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

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. 

Insurance

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?

PIP

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? 


Improvement


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.