On 25th January 2016 the Privy Council upheld the decision of the Appeal Court of Bermuda to award significant damages to a claimant on the basis that a short delay in operating on his appendix had materially contributed to his injury. The headline is that the doctrine of material contribution survives and that the Privy Council did not accept an argument that the decision in Bailey v. MoD was wrong.

Angus Moon QC and Caroline Hallissey were instructed in the Court of Appeal on behalf of the Claimant in the important decision in Reaney –v- University Hospital of North Staffordshire NHS Trust & or. Judgment was given on 2nd November 2015.

The Claimant suffers from very serious disabilities as a result of negligently caused pressure sores. The case deals with the circumstances in which a Claimant may recover for the costs of care when there was a need for care prior to the Defendants’ clinical negligence. Although the Defendants’ appeal from Mr Justice Foskett was successful, the Claimant now has the opportunity to seek to argue before Mr Justice Foskett that as her care needs following the Defendants’ negligence are qualitatively different from those which pre-existed the negligence, the Claimant is entitled to recover her care costs.

The patient in this Court of Protection case, a 50 year old mother of three, had unsuccessfully attempted suicide by taking a paracetamol overdose; she suffered severe kidney failure and relied on dialysis to stay alive. After 8 weeks’ she refused further treatment. On the Trust’s application for a declaration that she should have dialysis forcibly, if necessary, the Court had to determine whether she had capacity to refuse. Finding that she did, the Court reaffirmed her Article 8 right to self-determination.

Mr Justice MacDonald said:

"That she considers... the fear that she has lost, and will not regain, 'her sparkle' outweighs a prognosis that signals continued life will alarm and possibly horrify many.

"Her decision is certainly one that does not accord with the expectations of many in society.

"Indeed, others in society may consider her decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general.

“None of this, however, is evidence of a lack of capacity."

Mike Horne acted for the Trust and Katie Gollop was instructed by the Official Solicitor on behalf of the patient.

Click here to read the full judgment.

The case has been widely reported in the media. Please click the following links to read coverage on The Sunday Times, Guardian and ITV websites.

This paper supplements the debate that took place between Angus Moon QC and Rad Kohanzad at the Duty of Candour seminar on 24th September 2015 entitled “Duty of Candour (“DOC”) and whistleblowing”. 

Whilst the talk assumed little knowledge of whistleblowing, this paper provides the background to the subject matter of discussion and explores the interrelationship between the duty of candour and whistleblowing.

The phrases “whistleblowing” and “duty of candour” are now often used in conjunction with each other but even to seasoned lawyers, the precise relationship between the two is not entirely clear.

At its simplest, as Sir Robert Francis QC observed in Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS, they are part of a range of measures which help enable or ensure staff speak up. Before exploring the relationship between the DOC and whistleblowing, it may be worth providing a brief summary of the evolution of whistleblowing legislation.

Anthony Haycroft successfully represented a Scottish orthopaedic surgeon in a 9-day Fitness to Practise hearing in Manchester, in respect of an allegation of rape of a medical student at a private party. The doctor was not prosecuted by the Scottish authorities where the criminal rules of evidence are different from those in England. The GMC decided to bring FTP proceedings.

The case was legally complex: there were issues as to whether to bring judicial review proceedings in Scotland and also concerning previous allegations of rape made by the complainant in Scotland. The defence successfully applied for relevant disclosure and then permission to question her about the previous incidents.

The Panel acceded to Mr Haycroft’s submission that a “heightened examination of the facts” was called for and that upon such exercise “cogent evidence” of proof was lacking. None of the charges were found proved.

Anthony Haycroft was instructed by Douglas Jessiman and Ms Lindsay MacNeill of BTO solicitors, Glasgow  supported by the Medical Defence Union.

This ground breaking case is the first in which the Court has authorised the withdrawal of  artificial nutrition and hydration (ANH) from an incapable patient who, although in a state of very reduced consciousness, is clinically stable and still exhibiting some awareness. The decision puts the autonomy of the patient firmly at the heart of judicial decision making: as the judge remarks this is not a case about the right to die but concerns the right of this unfortunate woman to live her life at the end of her days in a way that she would have wished.

Respect for her human dignity and her freedom overwhelms the presumption that there should be any further prolongation of her life.

Serjeants' Inn Chambers represented the Clinical Commissioning Group.