Business intelligence. Medical on i-law. July 2017 highlights the best of i-law.com and picompensation.com

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1 i-law.com Business intelligence Medical on i-law July 2017 highlights the best of i-law.com and picompensation.com

2 Contents Written by experts in medical law and clinical negligence, Medical on i-law.com features Medical Law Reports, our leading series of reports which focus on the most influential appellate and ground-breaking first instance decisions. This booklet of extracts combines recent articles from Medical Law Reports, Medical Law Reports Plus and, to provide a round-up of our must-see content from July Medical Law Reports Plus is a new service for 2017, and is an online series launched to complement the printed Medical Law Reports, offering early access to the Reports. Personal Injury Compensation is a sister publication to Medical Law Reports, and helps users to track and research influential judgments, as well as stay ahead of the latest debates on liability, human rights, professional regulation, clinical negligence cases and more. 3 R (A and B) v Secretary of State for Health Abortion National Health Service Access to abortion in England Residence based system Ordinary residence Northern Ireland Discrimination National Health Service Act 2006 European Convention on Human Rights. Medical Law Reports Plus, [2017] Med LR Plus 5 Provision of health services: abortion R (A and B) v Secretary of State for Health [2017] UKSC 41; [2017] Med LR Plus 5. 4 Correia v University Hospital of North Staffordshire NHS Trust Clinical negligence Breach of duty and causation Consent to three-stage operation Whether consent vitiated by negligently performed lesser operation Whether lack of warning of injury from negligently performed operation was actionable Appellate court s approach to findings of fact Sufficiency of reasons for rejecting expert evidence. Medical Law Reports, [2017] Med LR 292 The standard of care required of inexperienced doctors FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334. Consent to medical treatment Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ General Medical Council v Jagjivan and Another General Medical Council Appeals by the GMC under Medical Act 1983, section 40A Jurisdiction to hear appeal against finding of no impairment Guidance on approach to appeals under section 40A. Medical Law Reports Plus, [2017] Med LR Plus 7 Duty of care: disclosure of information about Huntington s disease to patient s daughter ABC v St George s Healthcare NHS Trust [2017] EWCA Civ 336.

3 Medical Law Reports Plus, [2017] Med LR Plus 5 R (A and B) v Secretary of State for Health [2017] UKSC 41, Supreme Court, Lady Hale, Lord Kerr, Lord Reed and Lord Hughes, 14 June 2017 Abortion National Health Service Access to abortion in England Residence based system Ordinary residence Northern Ireland Discrimination National Health Service Act 2006 European Convention on Human Rights. In 2012 claimant A, then aged 15, became pregnant. She was ordinarily resident in Northern Ireland, where abortion was unlawful unless performed in good faith to preserve the life of the mother or to prevent a serious and permanent or long term effect upon her health. Such exceptions did not apply to her and therefore, under the relevant devolved legislation governing the criminal law and the provision of NHS services in Northern Ireland the abortion which she wished to have was not open to her. Therefore she, like many other women in her position, elected to come to England to seek termination of her pregnancy. In England, such a termination was lawful but was not available as a free procedure on the NHS to women who were not ordinarily resident in England. In October 2012 A, accompanied by her mother, B, obtained an abortion at a private clinic in Manchester for which the total cost was about 900. In these circumstances A and B brought judicial review proceedings in which they argued that it was unlawful for the Secretary of State to limit the provision of NHS abortion services in England in the way that he had. They maintained that he either had a duty or a power, which it was irrational for him not to exercise, Provision of health services: abortion This was an appeal in a judicial review concerning access by women from Northern Ireland to free NHS abortion services in England. The appellants, a mother and daughter who lived in Northern Ireland, appealed against a decision that the respondent Secretary of State had adopted a lawful policy in relation to the provision of state-funded abortions in England for Northern Ireland residents. R (A and B) v Secretary of State for Health [2017] UKSC 41; [2017] Med LR Plus 5 The conclusion reached by the Supreme Court will be distressing for the group of women affected by the disparity of approach in England and Northern Ireland. Lord Wilson outlined the social, practical and economic reasons which drive women to go to England from Northern Ireland to seek abortions there. He referred to the stigma which in Northern Ireland surrounds unwanted pregnancy, recognising that women are inhibited from explaining the true reason for their need to borrow money. Any delay in raising funds means that the pregnancy continues, and its termination becomes more complex and more costly, with more profound psychological consequences. Ironically, for political reasons, the UK Government decided on 29 June 2017, soon after the Supreme Court decision was published, that it will support a change in the law to enable women from Northern Ireland to have free abortions in England. It is fortunate that this sudden change of heart about a controversial aspect of health provision will bring to an end continuing anxiety for women in Northern Ireland, some of whom might otherwise have sought illegal back street abortions there, with a range of attendant risks. This is an extract of an article first published in, at to make such services available to A in the light of her status as a UK citizen usually resident in Northern Ireland. Furthermore, the denial of NHS services to A represented a breach of her human rights under articles 8 and 14 of the European Convention because it discriminated against her on grounds of her personal characteristic or status, namely her ordinary residence in Northern Ireland. A and B s claims were rejected by the High Court and the Court of Appeal. The claimants appealed to the Supreme Court. This is an extract of the original Report headnote. To access the full headnote, Report and commentary, please visit Medical Law Reports Plus, on i-law.com. informa Business Intelligence / 3

