in the preceding paragraph a health authority or trust will be vicariously

liable for the torts of its employees. In the case of an agency nurse whether or not the

hospital is vicariously liable will depend on the terms of the contract with the agency,

whether the hospital has chosen a reputable agency and whether the nurse was properly

instructed. Likewise in the case of private patients being treated in an NHS hospital,

ultimately where liability lies will depend on the nature of the agreement between the

private contractor and the NHS hospital.

Locums, however, pose a unique problem. A locum is not an employee of the GP;

however, a GP has an obligation to select a competent locum. The action should

therefore be brought against the locum as he is an independent contractor but if it is

established that the GP’s selection procedure was inadequate then he and/ or the

practice may also be directly liable, see the Canadian case of Rothwael v Rees (1988) 54DLR (4

th) 193 . Note that the GP or the medical practice will be vicariously liable for the

staff it employs.

6.7 DUTIES OWED BY SPECIFIC GROUPS

The following paragraphs examine the nature of the duty owed by certain identifiable

groups of health carers which have recently been the focus of judicial debate or are

subject to specific legislation.

6.7.1 OCCUPATIONAL HEALTH CARERS

Often the situation arises where an employer requests an employee to undergo a

medical examination. What is the nature of the duty owed, if any, by the health

carer who performs that examination and is also another employee? This matter

has been considered in two cases, Baker v Kaye [1997] overruled by Kapfunde v

Abbey National plc [1999] 2 Lloyds Rep Med 48 . In the latter case Kennedy LJ

said,

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“….the position of Dr Daniel is plainl y comparable with that of social

workers and the doctors in X v Bedforshire CC [1995] 2 AC 633 or

with that of a doctor examining for the purposes of life insurance….in

my judgment there was no special relationship between Dr Daniel and

the appellant to give rise to a duty of care. I prefer that formula from tosaying there was no sufficient proximity, but it amounts to the same

thing.”

In these cases the courts were at pains to point out that the doctor does not

undertake to treat the person as a patient and therefore his only duty will be not to

damage him in the course of the treatment.

Do you think this will always be the case?

6.7.2 THE AMBULANCE SERVICES

In Kent v Griffiths, Roberts & London Ambulance Services [1999] 2 Lloyds Rep

Med 58 it was held that ambulance services were under a duty to attend with

speed and care and are not in the position of a volunteer or bystander. An appeal

by the London Ambulance Services was then dismissed by the Court of Appeal,

see [2000] 3 Lloyd’s Law Rep Med 109. Lord Woolf said that it was wholly

inappropriate to regard the LAS and its employees as volunteers as the LAS were

under at least a public law duty. The LAS were simply providing a health service

and health services under the NHS Act attracted a duty of care. There was no

reason why the position of ambulance staff should be any different from that of a

doctor or nurse and once the LAS accepted the call a duty of care was established.

See also the case of Oakes v (1) Neininger (2) Brown (3) Greater Manchester

Ambulance Service [2008] EWHC 548 where an ambulance crew where found

negligent for not referring the claimant to hospital. In the more recent case of Taafe

v East England Ambulance Service NHS Trust [2012] EWHC 1335 paramedics

were found liable for failing to take a proper history and proper assessment of thepatient’s symptoms and for ignoring an abnormal ECG printout.

6.7.3 A GP’S DUTY TO AN ACCIDENT VICTIM

A GP’s terms of service will create a formal doctor/patient relationship between the

GP and an accident victim in two situations:

(i) if he is immediately required to attend the injured person and the accident is

in his practice area; or

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prescription was correct or whether there had been some error in this case. The

branch procedures manual covered such a situation and in failing to follow the

procedures set out in the manual and in not enquiring of E or H whether the

prescription was correct G had fallen below the standard of care which would

reasonably be expected of a competent pharmacist.

This case is also of interest from a causation perspective see paragraph 7.10.2.

6.8 DUTIES OWED TO PARTICULAR PARTIES OR IN PARTICULAR

SITUATIONS

The paragraphs below focus on two areas, (1) the duty owed to certain special groups

and (2) the duty owed in somewhat unusual situations. Both have been subject to judicial

debate hence there special treatment.

6.8.1 IS THERE A DUTY TO THE EMBRYO?

The answer to this question is yes but it is dependent on the child being born, see

Burton v Islington H.A. [1993] 4 Med LR 8. This means that only when the child is

born can he sue for injuries inflicted whilst in the womb. In some jurisdictions this

will extend to pre-conception negligence see for example X v Y & Pal and others

[1992] 3 Med LR 195 ).

Alongside the common law position is the statutory duty defined in the Congenital

Disabilities (Civil Liability) Act 1976 which defines the statutory duty to the embryo

and applies to all births after 22 July 1976. Under the Act a child may sue for any

act which affected either parent in his/her ability to have a normal child or any act

which affected a mother during pregnancy or a child during birth. The Act appears,

however to rule out “wrongful life” claims, see McKay v Essex AHA [1982] QB 1166

and Chapter 8 Damages paragraph 8.6.

6.8.2 CAN A DUTY BE OWED TO A THIRD PARTY?

In English law the proposition is still that A cannot be liable for harm caused by B to

C, see for example, Smith v Littlewoods [1987] 1 All ER 710). Only in very

exceptional circumstances will the court impose a duty; usually where one party is

capable of exacting some degree of control over another, see Home Office v

Dorset Yacht [1970] 2 All ER 294.

In Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161 the

defendants had performed a vasectomy for a married man. Some three years later

he began a relationship with the claimant. Thinking that the man was now sterile

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the claimant did not use any contraceptive measures; she later became pregnant.

The vasectomy had undergone a spontaneous reversal. The claimant sued the

defendants and on appeal her claim was dismissed. The Court of Appeal held that

the defendants were not in a sufficient or any special relationship with the claimant

to give rise to a duty of care. At the time the vasectomy was performed she waslike any other woman in the world: simply a potential future sexual partner of the

man and therefore the defendants had no responsibility to her. In addition, the

case of Palmer v Tees Health Authority and Hartlepool & East Durham NHS [1999]

9 Lloyd’s Rep Med 351 emphasised the need for proximity of relationship between

the defendant and the third party. In this case the court found that the health

authority was not liable for the death of a child murdered by a psychiatric outpatient

confirming the restrictive approach the courts have taken to this type of scenario as

illustrated by Hill v Chief Constable of West Yorkshire [1989] AC 53. Considering

this in mind then one wonders at the wisdom of the solicitors advising the claimant

in the case of Nunes v Agrawal (Re N) [1999] 7 Lloyd’s Rep Med 257 where a

victim of alleged rape and buggery asserted that the medical practitioner who

examined her owed her a duty to attend court and give evidence at the trial of her

alleged assailant. The court held that the patient / doctor relationship did not arise

the duty was simply to take care in the course of the examination not to make the

patient’s condition worse.

The American courts, however, have on more than one occasion held that a doctor

can owe a duty to a third party in respect of the activities of his patient.

In Tarasoff v Regents of the University of California (1976) 551 P 2d 334 the

defendant physician's patient had repeatedly threatened to kill a young woman.

These threats were uttered to the physician on several occasions. Unfortunately

the patient carried out his threat and the deceased woman's parents sued the

defendant for failing to warn the young woman or the parents. The claim

succeeded.

In Bradshaw v Daniel (1993) 854 S.W. 2d 865 the claimant's father had been the

patient of the defendant physician. He had died of Rocky Spotted Mountain Fever.

The claimant's mother, who was not a patient of the defendant, also contracted and

died of the same disease. The claimants brought an action on behalf of their

deceased mother arguing that the defendant should have warned their mother

notwithstanding the fact that she was not his patient. The court agreed with this

reasoning holding that in this instance the defendant did owe a duty of care to a

third party.

It should be emphasised that in both cases a duty was only imposed because there

was a degree of control exercised by the defendant over his patient and the third

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party was either identified or identifiable and it was foreseeable that harm would

result if the third party was not warned. These factors are also present in the GMC

guidance for dealing with HIV patients, which state that, where an HIV patient

refuses to give his consent to disclosure of his condition to a third party, then the

doctor may disclose where there is a specific risk to an identifiable individual, e.g. asexual partner or spouse. Note the strict limitation on disclosure to an identifiable

individual. Thus a patient who has a number of sexual partners may be safe in the

knowledge that a doctor would not be able to reveal his condition to any party for in

such a situation who would the doctor disclose to? In addition any disclosure

should only take place after all other options have been explored e.g. several

attempts to obtain the patient’s consent, counselling etc. Such is the social stigma

attached to someone who is HIV and the need to protect those affected by it that

any disclosure should never become a matter of routine but only take place within

the strict parameters outlined above.

In JD v East Berkshire Community Trust [2005] UKHL 23; [2005] 2 WLR 993 the

claim was brought by a mother whose son appeared to suffer from severe allergic

reactions. The son was referred to the defendant hospital and assessed. During

this assessment the clinicians concluded that the mother was exaggerating his

symptoms and alleged that she was suffering from Munchausen’s syndrome by

proxy. A referral was made to Social Services. However later investigations by a

different consultant showed that the claimant’s son symptoms were in fact genuine

and therefore it had been inappropriate to diagnose the claimant as suffering from

Munchausen by proxy. The claimant pursued a claim against the Trust alleging that

the diagnosis of Munchausen by proxy was negligent and that as a result she had

suffered psychiatric injury.

On appeal to the House of Lords the claims failed but perhaps more importantly

their Lordships held that the defendant health authority did not owe a duty of care

to a person suspected of child abuse to investigate the case without carelessness;

the only requirement is that the investigating person should have acted in good

faith. Further to find such a duty would not be fair just or reasonable because such

a duty involved conflicting interests and was not justified. Notably it would be also

be opposite to the policy of settled law which was opposed to the granting of

remedies to third parties for the effects of injuries to other people.

Clearly policy had a part to play in this decision. Health professionals have been

allowed to retain immunity from claims in negligence when detecting child abuse.Once of the reasons for this is that the parents could bring a human rights claim

that their convention rights have been infringed. Note however the dissenting

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48

judgment of Lord Bingham which does set out grounds for allowing the appeal and

also hints that the common law should evolve and create new remedies i.e.

perhaps breach of rights instead of breach of duties to form the basis of liability

rather than let all these claims be swept away by the Convention.

Although not a case of clinical negligence the decision in Selwood v Durham CC

[2012] EWCA Civ 979 is of interest. In Selwood the issue was whether two NHS

trusts owed a duty of care to a social worker who suffered injuries at the hands of

one of their patients. In brief the claimant was a social worker employed by

Durham CC. She was the designated social worker for a girl who father (GB)

attacker her with a knife causing serious injuries. Her claim was against her

employer (first defendant), the NHS Trust which ran the mental health services

team treating the daughter and GB (second defendant), and an NHS Trust which

ran a mental health admissions ward and whose employees treated GB (third

defendant). The three defendants had signed a protocol entitled “working together

in the delivery of services to adults and children.” During an outpatient assessment

with the second defendant GB had said that there was someone involved in the

family proceedings who he wished to harm but that he was trying to avoid her. He

then subsequently said he was having violent thoughts about certain individuals

involved in his family’s care. This information was passed to the CC and the third

defendant. There then followed other instances of GB having paranoid delusions

about specific individuals culminating with GB informing the third defendant that if

he saw the claimant he would kill her on the spot. This threat was communicated to

the second defendant but not the claimant or her employer. Not being aware GB

had left hospital the claimant attended GB home for a case conference where he

attacked her.

On appeal it was held that it was at least arguable that the defendants did owe a

duty to the claimant. The Court of Appeal made reference to the joint protocolbetween all three defendants and that it was reasonable to infer that there was a

responsibility to reduce or avoid any foreseeable risk of harm to which an

employee was exposed. Moreover there was a policy issue, namely social workers

who work in the field of child abuse, as this case was, should be protected as far

as possible.

The implications for practice of the Selwood decision may be significant. The

decision suggests that public bodies engaged in joint-working activities may owe

more onerous obligations to the employees of partner organisations than might

previously have been assumed. Moreover it would suggest that where one of the

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49

care partners obtains information that suggests another’s employee may be at risk

the case for disclosure of that information may be compelling.

6.8.3 NERVOUS SHOCK AND THIRD PARTIES

This is dealt with in chapter 9.

Further Reading


(Routledge, Chapter 6 pp 256-270

Brazier & Cave: Medicine, Patients and the Law (5t ed) (Penguin

Books), Chapter 7

Khan, Robson & Swift: Clinical Negligence 2n

ed (Cavendish Press) Chapter 3

Khan & Robson: Personal Injury Law and Medical Review [1995] Vol 2

No1 page 44

Jackson Medical Law Text Cases and Materials Oxford University

Press Chapter 3 pp 104-112

Pattinson Medical Law and Ethics 4th ed (Sweet & Maxwell)

Chapter 3

Herring: Medical Law and Ethics 4th ed (OUP) Chapter 3 pp 105-129




50

SUMMARY


* identify when the duty begins and ends;

* explain what is the nature of this duty;

* identify who can owe a duty;

* explain the difference between direct and vicarious liability.




51


1. Who owes the duty of care in a clinical negligence claim?

2. In what circumstances will the contractual obligations owed to a private patient

differ to the obligations owed in tort to his NHS contemporary?

3. If a GP refers a patient to a consultant does his duty of care end there? If not

where does it end?

4. In what circumstances might a health authority be found directly liable as

opposed to vicariously liable for the act / omissions of its employees?




52

NOTES




53

CHAPTER 7

THE STANDARD OF CARE

7.1 INTRODUCTION

Once the claimant has established that the defendant owed him a duty of care he must

then go on and show that the defendant has failed to reach the standard of care expected

of him. In determining this question the courts apply what has become known as the

"Bolam test" which originates from the case of Bolam v Friern H.C.C. [1957] 2 All ER 118

. In that case McNair J said:

“The test is the standard of the ordinary skilled man exercising and

professing to have that special skill. A man need not possess the highest

expert skill; it is well established law that it is sufficient if he exercises the

ordinary skill of an ordinary man exercising that particular art.”

In Bolam the claimant had argued that the defendant was negligent in his administration

of electro-convulsive therapy and he alleged, inter alia, that the defendant should have

warned him of the risks involved in the treatment and that he should have been restrained

manually. The claimant's case failed because the defendant was able to demonstratethat he had acted in accordance with a practice adopted by his colleagues.

7.2 What is the required standard of care?

7.2.1 Objectivity

It is an objective test – it is what a reasonable and responsible group of health

carers with similar skills to the defendant would or would not have done - seeBrooks v Home Office (1999) The Times 17 Feb 1999 . It was argued by the

defendant in this case that the claimant was not entitled to receive the same

standard of care by a prison doctor as she would expect to receive outside prison

but thankfully this argument failed. But is it a legal standard or a medical

standard? Generally like is compared with like, for example a specialist must meet

the standard of care of a specialist practising in his particular field of medicine,

likewise a GP must meet the standards expected of a reasonably competent GP.

The standard remains constant no matter what the treatment - Bolam is applicable;

though there have been attempts to introduce a different standard in the area of

advice and disclosure of risks though there have been attempts to introduce a

different standard in the area of advice and disclosure of risks (see later). In the




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54

recent case of Meiklejohn v St George’s Healthcare Trust and Homerton University

Hospital NHS Foundation Trust [2014] EWCA Civ 120 the Court of Appeal rejected

an argument that a consultant haematologist should have to reach a higher

professional standard of care because she happened to be internationally

renowned. The appropriate standard of care was that of a tertiary specialist inaplastic anaemia.

Inexperience is no defence; a junior doctor cannot excuse himself because of his

lack of experience in the job. See for example Wilsher v Essex A.H.A. [1986] 3 All

ER 801 . Once the health carer has held himself out as able to meet the task in

hand then the patient is entitled to assume that the doctor has the competence to

fulfil that task. In some ways this is nothing new; see for instance the position of

learner drivers and refer to previous notes on tort. To escape liability the junior

(inexperienced) doctor should seek the advice of a more senior colleague (as was

the case in Wilsher ). The liability will then fall upon the more senior colleague

should he fail to give the requisite level of supervision. In the case of a nurse he is

usually acting on the doctor's instructions but it must be emphasised that the nurse

cannot follow those instructions blindly if he believes them to be erroneous or

illegal.

7.2.2 Accepted medical practice

Bolam – “ A doctor is not guilty of negligence if he has acted in

accordance with a practice accepted as proper by a responsible body

of medical men skilled in that particular art... Putting it the other way

round a doctor is not negligent, if he is acting in accordance with such

a practice, merely because there is a body of opinion that takes a

contrary view”

The Bolam test demands that the doctor comply with an accepted medical practice.It then goes on to say is that it does not matter if there is more than one body of

medical opinion on the issue in question, the defendant simply has to show that he

acted in accordance with the practice of one particular and responsible group of

doctors. The rationale behind this approach is the view that the courts are not the

forum for the medical profession to squabble over what is the right practice. In any

event since medicine is an imprecise science there must be and will be more than

one way of treating a patient. Why should the courts – a non-medical body – say

which is the more preferable form of treatment in any given situation? They should

not.

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Having stated that there can be more than one practice does it matter how many

medical practitioners follow that practice? Apparently not, if the case of DeFreitas

v O'Brien & Connolly [1995] 6 Med LR 108 is to be followed. There the claimant

argued that the practice had to be followed by a “substantial body” of medical

practitioners. The Court of Appeal held that this approach was erroneous. Whetheror not a practice was accepted could not be determined by "counting heads". Thus

it could follow that the views of two could outweigh the views of fifty. Can this be

right? Can it not be argued that if fifty people support a practice it is more arguable

that there is an accepted practice? In Walsh v Gwynedd HA it was said that only

one doctor could not constitute a body of medical opinion.

7.2.3 Current practice

The practice itself must be current. This means that at all times the health carer

must endeavour to keep up to date. Like any other profession the doctor will be

judged by the prevailing English standard at the time. (See Roe v Minister of

Health [1954] 2 QB 66 and Crawford v Charing Cross Hospital The Times Dec

1953 and Boustead v North West SHA [2008] LS Law Med p 471.

One obvious problem caused by this rule is in determining when a health carer

should have adopted a new practice; this will depend to a large extent on the

length of time the knowledge has been available but there is no absolute rule.

In Kent v Griffiths, Roberts and London Ambulance Service [1999] 10 Lloyd’s Rep

Med 424 the claimant’s claim against her general practitioners failed despite the

fact that the defendant general practitioner had failed to follow the latest BMA

guidelines for the treatment of asthma, the court ruling that if the failure to follow

guidelines were the only deciding factor as to whether negligence was proven then

that would mean rejecting clinical judgment of the treating practitioner. Guidelines

are no substitute for clinical judgment. Whilst agreeing with this ruling one

wonders in what situations the court will find that clinical judgment has erred given

their reluctance to challenge medical opinion, see paragraphs 6.3 onwards.

7.3 WHEN WILL THE DEFENDANT BE IN BREACH OF THE STANDARD OF

CARE?

7.3.1 When he departs from accepted practice

This is not an absolute rule; each case will turn on its facts.

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57

One area where Bolam has caused the most consternation is in relation to the

disclosure of risks. It has been argued that the patient should be told all the risks

associated with the procedure and not just what the medical profession thinks the

patient should know. There is certainly something to be said for this view; the

Australian courts, for example, have resoundly rejected Bolam in this area and heldthat the patient should be told everything when he needs to make an informed

choice about his treatment. In Rogers v Whittaker [1993] 4 Med LR 79 the

Australian High Court said that a doctor’s duty was not decided “solely or even

primarily by reference to the practice followed by or supported by a responsible

body of opinion in the relevant profession.” To see the injustice that Bolam may

cause contrast this case with the English case of Sidaway v Board of Governors of

Bethlehem Hospital [1984] 1 All ER 1018. Whereas the Australian courts were

prepared to find that the defendants’ were in breach of their duty of care for failing

to disclose a 1/14,000 risk to the claimant, the English courts were not prepared to

do the same in the Sidaway case where the risk was 1-2%. There were some

attempts to be more innovative in the lower courts, see for example the judgments

in Smith v Tunbridge Wells [1994] 5 Med LR 344 and Joyce v Merton, Sutton &

Wandsworth H.A. [1996] 7 Med LR 1 where at first instance Overend J said that

the defendant would not be negligent if he acted in accordance with accepted

practice, “provided that clinical practice stood up to analysis.” In the Court of

Appeal Roch LJ commented on this direction and said,

“.... the decision of negligence or no negligence....must at the end of

the day be one for the courts.”

Moreover in Fallows v Randle [1997] 8 Med LR 160); www.lawtel.co.uk (a failed

sterilisation case) the Court of Appeal held that where there was a conflict of

medical evidence then the Bolam principle had no application, it was simply a

question of fact which had to be determined on a balance of probabilities, (see

further Penney, Palmer and Cannon v E Kent H.A. [2000] Lloyd’s Rep Med 41

discussed below).

Note however following the Montgomery decision the application of Bolam to cases

of risk disclosure has been firmly rejected by the Supreme Court (see below).

7.3.3 When the Practice does not have a Logical Basis

The House of Lords seized the opportunity to re-explain the Bolam rule in Bolitho v

City and Hackney H.A. [1997] 4 All ER 771); and made some interesting

observations on the status of the Bolam test. It was not enough to glibly rely on

medical opinion, the opinion itself must, commented the Lords’, have a “logical







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58

basis”. The court therefore must be satisfied that the experts in question had

weighed up the risks and advantages associated with a particular procedure and

had reached, in Lord Browne-Wilkinson’s words, “a defensible conclusion”.

Whether this was a new approach was debatable as the Lords’ acknowledged that

it would only be “a rare case” where the court would find that the opinion did notmeet these requirements. But just how many of these “rare” cases would there be

warranting the new approach?

In Penney, Palmer and Cannon v E Kent H.A. [2000] Lloyd’s Rep Med 41); the

Court of Appeal found that the defendant Health Authority was liable to the

claimants in respect of the negligent assessment of their cervical smear tests.

Expert opinion differed yet the Appeal Court held that that did not necessarily

provide the solution to the dispute on liability. The court relied on the judgment in

Bolitho and further held that the Bolam test had no application when the judge was

required to make findings of fact even where the findings of fact were the subject of

conflicting expert opinion. Bolam did not apply where there was no question of

acceptable practice. In this case the court had to decide as a question of fact “what

was to be seen on the slide” and the court found that the cytoscreener should have

at least been aware that Mrs Penney’s slide was difficult to interpret and referred

the slide for further examination. Applying the risk benefit approach canvassed in

Bolitho the judge balanced the need not to give a false negative result against the

need not to give a false positive. The Court of Appeal preferred the expert

evidence of the claimant and found that the abnormalities could be seen but

stressed that it was not rejecting the general approach of the defendant. The

approach taken in Penney was endorsed in Conway v Cardiff and the Val NHS

Trust [2004] EWHC 1841.

In Marriott v W Midlands HA (and SE Staffs AHA) and Patel [1999] 1 Lloyds Rep

Med 23 [1999] the Court of Appeal applied Bolitho in a non-disclosure case.

Beldam LJ held that the judge at first instance had been correct in carrying out her

assessment of the risk. At (at p 28):

“ It was open to the judge to hold that, in the circumstances as she

found them …. it could not be a reasonable exercise of a general

practitioner’s discretion to leave a patient at home and not refer him

back to hospital.”

Pill LJ whilst agreeing that the appeal should be dismissed held that Bolitho was

not really applicable in this instance as the expert evidence only pointed one way.







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See also Zinzuwadia v Home Secretary (2000) and Calver v Westwood Veterinary

Group [2001] 1 Lloyd’s Rep Med 20, MLC 0350.

7.3.4 Bolitho and Risk Disclosure

Lord Browne-Wilkinson had notably omitted the area of risk disclosure from his

judgment in Bolitho, some would say because Bolitho was not intended to be of

general application to all areas of clinical negligence, another view being that his

Lordship already perceived a different test being applied to what is in reality a non-

clinical area. In Pearce v United Bristol Healthcare NHS Trust [1999] 48 BMLR

118; MLC 0086; see www.medneg.com the health carer had failed to point out to a

pregnant woman that there would be an increased risk of stillbirth as a result in the

delay in delivery of her 6th

child. The claim in negligence was dismissed but Lord

Woolf said

“Obviously the doctor, in determining what to tell a patient, has to take into

account all the relevant considerations, which include the ability of the

patient to comprehend what he has to say to him or her and the state of the

patient at the particular time, both from the physical point of view and an

emotional point of view. There can often be situations where a course

different from the normal has to be employed. However, where there is what

can realistically be called a "significant risk", then, in the ordinary event, as I

all have already indicated, the patient is entitled to be informed of that risk.”

The courts continued to refine the extent of a doctor’s duty and the appropriate

standard of care in the area of risk disclosure.

In Birch v University College London Hospital NHS Foundation Trust [2008] EWHC

2237; although the neurosurgeons and neuro-radiologists had not been negligent

they were held liable for not properly obtaining the claimant’s consent because

they should have discussed the alternative treatments with the claimant and the

comparative risks. Had they done so the claimant would have declined the catheter

angiography and so avoided the stroke.

In Nathanson v Barnet & Chase Farm Hospitals NHS Trust [2008] EWHC 460 N,

who suffered from a series of psychiatric illnesses, fell down some stairs whilst

visiting her son from Australia. She was taken to hospital and examined by a

doctor who made no enquiries regarding her psychiatric condition as she appeared

lucid. The doctor told N of the necessity for deep breathing to avoid bronchial

infection and also prescribed her pain killers. Thereafter her physical health

deteriorated and she had symptoms of her psychiatric illness. Her son was

unaware of the doctor’s advice of the necessity of deep breathing and decided not

to force N to take her analgesics. N died and her son brought a claim arguing that




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60

the advice given to N was inappropriate and insufficient and that the treating doctor

should have taken a full medical history. However the court opined that this was

going too far and that unless there was something to suggest that a patient had a

psychiatric or medical history that might be relevant to her treatment or

understanding there was no general requirement to ask about her medical orpsychiatric history.

However in Meiklejohn v St George’s Healthcare Trust and Homerton University

Hospital NHS Foundation Trust [2014] EWCA Civ 120 (considered above) the

Court of Appeal reiterated that the duty to advise and warn about diagnosis and

treatment and possible side-effects was to be assessed in accordance with Bolam

and Sidaway. There was no duty to warn of possible diagnoses that were not

reasonably suspected. The court distinguished Sidaway and Chester (considered

below) both of which had concerned the failure to warn of serious side-effects of

surgery, and also Birch where although the risk had been explained a less risky

alternative had not.

However following the decision in Montgomery v Lanarkshire Health Board [2015]

UKSC 11 the courts have at long last caught up with professional guidance and

firmly shut the door on Bolam in cases of risk disclosure.

7.3.5 Montgomery v Lanarkshire Health Board [2015] UKSC 11

Nadine Montgomery suffered from diabetes, was of small stature and was carrying

a large baby. It was commonly accepted that diabetic mothers are likely to have

larger babies and are at increased risk of problems during delivery. During the

delivery of her son, Sam shoulder dystocia occurred resulting in Sam being born

with severe disabilities. The risk of this happening was 9-10%. Nadine Montgomery

argued that she should have been informed of this risk and of the alternative

means of delivery by caesarean section. In an earlier hearing in the Scottish courts

(see M’s Guardian v Lanarkshire Health Board [2010] CSOH 104) Lord

Bannatyne at para 207

“I am unable to conclude that the defender’s experts’ views o n the interpretation of

the CTG trace cannot be supported at all……Their position that there was no need

to intervene at any of the points identified by the pursuer’s experts was overall in

my view clearly defensible. Their views may be wrong. I am, however, unable to

identify any basis for wholly rejecting them as illogical.”

In trying to argue the defendant’s practice was illogical the claimant failed to

convince the Scottish courts in spite of her reliance on Bolitho.






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By the time the case reached the Supreme Court the issue was solely confined to

what was the appropriate standard of care in negligent pre-operative disclosure. In

other words did Bolam or Sidaway still apply in risk disclosure cases. The answer

is a resounding no.

Lords Kerr and Reed pr onounced that a doctor’s duty is to take reasonable care to

ensure that the patient is aware of any material risks involved in any recommended

treatment, and of any reasonable alternative. Significantly the test as to whether a

risk is material is whether in the present circumstances a reasonable person in the

patient’s position would likely think the risk was significant or whether the doctor is

aware that the patient would think the risk is significant. Here the risk of shoulder

dystocia was significant and it should have been disclosed. The risk of a caesarean

section was in contrast very small to both mother and baby. Furthermore Nadine

Montgomery herself had expressed concerns about a vaginal delivery and this

further emphasized the need to advise her fully about the risks and the alternatives

available.

In reality this decision simply brings the court more into line with the approach

taken by the GMC which states that the doctor must always counsel a patient as to

the options available to the patient and the benefits,risks,burdens and side effects

associated with each option. The GMC state it is the patient who “decides whether

to accept any of the options and, if so, which one” (GMC, Consent: Patients and

Doctors Making Decisions Together 2008).

7.3.6 Bolam, Bolitho and Breach

Set out below are a few of the many decisions reviewing the Bolam / Bolitho

approach which you may find of interest. More recent decisions on clinical

negligence and standard of care are listed under the Further Reading section.

(i) McDonnell v Holwerda [2005] EWHC 1081. This case is of interest for the

comments made warning against judging breach of the standard of care with

the benefit of hindsight and that when considering whether a referral was

appropriate a GP should look at the aggregate of symptoms. In McDonnell a

GP was found negligent for failing to refer a child with meningococcal

septicaemia. The doctor in this case was required to refer “without waiting

for the illness to develop to the point where specific symptoms and signs

have developed.” (para 53). The concern here is that the judge’s comments

seem to suggest that in every case where a child presents with symptoms

which could be explained in accordance with more common ailments the

doctor should still refer based on an “aggregate of those symptoms”. Could

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this result in huge increase of referrals if GPs are compelled to take the

aggregate of symptoms approach?

(ii) Kingsberry v Greater Manchester Strategic Health Authority [2005] EWHC

2253. In Kingsberry an obstetric registrar was found negligent for deliveringa baby (the claimant) by manual rotation and forceps delivery on the ward. It

was held that the registrar should have set in motion trial of forceps in

theatre with a senior registrar in attendance. If this had occurred it was

accepted that the claimant would have been delivered within ten minutes by

caesarean section and consequently not have suffered from cerebral palsy.

What is interesting about this decision is the apparent use of hindsight to

judge whether the defendant was in breach or not (this is alluded to in an

article by Andrew Farkas, see www.medneg.com). McKinnon J held that a

trial by forceps in 1985 was an accepted obstetric management technique

and that it should have been employed where there was uncertainty of

outcome. He however continues by stating that that is what would have

happened in 2005. Is this not bringing hindsight into the equation? At

paragraph 45 McKinnon J said;

“Trial of forceps was an accepted obstetric management

technique by 1985 and was to be employed when the operator

recognised or ought to have recognised that the prospects of

successful forceps delivery were uncertain. As there was

undoubtedly such uncertainty as to outcome, a trial of forceps

was mandatory. That is what would have happened in 2005.

Accepting the evidence of the claimant’s experts, for all

practical purposes, there was no difference between 1985 and

2005 in their experience……..Even if there was a practice in

1985 not to perform a trial of forceps in the circumstances of

this case in certain hospitals then such a practice was not in

accordance with any responsible body of obstetric opinion in

1985. Further it did not withstand logical analysis…..The proper

risk benefit analysis applied in 2005 did require trial of forceps

and, indeed, a trial of forceps would have resulted in this case.

That being so there was no sensible reason why such an

approach should not apply equally in 1985.”

Did the registrar’s conduct really fail the logical analysis test as per Bolitho?

To what extent was the judgment made with the benefit of hindsight? See

further Boustead v NWSHA [2008] LS Law Med p 471.

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(iii) Burne v A [2006] EWCA Civ 24

This case is worthy of a read as an illustration of how and when the Bolitho

judgment should be applied in standard of care cases. The Court of Appeal

held that although the trial judge’s approach was correct in applying Bolithohe should have given the defendant’s expert witness (and the claimant’s too)

a proper opportunity to explain the practice, or at least one acceptable

school of thought within it.

(iv) Smith v Southampton University Hospital NHS Trust [2007] EWCA Civ 387

This was an appeal brought by the claimant S against the defendant for

clinical negligence during a hysterectomy operation. The Court of Appeal

held that the approach of the trial judge was incorrect in her assessment of

expert evidence. It was insufficient to rely exclusively on the Bolam test

where there was a clear conflict of medical opinion. The court was under a

duty to not only say which expert view it preferred but to explain why it

preferred one to the other. In essence the court had to do more than simply

say that the defence expert was representative of a responsible body of

medical opinion and consequently the defendant was not negligent.

(v) Holt v Edge [2007] EWCA Civ 602

This was an appeal from a High Court decision. H had fallen in the shower

and her husband had contacted the GP and was told to contact the out of

hours GP service. An emergency doctor visited H that evening and told her

to see her GP the following morning. The next day E confirmed the

diagnosis of a minor neck injury. Two days later H was still feeling unwell

and was admitted to hospital and diagnosed with subarachnoid

haemorrhage and subsequently suffered a stroke. Surgery was carried out

three days later. E admitted breach of duty by failing to ensure that H spoke

to a doctor at an earlier time on the day of her accident but denied liability for

the injury.

H argued that had there been competent telephone triaging after the first

phone call to E surgery, this would have meant there would have been an

earlier diagnosis and surgery would have been carried out sooner. She also

contended that E was in breach of duty by failing to ask her about her history

of vomiting and had he done so she would have been referred to hospital

earlier.

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64

The Court of Appeal held that telephone system would have made no

difference as the GP would have learned nothing through that process which

would have led him as a competent GP to refer H without delay. The vital

symptoms of pounding headache and vomiting had not been present when

the initial call was made and not when the emergency doctor visited thehouse. Even though E should have made enquiry there was no evidence

that H answer would have precipitated an immediate referral to hospital.

A GP cannot be expected to have the detailed knowledge of an expert in

every field of medicine.

(vi) Stephen Atwood v Health Service Commissioner (2008) EWHC 231

(Admin)

The Bolam test is not just confined to the courts. Although the Health

Service Commissioners Act 1993 s.3 (1) did not dictate that the Bolam test

should be applied by the Health Service Commissioner to questions of

clinical negligence; in Attwood it was clear from the documents produced by

the commissioner that when considering whether to stigmatise a clinical

judgment as "unreasonable" she and her predecessor had stated that they

would apply a test that was indistinguishable from the Bolam test.

7.4 Res ipsa loquitur

As with all tort cases the burden of proof is on the claimant, however, he may additionally

rely on the principle of res ipsa loquitor. In the clinical negligence field the courts have on

several occasions indicated their disapproval of the application of res ipsa to clinical

negligence cases. See for example Bouchta v Swindon H.A. [1996] 7 Med LR 62 where

the court held that the claimant had established that lack of care had resulted in damage

to her ureter during a routine hysterectomy though the doctrine of res ipsa was

inappropriate. Refer also to Fallows v Randle [1997] 8 Med LR 160 (see above at

paragraph 6.3.2).

However, where for example, the patient was unconscious in the operating theatre and

consequently had no idea of what events took place, then the doctrine may be

appropriate, see Cassidy v Minister of Health [1951] 2 KB 343; claimant went into the

operating theatre with two stiff fingers and emerged after the operation with four stiff

fingers; Denning LJ held that res ipsa was appropriate because the result of the operation

was highly indicative of negligence and the defendant had control of the situation); and

Glass v Cambridge H.A. [1995] 6 Med LR 91 (Lawtel logon). In the latter case the court

held that the onus was on the defendant to explain why the claimant suffered a heart

attack whilst under general anaesthetic as this would not normally happen in such

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65

circumstances. If the defendant had given a reasonable explanation then the inference of

res ipsa would have been rebutted, see also Saunders v Leeds Western H.A. (1984) 129

S.J. 225 where a child suffered a cardiac arrest during an operation the defendant

contended that the child’s heart had suddenly stopped – this explanation was held to be

implausible.

In Jacobs v Great Yarmouth and Waveney HA [2002] MLC 0710; www.medneg.com

(date of judgment March 1984) the claimant sought damages for the alleged negligent

administration of anaesthetic when she underwent a hysterectomy at Lowestoft Hospital.

She contended that the anaesthetic must have missed her vein with the result that the

anaesthetic had no appreciable effect. The claimant alleged that she remained conscious

and aware of the operative procedures right up to the moment of the first surgical

incision. She alleged that as a result she underwent the terrifying experience of believing

that the surgeon intended to operate on her and remove her womb while she was

conscious but, because of the paralysing effect of the second injection, was unable to

communicate with those carrying out the operation. This, it was claimed, had gravely

affected her nervous system.

The Court of Appeal upheld the finding of the judge that after having received pre-

operative drugs the claimant’s memory, would be unreliable and, although a prima facie

case had been raised by proving that the claimant had pre-operative awareness that had

been fully answered by the evidence. The alternative submission that, if the court

concluded that the claimant’s recollection was pre-operational, negligence had been

established by the doctrine of res ipsa loquitor, was not accepted. Although a prima facie

case had been raised, that case had been fully answered by the evidence. It was

concluded that on the balance of probabilities, the claimant was one of those well

documented people, who do have a degree of awareness, whereas the ordinary patient is

entirely unconscious.

In Lillywhite v University College London Hospitals’ NHS Trust [2005] EWCA Civ 1466 the

Court of Appeal once again revisited the application of res ipsa loquitor in a clinical

negligence case. The case concerned the alleged negligence on the part of an eminent

consultant, who was a leader in his field, for failing to detect a condition called

holoprosencephaly by obstetric ultrasonography which the defendant’s experts said went

undetected on scans in between 40-60% of cases at the time in question. What is of

interest in this case is the very marked differences between the judiciary, the defendant

had succeeded at first instance; however the claimant succeeded in front of a very

divided Court of Appeal. Although concluding that this case was not one in which res ipsa

could or should be applied Lord Justice Latham commented that in some cases the

evidence produced by the claimant “may be such as to require the court to focus with

some care on the explanation given by a defendant to displace that which would

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66

otherwise be the inevitable inference from the claimant’s case that negligence has been

established.” (page 280). Latham LJ had no doubt that the ultrasound was performed with

due care however he went on to say that there a heavy burden on the defendant

consultant to produce an explanation as to why he mistakenly thought the structures in

the ultrasound were present and what could have led him to this incorrect assumption.The dissenting judgment of Arden LJ is particularly erudite recognising that what was

being asked by Latham LJ was much too onerous commenting that it was sufficient that

the defendant’s explanation be plausible only and not probable. She added, “The

claimants could not show what the doctor had done, the judge was satisfied that doctor

had acted carefully and there was evidence that one possible explanation involved no

negligence on his part. If, in an area of medicine where there are no clear answers, the

court were to require the doctor, who is said to have been negligent, to provide a full

clinical explanation of what might have happened in order to rebut a prima facie case of

negligence, the court would be requiring the doctor to go beyond the bounds of known

medical science.” (para 60-62). Clearly the lack of an explanation as to what was seen

on the scan is an important factor but it seems as this was considered to the exclusion of

the factors that the scan was performed competently, the consultant was the eminent

expert in his field and that this was a developing area of medicine. Perhaps a case where

we have some sympathy with the medical profession and a preference for the dissenting

judgment.

See also Ratcliffe v Plymouth and Torbay Health Authority [1998] Lloyd’s Rep Med 162

and Pithers v Leeds Teaching Hospital NHS Trust [2004] EWHC 1392, Aintree Hospitals

NHS Trust v Sutcliffe [2008] EWCA Civ 179. More recently in the private medicine case of

Hussain v King Edward VII Hospital [2012] EWHC 3441 the claimant pleaded res ipsa

loquitor alleging that one or more members of staff must have done something during the

period when he was anaesthetised which damaged his shoulder. It was apparent from

the facts of the case that something had happened to the claimant’s shoulder during the

anaesthetic but it was also apparent from the evidence that the claimant’s shoulder

already had asymptomatic degenerative changes and this was sufficient to rebut the

inference. Moreover it was apparent that the defendant had taken reasonable care.

Commenting on the application of res ipsa Mr Justice Eady sai d, “Res ipsa loquitor does

not give rise to a presumption of any kind. It is simply a conventional way of saying that

the facts, as known to the claimant at the time he pleads his case, give rise themselves to

a prima facie case of negligence.”

Finally in Thomas v Curley [2013] EWCA Civ 117 the Court of Appeal summarised res

ipsa as, “The term res ipsa loquitor describes a situation in which it is possible for the

court to draw an inference of negligence where a Claimant has proved a result without

proving any specific act or omission on the part of the Defendant which has produced the

result.”

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7.5 Clinical Guidelines

As more and more national bodies, e.g. NICE, produce national guidelines then it

is arguable that the Bolam defence will become less acceptable – how can the

defendant argue that he was following accepted practice when it was contrary to

national standards. Teff in Law and Medicine (pp 67-80 at p 77) writes “Yet as they

do become more “authorative” the perceived epitome of “best practice” they could,

even without displacing Bolam, create pressure to reverse the onus of proof,

requiring the doctor to establish that failure to adhere to guidelines was not

negligent.”

In Martin Adshead v Dr Sarah Tottle (Unreported) (2008) Gray J held that a

newly qualified locum GP was negligent for failing to act in accordance with DOH

guidelines. The defendant had examined the claimant’s deceased wife’s breast

lump in 2000 and concluded that it was benign and consequently had chosen not

to refer the deceased to a breast cancer specialist. This was contrary to DOH

guidelines which stipulated that there should have been an immediate referral and

moreover a follow-up appointment made within a month of the referral. Such an

earlier referral would have allowed the deceased (aged 35 when she died in 2003)

to have survived for another 10 years.

Further reading

Stauch Text, Cases and Materials on Medical Law and /Ethics

(Routledge, Chapter 3 126-142, Chapter 6 pp 270-288;

Jackson Medical Law Text, Cases and Materials Oxford

University Press

Pattinson Medical law and Ethics (Sweet & Maxwell)

Chapter

Brazier & Cave Medicine, Patients and the Law (5th ed) (Penguin

Books), Chapter 8 pages 181-200

Khan, Robson & Swift Clinical Negligence, 2nd

ed (Cavendish Press) Chapter

5

Mason, McCall Smith & Laurie Law and Medical Ethics 2011 Butterworths chapter 5




68

Khan & Robson What is a responsible group of medical opinion”,

Professional Negligence (1995) Vol 11 No 4 page 121-

123

Harpwood Viv “Bolitho, Expert Evidence and the Role of Judges”

Health Law Nov 2001 Vol 6 Issue 10 Brazier & Miola Bye-Bye Bolam: A Medical Litigation Revolution

Medical Law Review Spring 2000 pp 85-114

Kirby “Patients’ rights – why the Australian courts have

rejected “Bolam”” Journal of Medical Ethics 1995 pp 5-

8

Mulheron Cambridge Law Journal 2010 p 609

Heywood “R.I.P Sidaway: Patient – Oriented Disclosure – A

Standard Worth Waiting For?” Med Law Review Vol 23

pp 455-466

GIlbar and Miola “One Size Fits All? On Patient Autonomy, Medical

Decision-Making, and the Impact of Culture” Medical

Law Review Vol 23 No 3 pp375-399

Geoff Clarke “The differing treatments of judgment by professionals

at work and when they are driving home” Journal of

Personal Injury Law 2011 p1-5




69




70

SUMMARY


* understand the Bolam test and how it is applied;

* identify the limitations the court places on Bolam (if any) and when the

defendant may be found negligent.




