Clinical Law Insight: May 201928/05/19
Discount rate latest
On 19 March, the government announced that it had commenced its review of the discount rate. This means that under the Civil Liability Act 2018 the new rate will be set by 5 August 2019.
Comment: Although the new rate may not be known until August, it will not be based on the current assumption that Claimants invest in only very low risk investments. The government has made it clear that the assumption will be based on a greater risk, but that this will be less than would ordinarily be accepted by a properly advised prudent individual and that it will ensure that the principle of 100% compensation remains intact. The new rate (anticipated to be in the region of 0 to 1%) will be welcome news to compensators.
Recovery of cost of commercial surrogacy abroad
XX had become infertile due to the Defendant’s admitted negligence. She claimed commercial surrogacy costs in the USA, but this part of her claim was deemed irrecoverable in the High Court as commercial surrogacy is illegal in the UK. In XX v Whittington Hospital NHS Trust (2018), her appeal was allowed. The Court of Appeal acknowledged that the business of commercial surrogacy is illegal in the UK, but determined that XX herself did not propose to do anything unlawful and she was able to recover the cost of a US commercial surrogacy arrangement.
Comment: The Court of Appeal declined to follow its decision in Briody (2001) as it considered that social attitudes towards surrogacy had changed and the law no longer required a bar on public policy grounds. The Defendant is appealing the decision to the Supreme Court. Read NHS Resolution’s case note.
Informed consent: causation and hindsight
Diamond v Royal Devon & Exeter NHS Foundation Trust (2019) involved a 2011 post spinal surgery mesh hernia repair. The surgeon (W) did not advise Ms Diamond about the option of suture repair which had a higher risk of failure, or ask her if she intended to become pregnant in future. In 2014 the Claimant consulted another surgeon when she had recently commenced a new relationship. He told her mesh repair carried a risk if she became pregnant. She brought a claim against the Trust alleging lack of informed consent and at trial W was found to be in breach of duty. On causation, the Claimant contended that had W warned her of the pregnancy risk she would have elected for suture repair. However she conceded that in 2011 she was single and not in a relationship and that pregnancy was not within her immediate contemplation. Judgment was given for the Defendant on the basis that the Claimant would have gone ahead with the mesh repair in any event as it would have been irrational for her to elect for suture repair in 2011. In dismissing her appeal, the Court of Appeal accepted that the judge had followed the Supreme Court decision in Montgomery. He had taken account of both a reasonable person in the Claimant’s position, but had also given weight to her own characteristics.
Comment: This is an interesting and important case as it deals with the effect of hindsight on causation in consent cases. The trial judge had found it ‘quite impossible’ for the Claimant to divorce from her thinking the fact that she was told in 2014 that it would be inadvisable to have another child. This outcome had coloured her view of what she would have done in 2011, had she had the appropriate warning.
Claimant given immediate custodial sentence for making false statements
In George Eliot Hospital NHS Trust v Elder (2019) the Claimant was found to have made deliberate and persistent false statements verified by statements of truth. In a quantum only matter she sought in excess of £2.3 million in damages claiming that as a result of negligent surgery she had unremitting pain and restricted movement to the extent that required walking aids and was reliant on others for help with everyday tasks. At trial she was found to be more mobile than she claimed, able to drive, carry her grandson and shop without assistance and participate fully in family events including flying abroad. She was awarded £120,000. Subsequently, she admitted dishonesty but then sought to resile from the admission. She was held to be in contempt of court and given an immediate custodial sentence for 5 months.
Comment: This is believed to be the longest prison sentence for contempt of court arising from dishonesty in a personal injury claim. It shows that the courts are prepared to come down hard on anyone who seeks to defraud the NHS. In this case the judge was particularly concerned that the Claimant’s lies permeated her own statements and evidence she had given to experts and to the court. The contempt was made more serious by the extent of the exaggeration, c. £2 million. Read NHS Resolution’s case note.
Prevention of Future Death reports: Westminster Bridge terror attack inquests.
Capsticks represented London Ambulance Service NHS Trust in the inquests concerning the terrorist attack on Westminster Bridge on 22 March 2017. The inquests were heard in September and October 2018 before the Chief Coroner, into the deaths of the 5 victims and the attacker (the latter heard with a jury). There were numerous ‘interested persons’ and the inquests were very high profile with sensitive issues and evidence. A number of paramedics who attended the scene were required to give evidence. Issues included the emergency services’ response, how to declare a major incident and the practice of covering the bodies of those who have died in a public place. The Coroner considered LAS policy on major incident declaration to be ‘prudent’ and while acknowledging the families’ distress, accepted that proper consideration had been given to the dignity of the deceased, preservation of the crime scene and prioritisation of paramedic assistance.
