Wednesday, 19 April 2017

Learned Friend's Clinical Negligence Quarterly Reports

I am pleased to introduce the first quarterly report on clinical negligence in 2017. This is my review of the most important High Court and Court of Appeal judgments of the year. The first quarter of 2017 has been packed with important decisions so there has been plenty to write about. I have added some comments on the Discount Rate announcement.

See an extract from the Introduction to the first Quarterly Report below.

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From the Introduction to Q1:

"2017 has got off to an interesting start. The first seven cases of the year, decided in the High Court and Court of Appeal, were all won by Claimants with the next three being decided in favour of Defendants. There have been some fascinating decisions and no fewer than five clinical negligence judgments in the Court of Appeal compared with two for the whole of 2016. All the cases are listed with links on my blog, but there is also a list of the cases reviewed in this Quarterly Report with links below. 

 HHJ Robinson’s decision on the scope of the duty of care of an A&E receptionist was upheld by a majority decision in the Court of Appeal. The issue of consent following Montgomery has been significant in two of the leading cases and these are discussed at length in this report. The relevance of the Bolam test to histopathological reporting was considered by Kerr J in Muller v King’s College Hospital. The Courts’ approach to expert evidence was once again a significant feature in clinical negligence case law. Jeremy Baker J adopted and applied dicta of Green J which may become standard text in future skeleton arguments and judgments. The Court of Appeal upheld a trial judge’s approach to an expert’s failure to disclose a connection with a party to the litigation and the Courts’ willingness to openly criticise experts remained evident but with an intriguing reversal of fortunes for two particular experts. The Court of Appeal began the quarter by upholding a generous award in respect of a second home and ended it by upholding a judge who had over-shared his own experiences of knee treatment when dealing with a case involving treatment of a knee. Perhaps the most important development in this quarter has come not from the courts but from the Ministry of Justice with the Lord Chancellor’s announcement of a new discount rate of -0.75% which came into force on 20 March. Although not within my self-imposed remit, I have included a section on the new discount rate in this review."

Friday, 24 March 2017

Mayday! Mayday!

Mr Darnley attended the Mayday Hospital A&E with a head injury following an assault. He was with a friend.  It was a busy Monday evening. He was greeted, as was the system in place, by a receptionist without medical or nursing qualifications. She clerked him in and asked him to wait. She told him that it would be up to 4 to 5 hours before he was seen. He told her that he felt he was going to collapse. She told him that if he did he would be treated as an emergency.

NICE Guidelines state that a head injured patient should be seen within 15 minutes. It was not disputed that in this case Mr Darnley would have been seen within 30 minutes. The information given by the receptionist had been misleading. Mr Darnley was not seen in 30 minutes because after 19 minutes of waiting, he and his friend left. He went home. Very unfortunately his condition rapidly deteriorated and he was rushed back to hospital where it was found he had an extradural haematoma. It was too late to save him from having permanent, serious neurological injuries.

The majority in the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, held:

(i) The circumstances had not been such as to place the Claimant in a special category of patients requiring priority triage.

(ii) The receptionist had not assumed a duty of care or responsibility to the Claimant when giving advice about the likely waiting time. It would not be fair, just and reasonable to impose a duty of care on the receptionist not to give misleading information about waiting times (Caparao v Dickman [1990] 2 AC 605, applied). The Court was concerned, in this case, about the ramifications of finding otherwise when 450,000 people per week present to A&E and many hospitals operate a system similar to the Mayday Hospital. Research shows that as many as 3-8% of patients leave A&E without being seen. How many have potentially serious injuries?

(iii) In any event, either the prevention of the injury was outside the scope of the duty of care or there was no causal link between any breach and the injury: the Claimant, a capacitous adult, chose to walk out of A&E. 

McCombe LJ gave a dissenting judgment. He pointed to the trial Judge's findings about the complaint of possible collapse and the receptionist's response, referred to above. He also observed that the duty of care was on the hospital. He said at [71]:

"The duty of the hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact."

He would have allowed the appeal and imposed liability on the Defendant Trust.

