Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Dementia risk and provisional damages. A recent decision

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-vonberg/" target="_blank" rel="noreferrer noopener">Tom Vonberg</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision of Mrs Justice Hill in <a href="https://www.bailii.org/ew/cases/EWHC/QB/2022/924.pdf" target="_blank" rel="noreferrer noopener"><em>Mathieu v Hinds and Aviva Plc</em></a> [2022] EWHC 924 (QB) addressed a number of difficult quantum matters which are common to brain injury litigation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was not a case in which the parties had managed a great deal to narrow the issues – at trial the Claimant’s pleaded claim was in excess of £33 million whereas the counter schedule admitted £49,500. In the event, the Judge awarded a little over £3 million. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was in the context of a Claimant who had been a 29-year-old studying for a degree in Fine Art when he was, as a pedestrian, struck by the Defendant’s moped and for which liability was admitted. His severe head injury encompassed subarachnoid haemorrhage, subdural haemorrhage and frontal lobe contusions. The Claimant thereafter suffered the typical panoply of neurocognitive issues and which were broadly agreed by the neuropsychological experts for each side.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unsurprisingly, the substance of the quantum disagreement was reflected in the approach to the future loss of earnings claim. Post-accident the Claimant had developed a successful artistic career such that the Judge found as fact that he had the potential to command six figure sums per painting sold. The loss of earnings claim was essentially based on the shortfall caused by his loss of productivity (in terms of paintings created) consequent upon his neurological symptoms.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In arriving at a lifetime multiplicand to reflect future lost sales, the Judge admirably navigated the witness evidence of fellow artists, gallery owners and art experts rather than succumb to the Defendant’s submission that there were so many uncertainties surrounding earnings potential that the only appropriate award was one made pursuant to <em>Blamire v South Cumbria Health Authority</em> [1993] PIQR Q1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The provisional damages claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the real interest of the decision to this writer was the Judge’s approach to the Claimant’s provisional damages claim and specifically that in relation to the claimed elevated risk of dementia as a result of the traumatic brain injury.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whereas the elevated epilepsy risk consequent upon TBI is often uncontroversial in litigation, and indeed agreed upon by neurological experts, the same cannot be said of dementia and the causal link with a TBI. Nevertheless, it has become more or less <em>de rigueur </em>for Claimant neurological evidence to identify that the risk exists hand in glove with the established risk of epilepsy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the practical issues for Claimant advisors is the degree, if any, to which the existence of an apparent dementia risk should be weighed in the balance when it comes to settlement and / or a claim for provisional damages. Nor has the dearth of reported decisions on the causation issues made that task any easier.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Mathieu </em>is therefore a welcome and thorough first instance decision of the High Court at which well respected legal teams set out the competing arguments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To recap, Section 32A of the Senior Courts Act 1981 underpins the Court’s jurisdiction to make a provisional damages award where:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>There is proved or admitted to be a chance that some definite or indefinite time in the future the injured person will, as a result of the act of omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practitioners are well aware that the Claimant must meet a three-stage test if that jurisdiction is to be exercised – as first set out in <em>Wilson v Ministry of Defence</em> [1991] ICR 595 and subsequently approved by the Court of Appeal in <em>Curi v Colina</em> [1998] EWCA Civ 1326. This requires that the Claimant establish:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>That there is a (more than fanciful) chance he / she will develop the disease or deterioration in question;</li><li>That the disease or deterioration in question is serious; and</li><li>That the Court should exercise its discretion to make a provisional damages award.