71


1. What are the essential ingredients of the Bolam test?

2. What is the major criticism levelled at the Bolam decision?

3. What is the ratio decidendi of the Bolitho decision?

4. What is the legal status of guidelines?

5. Does Bolam afford protection for the innovative or for the minority of opinion?




72

NOTES




73

CHAPTER 8

CAUSATION

8.1 INTRODUCTION

The claimant must prove on a balance of probabilities that the defendant’s lack of care

caused his injuries. It cannot be assumed that the claimant's injuries resulted from the

defendant's breach of duty.

In cases where there is only one cause of the injury, namely the defendant's breach, the

claimant should have no problem in pursuing his claim. However, where there is more

than one possible cause for the claimant’s injury, and only one results from thedefendant's breach of duty, then the issue is not quite so simple. For an illustration of the

complexities that causation attracts see Garcia v East Lancashire Hospitals NHS Trust

[2006] EWHC 2062. In cases of birth injuries it can be difficult to establish that the cause

was clinical negligence and not some other factor.

8.2 THE “BUT FOR” TEST

The claimant is saying that but for the defendant's negligence he would not have suffered

damage. It will be rare for this test to be sufficient in a clinical negligence case as more

often than not there will be more than one possible cause of the damage. For an

illustration of this principle see Barnett v Chelsea & Kensington Hospital Management

Committee [1969] 1 QB 428.

8.3 DID THE NEGLIGENT ACT MATERIALLY CONTRIBUTE TO THE

DAMAGE?

Where there is more than one possible cause of the damage but only one of which is the

defendant's negligence then it is sufficient if the claimant can show that the defendant's

conduct materially contributed to the damage. This test originates from Bonnington

Castings Ltd v Wardlaw [1956] 1 All ER 615. In Bonnington the court held that if the

claimant could prove, on a balance of probabilities that the defendant's breach materially

contributed to the damage then he should recover all of the loss. Lord Reid said “What is

a material contribution is a question of degree”. Generally it will be anything that does not

fall within the de minimus rule.

8.4 DID THE NEGLIGENT ACT MATERIALLY INCREASE THE RISK?

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75

At first instance the judge held that the defendant was liable only to the extent of the

damage it had caused and consequently reduced damages by some 25%. The evidence

indicated that had the claimant only been exposed to asbestos whilst working for the

defendant that his condition would not have been as severe. This decision was upheld on

appeal.

This decision therefore is in stark contrast to Bonnington which held that if the claimant

can demonstrate that the defendant’s breach of duty materially contributed to the injury

then the claimant could recover in full subject to the de minimus rule (see above at

paragraph 7.3). Only where the defendant’s contribution is known is the defendant liable

to that extent and no more.

Whilst the Court of Appeal were in agreement about the outcome of the appeal there was

a divergence of reasoning. Stuart Smith LJ relied on the fact that in Bonnington and

McGhee it was never argued that the defendant was only liable to the extent of the

material contribution. He stated that if the defendant fails to argue that their liability should

be only to the extent of their material contribution then the claimant should succeed in full.

Clarke LJ, however, said the defendant bears a burden to show that others have

contributed to the claimant’s disease and the defendant must plead the point if they wish

to rely upon it.

Prior to Holtby claimants have been entitled to the full award of damages unless

apportionment has been clear cut or where it was known that only part of the damage

was due to the defendant’s fault as in Thompson v Smiths Shiprepairers (North Shields)

Ltd [1984] ICR 236.

8.6 THE RE-EMERGENCE OF MCGHEE - Fairchild v Glenhaven Funeral

Services Ltd and Others; Matthews v Associated Portland Manufacturers

Ltd; Fox v Spousal (Midland) Ltd [2002] 8 Lloyd’s Rep Med 361

In Fairchild v Glenhaven Funeral Services Ltd and Others; Matthews v Associated

Portland Manufacturers Ltd; Fox v Spousal (Midland) Ltd ) the Court of Appeal had

reluctantly held that where there is more than one employer who has exposed an

employee to asbestos and consequently the claimant is unable to prove which employer

is responsible for the fibre that created the mutation in the mesothelial cell that develops

into the cancer, mesothelioma, then the claimant’s claim fails as no single defendant is

responsible for over 50% exposure. Mesothelioma unlike asbestosis or pneumonconiosis

can be caused by a single fibre of asbestosis and the condition is not made worse by

further exposure. The last two mentioned diseases in stark contrast are made worse by

the cumulative inhalation of increased quantities of dust. In Fairchild the claimant could

not establish on a balance of probabilities when it was that he inhaled the asbestos fibre

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76

or fibres which caused a mesthelial cell in his pleura to become malignant and

consequently which employer was responsible. What is apparent is that the extent and

severity of the injury is not increased by further exposure but the risk of contracting the

condition increases. In unanimously overturning the Court of Appeal decision the Law

Lords commented that to find for the defendants would “reflect no credit on the law” (LordBingham); and be “morally wrong.” In his summing up Lord Rodger commented;

“The men did nothing wrong, whereas all the defendants wrongly exposed

them to the risk of developing a fatal cancer, a risk that has eventuated in

these cases. At best it was only good luck if any particular defendant’s

negligence did not trigger mesothelioma.”

The claimants’ argument that, applying McGhee, an increase in the risk should equate to

a material contribution to the injury and should result in a 100% finding against a single

employer was accepted by the Law Lords in circumstances where it is impossible to

prove a material contribution to the injury. Further the House of Lords ruled that Lord

Bridge’s opinion in Wilsher that Lord Reid’s view in McGhee “lays down no new principle

of law” was incorrect.

A favourable outcome for the claimant but the new rule was not of a general ambit and

would only work within fairly defined circumstances – it would not help in a Wilsher type

situation where there are a number of factors that could have caused the damage and the

negligent act complained of is simply one of those factors. In the leading judgment Lord

Bingham identified the six conditions for a material increase in the risk to be a sufficient

causal requirement each of which were present in the three cases which were the subject

of the appeal.

1. The claimant was employed at different times by A and B.

2. A and B were both under a duty to take reasonable care to prevent C inhaling

asbestos dust because of the known risk that such dust, if inhaled, might cause

mesothelioma.

3. Both A and B were in breach of that duty to C during C’s employment by each of

them with the result that C inhaled excessive quantities of asbestos dust.

4. C is suffering from mesothelioma.

5. Any cause of C’s mesothelioma other than inhalation of asbestos dust at work can

effectively be discounted.

6. C cannot because of the current limits of science prove, on the balance of

probabilities, that his mesothelioma was the result of his inhaling dust during his

employment by A or B or both taken together.




77

On the basis of the above Lord Bingham considered that it was both just and in

accordance with common sense to treat the conduct of each of the defendants as making

a material contribution to the risk of an employee contracting the disease.

The House of Lords seem to have reverted to the position that existed following thedecision of the Lords in McGhee that proof that a defendant’s wrongdoing had materially

increased the risk is to be treated as proof that it had materially contributed to it. Yet are

these one and the same? In terms of the applicability of the McGhee principle to clinical

negligence claims Lord Hoffman acknowledged that such cases do give rise to difficulties

in causation. He concluded, however, that the duty to take reasonable care in treating

patients would not be virtually drained of content by the failure to accept a material

increase of injury as sufficient to satisfy the causal requirements for liability. However it

seems that a material increase in the risk will be sufficient to establish causation only for

those cases falling within the parameters laid down in Fairchild and it for the claimant to

establish that these conditions are satisfied.

For an interesting read on the scope of the Fairchild exception see Sienkiewicz v Grief

(UK) Ltd [2011] UKSC 10.

And then the decision in Barker and the rest……

Barker v Corus (UK)PLC:Murray (Widow & Executrix of the Estate of John Lawrence

Murray, Deceased) v British Shipbuilders (Hydrodynamics) Ltd & Ors: Patterson (Son &

Executor of the Estate of J Patterson, Deceased) v Smiths Dock Ltd & Ors [2006] UKHL

20

There were perhaps two issues still to be resolved after following Fairchild: (1) need all of

the claimant’s exposure to asbestos fibres be tortious and (2) in cases where the

exposure was from more than one source should damages be apportioned between the

negligent parties. These issues were considered in Barker v Corus UK plc and others

[2006] UKHL 20. In respect of the first issue their Lordships found that non-tortious

exposure did not remove a case from the Fairchild exception. It is their Lordships ruling

on the second issue that has been seen as somewhat controversial and some

commentators would say has effectively rewritten Fairchild. Mesothelioma may be

caused by single fibre of asbestosis; hence each exposure increases the risk of

contracting this condition but the condition itself is not made worse by further exposure.

Mesothelioma should therefore be contrasted to asbestosis and pneumoconiosis both of

which conditions are aggravated by the cumulative inhalation of increased quantities of

dust. Fairchild had ruled that where there was more than one negligent party then an

injured party may pursue an action against a single defendant and recover damages in

full. However by a majority of 4:1 the House of Lords have now introduced apportionment

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in respect of indivisible injury. Lord Hoffmann giving the leading judgment found that

because liability had been exceptionally imposed to assist the injured party fairness

dictated that if more than one party was responsible then damages should be

apportioned between them. He further interpreted that the decisions in McGhee and

Fairchild did not suggest that materially increasing the injury equated with a materialcontribution to the injury. At paragraph 43 he states;

“The defendant was a wrongdoer, it is true, and should not be allowed to

escape liability altogether, but he should not be liable for more than the

damage which he caused and, since this is a case in which science can

deal only in probabilities, the law should accept that position and attribute

liability according to probabilities.”

The strong dissenting judgment of Lord Rodger is worthy of a read. He cited Lord

Bingham in Fairchild as clearly stating that materially increasing the risk did equate to

materially contributing to the injury. At paragraph 84 he comments;

”…But the reasoning in McGhee [1973] 1WLR 1 and Fairchild [2003] 1 AC

32 indicates that the House was primarily concerned to maintain a

consistency of approach with the main body of law on personal injuries.

Under that law victims recover damages because the defendant’s wrongful

act has materially contributed to them becoming ill, not because it has

created a risk that they will become ill.”

He saw the practicalities of the decision which meant that where exposure had taken

place over a lengthy period of time then many of the potential defendants would be

insolvent or difficult to trace. Moreover given that claimants will now have the burden of

trying to trace all of the potential tortfeasors this will inevitably increase the costs of the

litigation and significantly the time taken to conduct these cases which is a luxury many of

these terminally ill claimants do not have.

The Government recognising the injustice of this decision rushed through the

Compensation Act 2006 within three months of the Barker decision. Under this Act,

negligent employers are jointly and severally liable, enabling the claimant to recover full

compensation from any relevant employer. That employer could then seek a contribution

to the damages awarded from other negligent employers or from the Treasury, if it thinks

fit, out of public funds. Notably the Act has retrospective effect.

APIL praised the speed with which the government had addressed the “devastating blow”

dealt by the ruling in Barker. Charles Lewis, however, took a different view labelling the

Act as a “knee jerk reaction” and commented that the speed in which the legislation was




79

introduced did not bode well for any future judicial decision which the Government

happened to disagree with.

In Brett v Reading University [2007] EWCA Civ 88 the Court of Appeal once again

revisited breach of the duty of care and mesothelioma. The personal representatives ofthe deceased claimant were able to prove that the deceased was likely to have come into

contact with asbestos during his period of employment with the defendant. Unfortunately

it could not be established that the defendant was in breach of duty and the fact that the

deceased had developed mesothelioma could not fill the evidential gap as he had been

employed in other jobs that could equally have brought him into contact with airborne

asbestos.

In Bailey v MOD [2008] LS Law Med 481 the courts revisited the meaning of the phrase

“material contribution”. The facts of Bailey are somewhat detailed but are necessary to

understand the relevance to the material contribution test. B was admitted to a hospital

run by MOD for bile duct surgery (the first procedure). The procedure was complicated by

bleeding and consequently B developed renal failure and acute pancreatitis and the onset

of respiratory failure. She was admitted to intensive care unit and then eventually

transferred to another hospital where she had additional procedures for bleeding to the

liver. She was then transferred from intensive care after making a slow recovery to a

renal ward where her condition again deteriorated culminating in her aspirating her vomit

and subsequent cardiac arrest that caused brain damage. B alleged that the lack of post-operative care and resuscitation after the first procedure ultimately led to her cardiac

arrest. On appeal it was held that if she had properly been resuscitated and cared for

after the original (first) procedure then B would have been subjected to further

intervention. Moreover the judge at first instance had been entitled to conclude that B’s

weakened and debilitated condition caused her not to be able to respond effectively when

she vomited.

The important point here however is what may be termed as a “gloss” on the material

contribution test. The Court of Appeal said in a cumulative cause case where the

evidence demonstrated that the injury would not have occurred as a result of a non

tortious cause (pancreatitis) in any event, but neither could the evidence prove that the

injury would not have happened but for the negligent cause (her weakened condition), the

but for test is slightly watered down and the claimant may establish causation if it can be

proven that the contribution of the negligent cause was more than negligible (i.e. a

material contribution). Putting it more simply the claimant succeeded on the basis that

she could establish that here the risk of injury (cardiac arrest) was enhanced by

negligence (the lack of care), which had a significant albeit unquantifiable effect on her

general condition although she could not definitively show that but for the negligence,

injury would have been avoided. Has this case weakened the balance of probabilities

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80

test? See further Gregg v Scott below and Boustead v North West SHA [2008] 8 LS Law

Med 471.

For a discussion of the application of Bailey see Conan Ingram v Williams [2010] EWHC

758. More recently in Nathan Popple v Birmingham Women’s NHS Foundation T rust[2011] EWHC 2320 the claimant relying on Bailey successfully argued that not delivering

the claimant five minutes earlier was a material contribution to the damage. Although

medical science was not able to identify when the damage precisely occurred due to the

failure of midwives to monitor the CTG trace the court accepted the claimant case on

causation. The defendant was unsuccessful on appeal, see [2012] EWCA Civ 1628.

8.7 MORE THAN ONE TORTFEASOR?

In Wright v Cambridge Medical Group (a Partnership) [2011] EWCA Civ 669 the

Court of Appeal was asked to consider whether the defendants could escape liability

by establishing the negligence of a second wrongdoer. The claimant (W), then aged

11 months, was admitted to hospital with chickenpox on April 9 1998. She

unfortunately developed a super-infection and was discharged without this being

diagnosed on 12th April. The claimant’s mother then contacted the defendant who

failed to see W; it was established that had she been seen she would have been

referred back to hospital on the 15th April. Eventually another GP referred W on an

urgent basis 17th April but due to the negligence of South Cleveland Hospital her

condition was not diagnosed until 21st April and consequently she was left with an

unstable hip and mobility problems. The Court of Appeal held that a defendant who

had negligently failed to refer his patient to hospital and, as a result, she had lost the

opportunity to receive the treatment she would have had, could not escape liability by

establishing that the hospital would have negligently failed to treat the patient

appropriately, even if he had made the referral promptly.

8.8 LOSS OF CHANCE

The claimant alleges that because of the defendant's negligence he lost the chance of a

successful recovery, for example by failing to make a prompt diagnosis of cancer the

claimant did not receive treatment as early as he could and consequently is denied his

chance of a complete recovery. In Hotson v East Berkshire H.A. [1987] 2 All ER

909; the claimant alleged that had the defendant made a prompt diagnosis he would

have had a 25% chance of a complete recovery. The Court of Appeal chose to award

him 25% of the damages in line with the 25% chance he had lost. The House of Lords,

however, held that this approach was incorrect, the claimant should either be awarded all





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81

of the damages or nothing at all. To succeed the claimant had to show that there was at

least a 51 /49 likelihood that without the defendant's negligence he would have made a

complete recovery. The claimant in Hotson could not show this, there was still a 75%

chance he would have suffered the damage notwithstanding the defendant’s negligence,

hence the claim failed.

It has been said Hotson may have signalled the end of a loss of chance claim in medical

negligence. Certainly such a claim may be brought in contract successfully but the same

cannot be said of the equivalent tortious claim. There have, however, been cases in the

non-medical field where the court have recognised such a claim in tort. In Allied Maples

Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 the Court of Appeal held that the

claimant must prove that he has lost a real or substantial chance as opposed to a

speculative one. The claimant (a retailing company) had wanted to acquire certain

businesses and properties belonging to its rival company, G. Four of the properties

however could not be conveyed directly to the claimant because of restrictive covenants

that were personal to K, a subsidiary of G, in which the properties were vested. The

defendant solicitors advised the claimant to acquire all the shares in K and then pass on

the unwanted properties and liabilities to another company thereby retaining the

properties they wanted. However, after completion of the sale the claimant found that K

had liabilities for which it was responsible and could not reclaim from G. The trial judge

found that the defendant had negligently failed to warn the claimant of this potentially

open-ended liability and if they had warned the claimant then it would have tried to

protect itself by obtaining some form of warranty from G. The judge also held that on the

balance of probability, if asked G would have given that warranty or some other form of

protection and that if K’s properties had not been included in the sale the deal would not

have proceeded. In the Court of Appeal the court ruled that where the claimant’s loss

depended on the acts of an independent third party the claimant need only show that he

had a substantial chance as opposed to a speculative one of avoiding the liability - a

substantial chance may be less than 50%.

Allied Maples was applied in Stovold v Barlows [1996] 1 PNLR 91 and First Interstate

Bank of California v Cohen Arnold & Co [1996] 1 PNLR 17 . In Stovold which concerned

the loss of the sale of the claimant’s property because of his solicitor’s negligence, the

Court of Appeal held that it must evaluate the claimant’s chance that but for the

defendant’s negligence the sale would have gone ahead. If the claimant proved that he

had lost a real chance as opposed to a speculative one then the court would go on to

evaluate that chance.

Also see Harrison & another v Bloom Camillin (1999) The Times Law Reports 12

November and Smith v National Health Litigation Authority [2001] 2 Lloyd’s Rep Med 90

and the Australian decision of Gavalas v Singh MLC 0388 (see Medical Litigation October

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82

2001) which comments that it would be unwise to lay down a general rule about whether

a loss of chance / loss of opportunity claim should be made available in medical

negligence cases.

What may be the final word on the subject has probably been uttered with the House ofLords decision in Gregg v Scott [2005] UKHL 2. In 1994 the claimant developed non-

Hodgkins Lymphoma. He saw his GP in the November of that year who negligently

diagnosed it as a benign lymphoma and failed to refer him to a specialist. In August 1995

a GP did refer the claimant on a non-urgent basis for investigation. The surgeon

suspected lymphoma and this was confirmed by a biopsy. The claimant was then treated

with high dose chemotherapy and radiotherapy. In 1998 the claimant suffered a relapse

and received further chemotherapy as a palliative measure since the prognosis was that

he could not be cured.

It was accepted that the failure to refer the claimant to a specialist in 1994 was negligent

and that it delayed treatment by some nine months. The Judge ruled that the delay in

treatment had reduced the claimant’s chance of surviving for five years from mid 2001

from 42% to 25%. However the Judge also accepted the defendant’s evidence that with

this disease the prospects of a cure had always been less than 50%. Therefore the claim

was dismissed because, applying Hotson, the claimant would not in any event have been

cured i.e. his chance of a cure was less than 50% and therefore he would still be in his

present position whether or not treatment had been begun earlier.

The claimant appealed on the grounds that the evidence indicated that if had been

treated in April 1995 he would have been cured and that the statistical chances of

survival were relevant to quantification of damages not causation. The claimant argued

that the court was able to reconsider the question as to whether or not loss of a chance in

the diminution of an adverse outcome as a result of medical advice or intervention should

itself be recognised as damage that could give rise to claim in negligence. By a 2-1

majority the Court of Appeal dismissed the claim. The Appeal Court found that the Judge

had not erred in his assessment of the evidence. The claimant would be allowed to

recover damages for diminution of life expectancy if he could show, on a balance of

probabilities, that the defendant’s negligence caused it. The reasoning in Hotson

indicated that loss of a less than even chance was not an actionable injury. The claim

failed since the claimant could not show on the balance of probabilities that the negligent

failure to refer had a material effect on the outcome of the disease because the prospects

of a cure were in any event less than 50%.

The House of Lords also favoured the defendant and by a majority of 3-2 dismissed the

appeal. Their Lordships all had differing opinions about the merits (or not) of a loss of a

chance claim. Ultimately the majority found that the claimant had not shown on a balance







83

of probabilities that the delay in commencing his treatment that was attributable to the

defendant’s negligence had affected the course of his illness or his prospects of survival.

Further that loss of a chance of a more favourable outcome should not be introduced into

a personal injury claim. Why was this decision reached – well it seems to the writer more

on grounds of policy than anything else and a judicial reluctance to “rock the boat”(something which did not hold them back in Chester v Asfhar considered below). At

paragraph 79 Lord Hoffmann (notably in the minority in Chester) comments:

“The law regards the world as, in principle, bound by the laws of causality.

Everything has a determinate cause, even if we do not know what it

is…..The fact that proof is rendered difficult or impossible because no

examination was made at the time, as in Hotson, or because medical

science cannot provide the answer, as in Wilsher, makes no difference.

….Everything is determined by causality. What we lack is knowledge, and

the law deals with the lack of knowledge by the concept of the burden of

proof.”

And at paragraph 85 Hoffman LJ states that to compensate all those claimants that

where a defendant may have caused injury and increased the likelihood of injury would

“involve abandoning a good deal of authority” (Wilsher and Hotson are cited) and in Lord

Hoffman’s opinion there are “no new arguments or change of circumstances which could

justify such a radical departure from precedent.”

Contrast this approach with that of Lord Nicholls who reasons that the difference between

good and poor prospects is a matter going to the amount of compensation payable and

not to liability. He cites Dore J in Herskovitis v Group Health Cooperative of Puget Sound

(1983) 664 P 2d 474,477:

“To decide otherwise would be a blanket release from liability for doctors and

hospitals any time there was less than a 50% per cent chance of survival,

regardless of how flagrant the negligence.”

He goes on to say that a change of approach would represent a development of the law

and the present law “generates continuing instinctive judicial unease.”(para 45)

Consider also the use of and perhaps one could say the over reliance by the judiciary on

statistical evidence, see Lord Nicholls at paragraph 28 an approach which has been

seemingly readily endorsed in subsequent cases, for example Carter v Basildon &

Thurrock NHS Trust [2007] 10 LS Law Med 657 (see below).

As so often is the case the Australian courts have chosen not to follow their English

brethren in Rufo v Hosking [2004] NSWCA 391 in ruling that it was sufficient for the

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plaintiff to prove on the balance of probabilities “that he or she had been deprived of a

valuable chance” (para 9) and per Hodgson JA at para 10 “That chance must be inherent

in the circumstances, not merely an artefact of the way evidence is presented in the

case….if it appears that the best medical science can do is to say that the treatment had

a quantifiable chance of success, then in my opinion that can be treated as a valuablechance for the loss of which a plaintiff can be compensated.”

But the outcome of this sorry tale for the English claimant is to ensure that your lawyer

deletes the words “loss of a chance” from any prospective clinical claims.

Read the House of Lords judgment in Gregg v Scott which can be found at

www.parliament.the-stationery-office.co.uk and contrast the approach taken in this case

with that of Chester v Afshar considered at 7.13 below.

In Johnston v NEI International Combustion Ltd: Rothwell v Chemical & Insulating Co Ltd

& Ors: Topping v Benchtown Ltd (Formerly Jones Bros Preston Ltd): Grieves v FT

Everard & Sons &Ors [2007] UKHL 39 the House of Lords faced a different question. The

claimant was suffering from pleural plaques in his lungs. The pleural plaques themselves

did not cause asbestos disease but signalled the presence in the lungs of asbestos fibres

that might independently cause life threatening or fatal diseases. The risk of asbestos

related diseases was entirely independent of the presence of pleural plaques. The issue

the court had to resolve was whether if the pleural plaques are not in themselves damage

could they become damage when aggregated with the risk which they evidence or the

anxiety which that risk causes. The court held that the risk of itself is not actionable. In

essence the House of Lords ruled that neither the risk of future injury nor anxiety at the

prospect of future injury is actionable endorsing the approach taken in Gregg v Scott and

Hicks v Chief Constable of South Yorks.

See also Carter v Basildon & Thurrock University Hospitals NHS Foundation Trust [2007]

10 LS Law Med 657; [2007] EWHC 1882 the court affirming the burden is always on the

claimant to show that had the treatment been administered earlier then the claimant was

more likely to survive than not, (Gregg applied) and Bailey v MOD considered above at

paragraph 7.6.

8.9 A DIFFERENT APPROACH? JD v Melanie Mather [2012] EWHC 3063

(QB)

In JD v Mather the defendant admitted breach of duty of care to the claimant by failing to

diagnose a malignant melanoma but made no admissions about causative damage. The

claimant alleged that had his testicular cancer been diagnosed earlier he would have in

all likelihood have survived. In the alternative, which was not initially pleaded but which

was allowed, he claimed that earlier treatment would have given him longer life

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expectancy. The first of these two claims was dismissed by Bean J, who acknowledged

that “There is a difficulty about applying such statistics to show an individual cancer

patient’s prognosis for the purposes of a trial of causation: see Gregg v Scott [2005] 2 AC

176 ”. However the claimant succeeded in his alternative claim, Bean J referring again to

Gregg v Scott and the judgment of Baroness Hale at paragraphs [206]-[207]:

“The defendant is liable for any extra pain, suffering, loss of amenity, financial loss and

loss of expectation of life which may have resulted from the delay. If, without the delay,

the claimant would have achieved a longer gap before more radical treatment became

necessary, then he should be entitled to damages to reflect the acceleration in his

suffering. If the pain and suffering he would have suffered anyway was made worse by

the anguish of knowing that his disease could have been detected earlier, then he should

be compensated for that. There is also the distinct possibility that the delay reduced his

life expectancy in the following sense. It is possible that had he been treated when heshould have been treated, his median life expectancy then would have been x years,

whereas given the delay in treatment his median life expectancy from then is x minus y.

This argument requires that the assessment of loss of life expectancy be based on

median survival rates: i e those to be expected of half the relevant population at

the particular time. If half the men with Mr Gregg's condition would have

survived for x years or over with prompt treatment, and half would have survived

for less than x years, then x is the median life expectancy of the group. If the

same calculation of life expectancy from when he should have been treated is

done in the light of the delay in treatment, the median life expectancy may have

fallen. There might theref ore be a modest claim in respect of the “lost years‟”.

The court found that had the claimant’s cancer been diagnosed earlier the median life

expectancy of a cohort of 100 patients with the same cancer diagnosed at the same time

would have been three years longer than the median life expectancy given the actual

date of diagnosis and progression of the tumour.

8.11 REMOTENESSThe rules for remoteness are no different in this area to any other area of tort. The

defendant will only be liable for that harm which was foreseeable. In the medical context

it will be rare for the court to find that the claimant’s injury was unforeseeable. See for

example Loraine v Wirral University Teaching Hospital NHS Foundation Trust [2008] 10

LS Law Med 573 where Mr Justice Plender found the defendant liable for exposing the

claimant to cerebral palsy “although the route by which the claimant came to suffer that

outcome was not the same as the route that was to be foreseen at the time of the

breach.” (paragraph 71).

Likewise the eggshell skull rule is equally applicable.

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8.12 BREAK IN THE CHAIN OF CAUSATION

8.12.1 By the claimant

In Emeh v Kensington A.H.A. [1985] QB 1012 the defendant argued that the

claimant’s failure to have an abortion was a novus actus (for a discussion of the

general principles and meaning of this term refer to the preliminary material on

Blackboard). This argument was rejected, the Court of Appeal holding that it would

only be in the most exceptional circumstances that such a decision could amount

to a novus actus. Obviously the question that then occurs is what would amount to

“exceptional circumstances”? One scenario where the defendant may try and rely

on a novus actus is where the claimant has been specifically warned to come back

to his GP if his symptoms deteriorate or reappear, and he fails to do so, though this

argument will probably only succeed in the minority of cases. In any event thecourt will then probably critically examine the instructions / advice given by the

defendant to the claimant. See however Sabri – Tabrizi v Lothian Health Board

(1998) SC 373.

In Corr v IBC Vehicles Ltd [2008] UKHL 13 a claim was brought by a widow on

behalf of her late husband. Thomas Corr had suffered an accident at work,

severing part of his ear and head. Despite extensive surgery he was left

permanently disfigured. Mr Corr’s employers admitted their negligence caused the

accident but before the claim was settled Thomas Corr committed suicide. Mrs

Corr then brought a claim for the financial losses attributable to his suicide. The

House of Lords were asked to determine whether Mr Corr’s suicide was a novus

actus or whether it could be construed as being a reasonably foreseeable

consequence of his depression. Their Lordships held that Mr Corr’s employer could

reasonably foresee that he might commit suicide some years later as a response to

a severely depressive illness although the court held that some reduction for

contributory negligence may be appropriate.

In the interesting decision in Maher v Pennine Acute Hospitals NHS Trust [2012]

JPI law 25 (Blackpool County Court 23/6/11) the court were faced with the dilemma

of who should take responsibility for the claimant’s religious beliefs. The defendant

trust admitted there had been unacceptable delay in returning the claimant to

theatre to investigate her blood loss following an emergency caesarean section.

The claimant unfortunately died but the trust argued that even if she had been

taken to theatre earlier she would have refused blood as she was a Jehovah’s

Witness and this refusal of blood broke the chain of causation. The court found that

as the claimant was simply following her religious beliefs and that the trust were

fully aware of her religious beliefs and had a protocol to deal with this situation it


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87

could not be said that the claimant was acting unreasonably and consequently her

actions could not amount to a break in the chain of causation.

8.11.2 By a third party

In Prendergast v Sam & Dee [1989] 1 Med LR 36 a doctor’s handwriting was so

bad it was misread by a pharmacist with the result that the claimant was given the

wrong tablets and consequently suffered brain damage. The doctor tried to rely on

the pharmacist’s conduct being a novus actus, however, this argument was

dismissed the court holding that it was foreseeable that if the prescription was not

clearly written mistakes could happen. The doctor was consequently held liable as

was the pharmacist for failing to make further enquiries.

See also Panther v Wharton (2001) MLC 0358; and Horton v Evans; Lloyds

Pharmacy Ltd [2006] EWHC 2808 considered at paragraph 5.7.4. During June the

claimant had gone to the USA and had been prescribed the tablets by an American

doctor, a Dr Ewell who, surprisingly, did not question the high dosage. The

causation point was whether Dr Evans should be held liable for Dr Ewell’s

prescription or was it an independent act thus breaking the chain of causation.

Keith J reasoned that the chain was not broken and it was fair, just and reasonable

and foreseeable that a doctor later down the line would rely on or be influenced by

the label on the pill bottle and hence prescribe the same strength. There is

however a strong possibility that the American doctor, Dr Ewell, acted negligently.

The case is an interesting read – why not try it!

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8.12 CONTRIBUTORY NEGLIGENCE?

As with other areas of tort the Law Reform (Contributory Negligence) Act 1945 will apply

to all claims whether brought by a NHS or private patient. Until fairly recently this

defence did not feature in clinical negligence cases brought in the English courts and the

only case entertaining this defence was the Canadian case of Crossman v Stewart (1977)

82 DLR (3d) 677. Here the claimant was left almost blind as a result of drugs which had

been prescribed for a skin disorder. Her damages were, however, reduced by two thirds

as it transpired that she had failed to consult her treating physician and had obtained

some of the drugs from an unknown source.

There have however been more recently two cases that have embraced the idea of a

patient being partly responsible for their eventual condition. In Pidgeon v Doncaster HA

(2002) Lloyd’s Rep Med 130 the claimant sought damages in respect of a cervical smear

which was wrongly reported as normal by the Defendant in 1988. In 1997 she wasdiagnosed with cervical cancer. The defendant argued that by failing to undergo a routine

cervical smear test, despite repeated requests to do so, the claimant’s actions had

broken the chain of causation or alternatively amounted to contributory negligence. The

evidence indicated that the claimant had been spoken to on seven occasions about the

need to have a smear between 1988 and 1997 and furthermore she had received two

letters from the cervical cancer screening programme in 1991 and 1994 requesting her to

have a smear test. Judge Bullimore found the claimant’s conduct not so unreasonable to

break the chain of causation however she was contributory negligent for repeatedly failing

to attend and her damages were reduced by two-thirds.

In P (Deceased) v Sedar [2011] EWHC 1266 P had attended her GP in 1999 with a mass

in her breast. She was subsequently referred to the breast clinic and told that no

abnormality had been detected. She visited her GP again in 2000 as the breast lump was

now bigger and she was again referred to a breast clinic. She was sent two

appointments, one in January and one in February both of which she failed to attend. The

hospital sent a letter to the GP stating that as she had not attended the two appointments

they would not be sending any more. The GP admitted negligence in failing to chase up

P. It transpired that P did not attend either of those appointments as they had been sent

to the wrong address. P moved and was seen by a new doctor in 2001 and immediately

referred to hospital where it was found that she had primary breast cancer and bone

metastases. P died in 2003. The issue was whether P should bear some fault for what

eventually happened as a result of not chasing up her missed appointments. The court

distinguished P’s case from Pidgeon as being a case where the P had simply failed to

chase up her missed appointment and not as extreme as the facts in Pidgeon and hence

there was no finding of contributory negligence.

An interesting decision on contributory negligence albeit not in the clinical negligence

domain is Badger v Ministry of Defence [2005] EWHC 2941; MLC 1318. The claimant,

Beryl Badger, was the widow of Reginald Badger who had been employed by the

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89

defendant. During his employment he was exposed to asbestos dust which was

causative of the lung cancer that killed him. He also began smoking at the age of 16,

about the same time he commenced working for the defendant. There was nothing to

suggest that his smoking had caused any ill health until Mr Badger was nearly 30. His

smoking was also causative of his cancer. Although the defendant admitted liability it was contended that the claimant’s claim

should be reduced on the grounds that Mr Badger continued to smoke when he knew or

should have known that by doing so he was having an adverse affect on his health. In

finding that the claimant’s damages would be reduced by 20% Stanley Burton J applying

the Law Reform (Contributory Negligence) Act 1945 s.1 (1) held that the appropriate

question the court had to ask was not whether Mr Badger’s conduct fell below the

standard reasonably expected of him but whether it fell below the standard reasonably

expected of a person in his position: did his conduct fall below that to be expected of a

person with ordinary prudence? In answering this question it was not necessary to show

that Mr Badger foresaw harm. It was inferred that Mr Badger must have repeatedly been

advised of the dangers of smoking by health professionals that his symptoms may have

been caused by his smoking. This together with the fact that from 1971 a health warning

appeared on cigarette packets warning of the dangers of smoking led the court to

conclude that he should have given up smoking as a reasonably prudent person in his

position would have done so in the mid 1970’s which would have substantially affected

his risk of contracting lung cancer.

As a society we are continually encouraged to take more responsibility for our health, to

lead healthier lifestyles and make responsible health choices. It will be interesting to see

whether the defence of contributory negligence will become more prevalent if a patient

has not attended an appointment or followed specific instructions, or made inappropriate

lifestyle choices such as smoking or over-eating. See http://www.bbc.co.uk/news/uk-

politics-20508405 “”Lifestyle Patients” may have to pay for their drugs in future says MP”.

8.13 OMISSIONS AND CAUSATION – THE EFFECT OF THE

BOLITHO CASE

8.13.1 Where the defendant's breach of duty consists of an omission the courts

have introduced the Bolam test into the area of causation. In Bolitho v City and

Hackney H.A. [1998] AC 232) a paediatric registrar had failed to attend a patient

when summoned by a sister. The defendant argued, however, that even if she had

attended she would not have given the treatment the patient required to avoid the

injury and further, that other experts would have acted likewise. The claimant

argued the opposite, namely that the defendant would have given the treatment

had she attended and this argument was endorsed by expert opinion. The Court of

Appeal held that where the defendant's breach was an omission then the question

to be resolved was what would have happened had the breach not occurred. The

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court was therefore bound to rely on expert advice and as the claimant had failed

to show that a failure to give treatment was contrary to Bolam then the claim failed.

The Court of Appeal therefore abandoned the tests previously employed in

Bonnington, McGhee and the like and held that the Bolam test was now equally

applicable at the standard of care and causation stages. There was, however, astrong dissenting judgment by Simon Brown LJ who adopted McGhee and held

that it was up to the court to infer what would have happened.

Bolitho finally reached the House of Lords in late 1997. Unfortunately for the

claimant the Lords held that causation had not been proven. In claims of

hypothetical causation the Lords identified two questions (1) what would have

happened in the absence of the breach of duty? (a simple application of the but for

test) and (2) whether the defendant’s actions would be endorsed by a responsible

body of medical opinion (the Bolam test) - that if no responsible doctor would

endorse the defendant’s actions the claimant would establish causation.

The dissenting judgment of Simon Brown LJ in the Court of Appeal was strongly

criticised by Lord Browne-Wilkinson. He stressed that it was not for the judge to

infer what would have happened as being the most effective thing for the claimant

but rather to assess the truth of the evidence.

The Lords’ also took the opportunity to comment on the Bolam test see Chapter 6.

Many writers have criticised the encroachment of the Bolam rule into causation and

have argued that the courts should resort back to the tests canvassed in McGhee

and the like.

What do you think? Is the appropriate question: (1) whether the doctor was not

negligent in not intubating, or should it be: (2) would on a balance of probabilities a

doctor normally intubate in such circumstances? Does the Bolitho majority

decision confuse what should have been done (is the defendant’s account plainly

illogical) with what would have probably been done (is this the normal way in which

doctors respond)? In the Court of Appeal Simon Brown LJ said:

“No doctor in this case ever took a decision whether or not to intubate

the plain fact here is that no doctor ever arrived at Patrick’s bedside. It

is that want of attention that constitutes the undoubted negligence in

this case.”

Now does a claimant have to prove two negligent acts? What for the balance of

probabilities. Can the evidence of the defendant be relied on? In Bolitho is there

not in the very least an argument to say that the evidence of Dr Horn was self




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serving – did Simon Brown LJ recognise that fact and find that although the

evidence of the defendant was honestly given it could not be relied on? Charles

Foster comments that Simon Brown’s LJ approach was dominated by a practical

consideration that a profession whose negligent failure to attend leads to

catastrophic results will be under great pressure to give evidence that he would notin any event have taken the action necessary to avert the catastrophe (see

Solicitors Journal 1997 p 1151). Do you agree with this statement?

See also Wisniewski v Central Manchester HA [1998] Lloyds Law Rep Med 223

for an example of a post-Bolitho case and more recently Kingsberry v Greater

Manchester Strategic Health Authority MLC 1290, (see chapter 5) and Bright v

Barnsley District Hospital [2005] 10 Med LR 449 (Lawtel login)

In Gouldsmith v Mid Staffordshire General Hospital NHS Trust [2007] EWCA Civ

397 the Court of Appeal revisited the correct interpretation of Bolitho as applied to

causation. The claimant had a lesion on her hand, which she had been advised,

was responsible for the deterioration in the condition of her dominant left hand. She

had received treatment at the defendant hospital but her left finger ultimately was

amputated. She was re-admitted to hospital and there was a further deterioration in

her condition resulting in the amputation of her remaining digits. The claimant

contended that her lesion should have been dealt with by surgery on referral to a

specialist tertiary hospital, rather than by drugs and this would have avoided the

amputations. The Trust denied that this was the appropriate measure and surgery

at that time would have served no purpose.

At first instance the trial judge found that the trust had been in breach of duty by

not referring the claimant to a specialist hospital but on causation on the balance of

probabilities every specialist exercising the appropriate standard of care would not

have operated so it followed that the breach of duty had not caused the claimant’s

injuries.

On appeal the claimant argued that the trial judge had applied the wrong test and

should not have asked whether in accordance with Bolam the specialist hospital

would have been bound to operate but should have asked what on the balance of

probabilities would have happened if she had been referred to a specialist hospital

for treatment.

The Court of Appeal agreed that the judge had applied the wrong test and went on

to clarify the correct application of Bolitho to matters of causation. The trust was in

breach of its duty of care in not referring the claimant to the specialist hospital (the

omission). The judge should then have first considered what would have happened

had the claimant been referred to a specialist hospital and then whether on the







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balance of probabilities the specialist would have conducted surgery or not.

Secondly if there had not been an affirmative answer to the first question, the court,

applying Bolitho, should have considered whether the specialist would have been

negligent in not conducting the surgery. Bolam only became relevant in deciding

the second question but the trial judge had allowed the first question to besubsumed within the second. In this instance the answer to the first question was

in the affirmative, i.e. had the claimant been properly referred as she should have

been then, on the balance of probabilities, the surgery would have taken place.

Hence the breach of duty caused the claimant’s injuries.

See also Nasir Hussain v Bradford Teaching Hospital NHS Foundation Trust

[2011] EWHC 2914

8.14 CAUSATION AND NON-DISCLOSURE

Where the claimant alleges that he was not warned about an inherent risk in a procedure

and he successfully proves that the risk should have been disclosed then his battle is

only half complete. He must then go on and establish that had the risk been disclosed

then he would not have accepted the treatment. It is for this reason that wherever

possible where the case is for non-disclosure of risks then the solicitor would be well

advised to frame it as a case in trespass to avoid the problems of causation. The

majority of cases will undoubtedly fall at this hurdle as the courts will infer that even if all

the risks had been disclosed then the claimant would still have had the treatment. The

courts apply a subjective test – would this claimant have acted so, in contrast with other

jurisdictions where an objective test is applied, i.e. the reasonable man.

See Reibl v Hughes (1980) 114 DLR (3d) 1; Smith v Barking, Havering & Brentwood H.A.

[1994] 5 Med LR 285. In Smith Hutchinson J urged caution in considering the claimant’s

evidence in what was a wholly artificial situation. The court should look at the evidence

objectively and only if there were some other extraneous or additional factors e.g.

religious or some other firmly held convictions or social convictions and these assertions

were made immediately following the operation should the court be persuaded by this

evidence. Contrast this approach with Reibl v Hughes where the Canadian court asked

what would a reasonable person in the claimant’s position have done. Here as the risk

was great (10%) and the claimant was only about a year and a half away from retirement

on a full pension then the court held that the claimant would probably have declined the

operation.

