Sunday, 27 December 2015

Trial and Grimstone

As if to draw together my two blogging pre-occupations in 2015 - the Access to Medical Treatments (Innovation) Bill and consent to treatment following Montogmery - Christmas brought the judgment of McGowan J in Grimstone v Epsom & St. Helier University Hospitals NHS Trust [2015] 3756 (QB).

The Claimant, a keen sportswoman in her mid-fifties, sought out expert treatment for her problem hips. She found Professor Field who recommended hip replacement surgery using bone conserving implants, Mitch PER devices which were relatively new devices, for which there was limited evidence of longer term success and failure rates.

The Claimant signed a consent form for bilateral hip replacements, which were performed in 2008. Unfortuantely, although the operations were competently performed, they went poorly for the Claimant who had to undergo several follow- up procedures. There was no allegation of negligent surgery, but rather that the Claimant's informed consent was not obtained. Amongst the allegations made was that the surgeon failed to inform the Claimant of the limited evidence of the success and failure rates for the new devices used in her hip replacement surgery.

The Judge recorded:

It appears that the Claimant does not say she asked about alternative methods of hip replacement, rather she argues that the Professor should have made her aware of the lack of data for the newer alternatives. The Professor's evidence is that there was no such request for that information and it would not be his usual practice to provide such material if not sought, he would if asked have done what he could to explain the design and performance of the devices available.

The Judge referred to and quoted a long passage from Montgomery v Lanarkshire. A key part of that passage was the conclusion that:

"The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. "

The Judge found that the surgeon had proposed surgery (using the bone conserving implants) specifically to suit the Claimant's stated needs. He found that there was ample research into the use of the implants which were "new" but not "experimental". He found that the Claimant was motivated to have the new, bone-conserving implants in preference to older Charnley implants.

In relation to the need to provide information to the Claimant of the limited evidence of success and failure rates, the Judge's conclusion at paragraph 12 (iv) was:

"Was he obliged to tell her about the limited data available on the device used?
There was a great deal of evidence about the status and volume of data available on the new device that was used in this surgery. It is not necessary to assess the scientific worth of that material. The agreed fact in this case is that the Professor did not tell Mrs Grimstone anything about the success rates. It is not therefore of any value to analyse what would amount to good data if there were an obligation, at the time, to impart it to a prospective patient. The "concern" expressed by the Claimant's expert, Mr Charnley, that the data or lack of it was not explained to the patient cannot outweigh the view of the equally expert witness called by the Defendant, Mr Hamer, that a reasonable body of doctors in the same position would not have given such information to a patient. It is not accurate to refer to the device as "experimental", it was new. All the clinicians accepted it was an appropriate device to have used in this case."

Arguably therefore the Judge did not apply the materiality test from Montgomery, even though he had referred to it in his short judgment. Instead he applied the Bolam test as to what a reasonable surgeon would have advised. It seems to me that information about the success and failure rates for the new implants was information about risk, and therefore that the Montgomery test applied and the Bolam test did not apply. However, given other findings in the judgment it is very possible that even if the Montgomery test had been applied, the Judge would have found that even it was not satisfied in this case, the Claimant would still have opted to have the bone-conserving implants.

Use of bone-conserving implants was clearly within the existing range of accepted treatments in 2008 (to adopt the test in the Access to Medical Treatments (Innovation) Bill, at least on the findings made by the Judge in Grimstone. What of the time when they were "experimental" rather than "new"? The Judge ought to have applied the same test as to the advice that a doctor should give a patient - the materiality test from Montgomery set out above. Would a reasonable patient attach significance to the fact that the devices were in a trial period with little evidence as to their effectiveness? Or should the doctor be reasonably aware that the particular patient would attach significance to that information?

In many cases new devices or treatments are subject to a controlled trial when they are at the "experimental" rather than "new" stage. Patients are carefully consented when partaking in the trial and the trial is designed to produce useful information about the effectiveness of the treatment. If doctors propose such treatments in good faith and for patients for whom they are suitable, doctors stick to well-designed trial protocols and patients give proper consent, there is no prospect of a negligence action if complications arise. I am not aware of the courts ever having had to decid such a claim.

The Access to Medical Treatments (Innovation) Bill is designed to address a very different kind of "experimental" treatment - that which is outwith a well-designed, controlled trial. Under the current law, and under the AMTIB, a doctor would have to obtain the patient's informed consent to the proposed treatment. As I think is clear, the courts will require doctors to inform patients of the fact that there is no evidence as to the effectiveness of such treatment, or to inform them of the basis on which it is thought that the treatment might be of benefit. However, under the current common law a doctor might still be found negligent for providing such treatment if no responsible body of doctors would have condoned its use on the patient, even if the patient had given her informed consent. You might think this is paternalistic, or you might think it is a reasonable protection of patients who are not in an equal relationship with doctors.

The Bill is designed to allow doctors to proceed in those circumstances without fear of litigation. The protection is removed and replaced with a series of steps which, if the doctor takes them, will prevent the courts from finding the doctor negligent for deciding on an experimental treatment, even if no responsible doctor would have supported the decision.

So, an interesting judgment with which to end 2015.

I wish all my readers a good 2016.

Thursday, 17 December 2015

Relying on Medical Records

"The Judge won't believe me. He'll believe what's in the notes".

I have heard that said by many clients who are contemplating bringing a clinical negligence claim. But it is not true. Judges take into account all the evidence. Whilst it is true to say that contemporaneous notes made by a medical professional will ordinarily carry great weight at court, where there is a conflict between a patient's recollection and what was recorded contemporaneously by their doctor, the court is not bound to find that the record is accurate and the recollection unreliable. That has been confirmed by the Court of Appeal decision in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283

Just as patients sometimes believe that the courts are bound to accept the truth of something recorded in the medical notes, so healthcare professionals are sometimes taught that "if it isn't recorded, it didn't happen". That is equally untrue.

It always depends on the circumstances. 

If three independent medical practitioners all separately record that the patient reported no pain, but the patient says that they told them they were in pain, the court may struggle to find that "on the balance of probabilities" the patient reported that he was in pain.

If a patient and two relatives recall that he told Dr X that he was in pain, and Dr X' cannot recall the consultation but his junior doctor recorded "All fine" and nothing more, perhaps the court will be more likely to find that the patient did report that he was in pain.

A record of a consultation cannot be a word for word account. On the other hand a doctor who does not note a matter of potential significance, even if the finding was "normal", e.g. there were no red flag signs of cauda equina syndrome, may regret having failed to do so. When asked at court why they did not check for red flag signs, a reply that "they would have done so" carries much less weight than a contemporaneous record that they had done so and there had been no such signs.

