Healthcare Brief: latest decisions July 2021

Supreme Court ruling on scope of duty of care

Khan v Meadows [18.06.21]

On 18 June 2021, the Supreme Court unanimously dismissed Ms Meadows’ appeal and confirmed losses outside the scope of duty of a doctor’s care are not recoverable.

The Supreme Court considered (in the context of clinical negligence claims) whether the approach in South Australian Asset Management Corporation v York Montague Ltd [1997] (SAAMCO) should be followed and how that approach should be applied. The Court did not accept submissions that the scope of duty principle in SAAMCO does not apply to clinical negligence claims. For further details see our article here.

Contact: Colleen Upton

Court of Protection: best interests for reasonable force to be used to effect transfer to hospital

NHS Foundation Trust v An Expectant Mother [13.05.21]

In this case, the Court of Protection considered whether it was in the best interests of a 21-year-old expectant mother who suffered from severe agoraphobia to be transferred to hospital for a planned delivery.

Her agoraphobia meant that she lacked capacity to make decisions in relation to the location of delivery of her baby. Central to this case was “the potential difficulty of transferring this particular mother to hospital if a medical emergency arose, but she was so overcome by her agoraphobia that she would not go.”

It was held that it was in both mother and baby’s best interests for reasonable force to be used to effect transfer to hospital if necessary, even where there was no medical emergency. It was preferable that she should give birth in hospital in accordance with a care plan before going into spontaneous labour.

The judge highlighted the need to anticipate problems of this kind and the benefits of bringing a pre-emptive application. This approach “enabled a thorough and informed investigation to take place, as well as a fair and transparent hearing”. It also allowed the mother-to-be to participate in the hearing at a time when she was not in labour, pain or distress. The judge observed that the application was made on an entirely justifiable and appropriate basis.

A postscript to the judgment confirmed that the baby was delivered at home before arrangements authorised by the Court of Protection could be implemented as the mother’s labour progressed quickly after the hearing.

Contact: Jessica Fellows-Moore

Material risks involving technical decisions

Negus and Bainbridge v Guy’s and St Thomas’ NHS Foundation Trust [19.03. 21]

This case concerned an aortic valve replacement and whether the patient should have been provided with further information in respect of the valve sizes available to be inserted and possible associated treatments.

The judgment indicates there is a line to be drawn between clear choices that can be set out prior to surgery and choices made by surgeons which require professional judgement to be exercised intra-operatively. Given the number of variables involved in aortic valve replacement, it was not incumbent on the Consultant to discuss each possibility that could arise during surgery and what the patient’s preference for those possibilities were.

The extent to which patients are owed a duty to be informed of all material risks will always turn on the facts in each case.

Contact: Steven Sehmar

Court of Protection ruling: capacity, best interests and invasive surgical treatment

X NHS Foundation Trust (2)Y NHS Foundation Trust v Ms A (by her litigation friend, the Official Solicitor) [01.03. 21]

In this case the Court of Protection held that the mother’s wish for a natural birth was not in her best interests and due to an impairment or disturbance of her mind, she lacked capacity to weigh up the risks of a natural delivery against an elective caesarean section.

Contacts: Camilla Long and Uzma Malik

Stark warning on the outcome of making an exaggerated and dishonest claim

Calderdale and Huddersfield NHS Trust v Linda Metcalf [11.02.21]

The defendant (Ms Metcalf) in these contempt of court proceedings was sentenced to six months’ imprisonment, having previously had her clinical negligence claim against the Trust dismissed for fundamental dishonesty.

Ms Metcalf had pursued a clinical negligence claim against the Trust, which related to a one-day delay in diagnosis of Cauda Equina Syndrome in 2012. Liability was admitted pre-action and an early interim damages payment of £75,000 agreed before the claim proceeded on a quantum-only basis.

A Schedule of Loss totalling over £5.7 million was served, but upon the Trust obtaining surveillance evidence in 2019, it became clear that Ms Metcalf had significantly exaggerated her physical injuries. Three months before trial, she admitted lying repeatedly within her pleadings, witness statements and presentations to 13 different experts over the course of five years. Ms Metcalf agreed that her claim should be dismissed because of fundamental dishonesty and repaid the interim payment. A legitimate claim would have been in the region of £350,000.

The Trust later brought proceedings to commit Ms Metcalf for contempt of court. At the final hearing on 11 February 2021, the Honourable Mr Justice Griffiths found that the only purpose of Ms Metcalf’s dishonesty had been to inflate the damages she recovered, in effect “stealing money from the NHS”. In light of this and the number of deliberate contempts over a long period of time, it was held that “Ms Metcalf’s conduct was in the upper bracket of the scale” which carried a maximum sentence of up to two years’ imprisonment. However, the sentence was reduced in recognition of a number of mitigating factors, including Ms Metcalf’s genuine claim for which she had lost any prospect of compensation, and her admission of the lies. Ms Metcalf was sentenced to six months imprisonment, with entitlement to release after serving half of the sentence.

Contact: Charlotte Johnson

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