Category: Medical


How private are patients’ dental records?

21 November 2011 by

This is a case in which Philip Havers QC of 1 Crown Office Row appeared for the General Dental Council; he is not the author of this post.

The General Dental Council v Savery and others [2011] EWHC 3011 (Admin) – Read judgment

Mr Justice Sales in the High Court has ruled that the General Dental Council’s (GDC) use and disclosure of the dental records of fourteen patients of a registered dentist who was the subject of investigation was lawful.

The court also offered general guidance about how the GDC may proceed (particularly by reference to Article 8 of the European Convention on Human Rights, the right to privacy and family life) when it wishes to investigate allegations against a dentist of impairment of fitness to practise by reference to confidential patient records in the absence of consent from the patients in question.

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Insurers’ human right not to pay for putting asbestos in employees’ lungs?

13 October 2011 by

AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 (12 October 2011

When you breathed in asbestos fibres from your dusty shipbuilding job on the River Clyde in the 1950s and 1960s, some of those fibres stuck around in the lungs. Some may cause the pleural plaques seen on my image, some may cause asbestosis, and some may lead to the highly malignant mesothelioma.

So your doctor (20+ years later when these diseases manifest themselves) would X-ray you and tell you what form of the disease you had. If he told you you had pleural plaques, you would, at first, breathe a huge sigh of relief that it was not mesothelioma. Because pleural plaques are almost invariably asymptomatic and harmless.

But on second thoughts, now you know you have indeed been exposed to asbestos such that you might develop mesothelioma – and you have seen colleagues die a miserable death from that disease. So, when you leave your chest physician’s room, you are worried, not about what you have, but about what you might get. Do you get damages for this? And anyway, where do the human rights in my title – those under Article 1 of Protocol 1 to ECHR, or the right to peaceful enjoyment of possessions – come into this story?
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Lord Justice Jackson: legal aid should remain for clinical negligence

13 September 2011 by

Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.

The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:

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Dismissal of hospital consultant did not breach fair trial rights

3 August 2011 by

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB)- Read judgment

The High Court has dismissed Dr Raj Mattu’s claim that his dismissal by an NHS Trust was in breach of contract and in breach of his Article 6 right to a hearing before an independent and impartial tribunal. This is one of the first judgments on the applicability of Article 6 to disciplinary and dismissal proceedings since the decision of the Supreme Court in R (G) v X School Governors [2011] UKSC 30 (read our post).

Dr Mattu was employed by the Trust as a consultant in non-invasive cardiology and general medicine in 1998. In 2002 he was suspended on disciplinary grounds; however, the relevant disciplinary hearing did not occur until 2007 and the suspension was in place until July 2007. Further, Dr Mattu was on sick leave for at least a year from September 2006.

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Nuclear test veterans appeal to be heard by Supreme Court

29 July 2011 by

On Thursday 28th July, the Supreme Court heard a “permission to appeal” argument in the British nuclear testing case.  The judgment to be appealed is that of the Court of Appeal Civil Division in Ministry of Defence v AB and others[2010] EWCA Civ 1317 – (Smith and Leveson LJJ and Sir Mark Waller).  

In terse legalese, the issue to be appealed is whether the Court of Appeal – (1) applied the wrong legal test for knowledge in section 14 of the Limitation Act 1980, and (2) adopted the wrong legal approach to the exercise of discretion under section 33 of the Act.  The Supreme Court granted permission for the appeal – see BBC 28th July and The Independent 28th July.

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Public purse stays closed for morbidly obese man

28 July 2011 by

Condliff, R (on the application of) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 – Read judgment

A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.

In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.

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Admissibility of hearsay evidence at General Medical Council hearing breached right to fair trial

22 June 2011 by

R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) – read judgment

This post was coauthored by Richard Mumford and Joanna Glynn QC. Kieran Coonan QC and Neil Sheldon of 1 Crown Office Row appeared for the claimant in this case.