The difficulties of proving that medical procedures would not have been consented to if

an adequate warning of the risks had been given is illustrated by the case of Chapman v

Mid-Essex Hospital Services [2002] MLC 0774. The claimant had a successful

hysterectomy operation, however she suffered a deep vein thrombosis in her left thigh

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having previously suffered the same condition some years previously following a

miscarriage. She claimed damages from the hospital alleging that the medical staff had

given her an assurance that she would not suffer a DVT as a result of the hysterectomy.

Alternatively she contended that the hospital staff had failed to warn her of the extent to

which she was at risk of such a complication. She alleged that if she had been given sucha warning, she would not have undergone the operation at all.

The claim failed on the basis that she had been given an assurance that she would not

suffer DVT; the doctors had reassured her by indicating that the risk was reducible to a

low level by prophylactics. The court also concluded that her willingness to undergo the

operation was the fact that her ever increasing menstrual problems had become

intolerable to her, and she ultimately decided to undergo the operation, even though, as

she was aware, there was a low risk of a further DVT.

In Chester v Afshar [2004] UKHL 41 the claimant alleged that the defendant had

negligently failed to inform her of the risks of having three intra-vertebral discs removed.

The claimant had asked a series of lengthy questions but at no time did the defendant

inform her of the risk of 0.9-2% nerve root damage. The Court of Appeal found that a

proper warning had not been given to the claimant. The Appeal Court was clearly

influenced by the amount of detailed recollection that the claimant was able to produce in

stark contrast to the defendant who had made no note about what he had told the

claimant. Given her aversion to surgery and the concerns she expressed about being

crippled, the judge found that the very least she would have done would have been to

seek a second or third opinion. This would inevitably have meant that the proposed

operation would not have gone ahead on the day the operation took place. Although it

was impossible to determine when she would have been seen, what advice would have

been given and how she would have reacted to it, it was improbable that any surgery she

might undergo would be identical to the operation she underwent. Hence this was

sufficient to prove a causal link between the failure to warn and the damage.

Surprisingly the House of Lords also decided in favour of the claimant by a 3-2 majority.

Their Lordships accepted that, according to accepted principles of causation, the claimant

had to fail. However the majority felt that there was a clear wrong here: the duty of care

owed by the defendant to the claimant was such a special duty that it demanded that the

claimant should have a remedy even if the strict rules on causation would indicate

otherwise. Lord Hope’s view was,

“To leave the patient who would find the decision [about whether or not to

have the surgery] difficult without a remedy, as the normal approach to

causation would indicate, would render the duty useless in the cases where

it is needed most…”….”The injury was intimately involved with the duty to

warn. The duty was owed by the doctor who performed the surgery that [the

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94

claimant] consented to. It was the product of the very risk that should have

been warned about when she gave consent.” (paragraph 87).

In contrast Lord Hoffmann likened the claimant’s argument to winning in a casino. For

Lord Hoffmann the question is “whether one would have taken the opportunity to avoid orreduce the risk, not whether one would have changed the scenario in some irrelevant

detail.” (paragraph 31).

What are the consequences of this decision? The majority in Chester has decided that

the duty of care to warn is such an important duty that a “narrow and modest departure

from traditional causation principles” (per Lord Steyn, para 24) is justified. Why? Why is

this duty any more important than the duty to diagnose, duty to treat etc? Their Lordships

seemed to have adopted the position that justice demanded that this claimant be afforded

a remedy, see for example para 25 per Lord Steyn “This result is in accord with one of

the most basic aspirations of the law, namely to right wrongs”, and per Lord Hope at para

88 “I would hold that justice requires Miss Chester be afforded the remedy which she

seeks…”. The decision certainly set alarm bells ringing for practitioners. The NHSLA

issued a risk alert on informed consent, warning that clinicians’ liabilities would be

extended in cases where less than full consent was obtained, see further

www.nhsla.com. Also compare this case with Gregg v Scott above – which of the

claimants do you think was the more deserving of a novel and radical approach?

See also the Australian case of Chappel v Hart (1999) Lloyd’s Law Rep 223 where it was

sufficient for the claimant to prove that had she known of the risks she would not have

undergone that operation that day if properly advised. In that case although the patient

would still have had the operation some time in the future the situation would have been

different and the risk not necessarily identical, thus it could not be said that she would

have suffered the same injury.

Case law since Chester?

White v Paul Davidson & Taylor [2005] PNLR 15 (solicitors)

Beary v Pall Mall Investments [2005] EWCA Civ 415 (financial advisors)

Moy Pettman Smith [2005] UKHL 7 (barristers)

Smith v Lothian University Hospitals NHS Trust [2007] CSOH O8; MLC 1164

All these cases have seen the court stress that Chester did not establish a general

causation rule. In White per Arden LJ at para 40:

“I would like to add a few observations on Mr White’s supplementary written

submissions in which he places reliance on the recent decision of the House

http://www.nhsla.com/#_blank





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95

of Lords in Chester v Afshar [2004] WLR 927. In my judgment, this case

does not establish a general rule in causation. It is an application of the

principle established in Fairchild v Glenhaven Funeral Services [2003] 1 AC

32 that, in exceptional circumstances, rules as to causation may be modified

on policy grounds.” See also Birch v University College London Hospital NHS Foundation Trust

[2008] EWHC 2237 at para 6.3.4.

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96

Further Reading

Brazier & Cave, Medicine, Patients and the Law 5th ed) (Penguin Books), Chapter 7, pp 200-206

Khan, Robson & Swift, Clinical Negligence (2nd

ed) Cavendish Press Chapter 6

Mason, McCall Smith & Laurie, Law and Medical Ethics 2002 Butterworths chapter 9 pages

297-302

Healey, Medical Negligence: Common Law Perspectives (Sweet & Maxwell) Chapter 7 pages

191-231

Harpwood, “Bolitho, Expert Evidence and the Role of Judges” Health Law November 2001 Vol 6

Issue 10

Charles Lewis, “Fairchild and the Rehabilitation of McGhee” Medical Litigation August 2002

page 14

Michael Jones, “Another lost opportunity” Professional Negligence PN (2003) Vol 19 No 4

pages 542-559

William Edis, “Gregg v Scott” Solicitors Journal 11/2/05 page 166

Charles Foster, “Last chance for lost chances” New Law Journal 18/2/05

Mark Shaw, “Sick Pay” Solicitors Journal 29/10/04 page 1228

Charles Foster, “It should be, therefore it is” New Law Journal 5/11/04 page 1644

Charles Lewis, See www.medneg.com The Compensation Act 2006

Gemma Turton, A care for clarity in causation? Medical Law Review 2009(17)1:140-147

Jose Miola, On the Materiality of Risk: Paper Tigers and Panaceas Medical Law Review 2009

(17) 76SH Bailey: “Causation in Negligence: what is a material contribution?” Legal Studies Vol 30,

Issue 2 pp167-185










98

SUMMARY


* identify and apply the various tests for causation;

* distinguish between the test in Bonnington and that in McGhee;

* understand the application of Bolam to causation and omissions;

* identify any possible problems with establishing causation and any defences

the defendant may have.






100

NOTES




101

CHAPTER 9

DAMAGES

9.1 INTRODUCTION

These notes assume that you are already familiar with the general principles of damages

for personal injuries and rather serves to highlight the recent developments in this area

and to act as a reminder of the more important issues. As such there are no special rules

for compensation in the area of clinical negligence; the claimant is entitled, amongst other

things, to be compensated for pain and suffering, the cost of nursing care, and past and

future loss of earnings.

9.2 GENERAL DAMAGES

9.2.1 Pain and suffering

Inevitably there will be a certain amount of pain and suffering associated with the

injury; damages awarded under this head include compensation for any

embarrassment caused by the injury e.g. a disfiguring scar, and any shock suffered

by the claimant. The damages will also take into account the characteristics

peculiar to the claimant, an unconscious claimant, for example, suffers no pain.

See for example Hicks and others v Chief Constable of the South Yorkshire Police

[1992] 2 All ER 65.

9.2.2 Loss of Amenity

Damages under this head are to compensate the claimant for what he can no

longer do as a result of the injury. This can range from compensation for not being

able to participate in a hobby or play a sport to loss of sex drive and not being able

to enjoy any facet of life. Note that the claimant need not be aware of the loss of

amenity e.g. an unconscious claimant, what matters is that the amenity is lost.

In Heil v Rankin [2000] 5 Lloyds Law Rep 203 the Court of Appeal heard eight

appeals which were selected as test cases to allow the court to issue guidelines

following the Law Commission Report 257 which recommended an increase in the

level of damages for non-pecuniary loss for personal injuries. However, the court

stated that not all awards were deserving of an increase and there should be no

increase for those awards of less than £10,000 notwithstanding that the Law

Commission had recommended an increase for awards over £3,000 by a factor of

1.5-2. The most serious injuries were those where damages were in the region of





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£150,000-£200,000, attracted the highest increase of about a third. As a general

rule the awards would increase in line with the Retail Price Index although the court

would also taken into account other changes in society. The courts therefore would

periodically review the awards if they appeared out of line with the standards set. In

doing so, the court could take account of other economic factors such as higherinsurance premiums for the defendant and less resources available for the NHS;

the court reasoning that the needs of the defendant and society must be

considered as a whole.

9.2.3 Loss of Future Earnings

Normally any pecuniary losses fall within special damages but compensation under

this head is an exception to the general rule. This is because such damages are

speculative, i.e. what would the claimant have earned had he not been injured?

These sums can be very difficult to calculate see for example Appleton v El Safty

[2007] EWHC 631. The court will take into account the claimant’s future car eer

prospects, e.g. was he due a promotion, would his salary have

increased/decreased, was he likely to have been made redundant, the age of the

claimant - was he likely to retire soon, etc. See for example Collett v Smith and

Middlesborough Football Club [2008].

Damages for future loss of earnings are assessed at the date of the trial. To

calculate such damages the court first takes the claimant’s net annual salary (themultiplicand) and then multiplies this by the multiplier. The multiplier is not

necessarily the number of years the claimant still had to work as this could lead to

over compensation, the figure will be arrived at by the court taking into

consideration the factors discussed above. The court’s aim is that the

compensation awarded to the claimant will be exhausted at the time when the

claimant no longer has a need for it. For an illustration of how the court select an

appropriate multiplier see the case of Worrell v Powergen plc [1999] 5 Lloyds

Rep Med 177.

In deciding what is an appropriate award the court also assumes that the claimant

will act prudently and invest the money and discount the award to cater for this and

the fact that the claimant is receiving the compensation as a lump sum. Following

the decision in Wells v Wells, Thomas v Brighton HA and Page v Sheerness Steel

Co Ltd [1998] 3 All ER 481, the House of Lords held that the discount rate should

be based on investment in Index Linked Government Securities which would

currently yield a return on income and capital of 3%. Previously awards had been

discounted by up to 4.5% as the court assumed that the claimant could invest the

money in the best long-term investment i.e. the stock market. However in these

cases the House of Lords at long last recognised that the claimants were not in the

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same position as the ordinary investor who could simply wait for the stock market

to recover if it fell – they had to secure their long term needs and therefore choose

a safe investment.

Section 1 of the Damages Act 1996 empowers the Lord Chancellor to prescribe

the rates of return on damages and in so doing affect the multiplier to be used inpersonal injury cases. From 25 June 2001 the discount rate was lowered to 2.5%,

see further www.lcd.gov.uk/civil/discount.htm. Note that the courts may by

virtue of section 1(2) adopt a different rate in any particular case if there are

exceptional circumstances that may justify it doing so.

See also Cooke v United Bristol Health Care [2003] EWCA Civ 1370 where the

Court of Appeal reaffirmed that the conventional method of assessing damages,

(see Wells v Wells) should be used. However in Peter Crouch v King’s Healthcare

NHS Trust [2004] EWCA Civ 1332 the Court of Appeal endorsed the approach of

the trial judge who had not used the standard multiplier/multiplicand approach in an

assessment of damages for loss of earning capacity. There was evidence that the

claimant had reassessed his life and priorities prior to the accident and was not as

committed to his profession (dentistry) and hence the judge was entitled not to

assess damages on the basis of past earnings in his practice.

9.2.4 Handicap in the labour market

This is known as the Smith v Manchester award following the decision in the caseof the same name, see (1974) Knights Industrial Reports 1 and is designed to

compensate the claimant who, although can return to his job, because of his

injuries is at more of a risk of either loosing his job or being made redundant.

9.3 SPECIAL DAMAGES

Many of the items discussed below can equally fall into the general damages category

depending whether or not they have accrued to date, e.g. the claimant may have already

incurred medical expenses which will fall within special damages as they are capable of

precise calculation but may also need future nursing care which will come within the

general damages sphere.

9.3.1 Accommodation

This may either be the cost of new housing or the cost of the claimant’s present

accommodation being adapted /altered to cater for his disabilities. See Robert v

Johnstone [1988] 3 WLR 1247 for how the court calculate this head of damage.

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9.3.2 Nursing Care

This may be provided by an institution or an individual carer where the claimant is

being cared for at home by a relative. If it is an individual and he is a relative of the

claimant he will be allowed to claim for any earnings lost as a result of caring for

the claimant, see for example Donnelly v Joyce [1974] QB 454 and Hardwick v

Hudson & Another [1999] 3 All ER 426. In the latter cases the Court of Appeal held

that damages could not be awarded to compensate the victim’s wife for giving her

unpaid services to her husband’s business. A distinction was made between

voluntary services provided in a commercial as distinct from a domestic

environment.

9.3.3 Medical Expenses

These may be any expenses caused by the claimant’s injuries. Note, further, that

the claimant may claim for the cost of private medical treatment notwithstanding

that the same is available on the NHS pursuant to s.2 (4) Law Reform (Personal

Injuries) Act 1948. In Parkhouse v North Devon Healthcare NHS Trust [2002] 3

Lloyd’s Rep Med 100 the defendant argued, on appeal, that the award associated

with wheelchair funding should be disregarded as the equipment was supplied by

the state and/or charitable institutions. Mr Justice Gage found on the evidence that

the state would probably continue to provide the equipment free of charge but only

on occasions and therefore only discounted the award to reflect this. In the more

recent case of A v B Hospitals NHS Trust [2006] EWHC 1178 the court awardeddamages for the cost of having two carers. The claimant suffered from dystonic

athetoid quadriplegic cerebral palsy and dyskinetic tetraplegic cerebral palsy. The

Trust admitted liability for clinical negligence and all parties agreed that the

claimant was incapable of carrying out any activities of daily living without

assistance and that he required 24 hour care. He was entirely dependent on other

people for all his routine needs. As it was very difficult to transfer the claimant into

positions in which his care could be properly administered it was apparent that it

was unsafe for both the claimant and the carer for that transfer to be attempted by

a carer working alone. The combination of the claimant’s size and weight together

with his capacity for involuntary movements made it essential for two carers to be

present. When one of the claimant’s parents were on hand to provide the care it

would not be reasonable to have two commercial carers present, but it was not

sensible just to award damages for only one professional carer as the claimant’s

parents could not always be relied on as available to assist. As his parents also

preferred his care to be provided by professional carers hence it the court inferred

it was reasonable to take this approach in awarding damages.

For a more recent example see Smith v East & North Herts Hospitals NHS Trust

[2008].






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9.3.4 Loss of Earnings

The claimant’s employer will be contacted to calculate what earnings the claimant

has lost as a result of being absent from his employment. The claimant will be

allowed to recover his loss of earnings net of tax. If the claimant is self-employed

an accountant will need to be instructed. The claimant’s solicitor is required to

prepare a schedule of special damages that must be served with the proceedings.

Note that the claimant must give credit for any benefits received.

9.3.5 Other Expenses

These can be anything as a result of the accident, e.g. the costs of a specially

adapted car, special clothing or food etc.

9.3.6 Interest

The claimant is entitled to interest at 2% on general damages for pain, suffering

and loss of amenity. Interest on special damages will usually run from the date of

the cause of action to trial or earlier settlement at half the court’s special account

rate (currently 7%). There can be no interest claim for future losses.

9.4 BENEFITS

The claimant is not permitted to recover twice. The recoupment provisions under the

Social Security (Recovery of Benefits) Act 1997 will apply if the claimant has been

receiving benefits as a result of the accident and the defendant (compensator) makes a

payment in respect of damages for personal injury to the claimant. The benefit that is

r ecoverable is that which has been paid “in consequence of any accident, injury or

disease” and the relevant period over which benefit is paid begins the day after the injury

or accident, or in the case of disease the first day benefit is claimed. The period ends five

years later or whenever the last compensation payment is made whichever is the sooner.

Note that the clawback provisions do not apply to compensation awarded for pain and

suffering and future loss of earnings.

9.5 LOSS OF A CHANCE

This has already been noted in Causation, see for example Hotson v East Berkshire HA

[1987] 2 All ER 909, Gregg v Scott [2005] UKHL 2, and Stovold v Barlows [1996] 1 PNLR

91. Note that the claimant will either recover all of the damages or nothing at all; the

courts do not favour the proportionality approach as endorsed by cases such as Bagley v

North Herts HA (1986) 136 NLJ 1014 and Clark v McClennan [1983] 1 All ER 416.

Where the claim is that but for the defendant’s negligence the claimant would haveenjoyed a better quality of life for a longer time the courts will compensate that loss, see

Sutton v Population Services Family Planning Programme Ltd (1981) The Times 7






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November . In Sutton if the claimant had been diagnosed earlier it would have delayed the

onset of cancer by up to 4 years therefore the claimant was compensated for those four

years when she would have led a normal life.

9.6 WRONGFUL LIFE / BIRTH / CONCEPTION

A wrongful life claim is brought by the parents of a disabled child who has been born as a

result of the defendant’s negligence, e.g. a failed abortion attempt. The claimant’s claim

is that had the defendant not been negligent then he would not have been born, i.e. that

non-existence is preferable to the existence he now has. In McKay v Essex AHA [1982]

QB 1166 the court held that damages could not be awarded against a doctor for failing to

advise a mother to have an abortion. The court gave a variety of reasons for disallowing

the claim but one of the more significant was that to award damages here would mean

that the court would have to compare non-existence with existence and that would mean

assessing the value of the life of a handicapped child as less worthy than that of a normal

child. This approach has recently been followed by the Australian courts, see Harriton v

Stephen MLC 1104 where a wrongful life claim was disallowed as the claim did not

reflect values generally or widely held in the community.

Wrongful birth is the equivalent of a wrongful life claim save that the claim is brought by

the parents following the birth of a handicapped child, claiming for pain, suffering,

physical injury and financial loss. In McKay this part of the claim was successful.

Damages for wrongful conception are claimed for the upkeep of a healthy child which has

been born as a result of a failed vasectomy/sterilisation operation. The mother may also

claim the compensation for the pain and suffering associated with pregnancy and

childbirth. Up until 1993 compensation was also awarded notwithstanding the child is a

healthy child, (a wrongful conception claim), see Allen v Bloomsbury HA [1993] 1 All ER

651. However the House of Lords took the opposite view in the Scottish case of

McFarlane v Tayside Health Board [1999] 4 All ER 961. The Health Board successfully

appealed against the Court of Session’s decision to award damages for the birth of a

healthy child following a negligently performed vasectomy. The House of Lords accepted

that the loss (that is the cost of bringing up the child) was foreseeable but saw the

question as a wider issue – what was the extent of the duty of care owed to the husband

and wife and what was the liability of the defendant in what was viewed as a claim for

economic loss. Lord Slynn asked was it “fair, just and reasonable for the law to impose a

duty” and that the doctor’s duty was only to avoid a pregnancy and that did not extend to

the costs of rearing a child if born and accepted into the family. Lord Steyn however saw

the decision as being one of corrective justice versus distributive justice and sometimes a

decision had to be made between the two approaches. In this instance the principle of

distributive justice dictated that the law of tort did not permit parents of a healthy























107

unwanted child to claim the costs of bringing up the child from the health authority or

doctor. The claim did not satisfy the requirements of being fair, just and reasonable. Note

however that the parents were allowed to recover the costs of the solatium and costs

attendant on the pregnancy.

In the recent case of Denise Less and Michael Carter v Sarah Hussain [2012] EWHC3513 the court once again considered what was the scope of the duty of care owed to the

claimants in matters of conception. The claimants’ alleged that the defendant had not

given proper advice about the risks of pregnancy, namely the presence of a known

thromboembolic condition, and had such risks been explained Ms Less would not have

fallen pregnant. The claimant’s child was stillborn. The judge accepted the argument on

breach of duty however the claimants’ case failed on causation as the court found that

even if proper advice had been given the claimants would have proceeded with

conception. Commenting obiter on the scope of the duty owed the judge concluded that

to satisfy the duty of care the doctor must give the patient sufficient information to enable

the patient to make a balanced decision. Applying Walkin the judge ruled that the starting

point for the injury was conception and given that the advice was about conception, the

judge considered that the loss of the baby during term was a kind of loss in respect of

which a duty was owed, it made no difference that the precise manner of the loss was not

foreseen. Moreover it would have been fair, just and reasonable to compensate Ms Less

for her injuries applying the same principles that a mother of a disabled child can and as

such she would have been entitled to damages for pain, suffering and loss of amenity

and some special damages. She would not be entitled however to the Rees award (see

below) as there was no loss of autonomy.

The first wrongful birth case to come before the courts after the McFarlane decision was

Rand v East Dorset HA [2000] 4 Lloyd’s Rep Med 181. The parents claimed damages for

the defendant’s negligent omission to advise Mrs Rand that she may give birth to a

disabled child and consequently her loss of opportunity to terminate the pregnancy. The

child was subsequently born with Down’s Syndrome. The Court of Appeal held that the

parents were entitled to recover for those losses relating to their child’s disability and not

for the full cost of bringing up the child. This ruling was followed in the Scottish case of

McLelland & Another v Greater Glasgow Health Board March 7, 2001, MLC 0364.

Both Rand and McClelland are distinguishable from McFarlane not just on the basis that

the resulting child was born disabled as opposed to healthy but also on the nature of the

respective claims. Rand and McClelland were both cases concerning a failure to

diagnose rather than a failed sterilisation / vasectomy claim. However in Parkinson v St

James and Seacroft University Hospital NHS Trust [2001] 6 Lloyd’s Rep Med 309 the

Court of Appeal considered what costs are recoverable for the birth of an unplanned

disabled child. Brooke LJ held that the parents’ award should be limited to those extra

expenses associated with the child’s disabilities. Parkinson was then applied in Roberts v

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108

Bro Taf Health Authority [2002] 4 Lloyd’s Rep Med 182 where the High Court ruled that

damages are not to be limited by the economic circumstances of the family as, the court

reasoned, this would be inconsistent with Parkinson and, in any event, the agreed

general damages would alter the claimant’s status.

In Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 the Court of Appeal

had previously awarded damages to a blind woman for the costs of bringing up a healthy

child following a failed sterilisation. Katrina Rees who was born with a genetic disorder

was blind in her left eye and had only one sixth of normal vision in her right. She had

wanted to be sterilised because of her visual handicap which made her doubt her ability

to look after a baby. The Trust admitted that the operation was negligently performed but

disputed quantum. At first instance the court albeit reluctantly refused her claim for the

costs of bringing up her son to his 18th birthday. The Court of Appeal ruled that Miss Rees

was entitled to cover the extra costs of bringing up her son attributable to her disability.

Lady Justice Hale commented that this case raised “novel and important” issues and told

the court that “we can only imagine the difficulties facing them both.” A factor influencing

this decision was that Ms Rees disability was known to the surgeon – it was pre-existing

and the surgeon knew that was the reason why she was being sterilised.

The decision was appealed to the House of Lords who decided:

A disabled mother who gave birth to a healthy child after a negligently performed

sterilisation operation was not entitled to recover the extra costs of child care

occasioned by her disability. Instead a conventional award of £15,000 would be

made to mark her injury and loss of the benefit she was entitled to expect.

Unusually there were 7 Law Lords sitting and it was a 4-3 majority. Their Lordships

declined to reconsider their views on the McFarlane decision. There is however little

consistency in their reasoning. Three of their Lordships (LJ Hope, LJ Millet and LJ Steyn)

had been three of the judges in the McFarlane case. In McFarlane Lord Justice Millet had

alone proposed that all the mother should be awarded was £5,000 for the loss of the right

to control the size of her family (“the Millet award”). In Rees however four of the judges

(Bingham, Nicholls, Millet and Scott LJ) allowed pregnancy damages plus the “Millet

award” which they increased to £15,000. Lord Steyn and Lord Hope dissented arguing

that this ran counter to the view of the majority in McFarlane.

Clearly the McFarlane decision was reached on two grounds. First that a child is a god-

given gift and his birth should not be the subject of a claim (Lord Justice Millet per

McFarlane “morally offensive to regard a normal healthy baby as more trouble and

expense than it is worth.”). Secondly that the benefit the cla imant receives from having a




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109

child must be set against the economic loss claimed and as that benefit is incalculable, no

damages may be awarded for economic loss. Are these arguments sustainable?

Their Lordships could also not come with a universal answer to the question does the

McFarlane rule apply to all negligent birth cases?

The three dissenting Law Lords were LJ Steyn, LJ Hope and LJ Hutton. Lord Steyn

agreed with Parkinson, and contended that McFarlane did not apply to the seriously

disabled child. The case of a disabled mother as in Rees was an exception to the

McFarlane rule. Lord Hope was of a similar mind and Lord Hutton simply stated that it

was fair, just and reasonable to award extra damages for the extra costs of bringing up a

disabled child and that there was a clear distinction between a healthy mother and a

disabled one.

So to summarise what seems to be the current position:

Cases where the child is born healthy – an award of £15,000 plus costs arising directly

out of the pregnancy (McFarlane)

Cases where the child is born disabled – difficult to say as all their Lordships gave

differing opinions but damages for the additional costs of upbringing arising from the

handicap (Parkinson) still seem recoverable

Cases where the parent is disabled parent – damages as for the birth of a healthy child –

no extra award for the parent’s disability.

And The Australian View is…..

The Australian courts however rejected McFarlane in Cattanach v Melchior [2003] 9

Lloyds Rep Med 447; [2003] HCA 38; MLC 410 ( textbook page 390). This was again

a failed sterilisation case and a claim for the upkeep of a healthy child. On further appeal

to the High Court by a majority of 4-3 it was held that the defendant was in breach of duty

to the claimant and that had been the cause of her pregnancy. Although the claim was for

pure economic loss it involved in Mrs Melchior’s pregnancy an element of personal injury

and therefore the court would more readily impose a duty of care. It was reasonably

foreseeable that if Dr Cattanch was negligent the result would be a pregnancy the very

consequence Mrs Melchior had sought to avoid. The Australian courts reasoned that as a

matter of public policy it was in society’s interests to encourage the nurturing of children

within the family unit and the award of such damages would encourage this. It was

unseemingly and against public policy to litigate the potential benefit or otherwise of the

birth of a child. At paragraph 68 per McHugh and Gummow JJ:




110

“The unplanned child is not the harm for which recompense is sought in this

action; it is the burden of legal and moral responsibilities which arise by

reason of the birth of the child that is in contention.”

The idea of any notional set-off between any damages for the costs of rearing a child andthe joys of raising a child was also rejected. At paragraph 90 Kirby J commented:

“But the head of damages that is relevant in the present case is the financial

damage that the parents will suffer as the result of their legal responsibility to

raise the child. The benefits to be enjoyed as a result of having the child are

not related to that head of damage. The coal miner, forced to retire because

of injury does not get less damages for loss of earning capacity because he

is now free to set in the sun each day reading his favourite newspaper.

Likewise, the award of damages to the parents for their future financial

expenditure is not to be reduced by the enjoyment that they will or may

obtain from the birth of the child.”

And at paragraph 179 Kirby J said:

“Ordinary principles of tort liability would entitle the victim of the appellants’

wrong to recover from the appellants all aspects of their harm that are

reasonably foreseeable and not too remote. By the application of that test

the inclusion in the parents’ damages of a component for the costs of child -

rearing involved no legal or factual error.”

The High Court refused to draw any distinction between the birth of a healthy or disabled

child ruling that it would be discriminatory and was irrelevant to the award of damages.

Further Reading

Emeh v Kensington & Chelsea & Westminster A.H.A [1985] QB 1012

Thake v Maurice [1986] QB 644

Goodwill v BPAS [1996] WLR 1397

Walkin v South Manchester H.A. [1996] 7 Med LR 211

Lovelace Medical v Mendez (1991) 805 P 2d 603

CES Superclinics (Australia) Pty Ltd [1996] Med L Rev 102

Provenzano v Integrated Genetics (1998) 22 F Supp 2d 406.

Roberts v Bro Taff Health Authority [2002] 4 Lloyd’s Rep Med 182

Groom v Selby [2002] Lloyd’s Rep Med 1

AD v East Kent Community NHS Trust [2002] 9 Lloyd’s Rep Med 424

“Return of the burden of blessing” Dr J Ellis Cameron-Perry, (1999) NLJ December 17 pp1887-

1888



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111

“Wrongful birth. New light from the North” Charles Foster Solicitors Journal 21 January 2000

Booth Penny “A child is a blessing heavily in disguise, right?” New Law Journal Nov 23 2001

page 1738

“Failed Sterilisations And Child Costs Revisited” Roderick Denyer, Family Law Feb 2004 Vol 34

page 123.Brazier & Cave, “Medicine, Patients and the Law” 5

th ed (Penguin) Chapter 12




112

9.7 DAMAGES FOR NERVOUS SHOCK CAUSED TO A RELATIVE

There have been a number of claims where a relative alleges that he has suffered

nervous shock after seeing a loved one suffer/die as a result of medical negligence. See

Sion v Hampstead H A [1994] 5 Med LR 170 and in contrast in Tredget & Tredget v

Bexley H A [1994] 5 Med LR 178. In Tan v East London & City H.A. [1999] 9 Lloyd’s Rep

Med 389 a father who was informed by telephone of the death in utero of his daughter

and who then spent several hours comforting his wife, watching the caesarean delivery of

his dead child, and then keeping an overnight vigil claimed damages for psychiatric injury

from the defendant health authority. The health authority admitted that the stillbirth was

the result of their negligence. The claimant’s claim failed however for several reasons.

First it was held that the claimant did not witness the immediate aftermath (i.e. death of

the child in utero); secondly the death, still birth and vigil were not all one event and

therefore did not satisfy the aftermath test; and finally the psychiatric illness was not

induced by shock, e.g. the caesarean operation was planned etc.

Is this a good decision? The Law Commission Report No 249, Liability for Psychiatric

Illness stated that the “aftermath” principle was unjust. It recommended that where the

claimant is the secondary victim that the only restriction that should be imposed on a

claimant is that he should be able to demonstrate a close tie of love and affection with the

victim.

In Walters v North Glamorgan NHS Trust [2003] Lloyd’s Rep Med 49 the Appeal Court

took a rather more lenient view as to what events may constitute a shock and thus come

within the aftermath principle. The claimant was a mother who had suffered pathological

grief reaction as a result of the death of her baby son aged 10 months. The defendant

had failed to diagnose acute hepatitis in the claimant’s son and, it was accepted that, if

properly diagnosed and treated the child would have been given a liver transplant. The

claimant who was staying at hospital with her son awoke to find him choking and large

amounts of blood. A CAT scan was then carried out and the claimant was told that her

son had suffered no brain damage and that he should be transferred to another hospital

for a liver transplant. On transfer the claimant was informed that he had suffered severe

brain damage and eventually agreed to his life support machine being disconnected.

It was not in dispute that the claimant had suffered a pathological grief reaction but on

appeal the defendant argued that the claimant’s illness was not induced by shock. The

Court of Appeal found that the law permitted a realistic view to be taken in each case as

to what constituted the necessary event and found that the claimant’s appreciation was

sudden rather than an accumulation of gradual assaults on her mind. The Appeal Court

held that being woken by the convulsion; the unexpected news on arrival at the second

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113

hospital and the switching off of the life support machine all had a sudden impact there

and then.

In the interesting case of Froggatt v Chesterfield & North Derbyshire Royal Hospital MLC

0887 not only was the claimant awarded damages for psychiatric trauma caused by thenegligent diagnosis of breast cancer and an unnecessary mastectomy but the claimant’s

husband and son were also awarded damages for the psychiatric illness they had

suffered as a result of these events. The claimant’s husband and son had established

that they were both secondary victims. The claimant’s husband illness had begun when

he first saw his wife undressed for the first time following the mastectomy and was quite

unprepared for what he saw. In the case of the son his sudden appreciation of a

horrifying event came when the claimant, as a result of the negligent advice she had

been given, felt compelled to tell him that she had cancer and was likely to die.

In Atkinson v Seghal [2003] Lloyd’s Rep Med 285 Mrs Atkinson; had refused to give her

daughter (Livia) a lift to her ballet class which resulted in her daughter walking to the

class. Tragically on her way there Livia was knocked down and killed by a motor cycle.

The accident happened at 7.05pm and Livia was pronounced dead at 7.40pm. When

Livia had not arrived home by 8.05pm her father decided to drive to the ballet class. He

was diverted by a police cordon, arriving at the class to find that she was not there. He

was informed of Livia's death by the police officers at the scene. Ms Atkinson had

travelled down the scene independently and had been told by a police officer that Livia

was dead. The parents were then driven in a police car to the mortuary, arriving at

9.15pm where Livia's body was seen by her parents including disfiguring facial and head

injuries. Ms Atkinson cradled her daughter. After Livia's death Ms Atkinson was a regular

visitor to the graveyard and made her home a shrine to her daughter. Mr Justice Wilson

referred to the "seamless activity" that had taken place using the phrasing that had been

adopted in Walters and upheld Ms Atkinson's claim for psychiatric damage. However it is

debatable whether in Atkinson there was a seamless activity - the three events that Ms

Atkinson experienced namely arriving on the scene, being informed of her daughter's

death and attending at the mortuary are clearly more discrete events than those

experienced by Ms Walters who was with her child from his first fit to his final diagnosis of

brain damage. Further it was some two hours and ten minutes after the accident that Ms

Atkinson saw her daughter. This is a considerably longer period than the one hour before

Mrs McLoughlin saw her children in McLoughlin v O'Brien and arguably not within the

"immediate aftermath" of the accident. Ms Atkinson had experienced a shocking event

but were the courts stretching the boundaries of what constitutes immediacy and

aftermath to rule in her favour?

Finally see (1) JD (2) MAK & RK (3) RK & ANOR v (1) East Berkshire Community Health

NHS Trust & Ors & Two Other Actions [2005] UKHL 23 where the appellant parents

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114

argued that their claims for damages for psychiatric injury against doctors or social

workers who had wrongly determined that they had abused or harmed their children

should not have been dismissed on public policy grounds. The appellants submitted that

the health care professionals’ duty to exercise skill and care when investigating child

abuse extended to the child’s parents as primary carers as well as to the child. TheHouse of Lords (Lord Bingham dissenting) held that health professionals responsible for

investigating suspected child abuse did not owe a parent suspected of having committed

the abuse a duty sounding in damages if they carried out that investigation in good faith

but carelessly. Furthermore the respondents did not owe substantially the same duty of

care to the parents as to the children as the parents were not deemed to be in sufficient

proximity to give rise to a duty of care. The House of Lords agreed with the Court of

Appeal that there were cogent reasons of public policy not to impose a duty of this nature

and furthermore it could place the health professional in a position where he owed

conflicting duties.

At present there does not seem to be any hard and fast rule for these claims and the

courts’ approach is rather inconsistent. If damages are awarded under this head they will

extend to all foreseeable damages in line with the decision in Smith v Leech Brain & Co

Ltd [1962] 2 QB 405, Page v Smith [1995] 2 WLR 644 and the egg shell skull rule, see

paragraph 8.7.

There have been a number of recent decision on psychiatric damage see Less and

Carter v Hussain [2012] EWHC 3513 and Crystal Taylor v A Novo (UK) Ltd [2013] EWCA

Civ 194. In the first of these cases (see para 8.8 for facts) although the judge held that Mr

Carter was a secondary victim he ruled that his bereavement reaction was not caused by

the result of “shock” so his claim had not been made out. In Taylor the daughter of a

woman who died unexpectedly three weeks after an accident at work failed in her claim

for damages against her mother’s employer because she had not witnessed the accident

or its immediate aftermath. The Court of Appeal thus allowed the defendant’s appeal

ruling that it was the mother’s accident and not her subsequent death that was relevant

for purposes of proximity. In Liverpool Women's Hospital NHS Foundation Trust v

Ronayne | Westlaw UK a husband claim for damages for psychiatric injury he suffered

following his wife’s hysterectomy failed as the court ruled the necessary “shock” element

was not present and secondly his wife’s appearance was not exceptional for a person in

hospital.

See also Shorter v Surrey and Sussex Healthcare NHS Trust; Wild v Southend University

Hospital NHS Foundation Trust [2014]; Brock v Northampton General Hospital NHS Trust

[2014].





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Further Reading:

Taylor v Somerset H.A. [1993] 4 Med LR 34

Taylorson v Shieldness [1994] PIQR 329

AB v Tameside & Glossop H.A. [1997] PNLR 140

Allin v City & Hackney H.A. [1996] 7 Med. L.R. 167

Reilly & Reilly v Merseyside R.H.A. [1995] 6 Med LR 246

Jones v Royal Devon & Exeter NHS Trust [2008] EWHC 558.

9.8 MITIGATION

As with any other area of tort the claimant has a duty to mitigate his damages. This may

mean that the claimant should undergo further medical treatment, but that treatment

should be reasonable in all the circumstances. A failure to have an abortion after a failed

sterilisation is not considered unreasonable, se Emeh v Kensington and Chelsea AHA

[1985] QB 1012. In Geest plc v Lansiquot [2002] Lloyd’s Rep Med 482 a claimant’s

refusal to undergo surgery on a prolapsed disc which she had sustained during an

accident at work was not unreasonable in the absence of any guarantee from her doctor

that such surgery would be successful and therefore she had not failed to mitigate her

loss.

9.9 METHODS OF AWARDING DAMAGES

9.9.1 Lump Sum

Traditionally damages are awarded in a lump sum on a once and for all basis.

9.9.2 Structured Settlements – the end of

As of 1 April 2005 periodical payments may now be imposed by the court for all

personal injury claims involving future pecuniary loss. Section 100 of the Courts

Act 2003 substitutes a new s 2 of the Damages Act 1996. Under section 2(1) of the

Damages Act 1996 the court may order that the whole or part of the award should

take the form of periodical payments. Additionally under s 2(2) of the Damages Act

the court may order that other damages be paid by periodical payments but only if

the parties consent. The court will also have the power to award an interim

payment through periodical payments. Section 2B of the Damages Act will enable

the Lord Chancellor by order to empower the courts to vary periodical payments in

specified circumstances.

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Previously structured settlements could only imposed where the parties consent. It

seems under the new system that periodical payments will be imposed whenever

the courts consider them suitable.

For examples of structured settlements see A v B Hospitals NHS Trust [2006]EWHC 2833 and Thompstone v Tameside and Glossop Acute Services NHS Trust

EWHC 29904

9.9.3 Provisional Damages

This is an exception to the general rule that damages are awarded once and for all.

Where the claimant’s condition is uncertain then the claimant’s may be awarded

damages for his present condition and then be awarded further damages at a later

date should his condition deteriorate. See Willson v Ministry of Defence [1991] 1

All ER 638 where the court laid down guidelines for when an award of provisional

damages will be appropriate. An application for provisional damages should be

made under Civil Procedure Rules Part 41.

9.9.4 Interim Payment

In certain circumstances the claimant may be awarded a payment on account of

the eventual damages he may be awarded at trial. This will only occur where it

seems apparent that the claimant will win at trial or the defendant has already

admitted liability. An application for an interim payment may be necessary whenthe claimant requires immediate nursing care or has other immediate medical

expenses. Any application for an interim payment should be made under Civil

Procedure Rules Part 25, r 6. Note that for any case involving an infant the award

of an interim payment, provisional damages or structured settlement will first

require court approval. For ant example decision on the appropriateness of interim

payments see Isla Richmond v East & North Hertfordshire NHS Trust [2007]

EWHC 1999.

9.10 DAMAGES WHICH ARE NOT ENTIRELY COMPENSATORY

9.10.1 Exemplary Damages

Essentially these damages are awarded against the defendant to “teach him a

lesson”. See Rookes v Barnard [1964] 1 All ER 367.

Although damages of this nature are awarded in other jurisdictions in the area of

clinical negligence and product liability they are not as yet favoured by the English

courts. The Law Commission in Report No 147 “Aggravated, Exemplary andRestitutionary Damages” recommended that exemplary damages should be

renamed as punitive damages and should be very much awarded as a last resort.

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Further Reading:

Stauch & Wheat: Text, Cases and Materials on Medical Law (5th

ed) (Routledge)

Jackson: Medical Law Text Cases and Materials (Oxford University

Press 3rd

ed) Chapter 3,14

Pattinson: Medical Law and Ethics (Sweet & Maxwell) Chapter 3

Brazier & Cave: Medicine, Patients and the Law (5th ed)

Penguin Books), Chapters 8, 11

Khan, Robson & Swift: Clinical Negligence (2nd

ed) Cavendish Press Limited Chapter 7




119

SUMMARY


* explain the difference between general and special damages;

* identify the various ways that compensation may be awarded;

* identify any factors which may reduce the award.




120


1. How is loss of future earnings assessed?

2. In what situations will a claim for psychiatric injury as a result of the negligence

of a doctor or hospital succeed?

3. Distinguish between “wrongful life”, “wrongful birth” and “wrongful conception”.

4. Distinguish between exemplary and aggravated damages

5. What are provisional damages?






122

CHAPTER 10

CLINICAL NEGLIGENCE LITIGATION

10.1 INTRODUCTION

Following the Woolf Report “Access to Justice” civil procedure has undergone a drastic

review. There is now one set of rules - The Civil Procedure Rules that govern procedure

in both the High and County Court. Every part of the rules has a corresponding practice

direction that must be followed. Additionally a number of pre-action protocols have been

introduced, for our purposes the most relevant being the protocols for personal injury

claims and for clinical negligence actions. Great emphasis has been placed on the

overriding objective of the new civil regime as being to enable the court to deal with cases

justly. One of the ways the court will seek to do this is by active case management, that

is the courts will take a very much more pro-active approach. Before we look at the rules

and protocols in more detail there are a number of preliminary matters the solicitor must

deal with.