Mr Darnley chose to forego treatment. He did so at least partly on the basis of incorrect advice that he might have to wait up to 4 to 5 hours to be seen by a clinician. He had to balance that information with other considerations such as that he did not know how serious his head injury might be. Arguably therefore he made a treatment decision on the basis of incorrect advice from the hospital staff. This brings to mind the principles in Montgomery. Did the hospital provide the Claimant with relevant, accurate information on which he could exercise proper autonomy?

Suppose the Trust had employed a nurse on reception who had given the same information to the Claimant as the receptionist had given? Would a nurse have been under a duty to advise Mr Darnley to wait to be seen because it cannot be known without proper examination how serious his head injury might be? Would the Trust have been liable because a nurse owes a higher standard of care than a "civilian"? It must be implicit in the majority judgments in Darnley that it is acceptable to organise an A&E department so that the first point of contact - and the only contact for perhaps half an hour in a head injury case - is with a "civilian". Also, it appears that there was no written information given to Mr Darnley. Head injury leaflets are common-place. Was he not given a leaflet to read telling him of the importance of being checked out? 

Some might thing that there is a danger that this judgment will encourage greater use of "civilian" staff so as to help the NHS and other healthcare providers to avoid liability? Why employ a trained nurse when you can use a "civilian" at less cost and with a lower risk of being found liable if something goes wrong?

On the other hand, as I have previously observed on this blog, if there is an greater emphasis on patient autonomy following Montgomery, then that has consequences not only for providers of medical care but also for patients. Adults with capacity to make rational decisions have responsibility for the consequences of those decisions. Mr Darnley removed himself from the hospital without having been seen by a nurse or doctor. He did so without receiving any nursing or medical advice. By doing so he knowingly took the risk that his head injury might be a serious one and he might deteriorate at a time when he was out of the immediate reach of medical attention. He fully, but unwisely, exercised autonomy. 

For some time clinical negligence defendants have been seeking to defend cases (in whole or in part) by contending that patients have broken the chain of causation or have been contributorily negligent by missing appointments or not complying fully with advice etc. Will this judgment encourage more of those sorts of defences?

This is a fascinating decision with potential ramifications for the way hospitals should be organised, and for the responsibilities patients have for their own decisions. 

Tuesday, 21 March 2017

The Discount Rate and Misreporting Compensation Payments

How do we counter misleading legal stories in the press? I am well aware that the number who will read this blog is a tiny fraction of those who will have read the story below, and that fewer still will read this blog to the end. This blog post may be true, but it is boring, technical stuff. Nevertheless, here it is:

The Guardian has led the way in reporting a remarkable increase in a compensation award to a claimant in a clinical negligence claim:

NHS trust triples injury payout to £9.3m under controversial new rules
Compensation for 10-year-old girl left with cerebral palsy will cause shockwaves in health service and insurance companies

The headline and story are completely inaccurate. The "payout" (horrible term) was not £9.3m nor did it triple under new rules. 

The "controversial new rules" are a change in the discount rate announced by the Lord Chancellor, taking effect on 20 March 2017. The discount rate is, or should be, set to reflect the real rate of return a risk-adverse investor could get for their money in the current market. It is assumed that they would rely on index-linked government stock. The average real yields for that stock over the last three years has been -0.75% (to the nearest one quarter of one per cent). That is the new discount rate set by the Lord Chancellor. Previously, and since 2001, it has been 2.5%. So it is a big change, all the bigger because there has been no change to reflect the changing market for 16 years. Most significantly, it has gone from a positive to a negative rate. What consequences does that have?


If I am unable to work and I need care for the remainder of my life because you have negligently injured me, I claim from you, say, £100,000 per year. Suppose I am likely to suffer that loss for 30 years. If you gave me £100,000 x 30, I would have £3m. If you gave me £3m now I would invest it. Since I need the money to pay for my care I will invest it in low risk investments. When the discount rate was 2.5% it was assumed that I would get a positive return for my money. Hence I did not need £3m to compensate me for payments of £100,000 per year for 30 years, even allowing for inflation. Instead I needed roughly £2.1m. I could invest that sum and draw down from it so that I would have £100,000 available to buy the care I need for 30 years. Then I would have no more money.

