1. Today, 13 January 2022, the Court of Appeal handed down judgment in the long awaited nervous shock appeals in Paul v Wolverhampton, Polmear v. Royal Cornwall and Purchase v. Ahmed. The issue was whether a gap in time between the breach of duty and a subsequent shocking event prevents a nervous shock claim.   As the Court of Appeal recognised this is a particular problem in many clinical negligence claims.  In Paul the breach of duty was 14 months prior to Mr Paul’s sudden death whilst out shopping with his daughters on the streets of Wolverhampton.
  2. The Court of Appeal clearly wanted to find for the claimants on all the appeals and said so in terms. They found instead for the Defendants on the basis that they were bound to do so by the judgment of Dyson MR in Taylor v Novo. Clearly troubled by that decision they have expressed a strong preliminary view that this case should now go to the Supreme Court for a complete review of the authorities.

The determination of life expectation in cerebral palsy litigation must always be driven by the expert evidence in the particular case. 

What is set out below is an approach driven by the evidence received from experts in reported decisions, but – be warned – great care must always be taken to ensure that in each case the court has available to it up to date (i) literature and (ii) experienced clinical expert views specific to the particular claimant.

The key High Court cases which have considered life expectancy in cerebral palsy cases are Whiten v  St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) and Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB).  At the invitation of both sides’ experts in those cases the courts relied on Strauss data.  (The latest version of this data – and its  analysis – can be found in Brooks JC, Strauss DJ, Shavelle RM, Tran LM, Rosenbloom L, Wu YW “Recent trends in cerebral palsy survival. Part II: Individual survival prognosis.” Developmental Medicine & Child Neurology, (2014) 56:1065-1071[“Brooks (2014)”] which can be found along with a plethora of useful articles and commentary on the excellent Life Expectancy Project website: www.lifeexpectancy.org).

Having assessed the expert evidence, the first instance judges in both Whiten and Robshaw adopted the following three stage approach (please note - a worked example is included at the end of this article).  I should stress that not all experts will agree with this three stage approach or methodology.

“Indivisible Injury” has more than one meaning so make sure you’re not at cross purposes with the judge

  1. The essential facts are that the Claimant had chest pain and needed angiography (an investigation of the blood vessels to the heart). He stopped warfarin (a long term anticoagulant) on 23 April, had the angiogram on 27 April and restarted warfarin on 29 April.  The next day he suffered an ischaemic stroke which has resulted in permanent and severe physical and cognitive disability.

  2. There was a dispute on breach of duty as to whether the total period for which warfarin was stopped should have been 3 days rather than 6 and whether it should have been restarted earlier and at a higher dose.
  1. The judge preferred the Defendant’s expert evidence on breach of duty and was entitled to. That’s not the problem.

  2. On causation the Claimant’s case was that if the warfarin had been properly managed he either would not have had the stroke or alternatively, the reduced dose materially contributed to the stroke. 

Am I the only one who thinks that the legal tests in clinical negligence are sometimes harder to understand than they should be ?

The case law on my favourite topic – Bolam and other tests for breach of duty – is littered with confusion. And it strikes me that Material Contribution is too.

The But For test is, thankfully, beautifully simple and easy to understand. But what if your experts can’t tell whether the outcome would probably have been avoided or the same and you have to use the causation test of Material Contribution ?

The case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB earlier this year is a recent example of the Court addressing both tests on causation in clinical negligence.

This is a strange read.

The issue on appeal to the Supreme Court was:

If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?”

The High Court’s answer was that a claim lies for all of the costs. That was reversed on appeal. The Supreme Court upheld the Court of Appeal. For the underlying facts, see the brief account at the end of this blog.

A very common scenario in clinical negligence and personal injury claims is that the claimant’s negligent injury occurs on a background of pre-existing disability  – how does the court assess the damages for care in the claim?

Examples of pre-existing disability in my own cases have included-

  • Hydrocephalus;
  • Spina bifida;
  • Significant learning disability;
  • Partial spinal cord injury at C5 resulting in tetraparesis.

The cases of Sklair and Reaney give some guidance as to the correct approach.

There has been a revolution in genetic testing over the past decade. Technological advances have greatly increased the scope and use of testing. Testing is now faster and cheaper.

This has meant that it has become easier to analyse a whole, or large sections of a genome in detail.[1] This innovation brings with it ethical challenges, most notably in terms of consent and disclosure to other family members who may be affected by information identified.[2]

 These developments are beginning to ripple out to clinical negligence litigation. As they do, the courts will be asked to conduct a sensitive balancing exercise between the Claimant’s Article 8 rights and the Article 6 rights of the Defendant to defend himself.

The much-anticipated judgment in Swift v Carpenter [2020] EWCA Civ 1295 provided a neat and just approach to the valuation of capital costs in accommodation damages claims. Helpfully the Court of Appeal provided an easy to apply formula for accommodation claims where claimants have longer life expectancies thereby providing much needed litigation certainty – and also substantially reducing potential expert costs in future cases. Whilst the most usual type of claims were addressed, the Court could not provide answers to all of the more complex capital accommodation claims which may come before trial judges in the years ahead.

Irwin LJ noted that the Court of Appeal’s guidance should not be regarded as a “straitjacket to be applied universally and rigidly”. One area in which the jacket may not fit is short life expectancy cases. The simple application of the Court’s reversionary interest formula to such claimants appears to be one area where the direct application of the guidance may be inappropriate. As stated by Irwin LJ:

“There may be cases where this guidance is inappropriate. However, for longer lives, during conditions of negative or low positive discount rates, and subject to particular circumstances, this guidance should be regarded as enduring.” [§210]

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. I wrote a blog piece commenting upon that decision.

Today Chamberlain J. has allowed the Claimant’s appeal and reinstated the claim. It is not known whether the Defendant will stick or twist with an appeal to the Court of Appeal on what the judge described as a difficult point of law.

The judgment provides an impressive and comprehensive review of the authorities. Chamberlain J. decries judicial squeamishness and says that at a micro level:

“..there is no constitutional reason why the courts should not apply their usual analogical tools. More specifically, there is no reason to favour a  conservative posture in which liability is accepted only where it has already been found to exist on indistinguishable facts. There is nothing to inhibit the courts from aiming for maximal coherence in the principles which govern the circumstances in which the existing control mechanisms will be satisfied. In doing so, they are bound by the rules of precedent, but are otherwise unconstrained.”

