Bone marrow disorder appeal fails

1 April 2014 by

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 – read judgment

Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.

This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”).

In this appeal Mr Meiklejohn contended that had he been required to give written rather than verbal consent to the treatment with anti-lymphocyte globulin (ALG), he would have been better informed and would have rejected the drug and therefore avoided the side effects of avascular necrosis, which led to him having bilateral hip replacements. He also maintained that the specialist had breached her duty by failing to advise him of other possible diagnoses and treatments, and that the judge below had erred in finding no breach of duty by Prof Marsh in recommending ALG.  The judge had also erred in concluding that the blood test was for research without clinical utility and carried no expectation of a result before treatment. Prof Marsh, said the appellant, had failed to analyse the medical literature available in 2003. Moreover, he contended that she should have been judged against a higher professional standard because of her international renown.

The Court of Appeal dismissed the appeal. Rafferty LJ gave judgment for the Court.

Reasoning behind the Court’s decision

The informed consent issue

The judge below was criticised in finding that verbal consent was given and was sufficient consent for sending a sample off for research purposes. It was said that he failed to consider that informed consent for the specific genetic research project was necessary and that insufficient information had been provided to enable it: Sidaway v Bethlem Royal Hospital [1985] AC 871. The developed complaint was that in accordance with Chester v Afshar [2005] 1 AC 134, causation should follow to give purpose to the breach.

But the hurdle the appellant could not clear was his attitude to Prof Marsh. He told the Judge in terms that he trusted her and would have done what she advised. Therefore, even if alternative treatment had been discussed, Prof Marsh would have recommended ALG with Prednisolone and the appellant would have accepted that advice. He had not made out his case on causation here.

The duty to advise and warn about side effects

Although advanced as an error of law, this was a thinly disguised appeal on the facts. The duty to advise and warn about diagnosis, treatment and possible side-effects was to be assessed in accordance with the practice of a responsible body of such doctors: Bolam, and the majority in Sidaway v Royal Bethlem Royal Hospital [1985] AC 871. The duty to warn of possible alternative diagnoses reasonably not suspected was not a proposition for which either is authority. Sidaway and Chester alleged failure to warn of the specific percentage risks of serious identifiable side-effects of surgery. The judge had correctly decided that there had been insufficient evidence in the appellant’s physical presentation or medical history to have alerted even a clinician of his specialist’s standing to the possibility of DC (para.93).

Erring on the facts in relation to the medical evidence and literature

This case concerned a diagnosis reached in March 2003. The governing standards were those applicable to clinicians who, assuming competence, should have been familiar with the then state of medical knowledge and medical science about AA and DC. In 2003 the appellant had prematurely grey hair perhaps with some thinning but not one of the 17 somatic abnormalities also seen in DC set out by the experts in the field. No author suggested that a patient should be diagnosed with, or even suspected of having, DC with none of the triad of known somatic symptoms. No publication suggested that applied to the appellant it showed he had qualifying criteria for suspicion, let alone diagnosis, of DC.

The Judge failed to apply the correct standard of care 

The appellant argued that  the standard of care set out in Bolam required Prof Marsh to be judged against a responsible body of medical practitioners skilled in her particular art, namely an AA specialist working out of a specialist AA tertiary referral centre in 2003, a leader in the field of AA in the UK and enjoying international renown.  The Court did not accept this submission at all. The correct comparator had been properly advanced before the Judge, a tertiary specialist in AA.

The appellant died shortly after the hearing of this appeal.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: