Medical Law in 2017: Key Case Law Developments
In 2017 the High Court and Court of Appeal of England and Wales handed down judgment in a number of important cases affecting key areas of medical law. Below is a summary of those cases of particular interest together with a recent Singapore case which was reported in the Medical Law Reports.
Each Report features a detailed headnote analysing the key issues raised in the action together with a full copy of the Court’s judgment. Many Reports include expert commentary which helps put the case in context and highlights its importance for future proceedings. Medical Law Reports is available to subscribe to at a subsidised and discounted rate for eligible firms under the Law Society of Singapore’s SmartLaw Assist scheme, which will be launched in April this year.
Emerging Case Law in Fertility Medicine
In ACB v Thomson Medical Pte Ltd SGCA 20;  Med LR 551  1 SLR 918. the appellant underwent IVF treatment using her eggs and her husband’s sperm and gave birth to a daughter (Baby P) in 2010. Baby P’s skin tone and hair colour were different from that of the appellant and her husband, and were also markedly different from those of their son. Investigations showed that the appellant’s egg had been fertilised with the sperm of an unknown male Indian donor instead of that of her husband. The appellant claimed damages for negligence against the respondents; the company which managed the clinic where her treatment was provided, the company which operated the clinic, and two embryologists involved in her treatment. She also claimed damages for breach of contract against the second respondent. The claim for upkeep costs was dismissed at a preliminary issue hearing before the Singapore Court of Appeal. The Court also dismissed the claim for loss of personal autonomy but was prepared to make an award of damages for “loss of genetic affinity”. The Court’s analysis is most unlikely to facilitate a successful attack on the settled principles that damages in a case of wrongful birth or wrongful conception of a healthy child of intended parentage are limited to general damages and the conventional Rees2Rees v Darlington Memorial Hospital NHS Trust  EWCA Civ 88;  LS Law Med 163. award. The Court expressly recognised that in such cases, there was no loss of “affinity” in the sense that they had described.3 See para 136 of judgment. The ACB v Thomson Medical Pte Ltd judgment along with all those cited in this article are included in Medical Law Reports.
More productive may be the argument that where, as in this case, and in cases of “wrongful fertilisation” more generally, the child born is physically unlike the rest of the family, the desire for “genetic affinity” and the harm to the mother’s wellbeing that results from the breach of duty, are sufficiently serious to amount to actionable damage in tort.
Private IVF treatment in the UK was the subject matter of the High Court decision in ARB v IVF Hammersmith Ltd EWHC 2438 (QB);  Med LR 1. In this case the Court was asked to consider a claim for the cost of an unwanted child born by IVF after his parents had separated and his father had withdrawn his consent to treatment. Having considered the extent of the obligations owed by the IVF clinic the father’s claim for damages in contract was dismissed because there was congruence in outcome between the contractual and tortious claims. The measure of damages was the same, the test for remoteness did not turn on any distinction appertaining to the underlying obligation, and there was no material difference between the claims for the purposes of legal policy. The Court nevertheless recognised that in the absence of a public policy bar there would have been in principle no objection in law to the claim for damages on the grounds of remoteness (although individual heads of damage might on consideration be found too remote).
Clinical Negligence/Duty of Care Issues in 2017
In Shaw v Kovac EWCA Civ 1028;  Med LR 403 the Court of Appeal dismissed the argument that a deceased’s estate should be awarded damages for “loss of personal autonomy” following a failure to provide sufficient information for “informed consent” to medical treatment. The rejection of any award for “violation” of a patient’s autonomy is perhaps a reminder of the fact that the lump sum award in Rees v Darlington Memorial Hospital for parents’ loss of opportunity to limit their family marked a break from the established principles of compensation which the Courts are not prepared to extend.
ABC v St George’s Healthcare NHS Trust  EWCA Civ 336;  Med LR 368 was a decision on a preliminary issue by the Court of Appeal as to whether healthcare providers were under a duty to disclose information to a third party who might otherwise be harmed by non-disclosure. In deciding that the issue was arguable the Court had regard to the guidance published by the General Medical Council (which supported disclosure if circumstances demanded) and recognised the opportunity for judicial decision making to extend the scope of the duty of care.
A superficial read of the decision in Darnley v Croydon Health Services NHS Trust  EWCA Civ 151;  Med LR 245 might leave the impression that healthcare receptionists do not owe a duty of care to a patient with whom they are dealing. That would be to misunderstand this decision. The nub of the claimant’s unsuccessful appeal related to the legal issues of whether his injury fell within (1) the scope of any duty of care owed by the receptionist, and (2) the range of consequences of breach of that duty for which the defendant NHS Trust assumed responsibility or was to be held responsible. In considering those issues, the Court followed the well-trodden path in Caparo Industries plc v Dickman  2 AC 605;  1 All ER 568 and Rahman v Arearose Ltd  EWCA Civ 190;  QB 351.
In FB v Princess Alexandra Hospital NHS Trust  EWCA Civ 334;  Med LR 279 the Court of Appeal again looked at the standard of care owed to patients by hospital staff. In this instance, however the Court was prepared to overturn the first instance decision and rule that the finding that there was a lower standard of care for an SHO than for a consultant when taking a patient’s clinical history in the emergency department was unsupported by evidence and could not be sustained. The likely outcome of this case is that a doctor when performing a particular task, must be ordinarily competent within his or her speciality to fulfil that task, whatever it involves. Whilst it may be that some individual doctors are more or less experienced or skilled than the ordinarily competent consultant, this is not a relevant consideration, thereby applying the basic legal principle that the Court disregards the personal attributes and experience of the defendant in determining whether or not they were negligent. The suggestion that one should seek to distinguish between “posts” within a speciality is also inappropriate.
Following the decision in Henderson v Dorset Healthcare University NHS Foundation Trust [2017 EWHC 3275 (QB);  Med LR 69, the law remains relatively clear, that the policy known as ex turpi causa operates to defeat all claims in negligence contingent on proof of commission of the criminal offence. As the law stands, if the claimant bears any personal responsibility for a homicide, however insignificant, her claim in negligence is defeated on the ground of illegality. It may be that the defence of ex turpi causa would not apply if at the time of the offence the claimant’s mental functioning had been wholly impaired, such that the complete defence of insanity under the M’Naghten rules was made out. The present law, however, draws no distinction between cases in which the claimant’s responsibility was minimal, and those in which the test of substantial impairment of mental functioning under section 2 of the Homicide Act 1957 was only just made out and the claimant’s own responsibility remained significant. This case is a good example of a first instance judge grappling with the difficult issue of identifying the limits of the true ratio of the decision of a five-judge Court as it applies to circumstances said to be materially different from those before him.
White v Philips  EWHC 386 (Ch);  Med LR 180 is of interest to medical lawyers for three reasons: it illustrates the application of the very case-specific test of capacity to give instructions for and to execute a will, it is a practical demonstration of the limits of expert medical evidence in such cases, and it offers a useful reminder of the importance of obtaining appropriate medical evidence at the right time, sometimes called “the golden rule”, a rule which could well be applied to a wider field than testamentary capacity.
In Correia v University Hospital of North Staffordshire NHS Trust  EWCA Civ 356;  Med LR 292 the Court of Appeal held that the claimant had been properly warned of risks associated with a non-negligently performed three-stage operation, and her consent had been validly obtained for that surgery. It was the operation itself that was negligently performed by omission of the third stage of nerve relocation. Unsurprisingly, the surgeon had not forewarned her of risks associated with such intra-operative negligence. In issue was whether this act of negligence had altered the fundamental nature of the operation to which she had consented, thereby vitiating her consent. The Court of Appeal held it had not. There were also wider policy considerations in play. If the claimant’s argument had succeeded it would have opened the floodgates to claims for lack of consent to any operation in which intra-operative negligence occurred. Instead in such cases a claimant only has a remedy if all of the necessary elements of the tort of negligence are satisfied, including proof that an injury has been caused by that negligence on the “but for” and material contribution tests.