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>There is a welter of case law on all three issues surrounding the measure of chance, the meaning of <em>“serious”</em> and the circumstances in which the Court should exercise its discretion as opposed to making a once and for all award of damages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the pressing issue in claims for provisional damages in which the trigger event is dementia is that relating to proof of medical causation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the chance of developing the condition need only be small, the Claimant must also prove on the balance of probabilities the causal link with traumatic brain injury. To this end, while the dementia risk is now routinely advanced in such cases, to the writer’s knowledge there has not, until this case of <em>Mathieu</em>, been a fully reasoned judgment on causation as it relates to TBI and dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the Claimant’s case, the parties’ respective neurology experts who were Dr Richard Orrell for the Claimant and Dr Oliver Foster for the Defendant readily agreed in the joint statement that an elevated epilepsy risk existed of between 5 to 8%. However, their co-operation did not extend to the dementia issue.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The academic papers cited by Dr Orrell drove him to the view that the Claimant’s risk of developing dementia caused by the traumatic brain injury was substantially higher than the risk to the background uninjured population – potentially 2 to 4 times higher depending on the age the condition manifested. The papers and studies relied upon were those commonly cited by expert neurologists and included Agrawal and Ford (July 2018)<a id="_ftnref1" href="#_ftn1"><sup>1</sup></a>, Barnes et al (May 2018)<a id="_ftnref2" href="#_ftn2"><sup>2</sup></a>,&nbsp; Fann et al<a id="_ftnref3" href="#_ftn3"><sup>3</sup></a> and Nordstrom and Nordstrom<a id="_ftnref4" href="#_ftn4"><sup>4</sup></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Interestingly, in addition to those familiar studies, Dr Orrell also cited a recent 2019 paper by Professor David Sharp and Dr Neil Graham<a id="_ftnref5" href="#_ftn5"><sup>5</sup></a> - two well respected and academically active neurologists at Imperial College London. Their paper claims an established link between TBI and <em>“progressive neurodegeneration and dementia”</em> and that the <em>“all-cause dementia risk is increased by around 1.5 times”</em> in cases of TBI. As was evident from her Judgement, this paper piqued the Judge’s interest but ultimately, absent the authors being called as witnesses in the trial, she did not find it tilted the balance in favour of the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other hand, the broad thrust of Dr Foster’s position for the Defendant was that the literature was a <em>“mess”</em> and whilst he accepted that there were studies to suggest an association between TBI and dementia, he contended that this did not necessarily imply medical causation. Dr Foster also highlighted some of the criticisms regularly made of the research to date which contended that there is a causal link - including criticism of retrospective analysis, observer bias and, fundamentally, the basis on which dementia is said to have been diagnosed in patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Judge’s decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These were the arguments that found favour with Mrs Justice Hill. With reference to a meta-analysis of 68 research papers by Hicks et al<a id="_ftnref6" href="#_ftn6"><sup>6</sup></a> which was published relatively recently in December 2019 the Judge identified in fairly frank terms, at paragraph 334, that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>The Hicks teams’ conclusions surely cast significant count on those previous studies which found an association between single TBI and dementia. This is not to resort to “nihilism” as Mr Huckle said Dr Foster was doing, but to recognise that the most recent meta-analysis is itself leaving open the question of whether there is a sound scientific basis for the assertion that a single TBI can cause dementia.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And with that, the Judge declined to find that <em>“on the current state of the science”</em>, the Claimant had established on the balance of probabilities that there was a more than fanciful chance that his brain injury would lead to him developing dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant in <em>Mathieu</em> may well have lost on this issue, but what is interesting from a medico - legal perspective is that the science is in a state of development such that it is probably just a matter of time before a different Claimant runs this argument again and likely with a better quality of medical literature available to them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her Judgment, paragraph 333, Justice Mills highlighted that the Hicks team had expressed their hope that more robust studies in the future would <em>“help the research community in finally answering the question as to whether a TBI does indeed increase the risk of [Alzheimer disease]”</em>. Likewise the Judge speculated whether the authors of the Graham and Sharp paper were likely to take issue with the findings in Hicks as to the inconclusive nature of the causation evidence. All of which is to underscore the present uncertainty in the medical community and, therefore, amongst injury lawyers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In truth, when faced with what even Dr Orrell accepted was a wide range of opinion on the issue, one can see why the Judge approached this aspect of the claim cautiously and found that the causal link was not established for the purpose of Section 32A.