Healthcare Brief: latest decisions March 2017
A round up of recent court decisions raising issues relating to inquests and state detention, a case management pilot, mode of treatment remains a clinical decision and can be justified on the basis of logical analysis, patient choice versus medical paternalism and the relevance of surveillance evidence.
Spotlight on the Court of Protection
Court of Appeal delivers landmark decision on “state detention” with practical ramifications.
R Ferreira v HM Senior Coroner for Inner South London [26.01.17]
The Court of Appeal upholds HM Senior Coroner’s decision not to proceed with a full jury inquest into the death of a patient in an intensive care unit (ICU).
Pending further appeal to the Supreme Court, this is an important and welcome decision, but it is likely to cause turbulence.
Contact: Amanda Mead
It’s good to talk: court recommends case management pilot
CGD v Barts NHS Health Trust and another [19.1.17]
The court highlighted how a significant incurrence of costs can be avoided through open discussion and negotiation, as prescribed by the Court of Protection’s case management pilot.
The reference to using the case management pilot represents excellent progress. This case highlights the need for parties to ‘get round a table’ and discuss matters openly in an attempt to negotiate a way forward. This would have avoided the incurrence of significant costs by both parties and also the last costs hearing, which was unnecessary.
We hope to use the Court of Protection case management pilot in the near future and welcome any family or family’s solicitors to engage in this process.
Contact: Daniel Freeman
Mode of treatment remains a clinical decision and can be justified on the basis of logical analysis
Tracey Holdsworth v Luton & Dunstable University Hospitals NHS Foundation Trust 
The court had to consider the issue as to whether the decision to perform a right unicompartment knee replacement satisfied the Bolam test where only a minority of orthopaedic surgeons would have undertaken this procedure. Neither the expert instructed for the claimant nor the expert instructed for the trust would have offered this procedure to the claimant but the trust’s expert states that it was a reasonable step to take.
His Honour Judge Freedman found as a matter of evidence the claimant was intend upon having knee replacement surgery. He advised however that the fact a patient is insistent about receiving a certain type of treatment does not and cannot, of itself, justify such treatment being provided. The mode of treatment must always be a clinical decision based upon a clinical assessment whilst taking into account the patient’s wishes. The question was whether the decision to perform the surgery withstood logical scrutiny.
His Honour Judge Freedman was satisfied having heard the evidence that there was justification for the procedure and that a reasonable body of orthopaedic surgeons would have proceeded to offer a unicompartment knee replacement and that this would be considered to stand a reasonable prospect of success. It therefore was not Bolam negligent to perform the surgery. His Honour Judge Freedman also found the claimant had given informed consent and that the femoral component used was appropriate.
This was an unusual case in that the decision taken by the surgeon was not one which either expert would have made. The judgment confirms however that providing a decision is made logically and carefully it will be supported by the court even if there are differing medical opinions. It demonstrates the importance of clearly recording decision making and the advice given in terms of providing a justification after events have taken place.
Contact: Avinder Sidhu
Patient choice versus medical paternalism
Sebastian Webster v Burton Hospitals NHS Foundation Trust [13.02.17]
Sebastian Webster, now 14, was born with cerebral palsy at Queen's Hospital in Belvedere Road on January 7 2003.
His mother, Heather Butler, sued Burton Hospitals NHS Foundation Trust, which runs the hospital, for damages. It was agreed that his disabilities were caused by a brain injury which happened between 72 and 48 hours prior to his delivery. He had been starved of oxygen due to compression of his umbilical cord.
Ms Butler’s case was that the Consultant should have offered her the possibility of an induced labour on December 27. Had he done that, Sebastian's brain damage “would have been avoided”, the court was told.
The Trust's legal team insisted that, even had there been further scans, they would not have led to an earlier induction of delivery.
A Judge rejected Sebastian's compensation bid in November 2014 - but now that result has been reversed by the Court of Appeal.
Lord Justice Simon ruled that the Consultant should have told Ms Butler that there were "increased risks" of delaying labour beyond her due date.
And the Trust agreed that the medic “acted negligently” in failing to arrange further scans. Lord Justice Simon said the issue was what would further scans have shown and what should have happened as a result of them.
It was not a defence for the doctor to say there were other doctors who would have acted in the same way and that such a defence was not supportable when it comes to the question of the advice and consent of a patient.
Contact: Amanda Mead
Surveillance evidence requires careful assessment
Hayden v Maidstone and Tunbridge Wells NHS Trust 
The court provided guidance on the relevance of evidence, in this case surveillance evidence, in relation to the claimant’s damages claim following an accident at work.
The claimant applied for permission to rely on the evidence of a Mr Jeffrey A Simm, a video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report.
Whilst Mr Justice Lay acknowledged a degree of inconsistency between the claimant’s level of functioning and the pleaded claim, he did not consider this to amount to an attempt to mislead. He commented: “Surveillance evidence is capable of being very compelling but in less clear-cut situations requires carefully parsing and assessment.”