In fact, as set out above, for some time the real rate of return on risk free investments has been negative, and so, belatedly, the discount rate has been changed to minus 0.75% I don't need £2.1m to allow me to pay £100,000 a year for 30 years, I need £3.4m. The figure that the annual sum is multiplied by is called the multiplier. The lower the discount rate, the higher the multiplier. That's mathematics (and economics).

The impact of the change in the discount rate is very considerable on increasing the value of future awards for young adults and children where they are assessed as a single lump sum using a multiplier. Multipliers for some teenagers do indeed triple.

However, there is a problem with assessing future awards using a multiplier. Such assessments assume that we know how long the claimant is going to live. We don't. So after 30 years the money runs out, even if I live for 40 or 50 years. On the other hand, if I am run over by a bus after five years, I still have about £3m left and my beneficiaries receive that remaining sum under my will. That wasn't the aim of the compensation but it is the result of receiving all the compensation as a lump sum.

Periodical Payments

To avoid these unwanted consequences, many claims for substantial future losses in made against the NHS are resolved by an agreement that the NHSLA will pay, say, £100,000 per annum to the Claimant, index linked so that in keeps pace with increased costs of buying care, for so long as the Claimant lives. If the Claimant lives five years, the payments stop then - they don't need to buy care anymore. If they live to 100, the payments continue to then and they can be assured that they will always have the money they need to buy care, but no more than they need.

Whatever other consequences the Lord Chancellor's announcement has had, it will not change how long we all live. 

The Claimant referred to in the Guardian story received some of her compensation as a lump sum and some as a periodical payment order - an agreement to pay a certain amount every year for so long as she lives. The change in the discount rate did not increase that amount nor for how long the NHSLA will have to pay it. I have it on very good authority that the Discount Rate change did indeed lead to an increase in the lump sum from £1.32m to £2.12m - an increase of £800,000. Not insubstantial but not the £6m claimed by the Guardian. The PPOs remained the same as previously agreed. So the NHSLA's liability increased from £1.32m and (I believe) about £200,000 per year for so long as the Claimant shall live, to £2.12m and £200,000 per year for so long as the Claimant shall live. That is not a tripling of the award.

Shockwaves? If any, they are much further down the Richter scale than the media has reported.

Monday, 6 March 2017

Patient Autonomy and National Screening Policy

Is there a conflict between the courts'defence of patient autonomy in Montgomery v Lanarkshire and decision-making about national screening policy?

There has been much recent news coverage about a campaign to introduce a screening programme for Group B Streptococcus in later pregnancy. The campaigners' argument is that over 500 babies were made ill as a result of Group B Strep in the year to April 2015, 27 died, and more suffered severe disabilities. A simple and cheap test for Group B Strep infection in late pregnancy would, it is argued, have resulted in the administration of antibiotics for those mothers found to be infected, thus preventing this level of suffering and death.

The BBC reports that the National Screening Committee opposes introducing screening for Group B Strep in late pregnancy. Its director of programmes, Dr Anne Mackie said, 

"The UK independent expert screening committee's last review of screening for group B strep carriage found testing in late pregnancy unreliable.

"This is because the test cannot distinguish between women whose babies will be affected by early onset group B strep and those who would not. This could lead to a high number of mothers and babies being exposed to unnecessary antibiotic use."

What has this to do with Montgomery?

In Montgomery the Supreme Court emphasised the importance of patient autonomy:

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. 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 Court approved Lord Woolf's approach to consent in the case of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53, in which a mother had not been warned of the risks to her unborn child of allowing her pregnancy to go "over term" rather than electing to have an earlier, elective Caesarean section. Lord Woolf held:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt."

I make no judgment as to the merits or otherwise of introducing a screening programme for Group B Strep. But I wonder whether there is there a potential conflict between the individual patient's right of autonomy and policy decision-making about screening programmes. For the individual mother, the balance of costs, risks and benefits may seem to point only one way. Of course many will choose to have a simple test for infection in late pregnancy, and to take antibiotics if the test is positive, rather than taking the risk of leaving their baby unprotected from a potentially devastating infection. But at a national, policy level, the balance of risks and benefits includes many wider considerations.