Medical Law Reports, [2017] Med LR 292 Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356, Court of Appeal, Black and Simon LJJ, 12 May 2017 Clinical negligence Breach

4 Medical Law Reports, [2017] Med LR 292 Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356, Court of Appeal, Black and Simon LJJ, 12 May 2017 Clinical negligence Breach of duty and causation Consent to three-stage operation Whether consent vitiated by negligently performed lesser operation Whether lack of warning of injury from negligently performed operation was actionable Appellate court s approach to findings of fact Sufficiency of reasons for rejecting expert evidence. The claimant/appellant received advice and surgical treatment at the defendant s/respondent s hospital in respect of a painful recurrent neuroma. She alleged negligence in both the pre-operative advice and in the performance of the operation, resulting in chronic regional pain syndrome. The defendant s surgeon performed the operation. In his operation record he recorded that he had identified and excised a neuroma. There was no mention of relocating a nerve. The trial judge found that the nerve had not been relocated and that the operation had therefore been performed negligently. The judge found that the neuroma had probably reformed but it had not been proven that this was the cause of her pain. The claimant had suffered from neuropathic pain before the surgery and this had continued afterwards before the new neuroma reformed. The symptoms of chronic regional pain syndrome had been caused by the operation but not by the negligence. The judge held that the claim failed because causation was not made out. The claimant appealed on two bases: lack of consent and causation. This is an extract of the original Report headnote. To access the full headnote, Report and commentary, please visit Medical Law Reports Plus, on i-law.com. The standard of care required of inexperienced doctors The Court of Appeal confirmed that there is no difference in the standard of care required of an A&E Senior House Officer (SHO) and that required of a more senior doctor in the taking of a patient s history. History-taking is a basic skill taught at medical school, in which all hospital doctors are expected to be competent. The court concluded that an SHO had been in breach of her duty of care when she failed to ask the parents of a child patient what symptoms had led to their bringing the child to A&E at FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 It is important that the Court of Appeal has clarified the question of the standard of care required of junior or inexperienced healthcare professionals. Lessons must be learned from litigation by NHS providers and the staff they employ. This particular case will no doubt cause alarm among those responsible for training and supervising junior staff, but the most important message to draw from the case is the need to ensure that trainees are given expert tuition in taking medical history, eliciting appropriate information by asking the right questions, and keeping an accurate record of conversations with patients. Consent to medical treatment In this case, the Court of Appeal concluded that the claimant was unable to demonstrate that there had been a breach of the defendant s duty in respect of consent to her surgery within the principles of Chester v Afshar [2004] UKHL 41, where the last stage of a three-stage operation had negligently been omitted. The decision demonstrates that the somewhat controversial case of Chester v Afshar is very much confined to its own set of unusual facts. Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356 This was an appeal by the claimant against a decision that, although surgery had been performed negligently, that negligence was not the cause of her pain. Although at first sight, this appeal may have appeared as an attempt to fall within the exception to the usual rules of causation, under the Chester v Afashar exception, that was never going to be an effective argument. The finding by the Court of Appeal that negligent failure on the part of the surgeon to perform the third stage of the surgery did not negate the claimant s consent, and that this was not an operation for which specific consent for the particular risk was required, provided clear and logical guidance for those contemplating reliance on the Chester v Afshar principles. These are extracts of articles first published in, at 4 / Business Intelligence informa