Summary: Empirical data suggest that people from Black, Asian and Minority Ethnic (“BAME”) backgrounds are being disproportionately affected by Covid-19 and, on Wednesday 29th April 2020, NHS England gave sensible and important interim guidance to Hospital Trusts, pending an investigation by Public Health England.

Some Trusts are seeking to protect BAME staff with measures including removal from the front line. This blog examines whether these well-intentioned measures are lawful.

Background: While about 14% of the UK population in the 2011 Census were from a BAME background, they make up about 34% of critically ill Coronavirus patients, according to an April 2020 NHS Confederation briefing Between 2017 and 2019, only 11.6% of critically ill viral pneumonia patients were from a BAME background. The same pattern is seen in the US. There is something about Covid-19 that disproportionately affects BAME people.

We are all under attack – but this time, our foe is not a country, a terrorist group or a person. Nor is it a predator. Chillingly, it is not even alive. It is a brand new tiny packet of genetic material which has only a transient existence and cannot reproduce itself – fooling human cells into making copies of it. The soldiers in this war are disproportionately made up of the very people who appear ethnically most vulnerable to it: 44% of UK doctors, and almost 22% of all NHS staff, are from BAME backgrounds. In London, BAME staff make up almost 45% of all NHS Trusts’ staff.

Summary: The Supreme Court in Whittington Hospital NHS Trust v XX [2020] UKSC 14 has upheld the Court of Appeal’s decision to award damages for Californian commercial surrogacy to an infertile British claimant. Such an award of damages is the first of its kind in the fields of personal injury and clinical negligence.

Christopher Johnston QC and Claire Watson successfully acted for Ms X, the claimant/respondent, and were instructed by Alison Eddy and Anne Kavanagh of Irwin Mitchell.

Lessons from the recent cases of:

  • Saunders v Central Manchester NHS Trust 2018 EWHC 343 QB
  • Collyer v Mid Essex NHS Trust 2019 EWHC 3577 QB
  • Schembri v Marshall 2020 EWCA Civ 358.

Surgical cases often provide difficulties for Claimants because it is not always clear how the alleged negligent injury occurred – nothing being noted at the time and the injury only becoming apparent post operatively. In the first two of these recent cases Claimants failed on breach because they could not prove the probable mechanism of injury, let alone that it was negligent. This is quite common in surgical cases because of the limited evidence as to the surgery itself - usually just a short operation note.

Claimants also often have difficulty in proving whether and how a breach has been causative of an injury. In Schembri v Marshall the Court of Appeal gives us a useful reminder of some important principles.

I set out in this article a summary of these cases, the principles they illustrate and some practical lessons to be learnt from them and my own experience in such cases over the last 25 years.

Hard-pressed clinicians may well be wondering: what standard of care can be expected of them during a pandemic?  

The modern law of clinical negligence has never been tested at a time of national crisis. Bolam v Friern Hospital Management Committee[1], which is generally regarded as the origin of the key legal principles in this area, was reported in 1957. Although this seems historic to a modern practitioner, it is a post-war judgment. 

The General Medical Council’s recent guidance on coronavirus includes the following statement of principle:  “Doctors should continue to follow our guidance as far as is practical in the circumstances.  It is likely that as the situation develops, some doctors will need to depart from established procedures to care for patients.  We expect doctors will behave responsibly, reasonably and will be able to explain their decisions and actions if they’re called on to do so. But we understand that this is a challenging time.”

Alternative Dispute Resolution has been around for many years. It is enshrined in the Civil Procedure Rules - CPR 1.4(2)(e) requires the Court to actively manage cases by “encouraging the parties to use alternative dispute resolution procedure if the Court considers it appropriate and facilitating the use of such procedure”. The standard directions in clinical negligence claims means that it is routine for the Courts to order the parties to consider ADR as part of the directions given at the start of each case. It is also now well established that parties can face cost penalties for failing to engage in ADR – Halsey v Milton Keynes General NHS Trust 2004 EWCA Civ 576.

However, mediation – a specific form of ADR – is on the increase in clinical negligence claims. NHS Resolution has publicly stated its position that “Mediation and alternative dispute resolution (ADR) are fundamentally aligned with NHS Resolution’s strategy to deliver fair and cost effective resolution, by getting to the right answer quickly, safely, and reducing the number of claims going into formal litigation by keeping patients and healthcare professionals out of court” (Julienne Vernon, Head of Dispute Resolution and Quality, NHSR – February 2020).

The stage at which cases are mediated is changing too. NHS Resolution is not only enthusiastic about mediation but also to engage in mediation early – “Mediation as an intervention can be more effective if carried out at an earlier stage in the lifecycle of the claim” (Mediation in healthcare claims – an evaluation – NHSR February 2020).

At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave. I suggested when I last wrote about quarantine that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.

The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations.  This note summarises those powers.

The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette.  At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.

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.


  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.

In this article Simon Fox QC reviews the Bolam test for breach of duty in clinical negligence in the light of recent case law and asks – is it still the test for breach?

Since I transferred from medicine to law 25 years ago, I have always thought that the Bolam test cannot logically apply to many scenarios of alleged clinical negligence. The scenario which has always struck me is the iatrogenic surgical bowel injury; a surgeon inadvertently and unknowingly perforates the bowel with a surgical instrument during a routine and otherwise uncomplicated laparoscopy. Can we logically apply Bolam as the test of negligence to that?

I have never thought so.

After a long wait I find some judicial support for my concern from Kerr J in Muller v Kings College 2017 EWHC 128 QB.

Before we go any further in a discussion about Bolam, it is important to be very clear exactly what we mean by the use of the term “the Bolam test”.

McNair J actually described a number of tests for a doctor’s negligence in Bolam v Friern Hospital Management Committee 1957 1 WLR 582.

Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ) -and- George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019


Dr Zafar ran his own medico-legal company, producing over 500 expert reports a year. In February 2012, he examined Mr Iqbal 11 weeks after a road traffic accident. The other driver involved was insured by Liverpool Victoria Insurance Company Limited (‘LVI’). Dr Zafar concluded that having taken analgesia immediately after the accident, Mr Iqbal had made a complete recovery within one week of the accident. Dr Zafar signed this report with a statement of truth, in accordance with CPR Part 35.

