Friday, 7 December 2012

Negligent Medical Advice - Proving Causation

The recent High Court decision in  Less-v-Hussain [2012] EWHC 3513 demonstrates the difficulties for claimants seeking to prove that but for negligent medical advice they would have chosen not to proceed to try to have a child, or to have continued with a pregnancy, or indeed to have elected to undergo surgery or treatment etc.

Whilst there was much legal excitement following the House of Lords decision in Chester-v-Afshar, with some believing that it heralded a sea-change in causation in informed consent cases, it now looks increasingly like a judgment which will not have wider application in clinical negligence cases, although some of the statements of principle concerning a move from paternalism to autonomy are very important.

The Judge in Less-v-Hussain encountered the difficulty that, of necessity, arises in all cases where a claimant alleges that but for negligent advice they would have taken a different course from the one which in fact caused them injury or loss. The difficulty is that the claimant, who now knows what it is like to experience the injury or loss, has to establish what they would have chosen to do when not knowing the actual outcome of that decision (the delivery of a disabled child, the post-operative complication of infection leading to the limb amputation ...). Understandably the defendant will contend that the claimant's evidence is given through the "retrospectoscope". It is the knowledge, now, of what it is like to have a disabled child, or to lose a limb, which leads the claimant to say that they would have chosen a course which would have avoided such consequences.  It does not follow that, they would not have accepted the risk of that consequence in advance of knowing the outcome of their decision.  

How can a claimant overcome the suspicion that retrospect is governing their evidence? Some relevant factors might include the following:

Generally patients do not know what it would be like to experience the complications of surgery or to have a disabled child, but in some cases they might have had direct or indirect experience. If so, then the knowledge, say, of how their cousin has struggled to cope with a leg amputation might have informed their decision about taking a 2% risk of such an outcome.

If the advice about risk had been given, what questions would they have asked their clinician or surgeon concerning the risk? What further advice would they have then been given? How would the surgeon or clinician have communicated that further information?

What evidence is there of how risk averse the claimant was generally?

What were the family dynamics and pressures at the time?

Who else might have influenced their decision? Evidence from their partner, parents, children or siblings might be relevant.

What was the claimant's financial or work situation at the time? I had a client who was not advised of a material risk of an outcome to a procedure which would have prevented him from working in the building trade. The procedure he underwent was to alleviate a nuisance symptom. Had he been advised of a small risk of an outcome which would have put an end to his career then, he said credibly, he would not have gone ahead with the operation.

Were there cultural or religious reasons why the claimant would or would not have taken into account the risk or, for example, decided to terminate the pregnancy?

Are there statistics showing what proportion of parents, say, choose to terminate a pregnancy on being told of a particular fetal abnormality? Can the expert witnesses say what most patients choose to do on receiving the advice which was negligently omittetd in the particular case?

One further feature of the case ... 

In obiter comments the Judge in Less-v-Hussain held that in advising the female claimant as to a potential future pregnancy, such advice having been given to her alone, there was no duty of care to her partner with whom she subsequently conceived, although he might in principle recover as a secondary victim. Of course the position may well have been different if the negligence was in failing to detect a fetal abnormality on an ante-natal scan when it is known who the father is and the parents are in an established relationship and will both be likely to bring up the child when born. Fathers have recovered damages in wrongful birth cases as primary "victims".

Wednesday, 28 November 2012

Rabone - Claiming Damages under the Human Rights Act

This is a short blog post with a link to a paper I have written on this subject.

I acted as Counsel for Mr and Mrs Rabone throughout their case, instructed by Pannone LLP and led by Robert Francis QC and, in the Supreme Court, by Jenni Richards QC, before I took silk in March 2012.

There have been widely differing reactions to the judgment of the Supreme Court. In Clinical Risk, Bertie Leigh, Senior Partner of Hempsons, the firm which represented the Trust, writing in a personal capacity described the case as vitally important but the decision as profoundly wrong. Meanwhile, in his commentary the Medical Law Reports, James Watson QC said of the decision that it was "one small step for human rights and one giant leap for the humanity of our compensatory system."

Psychiatrists writing to Psychiatry have questioned the expert evidence in the case. It should be noted that it was the Defendant's expert who advised that the risk of Melanie Rabone committing suicide during her period of home leave ranged from 5% to 20%. The Claimant's expert would not use percentages in his written evidence, but was pushed in court to give a percentage figure. His was higher than 20% and the Judge preferred the evidence of the Defendant's expert on that issue. Whatever the general risks of the population of psychiatric patients with depression, the experts have to look at the particular risks of the particular individual and ask whether the risk of suicide was real and immediate and whether that was or ought to have been known to the authorities.

One other note: no judge who heard this case found that the breach of article 2 comprised a failure to detain Melanie under the Mental Health Act 1983. Indeed it was no part of the Claimant's case that she ought to have been detained. The trial judge found that if she had been refused home leave she would have been compliant and therefore would not have required detention. The Claimant's psychiatric expert considered that allowing limited home leave with conditions attached would have been reasonable and would have been adequate protection against suicide. This case was not about detaining patients (pace Mr Leigh).

Here is the paper  which can also be found on my chambers website.

Wednesday, 21 November 2012

When a Cosmetic Surgery Clinic Goes into Administration

The Harley Medical Centre Limited has gone into administration. Where does that leave those of its patients who have been dissatisfied with their treatment?

This blog addresses the relationship between patients and the providers of cosmetic surgery services, in the light of the news that The Harley Medical Centre Limited has gone into administration. By "provider" I mean a business rather than an individual surgeon. 

Legal Liability

Typically a patient responds to advertising or promotional material from a provider, contacts the provider, speaks initially to an employee of the provider, enters a contract with the provider and pays the provider for treatment. Nevertheless, when things go wrong and providers are sued, more often than not they contend that they do not provide cosmetic surgery, they merely introduce the patient to the surgeon and only provide the facilities to allow the surgery to take place. Thus, if the surgeon makes an error causing injury to the patient, the provider contends that it is not legally liable.

That contention is controversial. Much will turn on the terms and conditions in the contract (few patients read the small print) and the circumstances in which the contract was entered. So, notwithstanding the provider's denial of liability, it may be found to have contracted to provide the surgery itself. The provider may also be held to have had a duty of care to the patient and may be liable in negligence for injuries caused.

The provider is more likely to accept that it supplied implants, nursing services or theatre equipment pursuant to contract. By law, goods supplied under contract by a business to an individual should be of satisfactory quality.


Surgeons are always potentially liable in negligence for injuries caused to their patients, whether or not they are also liable in contract. Surgeons ought to have full professional indemnity insurance to cover their surgery and pre-operation advice, although I have had cases involving surgeons based abroad, but operating in the UK, who did not have full insurance. It may sometimes be difficult even to find the surgeon who lives abroad, let alone to recover compensation through his/her insurer. 