10.2 THE FIRST INTERVIEW

The solicitor will take a detailed statement from the client and sometimes also a close

relative (known as a proof of evidence). The first question that should be addressed is

what does the client want - an apology or compensation? Has the client contacted any

other agencies such as the Citizens Advice Bureau or lodged a complaint with the Health

Authority? If yes the solicitor should obtain any papers from these organisations. It will

need to be made clear to the client that ultimately court action will often result in only the

objective of monetary compensation being achieved and not an apology or any other

remedy (although it may be possible to use Alternative Dispute Resolution). The solicitor

should also be alive to the fact that the client has already placed his trust in the hands of

one group of professionals, namely his health carers, only to be let down and he may find

it difficult to place his trust in yet another professional. The statement should cover all

matters of liability and quantum and will be updated frequently as new evidence comes to

light. Clients have notoriously poor memories and will often remember events long after

the first statement.

The First Interview -Examples of questions to ask

The names of all medical staff involved in the client’s treatment if known to include

GPs and hospital doctors/staff;




123

What was said by the client to the doctor and vice versa at each consultation and

what treatment was given and how did the client respond;

Were any witnesses present at any of the appointments or procedures?

Any relevant medical history to include what was the client’s condition prior to the

clinical treatment he complains of; Who administered the treatment, where was it administered and when?

What was the outcome of the treatment?

The reason why the client thinks his care was negligent;

Whether a formal complaint has been made if yes to whom, with what result and

when?

What made the client think that treatment had gone wrong? Did anyone say

anything to the client that made him realise that the treatment had gone wrong? If

yes, what was said and when and when did he first think of going to a solicitor?

Following the interview the solicitor will draft the client’s proof of evidence and send

it to him for checking. Additionally the solicitor will:

* ask the client to complete a form of authority for the release of his medical

records;

* send a client care letter in accordance with Solicitors Practice Rule 15;

* identify the expiry of the limitation period;

* consider any other special considerations e.g. in the case of a minor the

appointment of someone to act on his behalf known as a litigation friend, or

in the case of a fatality whether to attend an inquest.

Note that the solicitor will have discussed how the case is to be funded at the first

interview and funding is dealt with in the paragraphs immediately below.

10.3 FUNDING

At the first interview the matter of how the case is to be funded must be addressed.

10.3.1 The privately funded action

The privately paying client must be aware of how the costs are calculated and how

much the case is likely to cost in accordance with r 15 Solicitors Practice Rules and

also the Solicitors’ Costs Information and Client Care Code 1999. The privately

funded action is now relatively rare as clinical negligence claims are generally

complex and expensive involving consideration of often lengthy medical records

and instructing several independent experts.

10.3.2 Legal Aid, Sentencing and Punishment of Offenders Act

2012 - The End of Legal Aid




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1 April 2013 marked the coming into force of the Legal Aid, Sentencing and Punishment

of Offenders Act (LASPO) 2012. Under its provisions, legal aid for medical negligence

claims will very restricted. This passing of LASPO has not been without controversy, the

President of the UK Supreme Court, Lord Neuberger, commented, “My worry is the

removal of legal aid for people to get advice about law and get representation in court willstart to undermine the rule of law because people will feel like the government isn’t giving

them access to justice in all sorts of cases.” Lord Bach, the former Labour justice

secretary, has also commented: “Has there ever been an Act that so picks on the poor

and attacks access to justice?”

Legal Aid is now restricted to claims involving children who have been seriously injured

during pregnancy, childbirth or within the first 8 weeks of life. There as yet seems to be

no explanation as to why the “cut off” point of 8 weeks of life was chosen. There remains

however for most medical negligence cases the opportunity to bring a claim under a

conditional fee agreement, which is discussed in the paragraphs below.

10.3.2 Conditional Fee Agreements

There is also the possibility of a conditional fee arrangement under s.58, 59 of the

Courts and Legal Services Act 1990 whereby the solicitor agrees with his client

that he will charge an enhanced fee, if he is successful, together with his basic

charges and disbursements (such as fees for medical reports etc.) A success fee

becomes payable because the solicitor has taken a risk when agreeing to enterinto a conditional fee agreement with the client. There is no guarantee the case will

be won and even if it is the solicitor will only receive payment at the end of the case

(in contrast to a case which is privately funded where the client is often requested

to make payment on account). However, if he should fail then the client will only

be responsible for his opponent’s costs and his own solicitor’s disbursements.

Before agreeing to take the case on that basis the solicitor must make an accurate

risk analysis of the situation, i.e. with reference to the facts, the law and the

evidence what is the client’s pr ospect of success. If the solicitor is incorrect with his

assessment of the risk then the client loses and he will forfeit his fees. The risk

assessment is also vital in deciding the appropriate success fee, see below.

10.3.4 Conditional Fee Agreements and LASPO

Now under LASPO, although a successful claimant may still recover his legal costs

from the defendant, the success fee element of the case is not recoverable and

can be deducted from his damages. There is however a cap to any success fee

that can be deducted from the claimant’s damages of 25% of general damages

(damages awarded to compensate for pain and suffering) and past losses (i.e.,

losses already incurred: no deduction can be made from future losses). To mitigate




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the effect of this the level of damages awarded for pain and suffering will be

increased by 10%.

10.4 LIMITATION

Please refer to ss 11,14,28,33 Limitation Act 1980. Note all references are to the

Limitation Act 1980 unless otherwise stated.

10.4.1 Trespass Claims

If the claimant’s claim is for purely financial losses, e.g. damage to his business

reputation or the claimant’s claim is brought in trespass then the limitation period

may be six years, s.2. In Stubbings v Webb [1993] AC 498 the court held that in

the case of a deliberate assault then this fell within the six year rule. This case

arguably implied that where the claim is that the patient did not consent to the

medical procedure then the claim should be brought in trespass and so fall within

the six year rule. However recently the House of Lords in A v Hoare and others

[2008] UKHL 6 held that Stubbings had been wrongly decided and the correct

approach was set out in Letang v Cooper (1965) 1 QB 232 and that an action for

damages for personal injuries for intentional trespass did not fall outside the three

year limit and hence the claimant could rely on s.33 of the Limitation Act and

request the court to exercise their discretion and extend the limitation period.

10.4.2 Claims for personal injury

In most cases, however, the claim will be for personal injuries and should be

brought within three years of either the accrual of the action or when the claimant

has knowledge, see ss11, 14(1), (3). Personal injuries is defined in s.38(1) and

includes “any disease and any impairment of a person’s physical or mental

condition”. Following the decision in Walkin v S Manchester H.A. [1996] 7 Med LR

211 a claim which was confined to the merely financial losses, the costs of rearing

a child following a negligent sterilisation, may still be held as a claim for personal

injuries and consequently within the three year rule.

See also Godfrey v Gloucestershire Royal Infirmary NHS Trust [2003] Lloyd’s Rep

Med 398 which considered the effect of Walkin.

In clinical negligence cases the crucial date from when the three year period will

run will be when the claimant has knowledge that he has a claim i.e. that his injury

was significant. The majority of claimants, however, do not realise they have a

claim until sometime later.

Knowledge can either be actual (s.14(1)) or constructive (s.14 (3)).






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[Note: a claim brought under the Human Rights Act 1998 must be begun within a

period of one year of the date on which the act complained of took place unless

there is a prescribed shorter time limit for the proceedings, s.7 (5) HRA 1998.]

10.4.3 Actual knowledge

See s.14 (1). It is not necessary for the claimant to know of the specific act or

omission which caused his injury or that he has a claim as a matter of law, i.e. that

the defendant was negligent, what he must have is some broad knowledge that

something has gone wrong. See for example Briggs v Pitt Payne & Lias [1999] 1

Lloyds Rep Med 1; Dobbie v Medway HA [1994] 5 Med LR 160 and Hallam-Eames

and others v Merrett [1996] 7 Med LR 122 (a non-medical case).

The courts have constantly sought to refine this concept of what constitutes

knowledge. In North Essex District H A v Spargo [1997] 8 Med LR 125 the Court

of Appeal held that the claimant should have “a broad knowledge of the essence of

the causally relevant act or omission to which the injury is attributable, that is in the

sense of being a real possibility”. The Court of Appeal to a certain extent qualified

this approach and added that if a claimant is mistaken in her belief and in fact is

“barking up the wrong tree” she will not have knowledge, nor will she have

knowledge if the defendant’s conduct is so vague or general that she cannot be

expected to know what to investigate. In determining what she should be expectedto know her state of mind will be relevant.

See also the cases of Roberts v Winbow [1999] 2 Lloyd’s Rep Med 31 and Ali v

Courtaulds Textiles Ltd [1999] 8 Lloyd’s Rep Med 301. In Roberts v Winbow the

claimant was held to have knowledge despite medical assurances that her

condition was of unknown aetiology. Do you think it is reasonable that a claimant is

deemed to have knowledge even when his belief is contradicted by the full weight

of the legal and/or medical profession? Roberts was then applied in Rowbottom v

Royal Masonic Hospital [2002] 4 Lloyd’s Rep Med 173 where the Court of Appeal

held that time did not begin to run against a claimant until expert evidence was

obtained that informed him of the negligent omission that may have caused his

injury. After a total hip replacement in 1991 the claimant developed an infection

which eventually resulted in the amputation of his left leg. The claimant believed

this to have been caused by the failure of a drain inserted into the leg. He

consulted solicitors in 1991 who obtained an expert report in 1993. That report said

that there was only two things which may have lessened the likelihood of infection;

(1) inadequate suction (and in the expert’s view it would be difficult to make this

allegation stick); or (2) the failure to administer antibiotics, and the expert indicated

that there was nothing in the records to indicate that antibiotics were given.

However it was only after the solicitor raised further queries of the expert and when

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the expert responded that one could assume that no antibiotics were given that the

claimant, applying Spargo, was held to have knowledge. The Court of Appeal said

that this was very much a borderline case and indeed the judgment was on a 2-1

majority basis. Certainly the dissenting judgment of Gibson LJ is very persuasive.

Finally in Haward v Fawcetts [2006] UKHL 9, a professional negligence caseagainst a firm of accountants, the House of Lords looked at the degree of

knowledge required under s.14A(8) (a) of the Act (a claim for latent damage).

Although Haward is not a clinical negligence case it is of interest for the comments

their Lordships made on what constitutes knowledge and also the mere fact that it

is a House of Lords judgment. In Haward it was held that the degree of knowledge

required for the purposes of the Act was knowledge of the facts constituting the

essence of the complaint of negligence (Hallam-Eames v Merrett approved). The

relevant date was not when the claimant first knew that he might have a claim for

damages but rather an earlier date when he first knew enough to justify setting

about investigating the possibility that the defendant’s advice was defective. The

claimant did not have to have a detailed knowledge of how and why the defendant

had failed in their duty of care.

Haward has recently been applied in the arm vibration case, Kew v Bettamix Ltd

[2006] EWCA Civ 1535 referred to below.

After reading the judgments what do you think?

10.4.4 What is meant by constructive knowledge?

Under s.14 (3) the claimant’s knowledge inc ludes knowledge that he might

reasonable have been expected to acquire:

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate

expert advice which it is reasonable for him to seek but a person shall not be

fixed under this subsection with knowledge of a fact ascertainable only with

the help of expert advice so long as he has taken all reasonable steps to

obtain (and, where appropriate, to act on) that advice.

If the claimant is deemed not to have actual knowledge then the courts will look to

see if there was some point at which the claimant should have made further

enquiry. There has raged a debate whether or not the character and intelligence of

the claimant should be taken into account in determining the reasonableness of a

further enquiry, see Nash v Eli Lilly [1992] 3 Med LR 353, Forbes v Wandsworth

HA [1996] 4 All ER 881, Smith v Leicester H A [1998] 3 Lloyd’s Rep Med 77 and

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Fenech v East London City HA [2000] . The final word though has perhaps been

spoken on the subject in the recent House of Lords decision in Adams v Bracknell

Forest Borough Council [2004] UKHL 29 their Lordships held that first a claim for

damages for dyslexia was a claim for damages in respect of personal injuries and

more importantly that the test for constructive knowledge under the LA 1980 – section 14(3)(b) is objective not subjective. With regard to the test for constructive

knowledge their Lordships were faced with the question do you factor in all the

personal characteristics of the claimant or do you ask what the average sufferer

reasonably have done. Overall the judgement favoured the objective test with the

caveat that each case will still be decided on its own facts.

Lord Hoffmann stated that the particular characteristics or intelligence of the

particular claimant was not relevant “in the absence of some special inhibiting

factor.” The normal expectation is that a person suffering from a significant injury

will be curious about its origins. Lord Scott also felt that the test should be mainly

objective “it is the norms of behaviour of the person in the situation of the claimant

that should be the test”. In any event he said that the court could always exercise

its s.33 discretion. Baroness Hale queried whether there was much difference

between the two tests but she agreed that strictly personal characteristics such as

shyness or embarrassment are not relevant.

The overall outcome of all this is the test for constructive knowledge now is what

would you expect the average man or woman with this injury and in possession of

these facts to have done about making further enquiries – if the answer is more

than he did, is there any compelling reason, (supported by medical evidence where

relevant), for making this claimant a special case.

In Catholic Care (Diocese of Leeds) and another v Young [2006] EWCA 1534 a

child abuse case, the Court of Appeal held that the test for reasonableness under

s.14(3) was common to s.14(3) and s.14(2) following Adams v Bracknell (see

above). The more serious the claimant realised the injury was, the less likely the

court would be to conclude that any feelings of inhibition or other factors were

reasonable grounds for not instituting proceedings. The Court of Appeal reasoned

that as the court had a wide discretion to extend the limitation period the provisions

of the Limitation Act could be given their ordinary meaning.

Finally in Kew v Bettamix Ltd [2006] EWCA Civ 1535 the claimant brought a claim

in respect of his exposure to vibrating equipment during the course of his

employment with the defendant. In the early 1990’s the claimant had experienced

numbness in his fingers but had attributed that to his age. It was not until the late

1990’s that the claimant considered that his age might not have been the only

cause. Following a routine occupational health care assessment in March 2000,



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the claimant’s doctor informed him that his condition may be attributable to

exposure to vibration at work and confirmed later in that year that the claimant was

suffering from hand arm vibration syndrome. The claimant was not subsequently

called for review. The claimant issued proceedings in July 2004 and the judge at

first instance found that the primary limitation period had expired but chose toexercise her discretion under s.33.

On appeal with regard to what constitutes knowledge, Haward v Fawcetts (see

above) was applied, and it was found that the claimant did not have knowledge in

the early or late 1990’s as there was no evidence that the claimant had any idea of

the link between the injury he was suffering and his working conditions. However,

applying Adams v Bracknell the claimant was deemed to have constructive

knowledge from March 2000. Although he was not told of the causative link, the

doctor’s findings demonstrated that there was a real possibility that his working

conditions had caused the symptoms and a reasonable man would have made

further investigation.

More recently in Johnson v MOD, Hobourn Eaton Ltd [2012] EWCA Civ 1505 in a

case concerning industrial deafness, the Court of Appeal confirmed that s.14(3)

provides for an objective test as provided for in Adams. Dame Janet Smith

however commenting obiter sought to refine this rule by adding to the factors that

may be taken account as part of the objective “reasonable man” standard. Until

Johnson it was accepted that youth, mental capacity and the extent to which the

injury would reasonably inhibit the claimant but not the claimant’s particular

intelligence or character may be considered. Dame Janet Smith has sought to add

a further category; namely the seriousness of the condition and the way in which it

manifested itself. Thus a reasonable man might not have sought medical advice as

to a condition acquired at birth during childhood whereas it may have been

reasonable for him to have done so having sustained an operation following an

operation whilst in adulthood. It remains to be seen how this new caveat on the

objective test is worked out.

As a final example of the intricacies of s. 14(1) and s. 14(3) see Whiston v London

Strategic H.A. [2010] EWCA Civ 195. The claimant (W) suffered from cerebral

palsy caused by brain damage sustained at his birth in the defendant's hospital in

1974. W did not commence proceedings until 2006 alleging that there had been

negligence by a junior doctor who had who tried for over half an hour to deliver him

using forceps before seeking assistance from a more experienced registrar, who

went on to deliver W within five minutes using different forceps. W’s mother was a

nurse and had been trained as a midwife, and was concerned about her treatment

however she did not inform W of her concerns until 2005 when his health

deteriorated. This led to W commencing proceedings. Until that point W with the

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support of his family had decided to get on with life and make the best of it. He was

highly intelligent and went to Eton and then Cambridge and achieved a 2:1. Then

he obtained a PhD in maths. His disability did not affect him until he was 24 when

his mobility decreased; he had to use a wheelchair, his speech became slurred

and he had to take increasing amounts of time off work.

W stated that he had known that he had been delivered by forceps and that his

condition was caused by a lack of oxygen at birth, but as he had been able to live a

relatively normal life he had never investigated further.

The Court of Appeal held that the fact that W knew he was delivered by forceps did

not capture the essence of the claim; the essence of the claim was the junior

doctor’s delay in seeking assistance, his persistence in trying to deliver W and

using the wrong forceps. With regards to s.14(3) as W knew his injury wassignificant there would come a time when a reasonable person in W's

circumstances would ask his mother, particularly since she was a nurse and a

midwife. Moreover he would have known that as she was a trained midwife she,

would be able to answer his questions. Therefore W would have constructive

knowledge in his early 20s, and the claim was statute-barred.

The Appeal Court however exercised its s.33 discretion (see below) and allowed W

to bring a claim reasoning that otherwise W would lose all prospect of his future

needs being provided for. The court held that under s.33 the claimant’s reasons for

delay should be considered and not his family.

10.4.5 Exception to the basic rule

Finally, two exceptions to the three year rule. For claimants under a disability the

limitation period will not start to run until that disability ceases, s.28. For minors

(persons under the age of 18, s.1 (1) Family Law Reform Act 1969) time does not

begin to run until the child reaches the age of 18, hence they have until the age of21 to commence an action. For patients who are incapable of managing or

administering property affairs, (s.1 (2) Mental Health Act 1983) time will run when a

patient is sane and he will have three years from that date. Note that a child

claimant on reaching the age of majority will not be fixed with the knowledge of his

parent, see Appleby v Walsall H A [1999] 5 Lloyds Rep Med 154.

Secondly, the court has the ultimate discretion to extend the limitation period under

s.33 of the Limitation Act 1980 if it is just and equitable to do so. The court will

weigh up the prejudice cause to the claimant and the defendant should the action

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not proceed. S.33 (3) lists some of the factors that the court will consider though

the court will look at the claim as a whole. These include:

(a) the length of the delay and the claimant’s reasons for the delay;

(b) the cogency of the evidence;

(c) the response of the defendant;(d) whether the claimant was under a disability;

(e) the steps that the claimant took to progress his claim.

For an illustration of what facts the court may take into account in exercising this

discretion see, for example Davis v Jacobs & Camden & Islington H A & Novaritis

[1999] 3 Lloyds Rep Med 72 and Briggs v Pitt Payne & Lias [1999] 1 Lloyds Rep

Med 1 . In Das v Ganju [1999] 6 Lloyds Rep Med 198 the Court of Appeal

exercised their discretion under s.33 in favour of the claimant ruling that the delay

was due mainly to misleading and wrong advice given by her lawyers, Lord Justice

Buxton at page 205 stating that the failings of the claimant’s lawyers were not “to

be visited upon her”. This decision has been criticised on the grounds that

previous decisions have held that the claimant’s actions cannot be divorced from

his lawyers and further in Das part of the delay seems to have been caused by the

claimant’s lack of funding. See more recently Leeson v Marsden and United Bristol

Healthcare Trust [2008] LS Law Med 393 a case commenting on abuse of process

and the factors relevant to s.33 discretion and Cain v Francis [2009] LS Law Med

82 a recent case commenting on whether the defendant suffered prejudice with the

loss of the limitation defence

10.5 THE PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL

DISPUTES

Following the Woolf reforms there is now a pre-action protocol for clinical negligence

claims. The protocol is the work of the Clinical Disputes Forum, a multi disciplinary body

which was formed in 1997 as a result of Lord Woolf’s “Access to Justice” inquiry.

Why the Protocol?

Lord Woolf perceived in his Access to Justice Report in July 1996 that the major causes

of costs and delay in medical litigation occur at the pre-action stage. He recommended

that patients and their legal advisors should try and work more closely with health care

providers to resolve disputes without recourse to litigation.

10.5.1 General aims of the Protocol

These are:

to maintain/restore the patient/healthcare provider relationship; and

to resolve as many disputes as possible without recourse to litigation.

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10.6.1 Records

Requests for patients’ records should be made using the Law Society and

Department of Health approved standard forms and they should be provided within

40 days of the request for a maximum cost £10. If they cannot be provided within

this timescale then the healthcare provider should give an explanation quickly. If

the healthcare provider fails to disclose the records then the patient or their advisor

may apply for pre-action disclosure against a party or non-party under the Civil

Procedure Rules Part 31.16, 31.17.

The defendant may refuse disclosure on the grounds that the records are subject

to lawyer/client privilege and should therefore remain confidential, i.e.

communications between a solicitor and his client or communications between a

lawyer and a third party for the purposes of the litigation, see Waugh v British

Railways Board [1980] AC 521, Lask v Gloucester HA The Times 13 Dec 1985,

Lee v South West Thames RHA [1985] 1 WLR 845.

Disclosure may be refused on the grounds that it is embarrassing to the defendant

or damaging to the public interest, see Re HIV Haemophiliac Litigation (1990) 140

NLJ 1349.

10.6.2 Letter of claim

See annex to the protocol at C1. The letter should contain a clear summary of the

facts and the main allegations of negligence. It should also describe the patient’sinjuries and prognosis and an indication of the heads of damage to be claimed. A

chronology should be provided in more complex cases together with any relevant

documents.

Enough information must be given for the healthcare provider to begin investigating

the claim and to put an initial value. Proceedings should not be issued until three

months after the letter of claim unless there is a limitation problem.

The claimant can make an offer to settle at this or any other stage. An offer should

be accompanied by a copy of the medical report and schedule of special damages.

10.6.3 The response

This should be within 14 days of receipt of the letter and identify who is dealing

with the matter. A reasoned answer should be provided within 3 months and either

admit the claim or say why:

if only part of the claim is admitted say which and why the remainder is denied;

if the claim is denied comment on the specific allegation of negligence and whichparts, if any, of the chronology are disputed.

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Experts

The use of joint experts is increasing. Experts may be needed to provide an

opinion on:

(i) breach of duty and causation;(ii) patient’s condition and prognosis;

(iii) to assist in valuing aspects of the claim.

However the protocol does not attempt to be prescriptive on whether a joint expert

should be instructed nor on the manner in which the reports should be disclosed.

See further paragraph 1.6.5 for further details re choosing and instructing your

expert.

The protocol finally goes on to encourage the use of Alternative Dispute

Resolution, see para 4.4(3) “starting proceedings should usually be a step of last

resort.” The courts will expect parties to try and settle their differences without

resorting to litigation if at all possible. Mention is made of the NHS Complaints

Procedure which although will not provide compensation can be used where an

explanation is the only goal or to find out more information to decide what to do.

10.6.4 Failing to follow the Protocol

The Practice Direction provides that the court may make an order that the party atfault be penalised in costs or if the party at fault is a claimant that he be deprived of

interest on his damages or awarded interest at a lower rate for such a period as the

court deems appropriate or if the party at fault is the defendant that he be ordered

to pay interest at a higher rate not exceeding 10 % above the base rate.

10.7 DISCLOSURE OF MEDICAL RECORDS

Initially this is covered by the protocol, see above and the protocol paras 3.7-3.13 and

Annex B. Where disclosure is sought from a third party then again initially that is dealt

with by the protocol, see para 3.13. However from 24th October 2001 if the third party is a

health care provider then access will be under the Data Protection Act 1998. This and

other measures available to parties to obtain the disclosure of their records is discussed

in the paragraphs below.

10.7.1 Access to Health Records 1991

This Act allowed patients access to all their health records post November 1991,

subject to certain exceptions e.g. access was denied where there was a genuine

risk to the physical or mental health of either the applicant or a third party or if

access would reveal information about any individual other than the patient. This




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Act now has been partly repealed (except in relation to dead patients) and replaced

by the Data Protection Act 1998 (see below).

10.7.2 The Data Protection Act 1998

The most significant change introduced by the 1998 Act is that manual records that

are held in “relevant filing systems” now fall within the definition of data in the 1998

Act. The Act derives from a European Directive which states its object as “to

protect the fundamental rights and freedoms of natural persons, and in particular

their right to privacy with respect to the processing of personal data.” Note,

however, that some of the 1998 Act’s provisions will not be fully appreciated until

2001, others by the year 2007.

The Act sets out eight Data Protection principles which, subject to certain specified

exceptions, all information relating to or capable of identifying a living individual

must be processed fairly, lawfully, accurately and securely. The Act introduces a

new category of ‘sensitive information’ which is subject to stricter controls than

other personal data. Patient records come within the definition of sensitive

personal data. Examples of when disclosure of patient records may be permitted

include:

Where the patient gives consent;

Where processing or disclosure is required by law or in legal proceedings; For medical purposes’

For insurance or pension purposes;

For research purpose.

The Act establishes the right of every individual (subject to stated exceptions), to

require the relevant data controller to confirm the nature and extent of the data

being held and the recipients to whom they are or may be disclosed.

Any person may also be entitled to a copy of the information in an intelligible form.

The data controller is required to supply the information within 40 days of a written

request. Note that the disclosure of personal data for the purpose of or in

connection with legal proceedings is allowed; see Mensah v Jones 19.11.04.

Two cases which are of interest in this area for the implications of the Human

Rights legislation are R v DoH ex parte Source Informatics [2000] 2 WLR 940 and

A Health Authority v X [2001] 7 Lloyd’s Rep Med 349. In the Informatics case the

Court of Appeal held that the European Directive from which the DPA derived did

not have any applicability to anonymised data. In A Health Authority v X the

disclosure of medical records was challenged as being in violation of Article 8 of

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the ECHR 1950. Munby J held that disclosure of the records could be made but

only subject to a bonding and transmissible duty of confidentiality being imposed

on the recipients (and any subsequent recipients). This goes further than the

requirements under the DPA which are essentially concerned with the internal

controls within an organisation

10.8 EXPERT EVIDENCE

The court has the power to restrict expert evidence to that which is reasonably necessary

to resolve the proceedings, CPR r 35.1. The use of joint experts is increasing. However

the protocol does not attempt to be prescriptive on whether a joint expert should be

instructed nor on the manner in which the reports should be disclosed, see para 4.2 and

see also Oxley v Penwarden [2001] 7 Lloyd’s Rep Med 347.

The solicitor should always choose the independent expert and not someone who is

involved with the incident or works in the same area as the defendant. There are a

number of sources that may assist in the choice of an expert:

(i) AvMA;

(ii) APIL (The Association of Personal Injury Lawyers);

(iii) Law Society’s Directory of Expert Witnesses;

(iv) Professional journals e.g. The Lancet;

(v) Experts you have seen in other case reports.

The solicitor should ensure that an expert from the appropriate speciality is chosen, and

that a fee and a time limit for the report is agreed. Another consideration is whether more

than one expert is required and whether separate reports on causation and prognosis are

required. Assuming that the expert is not a joint expert then rules concerning their

instruction are to be found at CPR r 35.8.

10.8.1 The report

Once the solicitor receives the report he should check to see if it is favourable or

not and if it is to his satisfaction. If it is unfavourable then he should only instruct a

second expert if he suspects that there is a case to answer. If there is anything in

the report which is unclear the solicitor should go back to the expert and seek

clarification. An expert’s report must comply in its form with the requirements of

CPR r 35.10 and paragraph 1 to PD 35. Under CPR r 35.12 the court can direct

experts to meet in an attempt to narrow down the issues in dispute.

It is also at this stage that the solicitor will choose counsel and should instruct

someone who has specialist knowledge in this field. Many of the organisations

discussed above in the choice of a medical expert will be valuable sources for

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choices of counsel. Counsel should be provided with a comprehensive set of

instructions together with the medical records. There will then usually be a

conference with counsel where the solicitor, client and expert will attend and

identify the issues in dispute and test the evidence. If counsel is reasonably

satisfied he will then usually go on to prepare the particulars of claim (see below).

10.9 WHO TO SUE?

See earlier notes.

10.10 THE ACTION

10.10.1 Which Court

The County Court has unlimited jurisdiction. For a clinical negligence claim to be

issued in the High Court it must have a value of £50,000 or more.

10.10.2 The Claim

The claimant will complete a claim form N1 which will be accompanied by a

particulars of claim which may be either stated on the claim form or contained

within a separate document. The particulars of claim must contain a concise

statement of facts on which the claimant relies. When the particulars of claim are

served a medical report and a schedule of special damages must accompany it. If

the defendant wishes to defend the claim he must acknowledge service within 14

days of service of the claim and file a defence 14 days thereafter. It is at this stage

that the court will send the parties an allocation questionnaire with the aim of

allocating the case to one of the three tracks. Should the parties fail to respond to

this questionnaire then the claim could ultimately be struck out. The three tracks

are the small claims track for personal injury cases where the value of damages

claimed for pain and suffering does not exceed £1,000; the fast track for monetary

claims where the amount of the claim does not exceed £15,000; and the multi track

for claims where neither of the aforementioned tracks are appropriate and

generally for claims where the amount claimed exceeds £15,000. Note that any

claim that is complex either with regard to the facts or the evidence will be

allocated to the multi-track, hence the majority of clinical negligence claims will be

allocated to this track. The court will then proceed to hold a case management

conference where it will proceed to give directions on the steps that the parties

must take. At all times the court will try and keep cost and delay to a minimum and

will try and set a trial date as soon as possible.

Further Reading:




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Brazier & Cave: Medicine, Patients and the Law (5th ed) (Penguin Books), Chapters 8 &

9

The Kennedy Report www.bristol-inquiry.org.uk/final_report/index.htm

Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry published 6th February

2013 (“The Francis Report”) (although not directly relevant to clinical negligence claims the

summary is a worthwhile read)

SUMMARY


* understand the basic procedural steps in a clinical negligence claim and

identify any problems you could face;

* explain the important provisions of the Limitation Act 1980 and, in particular,

with reference to case law, what is meant by knowledge.

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1. What are the various ways in which a claimant may see his medical records? What

are the advantages and disadvantages of each?

2. What constitutes actual knowledge and constructive knowledge within the meaning

of the Limitation Act 1980?

3. What factors will the court take into consideration in deciding whether or not to apply

section 33 of the Limitation Act?




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NOTES




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CHAPTER 11

CONSENT TO TREATMENT

11. INTRODUCTION

Working Definition of Consent

“Consent is the voluntary and continuing permission of a patient to be given

a particular treatment, based on a sufficient knowledge of the purpose,

nature, likely effects and risks of that treatment, including the likelihood of its

success and any alternatives to it. Permission given under any unfair or

undue pressure is not consent” . (Mental Health Act 1983 Code of Practice

(revised 2008)).

Consent to medical treatment is at the heart of the relationship between the patient and

the health carer.

11.1 Purpose of Consent to Medical Treatment.

“There seems to be some confusion in the minds of some as to the purpose

of seeking consent from a patient (whether adult or child) or from someone

with authority to give that consent on behalf of the patient. It has two

purposes, the one clinical and the other legal. The clinical purpose stems

from the fact that in many instances the co-operation of the patient and the

patient’s faith or at least confidence in the eff iciency of the treatment is a

major factor contributing to the treatment’s success. Failure to obtain suchconsent will not only deprive the patient and the medical staff of the

advantage, but will usually make it much more difficult to administer the

treatment…The legal purpose is…to provide those concerned in the

treatment with a defence to a criminal charge of assault or battery or a civil

claim for damages for trespass to the person. It does not … provide them

with any defence to a claim that they negligently advised a particular

treatment or negligently carried it out.” (Per Lord Donaldson MR in Re W

[1993] Fam. 64 at P. 76).




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Much of the clinical treatment which a patient receives will invariably involve some degree

of touching of the patient by the health carer; invasive treatment, such as surgical

operations, certainly will whereas counselling of a patient need not. Since any

unauthorised touching of a person is a battery which is a trespass to the person and

actionable per se (no hostile intent needed, see Lord Goff in Re F [1990] 2 AC 1 at 73B),then the health carer will need to ensure that his touching of the patient is indeed

authorised. The actionable touching need only be slight and it is no defence to argue, as

some health carers may be tempted to do, that the touching was and is in the

complainant’s best interests. Not only will the patient’s consent provide a defence to a

possible trespass claim but it also flags up clearly that, in medical law, patient autonomy

(or self-determination) is a fundamental concept which, if ignored, could have serious

repercussions for the health carer.

It has often been said that a patient has complete autonomy over his own body; what this

means is that the patient can decide for himself /herself whether he wants treatment or

not, whether he wants a particular treatment or not, whether he wants to be touched or

not etc. As Cardozo J said in 1914 in Scholendorff v Society of New York Hospital (1914)

211 NY 125.

“Every human being of adult years and sound mind has a right to determine what shall be

done with his own body; and a surgeon who per forms an operation without the patient’s

consent commits an assault.” Mr Justice Wall also expressed the same idea this way,

“The law, in my judgment, is very clear. It is in general terms a criminal and

tortious assault to perform physically invasive tr eatment without a patient’s

consent, and that a mentally competent patient has an absolute right to

refuse to consent to medical treatment for any reason, rational or irrational,

or for no reason at all, even where that decision will lead to his or her own

death.”

(Re J T (Adult: Refusal of Medical Treatment) [1998] 1 FLR 48 at p 51)

It could be argued that the upholding of patient autonomy is very much in keeping with

human rights law ever since the Human Rights Act 1998 became operative in England on

October 2nd

2000. Given that NHS organisations are “public authorities“ they must act in

accordance with the European Convention on Human Rights and Fundamental

Freedoms 1950; consequently, it may be possible to argue that to treat someone without

his consent is a breach of, say, Article 3 of the European Convention on Human Rights

1950 (incorporated into English law as a result of the Human Rights Act). Article 3 says,

“No one shall be subjected to torture or to inhuman or degrading treatment

or punishment”.




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The crucial question for the English Courts will be to decide whether invasive medical

treatment without the patient’s consent is ‘inhuman’ or ‘degrading’ to that patient.

Following the decision in Herczegfavly v Austria (1993) 15 EHRR 437 where force-

feeding of a patient and intolerable detention conditions were not regarded as a breach of Article 3, then perhaps non-consensual invasive medical treatment will not be seen as a

breach of Article 3. Again, non-consensual treatment may be questioned under Article 8

(1) which says that, “Everyone has the right to respect for his private and family life, his

home and his correspondence”; but then Article 8(2) does allow some interference of this

right in, for example, the public interest. All of this discussion probably only serves to

demonstrate that the 1998 Act and the Convention have had to date only limited influence

in the health care field, with perhaps two notable exceptions (1) in the field of mental

health (notably Article 5; deprivation of liberty) and (2) confidentiality (see above).

Since most forms of health treatment will involve some degree of touching, then any

health carer touching a patient without the latter’s consent will be committing trespass

(civil and/or criminal) (see Malette v Shulman 1991 and B v An NHS Hospital Trust

2002).

Students should refer to GMC guidance effective from June 2008, in relation to consent-

‘Consent: patients and doctors making decisions together’ (which can be accessed via

the GMC website.

11.2 CONSENT AND AUTONOMY

Patient autonomy (or the right to self-determination) is so fundamental in English medical

law that a health carer who treats a patient without the latter’s consent but in the firm

belief that the patient will die without the treatment, (in other words in the patient’s best

interests) will still be held liable in trespass. In Malette v Shulman [1991] 2 Med LR 162

the claimant who was seriously injured in a road accident was taken to a hospital for

treatment. As her condition worsened and she lapsed into unconsciousness it was

decided that a blood transfusion was needed. However, among her personal belongings

the hospital had discovered a Jehovah’s Witness card which expressly indicated that no

blood transfusion should be administered. The claimant’s daughter, who had been

summoned to the hospital, also confirmed her mother’s wish not to have a blood

transfusion; the daughter even signed a form indicating that she would absolve the

defendant and the hospital from any blame should her mother die as a result of not

receiving a blood transfusion. Despite this, but clearly convinced that a transfusion would

save the mother’s life, a blood transfusion was administered. The Ontario Court of

Appeal held that the defendant health carer was liable in trespass. As Robins J A said at

p 165,

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“The principles of self -determination and individual autonomy compel the

conclusion that the patient may reject blood transfusions even if harmful

consequences may result and even if the decision is generally regarded as

foolhardy… To transfuse a Jehovah’s Witness in the face of her explicitinstructions to the contrary would, in my opinion, violate her right to control

her own body…” (See also B v An NHS Hospital Trust [2002] EWHC 429

(Fam.))

Not only must the health carer accede to the patient’s request even though the latter may

seriously harm himself by his choice but he must also accede if the patient’s choice is likely

to injure a third party. In St George’s Healthcare NHS Trust v S [1998] 3 All ER 673. In that

case a pregnant woman, diagnosed with pre-eclampsia, opted for natural childbirth rather

than the safer caesarean section. The evidence was clear that not only did she appreciate

that her choice had serious consequences for both herself and her unborn child but also

the defendants’ decision to ignore her choice and subject her to a caesarean section was

done in her interests and in the interests of her unborn child; yet the court upheld her right

to decide even though that choice had the potential to kill her unborn child

For recent case law concerning a Jehovah’s Witness patient and the refusal of medical

treatment see Newcastle upon Tyne Hospitals Foundation Trust v LM 26th Feb 2014 and

Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317.

11.3 THE ONUS OF PROOF

This lies with the patient/claimant and the standard of proof is on a balance of probabilities.

It is for the claimant to show that no consent, express or implied, has been given to the

“touching”. Trespass will be committed even though there was no malice or ill-will involved

in the touching.

11.4 WHAT IS MEANT BY CONSENT?

For the patient’s consent to amount to a valid legal defence to a trespass (or negligence)

claim, the consent can be express or implied, oral or written or part oral, part written.

From the defendant health carer’s perspective it is always safer to obtain express written

consent, and this is certainly the norm where invasive treatment is involved.; that is why

as a general rule a consent form will have to be signed prior to undergoing surgery in a

hospital. In their guidance “Consent: patients and doctors making decisions together ” the

GMC give some specific examples of when express consent should be sought (see paras

44-49). For the majority of other treatments, for example a general practitioner checking

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your ears or throat etc. implied consent by agreeing to what is asked of you, as the

patient, is sufficient. Silence on its own may not be sufficient.

11.4.1 Express Consent

Express written consent usually involves the patient signing a consent form. But the

signing of that form is not conclusive evidence that legal consent has been obtained; it is,

however, very good evidence that it has been obtained. Consequently, it would be

possible for a claimant to later argue that his signature on a consent form had been

improperly obtained e.g. as a result of a misrepresentation of the circumstances in which

the consent was sought or fraud on the part of the health carer (see R v Tabassum [2000]

9 Lloyds L.Reps. 404). Again, if a claimant has expressly consented to procedure A and,

in the course of that procedure, something else was done which was not immediately

necessary, then the written consent to procedure A may be no defence to a trespass

claim in respect of the further procedure.

See DoH standard consent forms & DoH guidance (‘Reference Guide to Consent for

Examination or treatment’, 2009)

11.4.2 Implied Consent

The actions of a patient may imply that consent has been given. For example, the patientwho holds her arm out for an injection will have inferred her consent “whatever her

unexpressed feelings may have been” (see O’Brien v Cunard SS Co [1891] 28 N.E. 266

(Supreme Judicial Court of Massachusetts. Consent will not be implied where the patient

is incompetent although treatment may be given in the patient’s best interests (see

Chapter 9 and the Mental Capacity Act 2005, s.4). See again, “Consent: patients and

doctors making decisions together ” (GMC paras 44-49).

As stated earlier, consent given which is then exceeded by the health carer may result in

a successful claim in trespass (or negligence) against the health carer unless the latter

can show that the further procedure was immediately necessary (and not merely

convenient) to save the patient’s life or prevent a serious deterioration in the patient’s

condition. The consent form puts it this way, “[I understand] that any procedure in

addition to those described on this form will only be carried out if it is necessary to save

my life or to prevent serious harm to my health.”

It cannot be over-emphasised that the onus of showing the common law principle of

necessity here is on the defendant health carer. In the Devi case the defendants could

not show it was necessary to sterilise a woman who had consented to an operation on

her womb; their fear that, should she become pregnant again – she already had four

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children and wanted more – the womb might rupture, was not, in the opinion of the court,

so immediately necessary that the defendants could not wait and discuss sterilisation and

other options such as a vasectomy for the male partner (Devi v W Midlands AHA [1980]

C.L.Y. 687).

Now the Mental Capacity Act 2005 puts the common law principles of necessity

and definition of and assessment of lack of capacity on a statutory footing. Finally

note the GMC guidance: Consent: patients and doctors making decisions together

reiterates that a doctor must not exceed the scope of the authority given by a

patient, except in an emergency (para 39). Even in cases of emergency treatment

the guidance stresses that the treatment provided “must be the least restrictive of

the patient’s future choices.” (para 79)

11.5 TRUE CONSENT/ INFORMED CONSENT

Many adjectives are suggested in the text books in an attempt to explain the nature of the

consent needed to negative a tr espass claim, for example, “real”, “true”, “genuine”,

“informed” etc. It is suggested that the only valid distinction is the one between “true” and

“informed consent,” the latter phrase denoting the amount of information which is to be

given to the patient prior to getting his consent. In the normal course of events true

consent will be required in English law. This can be given by a capable, conscious adult,who has received a certain amount of information and has understood that information;

also the consent must have been obtained voluntarily.

Breaking the above statement down, the following become the essential ingredients of a

true consent:

a) Capacity (& competence) to consent

b) Based on sufficient information.

c) Given voluntarily.

11.5.1 Capacity & Competence

Guidance from the GMC on capacity in this context is at Part 3 of the GMC

guidance, -‘Consent: patients and doctors making decisions together’.

a) Adults

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In English medical law general reference to a patient consenting invariably

means a patient who is an adult, and an adult is defined as someone who is

aged 18 and over (see the Family Law Reform Act 1969). The common law

and statutory rule is that there is a rebuttable presumption that if you are

over the age of 18 you have the capacity (competence) to consent (or refuseconsent) to medical treatment. (see Re T (adult: refusal of Treatment)

[1992] 4 All ER 649; Re B (Adult: Refusal of Medical Treatment) (2002)) and

section 1(2) of the Mental Capacity Act 2005 which says that a person must

be assumed to have capacity unless it is established that he lacks capacity.

Further, and this is to reinforce what has already been said, a patient aged

18 and over is in law able to both consent to and refuse all forms of medical

treatment. In Paton v B.P.A.S. 1979 a husband sought an injunction to

prevent his pregnant wife from obtaining a legal abortion. The court refused,

arguing that the wife had autonomy over her own body.

