Healthcare Brief December 2020: latest decisions

A roundup of recent court decisions in relation to consent for prescription decisions; the standard of proof applicable in inquest proceedings; expert evidence; the quantification of accommodation claims; and the requirement for expert evidence in professional negligence cases.

Consent for prescription decisions

JH v Barts Health NHS Trust [12.11.20]

Kennedys successfully defended the Trust in a case concerning the prescription of betablockers in a patient with heart failure. The claimant alleged betablockers had been prescribed without informed consent being given which caused admission to the intensive therapy unit.

The dispute at Trial was entirely factual as causation had been agreed. The claimant’s evidence was that JH refused further use of betablockers and had requested a second opinion before they were re-prescribed. The claimant’s evidence was hearsay given that JH had passed away. The Trust’s evidence was that the treatment plan was carefully discussed with JH, and consent given. It was agreed the medical records did not specifically note that informed consent had been obtained, but that the treatment plan was documented.

The judge preferred the evidence of the Trust clinician as to the events of May 2013, and found that whilst documentation was crucial for obtaining consent in treatments such as surgery, it was wholly impractical to expect clinicians to document that consent had been obtained for day to day clinical decisions such as prescription changes. The judge was satisfied the claimant had not proven her case and the claim was accordingly dismissed.

Contact: Katie Stone

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Supreme Court: civil standard of proof applies to all conclusions at an inquest

R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [13.11.20]

On 13 November 2020 the Supreme Court gave its judgment on this appeal which concerned the standard of proof applicable for determining suicide in inquest proceedings. Dismissing the appeal by a 3-2 majority, the court and concluded that the applicable standard of proof for all short form conclusions at an inquest is the balance of probabilities, i.e. the civil and not the criminal standard. This removes the need for a Coroner to record a narrative conclusion in circumstances where suicide could not in the past be proven beyond reasonable doubt.

Although this was a case involving suicide, Lady Arden (giving the leading judgment), concluded that a “unified approach” must be taken in respect of all conclusions reached at an inquest, and therefore the civil standard should apply to conclusions of any cause of death, including a conclusion of unlawful killing. This judgment provides welcome clarification to coroners and interested persons alike. It also assists to re-affirm the purpose of an inquest as an investigation into the facts and circumstances leading to a person’s death, rather than to serve as a forum to apportion blame or establish any issues of criminal justice.

Contacts: Amanda Mead and Charlotte Hill

Expert retreat in clinical negligence claim not persuasive

Paula Grove (Executor of the Estate of Margaret Cook, Deceased) v Secretary of State for Health & Social Care [06.11.20]

The case relates to the deceased’s mitral valve and whether treatment received in relation to its functioning was timely and adequate. In the particulars of claim, the claimant had alleged fifty breaches of duty on 11 different occasions from 1991 to 2016. However, by the time the case was heard at trial, “the issues had narrowed very considerably” and the cardiologist expert instructed on behalf of the claimant had resiled from all but two of the fifteen breaches identified within the expert’s breach of duty and causation report.

Kennedys were instructed on behalf of the defendant.

Having heard evidence from the cardiologist experts instructed on behalf of the claimant and defendant respectively, the claim was dismissed. We provide a more detailed review of the case here.

Contact: Christopher Malla

Related item: Expert retreat in clinical negligence claim not persuasive

Enduring guidance: Court of Appeal rules on quantifying accommodation claims

Swift v Carpenter [09.10.20]

The long-awaited decision, in what has become a test case for accommodation claims, has been handed down. The Court of Appeal allowed the appeal, deciding that a market valuation is a more appropriate approach towards establishing the current value of a reversionary interest, and applying a 5% discount rate.

Recognising the change in economic conditions that have prevailed since the decision in Roberts v Johnstone [1989], the court recognised the effect of negative discount rates which it said render the earlier guidance ineffective in achieving its desired aim. Damages payable to the appellant were increased by £801,913.

The court accepted that its guidance should not be regarded as “a straightjacket” to be applied in all cases. However, for longer lives and during conditions of low positive or negative discount rates, the guidance should be regarded as “enduring”.

Contact: Rob Tobin

Related item: Swift v Carpenter – the judgment explained

High Court in Ireland upholds requirement for expert evidence in professional negligence cases

Whearty v Michael Lanigan practising under the style and title of Poe Kiely Hogan Lanigan Solicitors [21.05.20]

The High Court in Ireland struck out this professional negligence claim against a defendant solicitor, in circumstances where the plaintiff failed to obtain expert evidence in support of his claim. The principles asserted by Mr Justice Meenan in this case are equally applicable in clinical negligence claims.

The court reaffirmed the long accepted principles set out by the Supreme Court in Ireland in the clinical negligence claim of Cooke v Cronin & Neary [1999], that it is an abuse of process to initiate a professional negligence claim without a supportive report from a suitably qualified expert. Importantly however, Mr Justice Meenan held that it must also be an abuse of process to continue to prosecute professional negligence proceedings “without such advice or report”.

Contacts: Joanne O’Sullivan and Grace Keegan

Related item: Requirement for expert evidence in professional negligence cases upheld by the High Court in Ireland


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