End of Life Decisions Made Global Headlines In 2017
The outline facts of this case — Yates v Great Ormond Street Hospital for Children NHS Foundation Trust  EWCA Civ 410;  Med LR 4174 Serjeants’ Inn acted in this and related cases. — concerning the medical treatment of a child with a rare genetic condition were widely publicised. Charlie Gard was at the time of the Court of Appeal hearing a nine-month-old baby receiving treatment in Great Ormond Street Hospital for an inherited cellular condition which was expected to limit his life to a few months. His treating doctors sought to withdraw artificial ventilation. Charlie’s parents wanted him to travel to the USA for a treatment called nucleoside therapy. At first instance, it was found as a fact that Charlie’s parents agreed that if he were to have no treatment, his life was not worth sustaining. The Court also found that the treatment which they wanted him to have was futile, with the prospects of success effectively being zero. Charlie’s parents’ main argument in the Court of Appeal was that, in cases where parents advance a viable alternative treatment option, the Court should not apply the conventional “best interests” test, but should allow the parents’ view to prevail unless what they proposed was likely to cause the child to suffer “significant harm”. The Court of Appeal decided that the legal question of whether this test should be applied did not arise on the facts. However, before making this point, the Court had already given full consideration to the “significant harm” argument, and had rejected it, affirming the conventional and well-established principles that the welfare of the child is paramount, and that the Court does not evaluate the reasonableness of the parents’ case or introduce any other factor or filter, before deciding what is in the child’s best interests. The parents’ unsuccessful contention for the new test had been their first argument. Their second argument (namely that absent proof of “significant harm”, the application seeking to prevent another clinical team providing the therapy, and the declaration preventing it, were outside the powers of the Trust and Court; the relevant declaration had the effect of an injunction which the Court had no power to grant) was also dismissed. It was incorrect to cast the process insofar as it related to prohibiting the therapy as driven by the Trust. Rather, the Trust brought the application on conventional terms; the parents raised the issue of the therapy; the Court focused correctly on the child’s best interests and had regarded the views of Charlie’s parents as an important part of the process. This Court of Appeal judgment of 23 May 2017 represents the last full domestic judgment on the substantive arguments in the case.
R (Conway) v The Secretary of State for Justice  EWHC 2447 (Admin);  Med LR 507 saw the Court revisiting the issues surrounding assisted suicide. Mr Conway was a Motor Neurone Disease (MND) sufferer who found it increasingly difficult to breathe unaided and had mechanical assistance by way of non-invasive ventilation (NIV). It was common ground that as an adult with mental capacity, Mr Conway had an absolute right at common law to insist upon the cessation of NIV. Cessation of NIV at a time of his choosing was unacceptable to Mr Conway. He wished, when he had six months or less to live, to be allowed to seek medication from a medical professional which would allow him to end his life. However, any such assistance would be contrary to section 2 of the Suicide Act 1961, amended in 2009 (section 2), which made it a criminal offence for a person to do an act which assisted the suicide of another where that act was intended to assist suicide. Mr Conway’s application to the Court for a declaration, pursuant to section 4 of the Human Rights Act 1998, that section 2 of was incompatible with his right, under Article 8 of the European Convention on Human Rights, to respect for his private life was dismissed by the High Court. The Court’s robust, unanimous decision was that section 2 was compatible with Mr Conway’s Article 8 rights. Under helpful sub-headings, the Court set out its reasons for finding that the ban on assisted suicide had legitimate aims, noting particularly that at the heart of the right to die debate is the state’s duty to protect the sanctity of life. It also found that the ban was rationally connected to the aims it promoted which included the protection of the weak and vulnerable and the furthering of trust and confidence between doctors and their patients. Further, said the Court, there was a serious objective foundation for Parliament’s assessment that an absolute prohibition was necessary.
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| 1 SLR 918.
|Rees v Darlington Memorial Hospital NHS Trust  EWCA Civ 88;  LS Law Med 163.
|See para 136 of judgment. The ACB v Thomson Medical Pte Ltd judgment along with all those cited in this article are included in Medical Law Reports.
|Serjeants’ Inn acted in this and related cases.