If the provider does not have effective insurance and goes into administration then there will be very limited assets with which to meet any legal liability to pay compensation to patients. Will the provider have insurance for its liabilities? It seems as though a number - who knows whether it is the majority or a minority? - do not. I do not know whether the Harley Medical Centre Limited had insurance to cover claims against it by patients, including claims in respect of PIP implants, but if it did, then it is surprising that it needed to go into administration.  Financial data  for the company in recent years is available on the internet.

If the Harley Medical Centre Limited was not insured in respect of its liabilities to injured patients then those patients may have nowhere to go to recover compensation. Some will be able to sue their surgeon where the injury is due to surgical negligence. Others who cannot prove negligence, or who cannot locate their surgeon, or whose surgeon was not fully insured, may have no means of recovering compensation.

On 17 November 2012 The Harley Medical Group (The Harley Medical Centre Limited was an associated company) tweeted; "Our business continues as normal following a financial restructuring. Nothing has changed for our patients. Same care, clinics and surgeons." But the restructuring may mean a significant change for patients seeking compensation from the Harley Medical Centre Ltd unless it was fully insured in respect of its potential liabilities to injured patients and that insurance remains valid.

The Harley Medical Group's mission statement includes the following: "Our reputation has been built upon trust. Honesty, openness and assurance are fundamental to the relationships we build with our patients".

In that spirit  perhaps The Harley Medical Group could make a full statement on its website clarifying its insurance position and openly stating whether patients who are found entitled to compensation from the Harley Medical Centre Limited,  in respect of treatment provided at its clinics or hospitals, will receive full compensation.

Could other providers go into administration? Of course. This case is not the first and it will not be last. So patients seeking cosmetic surgery may want to ask their provider about their insurance cover as well as seeking confirmation of their surgeon's insurance. Insurance should cover the period when the advice and treatment is given and not just the period when a claim is made. Does it cover the supply of products such as implants? Is there a limit to the cover for any one claim? Does it cover pre-operative advice? Patients may also want clarification in writing as to with whom they are entering a contract and what exactly is the provider agreeing to provide?


I presume that the Harley Medical Group will continue to honour their policy in relation to PIP implants, but clearly that policy does not include the payment of compensation.

Credit Cards

If a patient pays for treatment by credit card then there is a possibility of recovery of compensation through the supplier of credit.

A Level Playing Field

Even the best run hospitals will, on occasion, have to meet valid claims for compensation by injured patients. The NHS will always honour its legal liabilities to injured patients, so why shouldn't private providers be required by regulation to take out insurance so that they do the same, particularly when the NHS is expected to treat private cosmetic surgery patients when things go wrong? Of course if they do not pay insurance premiums then private providers of cosmetic surgery will be able to offer lower prices to patients. But who ends up paying the price for cheaper treatment?

Monday, 19 November 2012

Proving Reduced Life Expectancy after Delay in Diagnosing Cancer

A recent High Court decision underlines the importance of using median life expectancy to prove loss in cases of delay in diagnosing cancer.

If a claimant's GP has been negligent in failing to refer them for investigation for  a suspected cancer, and as a result there has been a delay in diagnosis with a resultant delay in commencing treatment, then there are likely to be various kinds of injury to consider. The delay may have lead to more radical or extensive treatment being required: for example the patient might need a mastectomy rather than a lumpectomy. They might require adjuvant treatment when, without the delay, surgery alone may have sufficed. The patient might have suffered psychiatric injury as a result of the delay. But many patients/claimants are most concerned about the effect of the delay on their life expectancy.

Oncologists tend not to advise their patients in terms of years of life expectancy. They do not say that evidence shows that median life expectancy for someone with a T1N1M0 tumour is 8.5 years. Rather, they talk of the chances of a cure, or of survival beyond 5 or 10 years. Gregg-v-Scott [2005] 2AC 176 established that there is no valid claim for a reduced chance of a cure. So there was no compensation for delay which reduced the chance of a cure (survival beyond 10 years) from 42% to 25%.

However, two of the judges in the House of Lords in Gregg-v-Scott , described how the impact of negligent delay in diagnosis on life expectancy might have been argued. It might have been possible to assess the claimant's median life expectancy (MLE) without the delay, and compare that with his MLE as it was in fact (following the delay). The difference - a number a months or years - would be the loss. That approach might allow for calculation of a claim for loss of earnings in "the lost years", for example. In a fatal case, a difference in MLE without delayed diagnosis, and the date of actual death might allow for calculation of a period of dependency.

MLE is the period of time for which 50% of patients with the same grade, stage and size of tumour as the claimant will live, given the treatment which the claimant ought to have had on earlier diagnosis (or which he had following actual diagnosis). On the balance of probabilities the claimant will live (or would have lived) at least as long as MLE. On the balance of probabilities he will not live (or would not have lived) any longer.
In the recent decision of JD-v-Mather [2012]EWHC 3063 (QB) Bean J held that the evidence showed that even without the negligent delay the claimant's chances of survival for at least 10 years were below 50% and that therefore, following Gregg-v-Scott, the claimant's principal and pleaded claim failed. However, an alternative case had been brought, late in the day, that the delay had caused a reduction in MLE. That claim succeeded.

It is a question of how the evidence is presented. In some cases of mine, expert evidence has been obtained for medical statisticians.

The use of MLE to prove a reduction in life expectancy will not work in every case. It helps if the cancer is one for which there is sufficient data to allow for a "calculation" of MLE. Of course every patient is an individual, but statistical evidence is surely of great assistance in such cases (as Bean J found). Just because a patient had a less than 50% chance of survival for at least 10 years even without the negligent delay, it does not follow that their life expectancy has not been reduced by the delay. The use of MLE allows the reduction to be established.

Friday, 16 November 2012

"Mind Reading" and Letting Die

Mind Reading and Consent to the Withdrawal of Life Sustaining Treatment

In Airedale Hospital Trustees-v-Bland [1993] AC 789 the House of Lords set out principles to be applied on an application to withdraw life sustaining treatment from a patient in a persistent vegetative state.

It was regarded as axiomatic in such cases that the patient's own wishes could not be known and that life-sustaining treatment "is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition ... it is the futility of the treatment which justifies its termination." Lord Goff.

The Bland judgments have provided the template for subsequent court decisions in relation to patients in a PVS.

The work of Adrian Owen shown on Panorama this week calls into question those assumptions. Brain scanning has been used to "read" the minds of patients. They are asked to imagine certain activities and images show their brain activity. Once it is established that the patient is able to imagine, say, playing tennis and to do so on cue, then a question can be put to the patient. The programme showed a patient in a vegetative state being asked whether he was in pain - imagine playing tennis for "yes" or walking through the rooms of a house for "no". The brain activity shown led Adrian Owen to conclude that the patient was able to understand and consciously respond to the question.