11.5.2 Assessing Capacity

a) Adults

Although, as we have seen, an adult is presumed to have capacity, what

about the situation, however, where that person lacks capacity, e.g. because

they are unconscious, or due to mental disorder or otherwise? In these

circumstances a valid consent can not be given (by that person- though note

he possibility of a ‘proxy decision maker’ under the MCA- see below).

First it must be stressed that the Mental Capacity Act 2005 will only apply to

those adults who lack capacity the common law will continue to have effect

for all those adults who have capacity. Common law is still of some

importance as it is likely that many common law decisions will continue to be

influential, and referred to by the Court of Protection, in relation to its powers

under the MCA. Additionally you will see that many of the common law tests

have all but been replicated within the body of the Act.

In addition to the Act students should have regard to the Mental Capacity Act

Code of Practice (the Code) which was formally issued by the Lord

Chancellor on 23 April 2007. The Code provides guidance and explains how

the Act will work on a day to day basis for practitioners and carers

Finally note that this section will also very briefly look at the Mental Health

Act. This Act (currently) provides a statutory regime for the treatment and

care for mental disorder, containing provisions allowing for compulsory

admission and detention in a hospital, and compulsory treatment under what

are commonly known as the Part IV provisions.
















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11.5.3 Presumption and Definition of Capacity

Section 1(2) of the Mental Capacity Act 2005 states

(“A person must be assumed to have capacity unless it is established that he

lacks capac ity”.)

Section 1 of the MCA sets out 5 key principles which should be followed by anyone

exercising any power, or carrying out any act under the MCA. All of the key

principles in s.1 of the Mental Capacity Act 2005, mirror the common law position

and are set out below. The five key principles under s.1 are:

A person is assumed to have capacity unless prove otherwise;

A person is not to be treated as unable to make a decision unless all practicable

steps to help him to do so have been taken without success.

A person is not to be treated as incapable to make a decision merely because he

makes an unwise decision;

Any act or decision made, under the Act on behalf of a person who lacks capacity

must be in his best interests;

Before any act / decision regard should be given to whether the purpose could be

achieved by taking an option that is less restrictive of the person's rights/ freedom.

11.5.4 Definition of Incapacity

S.2(1) of the Act defines a person (“P”) as lacking capacity when” he is unable to make a

decision for himself in relation to the matter because of an impairment of, or a

disturbance in the functioning of, the mind or brain.” The section goes on and adds that “it

does not matter whether the impairment or disturbance is permanent or temporary.”

(s.2(2)). (See for example the Code chapter 4)

In assessing capacity the Act borrows a negligence test and stipulates that any decision

is to be made on “the balance of probabilities” (s.2 (4)). However incapacity cannot be

established simply by reference to a person’s age or appearance or “a condition of his, or

an aspect of his behaviour, which might lead others to make unjustified assumptions

about his capacity.” (s.2 (3)).

Hence when assessing capacity a person must consider:-

o

Is there an impairment/ disturbance of functioning mind/brain?o If so

o Is it sufficient that the person lacks capacity to make the particular decision?




149

What is now made clear, as was the case under common law, is that the person’s mental

capacity is to be judged (a) in relation to a specific issue/matter, and (b) at a specific time;

therefore incapacity as regards, say, paying bills does not mean that the person is also

incapable of consenting to medical treatment and vice-versa and incapacity to consent totreatment in the year 2010 does not mean that the person is to assumed incapable of

consenting in 2013. Hence it is particularly important that capacity is properly assessed

(and the Code guidance taken into account as appropriate).

11.5.5 The assessment of incapacity

S.3 of the Act deals with the assessment of capacity

Section 3

“A person is unable to make a decision for himself if he is unable-

a. To understand the information relevant to the decision

b. To retain that information

c. To use or weigh that information as part of the process of making the

decision or

d. To communicate his decision (whether by talking, using sign language or

any other means)”

If a person (P) understands the information if it is given in a way that is “appropriate to his

circumstances” then he will not be deemed to lack capacity (s.3 (2)). Moreover the fact

that any person may only be able to retain such information for a limited period, again

does not render a person incapable (s.3 (3)). Relevant information includes information

about the reasonably foreseeable consequences of deciding one way or another or failing

to make a decision (3(4)).

At common law the test for capacity was the one given by Thorpe J in Re C (adult: refusal

of medical treatments) [1994] 1 All ER 819. In Re C a 68 year old schizophrenic, detainedin Broadmoor refused to have his gangrenous leg amputated. Thorpe J held that for the

patient to possess decision making capacity he must be able to:

understand information relevant to the decision about treatment;

believe in that information; and

weigh that information, balancing risks and needs, when arriving at a choice.

This test was reinforced by Butler-Sloss L J in Re MB [1997] 2 FLR 426 when she said,




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“(4) A person lacks capacity if some impairment or disturbance of mental

functioning renders the person unable to make a decision whether to

consent to or to refuse treatment; that inability to make a decision will

occur when:

a) the patient is unable to comprehend and retain the information

which is material to the decision, especially as to the likely

consequences of having or not having the treatment in

question;

b) the patient is unable to use the information and weigh it in the

balance as part of the process of arriving at the decision….”

This test has been closely followed in the new MCA at section 3 which sets out a

functional test for determining capacity. The Act adds a further element to the Re MB

test at (d) that a person may be treated as incapable if they are unable communicate a

decision in any way. Section 3 of the new 2005 Act may be thought of as not all that

different from the common law rules above. It is therefore highly probable that many of

the common law principles will continue to be highly influential, and referred to/ relied

upon by the new Court of Protection, in relation to its powers under the MCA.

11.5.6 Best interests

Once a decision has been made that a person lacks capacity then care and

treatment must be in his best interests, (s.4). This applies to any decisions made

on behalf of a person under the MCA. Once again it is reiterated that no decision

should be made purely on the basis of a person’s age, appearance or peculiarity in

his behaviour. Reference must be made to a checklist and the person making the

decision must reasonably believe that his actions are in the best interests of the

person.

Providing any decision is reached in this way then s.4 will have been complied with

notwithstanding that the court may subsequently come to a different decision.

In assessing capacity the assessor therefore must consider:

whether it is likely that the person will regain capacity to deal with the issue in

question and when that is likely to be (s.4(3);

so far as reasonably practicable try and encourage P’s participation or to improve

his ability to participate in the decision making process, (s.4 (4)).

The effect of the MCA will be that such applications will now be made to the new Court of

Protection and not the High Court as before. If there is a valid advance directive (see




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para 9.8) in place in the correct format then the healthcarer must follow that and

treatment must not continue to be administered. Where P has appointed a LPA (see

further paragraph 9.7) to deal with consenting to or refusing life saving treatment and it

clear that the LPA is acting in P’s best interests then the authority of the LPA will suffice.

(See further COP paragraph 7).

Section 4(6) then goes to provide a rather comprehensive list of what must be taken into

account in assessing capacity. The assessor must, so far as is reasonably ascertainable,

consider:

(a) P's past and present wishes and feelings, (in particular any written statement made

by him when he was capable

b) the beliefs and values that would influence his decision if he was capable capacity;

and

(c) any other factors that P would consider if he was able to do so.

Section 4(7) also stipulates that if at all practicable and appropriate to consult them, the

views of the following in determining what would be in P’s best interests:

(a) anyone named by P as someone to be consulted;

(b) anyone caring for P or having an interest in P’s welfare;

(c) any donee of a lasting power of attorney

(d) any deputy appointed for P by the court,

So is this new test be any different to the common law test for “best interests”? By way of

comparison Dame Butler-Sloss in An Hospital NHS Trust v S [2003] EWHC 365 said, “the

assessment of best interests is not a narrow one. I said in Re A (Male Sterilisation)

[2000] 1 FLR 549 at 555, in my judgement best interests encompasses medical,

emotional and all other welfare issues”. Likewise this view had been endorsed by the

BMA. In their consent tool kit (card 8) lists below the following (minimum?) matters which

should be considered in any given situation:

“the patient’s own wishes and values (where these can be ascertained),

including any advance decision;

clinical judgment about the effectiveness of the proposed treatment,

particularly in relation to other options;

where there is more than one option, which option is least restrictive of the

patient’s futur e choices;

the likelihood and extent of any degree of improvement in the patient’s

condition if treatment is provided;

the views of the parents, if the patient is a child;

the views of people close to the patient, especially close relatives, partners,carers, welfare attorneys, court-appointed deputies or guardians about whatthe patient is likely to see as beneficial; and

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any knowledge of the patient’s religions, cultural and other non-medicalviews that might have an impact on the patient’s wishes”.

For further guidance see the Code (chapter 5). What seems clear is that any doctor must

adhere to the checklist at section 4 to demonstrate that he has carried out as full an

assessment as possible. However the practice itself does not seem so far removed from

the common law test and provided that there was a “reasonable belief” that the decision

was in P’s best interests then the assessor will be protected.

Perhaps the main difference is the importance attached to P’s own views (s.4 (6)). P’s

views form only one part of the assessment process, they are by no means

determinative. However this approach is markedly different to the common law test where

the test was much more objective and perhaps clinical?

Remember that the test for “best interests” has no relevance where P has (or there is no

reasonable belief that P does not have) capacity to make the particular decision for

himself. Moreover the section also has no bearing where a where a valid advance

decision applies (this will be considered further below).

Finally any discussion of “best interests” must now have regard to the decision in Aintree

University Hospitals NHSFT v James [2013] UKSC 67 the first Supreme Court decision

on the approach to be taken in assessing best interests. The words of Baroness Hale set

out below at para 39 emphasised that a much more

A more subjective (patient-driven

approach) must be taken.

“The most that can be said, therefore, is that in considering the best interests of this

particular patient at this particular time, decision-makers must look at his welfare in the

widest sense, not just medical but social and psychological; they must consider the nature

of the medical treatment in question, what it involves and its prospects of success; they

must consider what the outcome of that treatment for the patient is likely to be; they must try

and put themselves in the place of the individual patient and ask what his attitude to the

treatment is or would be likely to be; and they must consult others who are looking after him

or interested in his welfare, in particular for their view of what his attitude would be.”

And on the meaning of “no prospect of recovery” and the concept of “futility” Baroness Hale

at para 44 said “Resuming a quality of life which the patient would regard as worthwhile is

more readily applicable, particularly in the case of a patient with permanent disabilities. As

was emphasised in Re J (1991), it is not for others to say that a life which the patient would

regard as worthwhile is not worth living.”

There has been numerous decisions on best interests and there is not space within this

workbook to consider them all but some of the more interesting are listed below.










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A NHS Hospital Trust v M and K [2013] EWHC 2402 (pre Aintree)

Re M (Best Interests: DOL) [2013] EWHC 3456 (COP)

An NHS Trust v VT and A [2013] EWHC B26 (Fam)

Sheffield Teaching Hospitals NHS Foundation Trust v TH & Anor [2014] EWCOP 4

Reference should also be made to the Prolonged disorders of consciousness National

Clinical Guidelines” (RCP Dec 2013)

11.5.7 Acts in connection with care and treatment, Section 5

Section 5 of the Act provides protects healthcarers from legal liability when treatment is

carried out on incapacitated adults without their consent provided such treatment is in

their “best interests”. Under section 5 the healthcarer will have to refer to sections 2, 3

(above) in first assessing capacity, and then to section 4 (best interests) and the Code

where relevant. Section 5 requires only a reasonable belief that P lacks capacity and that

P further lacks capacity to the matter in question and that it is in P’s best interests.

Note that this section will not afford protection if any act is performed negligently, ss (5(2),

5(4)).

Section 5 only applies where the care is in connection with care/ treatment. “Care” is notdefined in the Act, though “treatment” is defined as including a ‘diagnostic or other

procedure.” (s.64). This wide definition encompasses a wide range of health care, and

will include other care provided by carers, e.g. help with eating, drinking, mobility,

dressing, washing, shopping etc, see further the Code, chapter 6.

Section 5 will also extend protection to anyone carrying out life-sustaining treatment; and

treatment/ any act ‘necessary to prevent a serious deterioration’ in P’s condition, provided

that there is a reasonable belief that treatment/ the act is necessary (s.6(7)), pending a

decision from the Court.

Section 5 will not apply “if a person (D) does an act that is intended to restrain P” unless

two conditions are satisfied (s.6 (1)). These are:

that D reasonably believes that it is necessary to do the act in order to prevent

harm to P; and

the measures taken are a proportionate response to the likelihood and the

seriousness of the harm P would suffer if no steps were taken. (ss.6 (2) (3).
















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An act of restraint is defined as one which “uses, or threatens to use, force to secure the

doing of an act which P resists, or restricts P's liberty of movement, whether or not P

resists” (s. 6(4)).

Finally s.5 will not authorise any care/treatment in conflict with a decision made by adonee of an LPA, or deputy appointed by the court (s.6 (6)).

The importance of sections 5 and 6 are they provide a healthcarer with protection in

certain defined circumstances, similar in many ways to the common law doctrine of

necessity (not to be confused with the common law doctrine of best interests). Section 5

however does not provide authority to anyone else to make decisions on behalf of P;

unlike LPAs, which do introduce new powers which can actually enable someone to

make decisions on behalf of P in certain circumstances. These are considered at

paragraph 9.7.

11.6 LASTING POWERS OF ATTORNEY (LPA)

Sections 5 and 6 above empowered healthcarers to make certain decisions about P, they

did not give any right however to third parties. However as a result of sections 9 -14 of

the Mental Capacity Act 2005, lasting powers of attorney (LPA’s) may now be created by

patients at a time when they are conscious and mentally capable (s.9 (2)). The general

implications of this section is that in relation to welfare decisions, a capable adult canauthorise others to make decisions about his care and treatment should he become

incapable. The LPA powers in relation to welfare issues will only be effective where P

lacks capacity to make the decision his/her self (s.11(7)(a)). Any act done by a donee is

subject to the principles set out in s.1 and best interests and s. 4 (s.9 (4)).

Note however the donee can not override a valid advance decision (s.11 (7)).

So for the first time ever a third party may give consent to a healthcarer to treat an

incapable adult. But if there is a disagreement between healthcarer and donee and the

donee refuses to consent to such treatment? Then the healthcarer will need to challenge

the donee’s decision via the Court of Protection (s.6 (6)).

11.7 ADVANCE DECISIONS

Prior to the Mental Capacity Act 2005 a patient may have made it known that, should he

become incapable through an accident or an illness of consenting or not consenting to his

medical treatment, then he does not want any life-supporting medical treatment to beadministered to him. If made formally such prior statements are referred to as advance

decisions (or to use the American terminology, living wills). The legal status of such




155

statements at common law is that, provided certain conditions exist, then the statement

must be obeyed; to treat a patient in defiance of such a declaration is unlawful and will

render the health carer liable to a criminal charge or a civil claim for assault and battery.

As Lord Goff said in the Bland case:

“…the same principle applies where the patient’s refusal to give his consent

has been expressed at an earlier date, before he became unconscious or

otherwise incapable of communicating it; though in such circumstances

special care may be necessary to ensure that the prior refusal of consent is

still properly to be regarded as applicable in the circumstances which have

subsequently occurred…” (p 864).

An advance decision is most useful in knowing what treatment the patient does not want;

it should have little effect were it to stipulate that the patient wanted a particular form of

treatment since such matters are generally left legally to the clinical judgement of the

health carers and the courts would (invariably) support their decisions. But in the High

Court in R (Burke) v General Medical Council (Official Solicitor intervening) [2005] 2 WLR

431 this latter point was successfully questioned. There the patient, Leslie Burke, who

was suffering from the degenerative brain disease cerebellar ataxia, sought judicial

review of the G.M.C’s guidance to doctors that artificial feeding and hydration could be

withdrawn from him against his wishes , after he lost the ability to speak. Holding for the

patient the judge, Munby J., declared that the guidance was indeed unlawful since it

failed to observe, “the heavy presumption in favour of life-prolonging treatment….” Mr.

Burke had clearly expressed his wishes that, should he lose the ability to speak

(consent), he wanted his medical treatment to continue; the judge’s decision took away

from the health carers the decision to treat or not to treat in the patient’s best interests: a

clear victory for patient autonomy. But such an approach was effectively stifled by the

ruling of the Court of Appeal ((2005) 3 WLR 1132 and leave to appeal to the House of

Lords was refused).

Advance decisions can now be found in sections 24, 25 and 26 of the MCA and the first

thing that strikes the reader about these sections is that they are headed up “advance

decisions to refuse treatment” thereby reinforcing the Appeal Court’s decision in Burke.

Second, some of the common law criteria have now been given statutory force, such as

the age of the maker, (18), his mental capacity, and the relevant medical circumstances

etc.

Note that as the advance decision was made when P had capacity, the best interests

tests has no bearing on P’s wishes even if those wishes are contrary to the opinions of

health professionals or moreover a donee of an LPA.

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Mental Health Act 1983 (MHA) as amended by the Mental Health Act 2007) and requires

treatment for their mental disorder, the application of the MHA must also be considered.

A patient may be admitted to hospital for treatment for mental disorder in two ways, either

as (i) voluntary/informal patients, or (ii) compulsorily detained under the Mental Health Act

1983. For informal patients the common law rule of treating out of necessity in thepatient’s best interests was the applicable rule of law. This was the broad result of the

House of Lords’ decision in the Bournewood case where at pp 297-8 Lord Goff had this to

say,

“…the basis upon which a hospital was entitled to treat and to care for

persons who were admitted as informal patients… but lacked the capacity to

consent to such treatment….was the common law doctrine of necessity.”

(See also Re F (Adult Patient: Jurisdiction) [2000] 9 Lloyds Rep. Med. 381, Re W (a

Minor) (Medical Treatment: Courts Jurisdiction), [1992] 4 All ER 627 and A National

Health Service Trust v D [2000] Lloyds Rep. Med. 411.

The position has now changed with the implementation of the MCA. So any patient who

lacks capacity who is admitted to hospital informally for treatment for mental disorder will

be provided with any treatment or care under the authority of the MCA (see s.5). This

does, however, cause difficulties where the care provided in hospital is said to amount to

a deprivation of liberty. In the Bournewood case it was argued in the European Court that

an admission to hospital and care there that amounted to a deprivation of liberty was a

breach of Article 5 of the European Convention (see HL v UK). This argument

succeeded, and, on the facts of the case, it was held that Mr L (the patient in the case)

had been deprived of his liberty. Therefore up until April 09 the MCA did not authorise the

deprivation of liberty of a patient without an order from the Court of Protection (s.16). Post

April 09 a new DoLs authorisation procedure was introduced by the MHA 07 into the

MCA, and set out in schedule A1 of the MCA. It enables responsible bodies (known as

the managing authority of the relevant hospital or care home where a person is being

deprived of their liberty) to apply to a ‘supervisory body (the relevant PCT or Local

Authority) for an authorisation of any such deprivation. Once the responsible body

receives the said authorisation they then must be able to justify the necessity of the

treatment under s.5 of the MCA. It is important to note that the deprivation of liberty

decision is entirely separate from the decision to treat.

For a decision on deprivation of liberty and best interests see DH NHS Foundation Trust

v PS (By her litigation friend, The Official Solicitor) (2010) EWHC 1217 . In this case the

court thought it simpler for the court to authorise the deprivation of liberty as the

deprivation would be for a limited duration, rather than invoke the DOL safeguards.




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[Note that the House of Lords Select Committee concluded in their recent review of the

MCA that the DOL safeguards were “not fit for purpose” and they should be repealed and

replaced. The Government is yet to respond. Furthermore in P v Cheshire West and

Chester Council and another [2014] UKSC 19 the Supreme Court has substantially re-

defined what amounts to a deprivation of liberty. Further detail can be found in theoptional module Mental Health and Capacity.]

As regards patients who are compulsorily detained under the MHA, the law on consent

can be found in Part IV of the Act, key sections being 57, 58, 62 and 63.

Briefly the effect of sections 57, 58, 58A, 62 and 63 may be summed up as follows:

for s 57 treatments e.g. psycho-surgery, the patient’s capable consent and a

second opinion are needed;

for s 58 treatments –this covers the administration of medicine once three months

have passed since the medication was initially given during the period of detention,

either the patient can consent or a second opinion will be required;

for section 58A treatments e.g. ECT, this may not be given without the consent of a

capable patient, if the patient is incapable then ECT can not be given if there is an

advance refusal in place or where a proxy decision maker refuses consent. This

section is subject to provisions in section 62 below.

if urgent treatment is needed the safeguards laid down in sections 57,58, 58A can

be disapplied (s.62); otherwise treatment for the mental disorder can be administered under S63 without

the detained patient’s consent.

Detention under the Act does not, per se, mean that the detained person lacks the

capacity to consent. The provisions noted above provide for compulsory treatment of

those who have, and for those who lack, capacity.

Of all the above provisions, the one which seems to fly in the face of the patient’s human

rights and also cause the greatest problems is section 63. That section stipulates that,

“the consent of person is not required for any medical treatment given … for the

mental disorder from which he/she is suffering, not being treatment falling within

section 57 or 58 […], if the treatment is given under the direction of the approved

clinician in charge of the treatment.”

The problem is that the court’s interpretation of the kind of treatment which can be

administered under this section without the patient’s consent and without the safeguards

of sections 57 and 58 is that it is treatment which is not necessarily linked to the patient’s

particular mental disorder. Thus, caesarean sections and force-feeding have been held

to come within section 63. This is questionable since at first sight it seems doubtful

whether such treatments could be connected to the patient’s mental condition, a









159

connection which section 63 clearly requires. In B v Croydon Health Authority [1995] 1All

ER 683 the patient had been compulsorily detained under section 3 of the 1983 Act

suffering from borderline personality disorder coupled with post traumatic stress disorder.

She was force-fed as part of her treatment and the question for the courts was whether

that treatment was, “treatment …for the mental disorder”. It was held that it was, NeillL.J. laying down the principle that section .63 includes “treatments given to alleviate the

symptoms of the disorder as well as treatments to remedy its underlying cause:” (See

also Tameside & Glossop Acute Services Trust v CH [1996] 1 FLR 762,R v Collins and

Ashworth HA ex p Brady [2000] 8 Lloyds Rep. Med. 355. In R (on the application of B) v

Ashworth HA [2005] UKHL 20 the court went even further and said that the section was

not confined to the mental disorder specified in the application justifying detention: it

applied to any mental disorder from which the person was suffering).

11.9 CHILDREN

11.9.1 16/17 yr olds

The Children Act 1989 s.105(1) and the United Nations Convention on Rights of the

Child, Article 1 both consider any person within England and Wales who is under

eighteen, to be a child. For patients between the ages of 16 and 18, a special rule

applies and that is to be found in section 8 of the Family Law Reform Act 1969. That

section allows people between the ages of 16 and 18 to consent to surgical, medical or

dental treatment as if they were adults.

That section says:

“(1) The consent of a minor who has attained the age of sixteen years to any

surgical, medical or dental treatment which, in the absence of consent,

would constitute a trespass to his person, shall be as effective as it would be

if he were of full age; and where a minor has by virtue of this section given

an effective consent to any treatment it shall not be necessary to obtain

consent for it from his parents or guardian.”

From a practical standpoint this means that administering medical treatment to a 16 or 17

year old with the latter’s consent as opposed to their parents’ or guardians’ consent will

not incur any civil or criminal liability. Note the FLRA does not apply in cases of all

“treatment”; for example organ donation, procedures which are not therapeutic or

research does not fall within the ambit of the Act.

As Lord Donaldson put it in Re W (a Minor) (Medical Treatment: Courts Jurisdiction),

[1992] 4 All ER 627,





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“The section [S8]… does not… ex tend to the donation of organs or blood

since, so far as the donor is concerned, these do not constitute either

treatment or diagnosis.” (p 635).

In such cases the consent will have to come from the parents/guardians but the consentwill have to be exercised in the best interests of the child; therefore the consent can and

will be ignored if, in the court’s view, the procedure is not in the child’s interests (see Re B

(A Minor: Wardship –Sterilisation)[1988] AC 199; Re J (A Minor : Muslim Upbringing and

Circumcision [2000] 1 FLR 571; Re C & F (Children: Immunisation) [2003] 2 FLR 1095;

Royal Alexandra Hospital for Children v J (2005) NSWSC 465) For an interesting

consideration of the position where parents/ carers and professionals conflict see the

case of Glass, where the European court held that providing treatment to David Glass

against his parents’ wishes was a breach of Article 8 of the HRA ( David Glass & Carol

Glass v UK (2004) application No 00061827/00, (20040 39 EHRR 15 ).

The Mental Capacity Act confirms that those children aged between 16-18 years (defined

in the COP as “young persons”) will be treated as adults for the purposes of the Act,

subject to two key exceptions - 16-18 year olds are not able to make a Lasting Power of

Attorney (LPA) (s.9(2)(c) or an Advance Decision (s.24). For these “young persons”,

there will be an overlap between various legal schemes- see chapter 12 of the Code

11.9.2 Under 16

If the patient is someone under the age of 16 but considered by the courts to be “ Gillick

mature” then the patient, and not the parents or the guardians, may consent to the

medical treatment. In Gillick v West Norfolk and Wisbech AHA [1985] 3 All ER 402, a

circular issued by the DHSS which advised that, in certain circumstances, contraceptive

counselling and advice could be sought and given to under 16 year olds without parental

consent, was challenged by a mother with five daughters who argued that it was unlawful

(ultra vires) and contrary to a doctor’s legal obligations. The majority of the Law Lords

held that, in exceptional circumstances, contraceptive advice and guidance could be

legally provided to under 16 year olds without their parents’ involvement or consent. The

exceptional circumstance would be where the girl, in the Court’s opinion, was competent

in that she had already achieved “a significant understanding and intelligence to enable

…her to understand fully what [was] proposed”. (per Lord Scarman at p 423). As to

whether any particular under 16 year old would be regarded as sufficiently mature,

reference has to be made to the more detailed criteria laid down by Lord Fraser

guidelines at p 413 where he indicated that the doctor had to be:

(i) satisfied that the child understood his advice;








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161

(ii) prepared to try and persuade the child to tell his parents or let him [the doctor] do

so; only if the child refused would he [the doctor] then be entitled to proceed with

the treatment;

(iii) of the opinion that the child was very likely to have sexual intercourse with or

without contraceptive advice or treatment;(iv) of the opinion that, unless the child got the advice, his physical or mental health or

both would suffer; and

(v) sure that the child’s best interests required the advice.

What seems to be required here is knowledge on the part of the health carer making the

assessment that the under 16 year old really does understand and appreciate the

consequences of consenting to the particular medical procedure, such as the risks

involved, the benefits to be gained, the short-term and long-term disadvantages of the

treatment, etc. (“….what is involved is not merely an ability to understand the nature of

the proposed treatment… but a full understanding and appreciation of the consequences

both of the treatment in terms of intended and possible side effects and… the anticipated

consequences of a failure to treat” (per Lord Donaldson in Re R (A Minor; Wardship;

Medical Treatment) [1992] 3 Med. L.R 342 at p348.))

In their guidance “0-18 years” the GMC state that only if a young person can

“understand, retain, use and weigh this informa tion, and communicate their

decision to others can they consent to that investigation or treatment.” (para 24)

Two comments should be made on the Gillick rule. First, although the case itself arose

against the background of contraceptive advice and counselling, it is submitted that the

court’s ruling on the capacity of such a person is not restricted to contraceptive issues; it

is applicable to most forms of clinical treatment. Second, the converse of the Gillick rule,

namely that if you are Gillick mature to consent you are Gillick mature to withhold your

consent, does not hold good. As Lord Donaldson MR pointed out in Re R (A Minor)

(Wardship: Medical Treatment [1991] 4 All ER 177 at p 186:

“Both in this case and in Re E the judges treated Gillick’s case as deciding

that a ‘Gillick competent’ chi ld has a right to refuse treatment. In this I

consider that they were in error. Such a child can consent, but if he or she

declines to do so or refuses, consent can be given by someone else who

has parental rights or responsibilities.”

See also Re W (a minor) (medical Treatment) [1992], where the court held that the

health professionals only required one valid consent and where others, in this case the

parent/ court can lawfully consent, then this is sufficient despite the child’s refusal).

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It would therefore appear that, as the law currently stands, a Gillick mature minor’s refusal

to be treated may be over-ridden by either the parents or guardians or the Court on the

grounds that, (a) either the parents or the guardians have a concurrent legal capacity to

consent, and (b) such a refusal might conceivably lead to death or serious injury and the

mature under 16 may not be able to fully comprehend the consequences of a refusal.

It has to be said that this reasoning is highly questionable and a somewhat illogical

situation for English law to hold. Why should there be a concurrent capacity in refusal

cases but not in consent cases? Why is it assumed that a mature under 16 cannot

appreciate the serious consequences of a refusal? Further, in the light of the Human

Rights Act, 1998, (Articles 14 and 8) can such apparent discrimination on the grounds of

age be upheld?

More recently the courts have returned to the Gillick case, in considering whether abortion/

other treatments could lawfully be provided to an under 16 year old without the parent

being informed- see Axon (R (on the application of Sue Axon) v The Secretary of State for

Health and others [2006] EWHC 372. )

Note: The MCA does not generally apply to under 16s, for the purpose for this module.

This means that the issue of whether the child is ‘Gillick competent’ will still arise.

11.9.2 Patients under the age of 16 but not Gillick competent.

If the patient is under 16 years of age but is not Gillick competent then legal consent to

the medical treatment rests with the patient’s parents or guardians. Section 3 (1) of the

1989 Act defines parental responsibility as “all the rights, duties, powers, responsibilities

and authority of which by law a parent of a child has in relation to the child and his

property.” Consent need only be given by one such person but it is both legally advisable

and good medical practice to involve both parents. The persons who have parental

responsibility are set out in the Children Act 1989 (section 2) and listed in the DOH‘s

guidance, “Consent: Working with Children”. But this parental control has never been

regarded as unfettered. Parental responsibility exists for the benefit of the child. For

example, if Jehovah’s Witness parents were to refuse a blood transfusion for their child, it

is almost certain that an application will be made to the courts for the child to be dealt

with pursuant to the Children Act 1989, in which case it will be for the court to decide

whether the treatment should be given or not, and this it will do on the basis of what is in

the minor’s best interests. This could mean that in certain circumstances parents’ wishes

will be ignored; in other cases those wishes may be followed by the courts. Much will

depend on what the court sees as the minor’s “best interests” in any particular situation.









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The GMC in “0-18 years: guidance for all doctors” specifically single out medical

procedures that are undertaken for religious, cultural, social or emotional reasons stating

that such procedures that are not undertaken for therapeutic benefit may be carried out

providing they are in the best interests of the child. In assessing the child’s best interests

the doctor should amongst other factors consider the religious and cultural beliefs of thechild and their parents together with any social and emotional benefits (see paras 34-35).

In Re R (a minor) (Blood Transfusion) [1993] 2 FLR 757 , the parents, both Jehovah

Witnesses, refused to allow their 10 month old daughter to receive blood transfusions. A

specific issue order was sought by the local authority under S8 of the Children Act 1989

for the treatment to be administered against the parents’ wishes. Granting it, Booth J

said:

“In the present case, I am in no doubt that the application is well -

founded…The welfare of the little girl is the court’s paramount

consideration…. so overwhelming is her need for blood and so much is it in

her best interests to have it in the light of current medical knowledge that, for

her welfare, I am bound to override the parents’ wishes …” (p 760)

But in Re T (a minor) (Wardship: Medical Treatment) [1997] 1 All E.R. 906 where the

child was born with a life-threatening liver defect, the Appeal Court upheld the parents’

decision not to subject the child to a liver transplant, although the unanimous medical

view was that a transplant would have been in the child’s best interests. It is clear that

the courts have to indulge in a delicate balancing exercise in determining whether

something is or is not in a patient’s best interests; as such each case will have to be

decided on its merits.

A striking example of parents not having an unfettered control over their child’s medical

treatment is the Siamese twins case at the beginning of this century. (Re A (minors)

(conjoined twins: separation) [2000] Lloyds Rep. Med. 425.). This was the case where

Jodie and Mary were Siamese twins who shared a common aorta. Mary was the weaker

twin and she was dependent on Jodie for her blood supply and on Jodie’s heart to keep

her alive. With a separation operation Jodie stood a very good chance of living a

relatively normal life, but Mary would certainly die; without a separation operation the

prognosis was that both twins would ultimately die within six months. The parents,

deeply religious as they were, refused to give consent to the separation operation

believing that it should be left to God to decide what should happen to the twins. On the

other hand the hospital wanted to separate them. Should the surgery be carried out?

And if so, on what basis? In the twins’ best interests? Possibly yes, if you consider the

interest of the stronger twin; but what about Mary’s best interests? Was it in her best

interests to die, as she certainly would if the operation went ahead?

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At first instance Johnson J held that the operation should go ahead. The parents

appealed. The Court of Appeal (Ward, Brooke and Robert Walker LJJ) unanimously

agreed with the trial judge but arrived at their conclusions by different processes of

reasoning. Yet the entire court seemed to be clear on one thing: that the parents’ wishes,in the circumstances, were not in the children’s best interests; significantly the court also

decided that Mary’s human rights were not infringed. Was the Appeal Court morally and

legally right in this case?

If the basic test which the Court was going to apply and did apply was the ‘best interests’

test and if Mary had no interests or no best interests , then attention had to be focussed

on Jodie’s best interests; consequently if the parents’ wishes were not in Jodie’s best

interests then rightly they should have been, and were, ignored. As Ward LJ put it , “The

best interests of the twins is to give the chance of life to the child whose actual bodily

condition is capable of accepting the chance to her advantage even if that has to be at

the cost of … the life which is so unnaturally supported”. That said the parents’ views

were listened to and considered but as Andrew Pack writing in the Family Law periodical

for November 2000, noted:

“They [the parents] seemed to be very much at the sidelines in the case, lost

amongst the complex medical issues and the theoretical discussions about the

sanctity or otherwise of life” (p 783).

See also Wyatt v Portsmouth NHS Trust [2005] EWHC 693 and Re OT (A Baby)

Unreported March 20 2009.

Withdrawing life sustaining treatment from young children will always be an emotive

and controversial topic particularly where the views of the clinicians and the parents

conflict. For two further cases see NHS Trust v Baby X & Others [2012] EWHC 2188

(Fam) (withdrawal of life support from a baby against the wishes of parents) and KH

[2012] EWHC B18 (Fam) (Trust seeking Court approval of an Advanced Care Plan

which includes withholding life sustaining treatment.)

A case which hit the headlines albeit involving an older child was that of Neon

Roberts (NHS Trust v SR [2012] EWHC 3842 (Fam)). Here a trust sought a

declaration that it was in a 7 year old boy’s best interests to have radiation treatment

for a brain tumour. Neon’s father was in agreement, however Neon’s mother. Sally

Roberts objected and wanted to explore alternative therapies. The court ruled in

favour of the trust and was rather critical of Mrs Roberts limited argument against the

treatment proceeding.

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Further Reading

See “Mental Capacity: One Standard for All Ages” [2011] Family Law which examines Gillick

competence in the light of the subsequent developments of the UNCRC, Human Rights Act

1998 and the Mental Capacity Act 2005.

11.9.3 Reminder - MCA

16/17 year olds

The MCA also applies (though with some important limitations) to 16/17 year olds. This

means that, as above, (for the purposes of the MCA) there will be a presumption of

capacity, and assessment of capacity and best interests will fall within s.s2-4 of the MCA.

Under s.5, acts can be carried out in connection with care and treatment (as an alternative

to seeking consent from someone with parental responsibility).

Under 16s

Because the MCA is of (almost) no application in this context, the common law provisions

will continue to apply, as seen above.

11.10 INFORMATION

The health professional must impart a certain amount of information to the patient to

enable the decision to be made. The information must be relevant and must be such as

would be imparted by a similarly qualified health carer faced with a similar factual scenario.

As regards the nature and volume of the information to be given to the patient, there is a

difference of opinion between English law and American/Canadian law. English law

seems to prefer the rule which says that the “broad terms” of the treatment etc. should be

volunteered to the patient as laid down in Chatterton v Gerson [1981] 1 All ER 265,

whereas American and Canadian jurisprudence talks of the patient giving an “informed

consent” (see the case of Canterbury v Spence [1972] 464 F (2d) 772). The difference is

this. “Broad terms” essentially means the health carer telling the patient about the broad

risks and benefits associated with the treatment as determined by the health carer not the

patient (so following what other health carers would do in similar circumstances would

suffice for the rule : shades of Bolam here). On the other hand “informed consent”

requires the health carer to tell the patient what the patient would want to know, not what

the health carer thinks should be told. Consequently it could be maintained that an

American patient would have volunteered to him/her more information than his English

equivalent.









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together’. In particular paragraph 9 lists areas of information to be given to

patients. In relation to answering questions, paragraph 12 states:- ‘You must

answer patient’s questions honestly and as far as practical, answer as fully as

they wish.’

Paragraphs 13-17 list reasons when information might not be shared with a patient.

Paragraphs 28-36 consider discussion of side effects and complications. In particular

paragraph 32 states:- ‘you must tell patients if an investigation or treatment might result in

a serious adverse outcome, even if the likelihood is very small.’

11.10.1 Understanding the Information

Does it have to be shown that the patient actually understood the information or is it

sufficient that the health carer has taken reasonable and appropriate steps to satisfy

himself that the patient understood the information? Under s.3 of the MCA the test is not

whether the patient understood the information but whether he has the capacity to

understand. This means that the health carer must reasonably believe that the patient

has the ability to understand the information (see for example Hamwi v Johnson and NW

London Hospitals NHS Trust [2005] EWHC 206 ). In assisting the patient understand the

information The Code details the steps the heathcarer must take.

The GMC Guidance emphasises that a doctor should check whether his patient hasunderstood the information and whether he requires additional information before making

a decision.

11.11 VOLUNTARILY

The patient’s consent must be given voluntarily; that means it must be devoid of any

physical or moral pressure or undue influence or fraud or mistake or misrepresentation on

the part of the health carer or the patient’s relatives or spouse; consent given in such

circumstances is not, in general, true consent. In Re T (An Adult) (Consent for Medical

Treatment) [1992] 2 FLR 458, the patient who was pregnant and injured in a car accident

refused a blood transfusion while her mother was with her; the mother was a Jehovah’s

Witness. There was evidence that the daughter was not as deeply attached to the

Jehovah’s Witness faith as her mother. When an application was made to the courts for

a blood transfusion to be administered the court granted it, holding that the patient’s

refusal was not genuine, vitiated as it was by the mother’s pressure; in other wor ds the

mother’s undue influence raised the spectre that the daughter’s refusal was not true.

Lord Donaldson said at p 473:

“If …. [his] will was overborne, the refusal will not have represented a true

decision. In this context the relationship of the persuader to the patient – for





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168

example, spouse, parents or religious adviser – will be important, because

some relationships more readily lend themselves to overbearing the patient’s

independent will than do others”. (See also the GMC Guidance Consent:

patients and doctors making decisions together” ).

11.11.1 Fraud and Consent

In R v Tabassum [2000] Lloyds Rep Med. 404 a man who impersonated a health carer

and subsequently deceived women into agreeing to participate in a breast cancer survey

and to undergo breast examinations was held to be rightly convicted of indecent assault;

his fraud “as to the nature and quality of the conduct” vitiated the women’s consent.

11.12 SIGNIFICANCE OF CAUSATION

It can be argued that if no consent at all has been obtained or if the consent has been

obtained fraudulently etc, then the claim should be pursued in trespass; in other

circumstances the claim should be pursued in negligence. So is causation a problem

where the claim is properly brought in trespass? Not really, as Mister Justice Bristow said

in 1980.

“Once it is shown that the consent is unreal then what the plaintiff wouldhave decided if she had been given the information which would have

prevented vitiation of the reality of her consent is irrelevant ” (per Bristow J.

in Chatterton v Gerson [1980] 3 WLR 1003 at p 1013).

And Brazier agrees. At page 117 (Medicine, Patients and the Law”) this is what she says:

“The essence of the wrong of battery is the un -permitted contact. There is

no requirement that the patient prove that if he had been asked to consent to

the relevant treatment he would have refused.”

On the other hand if the claim is to be pursued in negligence then

“… the plaintiff must prove not only the breach of duty to inform but that had

the duty not been broken [she] would not have chosen to have the

operation.” (per Bristow J in Chatterton v Gerson at p 1012). But how is this

tested?

11.12.1 Subjective or Objective Test?

Causation means that the claimant has to show that, had the appropriate advice and

information been given by the health carer, then he (the claimant) would not have agreed

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SUMMARY

At the end of this chapter you should be able to appreciate:

* the distinction between informed consent and true consent;

* the position of the adult, 16/17 year old and the ‘mature’ minor;

* the impact of and position under the MCA 2005;

* the ingredients necessary to sue in trespass where it is argued that no true

consent has been given




171


1. List three ingredients which make up true consent.

2. What is the ratio of the Gillick case?

3. When can you treat an unconscious patient?

4. Distinguish between “informed consent” and “broad terms” insofar as it relates

to the volume of information which should be imparted to a patient.






173

NOTES




174

CHAPTER 12

MEDICAL CONFIDENTIALITY

12.1 INTRODUCTION

Most people will be aware of the medical profession’s duty of confidentiality to patients,

however, the basis of this duty may not be so well known. It is clear that there will be

both a legal and ethical obligation to maintain confidences (although neither would

impose an ‘absolute’ obligation). It is also important to appreciate that the Human Rights

Act 1998 will impact on the law in this area.

12.2 BASIS OF THE OBLIGATION OF CONFIDENCE

12.2.1 Ethical/ professional basis

The Hippocratic Oath provides:

“ All that may come to my knowledge in the exercise of my profession or

outside of my profession or in daily commerce with men, which ought not to

spread abroad, I will keep secret and never reveal .”

And the Declaration of Geneva states:

“I will respect the secrets which are confided in me, even after the patient

has died .”

It is clear that the obligation of confidence is not an absolute obligation and that

there will be circumstances which justify disclosure of confidential information. It is

also clear that a medical professional cannot simply choose what to disclose

without reference to the appropriate professional guidance.

The General Medical Council (GMC) sets out detailed guidance regarding the

nature and extent of the ethical/ professional obligation of confidence in its

guidance document Confidentiality (2009).

In Good Medical Practice it is stated at paragraph 37 that:

“Patients have a right to expect that information about them will be

held in confidence by their doctors. You must treat information about

patients as confidential, including after a patient has died. If you are




175

considering disclosing confidential information without a patient’s

consent, you must follow the guidance in with Confidentiality.”

