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.

Monday, 10 September 2012

Random Thoughts

I have just returned from the annual Professional Negligence Bar Association's Clinical Negligence Conference which was superbly run by Angus McCullough QC, Cara Guthrie and Victoria Woodbridge. There was a series of stimulating lectures from medical and legal experts and some pleasant social occasions with fellow barristers (yes some of them do talk about subjects other than their own cases).  As a good conference should, it raised and inspired various ideas and questions Here is an almost random selection, some from speakers, some of my own:

-   Is there anyone - anyone in the country - who knows what the details of the civil litigation costs reforms will be and how the reforms will affect civil litigation?

-   Look out for increasing numbers of claims related to delay in diagnosing TB or failures by employers to protect employees from TB passed on by infected colleagues, patients or customers. TB is on the increase and it is going to affect areas of the NHS already under stress.

-   Why is there a test of constructive knowledge under section 14 of the Limitation Act but none under section 7 of the Human Rights Act? Would issues related to constructive knowledge be better dealt with under the section 33 discretion?

-   Rabone is pronounced Ray Bone not Rubone or Raboney.

-   Are we all sure that we can tell a divisible injury from an indivisible injury?

-   My undergraduate philosophy and logic tutors could greatly assist the higher courts to achieve some consistency and clarity when addressing the issue of causation.

-   In twenty years from now will mastectomy still be a means of treating breast cancer? Advances in nanotechnology may allow for very precisely targeted treatment of malignant tumours without the need for mutilating surgery.

-   In twenty years from now will ante-natal ultrasonography have been replaced by a combination of more advanced scanning techniques and fetal genetic testing?

-   Am I the only barrister who needed "reminding" of the Bradford Hill criteria?  Should all medico-legal experts be applying them to cases involving, say, the effect of a delay in diagnosing cancer?

-   There is too wide a spectrum of practice in Coroners' Courts across the country. The new chief coroner ought to produce a uniform set of directions dealing for example with disclosure of Serious Untoward Incident Reports and witness statements taken when healthcare providers carry out such investigations.

Why do my toes want to curl when I hear classically trained voices singing spiritual songs from the "old south" such as Swing Low (you had to be there - their voices were admittedly beautiful, but...)?

If the legal costs to the NHS in clinical negligence cases fell last year, is the "compensation culture" on the wane? Or will the costs reforms encourage even more claims and increased costs?

Now back to work....

Monday, 3 September 2012

10% Uplift in Damages to be Revisited

As previously blogged, the Court of Appeal announced a 10% uplift in general damages for PSLA from April 2013 in its decision in the case of Simmons-v-Castle. The judgment on the issue was short and to the point, but left many questions unanswered.

The Court of Appeal has now accepted an application by the Association of British Insurers to re-open this case with notice to be given to other specified interested parties - One issue which will be addressed is whether the 10% uplift should apply to claims where the Claimant can also recover all their costs including uplifts and the ATE insurance premium from the Defendant. The existing decision contained no directions on transitional arrangements thus allowing some claimants potentially to recover the premium, have all costs paid for by the Defendant, including uplifts, and then to have the uplift in general damages (which is intended by Jackson LJ to compensate Claimants for having to pay their own lawyers uplifts out of damages). 

Clearly the significant changes in civil litigation funding following Lord Justice Jackson's work need to be cohesive and perhaps the Court of Appeal will now give more precise detail on how the change in general damages will be implemented. Part of the difficulty which has arisen surely comes from seeking to use damages, which are intended to be compensatory of an injury, as a means of addressing problematic costs issues.

More to follow when the new judgment is given.