The instructing solicitor then asked Dr Zafar if he could amend the report to reflect that Mr Iqbal had ongoing moderate to severe pain in his neck and shoulders. He requested Dr Zafar review his examination notes, and in light of this ongoing pain amend his report to the effect that Mr Iqbal would recover over the next six to eight months. Without any further re-examination of Mr Iqbal, Dr Zafar obliged. Although the content of the expert report changed, the report date remained the same, as did the statement of truth.

The short answer is no but feel free to keep reading.

In Pomphrey v. Secretary of State for Health the Claimant’s claim for damages in respect of the non-negligent complications of spinal surgery failed. His argument was that for a period of 10 months prior to surgery he had symptoms of cauda equina syndrome and should have had decompressive surgery earlier. Had he done so he would probably have avoided the dural tear which he sustained when his operation eventually took place. HHJ Cotter QC rejected the Claimant’s argument, preferring the evidence of Richard Stacey to Nick Todd. He found that the Claimant had been suffering from intermittent spinal claudication caused by spinal stenosis, not CES, and that there was no requirement for earlier surgery.

 R (Chidlow) v HM Coroner for Blackpool and Fylde & Others [2019] EWHC 581 (Admin)

Human bodies being such complex things it is unsurprising medical causation is often extremely complicated. Legal causation of medical injury is a minefield for clinical negligence lawyers to navigate: “indivisible injuries”, “multifactorial causation”, “material contribution”, “loss of a chance”etc.

But there is good news for all who must negotiate these causation booby-traps. It comes in the form of Mr Justice Pepperall’s judgment – arising out of an inquest – about whether a jury could reach a safe conclusion on the causative link between delay in treatment and death where the medical cause of death is unascertained.

It’s a brilliant exposition of two fundamental points on causation: 

  • Causation is more than a matter of medical statistics - even where survivors are a majority category.
  • There is a difference between identifying what caused death and whether life could have been saved with earlier medical attention.

Jonathan Holl-Allen QC acted for the successful Claimant in this claim against a Consultant Neurologist who Yip J concluded had failed to discharge his duty when advising in respect of medication to a suspected Parkinson’s Disease patient.

The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board [2015] AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 and Khan v MNX [2018] EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.

Angus Moon QC successfully defended this psychiatric negligence claim (unreported, County Court at Sheffield, 9 January 2019).

The Claimant – a Consultant Radiologist – jumped from a balcony in an apparent suicide attempt and sustained serious injuries. He is now confined to a wheelchair. He alleged being let down by a number of psychiatric practitioners who, he said, had failed to admit him to hospital when he should have been admitted in light of his psychiatric state. His Honour Judge Mark Gargan dismissed the claim and found for the Defendant.

The decision serves as a reminder of the factors that are likely to sway judges when assessing lay evidence.

The Court of Appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 has overturned the High Court’s decision ([2017] EWHC 2318 (QB)) by awarding damages to an infertile claimant for the costs of commercial surrogacy in California.

The first instance decision

In a previous blog post from September 2017 entitled Surrogacy: The Birth of a New Head of Loss, I discussed the first instance judgment in XX. Following the Trust’s admission that its failures led to Ms X’s infertility, Sir Robert Nelson awarded £74,000 to Ms X for the costs of UK-based surrogacy using her own eggs but not those of a donor. Claire Watson represented the Claimant at first instance.

Whilst the High Court’s decision was significant – this was the first case in which damages for the costs of UK surrogacy had been awarded – it was not the decision that Ms X wanted. She appealed to the Court of Appeal in order to recover the costs of Californian commercial surrogacy. The one-and-a-half-day hearing took place in early November and judgment was handed down on 19 December 2018. On appeal, Claire was led by Christopher Johnston QC.

Commercial surrogacy arrangements are lawful and binding in California, which has a well-established system. In contrast, only non-commercial surrogacy is permitted in the UK, and all surrogacy arrangements are unenforceable. The Law Commission has noted that there are ‘significant problems’ with the Surrogacy Arrangements Act 1985 and it aims to publish a consultation paper on law reform by spring 2019.

When is a doctor responsible for losses suffered after they have given bad advice?  According to the Court of Appeal, if the loss is “coincidental”, it’s not recoverable. 

On 23rd November 2018 the Court of Appeal handed down judgment in the case of MNX v Khan [2018]  in which it considered the extent to which the limits on the scope of duty imposed by “SAAMCO” South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, applied in clinical negligence cases.  In SAAMCO Lord Hoffman gave the famous example of a doctor, who negligently advised a mountaineer that their knee was fit to go climbing, not being liable for the consequences of the mountaineer being injured in an avalanche, even if but for the negligence they would not have gone up the mountain and so would have avoided the avalanche.  On the facts of MNX, the Defendant GP negligently failed to advise the Claimant that she was a carrier of the haemophilia gene, and as a result when she fell pregnant she did not undergo tests to ascertain whether her child would have haemophilia.  It was accepted by the Defendant that if the Claimant had been given the appropriate advice, she would have undergone those tests and would have terminated the pregnancy.  The Claimant gave birth to a child suffering from haemophilia but also with severe autism.  The issue for the Court was whether or not the costs associated with the autism fell outside the scope of the Defendant’s duty such that they were not recoverable.

This is the clear takeaway from Whipple J’s powerfully reasoned judgment in YAH v. Medway Foundation Trust, judgment 5th November 2018. The facts are typical of many cerebral palsy cases. The Claimant’s daughter was born after a negligent delay in intervention in the face of signs of fetal distress. The Claimant suffered psychiatric injury. In the joint statement the psychiatrists stated:

“We agreed that a number of factors had contributed to YAH having suffered a mental disorder, including the experience of a difficult labour; the worry of knowing whether or not [XAS] would survive and, importantly, the strain of looking after a child with significant disability.”

The Defendant Trust argued that a) the Claimant was a secondary victim not a primary victim; b) whether a primary or secondary victim she could only recover if her injury had been caused by shock.

On 10 October 2018, the important Supreme Court judgment in Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent) [2018] UKSC 50 laid to rest any suggestion that non-medical hospital staff do not owe a duty of care to patients.