I cannot recall seeing medical records counter-signed as accurate by a patient. Consent forms are of course signed but not other records. Patients tend not to make and keep notes themselves. There is no reason why they should not do so.

Sometimes patients are convinced that a medical record has been tampered with or "doctored" (pun intended). It has been known. But the court will need to be presented with cogent and compelling evidence before it can find that medical records have been concocted or dishonestly altered after the event.

The Court of Appeal in Synclair has reviewed guidance on these sorts of issues, providing a very helpful source for clinical negligence practitioners. Tomlinson LJ said:

  1. We were shown, in chronological order: the well-known remarks of Lord Pearce in his dissenting speech inOnassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co [1987] 1 Lloyd's Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 when he said, at page 57:-

  2. "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
    In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships' opinion "equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." We were reminded too that in "The Business of Judging", Oxford, 2000, Lord Bingham of Cornhill observed that:-
    "In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time."
    The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.

    He noted that:

    1. In the present case it is plain that the judge recognised that the evidence of the Claimant had to be assessed in the light of the apparently contemporaneous clinical note. Indeed that note was doubly important. Not only did the Claimant's evidence fall to be evaluated in the light of it, the note also represented the full and entire extent of the evidence which Mr Zafar could give as to what was said and observed on his ward round, as he had no recollection as to what had transpired independent of what was written in the note.
    2. However it is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind. I would commend the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson [2015] EWHC 276 (QB) where he said, at paragraph 71 of his judgment:-

    3. "I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate."
      Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson's oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.

    4. The real difficulty which the judge faced in the present case was that he had no evidence of the circumstances in which the relevant clinical note had been made, and no evidence from the maker of the note, who was not Mr Zafar but Dr Dal Bianco. Furthermore, it was unclear whether Dr Dal Bianco had been present when Mr Zafar spoke to and examined the Claimant at 08.10 and unclear when precisely he prepared the note relating to that ward round.
The Trust submitted that medical records carry great weight because doctors have a professional duty to provide an ongoing record and could risk professional sanctions for failing in that duty. The Court held that whilst in many cases the inherent reliability of medical records would carry the day, it all depended on the circumstances in the individual case.

The trial judge had approached the finding of fact exercise in a proper manner and his finding that the facts were other than as recorded in the contemporaneous medical record was upheld.

Friday, 4 December 2015

The Case of the Damaged Nerve

The Court of Appeal has given judgment in a clinical negligence case that concerned the use of inference to make a finding about a surgeon's standard of skill and care - O'Connor v Pennine [2015] EWCA Civ 1244.

Tracey O'Connor underwent uro-gynaecological surgery to repair a vesico-vaginal fistula. Following the operation she suffered femoral nerve dysfunction which the expert neurologists instructed by the parties agreed was due to some form of surgical trauma. She went on to develop permanent disability which was non-organic. She recovered substantial damages after trial.

The Claimant's case was that the damage had been caused during surgical dissection. The expert urological surgeons had agreed that there were two possible mechanisms of damage - by dissection, which would be negligent, and by use of deep retractors. They disagreed as to whether it would have been negligent for the surgeon to have caused femoral nerve damage by deep retraction. The Defendant sought to suggest a further possible mechanism of damage, namely through the administration of regional anaesthetic block, and had applied on the first day of trial to introduce a fresh expert to deal with that contention.

Application to Introduce A New Expert

The trial judge had refused that application. Permission to appeal was granted but the Court of Appeal termed that appeal "obviously misconceived". The circumstances of the Defendant's application had not been auspicious - it was made without notice on the first day of trial and after an unappealed refusal of permission by a District Judge a few months earlier. Jackson LJ said, "Following the civil justice reforms of 2013, that is simply not how we do things now.... I do not see how a decision to abort a clinical negligence trial on day 1 for the benefit of a dilatory defendant could possibly be justified." [53]

Inference and Res Ipsa Loquitur

The trial judge weighed all the evidence, reminded himself of the guidance of the Court of Appeal in Ratcliffe v Plymouth & Torbay HA [1998] PIQR P170 and of the Rhesa Shipping v Edmunds [1985] 1 WLR 948 ("The Popi M") trap and held that on the balance of probabilities the damage was caused during dissection and therefore was caused negligently.

The NHS Trust appealed against that finding. Jackson LJ giving judgment with which McCombe LJ and  Sir Colin Rimer agreed, referred not only to those two authorities but also to Thomas v Curley [2013] EWCA Civ 117 which I have discussed previously. In Rhesa the House of Lords condemned the adoption by the trial judge (Bingham J no less) of the Sherlock Holmes mantra that if all other possibilities are excluded, the remaining possibility, however unlikely, must be the truth. That reasoning process was invalid because there remained the legal test of whether the remaining possible explanation or cause was likely "on the balance of probabilities". A Court might well find that there one explanation is more probable than the others  put forward, but that it is still not the likely cause or explanation. More probable that the suggested alternatives is not the same as more probable than not.

Jackson LJ however held that:

"It is not an uncommon feature of litigation that several possible causes are suggested for a mishap which the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause. But the mere elimination of AA, B and C is not of itself sufficient. The court must also stand back and, looking at all the evidence, consider whether on the balance of probabilities, D is proved to be the cause." [64].

He noted that the notion of damage by deep retractor had been discounted by both parties by the close of evidence and he held that the trial judge had been entirely justified in dismissing the defendant's suggestion of damage by the administration of anaesthesia. Accordingly the "fact that the defendant had not proffered any plausible explanation for the claimant's injury consistent with the exercise of due care did not convert the case into one of res ipsa loquitur. Nor did it reverse the burden of proof. Nevertheless this was a material factor which the judge was entitled to take into account." [84]

This is very useful guidance for clinical negligence cases where the patient cannot adduce direct evidence of the negligence cause of his or her injury, for example because they were under general anaesthetic and the surgeon did not notice that anything had gone awry during the operation. The lack of a plausible explanation which is consistent with no negligence does not prove the case of itself, but it is relevant to the court's task of determining the cause on the balance of probabilities. Defendants must not be allowed to characterise a Claimant's case as one of Shorlock Holmes/Popi M reasoning or of res ipsa loquitur simply because the Claimant is alleging that all non-negligent explanations of an injury are implausible or unlikely.  That does not prove the case, but it is relevant. In some cases it will be highly relevant. Of course, as in this case, the court has to make inferences from all the circumstances, but that is not the same as adopting the doctrine of res ipsa loquitur.