Only about 20% of patients who were clinically in a vegetative state were found to dsiplay consistent brain activity on cue.

At the very end of the programme the question of consent to die was briefly touched upon. One parent of a patient said that he would never ask the question unless his son "brought it up". Of course, all the patient might be able to do, using the techniques shown,  is "answer" questions. He would not be able spontaneously to communicate a wish to have or not to have treatment. Another comment made was that being able to answer questions about say pain, was not the same as establishing capacity. I wonder whether it is as simple as that?

A severely disabled adult may have capacity to make a decision or an advance decision about treatment - see X Primary Care Trust-v-XB [2012] EWJC 1390 (Fam) in which the patient had communicated an advance decision by eye movement alone. The Mental Capacity Act 2005 makes clear that difficulty in communication does not determine capacity. If a patient's answer to a question about pain is regarded as having validity, as showing that the question is understood and that the patient has given an informed answer to it, why would other questions, such as the desire to continue treatment, not have validity? by a series of questions some patients may be determined to lack capacity, but others may be found to have capacity.

If the conclusion that these patients are communicating meaningfully is correct, then the assumption made in Bland that the patient in a PVS has no consciousness is surely wrong. And that assumption has underpinned much of the judicial decision making about withdrawing treatment from such patients.

No doubt the understanding and use of this technology will progress. More sophisticated interactions will become possible. The hope would be that they can lead to beneficial treatment and rehabilitation, but communication, however rudimentary, also provides information as to the patient's wishes and feelings. It is difficult to ignore the opportunity to determine those wishes and feelings when decisions are being made whether to continue treatment of that patient.

Wednesday, 7 November 2012

Variable Periodical Payment Orders

Variable PPOs are available to litigants but rarely used. A quick look at the law behind these orders. Unlike with provisional damages, a variable PPO may allow a defendant to apply for a reduction in damages in the event of a significant improvement in the claimant's condition.  When might that power be exercised?

Variable PPOs

By article 2 of the Damages (Variation of Periodical Payments) Order 2005, if there is a chance that at some time in the future the claimant will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration; or that the claimant will enjoy some signficant improvement in his physical or mental condition, where that condition had been adversely affected as a result of that act or omission, the court may provide in an order for periodical payments that it may be varied.

Article  4 of the Order provides that the court may make a variable order in addition to an award of provisional damages.

By article 5 the variable order must specify one or more disease or type of deterioration or improvement and may specify the period within which an application to vary may be made.

Whilst repeat applications may be made to vary the period specified in the order (article 6) only one application to vary the amount may be made in respect of each specified disease etc. (article 7).

On varying the order the Court may vary the amount of annual payments and/or order that a lump sum be paid in addition to the existing periodical payments.

The Order mirrors section 32A if the Senior Courts Act 1981 and CPR 41 APD concerning provisional damages awards save that, unlike with provisional damages orders, variation of periodical payment orders may be triggered by an improvement. Thus, although article 4 envisages variations to both the lump sum and periodical payments, the lump sum could not be reduced in the event of an improvement. The practical reasons for this difference are evident - most or all of the lump sum may have been spent, whereas future periodical payments are yet to be received and so could be varied downwards without disastrous implications for the claimant.

In Kotula-v-EDF [2011] EWHC 1546 (QB) Irwin J approved in principle provisional damages and variable PPO awards for a claimant who had a chance of suffering syringomyelia at some time in the future. He followed the guidance in Wilson-v-MOD [1991] 1All ER 638 and Curi-v-Colina The Times 14 October 1998 (also on Lawtel), namely a three stage test as to whether provisional damages were appropriate. First was the chance of a disease or deterioration more than fanciful? Second, if it materialised would it be serious? Third, weighing the benefits and disadvantages of a once and for all award against reserving the claimant's right to reserve, would justice be done by making a provisional award. A provisional award would be more likely to be suitable where there would be some clear cut event triggering future entitlement. Anticipated difficulties in establishing causation were not conclusive against making a provisional award (but the claimant might not want to press for a provisional award in such cases). 

Irwin J accepted that the same considerations applied to the question of whether there ought to be a variable PPO. However, the third stage is of less obvious relevance to a variable PPO. Once a decision has been made to make a PPO, then the defendant (or its insurers) will not have finality in any event - they will continue to be involved in the claim for so long as the periodical payments are to be made and whether they are variable or not. So, the third stage above should not have as much relevance as it does to a provisional damages decision.

In any claim where provisional damages would be appropriate, but the claim is suitable for a PPO, then a variable PPO as well as a provisional lump sum should be the order of choice. Are variable PPOs being under-deployed? 


There is, so far as I am aware, no authority on the use of variable PPOs for a potential improvement in the claimant's condition. At seminars and on twitter I have now asked about 300 solicitors whether they have come across such an order or agreement, but so far no-one has done. Any suggestions as to how the courts would approach such orders are therefore speculative. However the principles which govern provisional damages would surely apply, with suitable modification: the chance of improvement should be more than fanciful, it would make a significant difference if it did occur, and the balance of justice should weigh in favour of allowing the defendant to reserve.

As a generality there is always some chance that future progress in medical science, treatments or equipment will produce significant improvements in the condition of injured claimants. But the courts will be looking for a more focused, clearly identifiable chance of improvement. Arguably the improvement must be in the claimant's physical or mental condition, not necessarily in the functional consequences of his condition, although it is sometimes difficult to distinguish the condition from its consequences.

Variable PPOs with a view to a future improvement might be appropriate in cases where a period of rehabilitation might bring about a significant improvement. Expert evidence might be that the claimant's psychiatric condition, or chronic pain condition may improve following long term or intensive therapy or even upon the conclusion of proceedings. 

In present practice, rightly or wrongly, PPOs tend to be used only in very serious injury cases - less so in cases where the periodical payments would be less than about £30,000 per annum - and in the great majority of such cases the claimant's injuries are permanent and unlikely to improve.  

Whilst non-variable PPOs will include provision for future medical assessment of the claimant, the prospect of a PPO being varied because of a significant improvement in the claimant's condition might tempt defendants to insist on more frequent assessments or even future covert surveillance. 

Those defendants who are adverse to PPOs generally, will miss out on the potential, in some few cases, to reduce damages in the future in the event of a significant improvement in the claimant's condition. On the other hand, the threat of a variable PPO reducing damages on future improvement might persuade a claimant to prefer a lump sum award.

Thursday, 25 October 2012

Serious Injuries - The Search for a Governing Principle

A quick look into the courts' approach to the fundamental question of the the right approach to determining damages awards in serious injury cases with some comments on two High Court decisions in the last 18 months: Whiten and AC.