On the facts, the Appellant was wrongly advised by an A&E receptionist that he would have to wait for 4-5 hours to see a doctor. In fact, he had a head injury and would have been triaged by a triage nurse within 30 minutes. In the event, he felt too unwell to wait for 4-5 hours, left the hospital and suffered a collapse, leading ultimately to a severe and disabling brain hemiplegia. The trial judge found that if he had been told that he would be triaged within 30 minutes, he would have remained in hospital, would have suffered his collapse in hospital and would have made a full or near-full recovery.

The duty of care owed by a receptionist in A&E was characterised as follows: 

“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance.  The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

The Court made clear that “the particular role performed by the individual concerned” will be likely to have an important bearing on the questions of duty of care and breach.  

The issue of illegality as a defence in clinical negligence actions is controversial.  It typically arises in a rare category of cases in which alleged failures of medical care results in a patient (the Claimant) suffering a psychotic episode.  As a result of the psychotic episode, the Claimant then commits a criminal act.  This leads to a prosecution and conviction, and potentially pecuniary and non-pecuniary losses.  Should a Claimant be permitted to sue the negligent clinician who failed to treat the underlying condition?

The Court of Appeal recently considered and reviewed this tricky area of law in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841. 

The facts in Henderson were that the Claimant, who had been diagnosed with paranoid schizophrenia stabbed and murdered her mother during a relapse.  It was admitted by the Defendant that it was in breach of duty, and that but for that breach the relapse (and murder) would not have taken place.  The Claimant was prosecuted and convicted of manslaughter by reason of diminished responsibility.  Damages were claimed by the Claimant for resulting losses.

Angus Moon QC and Cecily White acted for the Defendant Trust, and argued that the status quo (i.e. that an individual cannot recover damages for losses arising out of a criminal act) should continue.  The Court of Appeal agreed.  It also affirmed the distinctions within this rule and the reasons why the rule exists. 

  1. There is no doubt that it is harder for a claimant to win a nervous shock claim now than 3 years ago. The bar for what is a ‘shocking event’ is higher following decisions in favour of defendants in Ronayne and Shorter.  Defendants have been encouraged by success to fight more cases to trial.  What though of cases where there is a delay between the breach of duty and the primary victim suffering any injury?   

  2. Many have assumed that cases of delayed injury lack the proximity required by Lord Oliver in Alcock. This assumption is based on the Court of Appeal decision in Taylor v. Novo. I disagree.  In my view the question of whether there can be sufficient proximity between a secondary victim and the defendant in cases where there is a material gap in time between the breach of duty and any injury to the primary victim remains unanswered.  I see no reason in principle why such claims should not succeed.

  3. The issue is particularly relevant to clinical negligence cases. In Shorter Surrey and Sussex NHS Trust [2015] EWHC 614 (QB). Mrs Justice Swift, very experienced in clinical negligence cases, recognised this when she said (§208 & § 209):

“The early claims by secondary victims mainly concerned accidents, most often road traffic accidents. In those cases, it was comparatively easy to identify the relevant “event” (the accident) although, as the authorities show, it was often more difficult to determine precisely what constituted the “immediate aftermath” of an event.

“Cases of clinical negligence present particularly difficult problems. The factual background of cases can be very different and often quite complex. The nature and timing of the “event” to which the breach of duty gives rise will vary from case to case.” 

Neil Davy recently appeared in a ‘wrongful birth’ case in which the High Court awarded damages to a Claimant for the costs associated with a disability which was unrelated to the Defendant’s admitted negligence. In this respect, MNX v Khan [2017] EWHC 2990 (QB) was said to be the first case of its kind, although Yip J sought to resolve the case by reference to established principles.

It should be noted that the Defendant has been granted permission to appeal to the Court of Appeal.

The facts

The Claimant’s son (‘AM’) was born with haemophilia and autism. It was agreed that the Defendant negligently caused the former by failing to determine that the Claimant was a carrier of the haemophilia gene. But for the negligence, the Claimant would have terminated her pregnancy. The Defendant therefore agreed that the Claimant could recover the costs associated with AM’s haemophilia. However, it was disputed that the Claimant could recover the costs associated with AM’s autism, which was not related to the Defendant’s negligence.

Yip J framed the issue as follows: ‘Can a mother who consults a doctor with a view to avoiding the birth of a child with a particular disability (rather than to avoid the birth of any child) recover damages for the additional costs associated with an unrelated disability?’ [2]

Answering this question with a ‘yes’ would lead to a £9,000,000 award of damages, whereas answering ‘no’ would lead to a £1,400,000 award. Consequently, much was at stake for both parties. In the circumstances, Yip J answered ‘yes’.

The importance of Various Claimants v. Barclays Bank 2017

1. A good claim becomes a bad one if there is no one against whom to enforce a judgment. 

2. A doctor might be uninsured where:

a. He has engaged in criminal activity and his MDO have declined cover;

b. You are suing him for something not covered by his MDO e.g. some hip cases under the Consumer Protection Act;

c. He did not have cover – perhaps because of an error.

d. You are claiming more than £10m – that is the limit of most doctor’s indemnity.

e. He was operating on an NHS patient in a private hospital.

3. Your options:

a. Try to persuade the MDO to indemnify (not impossible, but difficult)

b. Consider proceeding against doctor’s own assets (usually unattractive because they have a house which is in joint names and which they cannot be forced to sell)

c. Try to involve the NHSLA/ NHSR either by establishing that some of the treatment was on the NHS or by arguing that there were failures of clinical governance within the NHS which contributed to the injury (as in Paterson cases)

d. Try to establish vicarious liability on the part of someone with deep pockets e.g. the private hospital where treatment took place.

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

In recent years, there has been an increase in the prevalence and social acceptance of surrogacy arrangements in the UK. However, until judgment was handed down in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), there were no reported cases in which a claimant successfully recovered damages for the cost of surrogacy.

In the first decision of its kind, Sir Robert Nelson awarded £74,000 to the Claimant in respect of the cost of UK-based surrogacy for two children, using the Claimant’s own eggs. Claire Watson represented the Claimant in this significant case.

This was a quantum-only clinical negligence trial. The Defendant admitted negligence in failing to detect signs of cancer from smear tests. Consequently, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment, which led to infertility and severe radiation damage to her bladder, bowel and vagina [1].

