Clinical Law Insight: Autumn 201924/10/19
New Personal Injury Discount Rate
On 15 July 2019, the Lord Chancellor announced the outcome of the long-awaited Personal Injury Discount Rate review. The new discount rate will be minus 0.25% and came into force on 5 August 2019. Following the reduction in the discount rate from 2.5% to minus 0.75% in February 2017, a new framework for review was created by the Civil Liability Act 2018 (‘the Act’). Claimants were to be treated as ‘low risk’ rather than ‘very low risk’ investors and the principle of 100% compensation was to be preserved. The process required the Lord Chancellor to consult with the Government Actuary and HM Treasury and consider: actual returns and investment available to Claimants; the appropriate allowances for tax, inflation and investment management costs; and wider economic factors.
Under the Act the government must review the rate again within a 5 year period, to ensure that it remains appropriate. The next review will be conducted using an expert panel.
Comment:Compensators will have reviewed reserves on all large claims with a future loss element and carefully considered claims where offers remained open. The new rate means that the value of future accommodation claims based on the Roberts v Johnstone formula remains at zero. Uncertainty leading up to the current decision was apparent in settlements negotiated at between 0.5% and 1%. The view of many commentators is that at the next review there is a real possibility that dual rates will be introduced. This would involve a lower short term followed by a higher long term rate after a switchover period.
Future loss of earning capacity – a move away from Smith v Manchester?
The case of Inglis v MOD (2019) involved a Royal Marines weapons instructor who had suffered noise-induced hearing loss. The Claimant had left the service to take a job in maritime security and was studying for a health and safety qualification. It was agreed that had the Claimant remained in the service, he would have left in September 2019 and then worked in health and safety for 30 years. The judge determined that a one-off lump sum payment for loss of future earnings (the Smith v Manchester approach) was not appropriate and made an award based on the multiplicand and multiplier.
Comment: We have noticed a trend away from Smith and Manchester awards, save in cases where the uncertainties about future employment are significant. In Inglis the judge found that despite some uncertainty about the future it was clear that the injury had more than a minimal impact on the Claimant’s work and that evidence was available to determine the value of his future loss of earnings without having to make a broad-brush judgment. This trend will increase the value of claims.
Evidence & Liability
Lack of record not fatal to defence of claim
In CXB v North West Anglia NHS Foundation Trust (2019) the High Court determined that there was no general principle in a clinical negligence case that clinical notes should be preferred for reliability and veracity over witness statements and oral testimony because of the unreliability of a witness’s recollection of events. The evidence in question was a mother’s testimony that she requested a caesarean section but this was refused, causing one of her twins to suffer a birth injury. Her alleged preference was not mentioned in any of the clinical notes and the judge decided that there was insufficient material to conclude the notes were inaccurate or unreliable. Judgment was given for the Defendant.
Comment: In most clinical negligence cases, lack of a record will lead the judge to prefer the Claimant’s evidence. This case turned on its facts and the judge clearly considered the medical records to be of a good standard overall. Good record keeping is essential for patient safety and can make the difference between being able to defend a claim or not. However, CXB reminds us that the context of a missing record should be factored into any decisions about whether a claim should be defended or settled.
Discontinuance does not circumvent dishonest conduct
In Zurich Insurance plc v Romaine (2019) the Respondent discontinued a claim after being confronted with evidence of his dishonesty. The Appellant’s application for his committal in the High Court had been refused. The Court of Appeal considered that the judge had failed to take into account the ‘mischief’ that early discontinuance of a claim could bring, even in a claim such as this where the discontinuance had been prompt. The appeal was allowed.
Comment: This case along with the committal decisions in Atwal (2018) and Elder (2019) makes it clear that there is no hiding place for unscrupulous Claimants or lawyers. For more detail on Atwal and Elder please see Clinical Law Insight September 2018 and May 2019
Suicide conclusion to be determined on balance of probabilities
The Court of Appeal have confirmed in R (on the application of Maughan (Appellant) v HM Coroner for Oxfordshire (Respondent) (2019) that the civil standard of proof (balance of probabilities) should be applied to suicide conclusions at inquest. It has recommended that the position be set out explicitly in the Coroners (Inquests) Rules 2013. In obiter comments the Court stated that the criminal standard (beyond reasonable doubt) remains for unlawful killing conclusions.