In such cases it is common for the court to be faced with two sets of proposals from the parties' respective experts. The claimant's Occupational Therapist might suggest a particular kind of wheelchair costing £9,000, the defendant's expert a different kind costing £6,000. The claimant's care expert might say that a carer is required to be present ten hours per day, the defendant's care expert advises that the claimant's needs could be met by a carer attending eight hours per day.

The basic restitutionary principle governing damages in tort is well known - the aim being to put the claimant into the position, so far as money can, which he or she would have been in but for the injury caused by the tort. But what are the limits to that? Is there a limit to the amount of money which should be awarded to make even small improvements to the injured claimant's quality of life? And where there are differing proposals to provide restitution to the claimant, both of which meet the reasonable needs of the claimant, how do the courts determine which set of proposals should be adopted?

In Heil-v-Rankin [2001] 2 QB 272 at paragraphs 22, 23 and 27 Lord Woolf in the Court of Appeal held that:

".. the aim of an award of damages for personal injuries is to provide compensation. The principle is that 'full compensation' should be provided. … This principle of 'full compensation' applies to pecuniary and non-pecuniary damages alike. … The compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable".

Yet in other cases the principle of "full compensation" has been interpreted in a way which has suggested that provided that the court is satisfied that the Claimant's proposals are reasonable then it matters not what the Defendant's proposal is. So in A-v-Powys [2007] EWHC 2996 (QB) Lloyd Jones J held:

"The basis of assessment is the test of reasonableness as stated in Rialis v Mitchell, (Court of Appeal, 6th July 1984) and Sowden v Lodge [2005] 1 WLR 2129. The claimant is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether, objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the claimant is reasonable it is no answer for the defendant to point to cheaper treatment which is also reasonable. Rialis and Sowden were concerned with the appropriate care regime. However, the principles stated in those cases apply equally to the assessment of damages in respect of aids and equipment. In determining what is required to meet the claimant's reasonable needs it is necessary to make findings as to the nature and extent of the claimant's needs and then to consider whether what is proposed by the claimant is reasonable having regard to those needs. (Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), Teare J. at para. 59; Taylor v Chesworth and MIB [2007] EWHC 1001 (QB) Ramsay J. at para 84.)

So, once the claimant's proposal has been found to be reasonable, the defendant's proposal becomes irrelevant, or so that passage (and later parts of the judgment) would suggest. The question of doing justice to the defendant which was said by Lord Woolf to be relevant, seems marginalised or perhaps even ignored.

Interestingly in Rialis Stephenson LJ said "A judge must resist the temptation to make the wrongdoer pay for the best possible treatment regardless of whether the injured party will in fact receive such treatment or whether it is reasonable for him to receive less expensive treatment."  Thus the subsequent reliance on Rialis to support the approach set out in A-v-Powys is open to challenge.

In two more recent cases, High Court Judges have given different statements of the principle to be applied to such claims.

In Whiten-v-St George's Healthcare NHS Trust [2011] EWHC 2066 (QB) Mrs Justice Swift stated that "The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is "reasonable", I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item."

The claimant's reasonable needs are to be identified but the damages awarded must take into account the requirement of proportionality (which includes the question of justice to the defendant). Did this judgment, first instance though it was, herald a return to the Heil-v-Rankin approach and away from the the A-v-Powys approach?

Well, in AC-v-Farooq and MIB [2012] EWHC 1484 (QB) King J appeared to revert to the A-v-Powys approach.

"I accept that the Claimant is entitled to damages to meet her reasonable support needs arising from her injury for the rest of her life, and as far as possible to give her the quality of life which she would have had but for the accident. I also accept the proposition that where there are a range of 'reasonable options' to meet the Claimant's needs, the question is not in the first instance whether some other provision is reasonable, but whether the provision chosen or claimed for on behalf of the Claimant is reasonable (see Rialas v Mitchell, The Times 17 July 1984, per Stephenson J at pp 24-6; Sowden v Lodge [2004] EWCA Civ 1370. [2005]1 WLR 2129). "

It might be pointed out that King J used the phrase "in the first instance" as a qualification which might have allowed a second stage consideration of whether some other provision is reasonable. However, his statement of principle does not sit easily with that of Mrs Justice Swift.

Claimant representatives will seek to persuade the court of the Rialis/Massey/Sowden/Powys statement of principle: the claimant and those acting for the claimant are entitled to choose the care, equipment etc which suits him or her. The question for the court is not whether the proposals are in the claimant's best interests. The damages are designed to achieve restitution. If the claimant's reasonable needs are identified and the choices for meeting those needs are reasonable (not excessive) and achieve restitution, then it is no answer for the defendant to point to a cheaper choice, even if that choice is also reasonable. 

Defendant representatives will emphasise the Heil and Whiten approach - there is a balance to be struck and if there are two reasonable proposals then the court should consider whether the additional cost of the claimant's proposal is proportionate to any additional benefit to the claimant from that proposal. Once a reasonable need is identified, there remains a question of the reasonable cost of meeting that need. If there are two beds which each meet the claimant's reasonable needs and one is significantly cheaper than the other, why should the defendant be ordered to pay for the more expensive one?

Whichever approach you prefer, it seems surprising to say the least, that there is no consistent formulation of such a fundamental principle.

Monday, 22 October 2012

Lost Weekend

Do not get ill at the weekend.

New research adds to concerns about consultant cover in the NHS at weekends.

The research was published in the Royal Society of Medicine Journal and showed that weekend hospitalisation was associated with signficantly higher death rates, Dr Andrew Goddard, Royal College of Physicians director of medical workforce, said:

‘This study is further evidence that patients admitted at weekends are more likely to die following admission than patients admitted to hospital during the week. There are many reasons for this, but the two most important are that the patients are more ill and there are fewer doctors available.

‘The Royal College of Physicians has already called for any hospital admitting acutely ill patients to have a consultant physician on-site for at least 12 hours per day, seven days a week.’
It seems that mortality rates are at least 10% higher in NHS hospitals for patients admitted at weekends.

Purely anecdotally (from my own practice) it is clear that there are higher mortality rates at weekends. Moreover, the problem may be understated, because poor service at weekends may affect mortality even for some patients admitted on weekdays. A patient admitted on a Friday night with an acute abdomen may have the most urgent need for adequate care in the early hours of the following Sunday.

Further, from my experience of negligence cases, I would not be surprised if the morbidity rate was also significantly higher both at weekends and as a result of poor weekend cover.

Medical experts in conference often tell me that the standard of service at weekends is not as good as on weekdays. It seems that investigations are not always available and - this is purely my impression - junior staff are reluctant to call out more senior colleagues to see patients.

I am not an NHS manager, but surely one way of reducing the compensation bill for the NHS, and more importantly to protect patients, would be to manage the service on the basis that patients are likely to need the same level of service whenever they come into a hospital.

