Healthcare Brief: latest decisions - March 2023

A roundup of recent court decisions raising issues relating to divisible injury and material contribution in obstetric cases; best interest decisions and the role of parents in the clinical ethics committees’ process; and qualified one-way costs shifting.

Divisible injury and material contribution in obstetric cases

CNZ v Royal Bath Hospitals NHS Foundation Trust (1) The Secretary of State for Health and Social Care [2023]

This important judgment from HHJ Ritchie at first instance may have wide-ranging implications for obstetricians advising expectant mothers about their birthing options right up until delivery. In addition, it provides a potential roadmap for claimants in birth injury cases to recover their damages in full, despite having suffered a divisible injury which would have caused a degree of harm in any event.

HHJ Ritchie found there was a delay in the registrar acceding to the wishes of the claimant’s mother to have a caesarean section when in theatre and that essentially patient autonomy and the right for an expectant mother to opt for an alternative reasonable obstetric treatment apply in the theatre/delivery room setting. This is an interesting finding and the first of its kind, as historically the courts have demonstrated a highly paternal approach, particularly in relation to the timing of obstetric procedures.

Contacts: Rebecca Gibb and Camilla Long

Related item: Patient autonomy and material contribution in obstetric cases: a new approach?

Finely balanced best interest decisions and the role of parents in clinical ethics committees’ process

Manchester University NHS Foundation Trust v Verden [2022]

In this case, the Court of Protection (the Court), was required to determine whether an order should be made that it was in the best interests of a 17 year-old, who lacked capacity to make decisions regarding medical treatment, to have a kidney transplant with sedation and ventilation post-operatively.

The case is significant as it considers the complexities in finely balanced best interest decisions concerning children and young adults and the extent to which parents should be involved in clinical ethics committees’ (CECs) process. The case differs from the more usual scenario of withdrawal of treatment or an order for medical treatment against a guardian’s wishes in that it concerned a request to the Court to determine that complex and invasive treatment requiring a limited resource was in the best interests of a young adult who lacked capacity, and whose parents desired that he receive the treatment.

Our recent article provides an overview of the judgment and its implications for CECs.

Contact: Rob Tobin

Related item: The complexities of best interests decisions and the role of parents in clinical ethics committees’ process

Qualified one-way costs shifting: recent case developments and rule change

Two recent cases regarding the application of qualified one-way costs shifting (QOCS) had a consequential impact upon the scope for defendants to recover costs where Part 36 offers are accepted late. Those were the Court of Appeal case of Harrison v University Hospitals of Derby & Burton NHS Foundation Trust [2022] and the High Court case of Chappell v Mrozek [2022], which both effectively held, in different contexts, that Part 36 offer/acceptance would not amount to an order “for damages and interest in favour of the claimant” within the meaning of 44.14(1).

As such, a defendant would not be able to enforce against the claimant any order for costs made in its favour where settlement had been achieved between the parties by way of Part 36, and most probably by any other means of compromise. That compounded the previous difficulty for defendants, who had obtained an order for costs in their favour (but the matter had not proceeded to trial), as a result of the Supreme Court judgment of Ho v Adelekun [2021] and the earlier Court of Appeal judgment of Cartwright v Venduct [2018].

It was anticipated that a rule change to CPR 44.14 would follow imminently to bring settlements by way of Part 36 or Tomlin/Consent Order within the scope of an ‘order for damages’ so that orders for costs made in favour of a defendant could be properly enforced. Those amendments have now been announced within The Civil Procedure (Amendment) Rules 2023, No 105 (L.3), Rule 24, available here.

The amendments replace the requirement for an ‘order for damages’ and will now encompass all “agreements to pay or settle a claim for, damages, costs”. In addition, that appears to raise the ‘pool’ of funds against which a defendant could enforce a large costs order from only damages to damages or costs. It also provides that ‘offset’ of costs against costs pursuant to CPR 44.12 will be permitted, reversing the impact of the Supreme Court judgment of Ho. Finally, the rules expressly include orders for costs which are “deemed to have been made” (either against or in favour of the claimant) in accordance with CPR 44.9 and so the very fact that an entitlement to costs exists for the claimant, for example, upon acceptance of a Part 36 even in time, brings an order for defence costs within the scope of the provisions.

This is a welcomed development for defendants given the wide-reaching impact on defendant costs recovery in QOCS claims. The transitional provisions mean however that this will “apply only to claims where proceedings are issued on or after 6th April 2023” (see Rule 1(3) here). In the medium term this is likely to mean, in existing cases or cases already issued, defendants who see Part 36 offers accepted late or have the benefit of interlocutory costs orders, will continue to be unable to enforce or effectively recover those costs. 

Contacts: Lewis ThompsonDaniel Money and Tom Armstrong

Read other items in Healthcare Brief – April 2023

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