Drawings and Photographs

Jackson LJ humourously teases my opponent at paragraph 44 of the judgment. He crticises the presentation of the case, complaining about the lack of drawings or photographs to show the relevant internal anatomy. To be fair photographs would not have assisted, and there were some technical drawings, albeit not very clear ones. Jackson LJ says that Mr Feeny "valiantly did his best by waving a finger around in the air to show us what was what." Taking Jackson LJ's plea a little further, there is no doubt that we could, at clinical negligence trials, make more use of models and technical drawings, perhaps even 3D modelling, to explain a case. I am sure (NOT) that costs budgeting orders will be increased to provide funding accordingly.

I appeared for the the Claimant at trial and on the appeal, instructed by Mealla Logue of McCool Patterson Hemsi solicitors.

Tuesday, 1 December 2015

Presumed Consent

From today residents in Wales are presumed to consent to the use of their organs for transplantation after they die.

During our lives we exercise control over our bodies. We have to give informed consent before any medical procedures are performed upon us. In the recent case of Montgomery the Supreme Court emphasised the importance of patient autonomy. Should the same standards apply to procedures carried out on us after we are dead?

The state has powers to exercise control over our dead bodies. It can insist on a post mortem, depending on the manner of my death. It might prevent my body being disposed of in exactly the manner I desire. In principle a law could be passsed to allow the state to remove organs for transplantation irrespective of the living wishes of the deceased, perhaps with some very limited exceptions. I am not sure that there are many persuasive, rational arguments against such a law, but my guess is that it would be deeply unpopular. Most people do care what happens to their bodies after they die and they want the autonomy to decide whether their organs are removed or not.

Instead of a law giving doctors the power to remove organs irrespective of others' wishes, in both England and Wales the state accepts that it can only remove organs after death with consent. In England the consent must be expressly and positively given. In Wales, from today, it is presumed.

Presumed consent is not consistent with informed autonomy. Of course those who truly consent will choose not exercise their right expressly to reverse the presumption, and those who do not consent will take steps to reverse the presumption by making that known. But others will be presumed to consent even though they do not want their organs to be removed or have never even given the matter any thought. They may not be aware of the new presumption, they may not get round to doing anything about it, they might be confused about the law. Not everyone reads the newspapers or watches the television news. The presumption has been introduced to increase the number of organs available for donation. If it achieves that goal then, at least in part, that will be because an increased number of organs will be removed from people who did not truly want their organs to be removed. Those people are not "donors".

If you believe that we ought to have true autonomy over our bodies even after we are dead, then a law of presumed consent is objectionable. Imagine presumed consent applying to the living patient.

Every news story about presumed consent over the last few days has focused on a patient awaiting transplantation. It is a truly awful position in which to find yourself. We desperately need more organs to be donated. At the same time, if there is a shortage, then it must be that many people are reluctant to consent to their organs being removed. I have carried a donor card since I was 18. You can register online in two minutes. It is not difficult and yet millions do not do it, presumably because they do not feel sufficiently motivated to donate.

The state can increase the number of donor organs by a campaign of information, dialogue with patients and training of medical staff, to encourage more donation with consent; by introducing a law giving the state power to remove organs from the dead even without consent; or by presumed consent. The first has the virtue of consistency with the approach to consent taken for living patients and gives full respect for autonomy. It would require an effort by the state to engage with people, explain how donation works and to allay their concerns and fears. The second would I suspect be deeply unpopular and would doubtless be characterised as Orwellian although the state already exercises other powers over our dead bodies. The third does not require the state to make the same efforts as the first - just presume consent and more organs will be "donated". It relies on ignorance and apathy to make more organs available, and sets an example of the state presuming our consent which many will hope will not be adopted in other spheres.

Tuesday, 24 November 2015

The Effect of the Saatchi Bill on the Common Law. Who is right?

Will the Access to Medical Treatments (Innovation) Bill change the common law of medical negligence? It seems that the government does not believe that it would.

On 29 October 2015, Dr Darren Conway, Senior Associate of Tollers Personal Injury wrote to George Freeman MP, Minister for Life Sciences, expressing concerns about both the Saatchi Bill and the Access to Medical Treatments (Innovation) Bill which largely incorporates the Saatchi Bill. Darren referred to my blog, and in particular my post on the AMTIB. He  referred to Mr Freeman's statement in the House of Commons that "I want to be clear that this Bill in no way changes patients' rights to claim for negligent treatment". Darren contended that the AMTIB bypasses Bolam and would change the current law to the detriment of avoidably injured patients.

This was Mr Freeman's response to that part of Darren's letter, dated 16 November 2015:

"I note you have referenced Nigel Poole QC's blog summary on the Bill. I have had sight of this and, while I acknowledge Mr Poole's comments and I am keen that any Bill does not inadvertently create any additional legal complexity or uncertainty, I disagree with him on several points.

The Bill brings the common law Bolam test forward, as far as it is possible to do so. Under both the common law and the Bill a doctor must act responsibly, and this will ultimately be for the court to determine. Although clause 3(2)(a) is not identical to Bolam, because it is not possible for a court to determine of if there is support from a responsible body of medical opinion in advance, it is difficult to see how the outcome of its application will be different from Bolam in practice. If a doctor seeks the views of one or more appropriately qualified doctors in relation to the proposed treatment, and as a result does not think the treatment would have the support of a responsible body of medical opinion, it is difficult to think of circumstances where it would be responsible for the doctor nonetheless to proceed with the treatment, particularly given the requirement under clause 3(2)(b) that they must take account of those views in an objectively responsible way. A doctor who proceeded on this basis would be at risk of a successful negligence action. We do not think the Bill provides any fewer safeguards for patients than those provided under the common law.

It is right that patients are entitled to seek compensation if they believe they have received negligent care and the Bill does not alter this position. The Bill is not intended to protect a doctor who is negligent in the manner in which the treatment is provided and does not do so. Clause 4(3) of the Bill clarifies this point.

However if the doctor carried out the procedure correctly (i.e. not negligently) and had made the decision to innovate responsibly in accordance with this Bill, but there were adverse consequences from that procedure, they would be protected in the same way that they are under the current law."

I would be prepared to agree that if the "other" doctor advised the treating doctor not to go ahead with treatment, he would be unlikely to do so, although he might find another doctor with a different opinion.

It is fair to say that the Bill would not prevent patients from bringing negligence claims. They could still bring them, but in some cases it would be more difficult for them to succeed in obtaining redress for their injuries and loss.

