Healthcare Brief latest decisions - December 2021
A roundup of recent court decisions raising issues relating to breach of duty and material contribution, mental capacity, qualified one way costs shifting, and dependency.
Supreme Court upholds Court of Appeal ruling on capacity to engage in sexual relations
A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (AP) (Appellant) [24.11.21]
The recent judgment handed down by the Supreme Court upheld the conclusion handed down by the Court of Appeal where the judges decided that for someone to have capacity to consent to sex, they need to understand that their sexual partner also needs to have capacity to consent to sex. The court was faced with the issue of considering one person’s autonomy may come at a cost for others and therefore a protected party must also understand that their sexual partner must consent before and throughout the sexual activity.
It seems that going forward, particular attention will be required in any situation where (1) a decision has been made in a “generalised forward-looking evaluation” basis that the person lacks capacity to make decisions about engaging in sexual relations; but (2) there is proper reason to consider that in the specific context of the person’s life a different approach needs to be taken. This means that professionals when assessing capacity should be aware that there is a remaining category where the assessment of capacity to consent to sexual relations may be in some other specific scenario, for example, around a particular type of sexual activity.
The case highlighted that there may be other reasons not to carry out the generic assessment to engage in sexual relations. For example, where perhaps there is a homosexual relationship and so the relevant information may fall out of the general formula in respect of issues such as pregnancy or if the relationship is monogamous you may be able to remove parts of the relevant information that do not apply to their specific circumstances such as sexually transmitted diseases. One would need to consider whether the relevant information is applicable as part of an assessment.
Successful appeal against controversial ruling in the Court of Protection
The Secretary of State for Justice v A Local Authority & Others [22.10.21]
The Secretary of State has been successful in their appeal against a controversial ruling made in the Court of Protection (CoP) in April this year concerning whether it would be lawful for a care worker to make arrangements for a 27-year-old autistic man with learning disabilities (C), to pay for the services of a sex worker.
Section 39 of the Sexual Offences Act 2003 (the Act) criminalises care workers who are found to cause or incite sexual activities if the person they are caring for has a mental disorder.
The case was first brought in the CoP before Mr Justice Hayden. Hayden J was asked to consider various issues, but primarily whether a care plan enabling C to contact a sex worker could be implemented without the care worker committing an offence under the Act.
Hayden J’s conclusion was that because the Act was intended to protect vulnerable adults from others, not themselves, the autonomy of adults with learning disabilities was to be respected and therefore, the care worker would not be committing an offence under the Act. The Secretary of State was granted immediate leave to appeal.
On appeal, the Secretary of State argued that Hayden J had misinterpreted s.39 of the Act and that sanctioning the use of a sex worker was contrary to public policy. The case came before The Lord Burnett of Maldon, Lord Chief Justice of England and Wales, Lady Justice King, and Lord Justice Baker.
The appeal was granted, since the Lord Chief Justice found that the words “causes or incites” in s.39 of the Act ought to carry their ordinary meaning. Therefore, if the care worker made arrangements for securing the services of a sex worker, that would put them at risk of prosecution.
This judgment has a broader impact for claims involving seriously injured claimants who seek to claim the costs of the provision of services by a sex worker as part of their claim for personal injury damages.
Related item: The “troubled waters of sex workers, care workers and mental capacity” – the Court of Appeal provides clarity
Breach of duty and material contribution
Thorley v Sandwell and West Birmingham NHS Trust (the Trust) [01.10.21]
In this case the High Court considered a number of interesting issues on breach of duty and material contribution. Whilst holding that on the basis of previous Court of Appeal reasoning that , material contribution “has no application to a case where (as here) there is indivisible injury and one tortfeasor” the court also noted it “is evidently a legal issue which is ripe for authoritative review, at least in a case where it may affect the result”.
Following a diagnosis of atrial fibrillation, the claimant was prescribed warfarin to be taken daily to reduce the risk of clotting. Due to chest pains the claimant had to undergo an coronary angiogram and to avoid the risk of bleeding from the procedure the claimant was advised by the hospital Trust to stop taking the warfarin for four days prior to the procedure. Following the day procedure the claimant was discharged and informed to wait two days before recommencing a slightly lower dosage of warfarin. The claimant recommenced warfarin as advised, and subsequently suffered an ischaemic stroke the following day.
The Trust denied that sending the claimant home without restarting warfarin after completion of the angiogram was a breach of duty, but admitted the dose should have been restarted no later than the following day, and at the previous dose.
The Trust had disclosed an internal guideline document – ‘Anticoagulation and Surgery’ – which required warfarin to be stopped for three days beforehand and restarted “as soon as patient is able to take oral fluids”. With the support of the claimant’s expert the judgment notes that it “was contended that this amounted to a Trust policy, protocol or guideline which is applicable to angiography”. The Trust contended the document did not apply to “the non-surgical procedure of an angiogram” and did not call any evidence in respect of the document.
The court was “not persuaded” that the guideline document “has any application to the procedure of angiography; nor that there is any support for that conclusion by inference from the absence of factual evidence called by the Trust on this issue”.
The court concluded no breach of duty in respect of advising when to stop and recommence warfarin; and the evidence did not support an assertion that the omission of warfarin made a material contribution to the occurrence of the claimant’s subsequent stroke.
Landmark QOCS ruling – disappointing news for defendants
Ho (Respondent) v Adelekun (Appellant) [06.10.21]
The Supreme Court has determined that defendants, in cases to which qualified one-way costs shifting (QOCS) apply, are not entitled to seek set-off of their own entitlement to costs against claimant’s costs entitlement (a “costs against costs set off”) where the defendant’s costs exceed the level of damages recovered by the claimant.
This is a disappointing judgment for insurers who may, in some cases, see the value of costs orders made in their favour depreciated to the level of damages recovered by the claimant. This decision will lead, in many cases, to alterations to litigation strategy given the more limited opportunity to recover costs. The judgment itself raises further points as to the potential approaches available when determining costs, and the same will require case by case consideration.