Could judge-made law, which is developed by consideration of the claims by individuals, have consequences for national screening policy? Are midwives and obstetricians obliged to warn expectant mothers of the availability of a test for GBS in late pregnancy, and the risks and benefits of testing, notwithstanding a national policy not to have screening?

Monday, 27 February 2017

Discount Rate: In Case of Emergency....

Today's announcement of a change in the discount rate from 2.5% to -0.75% (that's minus 0.75%) was a shock, although the Lord Chancellor has said it was the "only legally acceptable rate". If so, one wonders about the legality of the 2.5% rate that applied up to today.

The change comes into effect on 20 March 2017.  There may be a legal challenge to prevent that. Nevertheless litigators should treat this change as an emergency.

It has immediate implications for practitioners. Gordon Exall has been quick of the mark with sensible advice. Have a look.

Here is a link to tables of multipliers using the -0.75% rate produced by Rebmark. I cannot vouch for the accuracy of the figures.

Future claims could double or even treble in value. In some cases multipliers could be over 100.

The implications of this change are far-reaching. The cost to insurers and the NHS could be very high.

For litigators, immediate attention should be given to:

  • Existing Part 36 Offers
    • Any that depend on an assessment of future awards need to be immediately assessed. 
    • Claimant's must consider withdrawal as a serious option. It might be professional negligence not to do so. However
    • If a Defendant sought permission to accept a Part 36 Offer which would now manifestly undervalue a claim, surely the Court would refuse permission. 
    • Consideration by Cs to make offers based on the new rate - might the new rate be challenged by insurers so that it does not take effect? How should Ds respond to offers based on the new rate but when the time for acceptance expires only a day or so after the new rate is due to come into force?
  • Existing non-Part 36 Offers
    • ditto
  • Ongoing negotiations/settlements
    • Radical reassessment is required.
    • Court unlikely to approve settlement that did not reflect new rate
  • Schedules and Counter Schedules
    • Need to be re-written. All future claims, and claims for loss of earning capacity that are based on the Ogden Tables, need to be re-calculated.
    • Discounts for early receipt would become enhancements for early receipt using a negative discount rate. Is that how they should be used or should there simply be no allowance either way for early receipt.
  • Costs budgets
    • If more work needed, for example re-writing schedules, or obtaining further financial advice, then this needs to be factored in to a costs budget
  • Court fees
    • Some claims will have doubled in value overnight. This might affect the proper issue fee.
  • PPO vs lump sum 
    • The balance of benefits and disadvantages of a PPO or lump sum award has just changed. Financial advice is required to address the new position
  • Interim Payments
    • The assessment of the likely lump sum, insofar as it depends on certain future losses, requires reconsideration.
  • Accommodation Claims
    • Is the Roberts-v-Johnstone calculation still applicable? It would result in a negative amount (Additional cost of accommodation x -0.75% x multiplier). Are new ways of assessing the value of an accommodation claim now required? See this blog from John de Bono QC : Roberts v Johnstone is dead
    • Will there be an early test case on how accommodation claims should be calculated?
    • In the meantime how do litigants deal with this uncertainty?
Of course, this rate will not last forever. In particular, will there be a legal challenge by the insurance industry? Might they succeed in staying the implementation of the new rate so that it does not take effect as planned on 20 March? Or, will there be a short "window" in which claims have a value well in excess of what has come before, and will ever come again?

I am sure there are other implications that will sink in with further reflection. Let me know of any thoughts about what they are and how to deal with them.

Friday, 24 February 2017

Whiplash Muddle

The government has swiftly considered the responses to its consultation on reforming the claims process for whiplash injuries. Indeed it has drafted legislation, including provision for a tariff system of compensation that throws up some bizarre anomalies.

The small claims limit for all road traffic injury claims, including but not exclusive to whiplash injuries, will be increased to £5,000. All other PI claims up to £2,000 will be dealt with as small claims. So, a claimant will be able to recover costs of legal representation for a claim for a knee injury for which damages are £3,000 only if it was suffered otherwise than in a road traffic accident.

