A note on the law and practice of quarantine – of individuals, of groups and of places, of the unwell and of the healthy.

  1. Kaci Hickox is a Johns Hopkins’ qualified nurse who worked as a team leader in an Ebola treatment unit in Sierra Leone in September 2014. When she arrived at Newark Liberty International Airport on 22 October 2014 she was taken into custody for 80 hours.  On the same day the governor of New Jersey had signed an executive order providing that travellers arriving at New Jersey who were asymptomatic but at high risk of exposure to Ebola could, if out of state residents, be transferred to a “temporary housing arrangement”.  In response to her detention Ms Hickox brought a claim against the state of New Jersey, including for violation of her right to be free from deprivation of liberty, denial of due process and false imprisonment.
  1. Time Magazine gave “Ebola fighters” their Person of the Year award in 2014, the article noting of Ms Hickox’s quarantine: “The problem with irrational responses is that they can cloud the need for rational ones”.
  1. In July 2017 Ms Hickox entered into a settlement agreement with the state of New Jersey. The parties agreed to a new Addendum to the “New Jersey Mandatory Quarantine and Screening Protocols” for Ebola Virus disease.  The state agreed only to use quarantine “insofar as a medically and epidemiologically necessary” and only after less restrictive measures had been “explicitly explored”.  An order providing for quarantine would have to give a start date and an end date and state the legal authority and medical basis on which it was issued.  It would need to explain why less restrictive options had been rejected and confirm the right of the person in quarantine to a lawyer and to challenge the order[1].

Judges in the Family Division and the Court of Protection are regularly asked to perform the unenviable task of balancing the pros and cons of continuing life-sustaining treatment. The Judge’s decision determines whether the person at the heart of those proceedings should live or die. As the Supreme Court confirmed in a number of appeals including those launched on behalf of both Charlie Gard and Alfie Evans, the Judge must apply the best interests tests in serious medical treatment cases. Thus, although the individual facts will frequently place a great burden on the Court, the legal test at least, is clear.  

In Manchester University NHSFT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) Lieven J was asked to consider a different, but equally momentous issue – whether the child was in fact already dead.

The Trust argued that the Court’s function was to assess whether the relevant testing had established “on the balance of probabilities” that the child was brain stem dead. In contrast, the family’s representatives argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating the body should be removed.

  1. On 2 December 2019 Martin Spencer J approved a settlement of £1.35m in this cerebral palsy case which was compromised without any concession of liability from the Defendant. I represented the Claimant[1]. A review of the facts highlights the continuing uncertainties about how far the decision in Montgomery really goes. At the same time this case should be seen as progress for claimants and no doubt others will follow.

Facts

  1. The claimant was born in 2006 and is now 13. He is profoundly disabled with cerebral palsy. This was the result of a venous sinus thrombosis in the first 24 hours of life.  It was agreed that the venous sinus thrombosis was a non-negligent complication of an instrumental vaginal delivery by forceps.  There was no dispute that had he been delivered by elective Caesarean section he would have avoided brain injury.
  1. This was his mother’s first pregnancy. Her evidence was that she had always wanted to have a Caesarean section but had never been offered one.  She was of short stature, at 4’ 11” and was referred for consultant care under the Trust’s policy. Liability centred on the appointment she had with the Consultant Obstetrician in February 2006 when she was about 20 weeks pregnant. She thought that there would be a discussion about whether she wanted a Caesarean section but she was told by the consultant that there was no reason not to be planning for a vaginal delivery. Perhaps understandably, she did not challenge him.  From this date on, whilst she continued to want a Caesarean section, she was never offered one and did not believe she was allowed to insist.

  1. On 4 November 2019 Master Cook struck out a nervous shock claim by the children of Mr Paul who collapsed and died from an untreated heart condition whilst out on a shopping trip with them in the centre of Wolverhampton. This is the latest skirmish in a long running battle between claimants and defendants over the ‘material gap’ cases where there is a gap in time between the breach of duty and subsequent injury.  

  2. Master Cook held that the case was bound to fail because: “I cannot sensibly distinguish the facts of the current case from those in Taylor v Somerset Health Authority. 

  3. There are two problems with the Master’s approach. First, he did not acknowledge in his judgment that ‘material gap’ cases such as this are novel or that there is an as yet undecided legal principle.  An application to strike out should not be granted unless the court is certain that the claim is bound to fail. See Hughes v Colin Richards & Co [2004] EWCA Civ 266. Peter Gibson LJ emphasised that this was particularly so in an area of law subject to some uncertainty and which was developing.  If the issue in Paul had been identified correctly i.e. ‘does a gap in time between the breach of duty and the consequent injury to the primary victim operate as a bar to a nervous shock claim?’, then there is a question as to how the claim was ‘bound to fail’ given the absence of authority on the point.

The recent case of Arksey v Cambridge University Hospitals 2019 EWHC 1276 QB is a useful reminder of the pitfalls of finalising expert reports for disclosure. The Judge criticised the Claimant’s expert neurosurgeon, in a number of respects, most of which stemmed from his disclosed report predating the pleadings and therefore not taking account of the pleaded Defence or the statements from the treating doctors.

Arksey is a useful case to read anyway (quite short and concerns the negligent discharge from the Emergency Department of a patient suffering a sentinel subarachnoid bleed who then suffers a major re-bleed at home – a well trodden path in clinical negligence) but in particular as a learning exercise on expert evidence for lawyers and experts alike.

It made me think of other potential pitfalls on expert reports which I have learnt over the years – here is my ten point checklist for getting it right when it comes to finalising expert reports for exchange.

CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB)

There is no general principle that the courts should prefer assertions contained in clinical records over factual accounts in witness evidence. That was the view of His Honour Judge Gore QC (sitting as a Deputy High Court Judge), rejecting the Defendant’s submission based on Gestamin SGPS SA v Credit Suisse (UK) Limited (‘Gestamin’ [2013] EWHC 3560).

The facts

The decision was the product of a liability-only trial in a birth injury case. The hearing centred on a single issue – whether the mother asked for delivery by elective caesarean section. The Defendant accepted that if she had, her choice would have been agreed. Had she had a caesarean section, she would have avoided the damaging event.