The Claimant sought damages for, inter alia, the expense of four pregnancies under a commercial surrogacy arrangement in California or, alternatively, under a non-commercial surrogacy arrangement in the UK. In either case, she would primarily seek to use her own eggs. Importantly, it was agreed by the experts in reproductive medicine that the Claimant will probably achieve two live births [34].

Three aspects of Sir Robert Nelson’s judgment are worth noting.

Note for Claimants*

  1. On 20th March 2017 the discount rate changed from 2.5% to -0.75%. The life multiplier for a 7 year old child with a life expectancy to age 60 changed overnight from 29 to 65, more than doubling the capital value of a future loss claim.

  2. This good news brought an as yet unresolved problem for accommodation claims. For nearly 30 years, since March 1988, the standard approach to valuing the cost of accommodation was that set out by the Court of Appeal in Roberts v. Johnstone. If you were living in a house worth £200,000 and you needed to move to a house costing £500,000 the court would not give you the ‘windfall’ of the additional capital, £300,000. Damages are supposed to run out on the day you die but the asset would survive you. Instead you were entitled to compensation for the loss of the use of the additional capital. The discount rate was used to assessed the annual value of the loss. Therefore where the required capital sum was £300,000 the annual value (multiplicand) would be £7,500. This would be multiplied by the life multiplier, so using the figures above, £7,500 x 29 would give an R v. J award of £217,500.

  3. There were many problems with R v. J. The biggest was in cases of limited life expectancy where the award would be far too small to fund the purchase of a property. There were ways around this, including a claim for the cost of adaptations which were awarded in full. Therefore in a case with limited life expectancy you would achieve a bigger award by buying a small house and spending a lot on adaptations than by buying a bigger house and spending very little on adaptations.

"The most complicated skill is to be simple.” Dejan Stojanovic

The EU Product Liability Directive 1985[1] and the consequent Consumer Protection Act 1987 (“CPA”) were introduced in the aftermath of the Thalidomide scandal. The legislators’ intention was to provide a level playing field for EU manufacturers and, more importantly, a simple and uniform no-fault consumer protection system throughout the EU.[2]  Despite the latter aim, product liability has created some of the most complex litigation ever to hit the UK courts.  Pleadings can resemble – to those who can remember them – telephone books.  There are often detailed and complex requests for further information about the precise mechanisms alleged to have caused the defect or injury in issue.  This has created a far more complicated legal process than the fault-based system the Consumer Protection Act was meant to supplant.[3]   In short, as stated by Emily Jackson:

“The Consumer Protection Act, despite its name, has proved to be a remarkably consumer-unfriendly piece of legislation.”[4]

On 26 May 2017 a specially constituted Administrative Court comprised of Lady Justice Sharp and Dingemans J heard the first appeal brought by the GMC against a decision of a Medical Practitioners’ Tribunal under s.40A of the Medical Act 1983 in GMC v Dr Jagvivan [2017] EWHC 1247 (Admin). The PSA joined as a party since, in the event of the Court finding the GMC had no jurisdiction, it wished to argue the same points.

This was a case where the MPT found misconduct but no impairment and did not give a warning. The case was fought on its merits and on the issue of jurisdiction, which is the important aspect.

Court of Appeal hearing 25th May 2017

How do the Human Rights Act 1998 and the Mental Health Act 1983 fit together?

Should a Mental Health Tribunal (or First Tier Tribunal) limit its deliberations to whether a patient meets the statutory criteria for detention, or should it also consider whether the patient’s Convention rights have been or would be breached by the detention and/or the circumstances of the detention?

That was the question faced by the Court of Appeal when it heard the appeal of one of the most restricted patients in the United Kingdom, JD, on 25th May.

Read Michael Mylonas QC's article in the Solicitors Journal, here

1. If you have a spinal surgery case where a patient has suffered a non-negligent complication you need to read Mr Justice Green’s careful analysis of the law of consent post-Montgomery in Thefaut v. Johnston [2017] EWHC 497 QB, handed down last week on 14th March 2017.

Supreme Court Appeal Heard: 14th and 15th December 2016
Judgment to be handed down: 22nd March 2017

The Supreme Court will hand down judgment in its second appeal concerning the Mental Capacity Act 2005 at 9.45am on Wednesday 22nd March 2017.

What are the issues? Sir James Munby P dismissing the appeal to the Court of Appeal stated, “[this case] raises fundamental questions as to the nature of the Court of Protection’s jurisdiction and in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.”

You can find an update to the third edition of Medical Treatment: Decisions and the Law concerning Thefaut v Johnson here

1. This morning the Lord Chancellor announced that the discount rate would be revised from 2.5% to -0.75%. This clearly has major implications for the calculation of future losses and will lead to much higher awards and settlements than we have seen before. There are also major implications for the calculation of damages for accommodation where this is required as a result of negligently caused injury. Roberts v Johnstone is dead.

The decision in Roberts v Johnstone
2. Since March 1988 and the decision in Roberts v Johnstone [1989] Q.B. 878; the cost of future accommodation has been calculated on the basis of compensation for the loss of use of capital required by the purchase of a more expensive property. In Roberts the Court of Appeal held that appropriate compensation would be calculated on the basis of an assumed rate of return of 2%. In 2001 the Lord Chancellor exercised his power under the Damages Act 1996 to set the discount rate at 2.5% and this figure has been used for R v J calculations ever since.

R v J doesn’t work with a negative interest rate
3. It is a statement of the obvious to say that R v J does not work with a negative interest rate. Claimants using an R v J calculation would be paying money back to the defendant.

It was time for a change anyway
4. For many years claimants have been arguing that the R v J calculation is outdated in an era when house prices are so much greater and where a low multiplier (e.g. in cases of limited life expectancy) would not produce a large enough capital sum to fund the purchase of a property. Today’s announcement cuts through these arguments. R v J was only ever intended as a pragmatic fudge, once it ceases to be pragmatic it simply disappears as an option.

So what are the alternatives?

Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62

This was a consent claim where breach of duty was admitted, there was a dispute about the advice that should have been given and where causation was denied. Unusually the Court of Appeal reversed the first instance finding on causation with the result that the brain damaged child’s case succeeded. 

The decision provides some insight into the type of factual causation evidence that judges find persuasive. It also reminds us of the importance of identifying clearly the advice that should have been given, had a patient-centred, patient-specific approach been adopted.