Where a doctor breaches the ‘duty of confidentiality’ a patient may wish to file a

complaint against the doctor with the General Medical Council. However, even if adisciplinary sanction does follow, this would not in itself give the aggrieved patient

a remedy. The patient would simply have to satisfy himself that a disciplinary

sanction was imposed. To gain a ‘legal remedy’ the aggrieved patient would have

to pursue a legal claim. At the outset it is worthy of note that the extent of the legal

and ethical/professional obligations may differ. You will note above that ‘Good

Medical Practice’ makes reference to the obligation of confidence surviving after

the patient’s death (see paragraph 37). The legal position here is not quite so clear

cut.

12.2.2 Legal basis

Iis there a common law rule which governs medical and other confidences? And

does this legal duty of confidentiality arise via contract or tort (of negligence) or

equity? In A.G. v Guardian Newspapers (No 2) 1988 the House of Lords had

established -- in a non-medical case -- that a duty of confidence did come into

existence where confidential information was imparted to someone in

circumstances where that recipient must have been aware that the information wasboth confidential and not disclosable. Applying this to the private patient he is

able to argue that the duty of confidentiality was/is an implied (or perhaps an

express) term of the contract to provide private health care – hence a claim in

contract for breach of that term if there is an unauthorised disclosure. But what

about the NHS patient who has no contract? In Furniss v Fitchett (a New Zealand

case in 1958 [1958] NZLR 396) it was argued that a claim could be made in tort

arguing that the health carer owed a duty to respect the patient’s confidence and

that, by wrongfully revealing the confidence, a breach of that duty had occurred.

But this approach is somewhat questionable since negligence suggests

inadvertence whereas the disclosure envisaged here is deliberate. The better legal

approach seems to be to argue that the claim could be made in equity.

The case of W v Egdell concerned proceedings brought following disclosure of a

psychiatric repor t without the patient’s consent. It was stated by Bingham LJ (at

p.848) that:

“It has never been doubted that the circumstances here were such to

impose on Dr. Egdell a duty of confidence owed to W….It is not in issue

here that a duty of confidence existed. The breadth of such a duty in any

case is, however, dependent on circumstances.”

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176

Note, this case is considered later in relation to the public interest exception to the

obligation of confidence. Reference was made in the case to GMC advice regarding

the existence of a confidentiality obligation and Bingham LJ commented at p.849:

“I do not doubt that this accurately states the general rule as the law

now stands…”

The Law Commission recommended that a statutory offence of breach of confidence be

created, however this recommendation was not taken forward. See Law Commission

Report No.110 Breach of Confidence (Cmnd 8388, 1981) paragraph 6.1.

There are, however, specific situations where an obligation of confidence has been

established by statute/ statutory instrument. Examples are noted below:

Abortion Regulations 1991 (SI 1991 No 499)

Health Service Commissioners Act 1993, section 15

The relevant provisions both provide for an obligation of confidence and also

specify circumstances where disclosure is possible

12.3 WHAT IS CONFIDENTIAL INFORMATION? WHAT TRIGGERS THE ‘DUTY

OF CONFIDENCE’?

In Attorney-General v Guardian Newspapers (No 2), it was stated that the information

should have

It was also stated (at p.658) that the “duty of confidence arises when

confidential information comes to the knowledge of a person (the confident) in

circumstances where he has notice, or is held to have agreed, that the

information is confidential, with the effect that it would be just and reasonable

in all the circumstances that he should be precluded from disclosing the

information to others.”

Thus we have the requirements that:

The information is confidential

That information must be communicated in circumstances where the confident has

notice/ agrees the information is confidential.

It is clear that information passing between the patient and healthcare professional would

satisfy these requirements

12.4 THE IMPACT OF THE HUMAN RIGHTS ACT 1998









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12.4.1 Article 8

Consideration of issues of confidentiality must also include a consideration of the

impact of HRA, and in particular Article 8. Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and

his correspondence.

2. There shall be no interference by a public authority with the exercise of this

right except such as is in accordance with the law and is necessary in a

democratic society in the interests of national security, public safety or the

economic well being of the country, for the protection of health or morals, or

for the protection of the rights and freedoms of others.

It is clear that confidentiality could be protected under Article 8(1). It is also clear

that this obligation is not absolute and this ‘right’ could be interfered with in

appropriate circumstances.

Examples of the application of Article 8 are set out below.

In Campbell v Mirror Group Newspapers [2004] 2 All ER 995 it becomes apparent

that the focus is on ‘whether there is a reasonable expectation of privacy’ when

determining whether there has been a breach of Article 8.

It must be made clear that Article 8(2) does set out justifications for disclosure even

when a ‘right to privacy’ can be established under Article 8(1) see Z v Finland(1998) 25 EHRR 371 .

In A HA v X [2001] 61 BMLR 22 it was held that disclosure of patient records could

be justified in accordance with Article 8 if conditions were in place to prevent any

abuse. Thus the issue of ensuring that stringent safeguards are in place is

necessary if disclosure is to be justified under Article 8(2).

It is suggested in Confidentiality: NHS Code of Practice (at paragraph 34) that:

“Current understanding is that compliance with the Data Protection Act 1998

and the common law of confidentiality should satisfy Human Rights

requirements.”

12.4.2 Article 10

Article 10 provides:

“Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart information




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178

and ideas without interference by public authority and regardless of

frontiers…”

Again this right is qualified. See Article 10(2), the Article 10(1) right can be

interfered with provided that three conditions are satisfied, namely:

The interference must be in accordance with the law;

It must pursue one of the aims set out in Article 10(2), namely ‘the protection

of the reputation or rights of others’ and ‘preventing the disclosure of

information received in confidence.’

The interference must be ‘necessary in a democratic society’, meeting a

‘pressing social need’ and be proportionate to the legitimate aim pursued.

Article 10 issues can arise where material is published. Where the material

published is confidential in nature Article 8 and Article 10 both need to be

considered as there will be a potential conflict.Consider the following cases as a

starting point:

Campbell v Mirror Group Newspapers Ltd [2004] 2 All ER 995.

There is a need to ‘strike a balance’. It was stated at p.1026 that:

“Any restriction of the right to freedom of expression must be subjected

to very close scrutiny. But so too must any restriction of the right to

respect for private life. Neither art 8 nor art 10 has any pre-eminence

over the other in the conduct of this ex ercise….they are neither absolute

nor in any hierarchical order, since they are of equal value in ademocratic society.”

See also H (A Healthcare Worker) v Associated Newspapers Limited and H

(A Healthcare Worker) v N Health Authority [2002] E.W.C.A. Civ 195 and R

(on the application of Stone) v South East Coast Strategic Health Authority

and others [2006] EWHC 1668 (Admin). Venables & Thompson v News

Group Newspapers and others [2001] 1 ALL ER 908

12.5 RELEVANT GUIDANCE

12.5.1 General Medical Council ‘Confidentiality’ 2009

The GMC has provided updated guidance for doctors regarding confidentiality

issues. The guidance sets out the extent of the professional obligations and

attempts to identify the circumstances when disclosure can be justified.






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Note, the GMC website also contains ‘learning materials’ to support the

confidentiality guidance. Various case studies are set out which deal with different

problem scenarios.

12.5.2 The NHS Confidentiality Code of Practice (November 2003)

The document is described (at p.3) as a:

“guide to required practice for those who work within or under contract to

NHS organisations concerning confidentiality and patients’ consent to

the use of t heir health records….For the purposes of this document, the

term ‘staff’ is used as a convenience to refer to all those to whom this

code of practice should apply. Whilst directed at NHS staff, the Code is

also relevant to anyone working in and around health. This includes

private and voluntary sector staff.”

Its application is therefore quite far reaching. Practical guidance regarding the

scope of the confidentiality obligation, disclosure issues and practical steps to be

taken to ensure compliance is set out in the Code.

Recent supplemental guidance has been issues which focuses on public interest

disclosure (Confidentiality: NHS Code of Practice supplemental guidance: public

interest disclosures, November 2010).

12.5.3 Guidance document supplied by defence organisations etc

Consider, for example, available information/ guidance supplied by:

British Medical Association (BMA) www.bma.org.uk

Medical Defence Union (MDU) www.the-mdu.com

Medical Protection Society (MPS) www.medicalprotection.org/uk

12.6 THE DUTY OF CONFIDENTIALITY: EXCEPTIONS TO THE

OBLIGATION

In the context of medical law the duty of confidentiality was considered in Hunter v Mann

([1974] QB 767) and more recently in the cases of W v Egdell [1990] 1 ALL ER 835

and R (on the application of S) v Plymouth City Council EWCA Civ 388, para 33 .

However it is clear that the duty of confidence is not absolute. There will be

circumstances where disclosure of confidential information can be justified.

.”







http://www.medicalprotection.org/uk



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In brief confidential information may be disclosed in certain limited circumstances:

where the person to whom the duty is owed consents to information being shared;

where the public interest in disclosure outweighs the public interest in the

maintenance of confidentiality;

where disclosure is required by a court order or other legal obligation.

[Note:- in considering whether information can be lawfully disclosed, regard must also

be had to HRA implications, in particular Article 8 (see below), and the DPA (see

below). In practical terms, however, it seems sensible to address the common law and

professional guidance first, since if disclosure can be justified in accordance with those

provisions, then it is likely to be justifiable in HRA and DPA terms too.]

12.7 CONSENT

12.7.1 Issues regarding express consent

Whether it is an ‘exception’ or something which defeats the existence of the

duty/obligation, the importance of the role of consent needs to be considered.

For consent to be valid the patient must:

(i) have capacity;

(ii) be given sufficient information for a decision to be reached;

(iii) the patient must act voluntarily.

You will note that in relation to the level of information that must be supplied to

satisfy (ii) this is not a particularly onerous requirement. For the consent to be

valid, information in broad terms should suffice.

There is GMC guidance on the issue of when ‘express consent’ should be sought.

In ‘Confidentiality’ (2009) paragraphs 33 to 35 deal with ‘disclosures for which

express consent should be sought.’ Paragraph 33 provides that:

“As a general rule, you should seek a patient’s express consent before

disclosing identifiable information for purposes other than the provision

of their care or local clinical audit, such as financial audit and insurance

or benefits claims.”

Thus, unless you are disclosing information in relation to a patient’s care or for

local clinical audit, express consent should be obtained. If express consent is

refused, you may still be able to disclose if you can establish a public interest

reason.




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Paragraph 34 deals with situations where doctors are asked to provide information

to third parties (for example, an insurer or employer) either following examination

or from existing medical records. It includes the requirement that the patient

should have “sufficient information” regarding the purpose and consequences of

the disclosure and that “relevant information cannot be concealed or withheld.” Ifthey wish the patient should be shown or given a copy of any report prepared

unless “disclosure would be likely to cause serious harm to the patient or anyone

else” or “disclosure would be likely to reveal information about another person who

does not consent.”

.

12.7.2 Implied consent

Can consent to disclosure of information ever be implied? Certainly the

professional guidance suggests this is the case.

The GMC guidance ‘Confidentiality’ (2009) has a section dealing with

‘circumstances in which patients may give implied consent to disclosure’. Read

paragraphs 25-32 of the guidance document.

Paragraphs 25-29 deal with the issues of sharing information in the healthcare

team or with others providing care. Paragraph 25 makes clear:

“Most patients understand and accept that information must be sharedwithin the healthcare team in order to provide their care. You should

make sure information is readily available to patients explaining that,

unless they object, personal information about them will be shared within

the healthcare team, including administrative and other staff who

support the provision of their care.”

Thus on the basis of this guidance, information can be shared on the basis of

implied consent.

The courts have continually stressed that care must be taken to limit the amount of

information disclosed to those “who need to know” and to ensure that the recipient of

that information understands the requirement of confidentiality, see W v Egdell [1990]

1 ALL ER 835 at page 850. See also paragraph 28 of the ‘Confidentiality’

guidance: “You must ensure that anyone you disclose personal information to

understands that you are giving it to them in confidence, which they must respect.”

12.8 PUBLIC INTEREST

Consider the following two situations. Firstly, A is diagnosed as HIV positive. He is

counselled by his health carer and this includes the advice that he should inform










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his wife of his condition, especially if they intend to continue to have unprotected

sexual intercourse. He refuses to do so. He dies. After his death A’s spouse

discovers that she is now HIV positive. Can she sue the health carer? Could she

argue that, in the public interest, the health carer should have ignored the

confidentiality between himself and her husband and disclose the information toher in order to protect her from such a harmful illness? Secondly, a health carer

diagnoses B, a long-distance lorry driver, to be going blind. He urges B to inform

the DVLA; B refuses to do so. Should the health carer inform the DVLA?

Possibly in both cases an argument could be made out for saying that the public

interest demands that there should be a breach of the confidentiality rule. The

difficulty is in defining “public interest”; it is suggested that the phrase should be

given a wide interpretation and on this basis if only one member of the public is

likely to be harmed then the public interest is affected. But it will always be a

balancing exercise that the health carer will have to perform: balancing the public

interest confidentiality of the patient against the public interest desire to protect the

public from harm. It is more than likely that, if the health carer performs this

exercise and places his thoughts on the records, an English court will not find him

or her liable for unauthorised disclosure.

There are public interest considerations which may justify disclosure of confidential

information. There are potentially competing public interest considerations:

(i) the public interest in maintaining confidences

(ii) the public interest in disclosing confidential material if the circumstances can justify

it.

In essence to justify disclosure, the public interest in disclosure must be stronger than

the public interest in maintaining the confidentiality.

12.8.1 Case law

Consider relevant case law regarding the public interest exception.

See Attorney-General v Guardian Newspapers (No 2) [1988] 3 All ER 545. This

case highlights the need for a balancing exercise to take place, see the following

comment per Lord Griffiths:

“This involves the judge in bal ancing the public interest in upholding the

right to confidence….against some other public interest that will be

served by the publication of the confidential material.”

See also Lord Goff:

“…although the basis of the law’s protection of confidence is that there is

a public interest that confidences should be preserved and protected by






183

the law, nevertheless that public interest may be outweighed by some

other countervailing public interest which favours disclosure.”

A key factor in deciding whether or not to disclose confidential information is

proportionality.

In X v Y [1988] 2 All ER 648 employees of a health authority had supplied

information from hospital records to a newspaper reporter which identified that two

doctors with AIDS were working in general practice. A general article was

published in the newspaper regarding doctors with AIDS practising in Britain. The

newspaper wished to publish a further article which identified the doctors. An

injunction was sought to restrain the defendants from publishing the identity of the

two doctors. The issue to be addressed was whether the publication of the

information could be justified in the public interest. The following issues were

identified:

“On the one hand there are the public interests in having a free press

and an informed public debate; on the other, it is in the public interest

that actual or potential AIDS sufferers should be able to resort to

hospitals without fear of this being revealed….I accept that there is

some public interest in knowing that which the defendants seek to

publish….in my judgment those public int erests are substantially

outweighed when measured against the public interests in relation to

loyalty and confidentiality both generally and with particular reference to

AIDS patients’ hospital records.”

So what ‘public interest’ will justify disclosure? In W v Egdell [1990] 1 ALL ER 835

proceedings were brought against a doctor following disclosure of a psychiatric

report without the patient’s consent. The patient was detained in a secure hospital

due to the threat he posed (having killed five people and wounded two people).

The defendant, a consultant psychiatrist, was asked to prepare a report by the

patient’s solicitors to support an application for discharge/ transfer. The report

opposed the discharge/ transfer on the basis of the conclusions drawn about the

patient (for instance his interest in firearms). The patient’s solicitors therefore

withdrew the application. The defendant contacted the medical director of the

hospital and a copy of the report was provided on the basis it was considered

beneficial regarding further treatment. There was also concern regarding future

discharge/ transfer. A copy was also sent to the Secretary of State and then to the

mental health review tribunal. When the patient discovered the report had been

disclosed without permission he sought an injunction and damages.

It was held (at p.846) that:











184

“The balance of public interest clearly lay in the restricted disclosure of

vital information to the director of the hospital and to the Secretary of

State who had the onerous duty of safeguarding public safety.”

Also, per Bingham LJ at p.851:

“the crucial question in the present case was how, on the special facts ofthe case, the balance should be struck between the public interest in

maintaining professional confidences and the public interest in

protecting the public against possible violence.”

At pp.852-853 it was held:

“There is one consideration which in my judgment, as in that of the

judge, weighs the balance of public interest decisively in favour of

disclosure. It may be shortly put. Where a man has committed multiple

killings under the disability of serious mental illness, decisions which

may lead directly or indirectly to his release from hospital should not be

made unless a responsible authority is properly able to make an

informed judgment that the risk of repetition is so small as to be

acceptable. A consultant psychiatrist who becomes aware, even in the

course of a confidential relationship, of information which leads him, in

the exercise of what the court considers a sound professional judgment,

to fear that such decisions may be made on the basis of inadequate

information and with a real risk of consequent danger to the public is

entitled to take such steps as are reasonable in all the circumstances to

communicate the grounds of his concern to the responsible authorities.”

Thus confidential information can be disclosed where there is a ‘real risk’ of

‘danger to the public’. It should be stressed however that (as was the case in W v

Egdell ) disclosure should be made ‘to the responsible authorities’. For instance,

disclosure to a newspaper may not be permitted.

This was quite an ‘extreme’ example, where it was relatively easy to see the public

interest element should weigh heavily in favour of disclosure. But how far reaching

can this public interest exception be? To what extent will other third party interests

outweigh the public interest in confidence?

Also, in such a situation the ‘public interest’ justification would provide the clinician

with a power to disclose rather than impose an obligation. If Dr. Egdell had not

disclosed the information and W then injured a member of the public, a legal action

by the injured person would not have been successful. See later for further

discussion of whether there are any circumstances where an injured third party

could bring an action against a clinician where, for example, risks posed by the

patient were not disclosed and the third party suffers harm as a result.




185

Other cases to note:

R v Crozier [1991] Criminal. LR.138

Hay v University of Alberta Hospital [1991]; X v Y [1988].

H v N (a Health Authority) [2001];

C v Dr A.J. Cairns [2003]

Ackroyd v Mersey Care NHS Trust [2003].

12.8.2 GMC guidance: ‘Public inter est’ justification

The GMC guidance ‘Confidentiality’ (2009) acknowledges the balancing act that

would have to be undertaken when deciding whether disclosure was appropriate.

See paragraphs 36-39 for the general position regarding disclosure in the public

interest. Paragraph 36 provides:

“Confidential medical care is recognised in law as being in the public

interest. However, there can also be a public interest in disclosing

information…”

Thus, under paragraph 37:

“Personal information may, therefore, be disclosed in the public interest,

without patients’ consent, and in exceptional cases where patients havewithheld consent, if the benefits to an individual or to society of the

disclosure outweigh both the public and the patient’s interest in keeping

the information confidential.”

You should still try to seek consent (unless this is not practicable) and should

consider whether the information could be anonymised (see paragraph 38).

12.8.3 GMC guidance: Disclosures to protect the patient/ to protect others

Read paragraphs 51-56 of the GMC ‘Confidentiality’ guidance.

What is the position where a patient with capacity refuses to consent to disclosure

even where this puts the patient at risk of harm? See paragraph 51:

“…you should usually abide by a competent adult patient’s refusal to

consent to disclosure, even if their decision leaves them, but nobody

else [my emphasis], at risk of serious harm.”

If somebody else could be put at risk (for example, a domestic violence case where

children are also potentially at risk) paragraph 53 would come into play:

“Disclosure of personal information about a patient without consent may

be justified in the public interest if failure to disclose may expose others

to a risk of death or serious harm.” [my emphasis]

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186

Paragraph 55 goes on to explain how disclosure can be justified where a failure to

disclose “leaves others exposed to a risk so serious that it outweighs the patient’s

and the public interest in maintaining conf identiality.”

Note, even where a ‘public interest’ justification exists consent should still be

sought or the patient should be informed of the intent to disclose where possible.

12.8.4 GMC guidance: Supplementary guidance on specific issues

Note the GMC has also issued specific supplementary guidance on the following

issues:

Reporting concerns about patients to the DVLA

Disclosing records for financial and administrative purposes

Reporting gunshot and knife wounds

Disclosing information about serious communicable diseases

Disclosing information for insurance, employment or similar purposes

Disclosing information for education and training

Responding to criticism in the press.

12.8.5 NHS Code of Practice: Public interest

The NHS guidance regarding confidentiality also includes reference to public

interest issues (see Confidentiality: NHS Code of Practice (November 2003.

Examples of where disclosure may be necessary to protect the public are set out at

p.35 of the Code (see figure 7). These include disclosure on the grounds of serious

crime and national security or risk of harm.

Identifying which circumstances will justify public interest disclosure is a difficult

task. The Department of Health has recently issued supplemental guidance

(Confidentiality: NHS Code of Practice- supplemental guidance: public interest

disclosures, November 2010) to assist with the decision making process. The

guidance is said to expand upon the principles set out in the 2004 Code of

Practice.

At paragraph 2 of the 2010 supplemental guidance, it is stated that there are

certain considerations which should be taken into account:

“Extent of the information which is to be disclosed- it will be easier to justify

disclosure of demographic data or the fact that someone attended a clinic

rather than detailed health information.








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12.9.6 Terrorism Act 2000

See section 19 which imposes a duty to disclose if it is believed that an offence has

been committed, otherwise a criminal offence is committed by the person failing to

disclose.

12.9.7 Public Health (Control of Disease) Act 1984

Section 10 authorises the disclosure of notifiable diseases such as cholera etc.

12.10 DISCLOSURE IN THE COURSE OF LITIGATION

Disclosure of information about the patient may be sought by the patient/claimant’s

lawyer from the defendant Trust in anticipation of or during litigation. It is vital thatany communication requesting the records from the Trust etc. be accompanied by

the patient’s express consent to such a disclosure. At the same time the lawyer

should make sure all communications are directed to him and not to his medical

adviser. Usually requests for disclosure of medical records in litigation will be made

under the DPA (see the following chapter).

If the defendants refuse to give voluntary disclosure then an application may be

made to the court under sections 33(2) and 34(2) of the Supreme Court Act 1981

for an order for disclosure. The order may be obtained not only against the

defendants but also against a third party, for example, if the defendant is a

pharmaceutical company, the order may be sought against the Prescription Pricing

Authority. (The legal practitioner should be aware that valuable information may

also be obtained from other sources, such as inquests (where applicable) (see R v

HM Coroner for N Humberside ex parte Jamieson [1994), and the NHS complaints

system.

The defendant may refuse disclosure on the grounds that the records are subject

to lawyer / client privilege and should therefore remain confidential, i.e.

communications between a solicitor and his client or communications between a

lawyer and a third party for the purposes of the litigation. Where a document has

two purposes, one of which is to assist in the litigation and the other is for the

client’s own use then, for the document to remain privileged, the dominant purpose

for which it was prepared must be to assist in the litigation. To illustrate this point

see Waugh v British Railways Board (1980), Lask v Gloucester H A The Times 13

Dec 1985, and Lee v South West Thames HA [1985].

Disclosure may also be refused on the ground that revelation would be

embarrassing to the defendant or damaging to the public interest (see S35 of the

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190

Supreme Court Act 1981). In Re HIV Haemophiliac Litigation (1990) 140 NLJ 1349

the claimants sued the Department of Health for becoming infected with the HIV

virus. The defendant argued that document disclosure should be refused on the

grounds that it would be damaging to the public interest in that it would reveal

communications between government ministers. This argument was rejected; itwas held to be more important that the claimants were given the opportunity of a

fair trial of the matter.

If either of the above situations arises then a determination of this issue will have to

be arrived at before the trial of the main issue(s).

12.11 ANONYMISED DATA

The case of R v Department of Health, ex p. Source Informatics Ltd [2000] 1 All ER 786

considered the issue of whether disclosure of anonymised patient information could

constitute a breach of confidence. The case concerned use of anonymised information

supplied to a data protection company by pharmacists. The information related to GPs

prescriptions. At first instance, the court held that disclosure of anonymised information

without consent could constitute breach of confidence. The judge considered public

interest issues and considered that patients may not want information from their

prescription forms to be used.

The Court of Appeal took a different view.Simon Brown LJ held (at p.797):

“What interest, one must ask, is the law here concerned to protect? In my

judgment the answer is plain. The concern of the law here is to protect the

confider’s personal privacy. That and that alone is the right at issue in this

case. The patient has no proprietorial claim to the prescription form or to the

information it contains….This appeal concerns, as all agree, the application of

the broad principle of equity. I propose its resolution on a similarly broad

basis….pharmacists’ consciences ought not reasonably to be troubled by co-

operation with Source’s proposed scheme. The patient’s privacy will have

been safeguarded not invaded. The pharmacist’s duty of confidence will not

have been breached.”

See also H (a health care worker) v Associated Newspapers Limited and H (a health care

worker) v NHA [2002] EWCA Civ 195

12.12 DATA PROTECTION ACT 1998

In addition to considering the common law position (above) and the impact of HRA

(below), in order to fully understand the obligations in relation to confidentiality, we also

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need to consider the application of the Data Protection Act 1998 (DPA).The provisions of

the act are complex and cover all manner of data and its processing. We will only

consider its provisions and their application to medical information briefly here. For further

information on the DPA, see the Information Commissioner’s (ICO) web site, and in

particular, the ICO ‘Data Protection Act 1998 Legal Guidance’.

Essentially the DPA provides certain protections in relation to personal data. This

includes the obligation on those ‘controlling’ such data to do so in accordance with 8 key

principles. In addition it also provides individuals a right of access to certain data held

about them.

Considering (very briefly) the implications of the DPA the following points should be

noted.

12.12.1 Terminology

The act contains a number of key terms. The act applies to all ‘personal data’-

which is data referable to a living individual, the ‘data subject’. Further medical

information will usually be ‘sensitive personal data’, which means additional

safeguards apply. The safeguards are contained in the 8 ‘principles’ and apply any

time data is ‘processed’. This is a very wide definition and will include almost

anything from filing, amending, updating records, manually or on computer, as well

as to allowing access to the records. The principles apply to the ‘data controller’,usually the relevant NHS Trust in this context, when processing information.

12.12.2 Principles

As considered above, the DPA imposes certain safeguards through requirement to

process data in accordance with the 8 principles. In addition schedules 2 and 3

(where the data is sensitive personal data) of the DPA include additional criteria

which must be satisfied for data to be lawfully processed. Essentially for lawful

processing at least one of a list of conditions in schedule 2, and where data is

‘sensitive’, schedule 3, must be satisfied. Consent is not necessarily required,

although consent (‘express consent’ for schedule 3) is one of the categories for

both schedules.

Arguably the most important of those principles, practically speaking, is the first

principle, that of ‘fair and lawful processing’. As may be self evident this includes a

number of obligations, including the requirement that any processing be compliant

with common law and HRA provisions.






193

Establishing capacity, therefore, is important. In relation to ‘older’ children the

confidentiality issues seem most likely to arise in relation to contraceptive advice/

treatment and abortion. For children under 16, the position in relation to consent to

treatment was considered in the case of ‘Gillick’ Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, (see chapter on consent). For the

purposes of the Data Protection Act and rights of access, there is a general

presumption that a child of 12 is ‘mature’ enough to exercise their right of access.

The Gillick decision was re-visited in the case of R (on the application of Axon) v

Secretary of State for Health [2006] All ER (D) 148 (Jan) . Part of the claimant’s

claim was that “a doctor was under no obligation to keep confidential advice and

treatment which he proposed to provide to a young person under the age of 16 in

respect of contraception, sexually transmitted infections and abortion and therefore

should not provide such advice and treatment without the parents’ knowledge

unless to do so would or might prejudice the child’s physical or mental health so

that it was in the child’s best interests not to do so.” The claimant challenged the

Secretary of State’s guidance document ‘Best Practice Guidance for Doctors and

other Health Professionals on the Provision of Advice and Treatment to Young

People under Sixteen on Contraception, Sexual and Reproductive Health’ (the

2004 Guidance). The claimant sought a declaration that doctors and other health

professionals have “a duty to consult the parents” before advising/treating

regarding contraception, sexually transmitted infections or abortions and that the

parents “have a right to be informed about” proposed provision of such

advice/treatment.

Mr. Justice Silber acknowledged (see paragraph 7) that this raised a tension

between two principles:

(i) a competent child is an autonomous person and is entitled to confidentiality;

and

(ii) the parent has responsibility for the young person’s health and moral

welfare.

He also acknowledged:

“There is also a significant public policy dimension because there is

evidence that without the guarantee of confidentiality, some of these

young people might not seek advice or treatment from medical

professionals on sexual matters with potentially disturbing

consequences.”





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For various reasons Mr. Justice Silber did not agree that there should be an

exception to the duty of confidence, at paragraph 62:

“the very basis and nature of the information which a doctor or a

medical professional receives relating to the sexual and reproductive

health of any patient of whatever age deserves the highest degree ofconfidentiality and this factor undermines the existence of a limitation

on the duty of disclosure…”

and at paragraph 80 Mr. Justice Silber concluded:

“In the light of this change in the landscape of family matters, in

which the rights of children are becoming increasingly important, it

would be ironic and indeed not acceptable now to retreat from the

approach adopted in Gillick and to impose additional new duties

on medical professionals to disclose information to parents of their

younger patients.”

The claimant also had argued that she had a right to be notified on the basis of

article 8 of the European Convention of Human Rights (article 8(1) ‘Everyone has

the right to respect for his private and family life, his home and his

correspondence’) and that the relevant 2004 guidance was unlawful.

At paragraph 132 Mr. Justice Silber concludes:

“…parents do not have article 8 rights to be notified of any advice of a

medical professional after the young person is able to look after

himself or herself and make his or her own d ecisions.”

Suggested reading

Hall, “Children’s Rights, Parents’ Wishes and the State: the Medical Treatment of

Children” Fam Law 36(317) 1 April 2006

Samiloff, “Knowing all- a parent’s prerogative?” 156 NLJ 570 (7 April 2006)

12.13.2 Children who lack capacity to consent to treatment

There appears to be some academic dispute regarding the nature and extent of the

confidentiality obligations in relation to the child who lacks capacity to give consent

to treatment, but who seeks confidentiality and requests that their parents should

not be informed.

See Montgomery, Health Care Law, 2nd

Ed, Oxford University Press, 2003, at

pp.308-311.




195

Montgomery suggests (at p.309) that the reasoning in Gillick implies that if a child

can understand the obligation of confidence, this can impose an obligation of

confidence, even if the child does not understand the relevant treatment. He

suggests this view can be supported “based on the fact that the preconditions of

the legal obligation of confidence are made out in relation to children who claim theright to secrecy on exactly the same basis as in relation to adults.” He also notes

that it is apparent from Gillick that:

“children can take decisions which they are competent to make as

they reach that stage of competence and not at a single radical rite

of passage whereby they become adults for all purposes. There is

no reason of principle why the obligation of confidence cannot be

created independently of any later treatment decision.”

This argument runs counter to other academics who argue only a capable child is

owed a duty of confidentiality..

What is the position in relation to young children who neither have capacity to

consent to treatment or capacity to appreciate the notion of confidence. Here the

role a person with parental responsibility is significant. Parental rights do not exist

for the benefit of the parent, they exist for the benefit of the child. For instance, a

parent could consent to information being disclosed and exercise DPA rights on

behalf of the child. Note, however that this does not mean a child has no

protection. The exercise of parental responsibility is expected to be done

responsibly and in accordance with the child’s interests. If a person with parental

responsibility acts against the interests of the child an application to court for a

prohibited steps order (under section 8, Children Act 1989) can be made to prevent

this.

12.13.3 Professional guidance

o GMC ‘Confidentiality Guidance’

The GMC document ‘Confidentiality’ (2009) offers some limited guidance in relation

to confidentiality and children.

Paragraph 58 of the ‘Confidentiality’ guidance directs you to the GMC’s

guidance in relation to children generally ‘0-18 years: guidance for all

doctors’.

Paragraph 61 of the ‘Confidentiality’ guidance provides:

“If a patient who lacks capacity asks you not to disclose

personal information about their condition or treatment, you




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should try to persuade them to allow an appropriate person

to be involved in their consultation. If they refuse, and you

are convinced that it is in their best interests, you may

disclose relevant information to an appropriate person or

authority.”

Paragraph 63 deals with ‘disclosures when a patient may be a victim of

neglect or abuse.’ It provides:

“If you believe that a patient may be a victim of neglect or

physical, sexual or emotional abuse, and that they lack

capacity to consent to disclosure, you must give information

promptly to an appropriate responsible person or authority, if

you believe that the disclosure is in the patient’s best

interests or necessary to protect others from a risk of seriousharm.”

GMC ‘0-18 years: guidance for all doctors’

Paragraphs 45-52 of the ‘0-18 years’ guidance are of particular relevance. For

instance, paragraphs 47-50 consider the public interest justifications for disclosure

that apply in relation to children.

GMC ‘Protecting children and young people: the responsibilities of all

doctors’

The GMC has recently published additional guidance which focuses on how to

protect children and young people from abuse and neglect. This guidance was

published in July 2012 and came into effect on 3.9.12. Paragraphs 28-60 of this

guidance focus on issues regarding confidentiality and sharing information.

Paragraph 31 states that public interest can be used to justify sharing information

“if the benefits to a child or young person that will arise from sharing theinformation outweigh both the public and the individual’s interest in keeping the

information confidential.

The obligation to share information where there is a concern that a child is at risk of

abuse/neglect is framed quite strongly. A decision not to share information would

have to be justified (see paragraphs 39-41). The guidance does state that

consent should be sought first “unless there is a compelling reason for not doing

so” such as if “asking for consent may increase the risk of harm to the child, young

person, you or anyone else” (see paragraph 34).




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12.14 ADULTS WHO LACK CAPACITY

12.14.1 The Impact of the Mental Capacity Act 2005

Where a person lacks capacity to consent to any disclosure, then difficult issues

can arise. In the case of a child, someone with parental responsibility (PR) will

(may) be able to consent. With adults the position is more complex. Until

implementation (in October 07) of the Mental Capacity Act 2005 (MCA) no one

could take healthcare/ welfare decisions on behalf on another adult. As the MCA

has now been fully implemented it is important to consider what impact it will have

for confidentiality. Although the MCA does not specifically refer to confidentiality as

such it does set out a statutory legal framework for decision making for those who

lack capacity and you should refer back to this and in particular sections 2, 3 and 4

MCA. Once it has been established however that a person lacks capacity, then

certain acts can be carried out under section 5 of the MCA. To what extent the

disclosure of information would fall within section 5 is not clear though the

application of section 5 has been widely interpreted (see Code chapter 6). The

MCA Code of Practice then continues at chapter 16 to assess the impact of the Act

for confidentiality.

The Code reiterates the basic legal framework, including reference to the common

law duty of confidentiality, HRA and DPA. It then considers the position in relationto ‘proxy decision makers’, LPAs and Deputies (see s 9-11 MCA). The Code

suggests that a proxy decision maker will be entitled to access information relevant

to the decision they are empowered to make, subject to certain limitations (see the

DPA position discussed later). In relation to others, paragraph 16.19 refers to

disclosure of information by healthcare and social care staff ‘only when it is in the

best interests of the person concerned to do so, or when there is some other,

lawful reason for them to do so.’

Information disclosed should always be limited to that which it is necessary for the

person to know, and their will be obligations of confidentiality on the recipient of the

information. In cases of dispute an application can be made to the Court of

Protection.

See the case of Stevens v Plymouth City Council [2002] EWCA Civ 388 , para

33 for consideration of the position in relation to disclosure in the context of the

Mental Health Act 1983, and the ‘competing’ rights of mother and son.

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Reference is again made to the new GMC ‘Confidentiality’ guidance. Paragraphs

57-63 are of particular relevance. The new guidance has clearly been drafted to

take into account the MCA provisions. See for example paragraph 60 which

stresses the need to consider whether the lack of capacity is permanent or

temporary (and whether the disclosure decision could wait if temporary), evidence

of previously expressed preferences and the views of anyone the patient asks you

to consult...

Paragraph 61 provides:

“If a patient who lacks capacity asks you not to disclose personal

information about their condition or treatment, you should try to persuade

them to allow an appropriate person to be involved in their consultation.

If they refuse, and you are convinced that is essential in their best

interests, you may disclose relevant information to an appropriate person

or authority.”

Disclosure must therefore be justified based on best interests. Note also that only

relevant information can be disclosed and this must be to an appropriate person or

authority.

Even where a patient lacks capacity, relatives and carers are not automaticallyentitled to full access to the patient’s medical records. See paragraph 62 on this

point:

“You may need to share personal information with a patient’s relatives,

friends or carers to enable you to assess the patient’s best interests. But

that does not mean they have a general right of access to the patient’s

records or to have irrelevant informati on about, for example, the patient’s

past healthcare.”

As highlighted in 3.1.4, there is an obligation under paragraph 63 to disclose

information to “an appropriate responsible person or authority” where “the patient

may be a victim of neglect or physical, sexual or emotional abuse, and that they

lack capacity to consent to disclosure.” If a decision is made not to disclose, this

must be carefully justified.

Read paragraphs 11-15 of annex B of the Department of Health document

‘Confidentiality: NHS Code of Practice’ November 2003 which sets out guidance

where ‘patients are unable to give consent.’ The need to justify disclosure is again

stressed.




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12.15 CONFIDENTIALITY AND DECEASED PATIENTS.


Professional guidance on this issue seems clear. In the GMC document

‘Confidentiality’ (2009) guidance is set out regarding disclosure of personal information

after a patient’s death. At paragraph 70 it is stated:

“Your duty of confidentiality continues after a patient had died. Whet her and

what personal information may be disclosed after a patient’s death will depend

on the circumstances. If the patient has asked for information to remain

confidential, you should usually respect their wishes.”

If the patient had made no such request, paragraph 70 provides guidance regarding the

factors to be taken into account should a request for information be made. Paragraph

71 sets out circumstances where disclosure should take place.

12.15.2 Legal position

The nature and extent of the legal obligations is less straightforward.

At paragraphs 4.105-4.106 of the Law Commission Report referred to above the

position under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 is

set out. Consider the following example given in paragraph 4.105:

“where X is in breach of an obligation of confidence which he owes to Y and Y

dies before he has started or concluded proceedings for breach of confidence,

the personal representatives of Y may bring, or as the case may be, continue an

action for breach of confidence against X in respect of his breach of confidence

vis-à-vis Y.”

Two recent decisions have pointed towards a legal obligation of confidence after death:

Bluck v Information Commissioner & Epsom & St Helier University NHS Trust

EA/2006/0090

Lewis v Secretary of State for Health [2008] EWHC 2196

12.16 REMEDIES FOR A WRONGFUL DISCLOSURE?

An injunction and/or damages. For these two remedies, the normal rules as laid down

in the American Cyanamid case [1975] are applicable.

As above, a breach of the DPA will also give rise to a claim.

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12.17 CAN A THIRD PARTY SUE FOR NON-DISCLOSURE?

If a health carer decides not to disclose information he will (generally) not be liable

to a third party who is subsequently harmed by the patient. (See Smith v

Littlewoods Organisation [1987]). With the development of human rights and the

concept of duties to disclose, it will be interesting to see how this area develops.

However this is not necessarily the position in the United States of America – see the

earlier reference to:

* Tarasoff v Regents of the University of California (1976) 551 P. (2d) 334;

* Bradshaw v Daniel (1994) Med.L.Rev. 237

* Webb v Jarvis (1991) 575 NE (2d_ 992)

READING:

Stauch & Wheat: Text, Cases and Materials on Medical Law &

Ethics (5th ed) (Routledge) Chapter 5

Pattinson Chapter 6Jackson Chapter 7

Brazier Chapter 4

Khan/Robson/Swift Chapter 1

Montgomery Chapter 11

Mason/McCall Smith (2013) Chapter 8

Guidance:

NHS Confidentiality Code of Practice GMC

Guidance referred to in chapter

Code of Practice to MCA

Nov 2003( on D o H website)

As referred to in chapter

Chapter 16

SUMMARY

At the end of this chapter you should understand:

* what is meant by confidentiality;

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* when a health carer may legally disclose information about his patients;

* the remedy the patient may have for an unauthorised disclosure.




202


1. Mention the circumstances in which a health carer may legally disclose a

patient’s confidential information.

2. What is meant by a claim in equity for breach of confidential information?

3. What is meant by a disclosure in the public interest?




203

NOTES




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CHAPTER 13

ACCESS TO MEDICAL RECORDS

13.1 INTRODUCTION

A patient’s medical records are not the property of the patient; rather they are owned

(generally) by the NHS Trust (see R v Mid Glamorgan FHSA ex p Martin [1995] and the

reader should note that some authors make a distinction between the paper on which the

records are written and the information within the records—the latter “belonging”, it is

said, to the patient). As a result the patient had no right in English law to see his own

records; his health carer could, in a benevolent mood, allow him to have sight of such or

he could see the records in the course of any litigation he was pursuing. This has

however changed with the introduction of the DPA 1998.

The topic of medical records has already been touched upon, because when one talks of

medical confidentiality, essentially one is talking of keeping the patient’s medical records

confidential. But while Chapter 14 focuses on disclosure of those records to a third party,

this chapter will reflect on the patient himself /herself getting hold of his/her own medical

records (what he/she chooses to do with them subsequently is a matter for the patient), inother words rights of access.

13.2 DISCLOSURE TO THE PATIENT/CLIENT

This may be done voluntarily on the part of the health carer in possession of the records.

Statutory provisions now exist to enable (generally) a patient to see (have access to) his

own records subject to whatever limitations the statute itself may impose.

13.2.1

The legislation dealing with such access includes/ included the Data Protection Act

1984 (dealing with computerised medical records- now replaced by the DPA 1998),

the Access to Personal Files Act 1987, the Access to Medical Reports Act 1988 (re

employment and insurance), the Access to Health Records Act 1990 (for non-

computerised records made since 1/11/91, now repealed by DPA 1998, except in

so far as it relates to the deceased). But the most important provision is the Data

Protection Act 1998.

13.2.2 Data Protection Act 1984

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This Act allowed a patient to see all of his computerised records although access

could be refused on the grounds that it would damage the physical or mental

health of the patient or that it identified a third party whose consent had not been

obtained.

13.2.3 Access to Personal Files Act 1987 / Access to Medical

Reports Act 1988 (S1)

The patient is permitted to see his records in certain circumstances, for example

where a report is prepared for his employer.

13.2.4 Access to Health Records Act [1991]

This Act allowed patients access to all their health records post November 1991.

But again there are exceptions e.g. there is no access where there is a genuine

risk to the physical or mental health of the applicant or a third party or if access

would reveal information about any individual other than the patient. This Act has

been repealed in part by the 1998 Data Protection Act except in relation to

deceased patients. Consequently it only has application to the seeking of

disclosure of records relating to a deceased patient.

13.2.5 The Data Protection Act 1998

We have already considered the DPA in chapter 14 above. In terms of access to

records, the most significant change introduced by this Act was that the application

of the 1984 act would effectively be extended to all medical records.