It is also right to note that clause 4(3) now states that the Bill "does not affect liability in respect of the negligent carrying out of medical treatment." That is welcome, although how the courts will determine what is a decision to treat and what is treatment when the bill defines treatment to include "management" and "inaction", is another matter.

All of those contentions by Mr Freeman might be fair, but they miss the point. The objection raised by Darren was a different one: the Bill does not simply "bring forward" the Bolam test, it changes the common law of medical negligence. It will provide doctors with a defence to negligence claims which does not currently exist.

In virtually every defended clinical negligence case the defendant will have secured advice from a medical expert that the doctor involved acted in accordance with a responsible body of rational opinion. Yet claimants succeed in many defended medical negligence claims. The fact that the treating doctor and an expert doctor both genuinely believe that the treatment decision was in accordance with a responsible body of medical opinion does not make it so.

If the Bill is passed that will change. An injured patient's claim for compensation would be defeated if two doctors had agreed that the treatment decision was in accordance with a responsible body of opinion and the other steps at section 3 were fulfilled. In those circumstances the court could not find the doctor negligent, even if it would have found him negligent using the Bolam (and/or Bolitho) tests.

In short, the current common law provides that a doctor is negligent if he fails to act in accordance with any responsible body of rational opinion. That is a matter for the court to decide, not doctors. Under the Bill a doctor who would otherwise have been found negligent could succeed in defeating a claim by demonstrating that he had met the requirements of section 3. But those steps will not guarantee that the treatment decision was one which would be supported by a responsible body of rational medical opinion.

The concern is not so much for those cases where a doctor is unable to find another doctor who agrees that the treatment decision is responsible, but for those cases where a doctor does secure the agreement of another that the decision is responsible, and the treatment goes ahead and harms the patient.

If you practise in the field of medical negligence you may have a view as to whether Mr Freeman's analysis of the impact of the Bill(s) on the common law is correct. I am sure the government and MPs would be interested to have your views. Please leave them as comments below or on twitter.

Monday, 9 November 2015


I was called to the Bar in 1989. I sometimes think that I joined the legal profession but will retire from the legal services industry. Through political, cultural and regulatory pressures, the practice of law has become heavily commercialised. This has eroded some of the cherished  traditions of our independent profession. Now another is under threat: pupillage. 

Barristers in independent practice are self-employed and they are in competition with each other. But, subject to some exceptions, to become a practising barrister you must first undergo a twelve month apprenticeship known as pupillage. For the first six months the pupil simply follows an established barrister, his or her pupil supervisor, learning the ropes. During the second six months, pupils remain under close supervision but they are "on their feet" and can represent clients in return for a fee.

I benefited from having a superb pupil supervisor. I have supervised seven pupils myself and greatly enjoyed doing so. When operated properly the pupillage system can work very well, but it depends on the generosity of established barristers and their chambers. Pupil supervisors are not paid for their supervision. Indeed they usually pay their pupil's incidental expenses. The cost to chambers of recruitment and training is considerable. My chambers typically receives 300 to 400 pupillage applications each year. Barristers spend many hours of unpaid time sifting applications and interviewing candidates. Then, during pupillage, as well as the unpaid time spent on instructing and training pupils, chambers' members make a pupillage grant or award (typically in the region of £20,000 or more for each pupil). All in all, I imagine it must cost a chambers at least £40,000 in cash and in unpaid time to recruit and train each pupil. 

Once a pupil becomes a fully fledged barrister they will become more experienced and ultimately will be in competition with all other barristers, including those who gave them their pupillage. Of course there may be benefits to the chambers concerned, but essentially the provision of pupillage is altruistic.

Commercial pressures will continue to bring this reliance on the generosity of the Bar into sharp focus. There are already signs that the number of pupillages may be falling. Over the next ten years that number could well drop further. Uncertainty about the future of the criminal and family bars is liable to contribute to the downturn. There will be increasing pressures to cut overheads as fees are reduced. The ties that bind a barrister and his chambers together have weakened in this more competitive environment. More and more barristers move chambers to seek to improve their lot - I did so myself ten years ago.

The more successful and powerful chambers will always be able to attract recruits from less successful sets. Commercial pressures might therefore lead those chambers to reduce the number of pupillages they offer, and to seek to maintain the inflow of members by recruiting established barristers. 

At present, as I understand it, there is no obligation on chambers to offer pupillages. Accordingly there is no barrier to a chambers adopting the business model I have described. One can even imagine a successful chambers choosing to recruit only established practitioners and not to offer any pupillages at all. It might make commercial sense for that set, but other chambers, feeling exploited, may then decide to reduce or avoid their own spending on pupillages. The end result would be a significant reduction in the number of pupillages on offer. And it seems that if the overall number of pupillages diminishes, so does the diversity of new entrants to the profession.

The system of pupillage is reliant for its successful operation not only on individual chambers and barristers giving generously of their time and money, but also on all chambers agreeing to adopt the same practice of recruitment. If only some chambers offer pupillages, then the pupillage system will fade away.

As the number of pupillages falls, those seeking to become barristers will find other ways of entering the profession, perhaps becoming solicitors first and then making a sideways move to the Bar. That route to becoming a barrister has become increasingly common in recent years. 

It is a great privilege to help someone begin their career. For the pupil, the experience is of an immersion into life at the Bar. You learn more about legal practice in your first week of pupillage than a year reading a book. The system of pupillage has been of considerable value to the Bar. It would be a shame if it were allowed to become a thing of the past.

Friday, 23 October 2015

Wigs and Gowns

On Rob Rinder's Radio 5 programme,  Raising the Bar this week, the participants discussed wearing wigs and gowns in the Crown Court. They were in favour of this court dress. The reasons given included that they:

- Equalise the barristers in the eyes of the jury : a particular advantage to the young barrister.

- Put the barristers on a more equal footing with the judge.

- Seem to encourage witnesses to be more honest than they might otherwise (it is sometimes said that court dress emphasises the "majesty of the law").

- Provide a uniform for barristers that helps them focus on the work they have to do - like putting on a football kit before going out to compete in a match.

- Avoid the need for barristers to worry about what they have to wear at court, and avoid disadvantage to the sartorially challenged.

I am happy to leave it to the criminal bar to decide what they should wear in the Crown Court. But do these arguments for preserving court dress work for civil cases in the County Court and High Court?

Currently, in civil trials, barristers do wear wigs, although some judges do not insist on it in fast track trials.