Comment: LAS was the only organisation involved in the inquest against whom a PFD report was not made. The importance of robust processes for Serious Incident Investigation which demonstrate that safety and learning issues have been addressed cannot be overstated. The evidence will go to the root of whether the Coroner considers that a PFD report is necessary.
Medical examiners latest
A non-statutory scheme was introduced on 1 April 2019 whereby MEs scrutinise and oversee deaths in hospital not subject to an inquest. It has a dual purpose: more transparency around death certification and safety and learning to prevent future harm. Due to delays on local implementation, it has been reported that the DHSC and NHSI intend to implement a ‘phased roll-out’. All Trusts will be expected to have MEs overseeing deaths in acute settings by 2020 and all deaths by 2021.
Comment: Trusts now have more time to set up and embed an ME service. As introduction of the scheme may lead to more inquests, the time also provides an opportunity for SII procedures be reviewed. The government intends putting the ME system on a statutory footing in due course.
No extension of legal aid for inquests
The government has issued a final report following its long-anticipated review of legal aid for inquests. Non means-tested legal aid will not be introduced. However the evidence submitted will be used to review the thresholds for legal aid entitlement. Furthermore, the government has signaled a number of intentions around support for bereaved families and the inquest process itself.
Comment: Healthcare organisations are likely to have seen an increase in the number of inquests where the bereaved are represented following the Lord Chancellor’s 2018 guidance changing the way legal aid for representation for families at Article 2 ECHR inquests (where deceased has been detained or is in custody) is decided. Ensuring staff are supported and preparing thoroughly for the inquest will continue to be vital. Read our in-depth Insight into the report.
Stillbirth: consultation on extension of Coroners’ powers
The MoJ has launched a consultation on coronial investigation of stillbirths. Although stillbirth rates have been declining since the 1980s, they are worse than in, for example, Poland and Croatia. It is proposed that Coroners are given the power to investigate full-term stillbirths occurring from 37 weeks. It is not the government’s intention that inquests replace current processes for investigating causes of stillbirths but that they supplement and support them to ensure coroners can contribute to the learning and play a role in reducing the rate. The consultation closes on 18 June 2019.
Comment: If the proposals are adopted, it will increase number of inquests (by up to 1,000 per year) but coronial investigations would not replace the investigatory obligations of local NHS services or the HSIB. We encourage Trusts to respond to the consultation by 18 June, in particular on the level of resource that would be required. As stillbirths are not within the new Medical Examiner system, the proposals close the gap for those stillborn from 37 week. Families ‘finding answers’ may avoid a claim but they could also be used to support the evidence base for a claim. Perhaps most significantly, the Prevention of Future Death report system means steps can be taken to prevent recurrence, leading to safer maternity care.
Mental Health Act after-care provision could not be used to fund family expenses related to escorted leave.
In R (on the application of CXF) v (1) Central Bedfordshire Council & (2) NHS North Norfolk CCG (2018) the Court of Appeal was asked to consider whether s.117 (1) Mental Health Act 1983 applied to a patient on escorted leave of absence from hospital. CXF’s mother had tried to use this provision to recover her travelling costs to hospital where she accompanied and assisted him on activities during the leave of absence. The court held that on the facts CXF had remained detained for treatment even while on leave of absence, and he could not be said to be in need of after-care services while still being treated.
Comment: The key finding in this case was that the patient remained detained. For the duty under s. 117 (1) to apply the patient needs to ‘cease to be detained’ and ‘leave hospital’. Furthermore the services were not after-care services, which would have had to be commission by a local authority or CCG. Capsticks acted for the NHS North Norfolk CCG.
Telling patients the truth when something goes wrong
The Professional Standards Authority has published a report evaluating the progress of professional regulators regarding the duty of candour. It considers progress to have been made, but felt it was difficult to establish the extent of the regulators’ success in encouraging candour given that it is both hard to measure and the range of factors which affect professionals’ candour to patients. The report concludes that cross-sector collaboration between organisations and individuals is needed to produce professionals who are candid and work in supportive environments.
Comment: Embedding the duty of candour in a healthcare organisation is essential not only to meet regulatory standards and professional duties but according to recent research by NHS Resolution are important, together with transparency and saying sorry, in determining whether an incident becomes a claim. NHS Resolution has published guidance on saying sorry and the duty of candour.