On 21 June 2011 the Divisional Court held to be “irrational and … a breach of the Claimant’s Article 6(1) right to a fair hearing” a decision by the Fitness to Practise Panel of the General Medical Council to admit hearsay evidence under its own rules, having determined that such evidence would not be admissible under the criminal rules of evidence .

Professor Bonhoeffer, described in the judgment as “an eminent consultant paediatric cardiologist of international repute”, was charged by the GMC with impairment of his fitness to practise arising from alleged serious sexual misconduct towards boys and young men in Kenya. It was alleged that over a number of years the Claimant travelled to Kenya to undertake charitable medical work and that the victims were children and young men to whom he had provided sponsorship by paying for their education and accommodation.

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Should male circumcision be banned?

15 June 2011 by

Yesterday Neil Howard and Rebecca Steinfeld asked via guardian.co.uk whether it is Time to ban male circumcision? The article was prompted by attempts to ban the practice in San Francisco.

Male circumcision is common amongst Muslims and Jews, but judging from the 286 comments (so far!) to the article, there are a lot of people who feel that the practice is outdated and should be banned. I have responded with my own article, arguing that whilst the debate is by no means settled, a ban at present would amount to a disproportionate interference with freedom of religion rights.

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Panorama at Winterbourne View: the human rights angle – Lucy Series

3 June 2011 by

I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror.    What legal mechanisms were available to prevent abuses like this, or bring  justice to victims?

There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights.  It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.

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Life or death injunctions not so super (or controversial)

19 May 2011 by

W v. M, S, an NHS PCT and Times Newspapers Ltd. [2011] EQHC 1197 (COP) – read judgment. In the midst of all the fuss over the last two weeks about ‘superinjunctions’ and the law on privacy (see our coverage here, herehere and here) the Court of Protection (“CoP”) has just granted an injunction imposing extensive reporting restrictions on the media in a case involving potentially controversial end-of-life issues.

The press has picked up on the decision mainly because the injunction is the first in the UK courts (and perhaps anywhere in the world) to specifically prohibit publishing restricted information on any “social network or media including Twitter or Facebook“. This is noteworthy given the recent furore about an anonymous Twitter user ‘outing’ a number of UK celebrities who had obtained injunctions (although given that Twitter is a US-based website, it is difficult to see how the order will be enforced). But the decision by Baker J is far more interesting for the way he described how the media’s free speech rights should be balanced against the parties’ privacy rights in the kind of sensitive cases dealt with by the CoP, and how he expressly distinguished it from the approach taken in celebrity cases.

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Doctors not entitled to be judged by independent panel

26 April 2011 by

R (on the application of Rajiv Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin) Judgment of Mr Justice Blair given on 15 April 2011 – Read judgment

This claim for judicial review is the latest skirmish in The Wars of the HC [90] 9 Succession between doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of Maintaining High Professional Standards in the Modern NHS (MPHS) in 2005.

It is also a blow for those who believe that professionals facing serious allegations that may have adverse consequences for their ability to practise in their chosen field should be entitled to be judged by a panel independent of their employer.

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Human rights, anti-obesity surgery and the NHS purse

13 April 2011 by

Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment

What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public.  Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.

Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.

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Child’s identity to remain a secret

24 March 2011 by

A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment

A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.

The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules.  The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified.  Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.

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Transsexual denied NHS breast surgery loses appeal

17 March 2011 by

R (on the Application of AC) v Bershire West Primary Care Trust [2011] EWCA Civ 247 – Read judgment.

The Court of Appeal has dismissed the appeal of a male-to-female transsexual who was refused NHS funding for breast augmentation surgery.

The appellant, known as AC, had been diagnosed with gender identity disorder (GID) in 1996. As part of its GID treatment program the PCT had been prepared to provide genital reassignment surgery, which AC had not availed herself of.

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Balancing transparency with ‘secrecy’ in the Court of Protection – Lucy Series

7 March 2011 by

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom. An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.

The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.


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