In (the vast majority of) such cases there is no jury. The only person to persuade is the single judge. That judge wears a gown but not a wig.

Judges are trained and experienced in deciding cases on the evidence, not on how an advocate is dressed.

As for worrying about what to wear, the convention is for both men and women is to wear a dark suit - I doubt many would have sleepless nights anxiously deliberating whether to wear the dark grey or the dark blue!

I have felt some discomfort seeing criminal barristers protesting about cuts wearing their court dress. Firstly, because I was always brought up not to wear court dress outside court! Secondly because it creates a separation, "us and them", when the bar is seeking public support for its position. It just looks rather elitist, in my view.

In civil cases I do not see the need for barristers to rely on a wig and gown for authority or equality. Rather than bringing solemnity to the occasion, I wonder whether they might give the impression that proceedings are a game, or a piece of theatre - the barristers are merely playing a role.

Court dress is a lovely idiosyncrasy: a tradition cherished by many. But it is very odd for men and women to have to put on a horse-hair wig in order to make a legal argument or cross-examine a witness in a civil claim. Some would keep the tradition. Others would keep the gown but take off the wig. For my part, for civil cases, I would hang up the gown but put the wig back in its tin for good.

Thursday, 8 October 2015

The Right to Choose Your Surgeon

NHS patients have the right to make an informed choice about by whom they are to be operated on. So found David Blunt QC sitting as a Recorder in Exeter County Court. His judgment in the case of Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust was handed down on 22 September 2015 and is available on Lawtel.

Ms Jones, the Claimant suffered from back pain and was found to have a spinal canal stenosis due to a bulging disc at the L4/5 level. She was referred to the Royal Devon and Exeter Hospital where she was seen by Mr Chan, a Consultant Orthopaedic Spinal Surgeon, described in the judgment enjoying "a very high reputation both locally and nationally". Following discussions with Mr Chan on 17 March 2010, she elected to undergo decompression surgery. The operation was performed at the hospital on 29 July 2010 not by Mr Chan, but by a Mr Sundaram a Fellow in Trauma and Orthopaedics at the hospital who had already been appointed to a consultancy in Gloucestershire.

Ms Jones wanted to bring forward the operation but was told that if it was brought forward Mr Chan would not be able to perform it. She sought advice from her GP who recommended strongly that she should wait until Mr Chan was available. She accepted that advice. The Court found that Ms Jones only found out that Mr Sundaram, not Mr Chan, would be performing the operation as she was about to be wheeled into theatre. By then, the Claimant said, and the Court accepted, she felt she was "beyond the point of no return".

Sadly during the operation a dural tear was caused with avulsion or damage to a number of nerve roots. The Claimant's expert thought that the performance of the surgery was sub-standard but the Judge accepted the Defendant's expert's view that although the complication was at the severe end of the spectrum, it was not, without more, evidence of negligence.

Nevertheless the Claimant's claim succeeded. The Judge noted Lord Hope's judgment in Chester v Afshar [2004] UKHL 41 at [86]: 
"I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether and if so which and by whom, to be operated on."

The Claimant had been deprived of the right to choose by whom she was operated on. The damage caused to the Claimant was not due to some anatomical abnormality such that the same damage would have been caused whoever performed the surgery. The Judge found that had Mr Chan performed the operation it would have involved a "lesser risk than an operation carried out by any less experienced surgeon" and that accordingly, in his view, causation was established "on conventional principles". In any event the infringement of the patient's right demanded a remedy otherwise that right would be a hollow one [70]. 

Clearly there was strong evidence in this particular case that the choice of surgeon was important to the Claimant. Such evidence might be lacking in many other cases. Nevertheless this is further evidence, following Montgomery v Lanarkshire [2015] UKSC 11 of the Courts' emphasis on patients' rights to autonomy.

Cases such as Jones and Montgomery surely call into question the usefulness of the standard consent forms on which so many NHS Trusts rely. They might protect a Trust or a doctor against a claim for trespass to the person, but they surely fall short of providing any meaningful evidence that informed consent has been obtained. Ms Jones had in fact signed a standard Consent Form 1 several days before the operation (at pre-op assessment) which states that there is no guarantee as to the identify of the surgeon. That did not prevent the court from finding the Trust liable for not providing the surgeon chosen by the claimant.

Thursday, 17 September 2015

Carry On Letching?

I confess to laughing out loud when I first read the now famous exchange on Linked in between Mr Carter Silk and Ms Proudman. What I found funny was that each seemed to fit so perfectly into comedic stereotypes - Terry Thomas meets Clare in the Community. It was Carry On Linked In.

So I was rather brought up short when reading about Ms Proudman's interview on C4 News in which she talked about previous incidents as a young barrister, including being touched up in a taxi when in pupillage.

The sniggering stopped. Her account reminded me of many other stories I have heard over the years from female barrister colleagues. The Judge with wandering hands at the Chambers Christmas party. The young advocate having her bottom pinched by a barrister whilst addressing the Judge in Court. The pupil being pressed against a wall by the chambers Lothario.

Once at a dinner my wife found herself seated between two very senior lawyers, one of whom had a "reputation". He leaned over to her and said, indicating the other, "Don't worry about him, he's perfectly harmless". Then paused. "But I'm not." Funny perhaps, but creepy particularly given he suffered from wandering hand syndrome. If we just laugh with the letchers, they are more likely to carry on letching.

Some might say that women have to learn to be street smart, to deal with these situations and assert themselves. But that does not give licence to men to behave badly. The problem, I am afraid, has been with us, the men in our profession, not with the women.

I say "has been" not with any sense of complacency but because I genuinely believe that the current generation of barristers behave better. It has adapted to modern manners. Men and women at the bar respect each other as equals. There may be some dinosaurs who still find it difficult to adjust or who simply refuse to change, but most have moved on. Perhaps things are just as bad but I don't hear the stories any longer because I am too old for younger women barristers to confide in me.

So, she may have come across as priggish and she may have used language straight out of a gender studies text book. Perhaps she is even a self-publicist and, yes, his was not the worst offence ever committed. But isn't it time to leave off Ms Proudman?

I understand that the best advice to women who are groped on an the Tube is to take a step back and to call out so that the whole carriage can hear, "Why have you just groped me?" Hasn't Ms Proudman simply called out Mr Carter-Silk, albeit for a lesser offence? Let's be honest, women at the bar over the past decades have had to put up with things they should not have had to tolerate. By and large they have been kind to us men. Let's not give them a hard time when they call us out for bad behaviour.