It would be very interesting to see figures from the NHSLA of what proportion of claims arise from allegations of negligence at weekends. I would expect it to be higher than 2/7ths!

It is no defence to a claim for damages that the acts and omissions claimed to have been negligent were on a Saturday or Sunday. There might in some cases in which a Defendant Trust might argue that as a result of resource restrictions it was not possible to offer the same level of service at a weekend as on a weekday, but if that is so, then the public has a right to know that that is the position.

Following initial publication of this blog it was pointed out to me by twitter that the nature of patient admissions at weekends might increase mortality. It may of course be true that there are far more admissions following heavy drinking or fights at weekends. That may skew the mortality figures upwards. I wonder if also some patients wait until the weekend to go to hospital because they do not want to take time off work, or have to be around for the children during weekdays. But these factors, if they are explanations of higher mortality following weekend admission, would surely mandate even more resources and consultant cover for weekends rather than less.

Wednesday, 10 October 2012

The Penny and the Bun - Simmons -v-Castle Round 2

The Court of Appeal has today (10 October) given a second judgment in Simmons-v-Castle.  It has qualified the introduction of an across the board 10% increase in general damages with effect from 1 April 2013. The uplift will not apply to claimants who had entered CFA's before that date. However, it has rejected the suggestion that the uplift should only ever apply to claimants who are liable to pay their lawyers' success fees.

The Court had previously, without hearing submissions, hijacked a settled quantum appeal to announce a 10% increase in general damages for (i) pain, suffering and loss of amenity arising from personal injury, (ii) nuisance, (iii) defamation and (iv) other torts causing suffering, inconvenience or distress to individuals. The 10% increase was to come into force from 1 April 2013.

The judgment was given because of an understanding or covenant between the judiciary and the government regarding the reforms to civil litigation costs (following the Jackson reforms). The uplift in damages was an important part of the reforms, designed to compensate claimants for having to pay their lawyers' success fees, rather than recovering those fees from the losing party.

The 10% uplift is expressly not about compensating claimants for their injuries. The justification is not to give claimants more appropriate levels of damages for their pain, suffering and loss of amenity, but to give them money to pay their lawyers.

On the application of the Association of British Insurers, the Court agreed to re-open the appeal and to hear submissions. Concerns had been expressed about the fact that the uplift would benefit all claimants, even those who would still be able to claim all their costs, including success fees, from losing parties after 1 April 2013 (because they had entered into CFAs before that date). 

In my view the use of compensation for injury as a means of balancing a reform to costs was wrong in principle and was bound to give rise to injustice. If you adjust the general damages for all claimants then there will be gainers and losers. Some claimants will not have to pay success fees, some (very few) will pay fees which coincidentally match the 10% increase, others will pay fees which exceed the increase. The unattractive alternative is to award different levels of general damages to different claimants according to their liability to pay success fees.

It would have been better to leave general damages out of the costs changes altogether.

Now the Court of Appeal has addressed the submissions of various interest groups within the civil litigation system. It accepted ABI's primary submission that the 10% uplift ought not to apply to claimants who had already entered into a CFA before 1.4.13. It has determined that the conclusion of its original judgment ought to have been:

"Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, (v) mental distress, or (vi) loss of society of relatives, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000".

The Court said that to hold othewise would be to give claimants "the penny and the bun".

However, after 1.4.13 many claimants will have the penny (the uplift) and they will have the bun (not having to pay success fees). The Court recognised that this would happen to claimants not funding claims by CFA or who were self represented and accepted it as a price worth paying for the simplicity and overll justice of the reform. However, in my opinion the 10% uplift will be a windfall in most cases because the market will drive out success fees. And if the market does not support claimants paying lawyers out of damages, then the great majority of claimants will have the penny and the bun.

Tuesday, 2 October 2012

PPOs for Dying Claimants

Final settlement of a personal injury claim precludes claims under the Fatal Accidents Act should the claimant later die of the injuries caused by the defendant - Thompson-v-Arnold. There are several means of protecting future claims by the dependants of living claimants who have a reduced life expectancy. Where liability is not disputed and death is likely within a short period, interim payments could be agreed or ordered, with final resolution to be determined following the claimant's death. Alternatively, some heads of claim could be determined, with others, including future care or earnings, stayed. When the claimant dies, those stayed claims become the dependency claims of the bereaved relatives. Provisional damages might be claimed - an award of provisional damages does not preclude future claims arising out of the death of the claimant.

In some delay in diagnosing cancer cases which I have handled we have settled the PI claim to include recovery of damages which would be claimed under any future Fatal Accidents Act claim. However, the courts do not have the power to order compensation under the FAA if the Claimant is still alive! Or do they?

Under CPR 41.8(1)(c) a Periodical Payment Order must specify that the claimant's future pecuniary losses are to be paid for the duration of the claimant's life, or such other period as the court orders. It is clear from 41.8(3) that this "other period" could be a period longer than the Claimant's life: "Where the court orders that any part of the award shall continue after the claimant's death for the benefit of the claimant's dependants, the order must also specify the relevant amount and duration of the payments and how each payment is to be made during the year and at what intervals." 41BPD.2(1) confirms that such an order may be made when the dependant would have had a claim if the claimant had died "at the time of the accident" (presumably "accident" includes "injury caused by negligence" in say a clinical negligence claim).

Since PPOs can be stepped (different periodical payments at different stages in the future), it would theoretically be possible to make an order for payment of say £50,000 per annum during the claimant's life and £40,000 per annum to their dependants after the claimant's death until the youngest dependent is, say, 21 years old, or until the surviving spouse dies.

I confess that I have never seen an order to that effect. I would be interested to know if anybody else has (please leave comment below). I wonder whether there has ever been an order or settlement on those terms. But if not, why not?

Many potential problems would need to be addressed in any such order:

 -   Under CPR 41.8(3) a step change in the periodical payment has to be made on a specified date. Since the date of the claimant's death cannot be predicted then presumably it is acceptable to provide for a step change upon the claimant's death whenever that might occur. Thereafter there would have to be changes in payments as the dependency changes (e.g. as each child reaches 21).

-   What if the claimant later dies for some reason other than the negligence of the defendant (e.g run over by a bus the day after the order is made)? Provision would have to be made to ensure that all PPs will cease on the claimant's death where that is due to a reason other than the defendant's negligence.

-   If the date of death is not known, how can the level of dependency be predicted in advance of death? How do you draft the order such that the payments after death are at a level which will fairly reflect the dependency at that time, when you do not know when death will occur or what the financial circumstances of the family will be at that time? Any order would be riddled with conditions: "if the claimant's death should occur between 2018 and 2020, and provided that dependant A is in full time education between those dates, the periodical payments after 2018 shall be ...."