Section 7 of the DPA establishes the right of every individual (subject to stated

exceptions), to require the relevant data controller to confirm the nature and extent

of the data being held and the recipients to whom they are or may be disclosed.

Any person may also be entitled to a copy of the information in an intelligible form.

The data controller is required to supply the information within 40 days of a written

request (and payment of the appropriate fee).

Although s. 7 confers a right of access, the right is modified in certain

circumstances by the DATA PROTECTION (SUBJECT ACCESS MODIFICATION)

(HEALTH) ORDER 2000 (‘The Order’). This effectively restricts access/ disclosure,

where such disclosure ‘would be likely to cause serious harm to the physical or

mental health of the data subject or any other person’.

In relation to children, no age limits as such are provided within the act. What about

a child wishing to access their own records? A capable child should be able tomake their own access request. Further, general guidance is ‘that by the age of 12

a child can be expected to have sufficient maturity to understand the nature of the




206

request’, and make a request. However ‘a child may, of course, reach sufficient

maturity earlier and it will be a question of fact in each case’ (ICO Guidance, para.

4.1.6).

It is important to note at the outset that the right of access under the DPA is onlyconferred on the data subject (eg the patient) themselves. It does not provide any

authority to access ‘third party’ information (eg about a person other than the

person making the request). Special rules apply to third party information

introduced by the above Order . Consequently NHS Trusts need to take care when

disclosing records that information about other patients, for example, is not

included.

Although the DPA does not provide any authority for someone to access

information about someone else, in certain circumstances, namely in relation to

children and incapable adults, it may be that authority to access information can be

derived from other legal provisions. Examples may be the Children Act 1989, in

relation to someone with parental responsibility for a child, or in relation to an

incapable adult, via the court of protection provisions or post October 07, the MCA

2005. In such circumstances the DPA introduces further restrictions on access.

This essentially restricts disclosure where the child/ incapable adult has provided

information expressly/ impliedly on the basis it would not be shared with the person

seeking such disclosure.

For example where a parent may have the right legally to access their child’s

health records since they have parental responsibility for them, then this right may

be restricted in accordance with the Order, if the child has provided the information

on the basis that any such information would not be disclosed to that parent.

We have already noted above that these provisions do not apply to the deceased

and access to a deceased patient’s records will have to be sought under the

Access to Heath Records Act, noted above.




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READING:

See reading for Confidentiality chapter


Ethics (5th ed) (Routledge) Chapters 3,4 & 9

Brazier Pp 93-94

Khan/Robson/Swift Chapter 1

Mason/ McCall Smith Chapter 8


SUMMARY


* The significance of legislation such as the Data Protection Act 1998;

* When, as the patient’s legal advisor, you may not see your client’s medical

records;

* When, as the patient, you may not see your medical records.




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1. As a lawyer how would you go about getting your client/patient’s records from

the defendant Trust?

2. What arguments might a Trust use to avoid sending the lawyer the records?

3. When can a patient see his/her own records?




209

NOTES




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CHAPTER 14

THE BEGINNING OF LIFE

14.1 CONTRACEPTION

(a) This can be achieved by surgical methods such as (voluntary) sterilisation and

vasectomy, both of which should be regarded as forms of medical treatment and

therefore the health carer may be liable in contract or negligence or trespass.

(Refer back to your trespass and clinical negligence notes and in particular to such

matters as consent, duty of care, causation, damages and note the importance of

contract law in these areas, since more and more people are likely to have

sterilisations etc. done privately). What may be of greater significance here is the

fact that the health carer is under a legal duty to warn the patient of the risks

associated with a particular form of contraception; failure to do so may well result in

a claim in negligence.

See Walkin v South Manchester H.A. [1995], Allen v Bloomsbury H.A. [1993] and

McFarlane v Tayside Health Board [2002], Rees v Darlington Memorial Hospital

[2003] UKHL 52.

◦ Compulsory sterilisation will raise issues of consent or lack of consent as well

as human rights issues. There is a strong argument for saying that the lack of

consent in sterilisation cases is a denial of the patient’s human rights, but there

is growing evidence that treatment in a patient’s best interests will not infringe

their human rights: and in some cases compulsory sterilisation will be effected

because it is deemed to be in a patient’s best interests. See cases such as Re

B (A Minor) [1987] 2 All ER 206 A Local Authority v Mrs A and Mr A [2010]EWHC 1549 and the MCA s.4 and new case

(b) Non-surgical methods of contraception:

(i) condoms;

(ii) IUD (intra uterine device - coil);

(iii) long acting injectable contraceptive (Depo-Provera);

(iv) female contraceptive pill (male contraceptive pill?);

(v) post-coital birth control (morning after pill);

(vi) Abortion pill (RU486).

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Apart from (i) above, all the other methods could involve the services of a health

carer, in which case issues of consent, care, counselling etc are again all relevant.

14.2 CONTRACEPTION OR ABORTION?

Are methods which are described as contraceptive truly contraceptive? Or might they be

abortive? Take the IUD, as an example. This acts to prevent implantation of the fertilised

ovum and can be taken up to 72 hours after unprotected sex. Is this contraceptive? Yes,

if one were to argue that at day 3 there is no ‘life’ which is likely to be affected. But if ‘life’

was to begin at day 1, then the IUD may be seen as aborting that life, in which case the

law on abortion would become relevant.

So, the issue now is: when does life begin? Some argue for day 1, others day 10

(implantation), some for day 15/16 (appearance of the ‘primitive streak’), others when the

baby is born, still others when certain features appear, for example lungs. Although at

present there is no definitive answer, an appreciation of what the argument entails is vital

as newer or more sophisticated forms of contraception come on the market. (Read

(1984) Criminal Law Review p 608). If the ‘contraception’ is abortive, then leg al protection

will have to be sought under the Abortion Act 1967 as amended by the Human

Fertilisation and Embryology Act 1990 (HFE act), since offences under the Offences

Against the Person Act 1861 ( sections 58 and 59) will (otherwise) have been committed.

In R v Secretary of State for Health ex p Smeaton [2002] EWHC 610 , the Society for the

Protection of the Unborn Child sought judicial review of a statutory instrument which

permitted the sale of the morning after pill to under 16 year olds under the supervision of

a pharmacist. The Court held that miscarriage in sections 58 and 59 of the 1861 Act

presupposed that implantation of a fertilised egg had already taken place , and since the

morning after pill acted on an egg which was not yet fertilised then no offence was being

committed; therefore no judicial review. “There is no miscarriage if a fertilised egg is lost

prior to implantation. Current medical understanding ……..excludes result brought about

by the pill, the mini-pill or the morning after pill.”(Munby J)

READING:


Ethics (5th ed) (Routledge) Chapter 7

Pattinson Chapters 7-9

Jackson Chapter 14





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Brazier Chapters 11 & 12 & pp 354-356

SUMMARY

After this part of the chapter you should be able to:

* apply the principles of negligence to claims associated with failed

contraceptive devices;

* possibly decide when life begins;

* decide what are contraceptive devices and what are abortive measures.




213

14.3 SELECTIVE FETICIDE OR SELECTIVE REDUCTION

This occurs where, after being treated with a fertility drug, the woman produces a number

of foetuses but some are destroyed (or stored) and she continues to term where she

delivers the surviving child or children. What is the legality of this selective reduction?

See s 37(5) of HFE Act 1990 which introduced new wording into s. 5(2) of the Abortion

Act, and states that such a procedure must now be related to one of the grounds for a

lawful abortion; otherwise it is illegal.

14.4 CHILDLESSNESS

It has to be accepted that childlessness is a feature of many relationships. Today the

technology does exist to assist childless couples to achieve the family unit they long for.

But the techniques available raise significant ethical issues, the major one being that the

scientists are playing God. In addition to this and other ethical issues, there are important

legal problems which need to be considered.

14.4.1

Does anyone have a legal right to have a family? Should a couple be allowed

access to all available techniques without reference to such conditions as age?

Are such conditions legal? According to cases like R v Sheffield Health Authority

ex.p. Seale (1994) and R v Ethical Advisory Committee of St Mary’s Hospital ex pHarriott [1988] the answer is, no. Essentially the decision will be one for individual

fertility clinics to make in accordance with the code of practice issued by the HFEA

(Human Fertilisation and Embryology Authority see below). Although judicial review

is available in respect of decisions not to admit someone to an IVF programme, the

conditions in Harriott’s and Seale’s case, namely, looking at her background and

lifestyle and age, were considered to be reasonable conditions. See also s 14 of

the new Human and Fertilisation and Embryology Act 2008 (and guidance in the

HFA Code), which requires an assessment to be made of ‘the welfare of any child

who may be born as a result of the treatment (including the need of that child for

supportive parenting (replacing the wording under the 1990 Act “the need of that

child for a father”) and of any other child who may be affected by the birth’. It could

be that to succeed an applicant would have to show that there was “Wednesbury

unreasonableness” in dealing with the request for IVF treatment. However might

an applicant now use the Human Rights Act (Articles 12 and/or 8) to argue a right

to a family? Might conditions such as age and background be seen as an

infringement of these Articles?















214

14.4.2 Techniques resorted to when childlessness is present include:

AID – Artificial Insemination by Donor. Note until recently the anonymity of the

donor was respected—see section 31(3) of the 1990 Act – but following the Human

Fertilisation and Embryology Authority (Disclosure of Donor Information)

Regulations 2004, information can now be provided to someone aged 18 and

over who was born as a result of assisted conception services, although the donor

will still not be legally and financially liable.(Note, anyone donating sperm before

April 2005 will remain anonymous unless they elect to waive their right to

anonymity). See also the case of Rose & Anor v Secretary of State for Health

[2002] EWHC Admin 1593 and the successful challenge under Article 8 by two AID

children to access to certain Donor information. This did not, however consist of

information which would have disclosed the identity of the donors. Such an Article

8 challenge is likely to fail (see Odievre v France [2003] 1FCR 621), but will be

rendered unnecessary in any event for post April 05 donors.

* AIH – Artificial Insemination by Husband;

* Surrogacy;

* IVF – In Vitro Fertilisation;

* GIFT – Gamete intra-fallopian transfer.

These techniques throw up a number of very important legal and ethical issues

(see Quintavalle v HFEA [2003] UKHL 13), not least as the law attempts to keepup with scientific developments. So much so that the Warnock Committee was set

up with the following terms of reference,

“to consider recent and potential developments in medicine and

science related to human fertilization and embryology; to consider

what policies and safeguards should be applied, including

consideration of the social, ethical and legal implications of these

developments; and to make recommendations.”

The Report (Report of the Committee of Inquiry into Human Fertilisation and

Embryology Cmd 9314) was published in 1984 and could be said to be responsible

for both the Surrogacy Arrangements Act 1985 and the Human Fertilisation and

Embryology Act 1990 (the 1990 Act). The following set of notes take into

consideration the Human and Fertilisation and Embryology Act 2008 (the 2008 Act)

which amends the 1990 Act.

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14.4.3 Stemming from the various forms of assisted conception, what are

the legal issues that need to be addressed?

(The following is not an exhaustive list)

* Definition of (legal) mother (see s 27(1) of 1990 Act; now s.33(1) 2008 Act);

* Definition of (legal) father (see s 28(2) of 1990 Act; now s.35 2008 Act);

* Legal position as regards unmarried couples ( s 28(3) of 1990 Act; now see

ss 35, 36 2008 Act)

* Legal position of same sex couples (see s.42 2008 Act);

* Legal status of child ( now see ss 40,41,46 of 2008 Act);

* Status of the “agreement” in surrogacy arrangements;

* Issue of payments.

14.4.3 What are the Ethical Issues?

(Again not an exhaustive list)

* The various techniques go against God’s will;

* They disturb the natural order of things;

* They treat children as commodities not as human beings;

* There is a potential for abuse of the techniques e.g. by people who can have

children but do not want their careers disturbed.

14.5 SURROGACY.

This is defined as “the practice whereby one woman carries a child for another with the

intention that the child should be handed over after birth”.

The ethical arguments for and against surrogacy may well depend on what form the

surrogacy takes. There is partial and full surrogacy.

Partial surrogacy: where SM (surrogate mother) provides the ova and carries the child

and CF (commissioning father) provides the sperm. Here there is a genetic link with SM.

Full surrogacy (womb leasing): where CF provides the sperm, CM (commissioning

mother) provides the ova and SM carries the child. Here there is no genetic link with SM.

Ethical Arguments for surrogacy* SM using her body as she wishes – autonomy.

* CM and CF using technology that exists.




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* CM and CF only chance to have a child that is genetically related

* Surrogacy is voluntary and consequently not exploitative

* Surrogacy is just another cure for infertility

Ethical Arguments against surrogacy* Commercial aspects reprehensible e.g. if SM is paid anything other than expenses

for her part in carrying the child;

* Can be used by people without infertility problems;

* Can be used by two people of the same sex;

* Children seen as “commodities”;

* Weakening of the family ties;

* A form of prostitution.

* Psychological harm to some of the parties e.g. SM who may well bond with the

child she is carrying and refuse to hand it over.

* Psychological harm to the child.

* SM may not “take care” of herself during pregnancy.

* The resulting child may not be perfect

* The risks of pregnancy are too great (see in this regard

http://news.bbc.co.uk/1/hi/england/gloucestershire/4224349.stm 31 Jan 2005 -

Natasha Caltabiano died shortly after giving birth to a surrogate baby. Although the

cause of death was an aneurism and was said not to be pregnancy related the

stress of the pregnancy could have perhaps caused the aneurism to occur earlier.)

The view of English law is that it is better to regulate surrogacy than leave it unregulated.

No statutory provisions were in force prior to the 1985 Surrogacy Arrangements Act; until

then the common law applied (along with certain other non-surrogacy-statutes). Under

this pre-1985 law it could be said that:

* the surrogacy contract was unenforceable as being contrary to public policy;

* even if not void under the above, some of the contractual terms would clearly be

unenforceable e.g. a requirement that SM should not smoke or drink or take drugs;

* Criminal offences may have been committed by parties to the agreement. (See the

Adoption Act 1976).

The Warnock Committee was charged with looking at surrogacy and other related areas.

However it was the public outrage over the “Baby Cotton” affair in January 1985 (see

[1985] 1 FLR 846) which ultimately led to the Surrogacy Arrangements Act 1985. That

Act effectively banned some of the more heinous forms of commercialisation associated

with surrogacy such as advertising; put another way it effectively sought to stop third

parties from profiting from other peoples’ “misery”. See the provisions on:

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* Advertising (s 3 and the case of A v C [1985] );

* Agencies (s 2).

It was not until the Human Fertilisation and Embryology Act 1990 (HFE act) that the

surrogacy contract was made legally unenforceable (s.36), that the legal status and rightsof the mother, father and child were determined and that the issue of confidentiality was

tackled. “Most of the new rules allocate parental status without the need to litigate the

issue”. (Montgomery p.410) The key provisions of the 1990 Act are set out below

alongside the new provisions introduced by the 2008 HFEA:

* S.27 (now s.33 2008 Act) (legal definition of mother) – the legislation gives the

status to the gestational mother. Contrast this with the American cases of

Johnson v Calvert [1993] 851 P 2nd

776 where the intent of the parties was

regarded as the dominant feature and as such the status of legal mother was given

to the commissioning woman. See also In the Matter of Baby M (1998) 537 A 2d

1227.

* S.28(2) (now s.35 2008 Act) (legal definition of father) – here, if the surrogate is

married then the surrogate’s husband becomes the legal father, because of the

presumption of legitimacy under common law. S38(2) 2008 Act preserves the

common law rule that says a child born during the subsistence of a marriage shall

be deemed to the child of the parties to the marriage. But this is only a

presumption – it can be rebutted by DNA evidence. Further, the surrogate’s

husband becomes the legal father unless he has objected, before the insemination,

to the insemination. In the case of Leeds Teaching Hospitals NHS Trust v A and

Others [2003] EWHC 259, the court had to consider the legal situation following the

accidental mix-up of sperm. The court ruled that a man does not consent where

another man’s sperm is mistakenly used in the provision of treatment services. See

also Re R (a child) [2003] EWCA Civ 182 and Re D [2005] UKHL 33.

* s.28(3) (now replaced by s.36 2008 Act) – where there is no consenting husband

or civil partner (see s.42 2008 Act) another man may be the father of a child

created from donor sperm where the implantation takes place in the UK and the

agreed fatherhood conditions in s.37 are met. Briefly these conditions include:

licensed treatment was provided to a woman;

a man consents to being treated as the father and the woman also consents

to this;

neither party subsequently withdraws their consent;

the woman has not subsequently consented to another person being the

other parent;

the consents (or withdrawals) are in writing.








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* Implantation after death - In relation to posthumous use of sperm the 2008

Act replaces the provisions of the Human and Fertilisation and Embryology

(Deceased Fathers) Act 2003.) Now the deceased man providing the sperm

may have his name registered on the birth certificate only, if he consented

(in writing) to the use of his sperm or embryo after his death, to being thechild’s father, and the mother elects for him to be so treated within 42 days

of the child’s birth (s.39). Where donor sperm is used, the mother may elect

another person to be treated as the legal parent where that person was her

husband or civil partner and consented in writing, ss40(1) and 46(1). If that

other person was not the mother’s husband or civil partner, the agreed

fatherhood and conditions must be met prior to that person’s death and the

embryo must be created in the course of license treatment services (ss40(2)

and 46(2).

* A mother’s female partner – now s 42 of the 2008 Act treats a woman in a

civil partnership in exactly the same way as s.35 applies to husbands. In

other words the mother’s civil partner will be treated as the other parent

unless she can show that she did not consent. S.43 also allows another

woman to be the legal parent where neither s.35 nor s,.2 apply and the

agreed female parenthood conditions apply which effectively are identical to

those applying in the case of a man.

* S.30 (parental orders).- (now s.54 2008 Act) – this is probably the one

section which could be regarded as encouraging rather than discouraging

surrogacy (see Briody v St Helens and Knowsley AHA [2001] EWCA Civ

1010). It is the section which allows the commissioning parents (the

childless couple) to apply for a Parental Order to make them the legal

mother and father with parental responsibility. But note the strict conditions

which must be satisfied, (for example the child must have been created

using a variant of IVF, GIFT or by AI using the gametes of at least one of the

commissioning couple, the commissioning couple must be married, civil

partners, or living as partners in an enduring family relationship, the child

must already be living with the commissioning couple and no payments

(excluding reasonable expenses) may have been made) before a Parental

Order can be granted by the courts. See Re Q (Parental Order) [1996] 1

FLR 369. In Re P ( A Child) [2007] EWCA Civ 1053, the judge, Mr Justice

Lloyd, found that P (the SM) had deliberately embarked on a path of

deception, driven by Mrs P’s compulsive desire to bear a child or further

children; she never had any other objective than to obtain insemination by

surrogacy with the single purpose of acquiring for herself and her family

another child. He therefore granted custody to the commissioning couple.

P’s arguments that the court had not given due weight to the attachment the

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child had formed with P and her capacity as a parent failed. N.B. Mr Justice

Lloyd observed however the limitation of the then 1990 Act and the fact that

under the Act the biological father is not the father and cannot apply for s.30

parental order because of the passage of time and the absence of consent.

* Note from October 2013 the child will be able to obtain details of his/her birth

on attaining 18 which will include the name of the surrogate mother, seethe

HFEA Code of Practice update.

* The welfare of the child - section 14(2)(b) of the 2008 Act amends the

need for a father to the child’s need for “supportive parenting”. This is

defined under s.14(2) as Supportive parenting is a commitment to the health,

well being and development of the child. It is presumed that all prospective

parents will be supportive parents, in the absence of any reasonable cause

for concern that any child who may be born, or any other child, may be at

risk of significant harm or neglect. Where centres have concern as to

whether this commitment exists, they may wish to take account of wider

family and social networks within which the child will be raised. See Re N

(Child) [2008] 1 FLR 198.

* Payments - section 59 of the 2008 Act allows bodies that operate on a

not-for-profit basis to receive payment for providing surrogacy services e.g.

negotiations, compiling information, advertising.

Surrogacy – Reform or Not

Most of the 1985 and 1990 Acts can be said to be anti-surrogacy. However according to

Lee and Morgan (Human Fertilisation and Embryology, p.201-2), “Since [1985],

surrogacy has undergone a metamorphosis, or more accurately, a series of

metamorphoses, from: (i) the sexual to the medical; (ii) the private and invisible to the

public and intermittently invisible; (iii) the altruistic to the commercial and back again; and

(iv) the contested and controversial to the accepted and clinically mediated, and back

again. The ‘medicalisation of surrogacy’ has occurred in parallel with the remarkable

turnaround in the legal approach to surrogacy in the [1990] Act and in the decisions in

cases …. Which have been almost universally pragmatic and usually sympathetic”.

In Oct 1997 the Government announced that a committee, chaired by Margaret Brazier,

was going to look into certain aspects of the law on surrogacy. The committee’s terms of

reference were:

* ‘to consider whether payments, including expenses, to surrogate mothers should

continue to be allowed…..’

* ‘to examine whether there is a case for the regulation of surrogacy arrangements

through a recognised body…..’




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* ‘…..to advise whether changes are needed to the Surrogacy Arrangements Act

1985 and/ or s 30…..’

The following is a summary of the Brazier Report:

Payments

1. Payments to surrogate mothers should cover only genuine expenses associated

with the pregnancy;

2. Additional payments should be prohibited in order to prevent surrogacy

arrangements being entered into for financial benefit;

3. The basis on which expenses will be met should be established before any attempt

is made to create a surrogacy pregnancy, with a requirement for documentary

evidence of expenses incurred in association with the surrogacy arrangement to be

produced by the surrogate mother;

4. Legislation should define expenses in broad terms of principle and empower

Ministers to issue directions on what constitutes reasonable expenses and the

methods by which expenses shall be proven;

Regulation

5. Agencies involved in surrogacy arrangements should be required to be registered

by the UK Health Departments and to operate in accordance with the Code of

Practice required under the terms of the proposed new Surrogacy Act;

6. The Department of Health, in consultation with the other UK Health Departments,

should draw up a Code of Practice after discussion with relevant bodies and

individuals. The Code should be binding on registered agencies. The Code

should also operate as an advisory Code to provide guidance in relation to all

surrogacy arrangements whether made through a registered agency or privately;

7. As an interim measure (prior to the necessary legislation) the UK Health

Departments should draw up and promulgate a voluntary code and invite relevant

bodies to seek voluntary registration. The Code should also be drawn to the

attention of professional bodies and of the Human Fertilisation and Embryology

Authority, so that they could consider incorporating advice on relevant aspects of it

into the guidance they issue to practitioners and clinics;

8. In addition to the Code, the Health Departments should also consider establishing

requirements for full record keeping and reporting of specified statistics; and clear

guidelines on how research will be facilitated into the outcomes of the

arrangements;




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Legislation

9. Consideration should be given to the repeal of both the Surrogacy Arrangements

Act 1985 and section 30 of the Human Fertilisation and Embryology Act 1990, andtheir replacement by a new Surrogacy Act. The Surrogacy Act would seek to

address in the one statute the main legal principles governing surrogacy

arrangements in the United Kingdom, to offer a surrogacy ‘code’ and include;

(i) the continuation of the current provisions of Section 1A of the 1985 Act

relating to the non-enforceability of surrogacy contracts;

(ii) the continuation of current provisions prohibiting commercial agencies from

assisting in the creation of surrogacy arrangements and related provisions

prohibiting advertisements in relation to surrogacy arrangements;

(iii) new statutory provisions defining and limiting lawful payments to surrogate

mothers;

(iv) provision for the promulgation by the UK Departments of Health of a Code

of Practice governing surrogacy arrangements generally;

(v) provision for the registration of non profit-making surrogacy agencies by

the Departments of Health and that such agencies should be required to

comply with the Departments’ Code of Practice on surrogacy

arrangements;

(vi) provision to prohibit the operation of unregistered agencies;

(vii) new provisions for the grant of a parental order to commissioning couples

(a revised section 30 order). The revised order should provide that

applicants for a parental order should establish compliance with the

Surrogacy Act and the Code of Practice; and that they have complied with

the statutory limitations on payments. The revised order should not

authorise the judge to approve otherwise impermissible payments.

10. Parental orders should only be obtained in the High Court; Judges should be able

to order DNA tests; and Guardians ad litem should be able to check criminal

records;

11. In order for a parental order to be granted, the commissioning couple should be

habitually resident in the United Kingdom, the Channel Islands or the Isle of Man

for a period of 12 months immediately preceding the application for a parental

order;

The Brazier Report has been criticised by COTS (Childlessness Overcome Through

Surrogacy) who vigorously oppose a prohibition on payments. This criticism in echoed in

the article by Michael Freeman listed below. To date no legislation has been forthcoming,

save for the minor amendments introduced by the 2008 Act highlighted above.




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Further Reading


Ethics (5

th

ed) (Routledge) Chapter 7

Medicine, Patients and the law, Brazier & Cave (4th ed) Penguin Chapter 13 pp 32-

349

Medical Law and Ethics, Pattinson (3rd ed) Sweet & Maxwell Chapter 8

paragraphs 8.6-8.8

Medical Law, Text, Cases and Materials, Jackson, (3rd

ed) OUP Chapter 16

Health Care Law, Montgomery J, Oxford University Press (2nd ed) chapter 16

pp402-404; 409-414

Sourcebook on Medical Law, Stauch, Wheat and Tingle, Cavendish Press Limited

(2nd ed) chapter 7 pp413-429

Human Fertilisation & Embryology Regulating the Reproductive Revolution, Lee &

Morgan Oxford University Press (2nd ed) chapter 8 pp 191-217

“Does Surrogacy Have A Future After Brazier” Michael Freeman, Medical Law

Review 7 Spring 1999 pages 1-20

Briody v St Helen’s & Knowsley Health Authority [2000] 3 Lloyd’s Rep Med 127 –

no-one has the right to be supplied with a child as per Article 12 ECHR. The costs

of a commercial surrogacy agreement were not recoverable.

14.6 EMBRYOLOGY

16.6.1 Protection of the embryo

One of the consequences of some of the afore-mentioned techniques is the

creation of an embryo. We need to examine closely what protection an embryo

has in English law. But first, note the distinction between a foetus and an embryo.

An embryo generally covers the period from fertilisation to the end of the 8th week

of pregnancy. The word 'foetus' covers the developing embryo from week 8 to

birth. Also note the distinction between in vitro and in vivo; the former means in a

test tube, the latter means occurring within the body.

As a general rule it can be stated that the foetus, while it is in vitro, has no

enforceable rights in civil law; while in vivo it has some protection but no rights.

The Congenital Disabilities (Civil Liability) Act 1976 does give rights in tort to a

child (but not – generally- against its mother) in certain circumstances but those

rights can only be enforced once the child is born and born alive. This, it could beargued, means that the foetus/embryo is being recognised to some extent in law by

giving it a contingent right. Put another way, the interests of the foetus are




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protected by the law. Health carers may be liable to the child but only after it is

born. Again it could be argued that since, under the HFE Act 1990, licences have

to be obtained before, for example, research can be carried out on an embryo and

only up to a certain “age”, namely 14 days, then some protection is being afforded

to the foetus. On the other hand, the abortion laws would seem to suggest thatthere is no real true protection for the foetus/embryo.

The following are two significant quotes from an article by Michael Jones in

Professional Negligence (Jan/Feb 1985 at p 20).

“The foetus while still in utero has no rights in civil law…This [the 1976

Act]. recognises that the foetus and even the embryo has ‘interests’

worthy of protection, but since the cause of action depends upon live

birth, it could be argued that the object of the legislation is to provide

compensation to damaged children, not to confer a right upon a foetus

to be born at all.”

“…the foetus is not accorded the full status of a person by the criminal

law, although it is given some degree of protection.”

NB The Human Rights Act 1998 and the ECHR do not extend to the

embryo/foetus.

14.6.2 Embryos

Is there such a thing as a property right in an embryo? The Warnock Report

suggested that the concept of ownership of an embryo was undesirable; the 1990

Act does not expressly deal with this point. For example: H and W agree in 1998

to store an embryo, reasoning that in the year 2004 they will be financially able to

start a family. In 2003 H and W divorce in acrimonious circumstances. In the year

2004 W wants to have the embryo implanted in her since she has recently been

told that for other reasons she will be unable to have a baby in the future. Should

the frozen embryo be part of the divorce settlement? In Evans v Amicus

Healthcare Ltd [2004] EWCA Civ 727 two women had undergone IVF treatment

with their consenting male partners, and embryos had been created. Subsequently

the parties separated and the males withdrew their consents. The women wanted

to use the embryos and among the arguments advanced on their behalf was that to

deny them would be a breach of their human rights. Could they use the embryos?

The courts said, no; consent of the males was vital and since that had been

withdrawn that was an end of the matter.

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Nathalie Evans’s claim also failed in the European Court (see Evans v UK,

application no 6339/05). The Court held that there had been no breach of Evans’s

Article 8 rights, and that, there being no right to life under Article 2 recognised in

respect of a foetus under English law, consequently no breach of Article 2 either.

Now under the new 2008 Act para 7 of Sched 3 inserts a new para 4A to Sched 3into the 1990 Act and introduces a cooling off period where one person withdraws

consent to the storage of the embryo or donated gametes. This amendment

however would still not have helped Natalie Evans however what the Evans case

did was to highlight the deficiencies with the consent provisions in the 1990 Act

which have now been amended by the 2008 Act.

Consent was also shown to be of the utmost significance in the case of R v HFEA

ex.p. Blood (1997) 2 WLR 806, where it was held that Mrs Blood could not use her

dead husband’s sperm because the husband had not consented in writing to its

use, even though before his coma and subsequent death the couple had been

receiving IVF treatment. (Using European law Mrs Blood was able to take the

sperm to Belgium where the insemination took place and she has had two healthy

children. Now see the new provisions on deceased fathers introduced by the

Human Fertilisation and Embryology Act 2008 and considered above.

14.6.3 “DESIGNER BABIES”/PRE-IMPLANTATIONGENETIC

DIAGNOSIS/TISSUE TYPING.

Think of the benefits which could result if embryos, having been created, could be

tested to make sure they had no infection/disease and only those that met that

criteria would be inserted back into the woman and allow to develop as a baby (a

perfect world?). The House of Lords had to make such a decision in Josephine

Quintavalle (on behalf of Comment on Reproductive Ethics) v HFEA [2005] UKHL

28. The case involved the Hashmi family of Leeds. Mr and Mrs Hashmi had a son

who was suffering from beta thalassaemia major (a debilitating blood disorder) and

to stay alive he needed blood transfusions every month and drugs fed to him by a

drip for 12 hours per day. The clinicians were of the view that if they could use from

a sibling the same tissue type as the ill son and transplant them into that son, then

in due course that son’s body would produce its own life saving blood. But the

question was, how do you get that type of perfect match? The answer was IVF

treatment for Mrs. Hashmi, embryos created, select an embryo with matching

tissue, insert back into the woman and when that baby is born take stem cells from

the baby’s umbilical cord and transplant into the ill son. Could HFEA legally permit

such a procedure? It said it could and the House of Lords agreed.

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Now see See para 1ZA (1)(d) of the 1990 Act inserted by the HFEA 2008 Act which

permits embryo testing on the following basis:

testing is permitted to:

– (a) Test for chromosome, gene or mitochondrial abnormality

–

(b) Where there is a risk that the embryo has chromosome, gene ormitochondrial abnormality to establish whether it has or any other

©To establish the sex of the embryo if there is a gender related physical or mental

disability; serious illness, serious medical condition

thus testing may now be licensed where the sibling suffers from a serious medical

condition that could be treated with matched tissue from the child to be born. This

includes stem cells, bone marrow or other tissue but excludes a whole organ. Note

however HFEA Sex Selection: Option for Regulation (HFEA 2003)

“ A license…cannot authorise any practice designed to secure that any resulting child

will be of one sex rather than the other” HFEA 1990 Sch 2, para 1ZB. Thus sex

selection for social and not medical reasons is not permitted.

14.7 “WRONGFUL” LIFE / BIRTH / CONCEPTION

A wrongful life claim is brought by a handicapped child who has been born as a result of

the defendant's negligence, e.g. a failed abortion attempt. The claimant’s claim is thathad the defendant not been negligent then he would not have been born, i.e. that non-

existence is preferable to the existence he now has. In McKay v Essex AHA [1982] QB

1166 the court held that damages could not be awarded against a doctor for failing to

advise a mother to have an abortion. The court gave a variety of reasons for disallowing

the claim but one of the more significant was that to award damages would mean that the

court would have to compare non-existence with existence and that would mean

assessing the value of the life of a handicapped child as less worthy than that of a normal

child.

NB: Although wrongful life claims may not be possible in England at common law, what

about a claim for pre-conception negligence? It could be that this is allowed by the

Congenitial and Disabilities Act; however, the problem which the claimant will face

here is one of causation.

Example:

Father (unmarried at the time) works for an organisation which brings him into contact

with radiological substances. Unknown to him it adversely affects his sperm. He meets

and marries W who then becomes pregnant. When the child is born it is severely









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mentally and physically disfigured. Child sues for wrongful life. Is such a claim in

principle possible?

See:

X and Y v Pal [1992] (Lawtel logon) ; De Martell v Merton and Sutton HA [1993];

Burton v Islington H.A [1993].

16.7.2 Wrongful birth is the equivalent of a wrongful life claim save that the action

is brought by the parents following the birth of a handicapped child, claiming for pain,

suffering, physical injury and financial loss. In McKay this part of the claim was

successful.

16.7.3 Wrongful conception

Damages for wrongful conception have in recent years been commonly awarded. The

claim is for damages for the upkeep of a healthy child that has been born as a result of a

failed vasectomy/sterilisation operation. The mother may also claim the compensation for

the pain and suffering associated with pregnancy and childbirth. Up until fairly recently

the courts were happy to award compensation notwithstanding the child is a healthy child,

see Allen v Bloomsbury H A [1993] 1 All ER 651. However the House of Lords took the

opposite view in the Scottish case of McFarlane v Tayside Health Board [1999] 4 All ER

961. The Health Board successfully appealed against the Court of Sessions decision to

award damages for the birth of a healthy child following a negligently performed

vasectomy. The House of Lords accepted that the loss (that is the cost of bringing up the

child) was foreseeable but saw the question as a wider issue – what was the extent of the

duty of care owed to the husband and wife and what was the liability of the defendant in

what was viewed as a claim for economic loss. Lord Slynn asked was it “fair, just and

reasonable for the law to impose a duty” and that the doctors duty was only to avoid a

pregnancy and that did not extend to the costs of rearing a child if born and accepted into

the family. Lord Steyn however saw the decision as being one of corrective justiceversus distributive justice and sometimes a decision had to be made between the two

approaches. In this instance the principle of distributive justice dictated that the law of

tort did not permit parents of a healthy unwanted child to claim the costs of bringing up

the child from the health authority or doctor. The claim did not satisfy the requirements of

being fair, just and reasonable. Note however that the parents were allowed to recover

the costs of the solatium and costs attendant on the pregnancy.

In the recent case of Denise Less and Michael Carter v Sarah Hussain [2012] EWHC

3513 the court once again considered what was the scope of the duty of care owed to the

claimants in matters of conception. The claimants’ alleged that the defendant had not

given proper advice about the risks of pregnancy, namely the presence of a known


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thromboembolic condition, and had such risks been explained Ms Less would not have

fallen pregnant. The claimant’s child was stillborn. The judge accepted the argument on

breach of duty however the claimants’ case failed on causation as the court found that

even if proper advice had been given the claimants would have proceeded with

conception. Commenting obiter on the scope of the duty owed the judge concluded thatto satisfy the duty of care the doctor must give the patient sufficient information to enable

the patient to make a balanced decision. Applying Walkin the judge ruled that the starting

point for the injury was conception and given that the advice was about conception, the

judge considered that the loss of the baby during term was a kind of loss in respect of

which a duty was owed, it made no difference that the precise manner of the loss was not

foreseen. Moreover it would have been fair, just and reasonable to compensate Ms Less

for her injuries applying the same principles that a mother of a disabled child can and as

such she would have been entitled to damages for pain, suffering and loss of amenity

and some special damages. She would not be entitled however to the Rees award (see

below) as there was no loss of autonomy.

See also Parkinson v St James & Seacroft University NHS Trust [2001] 6 Lloyd’s Rep

Med 309 a case noteworthy for the Court of Appeal’s ruling on what damages are

recoverable for the birth of an unplanned disabled child.

Finally in Rees v Darlington Memorial Hospital NHS Trust MLC 1053; [2003] UKHL 52 the

Court of Appeal awarded damages to a blind woman for the costs of bringing up a

healthy child following a failed sterilisation. The Court of Appeal ruled that Miss Rees was

entitled to cover the extra costs of bringing up her son attributable to her disability. Lady

Justice Hale commented that this case raised “novel and important” issues and told the

court that “we can only imagine the difficulties facing them both.” The decision was

appealed to the House of Lords. In summary their Lordships’ majority decision was in

essence:

A disabled mother who gave birth to a healthy child after a negligently performed

sterilisation operation was not entitled to recover the extra costs of child care

occasioned by her disability. Instead a conventional award of £15,000 would be

made to mark her injury and loss of the benefit she was entitled to expect.

Note that unusually there were 7 Law Lords sitting and it was a 4-3 majority. Their

Lordships declined to reconsider their views on the McFarlane decision. There is however

little consistency in their reasoning. All their lordships agreed that applying normal tort

principles the claimant in McFarlane should have been allowed to recover but the denial of

the claimant’s remedy was not in the court’s view a question of public policy but

interestingly legal policy and yet failed to expand on this interesting concept.

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Further Reading

Emeh v Kensington & Chelsea & Westminster A.H.A [1985] QB 1012

Thake v Maurice [1986] QB 644

Goodwill v BPAS [1996] WLR 1397

Walkin v South Manchester H.A. [1996] 7 Med LR 211

Lovelace Medical v Mendez (1991) 805 P 2d 603

CES Superclinics (Australia) Pty Ltd [1996] Med L Rev 102

Provenzano v Integrated Genetics (1998) 22 F Supp 2d 406.

Roberts v Bro Taff Health Authority [2002] 4 Lloyd’s Rep Med 182

Groom v Selby [2002] Lloyd’s Rep Med 1

AD v East Kent Community NHS Trust [2002] 9 Lloyd’s Rep Med 424

“Return of the burden of blessing” Dr J Ellis Cameron-Perry, (1999) NLJ December 17

pp1887-1888

“Wrongful birth. New light from the North” Charles Foster Solicitors Journal 21 January

2000

Mason, McCall Smith & Laurie (2006) Medical Law & Ethics Chapter 6

Booth Penny “A child is a blessing heavily in disguise, right?” New Law Journal Nov 23

2001 page 1738

“Failed Sterilisations And Child Costs Revisited” Roderick Denyer, Family Law Feb

2004 Vol 34 page 123.

Hoyano: “Misconceptions about Wrongful Conception” (2002) 65 MLR 883





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230

SUMMARY

At the end of this part of the chapter you should be able to:

appreciate the various techniques used to alleviate infertility;

appreciate the ethics of such techniques;

understand the various rules attending surrogacy e.g. is the agreement

lawful? Can the surrogate by forced to hand over the child?

know the ingredients for the claims of wrongful life, wrongful birth, wrongful

conception.




231


1. When does life legally begin?

2. At the present time does a woman have a legal right to have access to all

techniques available to relieve childlessness?

3. List two arguments in favour of surrogacy and two arguments against surrogacy.

4. How many people may be involved in surrogacy (excluding the professionals)?

5. Before 1985 was a surrogacy arrangement legal?

6. Define “legal mother” in a surrogacy arrangement.




232

NOTES




233

NOTES




234

CHAPTER 15

THE ENDING OF LIFE

Here we will be examining the legal and ethical issues associated with the various ways in

which human life may be ended.

15.1 ABORTION

“Abortion must be one of the most controversial areas of healthcare law”.

(Montgomery p. 379).

“We should stop seeing abortion as a problem and start seeing it as a

legitimate and sensible solution to the problem of unwanted pregnancy.” Ann

Furedi chief executive of the British Pregnancy Advisory Service.

In 2012, for women resident in England and Wales:

The total number of abortions was 185,122, 2.5% less than in 2011 (189,931).

16.5 per 1,000 women aged 15-44, 5.4% lower than in 2011; the lowest rate for 16

years.The abortion rate was highest at 31 per 1,000 for women aged 21, compared to 33 per

1,000 for women aged 20 in 2011

37% of all women having an abortion had one or more previous abortions

15 1.1 Ethical arguments for and against abortion.

For

Autonomy---the woman is using her body as she wishes;

Abortion will happen anyway, therefore it is better to regulate it than leave it

unregulated;

Prevents ‘back street’ abortions and the dangers posed to women (possibly

the major reason behind the Abortion Act 1967);

If abortion was not available then it could be argued that women were being

punished for becoming pregnant;

No form of contraception is 100% effective, therefore abortion can be seen

as a sort of back-up.

Against

Could be dangerous to the woman;




235

Abortion is the taking of an innocent ‘life’ (this raises yet again those

fundamental questions of when does a life come into existence and what

rights does a foetus have?);

Emotional damage can be done to the woman (and possibly her family);

Contraception more socially acceptable than abortion as a form of birth

control.

15.1.2 Key developments in the law have been:

(1) 1861 Offences against the Person Act – an unlawful abortion may well be an

offence under section 58 of this Act.

(2) 1929 Infant Life (Preservation) Act which deals with the situation where the

baby’s life is taken while it was in the process of being born (child

destruction).

(3) R v Bourne [1939] 1 KB 687 – it is a defence to a charge of procuring a

miscarriage if it could be shown that the abortion was carried out to save the

life of the mother to prevent her becoming a physical and/or emotional

wreck; (see also R v Bergmann and Ferguson [1948] 1 BMJ 1008).

(4) 1967 Abortion Act – lays down the circumstances in which an abortion can

be lawfully carried out and the procedure which has to be followed;

(5) Royal College of Nursing v DHSS [1981] AC 800;

(6) 1990 Human Fertilisation and Embryology Act. (section 37)

15.1.3 And the law is?

The important thing to note from the combined effects of the 1967 and 1990 Acts is

the list of circumstances when an abortion can be legally performed. These are:

(1) Where the pregnancy has not exceeded 24 weeks and the continuation of it

would involve a risk, greater than if the pregnancy were terminated, of injury

to the physical/mental health of the woman or any existing children of her

family (N.B. this is the only ground which has a time limit. It is also referred

to as the “social” ground for abortion and as such is the most “popular”

ground); or

(2) Where termination is necessary to avoid grave permanent injury to the

physical/mental health of pregnant woman; or

(3) Where continuation of the pregnancy would involve risk to the pregnant

woman’s life, greater than if the pregnancy were terminated; or

(4) Where there is a substantial risk that the child would be born with severe

physical/mental abnormalities (recently this ground was in the news when it

was discovered that abortions were being carried out on foetuses with cleft

palates. Was this with ground (d)? No, it was argued in the case of R (on the

application of Jepson) v Chief Constable of West Mercia [2003] EWHC

3318.