Wednesday, 16 September 2015

Access to Medical Treatments (Innovation) Bill 2015

The Saatchi Bill has been "handed over" and is now in the Commons under a new name. Every criticism of the Saatchi Bill's attempt to change the law of negligence still applies. Indeed because the new version fails to recognise that the common law has moved on, the criticisms are even more valid.

I hope that sections 3 and 4 of this Bill will be defeated and that MPs will not have to explain to constituents deprived of justice when injured or bereaved by a negligent doctor, why they voted for it to become law.

Conservative MP, Chris Heaton-Harris has published a private member's bill soon to be introduced and then debated in the Commons. It is called the Access to Medical Treatments (Innovation) Bill. Lord Saatchi sought to introduce his Medical Innovation Bill in the last parliament. His website now says that he has "handed it over" to Mr Heaton-Harris (MIB website blog 14.9.15).

Lord Saatchi

Chris Heaton-Harris MP

The new AMTIB is in two parts. The first part concerns the creation of a data base. The second part adopts, with some minor changes, the core provisions of the Saatchi Bill. As a clinical negligence barrister I am not qualified to comment on the first part. I shall leave that to others, save to note that the definition of "innovative" treatment would not only include negligent treatments, but also  cupping, bleeding, draughts of mercury and other apothecaries' favourites.

The two parts have no logical or practical connection - they could form two separate bills. Sections 3 and 4, which copy the Saatchi Bill, could be removed in their entirety without affecting the substance of the rest of the Bill. MPs could support section 2 whilst rejecting sections 3 and 4.

Protecting Negligent Doctors

The object of sections 3 and 4 is to encourage responsible medical innovation by doctors.

The mechanism for encouraging innovation is to protect doctors who would now be found to have negligently injured their patients, from being liable to their patients. This would also protect their employers, including the NHS, from being sued.

The Bill provides that:

"It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition if the decision to do so is taken responsibly."

A doctor is negligent under the current law if he treats or manages a patient in a way in which no responsible body of (comparable) doctors would have acted (the Bolam test) or his actions are otherwise illogical or irrational (the Bolitho test). A doctor who treats a patient in a way which is irrational or which no other doctor would accept as responsible, will have been negligent. Under this Bill the law would change so that the doctor could not be found negligent if "the decision" was "taken responsibly".

So this Bill is intended to prevent doctors and their employers from being accountable when they have negligently injured or caused the deaths of their patients. Doctors who are not negligent do not need the Bill. Those who are, do and will seek to rely on it. That is my fundamental objection to it:an objection shared by patient groups including AvMA.

Just about every significant medical, medical defence and medical research body from the Royal Colleges to the MDU, told Lord Saatchi and the government that negligence litigation, and the fear of it, was not preventing doctors from innovating. Restricting negligence claims will not encourage responsible innovation. It will only serve to protect negligent doctors from being held accountable to their patients. Why deprive injured people of redress and why protect negligent doctors, when there will be no benefit for others through more innovation?

Confusion and Muddle

The Bill's provisions for what constitutes a responsible decision are muddled and confused:

  • As a minimum a doctor must first obtain the views of another doctor "with a view to ascertaining whether the treatment would have the support of a responsible body of medical opinion" and then take those views into account in a way in which any responsible doctor would. So the court's function will no longer be to determine whether a doctor's treatment has been negligent, but (take a deep breath) to decide whether a doctor has acted as any responsible doctor would have acted when taking into account the views of another doctor about whether any body of responsible doctors would support the treatment. Goodness me! If the Bill is intended to simplify the law and to provide more certainty for doctors, it has failed.

  • The provisions assume that it is the doctor that makes the decision to depart from the existing range of accepted treatments. As the Supreme Court recently emphasised in Montgomery v Lanarkshre Health Board, treatment decisions are made by patients, not doctors (save for emergencies or other similar circumstances): "The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments."  If a doctor is offering the patient an innovative treatment, then his/her role is advisory and "involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision."  

  • Official guidance on the Bill given to parliamentarians says that the intention is to "to reflect as closely as possible the steps under the current common law which a responsible doctor could be expected to take when innovating" It misses its target. The current common law requires that the treatment should be reasonable by the standards of a relevant body of medical opinion, and be rational. The Bill requires only that the doctor takes steps (by speaking to one or more other doctor) to ascertain whether (not to ensure that) the proposed treatment would have the support of a responsible body of medical opinion . 

  • Section 3(2)(c) of the Bill does provide that lawful consent must be obtained but Section 3(2)(d) merely requires a doctor to "consider any opinions or requests by the patient". Which is it to be? Either the Bill requires the doctor to comply with the current law on informed consent, or it requires doctors merely to take into account a patient's wishes. If this Bill is to pass it must at least be amended to make clear that doctors must obtain the informed consent of patients to any proposed treatment. Section 3(2)(d) muddies the waters and could be discarded if the need for informed consent is made clear in Section 3(2)(c).

  • The Bill should make clear that even if a decision to choose innovative treatment is properly made, that does not absolve the doctor from potential liability in relation to the delivery of that treatment. If the doctor negligently prescribes an over-dose of an innovative drug he/she should still be accountable, even if the decision to take the drug was "responsible" under the Bill.

Section 4 preserves the "Bolam" defence for doctors. It does not preserve the Bolam test as it is now applied by the courts. Under the Bill a patient could not choose to ask the court to apply the Bolam test rather than the provisions of sections 3 of the Bill. If the defence under the Bill is made out, the doctor will not be found negligent even if he would have been under the Bolam Test. Section 4 however provides the doctor with two defences - the current Bolam test and the new defence under the Bill.

The Bill will be heralded as a win/win provision but at its heart is an attempt to reduce the liability of doctors and their employers for negligence. It will not change the behaviour of the vast majority of doctors who are responsible, skilled and caring. Instead it will encourage irresponsible doctors, the quacks and the charlatans. The losers will be the injured and bereaved.

Mr Heaton-Harris says he wants feedback on his draft Bill - you can send it to him here

Friday, 21 August 2015

Alarming or Alarmist?

A campaign is afoot to persuade the public that claimant clinical negligence practitioners are over-charging, thereby diverting much needed funds from patient care. Ben Gummer MP at the Dept of Health has said that lawyers are "loading grossly excessive costst" onto the NHS. The media have seized upon the NHSLA's Annual report for 2015 as further evidence in the case against the lawyers.

Take for example this piece in The Guardian under the headline:

NHS sounds compensation alarm after £120,000 lawyer bill for £5,000 claim

Beside the piece is a side bar headed: "Clampdown on lawyers overcharging the NHS in medical negligence cases"with a link to an article about government proposals to introduce fixed costs for clinical negligence claims.

