Healthcare Brief: latest decisions June 2017

A round up of recent court decisions raising issues relating to wrongful birth, the costs of the deprivation of liberty regime, the standard of care required of an A&E senior house officer, the liability for an A&E receptionist’s alleged negligence and the relationship between costs budgeting and detailed assessments.

Wrongful birth: duty of care owed

ABC v (1) St George's Healthcare NHS Trust and others [16.05.17]

The claimant brought a claim for negligence resulting from the failure to disclose her father’s diagnosis of Huntington’s disease whilst pregnant. A child of a sufferer has an accepted risk of 50% of contacting the disease. If informed of her father’s diagnosis the claimant would have sought to be tested for the disease and would have terminated the pregnancy, if her own diagnosis was confirmed. It was known all along that the claimant would be a single mother with sole responsibility for the child.

The claimant was accidently informed of her father’s condition four months after giving birth to her daughter. Genetic testing confirmed she was suffering from the disease. The claimant argued that the circumstances of her case meant she had a vital interest in her father’s diagnosis in light of her pregnancy. The Court of Appeal agreed it was reasonable to impose a duty of care on the defendant Trusts to disclose the father’s condition (against his express wishes). The appeal was successful and the case remitted for trial – to include a ‘wrongful birth’ claim.

Contact: David Froome

Deprivation of liberty regime: no breach of new burdens doctrine 

R (Liverpool City Council) v The Secretary of State for Health [02.05.17]

Four English councils sought to challenge the government’s alleged failure to meet the costs of complying with the ‘deprivation of liberty’ regime - established in Cheshire West [2014]. They argued the failure had created an unacceptable risk of illegality and was in breach of the ‘new burdens doctrine’ (which requires central government to assess and properly fund all new burdens placed on local authorities).

The High Court agreed that the costs of complying with the regime were substantial. However, it held that the councils had not established they were unable to meet the costs of complying with their duties. The Court acknowledged that funds might have to be diverted from other parts of the councils’ budgets, but proper funding could still be achieved. The risk of illegality claim failed and it was held that there had been no breach of the new burdens doctrine.

Contact: Rob Tobin

Related item: Departing from Cheshire West: Court of Appeal delivers landmark decision on “state detention” with practical ramifications

Standard of care: patient history-taking

FB v Princess Alexandra Hospital NHS Trust [12.05.17]

The Court of Appeal considered whether there was a different standard of care in patient history-taking for an A&E senior house officer (SHO) compared to that of a more senior doctor. The first instance judge found that only a more senior doctor would have asked what prompted the emergency visit and noticed the appellant's symptoms during the examination.

The Court of Appeal disagreed. It held that there was often a correlation between the task’s complexity and the doctor’s seniority, but the standard of competence required was the same no matter who performed the task. Patient history taking was a basic skill that all hospital doctors were expected to possess and, therefore, there was no difference in the requisite standard of care.

Contact: Daniel Freeman

Duty of care: A&E receptionist

Michael Darnley v Croydon Health Services NHS Trust [23.03.2017]

The Court of Appeal considered whether there was a duty on the A&E receptionist to give full and correct advice. It was held, by a majority verdict, that an NHS Trust should not be liable for the receptionist’s alleged negligence. The Court of Appeal held that it was not fair, just or reasonable for a receptionist to provide accurate information about A&E waiting times, the provision of which was deemed to be a courtesy even when, as in this instance, the claimant presented with a head injury.

Full case review: NHS Trust receives warm reception from Court of Appeal

Contact: Ed Glasgow, Lily Manning

Costs budgeting: good reason defined

Harrison v University Hospitals Coventry & Warwickshire NHS Trust [21.06.17]

The Court of Appeal was asked to consider the relationship between costs budgeting and court ordered detailed assessments. At detailed assessment, Master Whalan held that he was precluded from performing a conventional assessment of the bill – absent any good reason – as an approved budget existed. The Court of Appeal was asked to look at the applicability of ‘good reason’ in relation to both incurred costs and estimated costs. It held that incurred costs should be assessed in the usual way without the need to demonstrate good reason, whereas good reason must be demonstrated before any departure from the estimated costs will be considered. This decision demonstrates the importance accurately dealing with the issue of costs at the costs management conference stage of proceedings.

Full case review: Costs budgets: Court of Appeal rules on the relationship between budgets and detailed assessment

Contact: Martin Cox, Richard Platts

Read other items in the Healthcare Brief - June 2017