Healthcare Brief: latest decisions August 2020
A roundup of recent court decisions raising issues in relation to Article 2 of the Human Rights Act 1998 in medical cases; secondary victim claims; claiming costs associated with commercial surrogacy abroad; the scope of medical practitioners’ duty of confidentiality; calculation of rest breaks for junior doctors; causation and previously unrecognised surgical complications; the scope of the duty of care of a junior doctor; and explaining treatment options.
High threshold for engagement of Article 2 in medical cases
R (Maguire) v Her Majesty’s Senior Coroner for Blackpool and Flyde [10.06.20]
A grey area in the context of medical cases, and in particular vulnerable adults under the care of the state has been explored further on appeal in this case. The outcome confirms that the threshold for Article 2 engagement remains very high in the context of medical cases.
The issues before the Court of Appeal arose from the very sad death of Jackie Maguire who had Down’s Syndrome and associated severely compromised cognitive and communication abilities.
Jackie had lived for more than twenty years in a home for young adults with learning difficulties; the placement was funded and supervised by Blackpool City Council, however, the home was not a care home and staff had no medical or nursing training. Jackie was under a deprivation of liberty safeguards (DoLS) order. She died following an illness and a series of subsequent failings in respect of her care.
The Court of Appeal found that on the evidence adduced at the inquest, “there was no basis for believing that Jackie’s death was the result of a breach of the operational duty of the state to protect life” and it followed that the procedural obligations on the state did not arise.
Contact: Sarah Moore
Secondary victim claims
(1) Saffron Paul (a child, by her mother and litigation friend Balbir Kaur Paul) (2) Mya Paul (a child by her mother and litigation friend Balbir Kaur Paul) v The Royal Wolverhampton NHS Trust [04.06.20]
In this appeal the court considered the law relating to secondary victims who suffer psychiatric injury as a result of witnessing a shocking event. The court was asked to consider whether a claim could be made even when there was not apparent proximity between the negligent act and the event which occurred.
‘Secondary victim’ claims were dismissed at first instance by Master Cook, due to the absence in “proximity in space and time” between witnessing his death and the alleged breach of duty.
Whilst the appeal was allowed in the circumstances of this particular case, and the claim was allowed to proceed, through the control mechanisms that are in place there continues to be a very high threshold to be satisfied in secondary victim claims.
Contact: Laura Ringrose
- Secondary victim claims: proximity between the alleged negligence and relevant event
- Healthcare Brief: latest decisions December 2019
Supreme Court ruling on recoverability of commercial surrogacy costs
Whittington Hospital NHS Trust v XX [01.04.20]
The focus of the Supreme Court appeal in this case was on the damages payable for the loss of the ability of the claimant to bear her own child and whether compensation should include the costs associated with commercial surrogacy abroad.
Three central issues were considered in the appeal.
“(1) Are damages to fund surrogacy arrangements using the claimant’s own eggs recoverable?
(2) If so, are damages to fund surrogacy arrangements using donor eggs recoverable?
(3) In either event, are damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful recoverable?”
Lady Hale gave the majority judgment and dismissed the appeal, allowing the award for the costs associated with commercial surrogacy abroad. In considering restoration of what has been lost (in this case the claimant’s ability to bear a child), the steps taken must be reasonable ones and the costs incurred must also be reasonable.
Contact: Colleen Upton
Scope of medical practitioners’ duty of confidentiality
ABC v (1) St George's Healthcare NHS Trust, (2) South West London and St George’s Mental Health NHS Trust and (3) Sussex Partnership NHS Foundation Trust [28.02.20]
The UK High Court explored the scope of a doctor’s duty of confidentiality and the potential liability arising out of an alleged failure to disclose to an ‘at-risk’ third party.
The claimant’s father (F) was convicted of the manslaughter of his wife on the grounds of diminished responsibility. F was detained at the Shaftesbury Clinic, run by the second named defendant. In 2009, it was suspected that F had Huntington’s disease and he was transferred to St George’s Hospital, where his diagnosis was confirmed. The third named defendant employed F’s social worker around the time of his diagnosis. Shortly after F was provisionally diagnosed, the claimant fell pregnant and informed her father. The second named defendant became aware of her pregnancy through information provided by her father.
F’s doctors asked F if they could inform his daughter of his diagnosis as she had a 50% chance of inheriting the condition. F refused to give the doctors permission for fear that the claimant might have an abortion. The doctors discussed the possible disclosure of F’s diagnosis to the claimant, without his permission, but decided not to breach his confidentiality.
In April 2010, the claimant gave birth to her daughter and four months later was informed in error by one of her treating doctors that her father had the disease. The claimant herself was subsequently diagnosed with Huntington’s disease in 2013.