Today is the official launch of the third edition of Medical Treatment: Decisions and the Law. You can find extracts from the print edition and updates on specific chapters on our website here.

John de Bono QC
AVMA Conference, 2016


Rule 1: The court will (almost) always be sceptical and unsympathetic.

Rule 2: Alcock remains the law. It is arbitrary and unfair.

Rule 3: It is almost impossible to win a secondary victim claim.

Rule 4: Your best hope is to make your client a primary victim.

Rule 5: ‘Shocking’ requires something truly extraordinary.

Rule 6: Walters was correctly decided but will rarely be followed.

Rule 7: Shock is required, neither ‘mere death’ nor a gradual decline will ever be enough.

Rule 8: A gap in time between breach and injury is a huge hurdle.

Rule 9: We should keep fighting these cases, but only the very strongest ones.

Rule 10: Great care is required with factual & expert evidence (including C&P reports).

Please click here to read Conrad Hallin's commentary for the Medical Law Reports.

Serjeants’ Inn Chambers & Oxford Neurosurgery and Spine Practice - 7th Annual Oxford Medical Law Conference
Wadham College
26 September 2016


Legal Update


Duty of Care

1. Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) (15 April 2016):

a. Neil Caven (“Neil”) a patient at the Defendant hospital (D) suffered from a long-standing (undiagnosed) disease. In March 2003 a doctor at D’s hospital requested a diagnostic test but the test was not performed.
b. In March 2006 Callum Smith (“Callum”) was admitted to hospital and underwent testing and was subsequently diagnosed as suffering from Adrenoleukodystrophy (ALD) (a childhood version of Adrenomyeloneuropathy (AMN)). By the time of diagnosis the condition was too far advanced for treatment to be effective and Callum subsequently died on 26 April 2012.
c. Following Callum’s diagnosis, his brother Connor Smith (“Connor”) underwent testing and was also diagnosed with ALD. Connor received treatment and his general health remained satisfactory.
d. Following the diagnosis of Callum and Connor, Neil was seen in D’s clinic in 2006 and stated that his first cousin had been identified as a carrier of ALD. It was then noticed that the diagnostic test considered in 2003 had never been performed. The test was carried out and Neil diagnosed with the adult form of AMN.
e. C alleged that D was negligent in not performing the test on Neil in 2003 and alleged that had the test been performed it would have led to testing of the wider family which would have included Connor and Callum and would have given rise to their diagnosis 2.5-3 years earlier which would have led to a materially improved outcome for both.
f. The Claim was struck out on policy grounds.
g. HHJ McKenna held: “this is a novel claim where it would not be fair just and reasonable on policy grounds to impose a duty of care on the Defendant in respect of those who are not its patients” (§30).

On 15th April 2016 Peter Jackson J handed down judgment in Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] EWHC 851 (Fam), an unusual case involving novel legal issues about whether the court can use the inherent jurisdiction to direct scientific testing of the DNA of someone who has died, for the purpose of providing evidence of paternity. The DNA sample had been provided as part of the deceased's medical treatment. No consent had been given for paternity testing and it was not clear that the deceased had ever known he might have a son.

1. Commentators have asked about the legal consequences of a health service body or other registered person under the Regulated Activities Regulations 2014 providing a notification of a patient safety incident under Regulation 20 (2) upon information provided by an individual doctor.  

Would that material be admissible against the individual doctor in (say) some later criminal prosecution in relation to the same event?

Eloise comments:

“The General Medical Council have this week made a welcome announcement that new guidance on cosmetic procedures will be brought into force from June 2016. This follows the recommendations in the Keogh review and a number of high-profile cases such as the PIP breast implant litigation. The guidance sets out a framework for protecting patients who are considering or undergoing cosmetic procedures.

The provisions on consent will be of great interest to the medico-legal community in the light of last year’s landmark Supreme Court judgment in Montgomery – which is yet to be considered by the higher courts in the context of cosmetic surgery claims. Under the new GMC guidance, the doctor who performs the cosmetic procedure will be responsible for consenting the patient and must not delegate this responsibility. It remains to be seen whether the civil courts will recognise this as an aspect of the duty to obtain properly informed consent.”

Eloise acted for the Thompsons subgroup of claimants in the PIP litigation, has published for Jordans on the Cosmetics Regulation and has experience of clinical negligence cosmetic surgery claims. Please click here for further details of her work.

On Tuesday 24 February 2016 the Supreme Court gave judgment in Knauer v Ministry of Justice, which has completely changed how future dependency loss is to be assessed in claims under the Fatal Accidents Act 1976.

Please click here to read Sebastian Naughton's summary and analysis of the case.

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.

Please click here to read the above article on the Legal Futures website.

Sebastian appeared for the claimant in this 5-day trial concerning paramedic negligence in failing to convey the deceased to hospital in light of cardiac symptoms.  Breach of duty and causation were in issue; HHJ Godsmark QC found for the claimant on both points. Sebastian was instructed by Hayley Smith from Irwin Mitchell.

At a hearing before the Fitness to Practise Panel of the GMC between 2nd and 10th November 2015, the complainant (Patient A), who was a young mother who had just given birth, made an allegation of indecent assault against the Respondent, who was working at the time as a locum SHO in paediatrics. It was alleged that the doctor had rubbed her back and touched/held her breast for 2-3 minutes and that his conduct was deliberate and sexually motivated. Patient A alleged that the assault took place while she was breast-feeding. 

The Fitness to Practise Panel acceded substantially to the application made on behalf of the doctor to throw out the allegations at the close of the Council’s case under rule 17(2)(g) of the FTP Rules.

The panel concluded that the many inconsistencies in Patient A’s various accounts rendered her evidence so weak and inconsistent as to be insufficient for the case, in relation to the main allegations, to proceed. 

A single remaining factual allegation concerning chaperoning, that was not thrown out at the close of the Council’s case, was also found not proved. Accordingly, the case was closed with no adverse finding. 

Please click here to read the above article from today's Law Society Gazette.

Bridget Dolan represented the parents of Sally Mays at the inquest into her death in October 2015.