For whiplash injuries (the definition of "whiplash" yet to be published) and psychological injuries (suffered on the same occasion as a whiplash injury), Judges are no longer to be trusted to assess the level of compensation. Instead the government will impose a tariff of damages.

Tariff for whiplash and psychological injuries set out in the Government's Response to the Consultation on reforming the Whiplash claims process.

Injury Duration
2015 average payment for
PSLA – uplifted to take account
of JCG uplift (industry data)

Judicial College Guideline (JCG) amounts (13th edition)
Published September 2015
New Tariff
0-3 months
A few hundred pounds to £2050
4-6 months
£2,050 to £3,630
7-9 months
£2050 to £3630
10-12 months
£2050 to £3630
13-15 months
£3,630 to £6,600
16-18 months
£3,630 to £6,600
19-24 months
£3,630 to £6,600

The new tariffs are therefore the same whether the injury is a physical whiplash injury alone or a whiplash injury with psychological injury, and however long the psychological injury lasted (the tariff is set by the duration of the whiplash injury).

This throws up some interesting anomalies:

  • The new tariff is set at 13% of the existing average award for 0-3 months injuries and 83% of the existing average for 19-24 months injuries. 
  • There are increasing marginal tariff awards for each additional 3 months of injury are: £225, £315, £425, £630, £840 and £1065. In fact the severity of symptoms tends to be at its highest in the initial period, tailing off. Thus the marginal tariffs should diminish.
  • An additional month of injury from 15 to 16 months results in £840 in additional damages - more than for a full nine months of injury.
  • The tariff awards proportionately more
  • The severity of symptoms is irrelevant to the tariff. So a very severe injury that fully resolves in 6 months attracts an award less than a minor injury lasting 9 months.
  • Unless the regulations carefully define psychological injury, someone who suffered disabling PTSD for the rest of their life would be restricted to the tariff if they suffered a 20 month whiplash injury at the same time. 
Nailing my own colours to the mast, I would have raised the small claims limit for all PI to either £2,500 or £3,000 and left the courts to determine damages for all injuries, to whatever part of the anatomy and however caused.

Having gone down the route of introducing a tariff for certain injuries suffered in certain circumstances, the government was likely to get itself in a terrible muddle. And so it is proving.

Monday, 6 February 2017

Bolam under the Microscope

For a more in depth analysis of Muller and other clinical negligence cases, subscribe to my 2017 Quarterly Reports


Are there cases of clinical negligence in which the Bolam test has no application?

We know that in the field of informed consent the Supreme Court in Montgomery v Lanarkshire recently emphasised that the Bolam test is not an appropriate yardstick for ensuring that patient autonomy is respected. Now, in Muller v King's College Hosptial NHS Foundation Trust [2017] EWHC 128 (QB)  Kerr J has addressed the applicability of the Bolam test to cases of purely diagnostic error, where there is no question of the exercise of professional judgment in relation to management or treatment.

The Claimant alleged that there was a negligent error by a histopathologist in reporting what was a biopsy of a malignant melanoma as a non-malignant lesion.

Defendant's counsel submitted that Bolam should be applied "unvarnished". The admitted error in reporting: 

"... could easily be made by a histopathologist acting with reasonable competence, i.e. with reasonable skill and care. Mr Gibson submitted that Dr Foria's expert opinion was founded on acceptable reasoning and not outside the bounds of respectable medical opinion. 

"Mr Gibson submitted, therefore, that Professor Wright's contrary view - that Dr Goderya committed a plain breach of duty - should not be preferred; Dr Foria's opinion was sufficient to exonerate Dr Goderya from the charge of negligence. Applying the Bolam doctrine, the court should not choose between these opposing experts' views; Dr Foria's view should carry "substantial weight" and should not be rejected unless Professor Wright's evidence cast it in "such an altogether negative light that it should be rejected" (per Green J in C. v. North Cumbria University Hospitals NHS Trust, at paragraphs 25(i) and 73)."
[paras 44 and 45]

In contrast Claimant's counsel argued 

"that the application of the Bolam principle did not provide the answer here. He proposed that the governing authority was the Court of Appeal's decision in Penney v. East Kent Health Authority [2000] PNLR 323, in which Lord Woolf MR gave the judgment of the court. That case, he pointed out, was like this one a case of interpreting objective data wrongly.