5 Medical Law Reports Plus, [2017] Med LR Plus 7 General Medical Council v Jagjivan and Another [2017] EWHC 1247 (Admin), Queen s Bench Division, Sharp LJ VP and Dingemans J, 26 May 2017 General Medical Council Appeals by the GMC under Medical Act 1983, section 40A Jurisdiction to hear appeal against finding of no impairment Guidance on approach to appeals under section 40A. The first respondent was a cardiology registrar. Allegations of misconduct were made against him following a consultation with a female patient. It was alleged that he had conducted the examination and assessment of the patient in an inappropriate manner, and had made various inappropriate statements to the patient in the course of the consultation about how she could increase her heart rate by stimulating herself sexually. It was alleged that his conduct was sexually motivated. A Medical Practitioners Tribunal found most, but not all, of the facts proved and in particular did not find that the first respondent s conduct was sexually motivated. It found that he had been guilty of misconduct, but that his fitness to practise was not currently impaired by that misconduct. It did not, therefore, go on to consider the question of sanction and did not consider it appropriate or proportionate to issue a warning. The General Medical Council appealed under section 40A of the Medical Act 1983, contending that the Tribunal ought to have made a direction affecting the first respondent s registration under section 35D of the Act. The first respondent contended that the GMC did not have jurisdiction to appeal against a finding of no impairment, alternatively that the Tribunal s decision was not wrong. The second respondent, the Professional Standards Authority for Duty of care: disclosure of information about Huntington s disease to patient s daughter It can be difficult to establish whether a duty of care exists in novel situations when there is no precedent in the legal literature on which to rely. The Court of Appeal has recently considered just such a novel case concerning both confidentiality and the nature and scope of the duty of care in negligence. The intersection of these complex areas of law has produced an interesting situation, and it was held, on the basis of the principles established by the House of Lords in Caparo Industries plc v Dickman, that it was arguably fair, just and reasonable to impose on clinicians treating a patient with Huntington s disease a duty to disclose his diagnosis to the patient s daughter, given that the condition could be inherited. The three judges in the Court of Appeal reached the unanimous conclusion that a High Court judge had been in error in rejecting a claim by the daughter of a seriously ill man who had been convicted of manslaughter after shooting her mother dead. ABC v St George s Healthcare NHS Trust [2017] EWCA Civ 336 The outline of the facts and reasoning on the preliminary issue in this litigation strongly suggests the need for the Supreme Court, in due course, to give a definitive ruling on the complex situation arising between the potentially conflicting duties of confidentiality of patients genetic information and the consequences of what could be regarded as the negligent failure to disclose potentially damaging information to an interested party. This is an extract of an article first published in, at Health and Social Care, was joined as a party to the appeal. It supported the GMC s appeal, and, in the event that it were to be found that there was no jurisdiction to hear that appeal, sought permission to appeal out of time under section 29 of the National Health Service Reform and Health Care Professions Act Comment: this was the first case to come before the courts relating to the new power of the General Medical Council under section 40A of the Medical Act 1983 to appeal against relevant decisions of Medical Practitioners Tribunals where the GMC consider that those decisions are not sufficient for the protection of the public. There is clearly a substantial overlap between this power and the power of appeal of the Professional Standards Authority under section 29 of the National Health Service Reform and Health Care Professions Act This is an extract of the original Report headnote. To access the full headnote, Report and commentary, please visit Medical Law Reports Plus, on i-law.com. informa Business Intelligence / 5

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Medical Negligence and Personal Injury

Medical Negligence and Personal Injury Quarterly Newsletter July 2017 During the second quarter of 2017 (April-June) there has been a flurry of cases within the field of medical negligence. There have