The Senior Coroner for Hull found that the decision by senior psychiatric nursing staff to refuse Sally a hospital bed when she was in obvious need of admission, was an “unconscionable and quixotic decision” following a “lamentable”, “perfunctory and slipshod assessment” of Sally. 

Click here for recent press coverage.

We also won Professional Discipline Set of the Year for the second year running and were one of five finalists for Client Service Set of the Year, with Anthony Haycroft a runner up for Professional Discipline Junior of the Year.

George Hugh-Jones QC has secured the acquittal of a spinal surgeon at the GMC. The surgeon faced multiple charges, including substandard surgery and four cases of dishonesty.

George Hugh-Jones QC was instructed by RadcliffesLeBrasseur.

The practitioner, who is  an experienced dentist specialising in oral surgery, faced allegations concerning treatment, planning and obtaining consent in relation to implant treatment.

At the conclusion of a one-week hearing on 16th October 2015, the Committee concluded that his fitness to practise was not impaired.

The practitioner was represented by Andrew Hockton, instructed  by Nailah Heslop-Mears of BLM, London.


  • The Regulators’ response to the Francis Report and the adoption of “A professional duty of candour”
  • The development of guidance to healthcare professionals.
  • The impact of “the professional duty of candour” on disciplinary proceedings: some practical tips on:
    • Rule 7 responses.
    • Witness statements: Should they be provided and if so when?
    • Giving evidence at a disciplinary hearing. 


Robert Francis QC (as he then was) opened chapter 22 of his February 2013 inquiry report in the following way:

“Openness, transparency and candour are necessary attributes of organisations providing healthcare services to the public. There is strong evidence based on the actions in particular of the Trust and the Care Quality Commission (CQC) that insufficient observance of these requirements has been prevalent..."

The report commended us, as the only set of chambers featured, as “stand-out” in terms of our success in “facilitating a partnership between clients and Chambers and introducing initiatives to help clients…”.

Click here to read the full report.

We are delighted to have been named Clinical Negligence and Personal Injury Set of the Year at the Legal 500 Bar Awards 2015.

The awards will be presented to the winners at a networking dinner on 10th November 2015. Click here for further information.

1.Where an individual doctor has provided information pursuant to his employer/provider’s duty under the Regulated Activities Regulations 2014, would the subsequent deployment of that information in criminal proceedings offend any individual doctor’s claim to the right against self-incrimination and/or violate Article 6.?  This short paper seeks to set  out the European perspective. 

Article 6 states:

In the determination of… any criminal charge against him, everyone is entitled to a fair….hearing by an independent and impartial tribunal.

Serjeants’ Inn Chambers hosted an evening with Sir Robert Francis QC on Thursday 24 September 2015 to discuss and reflect upon the impact of the Duty of Candour, as recommended in the 2013 Francis Report, upon practice in a variety of healthcare areas, including inquests.  

Cecily White and Paul Spencer considered the impact in the Coronial jurisdiction of the rather snappily named “Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014” (ie the Duty of Candour regulations).  Their paper is summarised below.

Anthony Haycroft successfully secured an order of conditions for a Spanish dentist facing numerous allegations of both clinical safety issues and widespread record keeping deficiencies. 

The dentist was working in Cambodia and gave evidence via Skype. All of the recording issues were admitted and some isolated clinical issues but all contested clinical issues were found not proven.

The Committee then accepted that the failings were due to a difference in foreign training and did not amount to misconduct.

A 3-year order of conditions aimed at improving record keeping was argued for and ordered. 

Anthony Haycroft was instructed by Judith Duffin of BLM London, instructed by Lynn Rees of Dental Protection.

We are delighted to have been named Chambers of the Year at the Halsbury Legal Awards 2015.

The award brochure noted:

The judges were impressed by this set’s progressive approach which runs in tandem with its strong record on ground-breaking litigation. Effective management and dedicated client management teams have combined to enable it to develop international markets marking a truly remarkable year.

 For further details click here.

Please click here for details of this new publication by Charles Foster and Jonathan Herring.  The book is described by its publishers as contending that:

“our welfare is inextricably entangled with that of others, and accordingly law and ethics, in determining our best interests, should recognise the central importance of relationality, the performance of obligations, and (even apparently injurious) altruism”.

We are delighted to announce that Gemma Hobcraft (2006 call) has joined Chambers as a new tenant. Gemma practises in professional discipline and regulatory work and public law. She regularly appears before health care regulators, acting in the full range of conduct, competence and health cases.

David Morris represented a GP doing weekend Out of Hours work.He had been accused of issuing a series of prescriptions for long term (2-4 months) supply of high value medications including insulin, asthma inhalers, Viagra and  nutritional supplements in fictitious patient names.  

The prescriptions had been dispensed many weeks after their prescription at pharmacies distant from the OOH centre but close to addresses used by the doctor.  

The doctor’s defence was that he had been duped either by dishonest patient relatives/friends or by dishonest healthcare workers (district or care home nurses) who had taken advantage of his lack of knowledge of UK general and OOH practice.  For a decade he had practised solely as a GP with British forces in Germany.

While the Panel thought that his oral evidence had been, at times, vague and evasive it was unable to identify any personal or financial motive.  Further, it noted that the prescribed drugs were not typical of those often obtained fraudulently such as opiates, strong painkillers and benzodiazepines. It accepted that he had acted in good faith on the information provided to him by the patients’ representatives.

Having found that the doctor’s fitness to practise was not impaired, the Panel went on to reject the GMC’s submission that the doctor should receive a formal warning for poor record-keeping, which he had admitted in his evidence.  

It accepted the defence submission that it would be wrong to issue a warning about matters which had not been formally alleged against the doctor and about which no findings of fact had been made.

In the circumstances the Panel agreed that it did not have the power to impose a warning about matters not included in the formal allegation. In so doing the Panel expressly rejected the contrary advice of the Legal Assessor. 

David Morris was instructed by Christopher Briggs and Christian Carr of  DACBeachcroft and supported by the Medical Defence Union.

David Morris represented a high profile GP who had been chairman of his local Clinical Commissioning Group with responsibility for a multi-million pound budget.

The doctor faced numerous allegations of dishonesty including:

  • getting a receptionist to forge his GP partner’s signature on a life insurance application form;
  • witnessing the signature on the Will of an elderly hospital in-patient suffering from Parkinson’s disease and dementia when he knew that the patient may have lacked sufficient mental capacity;
  • failing to disclose his Out of Hours (OOH) work to the GMC and
  • failing to disclose his interim GMC suspension to the OOH employer.

