Healthcare Brief latest decisions – December 2018

Date published





A roundup of recent court decisions raising issues in relation to the deprivation of liberty, the duty to warn non-patients, the duty of care receptionists owe to patients, the impact of absentee witnesses and an update on the rules of consent.

A deprivation of liberty is not permitted under the Mental Health Act

Secretary of State for Justice v MM [28.11.2018]

The Supreme Court clarifies that the Mental Health Act 1983 (MHA) does not permit conditions that amount to a deprivation of liberty (DoL).

MM has a diagnosis of mild learning disability, pathological fire setting and is on the autistic spectrum. At age 17, he was made the subject of a hospital order and a restriction order and has largely been detained in hospital ever since. In May 2015 MM made an application for a conditional discharge. He was prepared to consent to a care plan that would mean he would not be free to leave without an escort. The Tribunal ruled it had no power to impose conditions on discharge that amounted to a DoL.

The Supreme Court agreed with the Tribunal. Although there is nothing in the MHA which expressly prohibits a condition which amounts to a DoL, there are compelling reasons to treat ‘discharge’ as meaning actual discharge from the institutional setting of a hospital. Those reasons include the spirit of the MHA scheme, which is not intended to capture patients who might require the same level of protection as those deprived of their liberty.

Read more: A question of deprivation of liberty

Contact: Daniel Freeman

The duty to warn non-patients

Griffiths v The Chief Constable of the Suffolk Police and Norfolk and Suffolk NHS Foundation Trust [10.10.2018]

This case confirmed that the duty of care to non-patients by healthcare professionals would only arise in the most novel of cases.

The circumstances of this case arise out of the murder of MG by John McFarlane, a long-term mental health patient, who had been released from hospital after a Mental Health Act Assessment concluded that he did not need to be detained. A civil claim was brought against the NHS Trust by MG’s children, for a breach of duty to warn MG of the dangers Mr McFarlane posed.

The court confirmed that doctor-patient confidentiality is a paramount factor and the duty to warn will only be imposed where the risk of harm is so serious that it would be in the public interest to do so.

Read more: The duty to warn non-patients

Contact: Laura Ringrose

Extension of duty of care to A&E receptionist

Darnley v Croydon Health Services NHS [10.10.2018]

The Supreme Court rules that a receptionist in an A&E department owes a duty of care not to provide misleading advice about the availability of medical assistance.

The claimant attended the emergency department having been struck on the head. He was told by the receptionist that he would have to wait up to four to five hours before he could be seen by a clinician. The receptionist failed to mention that the patient would be seen by the triage nurse as soon as possible. Feeling too unwell to wait, the claimant went home. Later an ambulance was called and the claimant underwent surgery for a large extradural haematoma.

The Supreme Court agreed that case falls squarely within an established category of duty of care.

Read more: ‘Extension’ to the duty of care in healthcare

Contact: Sophie Donaldson

Clarity provided as to when adverse inferences can be made from an absentee witness

Manzi v King’s College Hospital NHS Foundation Trust [29.08.2018]

The Court of Appeal confirms that courts are not obliged to draw adverse inferences against a party for failing to produce a witness.

This case concerned the delivery of a child and questions over retained products of conception. The claimant alleged that the Trust failed to identify that a ‘substantial’ piece of placenta was retained, evidenced by a conversation she had with a junior doctor. The junior doctor had no prior involvement in the case.

The claimant believed the court should draw an adverse inference against the defendant for failing to present the junior doctor as a witness. At first instance the court declined as the witness was considered peripheral, which was upheld on appeal.

Read more: Clarity provided as to when adverse inferences can be made from an absentee witness

Contact: Rob Tobin

Update on the rules of consent

Duce v Worcester Acute Hospitals NHS Trust [07.06.2018]

The Court of Appeal confirms the rules relating to liability, where the injury is directly linked to consent.

The claimant elected to undergo a total abdominal hysterectomy. The consultant advised of the risk of normal post-operative pain but did not advise specifically of the risk of developing chronic pain. Surgery was performed non-negligently, however the claimant sustained nerve damage and suffered chronic post-surgical pain. She argued that there was a failure to inform her at consent of this risk and she would not have opted for surgery had she been warned.

The Court of Appeal upheld the judgment at first instance that there was no duty to warn as this was not the advice that the profession gave at the time.

Read more: Update on the rules of consent

Contact: Avinder Sidhu

Read other items in Healthcare Brief - December 2018