Comment: This decision represents a major change in the law and is likely to herald an increase in the number of suicide conclusions. However the Appellant has been given leave to appeal to the Supreme Court. Read our in depth Insight on the Court of Appeal decision.
Witness faces jail for failing to attend inquest
The late Sophie Bennett (aged 19) sadly took her own life at Lancaster Lodge, London in 2016. The care home manager Mr Duncan Lawrence, failed to attend the inquest into Sophie’s death and was fined £650 by the West London Coroner who referred the matter to the Director of Public Prosecutions. In August 2019, Mr Lawrence pleaded guilty to the offence of failing to attend the inquest, but later applied to withdraw the plea on the basis of the criminal law ‘double jeopardy’ rule i.e. he had already been ‘tried’ and sentenced for the offence by the Coroner imposing the fine. The change of plea was refused and it is understood that Mr Lawrence will be sentenced by the end of October 2019.
Comment: This is a salutary tale about the importance of attending an inquest if called as a witness by the Coroner and the potentially dire consequences of not doing so. Mr Lawrence was facing a possible custodial sentence. Although this case is an extreme example, it demonstrates the extent of Coroners’ powers and the need for witnesses to co-operate and provide evidence.
Stillbirths - extending the investigatory powers of Coroners
The government is considering extending the powers of Coroners to investigate all full-term stillbirths occurring after 37 weeks. The MoJ ran a consultation which closed on 18 June 2019. It is not the government’s intention that inquests replace current processes for investigating the causes of stillbirths, but that they supplement and support them to ensure that Coroners can contribute to the learning and play a role in reducing stillbirths.
Comment: Coroners’ investigations of all stillbirths from 37 weeks is likely to have an impact on safety and learning through their power to issue a Prevention of Future Death report. However, this is likely to lead to an increase the number of stillbirth inquests and to have a significant impact on resources for obstetric, midwifery and legal/risk teams.
New death notification regulations
The Notification of Death Regulations 2019 (SI 2019/1112) came into force on 1 October 2019. A ‘relevant senior Coroner’ must be notified by a registered medical practitioner (RMP) if the RMP comes to know of a death after 1 October where at least one of the ‘prescribed circumstances’ set out in the Regulations applies.
Comment: There is no material change to the current reporting requirements, but the Regulations clarify and codify the details. They impose a clear duty on RMPs to report deaths in prescribed circumstances. Read our in-depth Insight into the Regulations.
Guidance on capacity
The British Psychological Society has issued guidance on what makes a good assessment of capacity. It covers the relevant provisions of the MCA 2005 and case law. BPS has also issued more specific guidance on capacity to consent to sexual relations. It covers relevant provisions in both the MCA 2005 and criminal law, including forced marriages, and provides summaries of case law.
Comment: Both publications contain practical steps and example scenarios and should be useful for clinicians and in-house legal teams alike. There have been a number of reported cases on capacity and sexual relations decided after publication of the guidance in May 2019, at least in part driven by concerns around the desire to pursue relationships via social media by those lacking or with limited capacity to consent. For example the Court of Protection case of A Local Authority v JB and the Court of Appeal decision in B v A Local
Conditional discharge and deprivation of liberty
In Birmingham City Council v SR & Lancashire County Council v JTA (2019) the Court of Protection authorised a deprivation of liberty in the community under the Mental Capacity Act 2005 as being in the best interests of the patients (who lacked capacity) who were (or were about to be) conditionally discharged under the Mental Health Act 1983.
Comment: This case contrasts with the Supreme Court decision in MM (2018) where M had the relevant capacity and it was held that the conditions of a conditional discharge could not deprive M of liberty as the MHA does not permit it. The SR/JTA decision means that a discharge from an MHA hospital which amounts to a deprivation of liberty can be lawful under the Mental Capacity Act 2005 in the case of patients who are both restricted and incapacitated. This is a welcome development for those responsible for their care and welfare and enables the use of the MCA to deprive a patient of their liberty so long as there is no deprivation of liberty contained within the conditional discharge.