The doctor was also charged with Deficient Professional Performance having done poorly in a GMC clinical assessment. He admitted this allegation.

The MPTS Panel only found one allegation of dishonesty proved: the life insurance forgery. While finding his witnessing of the Will ill-advised, the Panel was not satisfied that it was actually dishonest.

On the proved facts the GMC sought the doctor’s erasure from the Medical Register. Unusually for a case of dishonesty the Panel were persuaded that neither erasure nor suspension was necessary to maintain public confidence in the medical profession. They were satisfied that their finding of Impairment coupled with a substantial period (3 years) of conditional registration would send a clear message to the public and the profession as to the seriousness of his misconduct.

David Morris was instructed by Simon Kernyckyj and Amy Wilson of RadcliffesLeBrasseur and supported by Sarah Townley of the Medical Protection Society.

Anthony Haycroft has represented a General Dental Practitioner in a 7-day Professional Conduct Committee hearing covering substantial clinical failings in complex restorative dentistry in two different patients. 

The failings ranged from inadequate treatment planning, assessment and diagnosis, incorrect use of radiographs, poor record-keeping, poor periodontal assessment and treatment and failure to obtain informed consent. Numerous failings were admitted and the remainder were effectively withdrawn after discussion between the experts.

The defence made clear from the outset that misconduct was accepted, but presented substantial remediation evidence to show no current impairment. The GDC sought then to argue for impairment on public interest grounds, however the defence's counter-arguments were accepted and no impairment was found. 

Anthony Haycroft was instructed by Deepika Raino of RadcliffesLeBrasseur and supported by John Kocierz of Dental Protection.

Bridget Dolan represented the patient (through the Official Solicitor) in this medically and ethically complex case concerning an application to withdraw treatment from a man in a minimally conscious state.

Mr Justice Newton accepted Bridget’s arguments that when assessing the value of life from the particular perspective of this patient,  there was strong evidence from the accounts of his family and based on his religious beliefs, that any life, no matter how profoundly disabled, would be considered by him to be of significant value.

The judge found that life-preserving treatment was neither futile nor burdensome and that, despite his profound brain injury, his present life was one P would find worthwhile, even though many others would not adopt the same position.

The treatment has therefore been continued.

We are delighted to announce that Bridget Dolan has won the Barrister of the Year award and Gerry Boyle was awarded bronze at The Lawyer Awards 2015.

Serjeants' Inn Chambers was awarded bronze in the Chambers of the Year category.

Eloise Power has represented the GDC in a hearing concerning challenges to IOC decisions under s32 of the Dentists Act.

The hearing established that the IOC and Court’s function in relation to an interim order is one of risk assessment and that there is no threshold specified in the legislation. 

In his judgment, Warby J stated:

“I accept the submission of Miss Power that the function of the IOC and the court in relation to an interim order is one of risk assessment. This necessarily requires that attention is paid to the nature of the allegations and the evidence which is relied upon to support them. The fact that it is an exercise of risk assessment cannot justify the court ignoring the need to pay attention to the quality of the evidence and the possibility or prospect that it may not be sufficient to justify the view that there is a risk. But there is no threshold specified in the legislation other than the need to protect the public, the public interest and, where applicable, the interests of the registrant. It is not a question of the threshold of a prima facie case.”

Please click here to read the full judgment.

We are delighted to announce that David Lawson has joined Serjeants’ Inn Chambers this month.

David has an established practice in education law, local government, public law and human rights and the Court of Protection.  Recent work has included judicial reviews of local authorities, universities, discrimination claims, advising on school regulation and appeals concerning Education, Health and Care Plans.  He is involved in a number of cases relating to reductions in public services and has appeared in several joint Court of Protection and judicial review challenges. 

David is a valuable addition to our public law team and his practice fits well with our expertise in the Court of Protection, health care and regulatory fields.  He is the fourth established practitioner to join us this year and his arrival reflects our ongoing commitment to building the expertise and service we offer to our clients.

We are delighted to have been highly commended in the Chambers Innovation category at the Legal Innovation Awards 2015.

The awards, held at the Jumeirah Carlton Tower in London, recognised forward thinking vision in the operation and delivery of services and client care.

On 19th May 2015, at the conclusion of a sensational case at the GMC, the careers of two promising young doctors were saved . 

The doctors had obtained overseas convictions in Spain for an offence of assault, arising from events during a stag weekend in Barcelona. Under the rules of the Fitness to Practise Panel they were unable to go behind the overseas convictions. The panel, however, heard compelling evidence that threw serious doubt upon the fairness of the proceedings giving rise to the convictions and concluded that the fitness to practise of neither doctor was impaired. 

The panel further concluded that, in the exceptional circumstances of the case, a warning was neither necessary or appropriate. 

The case received widespread publicity in the national and local press. 

The doctors were represented by Andrew Hockton, instructed by Katie Costello of BLM, Manchester and Kate Williams of RadcliffesLeBrasseur, Leeds.

Christopher Johnston QC has represented an 11-year-old claimant who suffered brain damage following his birth.

The boy was born with abnormally low blood sugar levels which were not monitored or treated.

Speaking at the High Court hearing, Christopher said “He now has the mind of a six-year-old with no prospect of improvement [and] is someone who will require care and support for the rest of his life.”

The settlement comprised a £1.45m lump sum plus index-linked periodical payment orders (PPOs) for care, case management, therapies and loss of earnings. On a traditional 2.5% discount rate multiplier approach the settlement was worth about £6.6m, but if the Claimant lives as long as expected this will equate to £13m in index-linked payments over his life span.

Charles Foster represented Dr. Dhanuson Dharmasena in the first ever prosecution under the Female Genital Mutilation Act 2003.

Dr. Dharmasena was a junior doctor who attended a Somali woman in labour. The woman had been infibulated as a child, and had subsequently been deinfibulated. The doctor made an incision through scar tissue in order to catheterise the urethra prior to effecting instrumental delivery. He then inserted a suture to stop bleeding from the wound. The prosecution said that this constituted FGM. The trial was contested for two and a half weeks before Sweeney J at Southwark Crown Court. The jury quickly acquitted.