-   To whom are the dependency payments to be made after the claimant's death? FAA awards are usually apportioned. I presume that periodical  payments would have to be apportioned and the order would have to specify the amount to be paid periodically to each dependant, whether the payments are to be made into court, or to a trustee or to the dependant directly.

-   In some cases there may be future dependants who are not yet born at the time of the settlement of the PI case.

-   The tax position needs careful consideration : whilst PPOs during the claimant's lifetime are exempt, the exemption does not continue after their death.

Notwithstanding the potential difficulties with drafting an order of this kind, the great advantages of using a PPO in such cases include:

-   not only protection of the dependants' claims, but resolution of them, together with the claimant's own claims, during the claimant's lifetime, thus giving peace of mind to the dying claimant and his or her family and saving costs.

-   provision for non-financial dependency could be secured - the law as it stands may not support a claim for loss of services in the lost years - Phipps-v-Brooks Dry Cleaning. 

-   a carefully tailored PPO could address and meet all the future uncertainties in a way in which a single lump sum settlement can only do with a broad brush.

I see no reason to avoid PPOs in such cases merely because there are compromises on liability which prevent 100% recovery.  

PPOs could be used in cases where the claimant is likely to die prematurely as a result of the defendant's negligence. They will not suit all cases, but there may be advantages of using them for the purpose of a once and for all resolution of present and future claims, even where damages are not of the highest level.

Wednesday, 26 September 2012

Cosmetic Surgery Advertising Ban

Don't shoot the messenger ...

The British Association of Aesthetic Plastic Surgeons (BAAPS) has lobbied for strict controls on advertising for cosmetic surgery. Their recommendations are:

"1. Prohibit all advertising aimed at the under 18s for example the use of young spokespeople such as celebrities that appeal to this age group
2. Prohibit advertising in public places where children can see these ads, such as posters, billboards, sides of buses and television
3. Prohibit all forms of discounted offers and financial inducements to encourage people having cosmetic surgery including seasonal incentives such as 'New Year, new body!', 'Summer body' surgical makeovers', Christmas gift vouchers for surgery
4. Prohibit time limited offers e.g., 'book by Friday!'
5. Prohibit targeting vulnerable specific groups such as divorced people, brides to be, women after pregnancy e.g.,'Divorce feel-good' and 'Mummy makeovers' discount packages
6. Ban the principle of loyalty cards as inducement to have multiple or repeat procedures
7. Prohibit advertising for combined procedures as inducement such as two-for-ones and BOGOFs
8. Prohibit recruitment of patients for cosmetic surgery by agent, either in the UK or abroad, whether through publications or websites
9. Prohibit the use of pictures of models or 'real life' patients that raise unrealistic expectations from cosmetic surgery such as through the use of Photoshop
10. Prohibit advertising of money-off and discount vouchers such as Groupon as inducement for booking for surgery
11. Prohibit giving cosmetic surgery as prize in any shape or form
12. Prohibit encouragement of refer-a-friend schemes in return for discount on surgery."

The reason BAAPS feels the need to make these recommendations is that the practices of a profit driven industry often clash with the professional standards of those working within the industry. There is a tension between the desire to increase sales and the need to give balanced advice to patients ("customers") seeking surgery. A surgeon's professional duty to advise a patient of the risks, benefits, and complications of surgery, and of the non-surgical alternatives does not sit easily with the clinic using sales techniques to induce the patient to part with their money.

BAAPS has consistently stood up for high standards and its recommendations should be seen in the context of a general campaign to improve services to cosmetic surgery patients.  However, some of the recommendations are probably unnecessary, some would be difficult to implement and others are directed to the  to the message about cosemtic surgery services when arguably it is the services themselves which require attention.

Some of the practices which the recommendations are intended to prohibit are already treated as unacceptable under advertising codes. The Advertising Standards Authority has previously made adjudications against cosmetic surgery advertisements which referred to breast surgery as "safe", which used "misleading" before and after photographs, which were in an untargeted medium which might be seen by children, and which claimed that the advertised clinics were "leaders in cosmetic surgery here in the UK" when that claim could not be substantiated.

So cosmetic surgery  dvertising which is targeted at children or uses altered images or misleading claims is already covered. Is there a need to go further?

Difficult to Implement

It is difficult to regulate the offering of discounts and time limited offers etc. Sometimes it will be cheaper to do two procedures at one operation. Sometimes patients ought to be told that prices are going up in September, for example. In an industry offering a product which is beneficial to customers (which BAAPS members surely believe) the use of price competition is not only legitimate, it is of benefit to consumers since it leads to lower prices. In any event if such practices are unacceptable then arguably surgeons should not allow the clinics in which they work to deploy such offers, rather than relying on an advertising ban.

Shooting the Messenger

There is a danger in over-regulating the advertising of a product or service which is not in itself harmful, like cigarettes, but which carries risks of harm and should be purchased only by patients for whom it is suitable and who have full knowledge of what they are consenting to undergo. Adults are entitled to make decisions for themselves about cosmetic surgery but surgeons and clinics are obliged to ensure that their patients are suitable (physically and mentally) for the surgery they seek and that they are giving their informed consent to the procedures, whatever inducements brought the patient into the clinic in the first place.

Is BAAPS being over-protective?

Take recommendation 5. Are "brides to be" a vulnerable group? (A cable TV show called Bridalplasty offered a prize of cosmetic surgery to the winning bride to be. Her betrothed would see the "new bride" post surgery for the first time on the big day!) It may be said that recent divorcees are a "vulnerable group" (I understand that a significant proportion of patients seeking cosmetic surgery are recently divorced), but surely the point of cosmetic surgery is to make the patient feel better about themselves. They may seek that benefit at times when their self esteem is low. Is it unethical for clinics to advertise a service directly to that group?

In my view the greater need for strengthened regulation is in relation to the services to patients once they arrive at a clinic: the engagement of suitably qualified and experienced surgeons, the proper assessment of patients, advice to them about procedures and risks, adequate consultation time and "cooling off" periods before commitments to surgery are made.  It is also necessary to ensure that contractual arrangements between surgeons, clinics and patients are transparent and that full professional indemnity insurance is in place.

Friday, 21 September 2012

Risk - Managing Psychiatric Patients

At the Kings Chambers Mental Health Conference on 21 September 2012 we discussed the question of risk in relation to the management of psychiatric patients.

Case law demonstrates that, at common law, liability may lie with healthcare providers who fail adequately to protect psychiatric patients against self-harm and suicide, but that it is evidentially difficult to establish negligence - see G-v-Central & North West London Mental Health NHS Trust [2007] EWHC 3086 in which the court held that it had not been negligent to allow home leave to a patient who had previously placed herself on a tube train track and expressed ideas of killing herself. The patient put herself back on the track and was struck by a train. See also Rabone-v-Pennine Care NHS Trust [2012] SC 2 in which negligence in allowing the patient home leave had been admitted by the Defendant Trust prior to trial. Ms Rabone committed suicide when on home leave.

