Are surrogacy costs a legitimate claim?

XX v Whittington Hospital NHS Trust 2017 EWHC 2318 (QB) (18 September 2017)  [HQ15C04535]

Podcast about this case now downloadable

Commercial surrogacy arrangements are considered to be against public policy in the UK and therefore illegal. Surrogacy in the UK is only legal where there is no intention to make a profit – though reasonable expenses are recoverable. Where legal surrogacy is
carried out the surrogate mother is the legal mother of the child. In this case the claimant had suffered injury due to the hospital’s failure to diagnose her cervical cancer in time. She had to undergo chemotherapy and radiation treatment which, amongst other things, damaged her uterus so she was unable to bear and carry a child. Before the treatment she had her eggs frozen.

The hospital admitted negligence. As part of her damages claim she sought the expenses she would incur for a commercial surrogacy arrangement in California. She wished to go to the US since the position of a woman seeking surrogacy in the UK is made more difficult by the fact that commercial arrangements are illegal. This means that in the UK the surrogate chooses the biological mother, rather than the other way around. The lack of certainty over parental status was also cited as a reason why an arrangement in the US would be preferable. Continue reading

PKU boy to be treated with Kuvan after High Court ruling

You may remember the podcast discussion between me, Rosalind English, and David Hart QC earlier in the summer about the NHS decision not to fund the drug Kuvan for the amelioration of symptoms of a boy suffering from  phenylketonuria (PKU) and severe autism. The podcast concerned a High Court ruling that the health service should review its decision not to fund the drug Kuvan.

As I mentioned in the original report, the judge did warn the boy’s family against being too optimistic, saying

however much one might hope that on the next occasion the panel will decide that the net additional expenditure of treating S with Kuvan would be justified … they could still lawfully decide to refuse funding.

However, the judge’s caution has not been borne out by events. On Friday 29th September it was reported that NHS England has agreed to provide the drug to treat his PKU, which if left unchecked can lead to complications including brain damage.

Listen to Episode 9 of Law Pod UK, available for download on iTunes

A weed is a plant in the wrong place

... and pests are misplaced animals. We are all too familiar with the stories of mayhem caused by urban foxes released into the countryside, and the collapse in property value where Japanese knotweed is found to have invaded. The perpetrators of such damage are rarely identified and brought to account. So it is with a level of glee that the prosecution of two “Buddhist activists” has been reported in the media after they released nearly a thousand alien crustaceans off the coast of Brighton.

“Banker” Ni Li and “estate agent” Zhixong Li bought the live American lobsters and Dungeness crabs from a London fish merchant, hired three boats from Brighton Marina and cast the animals adrift as part of a religious ceremony, fangsheng, which is understood to be the cause of many ecosystem disruptions in Asia.

This short story is so replete with topical issues it is hard to know where to begin.

Continue reading

Duty of care in genomic medicine: who is liable?

Clinical Genetics is a field of medicine concerned with the probability of an indvidual’s condition having an hereditary basis.  The journal Medical Law International has just published an article  about the scope of potential duties of care owed by  specialists in this field to people with heritable diseases.  The authors draw out the features of genomic medicine that open the door to new liabilities; a potential duty owed by clinicians to third party family members, and another legal relationship that may be drawn between researchers and patients.

Background

There is no legislation on the duties involved in genome sequencing in the United Kingdom, and, in the absence of this, any new legal duties on the part of professionals in clinical genomics need to be established within the common law of negligence. Civil lawyers are familiar with the standard framework for establishing whether a duty of care is owed, based on these three consecutive questions:

  1. Was the damage was reasonably foreseeable
  2. Was there was sufficient “proximity” between the claimant and the defendant and
  3. Would it be fair, just and reasonable to impose a duty: see Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618

These principles are neat enough as they are laid out but only take us as far as the facts of any particular case, particularly the Caparo test outlined in para (3).

This relatively new field of medical endeavour is unusual in that it is concerned with the management of a family rather than one individual. More generally, in the field of genomic medicine, there is a “close interaction between care and research”, resulting in “the real possibility” that genomics researchers will be found to owe a legal duty to disclose findings to participants.