The headline case was one of delay in diagnosing cancer. Readers of this blog will know how difficult such cases are to investigate and to prove. Damages were eventually agreed at only £5,000 but the case was struck out.  Hence, the costs received by the claimant's solicitors were nil. They worked for nothing on a case which was doubtless both difficult and of considerable importance to their client. This is not mentioned in the report or The Guardian piece.

In the other example used in NHSLA report and the Guardian piece, claimant lawyers are condemned for seeking over £50,000 in costs for a claim settled for £2000. However, the eventual award of costs was just over £12,000. Details of the case and the expert evidence required to prove it are not provided.

Striking a balance between achieving access to justice and reducing the costs of claims against the NHS is an important public policy issue1. Coverage of the NHSLA's report, whether prompted by government briefing or otherwise, has so far done a disservice to informed public debate. Whilst not seeking to argue for or against the fixed costs proposals, I do think it is important that the media and the public are given some basic facts about costs. Some of these are so self-evident to those who work in clinical negligence litigation that they are often left unsaid. 

Very Few Claims
Only a tiny fraction of patient interactions in the NHS result in negligence claims. Very many patients choose not to sue the NHS for damages even though enticed to do so through advertising and the attraction of no win, no fee agreements. Clinical negligence lawyers did not lobby for, nor did they introduce no win, no fee agreements.

Claims are Difficult and Costly to Prove
It is very difficult to win a clinical negligence claim. It is extremely rare for a medical professional to tell a patient that they have been negligent. In the absence of admissions by the NHS, the patient has to prove that the doctors were negligent and that the negligence caused them avoidable injury. Treatment is negligent only if no responsible body of doctors working in the relevant field at the relevant time would consider it acceptable.  It is not enough to show that the treatment was below average or poor. To prove their case a patient needs to acquire, sort and interpret the medical records and then obtain supportive expert medical opinion from doctors who either work or have worked in the NHS, that the treatment given to them was negligent and that the negligence resulted in avoidable injury. This may require them to obtain several expert reports and then to meet with the experts to ensure that their opinions can be put together to form a coherent and persuasive case against the NHS. All of this work needs to be done before a patient knows whether they have a case worth pursuing.

The NHS Demands Proof of Loss and Damage
Patients have to prove the extent of the injury suffered and the financial consequences of it. It is not enough to put a rough figure on likely damages. The NHS presses for evidence in support of the losses claimed. This may require expert evidence from, say, a prosthetic expert, an accommodation expert and an occupational therapist.

No Burden of Proof on the NHS
There is no burden of proof on the NHS. Hence, claimants incur much greater costs than defendants at the early stages of a case.

Claimant Lawyers Often Unpaid for Investigating Claims
If the investigations show that there is no worthwhile claim to be brought, the claimants' lawyers do not get paid anything for the work they have done. It would cost the state a small fortune to pay for the independent investigation of potential claims against the NHS. Instead that burden is met by claimant lawyers.

Claimant Lawyers Only Paid for Successful Claims 
Claimants' lawyers are only entitled to be paid for successful cases. 

Claimant Lawyers Paid Costs only by NHS Agreement or Court Order 
In each case where the NHS pays costs to Claimant's lawyers the NHS has accepted that it should pay costs, or has been directed by a Court to pay costs. In every other case the claimant's lawyers recover no costs at all from the NHS.

The Amount of Costs Paid to Claimant Lawyers is Determined by NHS Agreement or an Independent Judge
The amount of costs payable in every case the NHS loses is either agreed by the NHSLA or is assessed by an independent Judge as being reasonable and proportionate. The more cases the NHS loses after arguing that it was not negligent, or contesting the level of damages, the greater the costs burden to the NHS.

Costs Include Experts' Fees, Court Fees and VAT
A claimant's claim for costs will typically include experts' fees, an insurance premium (where recoverable in law) court fees and VAT. Not all costs recovered are for the lawyers - some go back to the government.

Costs Are Limited to those that are Reasonable and Proportionate to the Claim
If fixed costs are introduced and are set below currently allowable rates then they will be below costs thought by the courts to be reasonable and proportionate.

The Government Fixes Damages for Death
Many claims involve patient deaths caused by medical negligence. The government controls who can recover damages for a death and the amount of such damages. If fixed costs are introduced and are fixed as a proportion of damages, then the government will in effect control the ability of families to challenge the NHS where they believe a loved one has died as a result of clinical negligence.

Clinical Negligence Claims Are Also Brought Against Private Healthcare Providers
Any restriction on recoverable costs for clinical negligence would apply not just to claims against the NHS but to claims against private cosmetic surgeons and other private healthcare providers.

1. See previous post on various aspects of clinical negligence litigation that could be investigated with a view to reducing costs

Monday, 27 July 2015

Billett - Loss of Earning Capacity

The Court of Appeal has given an important judgment on the assessment of damages for loss of earning capacity. It may herald a shift upwards in awards for loss of earning capacity.

The case is Billett v Ministry of Defence [2015] EWCA Civ 773, an appeal against a quantum judgment of Andrew Edis QC sitting, as he then was, as a Deputy High Court Judge. I represented the Respondent on the appeal.

Mr Billett had suffered a non freezing cold injury to his feet following a training exercise whilst he was in the Army. Liability had been compromised at 75% of damages to be assessed. Mr Billett was awarded just over £127,000 on 100% basis, but two of the awards were the subject of appeal: the award of £12,500 for pain, suffering and loss of amenity, and £99,064.04 for loss of earning capacity.

The first instance judgment can be found here. Mr Billett was aged 29 at trial. His injury was found to be to his feet only and to be very mild. The Trial Judge found that he was disabled within the meaning of the Equality Act 2010, "but only just". The Trial Judge found that he had left the army for reasons unrelated to his injuries and was in employment earning as much as he would have been without his injury. His NFCI prevented him from working or doing "anything else outside in cold conditions for any appreciable period of time". He worked as Large Goods Vehicle driver and his condition was not interfering very much with his ability to carry out that work at the time of the trial.

The Court of Appeal upheld the award of general damages for PSLA.

Loss of Earning Capacity

The principal issue identified by Lord Justice Jackson giving the lead judgment in the Court of Appeal was "how the court should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables suitably adjusted?" Note that in the first instance decision in Conner v Bradman [2007] EWHC 2789 (QB) the Judge was making an award for a "quantifiable loss of earnings" not for loss of earning capacity.