In Rabone there was no allegation that the negligent omission was failing to detain Ms Rabone. However the common law would probably accept that a decision not to detain, although it involves the exercise of a discretion not to use a statutory power, might be negligent. Certainly, in S-v-South West London and St George's NHS Mental Health Trust [2011] EWHC 1325 QB, in a claim that the defendant had negligently detained the claimant under the Mental Health Act, although the claim was dismissed, no point was taken that the decision to exercise a power of detention could not in law be regarded as negligent. And in Palmer-v-Tees HA et al [1999] Lloyds Rep Med 351, where the allegation was that the defendants should have prevented a patient from being released from hospital when he was at risk of committing offences against children (he subsequently murdered a 4 year old girl) Stuart-Smith LJ observed that "there is no question in the present case of the defendants relying on the policy/discretion argument to say that they are not under a duty, breach of which is actionable."

So, failure to detain may, in certain circumstances, found an action in common law negligence, but it will most often be difficult to establish negligence on the facts

The duty of care, in common law, may extend to the protection of others from the risk that they will be harmed by a psychiatric patient. Palmer is clear authority, however, that the duty extends only to victims who "came into a special or exceptional or distinctive category of risk from the activities of [the patient]."

In the more recent case of Selwood the Court of Appeal found that the persons who might come within that distinctive category could include a social worker who was working in conjunction with NHS Trusts in relation to a particular patient (who later stabbed her). Interestingly, in that case the claim had been brought both in negligence and under the Human Rights Act. The Court of Appeal held that it was arguable that an NHS Trust was analogous to the police who may be under an operational duty to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved. Compare Osman-v-UK and Van Colle-v-Ch Cons Herts Police [2008] UKHL 50

The Osman duty arises, under the ECHR where the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk." That is close to the Palmer test for common law liability.

Given that the ECtHR has held that the scope of any positive duty on the state to protect life must not be intereted so as to impose a disproportionate burden on the authorities, and that it only arises once there is actual or constructive knowledge at the time of a real and immediate risk to life, it cannot reasonably be argued that the Human Rights Act has opened the floodgates to litigation in this area.

At the conference, Dr Jonathan Hellewell, Consultant Psychiatrist spoke about the conceptual and practical difficulties of assessing risk and managing risk . And Simon Burrows from Kings Chambers addressed the legal limits on the interference with liberty, which may well prevent public authorities from taking certain measures to protect against the  risk of self harm or harm to others. The risk of suicide, let alone homicide, by psychiatric patients is very very small. Measures to reduce the risks might well by themselves lead to unacceptable results. Some risks are acceptable or "positive" and may attend management decisions which are generally beneficial to the patient. No court would expect public authorities to detain all patients who present with some risk of self harm or suicide. It is only when the authorities know (or ought to know) of a real and immediate (present and continuing) risk to life, that article 2 imposes an obligation to act (not necessarily to detain, but to take precautionary steps which can be expected to be effective and which do not impose a disproportionate burden on the state).

Thanks to Dr Hellewell and Simon and all those who attended the conference.

Tuesday, 18 September 2012

Reponse to Centre for Policy Studies Report on Compensation Culture

It is difficult to know where to begin....

The Centre for Policy Studies report on the Social Costs of Litigation has received a great deal of media attention. It was reported in all the national newspapers and its principal author, Professor Frank Furedi, was interviewed by a surprisingly unchallenging John Humphreys on Today. The report bemoans the compensation culture and its distorting effect on the provision of public services. It  concludes that "it is important to separate compensation in the public sector from tort law. Policy makers need to consider how a scheme of no-fault liability can be devised to deal with those who have suffered harm."

Those who would oppose such reforms should not be complacent. The CPS is an influential think-tank, and, as the media reaction to the report has shown, there is a willing audience for accusations and recommendations of this kind.

Reading the report I was struck by the heavy reliance on anecdotal evidence and the casual use of pejorative language. Professor Furedi is an academic and I am what he calls a "greedy lawyer" or "ambulance chaser" given that I act for individuals bringing claims against public bodies. So it is with some humility that I question the evidence on which his far-reaching recommendations are based.

In relation to the damaging effects of litigation in the education sector, the report first seeks to set out   the extent of the "problem":

"Accidents and incidents

In September 2010, it was reported that ‘as many as 10 children a week are securing pay-outs after suing schools for injuries picked up in classrooms, sports fields and playgrounds’, citing figures released under the Freedom of Information Act showing that ‘£2.25million in compensation was awarded to pupils last year after councils admitted liability for school accidents.’42

Results from a series of Freedom of Information requests conducted in 2011 similarly reveal that compensation culture’ within schools is very much in evidence, with some bizarre and costly results. In response to these requests, councils revealed they paid out a total of more than £2 million in 2010 as a result of 347 claims that were successfully brought against them by injured children.43 "

Interestingly the footnotes show that the sources of the figures given were respectively The Daily Telegraph and The Daily Mail.  I would not for a moment suggest that the information is therefore unreliable, but it is an odd source of core material for an academic to use when preparing a report which seeks to influence government policy. The report continues,

" Litigation within the education sector is not limited to pupils suing their schools. A further series of Freedom of Information requests found that councils paid out an estimated £6.7 million in 2010, in cases where teaching staff took legal action for injuries they picked up while at work....
In 2010, there were just over 400 successful claims for
compensation [by teachers] with the average cost to councils of £16,600 each"
[Source - Daily Mail].

At least the source for the £6.7 million estimate was a survey of local authorities rather than a newspaper article.

Even assuming the figures used are correct, they surely do not demonstrate a compensation culture. Indeed they show how very rare such compensation claims are!

The Department of Education reported that there were 8.1 m pupils in our schools as at January 2010. Assuming as many as 10% were in the private sector that leaves 7.29 m in the state sector. If 10 claims a week by pupils are successful (the higher of the two figures quoted in the report) then that amounts to one claim per 14,000 pupils. Hardly a litigation epidemic.

And in relation to the 400 successful claims by teachers: the Department of Education's workforce Survey found that there were 438,000 teachers working in the state sector in November 2011. So that makes 1 successful claim per 1000 teachers.

It is perfectly fair to say that the cost to the NHS of compensation claims is very much greater than in the education sector. The report states that costs of litigation against the NHS, including damages equate to about 2.5% of the NHS budget. That is a very high figure. I would entirely endorse any sensible measures to reduce the costs of litigation against the NHS, for example early, independent investigation into potential claims, with open admissions and offers where appropriate. However this Report's conclusions are surely misguided. The authors assert that,

"suing a publicly-funded institution such as the NHS amounts to a spectacular own goal for citizens of Britain. Whatever we ‘make’ from a claim against the NHS, we – or our friends and family – have to pay back to the service somehow to cover the cost of the claim."