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236

NB: In considering (1) and (2) above “the pregnant woman’s actual or reasonably

foreseeable environment” may be taken into account; this means the general

practitioner, whose help is sought, is entitled to take on board such things as

housing factors, financial factors ,emotional support from a husband/partneretc.

15.1.4 Procedural Points

The procedure involved in carrying out a lawful abortion is governed by the 1967

Act. It involves the following rules:

A Practitioner who has conscientious objections to taking part in an abortion does

not have to (S4(i)) and Janaway v Salford HA [1989] AC 537, Greater Glasgow

Health Board v Doogan [2013], see also Barr v Matthews (1999) 52 BMLR 217;

Two registered medical practitioners must decide in good faith that one of the

afore-mentioned grounds for a legal abortion exist (NB in an emergency only one

practitioner’s decision is required); See R v Smith [1974].

The pregnancy has to be terminated by a registered medical practitioner at

approved premises. (BPAS v Sec of State for Health [2011] EWHC 235

(Admin))

The interpretation which has been put by practitioners on both the above groundsand the procedure has led to the criticism that it is too easy to obtain an abortion in

England/Wales. However it is equally clear that some people regard the law as not

sufficiently liberal, for example, is the requirement for two medical practitioners

necessary and should it be reduced to one and more recently the political parties

have been talking about a reduction in the 24 week time limit. Do you have a view

on the matter?

The Abortion Law Reform Association has put forward the following five

amendments to the current law:

(1) allow abortions on request up to and including 14 weeks of pregnancy;

(2) make abortions available with only 1 doctor’s approval from 15 to 24 weeks

using current criteria;

(3) put a duty on doctors to declare their conscientious objection to abortion

and to refer immediately to another doctor who does not share that view;

(4) place a duty on the NHS to provide sufficient abortion services to cover local

needs.

See also http://news.bbc.co.uk/1/hi/health/6242382.stm Wednesday 27th June. The

British Medical Association conference backed a motion calling for abortions

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237

performed in the first three months of pregnancy to be approved by just one doctor,

rather than the current two. Moreover the HFEA Bill (the precursor to the new 2007

Act) proposed:

• Removal of the need for two doctors signatures (supported by BMA)

•

Removal of the need for premises to specially licensed• Nurse practitioners to be allowed to carry out early abortions

BUT the government were criticised as only 3.5 hrs allocated to discuss

amendments…which were never discussed (3rd

Reading).

15.2 HUMAN RIGHTS ACT 1998

Is abortion a breach of Convention rights? According to Paton v UK (1981) 3 EHRR 408)

the abortion of a 10 week old foetus to protect the health of the woman did not breach

Article 2. This was probably as a result of the Court deciding that a foetus was not

included in the word ‘everyone’ in the Article. Is it a breach of the father’s Convention

rights under, say, Article 8? If yes, then what about the woman’s convention rights? The

answer is that the law will uphold patient autonomy and in so doing will support the

mother, not the father. (See also C v S [1987]).

The ECHR case of Vo v France (2004) 2 FCR 577 decided that a foetus was notprotected by Article 2 of the Human Rights Act, and that it was a matter for individual

states to decide what protection to afford the foetus. Capacity to become a person meant

it should be protected as a matter of human dignity but no right to life. Contrast this with

the approach taken by the USA (see below).

15.3 OTHER JURISDICTIONS

Northern Ireland - no statutory defence – must rely on Bourne s.58/59

Ireland - Irish Constitution – unborn and pregnant woman have an equal right to life – Art

40.3.3 (A,B,C v Ireland [2010] (App No 25579/05) but now Protection of Life During

Pregnancy Act 2013. This legislation is the direct result of the death of Savita

Halappanavar died in Galway University hospital last autumn, after being denied an

emergency abortion. The Guardian reports that 23rd

August 2013 saw the first abortion to

be performed under this legislation.

USA – see Roe v Wade (a woman’s constitutional right to request an abortion.

Often views are swayed by presidency elections. In April 2004 the Unborn Victims of

Violence Act (U.S.A.) became law. It is now a crime to harm a foetus during an attack on

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a pregnant woman. In November 2003 the USA also passed a law banning late-term

abortions i.e. abortions during the fifth or sixth month of pregnancy. This law was

declared unconstitutional by a federal judge in San Francisco in May 2004 on the ground

that it was too vague and restricted the right to choose an abortion. It would therefore

appear that in the USA there is a move to accord rights to a foetus. Contrast thatapproach with Vo above.

Conclusion

1. Why have abortion – scans only take place 18-20 weeks

2. Woman’s circumstances may have changed since becoming pregnant

3. She may not realise that she is pregnant

4. Why is the abortion pill still a criminal offence?

5. Why is there no right to an abortion?

6. The medical profession will seldom interfere with a woman’s rights

7. Why is this still a case of defence to a criminal offence?

READING:

Brazier Chapter 13

Stauch & Wheat Chapter 8

Jackson Chapter 8

Herring: Chapter 6

Hewson “Abortion Law in the Dock” SJ 12.12.03

Foster “When two freedoms collide” NLJ 28.10.05

Hewson “Foetal Rights” and obstetric malpractice” NLJ 30.9.04

Thomson JJ (1971) “A Defence of Abortion” 1 Philosophy and Public Affairs 47-66

Swift & Robson “Why doctors need not fear prosecution for gender - related abortions

JCL August 2012

15.4 NEONATICIDE

15.4.1 Introduction

This is the practice of letting new-born babies, suffering from a range of serious

ailments (physical and/or mental), die by not treating their ailments. It's usually

done with the consent of the parents and, supposedly, in the best interests of the

child (see the case of R v Arthur (1981) and contrast it with Re B (Wardship:

Medical Treatment) (1981)----is the distinction between the two cases solely that in

one case criminal proceedings were involved whereas in Re B wardship

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239

proceedings were involved?). Yet again the argument put forward against such a

practice is that medical technology has improved to the stage where it is possible

to treat such babies and to keep them alive. The retort to that is: what sort of life

will the baby have? Furthermore who has the right to make such a decision? The

parents? The doctors? The courts?

Note the guidance published by the Royal College of Paediatrics and Child Health,

‘Witholding or Withdrawing Life Sustaining Treatment in Children, A Framework for

Practice’, (2nd edition May 2004, Royal College of Paediatrics & Child Health -

www.rcpch.ac.uk). In the foreword to this guidance it states:-

‘Sometimes it is necessary to come to the conclusion that for an

individual child…the more humane path is one of palliation rather than

a continuation of life saving treatment. To so resolve is profoundly

difficult, challenging the doctor and all members of the Health Care

Team with issues of conscience and internal conflicts. Nevertheless

our professional responsibilities do not allow us to walk away from

such diffic ulties’.

15.4.2 What are the arguments for such an approach- that is allowing the child

to die by not providing medical treatment?

Economic – less expensive to let the child die than have the medicalfacilities utilised for what could turn out to be a failed exercise.

The wishes of the parents – it’s what they want. Is this important?

The quality of life of the child may be such that it would be immoral to keep it

alive, in other words, it is in the child’s best interests.

Avoids the family’s mental anguish.

The approach in English law is not dissimilar to the approach taken in USA

and Canada; also it is what doctors would generally do in the circumstances;

Conforms to the decision in the leading case of R v Arthur (1981);

The outcome would have been the same if the Abortion Act 1967 was

involved;

It’s not a case of action being taken – everything that is done is passive and

therefore it’s a case of nature taking its course – the distinction between acts

and omissions (see Airedale NHS Trust v Bland [1993]).

Against the above arguments are the following points:

They (the children) are “innocent” – their only ‘crime’ is to be born with

disabilities; It’s morally wrong to let children die and not try to save them;

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241

3. The ‘No Chance’ Situation. The child has such severe

disease that life sustaining treatment simply delays death

without significant alleviation of suffering. Treatment to sustain

life is inappropriate.

4. The ‘No Purpose’ Situation. Although the patient may be ableto survive with treatment, the degree of physical or mental

impairment will be so great that it is unreasonable to expect

them to bear it.

5. The ‘Unbearable’ Situation. The child and/or family feel that

in the face of progressive and irreversible illness further

treatment is more than can be borne. They wish to have a

particular treatment withdrawn or to refuse further treatment

irrespective of the medical opinion that it may be of some

benefit.

In situations that do not fit with these 5 categories, or where there is

uncertainty about the degree of future impairment or disagreement,

the child’s life should always be safeguarded in the best way possible

by all in the Health Care Team, until these issues are resolved.

Decisions must never be rushed and must always be made by the

team with all evidence available. In emergencies it is often doctors in

training who are called to resuscitate. Rigid rules, even for conditions

which seem hopeless, should be avoided; life sustaining treatment

should be administered and continued until a senior and more

experienced doctor arrives.

The decision to withhold or withdraw life-sustaining treatment should

always be associated wi th consideration of the child’s palliative or

terminal care needs. These include symptom alleviation and care,

which maintains human dignity and comfort.”

15.4.4

Note the potential effect of the decision of the European court in the case of David

Glass (Glass v UK [2004] 1 FLR 1019), that, other than in a true

emergency, the court should be involved where it is contemplated

treating a child contrary to a refusal of treatment by a ‘legal proxy’. See

also comments made by the Court of Appeal in GMC v Burke, in relation

to the European Court’s decision.

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On what basis then can- should- the courts conclude that medical intervention-

which is necessary to save a child’s life is not in the child’s ‘best interests’?

In the case of Re J [1991] Fam 33 AC, the court considered the ‘test’ to be applied.

In this case, J was a Ward of court. He was a premature baby, with severe braindamage and a considerably shortened life expectancy, likely to become a serious

spastic quadriplegic, without sight, hearing, and speech. It was possible he would

require further resuscitation/ ventilation in the future. The doctors treating him did

not want to provide this. An application was made to the court to determine

whether such treatment would be in J’s best interests.

The judge held that:

‘Three primary principles are not in dispute. First it is settled law that

the court’s prime and paramount consideration must be the best

interests of the child……Secondly, the court’s high respect for the

sanctity of human life imposes a strong presumption in favour of

taking all steps capable of preserving it, save in exceptional

circumstances…Thirdly… it c annot be too strongly emphasised that

the court never sanctions steps to terminate life. That would be

unlawful.’

‘The test must be whether to that child in question… life would be

intolerable’.

In the circumstances, the judge concluded that it would be lawful not to treat.

More recently the courts have been asked to reconsider the ‘test’ in the case

of Charlotte Wyatt. Charlotte Wyatt was born prematurely at 26 weeks and

had never been well enough to leave hospital. She suffered from profound

brain damage, leaving her blind, deaf and incapable of movement, with

chronic respiratory and kidney problems. There was a disagreement

between her doctors and parents as to whether, should the need arise, she

should be ventilated, to be kept alive.

Her parents believed that she should, her father’s approach being a ‘broad’

‘life at all costs’ approach, and that he was hoping for ‘a miracle’ including a

‘miracle born of divine intervention’. The doctors believed to do so [ventilate]

would only result in ‘increased suffering for no commensurate benefit’.

The issues to be addressed by the court included the question of which was

the correct best interests test applied? Hedley J held - ‘It is in my view

essential that the concept of ‘intolerable to that child’ should not be seen as

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243

a gloss on, much less a supplementary test to, best interests. It is a valuable

guide in the search for best interests in this kind of case’. This was approved

by the CoA, who rejected an argument that intolerability should be the

‘touchstone’, as indicated by Munby in Burke (but not approved on appeal).

Hedley J added “The term best interests encompasses medical, emotional,and all other welfare issues (Re A). The court must conduct a balancing

exercise in which all the relevant factors are weighed (Re J) and a helpful

way of undertaking this exercise is to draw up a balance sheet (Re A)’

See the CoA’s conclusions on best interests at paras 85-91 of the judgment.

The question came up for consideration again in the case of Re MB

[2006] EWHC 507. Again, the parents wanted treatment to continue, the

doctors did not. The Court held that ventilation should not be withdrawn,

although the doctors need not resort to carrying out certain other procedures

should they become necessary. The court avoided any reference to

‘intolerability’, as expressing a ‘conclusion rather than a test’.

More recently see the cases of:

Re B [2008] EWHC 1996 (Fam)

Re OT (A Baby) Unreported March 20 2009

NHS Trust v Baby X & Othrs [2012] EWHC 2188 (Fam)

KH [2012] EWHC B18 (Fam)

NHS Trust v SR [2012] EWHC 3842 (Fam)

And refer to Re A (Conjoined Twins) [2001] Fam 147 considered in the

chapter on Consent.

READING:

• Jackson, 3rd

ed Chapter 17

• Stauch & Wheat Chapter 12

• Brazier extracts

• Mason McCall Smith, chapters 15 & 18

• End of Life Treatment & Care GMC 2010

• ‘Witholding or Withdrawing Life Sustaining Treatment in Children, A Framework for

Practice’, 2nd

edition May 2004, Royal College of Paediatrics & Child Health

(www.rcpch.ac.uk)

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244

SUMMARY


* discuss the law and the ethics of the abortion rules;

* discuss what offences/protection exists for someone charged with carrying

out an illegal abortion;

* consider whether the rule in R v Arthur is sound;

* appreciate the legal rules applicable to the law on neonaticide.




245

15.5 EUTHANASIA

17.5.1 INTRODUCTION

The word literally means ‘dying well’. Today the following can be used as a working

definition:

“the practice of painlessly putting to death persons suffering from

incurable and distressing diseases”

Euthanasia can be either involuntary or voluntary. We will be concentrating on voluntary

euthanasia (where the incurably ill patient begs to die), though it should be noted that

neonaticide represents a form of involuntary euthanasia.

Euthanasia can also be either active or passive. Active euthanasia is where, in response

to the patient’s wish to die, the health carer gives the patient a lethal injection or does some

other positive act. Passive euthanasia is where, in response to the patient’s wish to die,

the health carer, for example, stops treating the patient and the patient dies – in which case

it is said that nature has taken its course and the patient has died from his/her illness.

The basic rule of English Law is that almost all forms of active voluntary euthanasia are

illegal whereas passive voluntary euthanasia may be both legal and ethically acceptable.

15.5.2 Active Voluntary Euthanasia

Offences which may be committed here are murder or attempted murder (see R

v Cox (1992), manslaughter, aiding and abetting a suicide under section 2 of

the Suicide Act 1961 (see on the latter point, R v McShane (1977), Attorney

General v Able (1984)). Note that whilst a person committing suicide is not

committing a criminal offence assisted (physician assisted ) suicide is clearly

unlawful.

In Nicklinson v MoJ & Ors [2012] EWHC 304 it was argued that:

That the common law doctrine of necessity provides a defence

to assisted suicide

That the current law breaches Article 8 by criminalising assisted

suicide

That the current law breaches Article 2 by failing to adequately

regulate active euthanasia.

However these arguments ultimately failed, and the Court of Appeal refused to

create a defence of necessity to a charge of murder or assisting suicide findingthat:





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246

DPP policy insufficiently clear re factors to be taken into account in

deciding whether to prosecute healthcare professionals.

Ban on euthanasia and section 2 not incompatible with article 8

Matter is for parliament

See Martin, Nicklinson & Lamb [2013] EWCA CIV 961.

Finally in R (on the application of Nicklinson and another) v MOJ [2014] UKSC 38 the

Supreme Court upheld the Court of Appeal judgement and restated that any change in

the law is an issue for Parliament, not one for the courts.

NOTE TO STUDENTS: We will be considering the implications of the Nicklinson

judgment in more depth later in the programme along with the Assisted Dying Bill,

sponsored by Lord Falconer. The Bill aims to enable competent adults who are

terminally ill to be provided at their request with specified assistance to end their

own life.

15.5.3 Assisted Suicide

Pre February 2010 the law on assisted suicide was found in Suicide Act

1961, s.2 which stated that it was an Offence to aid, abet, counsel or procure

suicide. The offence itself required intent to aid, abet, counsel or procure

actual/ attempted suicide and the person to be assisted/ encouraged to

actually attempt or commit suicide. This section has now been amended by

s.59 Coroners & Justice Act 2009 which created the offence of encouraging

or assisting suicide. D commits an offence if-

• D does an act capable of encouraging or assisting the suicide or attempted

suicide of another person and

• D’s act was intended to encourage/ assist suicide or an attempt at suicide

• The person need not be a specific person or class of persons known to or

identified by D

• Offence whether or not suicide/ an attempt occurs

The DPP’s consent is still required to prosecute, see CPS – Policy for

Prosecutors in respect of Cases of Encouraging /Assisting Suicide, Feb 10.

Note however a capable refusal of medical treatment is not suicide, see B V

NHS Trust [2002] 1 FLR 1090.

15.5.4 Human Rights

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Is there a human right to die? In R (on the application of Diane Pretty) v DPP (2002), the

applicant, who was suffering from motor neurone disease, wanted to enlist the assistance

of her husband to die, but she wanted an undertaking from the DPP that her husband

would not be prosecuted (see above). The DPP refused to give such an undertaking and

both the House of Lords and the ECHR agreed with this ruling that there was no right to dieunder Art 2.

A slight variation on this point was evidenced by the case of Re Z (2004) where the patient

and her husband went abroad to a country where the law allowed the patient to receive

medical assistance to die; but was the husband committing an offence under section 2 by

helping her to get to the foreign country? Could he be prosecuted when and if he brought

his wife’s body back to this country for burial? It seems as if this matter never got to the

stage where the DPP had to make the decision.

Finally read the case of Debbie Purdy [2009] UKHL 45. Ms Purdy, a 46 year old

MS sufferer wanted to know whether husband would be prosecuted if he helped

her end her life in Switzerland. She challenged that the Code for CPS didn’t

provide sufficient guidance as to whether would be in public interest to prosecute

and so breached Art 8. Her argument was upheld by the House of Lords and this

led to the CPS interim policy being issued.

Although relatives and health carers are legally liable for acts of voluntary active

euthanasia, there maybe a marked difference in the punishment depending on whether the

accused is a health carer or a relative. In the case of a health carer a prosecution is seldom

successful and that could be for one major reason---- it could be that if the lethal injection

was administered in the last days of the patient’s life, then there may be a problem in

identifying what exactly caused the death: the illness or the injection?

Furthermore if the health carer was to give the patient medication which could both

temporarily ‘heal’ but ultimately kill, it is unlikely that mens rea could be shown by the

prosecution (this is the double effect syndrome and may be the only aspect of active

euthanasia which may be legal). In the Newcastle upon Tyne case of R v Moor (1999) the

practitioner gave his terminally ill patient a lethal dose of diamorphine, but he was acquitted

of murder on the ground that primary objective in giving the diamorphine was to ease the

patient’s pain not kill the patient.

15.5.5 LEGALISING EUTHANASIA?

Currently there is an active debate taking place in this country as to whether the English

law on euthanasia needs amending and if so what form should the amendment take. One

possibility could be to use statutes to make all forms of euthanasia illegal. This seemingly

was the objective behind two private members’ bills, the Medical Treatment (Prevention of

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Euthanasia) Bill 1999 and the Patients Protection Bill 2003, both of which failed for lack of

Government support. Also the Royal College of Nursing at its 2005 conference said it

would not change its policy of being against legalising assisted dying. A bill which would

have reversed the effect of a case like Diane Pretty’s was Lord Joffe’s bill, the Assisted

Dying for the Terminally Ill Bill 2004, which initially failed because of lack of parliamentarytime. Subsequently, after reintroduction, the Bill was rejected by the House of Lords. In

2012, the Commission on Assisted Dying, which had been chaired by Lord Falconer

published a report that concluded that the current law on assisted suicide was incoherent

and inconsistent. However because the Commission had received funding from people

who were known to be in favour of legislation, many commentators questioned the

independence of the report.

But there are other ways we could bring our law into line with a country like the

Netherlands (2002 Legislation permits VLT (voluntary lethal treatment) and PAS

(physician assisted suicide)) if the will is there; for example, we could resurrect

the Law Commission’s proposal of 1976 for the creation of a new offence of

mercy killing or we could redefine the word intent to make it clear that mercy

killing was not intent within the definition of common law murder.

So what are the arguments for making euthanasia more easily available?

* self autonomy of the patient;

* compassionate grounds;

* economic reality (ageing population, too expensive to keep people in

hospitals);

* it’s already happening, in other words it is accepted medical practice;

* avoids artificial distinction between active and passive (acts and omissions);

* would help the medical profession;

* avoid strain on relatives;

* accords with definition of euthanasia as dying with dignity.

But there are equally powerful arguments to suggest we should not make euthanasia more

easily accessible:

reduces importance of sanctity of life;

‘God giveth life, God taketh life’;

contrary to Hippocratic oath;

who will administer the lethal injections? Where will they be administered?;

what if the diagnosis is wrong?;

‘thin end of the wedge’/’slippery slope’ argument.

contrary to public policy;

hospice movement.




249

For a discussion of the issues pertaining to assisted suicide refer again to R (on the

application of Purdy) V DPP (2009) EWCA Civ 92.

15.5.6 Passive Voluntary Euthanasia

N.B. Students should refer also to the chapter on Consent.

According to English case law to touch a patient against his wishes is trespass. Therefore

the competent patient who says he no longer wants to be treated should have that wish

respected. At the turn of the 20th

century that wish would have been ignored –the right to

treat would have superseded the right to autonomy. (Leigh v Goldstone 1909). Now,

however, the right of autonomy dominates (NB there are certain circumstances where the

patient’s request may be ignored e.g. if he is under age (18) or is incompetent.).

Given that the health carer can (must?) now accede to the patient’s request what can he

do? What can’t he do? He cannot give a lethal injection, but he can stop treating the

patient and he can, (must?) if requested, turn off life support equipment. This latter point

represents somewhat vividly the difference between an omission and an act. Turning off

such machines is the equivalent legally of refusing to treat even though it is being achieved

by a positive act on the part of the health carer- in other words it is treated legally as an

omission rather than a positive act – see the case of Bland and the distinction (and reason

for it) made by the court in this case. If a failure to treat is an omission rather than a

positive act, then the question of any liability (criminal or otherwise) arising for the doctor

who does not treat, will depend on whether there is a duty to treat. If there is no duty thenthe ‘failure’ can not be one for which the doctor is liable. The question of whether there is a

duty to treat will, in the case of an incapable patient, frequently depend on whether such

treatment is in the patient’s best interests and for that reference must be made to the

Mental Capacity Act 2005, s.4. For consideration of the question of best interest for the

patient in a persistent vegetative state (PVS) see Bland and commentary below.

Where the patient is capable and refuses treatment, then, in accordance with the principle

of autonomy, the doctor must (other than in certain circumstances such as under the

Mental Health Act 1983), cease the treatment. Responding to such a request is not aiding

and abetting a suicide (see Lord Goff in the Bland case at p 866 and also Home Secretary

v Robb [1995]).

Clearly, if the patient is legally and clinically dead there will be no liability if the life support

system is withdrawn (Re A [1992]).

15.5.7. What if the patient is unconscious?

The general rule is that, if withdrawing the life support is in the patient’s best interests, (and

again reference must now be made to s.4 MCA 2005) then the life support system and

nutrition /hydration can be withdrawn.

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15.5.8. What if the patient is PVS?

Persistent Vegetative State (PVS) has acquired a specific meaning. The BMA says it

refers to:

“patients who have lost the function of the cognitive part of their brain.

The clinical components of the condition [are] that such patients

resemble those in a coma as they do not react to stimuli and are

unaware, they are intermittently wakeful or in a state of chronic

wakefulness without awareness, their bodies show no behavioural or

cerebral metabolic evidence of their possessing capacity to respond to

external events or stimuli.”

The rule is that if it is in the PVS patient’s best interests, then an application must

be made to the courts for the life support etc. to be turned off. (see the cases Bland

and Frenchay NHS Trust v S (1994)).

Guidelines have been drawn up in relation to PVS patients. See the PVS

Guidelines drawn up by the Royal College Physicians. Note: has there been a relaxation of the PVS diagnostic requirement? See the following cases:

Re D 1997 (38 BMLR 1) - didn’t fit guidelines but declaration made

Re H 1997 (38 BMLR 11) - as above Re G (2001) 65 BMLR 6

Though see also W Healthcare Trust v H & anor [2004] EWCA Civ 1324

A hospital may be operating a DNR (Do Not Resuscitate) policy in respect of

certain patients. These patients may not be PVS but their lives may be

demonstrably awful and full of suffering. All NHS Trusts must have, since April

2001, agreed and published policies on when resuscitation should be

attempted. See further ‘Treatment & care towards the end of life’ GMC 2010.

For case law post the implantation of the MCA see Re C [2010] EWHC 3448 CoP

(Consideration of withdrawal of ANH from PVS patient); NHS trust v AW [2013]

EWHC 78 and Re W [2011] EWHC 2443.

15.5.8. Advance Decisions

N.B. This is also considered in the chapter on consent to treatment.

It may be that, although the patient is now unconscious, evidence exists as to whathis wishes are/were in respect of any continued medical treatment. He may, at

some earlier point in time when he had the capacity to do so, have expressed his




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251

wish that he did not want medical treatment to be continued should he lose the

capacity to make the decision at the appropriate time; and he might have done this

in the form of an advance decision (also known as a living will in USA).

Such directives were approved at common law (obiter) by the House of Lords inthe Bland case. However, they have now been accorded legislative authority as a

result of sections 24-26 of the Mental Capacity Act 2005.

At the outset it should be noted that the MCA refers to ‘advance refusals of

treatment’. There is no right to demand treatment of any type, though any such

requests for treatment must of course be considered in assessment of best

interests. See the Court of Appeal decision in GMC v Burke.

A further distinction to be noted is that made between ‘treatment’, which can be

refused, and ‘basic care’ which can not (see Code of Practice to MCA).

For an advance refusal of treatment to be binding under the MCA, it must be both

valid and applicable.

To be valid the following conditions must be observed:

it must be made by a person who is aged 18 and over;

the advance decision must not have been withdrawn;

that person must be mentally competent at the time of making it:

the person must be no longer capable of making the decision.

And- only where the refusal amounts to a refusal of life-sustaining treatment-

it must be in writing, signed by the patient or by someone else in the

patient’s presence and under his direction;

that signature must be witnessed;

the witness must sign/acknowledge in the patient’s presence;

To be applicable:

the refusal must relate to the particular treatment in question

If the person has, subsequent to the advance decision, created a lasting

power of attorney, giving that attorney the right to make the particular

decision, or if he has done something which can be construed as

inconsistent with the advance decision, for example a person who is a

Jehovah’s Witness who then marries a Moslem and takes that religion, thenthe advance decision may not be applicable.

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According to section 26(5) nothing in an advance decision can stop a person

providing life-sustaining treatment for the patient or doing something which the

provider reasonably believes to be necessary to prevent a serious deterioration in

the patient’s condition, whilst seeking court clarification of the validity/ applicability

of the advance decision.

During the passage of the Act there was some opposition to making advance

decisions legal; many saw it as euthanasia by the back door. It seems that this

argument was based on the view that the health carer would be able to give the

person who made the advance decision something like a lethal injection. That is

not intended. What is intended is for the health carer to “back off”, when the

advance decision “kicks in”.




253

READING:

Stauch & Wheat: Chapter 12

Jackson:

Herring

MCA 2005

Code of Practice to MCA

Chapter 17

Chapter 9

Ss 4,24-26

SUMMARY


* discuss the pro’s and con’s of active voluntary euthanasia;

* understand the law on passive voluntary euthanasia;

* understand what is meant by persistent vegetative state;

* understand the MCA provisions on advance decisions




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1. Give two arguments for and two arguments against having an abortion.

2. There are four grounds on which a legal abortion can be obtained----one

important fact distinguishes ground one from the remaining three grounds. What

is that?

3. In what circumstance can one medical practitioner certify that the grounds existfor an abortion?

4. Can a medical practitioner refuse to participate in an abortion?

5. What is meant by neonaticide?

6. Which form of euthanasia is both legal and ethical? Which form is not legal orethical?

7. What is the relationship between section 2(1) of the Suicide Act 1961 andeuthanasia?

8. In the law on euthanasia what is meant by “double effect”?

9. If a patient is unconscious can his/her life support system be withdrawn?

10. What is an Advance Decision?






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CHAPTER 16

HUMAN RIGHTS

16.1 Introduction / The Background

The Human Rights Act 1998 came into effect on 2 October 2000. It is evident that it has

had a significant effect on health care law. The rights set out in the European Convention

of Human Rights are now incorporated into our domestic law. Now every citizen enjoys

those rights laid down in the Convention and any interference with those rights must be

justified. It is also important to realise that the Convention is a “living instrument” to be

interpreted in the light of present day conditions and so as to reflect changing social

attitudes (see Tyrer v United Kingdom [1978] 2 EHRR 1 at 10). This means that thecourts do not feel themselves bound by previous decisions if conditions have changed in

the meantime.

The Convention is incorporated into English law in three ways. Firstly Section 3 of the

Human Rights Act 1998 states that all primary and secondary legislation must be

interpreted as far as possible in a manner which is compatible with the Convention.

Second section 6 makes it unlawful for a public authority to act in such a way that is

incompatible with the Convention unless it is unable to do so by primary legislation or

inevitably incompatible secondary legislation. The Department of Health, Health

Authorities and NHS Trusts should be classified as public authorities and hence are

under a duty to act compatibly with the convention. Note that doctors will come within the

definition of a public authority only when they are treating NHS patients but not private

patients. And finally section 7 gives a right to sue for such unlawful acts provided the

claimant is the victim of the unlawful act.

Initially, the following points should be borne in mind:

(1) Convention rights are not always ‘absolute’ e.g. Articles 2 and 3 are but Article 8 is

not, being a ‘qualifiable’ right.

(2) The whole of the wording of the various Articles of the Convention must be

analysed – commentators and students frequently state the rights in their

abbreviated form.

(3) The doctrine of proportionality is key i.e. there must be a balancing of various

interests.

(4) Different States do things differently; therefore a ‘margin of appreciation’ will be

allowed and judicial precedent may not be as important.

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(5) NHS Trusts, Health Authorities, Local Authorities and other similar bodies, the

Department of Health and doctors treating NHS patients (but not private patients?)

are within the definition of Public Authority/ Public bodies.

(6) The obligation imposed by the HRA on public bodies, to ensure that what they do

is ‘Human Rights’ compliant, includes ‘positive’ as well as ‘negative’ obligations, ieobligations to take positive steps to uphold the right to respect for family life (etc),

in Article 8, as well as to refrain from unlawfully interfering with it.

16.2 DOES THE CONVENTION APPLY TO HEALTH CARE?

Although a right to healthcare is not expressly mentioned in the Convention, implicitly it

could be argued that the Convention must have been intended to apply to health care

issues. Take Article 2 as an example. Can a right to life simply mean that life should not

be taken except in well defined circumstances? Is it not more likely that the Article is also

referring to the quality of a person’s life?

This is supported to some extent by what the Home Secretary said in 1998:

“…freedoms alone are not enough; they need to be complemented by

positive rights that individuals can assert when they believe that they have

been treated unfairly by the State, or that the State and its institutions have

failed properly to protect them”.




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16.2.1 Article 2 – Right to Life

It could be argued that this Article gives some or all of the following new positive

rights to patients:

to receive medical treatment for life-threatening conditions. If this is

sustainable, then what about non life-threatening conditions?

to receive specific life saving treatment.

to receive different but better treatment e.g. better and more expensive

drugs.

to receive better medical facilities e.g. to be found a bed on a ward rather

than being left in a hospital corridor. (See also Article 3). Or perhaps it

could mean that a more senior person should have provided the treatment if

that would have avoided very serious consequences.

to be prevented from committing suicide as a result of mental health

problems

See:

Re A [2000] 4 All ER 961 – The Siamese Twins Case.

A National Health Service Trust v D [2000] 2 FLR 677 where the court, in the

best interests of the patient, upheld the approach of the Trust that in the

event of future respiratory and/or cardiac failure being suffered by a 19

month old baby the Trust should only administer full palliative care but no

resuscitation; there was, therefore, no breach of Articles 2 and 3;

R v Portsmouth Hospitals NHS Trust ex p Glass [1999]

Glass v UK 9.3.04;

R v N&E Devon HA ex p Coughlan [2000] ;

An NHS Trust A v M [2001]; An NHS Trust B v H [2001] 1 ALL ER 801

In the last two cases the courts held that discontinuing artificial nutrition and

hydration from PVS (permanent vegetative state) patients was in their best

interests and therefore there was no breach of Articles 2, 3 or 8.

16.3 LACK OF RESOURCES AS A DEFENCE

Could the NHS argue lack of resources as a defence to these new claims? Wendy

Outhwaite asserts that in the future the words of Laws J. will become very significant:

“… where the question is whether the life of a 10 year old child might be

saved by however slim a chance, the… authority… must do more than toll

the bell of tight resources.” (R v Cambridge HA ex p B [1995]).

But contrast that with the words of the court in Osman v UK (1998) 5 BHRC 293:







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“… such an obligation must be int erpreted in a way which does not impose

an impossible or disproportionate burden on the authorities… not every

claimed risk to life can entail for the authorities a Convention requirement to

take operational measures to prevent that risk from materialising .”

The European court has held that there is no convention right which guarantees

free medical care, see Penticova v Moldova, 4.1.05.

More recently the domestic courts have been reluctant to get involved with issues

involving resource allocation. Proportionality is usually the key here.

See, for example N W Lancashire Health Authority v A,D & G [2000] 1 WLR 977

(though note this predates the HRA), and more recently R (on application of F) v

Oxfordshire Mental Healthcare Trust & others [2001] EWHC Admin 535, where it

was held that refusal to fund certain treatment was an administrative resource

allocation decision and not a question for the courts to determine. In the recent

challenge relating to the availability on prescription of the cancer treatment drug

Herceptin, it is interesting to note that the challenge was not really pursued in

human rights terms (R(Rogers) v Swindon PCT [2006] EWCA Civ 392).

See also:

R(on application of H) v Mental Health Review Tribunal [2002] EWHC Admin 1522

Ex Parte Haggerty, [2003] EWHC 803 Admin

Ex parte Watts [2003] EWHC 2228 Admin

16.4 ARTICLE 3 – PROHIBITION OF INHUMAN OR DEGRADING

TREATMENT

This seems to demand a very high level of degradation. As was said in Ireland v UK

[1978]:

“Treatment will become inhuman only of it reaches a level of gravity

involving considerable mental or physical suffering, and degrading if the

person has undergone humiliation or debasement involving a minimum level

of severity.”

Consequently the majority of medical procedures carried out, for example, by general

practitioners or in hospitals will not engage this Article. This is because the defendants

would very likely argue that the treatment offered was designed to benefit the patient and

it would have to be a very brave court indeed which would conclude that such treatment

is inhuman etc. But could the same be said about life saving treatment carried out on a

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More generally, in NHS Trust A v M and NHS Trust B v H [2001] it was held (somewhat

controversially) that withdrawal of treatment where the patients were in a persistent

vegetative state did not breach Article 3.

At times there will be a tension between Articles 2 and 3. The extent to which Article 3required positive steps to be taken to end suffering and obligations under Article 2, were

considered in the case of Diane Pretty (R (Pretty) v DPP [2001] UKHL 61), where an

argument that the state was in breach of Article 3 by not allowing steps to be taken to end

Diane Pretty’s life- and thus suffering- was a breach of Article 3, was rejected.

Another key area of potential challenge under Article 3, as we have already seen in

relation to Article 2, above, relates to the obligation to provide treatment. In addition to the

considerations noted above, there have been a number of challenges over decisions to

deport those suffering from serious health problems to countries where no appropriate

health care is available.

16.5 ARTICLE 5 – RIGHT TO LIBERTY AND SECURITY OF THE PERSON

This is particularly relevant in the mental health field and to those who lack capacity.

There have been a number of challenges advanced in mental health terms under Article

5, to the detention and review process and detailed structure of the Mental Health Act.

This has resulted in a number of declarations of incompatibility. That is to say that thecourts have declared that the MHA is incompatible with Articles of the Convention.

Perhaps one of the most important cases to note here is that of HL v UK (5.10.04) known

as the ‘Bournewood’ case). Here the European Court held that where a patient, who lacks

capacity, is cared for in hospital (or other residential facility) in such circumstances that

amounts to a ‘deprivation of liberty’, and Article 5 is engaged, then where this is outside

the MHA structure and lawful authority is derived from the common law doctrine of

necessity (see Chapter 16), then, because the common law fails to sufficiently protect

against arbitrary detention, this breaches Article 5. With the implementation of the MCA,

which ‘takes over’ from the common law in this regard, it is clear that deprivation of liberty

can not be justified under the MCA (at present) without a court order.

A hugely important case, both in mental health terms, but also of wider application.

Consider for example the young adult male admitted to hospital for treatment for head

injury who lacks capacity. Such treatment can only be justified under the MCA, which

does not allow for deprivation of liberty. If he is cared for in circumstances that amount to

a deprivation of liberty, then this will be unlawful and Article 5 will be breached. Consider

also an elderly patient, lacking capacity, being cared for in a residential facility, where

doors are locked and movement restricted, to the degree which amounts to a deprivation.




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For further information relating to this problem access the Department of Health website,

where the safeguards introduced by the Mental Health Act 2007 into the MCA ( to be

implemented in 2009) are detailed.

16.6 ARTICLE 6 – RIGHT TO A FAIR AND PUBLIC HEARING

Excluding criminal cases, what in the civil litigation field, is likely to offend this Article?

Consider:

(1) Patient/claimants forced to use firms with clinical franchises;

(2) the move to use joint experts on the issue of causation (see Oxley v Penwarden

[2000] where this was strenuously criticised);

(3) conditional fee arrangements;

(4) use and appointment of assessors;

(5) summary judgment (“… in an area where the law is being developed on a case by

case basis it is not always clear to the pleader what facts may in the eyes of the

court eventually turn out to be critical. That seems to me to be an additional

reason for being reluctant to strike out a case like the present” per Shiemann LJ in

Capital and Counties plc v Hampshire CC (1997));

(6) GMC when dealing with doctors alleged to have committed an act of serious

professional misconduct – is it a fair trial? Is the GMC independent and impartial?

(See Gautrin v France (1998)).

A challenge to the detention process, e.g., Mental Health Review Tribunal hearings will

(generally) fall within Article 5, rather than 6. See however the impact of Article 6 on the

Judicial Review process in cases noted under 19.4 above (Ex parte Wilkinson etc).

Again in the mental health context, the court has held that the impact of Article 6 means

that doctors certifying treatment should be given in accordance with the statutory

requirements of the Mental Health Act (s.58), should give reasons in writing (see R

(Wooder) v Feggetter & others( [2002] EWCA Civ 554).

16.7 ARTICLE 8 – RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE,

HOME AND CORRESPONDENCE

Arguably the Article which has/will have the greatest impact in the health care field.

Because of the very wide application of this Article it will be relevant to issues

relating to treatment, consent, admission, compulsory treatment, access to

treatment, confidentiality (as we saw in Chapter 14), and a very wide range of

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health related policies and procedures. Again, it is important to note that the Article

8 obligation is both a positive and negative one.

Indeed within Article 8 the rights conferred on different individuals may conflict.

Consider for example the mother’s right to information about her son (right to familylife), against the son’s right to confidentiality (private life).

It must be remembered from the outset that this is a qualifiable right, so that

although many policies may interfere prima facie with Article 8, they are not

unlawful because they constitute a lawful ‘qualification’. As we saw earlier

questions of proportionality are key.

Some cases so far:

October 18th – HUFEA rejected a couple’s bid to use IVF to ensure they have a

daughter.

R v Home Secretary ex p Mellor [2002]. Forbes J, faced with the argument by a

prisoner that under the Convention he had a right to artificially inseminate his wife

since he was denied conjugal visits, said the Article did not create a right to have

children. It was also said that there was no breach of Article 12.

ECHR forced Government to grant British citizenship to the surrogate twins of a

gay couple.

There is also a possible conflict between Articles 8 and 10 (see below). See:Douglas v Hello! Ltd [2001] and Theakston v MGN [2002].

David Glass case (cited above), where David’s Article 8 rights were breached by

the failure of those treating David to bring the matter before the court, when his

‘legal proxy’ (parent) had refused consent to the treatment he was given.

The provisions of the Mental Health Act relating to the role of the ‘nearest relative’

(a statutory role derived from the MHA giving certain rights to a defined individual,

regardless of whether the patient objects to that person being so involved), have

been declared to be incompatible with Article 8. (See, amongst others, Re M [2003]

EWHC 1094 admin).

Evans v UK- as already noted in chapter 17, Natalie Evans’s claim in relation to

Article 8 recently failed.

This is only a small taste of the challenges and Article 8 related issues raised so far. Yet

again, and again not surprisingly, many challenges have been advanced, both

successfully and unsuccessfully, in the mental health field.

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16.8 ARTICLE 10 – RIGHT TO FREEDOM OF EXPRESSION

What if a newspaper intends to publicise the fact that an individual (health carer or not) is

HIV positive or suffering from hepatitis? Can they be stopped under Article 8? If so, what

about Article 10? There are a number of cases where the freedom of the press in

particular has been balanced against Article 8 rights, see eg Ackroyd v MGN, Thompson

v Venables etc.

16.9 ARTICLE 12 – RIGHT TO MARRY

This right is only exercisable in accordance with national laws. Consequently it may have

only very limited applicability. .

16.10 ARTICLE 14 – NON DISCRIMINATION IN THE ENJOYMENT OF THE

CONVENTION’S RIGHTS

It could be that the current rule which says that a minor may consent to a medical

procedure if Gillick competent but cannot refuse medical treatment because he/she is not

capable of making that decision may have to be reviewed. The argument could be put on

the ground that someone (a minor) is being denied the right to say whether he/she should

be treated because of his/her age; adults have the capacity so why not competent

minors?

NB: Protocol 12 of the ECHR was opened for signature on 4 November 2000. This

creates a free standing right of freedom from discrimination.

16.11 OVERALL ASSESSMENT

Although in many aspects the HRA may be said to have had less impact than may

originally have been predicted (and indeed as portrayed by some elements of the media),

clearly in some areas there has been an important impact, for example in relation to

mental health, though some may well argue, not enough!




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SUMMARY

At the end of this chapter there should be:

* an appreciation of the way in which the HRA and the ECHR may impact on certain

areas of medical law.

READING:

See all textbooks as the Human Rights Act

is referred to in most chapters






*

Documents

Open Learning 2015 Medical Lawwrkbk