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.