So we have two new possible avenues of liability here; that of clinicians to third parties, and that of researchers to patients. Continue reading

New podcast: they’ve come for our cars, when will they go for your brief?

We have just posted a discussion here between 1 Crown Office Row recruit Thomas Beamont and Rosalind English on the reach of Artificial Intelligence into the legal world: click on Episode 10 of our podcast series.

Law Pod UK is freely available for download on iTunes

Related material:

The robots are taking over, and the legal profession is not immune

Richard Susskind, IT adviser to the Lord Chief Justice, has spent many years looking into the future of the law. In a fascinating podcast paving the way for his new book The Future of the Professions and the updated Tomorrow’s Lawyers, he discusses with OUP’s George Miller the new world of technological advancements in the day to day management of dispute resolution. We have taken the liberty of summarising the podcast here and posting a link to the interview at the end of this post. 

Susskind finds, in comparison with the rest of the English speaking world, that the legal institutions of the UK are in some sort of denial about the march of AI. He maintains that the legal world will change more in twenty years than it has in the past two centuries. If we want to improve access to justice in our society, the answer is in technology. But the law schools have not caught up with this idea.

How do we work out what to do in the face of irreversible and inevitable change in the law? Susskind acknowledges that most people want to pay less for legal services, for something that is less complicated, less combative. It’s not that there’s less legal work to do, there’s more legal work to do, but it’s under cost pressure.

The twenties will be the big decade of change. The age of denial ended in 2016; leaders in law are no longer saying the legal world is going to go back to what it was in 2004-6. But the period from 2016 – 2020 is the area of resourcing, put bluntly, finding cheaper people to do the work by outsourcing, as manufacturing did years ago. Once we’re into the twenties, we’ve arrived in an area Susskind calls the decade of disruption. The challenge to lawyers will be to provide not only one to one services in the traditional way, but to work on systems that one day will replace us. The trusted advisor concept is not fundamental to the legal service. That was limited to the print world. The future of the professions is to imagine other ways in which these problems must be sorted out. When a client has a problem, and they say they want a trusted advisor, what they really want  is access to reliable expertise, and this is being worked on in the field of AI. Our technology is becoming more and more capable. Future clients will happily go for that even if they lose the surrounding aura or trappings of a traditional legal advisor. Continue reading

NHS should consider protein-control treatment for PKU child

SB, R (on the application of NHS England) [2017] EWHC 2000 – read judgment

The High Court has quashed a decision by NHS England refusing to fund the drug Kuvan for a young boy who has a condition inhibiting his ability to digest protein.

This case involves a number of important issues, such as the allocation of resources under the NHS, the extent to which courts may interfere with healthcare choices, and the role of “rights” in these decisions, including the welfare of the child. David Hart QC discusses these issues in detail with Rosalind English in the latest podcast in our Law Pod UK series; here is a brief summary.

The seven-year-old child has severe autism and phenylketonuria (PKU), an inherited metabolic disorder. The mainstay of PKU treatment is  a strict dietary regime which restricts the intake of high protein foods.  But because of his autism, SB is unable to understand and therefore abide by these food restrictions. Consequently his doctors sought funding for the drug Kuvan (sapropterin dihydrochloride), which would allow him to get a proportion of vitamins and minerals from ordinary food. If he were to respond to the drug, the levels of protein in his blood would fall below the level at which he risked irreversible brain damage. However, his consultant acknowledged that his overall development outcome would mostly be affected by the severity of his autism rather than his PKU and that Kuvan would not be expected to significantly alter or improve his behaviour.​

The funding panel accepted that SB fulfilled the conditions for exceptional need but the lack of long-term prospects for improvement meant that his application did not pass the “clinical effectiveness” test.

Andrews J found that this decision was flawed and remitted it for reconsideration, with the caveat that the funding panel may be entitled to continue to decline treatment on different grounds.

Listen to Episode 9 of Law Pod UK, available for download on iTunes