 I would make two short points about that statement. First, some of the compensation paid, for example to provide care, equipment and housing for injured patients, is money which the state would have had to pay in any event through benefits, local authority services or otherwise. Second, I do not believe that the citizens of the state do, or ought to, begrudge payments to compensate users of the NHS, state education or other state services for injuries suffered as a result of negligence by the providers of those services. Even those members of the public who question the amount of compensation awarded would surely not object to the principle that when the state makes unacceptable mistakes which injure those in its care, it should pay compensation.

In any event the report does not call for a prohibition on compensation nor even a reduction in levels of compensation. Instead it calls for a no-fault liability scheme to cure the ills of the compensation culture.

The first effect of such a scheme would be to increase the number of claims. Countless non-negligent clinical errors are made within the NHS. Many patients suffer avoidable injuries for which they are not presently able to bring a claim because they cannot prove negligence or causation.

It follows that unless the levels of compensation paid to claimants were signficantly reduced below current levels, then the scheme would cost the state much more than the present litigation system. I assume that it is not suggested that a pupil injured as a result of negligence in a private school should be awarded more compensation that a pupil suffering the same injury in a state school. Surely the CPS does not believe a child suffering cerebral palsy born in an NHS hospital should have less compensation than a child with cerebral palsy born in a private hospital?

Legal costs per claim might be reduced, but would not be wholly avoided. There would still be a need for representation in relation to issues of entitlement and the level of compensation. Justice would demand an appellate structure. Even allowing for some overall saving in legal costs, the total costs to the state would increase.

If the aim is to reduce the cost of claims to the state then the CPS should be honest - the only means by which a no fault liability scheme might save costs would be by substantially reducing levels of compensation. But for every £1 saved in compensation, there would be an increase in the burden on other parts of the welfare state and on the "families and friends" of the injured person.

Clearly litigation can encourage defensive practices by those potentially liable, but largely that is a "good thing". Labelling conduct as "defensive practice" is another way of saying that it is conduct which protects individuals from harm. In some cases, no doubt, the fear of litigation can lead to practices which are excessively defensive. In those circumstances it is incumbent on managers and leaders to take measures to counter such practices. In my experience the courts fully support such measures where they are reasonable. Judges and even "greedy lawyers" are fully aware of the demands on healthcare professionals and on the NHS generally of the resource implications of decisions and of the need to allow for the exercise of professional judgment.

This report proposes an ineffective and costly solution to an  exaggerated problem.

Thursday, 13 September 2012

Reviewing Witness Statements - Lessons from HIllsborough

Lawyers are often called upon to prepare or review witness statements. What should be included? What should be excluded? When should we alter the wording of a statement or advise that parts be excluded?

The Hillsborough Report makes for chilling reading in many ways, but Section 11 dealing with the review and alteration of witness statements should be studied by all of us who are involved in the litigation process.

Officers from South Yorkshire Police (SYP) were told to prepare full statements. These were then subjected to review by solicitors before final, CJA compliant, versions were prepared, which were then provided to the Taylor Inquiry. The Report notes that if the intention was simply to remove opinion from the final statements, the effect of the alterations went further:
"129. The process of transition from self-taken recollections to formal Criminal Justice Act statements was presented as removing 'conjecture' and 'opinion' from the former, leaving only matters of 'fact' within the latter. Disclosed correspondence between SYP and the Force solicitors reveals that comments within officers' statements 'unhelpful to the Force's case' were altered, deleted or qualified (rewritten by the SYP team)."

In relation to civil litigation, CPR 32.4 provides that a witness statement should contain "the evidence which that person would be allowed to give orally" and should contain evidence "in relation to any issues of fact to be decided at the trial". The Practice Direction at 32PD.18 provides that the statement "must, if practicable, be in the intended witness's own words."

There is a heavy responsibility and trust placed on lawyers in the litigation process. being a lawyer is not about winning cases at all costs. I sometimes wonder whether the increasing commercialisation of litigation and creation of financial incentives on litigators to win cases tempts some lawyers to "cut corners" to avoid facing up to inconvenient evidence and therefore to undermine the process of justice.

We all want more access to justice, not more access to injustice.

Back to witness statements: as lawyers must be astute to ensure that witness statements are in the witness's own words rather that in the words we would like them to use.

Whilst opinion evidence from lay witnesses may not be admissible in civil proceedings, we should not delete inconvenient factual evidence from statements under the guise of taking out opinions.

We should remember that in court the witness will have to confirm that their evidence, including their statement, is not just the truth, but "the whole truth" (I have long thought that the statement of truth required to verify statements under the CPR should accord more closely with the oath or affirmation given at court).

If statements are being prepared for an Inquest or Inquiry, then there will be no strict rule to exclude opinion evidence. Counsel to the Taylor Inquiry had advised that there should be no reason why opinion evidence should not be included in the officers' statements.

Here is an example of the mischief which can be done by alteration and review, taken from the Hillsborough Report:

"2.11.71 In his initial account, Police Constable Keith Bradley referred to problems with radio communication and lack of direction from senior management. It was altered substantially. His original recollection read:

As it became obvious what had happened those of us attempting to keep some sort of order outside the ground, and keep the way clear for emergency vehicles, were subjected to a non stop torrent of vehement verbal abuse and threats from a good proportion of the crowd by now leaving the ground, this was a frightening situation as we were by now vastly outnumbered by a potentially hostile mass of distressed people. No officer senior or otherwise, came to inform us of what had happened, we were deflecting the insults, threats and abuse, basically still being unaware of what exactly had happened. Radio traffic was non existent all through this time, as was a lack of direction from supervisory officers.[46]

2.11.72 The altered version read:

As it became obvious what had happened those of us attempting to keep some sort of order outside the ground, and keep the way clear for emergency vehicles, were subjected to a non stop torrent of vehement verbal abuse and threats from a good proportion of the crowd by now leaving the ground, this was a frightening situation as we were by now vastly outnumbered by a potentially hostile mass of distressed people. We were deflecting the insults, threats and abuse, still being unaware of what exactly had happened. Radio messages being passed were more difficult to understand all through this time.[47]

2.11.73 The original recollection was unequivocal, asserting that radio traffic was 'non existent'. Yet this was deleted and the amended version altered the meaning by stating that radio messages were sent but difficult to understand. The amended version also removed reference to the 'lack of direction from supervisory officers'.

2.11.74 Reproducing these paragraphs in full demonstrates a further significant issue in the process - the removal of conjecture or opinion was highly selective and officers' comments on the hostility of the crowd remained as a statement of fact."

Any reader of this blog would avoid alterations of that kind, but the Hillsborough report also contains many other more subtle examples where it appears that an intention to "protect the client" has contributed to this gross injustice.