The Court was satisfied that an appropriate balancing exercise had been undertaken by the second named defendant regarding the disclosure of the information. The second named defendant was found not liable for a failure to disclose to the claimant.
Contact: Joanne O’Sullivan
Calculating rest breaks for junior doctors
Hallett v Derby Hospitals NHS Foundation Trust 
A group of 21 junior doctors, led by Dr Hallett and supported by the British Medical Association, successfully argued that the approach taken by Derby Hospitals NHS Foundation Trust (the Trust) when calculating rest breaks for junior doctors was flawed and resulted in them working longer than they should have done, without receiving the correct pay.
To ensure compliance, the Trust carried out monitoring over a two-week period, twice a year, using commercial software. If a rota was shown to be non-compliant, all doctors on that rota would be entitled to receive double pay, back-dated to three months after the previous compliant monitoring round. This would apply until a further monitoring round could show the rota to be compliant.
In practice, monitoring information was often incomplete. The Trust, in line with standard practice in the NHS, dealt with missing data by supplementing it with expected data from advance rotas, rather than the actual recorded shift patterns.
It was alleged that certain parts of three Department of Health (DOH) documents that specifically prescribed how Trusts should address monitoring and pay uplifts were incorporated into junior doctors’ contracts of employment.
The Court of Appeal agreed with Dr Hallett. The Court held that the DOH documents were incorporated within the doctors’ contracts of employment and therefore the approach to monitoring as set out in the DOH documents should have been applied. The Court concluded the Trust’s approach “was both in breach of the contract on its proper interpretation and irrational".
Contact: Oonagh Sharma
Probable cause of unrecognised surgical complication not identified
Collyer v Mid-Essex Hospital Services NHS Trust 
Kennedys successfully defended the Trust in this unique case where the claimant suffered a previously unreported surgical complication. Despite experts advancing a number of explanations for the injury, the court could not identify any mechanism as a probable cause.
The claimant underwent lifesaving laryngectomy to successfully treat cancer but suffered a never before reported complication of bilateral hypoglossal (tongue) nerve palsy.
The judge concluded that there was a lack of evidence from either party that would permit her to find the cause for the claimant’s injury on the balance of probabilities. Accordingly, no cause (let alone negligent) could be established and the claim was dismissed.
Contact: Ross Bell
The scope of the duty of care of a junior doctor
George Andrews v Greater Glasgow Health Board  CSOH 31
The Scottish Court of Session judgment in this case addressed the scope of the duty of care of a junior doctor.
This case concerned the death of an elderly lady caused by an ischaemic bowel. She had attended hospital by ambulance with symptoms of chest and upper epigastric pain, vomiting and diarrhoea. Investigations were mostly normal, and she was discharged home by the junior doctor with a diagnosis of viral gastroenteritis. Prior to her discharge, the junior doctor discussed the deceased’s case with the on call consultant who approved the decision. Her symptoms developed and following a return to hospital, ischemic bowel secondary to superior mesenteric artery thrombosis was noted. A laparotomy confirmed significant necrosis and resection was unfortunately not possible.
The pursuer argued, inter alia, that the junior doctor should have recognised that the deceased might be suffering from a serious medical condition; and that he therefore failed to advise her that she should be admitted to hospital.
In finding for the pursuer, Lord Pentland held that the junior doctor was negligent in having failed to give that advice, which the deceased would have accepted. Furthermore, the junior doctor had provided the consultant with inaccurate information about the deceased and her circumstances.
Related item: The scope of the duty of care of a junior doctor
Explaining treatment options and risk post-Montogomery
Johnstone v NHS Grampian  CSOH 90
In this Scottish case the Court of Session found that the pursuer’s consent to medical treatment had been given on the basis of sufficient information about the alternative treatments available and the potential risks of treatment so as to be ‘Montgomery compliant’.
Whilst the pursuer was unhappy with the outcome of surgery he underwent in 2011, no claim was made as to the adequacy of the surgery itself. Instead, his case focussed entirely on whether he had given valid consent. The pursuer alleged that his consent to the operation had not been given on the basis of sufficient information.
Relying upon the note of the consultation, the court preferred the evidence of the treating surgeon and held that the risks of the operation and the availability of other options explained by the treating surgeon were ‘Montgomery compliant’. The option of ‘doing nothing’ had been mentioned to the pursuer, but in any case, was not a reasonable treatment option based on the doctors’ diagnosis that active treatment was required. The doctors could not therefore be criticised for failing to encourage the pursuer to go down the route of ‘doing nothing’.
Related item: Explaining treatment options and risks post-Montgomery