A short examination of whether the policy endorsed by the Labour Party as part of its pledge to support social justice can be justified in law or is a flagrant contravention of human rights. This article was first published in Counsel magazine.
It didn’t take long for some rather well-known lawyers to point out there may be a flaw in this plan. Lord Lester QC of Herne Hill in a letter to the Times that weekend pithily explained that as long ago as 1982, he and David Pannick had advised the school governing bodies that ‘Labour’s plan would violate the European Convention on Human Rights and its first protocol. Our opinion was published. No one disputed our advice and the policy was dropped.’ He expressed surprise about the plan being reignited and continued to be of the view that the plan would violate the European Convention on Human Rights (‘the Convention’).
In these conjoined appeals the Court of Appeal (Sir Terence Etherton MR, Irwin and Coulson LJJ.) have taken the opportunity to deal with a number of issues relating to the reasonableness and proportionality of costs in PI and Clinical negligence cases and the proper approach to the assessment of those costs.
The case is important because it considers and explains the unique position of ATE insurance premiums in clinical negligence cases. In clinical negligence it is almost always necessary for an ATE insurance policy to be obtained by a Claimant to insure against the risk of incurring a liability to pay for an expert report or reports relating to liability or causation. Specifically, the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (no.2) Regulations SI 2013/739, provide (by way of exception to the general rule in s.46 LASPO 2012) that such premium (insofar as it relates to the risk of incurring liability to pay of expert reports relating to liability or causation in respect of clinical negligence in connection with the proceedings) may be recovered. Brooke LJ had stressed in Rogers v. Merthyr Tydfil County Borough Council  EWCA Civ 1134 the availability of such ATE insurance and the recoverability of the relevant premium, is an important means by which access to justice continues to be provided in clinical negligence cases. It was perhaps therefore unsurprising that the present Court of Appeal began their analysis of the issues in the instant case by saying:
Access to Justice must therefore be the starting point for any debate about the recoverability of ATE insurance premiums in any dispute about costs.
Pomphrey v Secretary of State for Health and Anor  4 WLUK 483 –— decision not yet on Bailii but available on Lawtel.
This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and the applicability of the famous decision of Chester v Afshar  UKHL 41.
The Claimant advanced a range of arguments on breach of duty
against a number of individuals in respect of a failure to refer for earlier
surgery for symptoms of early onset cauda equina, all of which failed having
regard to a careful analysis of the factual and expert evidence.
The judge did, however, find that there was a breach of duty
in respect of the delay between seeing the consultant neurosurgeon on 14
December 2011 and the actual operation which took place on 24 January 2012. The
negligent period of delay was found to be 10 days.
That breach of duty opened the door to the Claimant running an argument based on Chester v Afshar and Crossman v. St George’s NHS Trust EWHC 2878 that the same dice rolled on another day would not have resulted in ‘snake eyes’; viz. an injury which was an accepted complication of the operation, estimated at around 5%. This being a case where the consultant in question accepted that the injury had been “inadvertent” and therefore not one that necessarily would have occurred.
It was fitting but tinged with irony, that the GMC itself, in its submissions to recent the MPTS review of Dr Bawa-Garba’s suspension maintained that the ‘appropriate and proportionate sanction’ to reflect her continuing ‘impairment’ of fitness to practice was now a period of conditional registration having regard to Dr Bawa-Garba’s ‘absence from active clinical practice’, and also taking into account the evidence of ‘Dr Bawa-Garba’s positive and continuing remediation to date’.
This after all is the ST6 (a specialist registrar in her 6th
year of post-graduate training) paediatrician who was convicted by a jury on 4
November 2015 of gross negligence manslaughter, and given a suspended sentence
of imprisonment by the Judge trying her case. The doctor who – given her
suspended sentence, her undisputed insight and reflective learning from past
events, and the support of her employing Trust was initially suspended rather
than erased by the MPTS in November 2017 for the maximum 12 month period but
with a review at the end of her suspension.
It is most likely that, had that decision been left undisputed by the GMC, then Dr Bawa Garba who continued then, as now, to have the fulsome support of her employer and colleagues, would have returned to work under supervision at the end of her suspended sentence. That would have been in or about November 2017. But that was not what happened.
Esegbona v Kings College Hospital  EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
Michalak v The General Medical Council & Ors  EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.
Dr Eva Michalak’s name may sound familiar. She formerly worked as a consultant physician with an interest in kidney diseases at Pontefract General Infirmary. In 2011, in a widely publicised judgment she recovered record damages in respect of claims for sex and race discrimination and unfair dismissal against the Mid Yorkshire Hospitals NHS trust and three senior staff members. The tribunal panel said that they were “positively outraged at the way this employer has behaved” and concluded the Polish-born doctor would never be able to carry out her work again. Continue reading →
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