"He submitted that Penney showed that the court must determine the objective facts about what pathological features were there to be seen on the slides - which in the present case is a matter of agreement - and then decide for itself whether, in the light of the differing experts' views, the misdiagnosis was one that must have been made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict of expert opinion by resorting to the Bolam-derived notion of a respectable body of medical opinion."
[46 and 47]

The Judge considered the context in which Bolam and other cases had been decided and concluded at [75]

"In a case involving advice, treatment or both, opposed expert opinions may in a sense both be "right", in that each represents a respectable body of professional opinion. The same is not true of a pure diagnosis case such as the present, where there is no weighing of risks and benefits, only misreporting which may or may not be negligent. The experts expressing opposing views on that issue cannot both be right. And the issue is, par excellence a matter for the decision of the court, which should not, as a matter of constitutional propriety, be delegated to the experts."

However ....
"I am bound by the law as it currently stands, to approach that issue by reference to a possible invocation of the Bolitho exception. I must not, therefore, reject Dr Foria's view unless I am persuaded that it does not hold water, in the senses discussed in Lord Browne-Wilkinson's speech in Bolitho and developed in other cases: that is to say, if it is untenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible." [79]

This might point the way to future appellate consideration (perhaps not in this particular case) of the approach that should be taken to cases involving errors of reporting and diagnosis. 

Monday, 30 January 2017


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The NHS is a beloved institution but mistakes are made and people die due to negligent error.

Proving that death has been caused by clinical negligence is difficult. Not all errors are negligent. A claimant has to establish the facts - sometimes having to analyse hundreds of pages of medical records - and then, with expert evidence, to persuade the court that no reasonably competent doctor or nurse would have done what was done in the particular case. That is not the end of it. The claimant must also prove that the death would have been avoided but for the negligence.

Lawyers acting for claimants generally get paid nothing for the hours of work they spend on a case if that claim is unsuccessful. Nothing.

If they do succeed in proving the claim for their client then they are entitled to recover their reasonable costs. Whatever they claim in terms of costs, they will recover only the costs that the NHS agrees are reasonable or the amount that the Court determines is reasonable. 

The Department of Health is now planning to cap the costs that claimant lawyers can recover. It has issued a consultation paper setting out proposed fixed fees. Claimants' lawyers will not be entitled to recover more than the fixed sums. These proposals only apply to claimants, not to the NHS. 

Unscrupulous Law Firms

Jeremy Hunt says that "unscrupulous law firms cream off excessive legal costs". That is why he seeks to introduce a fixed recoverable costs regime for clinical negligence claimants whose claims are for damages of between £1,000 and £25,000.

How can a law firm be characterised as unscrupulous if it only recovers costs that the NHS has agreed or that the court has ordered the NHS to pay?

Lawyer bating is a popular blood sport, but these proposals will have a further significant impact on bereaved families. They will restrict even further the ability of families of those who have died as a result of clinical negligence to hold those responsible to account. 

Patients' Deaths

Many of the most serious cases will come within this proposed scheme. Where the NHS is responsible for negligently causing the death of a patient, damages for bereavement are fixed by the government at a figure well below £25,000. And the government restricts the relatives who can claim such damages. So parents of a 19 years old are not entitled to bereavement damages. 

Suppose your child died as a result of negligent errors made by the NHS. Suppose they had no dependants. 

The government will not grant funding for you to have legal representation at the Inquest (funding is only available in very exceptional circumstances). The Department of Health will pay for the hospital to have legal representation, but not you, the one who has lost a child.

The prospect of a solicitor acting for you at the Inquest on the back of a win no fee agreement for a potential civil claim will be effectively eliminated by the proposed cap on costs - there is no provision for representation at an Inquest within the proposal. 

The availability of good legal representation and good expert advice to help you with any court claim will be severely curtailed if the recoverable costs are limited to £1200 for all experts and £7150 for the conduct of the whole claim (as proposed).

How do you effectively scrutinise the management and care afforded to your child? How do you hold those responsible to account?

The Consultation

The fact that it is the Department of Health that is proposing these restrictions makes them even harder to accept. To be blunt, these claims involve fatal errors for which, in effect, the D of H is responsible. And it is the D of H which now proposes to restrict families' abilities to prove that it is responsible.

There are many other ways of reducing the NHS's litigation bill, but the prospect of them being considered appears remote.

I am a clinical negligence lawyer although I now have very little involvement in claims up to £25,000. Does that disentitle me from expressing a view? That is for others to judge.

There is a chance to persuade the government to exclude claims arising out of patients' deaths from these proposals. The Consultation period closes on 1 May 2017.

For those who are looking for some guidance and tips on advocacy at Inquests, or who want to know what is involved in bringing a clinical negligence claim, please have a look at my video guides. Go to Learned Friend Helps With ....

Friday, 20 January 2017

Consent to Treatment - Guidelines from the Royal College of Surgeons

I was delighted to be asked by the Royal College of Surgeons to attend the press briefing at the launch of its new Guidance on Consent following the decision in Montgomery v Lanarkshire. I was also asked to write a short blog on the issue of consent which has been published today by the RCS and which is copied here.


Montgomery v Lanarkshire [2015] is a landmark judgment affecting the surgeon/patient relationship. The Supreme Court held that patients have the right to exercise autonomy over their own bodies and over the treatment they undergo. When making treatment choices it is the surgeon’s duty to advise and the patient’s right to decide.
This right of autonomy over treatment is a common law right. It does not come from the European Convention on Human Rights but has been created by British judges in cases beginning with Sidaway [1985]. In Montgomery the Supreme Court gave it a final and very decisive stamp of approval. The Court held:
 “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … 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 … 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 Royal College of Surgeon’s recent publication: Consent: Supported Decision-Making – A Guide to Good Practice, offers detailed and practical guidance on the implications of Montgomery and how surgeons should protect patients’ rights to autonomy.
The well-known Bolam test continues to apply to the delivery of treatment but the Courts take a different approach when scrutinising the process of obtaining informed consent.

The Patient’s Right to Autonomy
Important though this right to autonomy is, there are certain qualifications:
·         The surgeon only has to give information about the reasonable treatments available. Financial restraints may limit the available range of treatments and a surgeon is not obliged to explain the risks and benefits of all possible treatments, however unreasonable or irrational.
·         Only adult patients with the capacity to make decisions about their own treatment can exercise this right of autonomy.
·         In situations, such as emergencies, when it is not possible to obtain a patient’s informed consent it may be necessary for a surgeon to make treatment decisions.
·         In very rare cases, the “therapeutic exception” may apply such that a surgeon need not divulge information to a patient if to do so would be seriously detrimental to them.
·         Patients may still ask, “What would you do, doctor?” If a patient makes a clear choice to follow a surgeon’s recommendation and not to be informed of the risks and benefits of alternative treatments, that is an exercise of autonomy.
Although the Court’s decision reflected guidance on informed consent given by the GMC for a number of years, concerns have been raised about its impact on consultation times and a rise in litigation.

Consultation Times
If, as likely, more time is spent with patients, that is a price worth paying to protect the right of autonomy. The unpalatable alternative is that patients have treatment decisions made for them.
Hospital managers must allow sufficient time and resources for advice properly to be given and recorded. The current standard consent form is poor evidence of a full discussion and consent process. A better recording system is required. Smart use of written or filmed advice issued prior to consultations can assist.

If adequate resources are allocated and surgeons follow the College’s guidance, there ought to be a reduction in litigation. With the right of autonomy comes the responsibility on a fully informed patient to live with the consequences of their decisions. Many patients instruct solicitors because they feel they have been kept in the dark. Patients who have been fully informed and empowered to choose a particular treatment are more likely to accept complications when they arise.
If surgeons and managers do not change from the old ways to the new, then patients who would have avoided harm had they been fully informed may well seek compensation.
The Supreme Court has laid down the law: doctors advise, patients decide. This is the new contract. All healthcare professionals and managers, not just surgeons, should heed the College’s Guide to Good Practice.


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Tuesday, 10 January 2017


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