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A roundup of recent decisions relating to Reporting Restriction Orders made during end-of-life proceedings, contractual liability for private hospital treatment, and the application of the Consumer Credit Act in negligent private medical treatment claims.
Supreme Court Ruling on Reporting Restriction Order made during end-of-life proceedings
Abbasi and another (Respondents) v Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant); Haastrup (Respondent) v King’s College Hospital NHS Foundation Trust (Appellant) [16.04.25]
On 16 April 2025 the Supreme Court handed down its judgment in this appeal regarding the principles to be applied to an application to vary or discharge a Reporting Restriction Order (RRO) made during end-of-life proceedings that protected the anonymity of the patient, family, and carers.
The Court has unanimously dismissed the Trusts’ appeal for continuation of the RROs.
The Court held at paragraph 102 of the judgment as follows:
“Once an injunction has been granted, the court retains jurisdiction to consider applications to discharge it or vary it. However, unless there is a proper basis on which the injunction can be allowed to continue in force, on the evidence available when the application to discharge or vary is heard, the court has no alternative but to discharge it.”
Adding at paragraph 182(10) that these type of injunctions “should be for a limited duration”.
Further, the Court stated:
“The length of that period will reflect the court’s assessment of the continued risk of interference with the Trust’s performance of its statutory functions, and in particular with its continuing treatment of other patients, and the time reasonably needed for clinicians to take advice about their personal rights, but is likely to be measured in weeks rather than months or years.”
Related item: Supreme Court ruling on Reporting Restriction Orders
Contact: Rob Tobin
Contractual liability for private hospital treatment
Bartolomucci v Circle Health Group Limited [07.03.2025]
This case concerned the question of whether the defendant hospital group was contractually liable for the medical services of a consultant orthopaedic surgeon and a consultant anaesthetist, in relation to private hip surgery carried out at the defendant’s private hospital.
This case will be of interest to both claimants and defendants, in relation to liability for private hospital treatment in clinical negligence cases, in particular where there are difficulties in pursuing and/or tracing the individual consultants.
In 2015, the claimant underwent private hip surgery at the BMI The Edgbaston Hospital (the Hospital). The claimant’s primary allegation was that the anaesthetic care during the surgery was negligent and that this caused him to sustain a catastrophic brain injury. The claimant's representatives sent a pre-action Letter of Claim to the treating consultant anaesthetist, but found the anaesthetist had erased himself from the GMC register and appeared to be working in the United Arab Emirates. At the time of the claimant’s surgery, the consultant anaesthetist had been a member of the Medical Defence Union (MDU), but the MDU confirmed it did not represent him and had no legal interest in the claim against him. In pre-action correspondence, the orthopaedic consultant denied causing any injury by any breach of duty by him.
As the consultants had not accepted responsibility, the claimant (by his Litigation Friend, his father) issued a Part 8 claim against the defendant hospital group (which had subsequently changed its name from BMI Healthcare Limited to Circle Health Group Limited), seeking a declaration as to the scope of the contractual obligations owed by the Hospital. The issue of whether there had been any negligence was not for the court to determine in these proceedings; it was only the contractual position to be determined.
The court held the claimant had a contract with the consultants and that the defendant was not contractually liable for the care and surgery provided by those consultants. For further information on the judgment, see our article 'Court considers contractual liability for private hospital treatment.'
Contacts: Nico Fabri, Dawn McIntosh and Katy Barraclough Jones
Court ruling on the application of the Consumer Credit Act in negligent private medical treatment claim
Bailey v (1) Bijlani (2) MBNA Ltd [31.01.2025]
In what has turned out to be a notable judgment relating to negligently performed private dental treatment, the judge found both the dentist performing the treatment and the credit card provider used to pay for the treatment to be jointly and severally liable for damages.
It is a judgment that will be of particular interest to claimants and compensators alike where private treatment was paid for by credit card and there are concerns about appropriate levels of indemnity for the negligent practitioner.
It was found that the claimant had contracted with the dental practice for the provision of dental services which were provided by the dentist. A duty of care was owed to the claimant in the provision of those services.
Furthermore, a contractual relationship was established with MBNA resulting in potential liability for any breach of contract, pursuant to the implied contractual term under section 49 of the Consumer Rights Act 2015 and section 75(1) of the Consumer Credit Act 1974.
The judge ruled that the dentist had been negligent in the performance of the treatment and MBNA was jointly and severally liable under the provisions of the Consumer Credit Act 1974. The claimant was awarded damages recoverable from both defendants.
Notably, the judge held that MBNA was entitled to an indemnity and/or contribution from the dentist in respect of damages and costs on a 100% basis, stating specifically that “though jointly and severally liable, there was no suggestion that the Second Defendant was liable other than through the mechanism of the Consumer Credit Act 1974”.
While establishing a claim against a negligent practitioner is not unusual, it is noteworthy that the claimant successfully relied upon section 75 of the Consumer Credit Act 1974 in a clinical negligence claim.
As a mere provider of credit, MBNA had no control over the performance of the treatment but, as is regularly observed under section 75, the credit card provider will often be jointly responsible with the retailer or supplier where things go wrong.
Related item: Credit cards and private medical treatment
Contacts: Nico Fabri, Laura Collins, Christian Lowden
Healthcare
United Kingdom