The Ogden Tables and Explanatory Notes include (since the 6th Edition) Tables A to D which set out "reduction factors" ("RF") to be applied to multipliers from tables 3 to 14. The RFs which are based on evidence of the effect on earning capacity of employment status, educational qualifications and disability status for men and women of certain age groups.  By comparing table A with Table B, keeping all other factors equal, the impact of disability on a man of the Claimant's age could be isolated. Of course the tables are only directly relevant if the claimant is "disabled" within the meaning set out in the Explanatory Notes. That test of disability involves (but is not limited to) consideration of whether the individual is disabled as defined within the Equality Act 2010. Furthermore, the tables give a mean figure for the relevant group: e.g. for 25 to 29 year old men, in employment with mid-range educational qualifications who are "disabled". Some within that group will have severe conditions, some, as Mr Billett was found to be, would only just scrape into the group. Should the Court apply the same reduction factor to all within the group? Articles on that issue by William Latimer-Sayer and Dr Wass in JPIL are referred to in the judgment.

Ultimately the Court of Appeal held that in the particular circumstances of this case a "traditional Smith v Manchester approach should have been adopted" rather than use of the Ogden Tables. It substituted its own assessment of £45,000 for loss of earning capacity, which equated to just over twice Mr Billett's annual net earnings. It should be noted that although this was less than half the Trial Judge's award, it was an award for a person who "only just scrapes" into the definition of disabled used within the Ogden Tables Explanatory Notes. Accepting that at the time of assessment the Claimant was only 29 years old, the award nevertheless suggests higher multiples of net earnings for claimants with more severe restrictions, even if the traditional Smith v Manchester approach is adopted. That would be most claimants, given the findings as to the test of "disability" (see below) and that Mr Billett's injury placed him at the outer fringe (at the bottom) of the range of disability.

The judgment addresses the use of the Ogden Tables and Explanatory Notes and the definition of disabled" for the purpose the Ogden Tables.

Definition of "Disabled"

1. The Court adopted the approach of the EAT in Aderemi to the test of "disability" under the Equality Act 2010, which test is adopted as one of the conditions for classifying a person as "disabled" for the purpose of the Ogden Tables A to D. Note that the test is not whether a disability is substantial, but whether the impairment has a substantial adverse effect on the individual's ability to carry out normal day to day activities. "Substantial" means "more than minor or trivial". Thus very many individuals with long term injuries will fall within the definition. It is a broad definition. The MOD submitted that the test of disability was whether the claimant broadly matched the examples set out in the Explanatory Notes. In doing so it had adopted the same wording as appears in Professor Wass's most recent JPIL article. In fact the MOD had instructed Dr Wass to advise it prior to the appeal hearing. The Court of Appeal did not adopt that test.  It did not agree with Dr Wass's opinion that Mr Billett was not disabled for the purpose of the tables. Unless and until there is a change in the conditions for the classification of a claimant as disabled within the Explanatory Notes, the Court of Appeal's approach is authoritative. 

Ogden Tables "A Valuable Aid"

2. Lord Justice Jackson stated, "I accept that in may instances the use of Tables A-D will be a valuable aid to valuing the claimant's loss of earning capacity." They were found not to be a valuable aid in the present case because the claimant was "at the outer fringe" of the broad spectrum of disability, and his disability "affected his ability to pursue his chosen career much less than it affects his activities outside work". As such there was "no rational basis for determining how the reduction factor should be adjusted." Labour market economists such as Dr Wass may not agree with that conclusion. Nevertheless for many claimants who are "disabled" and who fall to be compensated for loss of earning capacity, the Ogden Tables A to D will be a valuable aid to the courts.

The 2002 paper by Richard Lewis and others in the Journal of Law and Society, published in an abbreviated form in JPIL [2002] vol 2 pp151-165, concluded that Smith v Manchester awards had tended to under-compensate claimants, particularly younger men (such as Mr Billett). The Court of Appeal judgment does not refer to those papers but the Court considered that an award of slightly more than twice Mr Billett's annual net earnings was appropriate even though he was "only just" disabled.

The question of the appropriate adjustment to make, if any, to the RF in such cases where the court does use the Ogden Tables A to D as a valuable aid, remains unanswered by this judgment. The JPIL articles referred to in the judgment will be, I suggest, of considerable assistance. The RFs within the tables are mean figures for each relevant group. The Court of Appeal noted evidence that if those within any "disabled" group were categorised from 1 to 10 in terms of the severity of their disability, over 42% would be in the 1-3 categories. Only 13% would be in the 8-10 categories. Hence, I suggest, any adjustment would have to reflect that distribution. I also suggest that courts have to beware that some adjustments to the "after disability" RF would logically have to be made to the "before disability" RF with which comparison is being made for the purpose of assessing the loss of earning capacity. For example, if a Claimant is said to be a particularly gifted communicator, or has vocational qualifications not taken into account in the Tables, those factors would affect his potential earning capacity with or without a disability. It would be wrong to adjust only the "after disability" RF.

I was instructed by Ahmed Al-Nahhas of Bolt Burdon Kemp and my Juniors were Laura Collignon and Nicholas Maggs of Thomas More Chambers, to all of whom I pay tribute for their hard work, depth of knowledge and insight.

Friday, 17 July 2015

At the Local Court

On the announcement of the planned closure of scores of local magistrates, county and (some) crown courts in England and Wales.
With apologies to Flanders and Swann who wrote "Slow Train" on the closure of many branch line stations.

At the Local Court

No more will I go
To Hammersmith, Greenwich or London Bow,
To the local court at Bury St Edmunds or Dolgellau.
No pipe-smoking usher, no volunteers' tea
At Oldham or Ormskirk, Stroud or Torquay
No more trials to be fought
At the local court.

My wig and my gown
Won’t travel again to Barnstable Crown.
In Bury and Morpeth I’ll never see the circuit judge frown.
No warrants suspended, no felon bound over
In Chichester, Eastbourne, Prestatyn or Dover.
No damages sought
At the local court.

Handwritten orders in copperplate lettering.
Gathering dust in Hinckley and Kettering.
No miscreant nervously speaks
To the Macclesfield beaks.
No CPS rep rising to his feet at Chippenham.

No-one to defend, no-one to litigate
In Rotherham, Redhill, Wrexham or Reigate
They’ve all met their fate.
At the local court.

At the local court.
"Will the Defendant please rise."
At the local court.
Fareham and Altrincham,
St. Albans, Tunbridge Wells.

At the local court.