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following this decision, in view of the literature as it stands, it would undoubtedly be a brave Claimant team to run a provisional damages argument based on dementia risk alone. But Defendants will not rest easy. This is far from a settled debate.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn1" href="#_ftnref1"><em><strong>1</strong></em></a><em> - Agrawal and Ford, Trouble Ahead, PI Focus, July 2018, pp.10-14</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn2" href="#_ftnref2"><em><strong>2</strong></em></a><em> - Barnes et al, Association of Mild Traumatic Brain Injury with and Without Loss of Consciousness With Dementia in US Military Veterans, JAMA Neurol 2018: 75(9): 1055-1061</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn3" href="#_ftnref3"><em><strong>3</strong></em></a><em> - Fann et al, Long-term risk of dementia among people with traumatic brain injury in Denmark: a population-based observational cohort study, Lancet Psychiatry 2018; 5: 424-31</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn4" href="#_ftnref4"><em><strong>4</strong></em></a><em> - Nordstrom and Nordstrom, Traumatic brain injury and the risk of dementia diagnosis: A nationwide cohort study, PLoS Med 15(1): e1002496</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn5" href="#_ftnref5"><em><strong>5</strong></em></a><em> - Graham and Sharp, Understanding neurodegeneration after traumatic brain injury: from mechanisms to clinical trials in dementia, Journal of Neurology, Neurosurgery and Psychiatry 2019; 90: 1221-1233</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn6" href="#_ftnref6"><em><strong>6</strong></em></a><em> - Hicks et al, Traumatic Brain Injury as a Risk Factor for Dementia and Alzheimer Disease: Critical Review of Study Methodologies, Journal of Neurotrauma 36: 3191-3219 9December 1, 2019)</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Tom has significant experience of brain injury litigation. He has acted in many cases of traumatic and acquired injury in both the personal injury and clinical negligence context. Tom has an interest in the medical issues which arise in these types of claim and he has appeared at trial in the High Court where the arguments have included the Claimant’s entitlement to claim provisional damages.</p> <!-- /wp:paragraph -->

Informed Consent Post Montgomery – &#8220;More than a signature on a form&#8221;

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unbelievably, it is now almost seven years since the Supreme Court revolutionised the legal landscape in respect of informed consent with its seminal judgment in <em>Montgomery v Lanarkshire Health Board </em>[ 2015 ] UKSC 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test of materiality was born.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;A doctor was now <em>“ under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments “. The test of materiality was described as </em>“ <em>whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It has been said that the decision encapsulated patient choice replacing the previous archaic approach of medical paternalism.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Seven Year post - A Gentle Reminder</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In assessing materiality, the Supreme Court in <em>Montgomery </em>gave the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>The assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors in addition to its magnitude : the nature of the risk , its effect on the patient’s life , the importance to the patient of the benefits sought by the treatment , the alternatives available , and the risks involved in the alternatives. It is bespoke like a Saville Row suit ; and</li><li>The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands all the matters involved. The information provided is to be comprehensible and is not fulfilled by bombarding with technical information and/or copious brochures/literature</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Practicalities and Realities</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Duce v Worcestershire Acute Hospitals NHS Trust</em> [ 2018 ] EWCA Civ 1307, Hamblem LJ gave practical guidance from the Court of Appeal regarding the nature and extent of the duty that was involved in <em>Montgomery </em>informed consent. It is a twofold test and is succinctly set out by Hamblem LJ at paragraph 33 of the judgment as :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li><em>“ what risks associated with an operation were or should have been known to the medical professional in question . This is a matter falling within the expertise of the medical professionals ; and</em></li><li><em>Whether the patient should have been told about such risks by reference to whether they were material. This is a matter for the Court to determine. The issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone “.</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Accordingly, on a case by case basis, the medical experts instructed are to deal with the risks that that should have been known or ought to have been known by the medical professional in question ( and in so doing this limb seemingly retains homage to Bolam ). In the Duce case, Hamblem LJ specified at Paragraph 42 of the judgment that whether gynaecologists were or should have been aware of the relevant risks at issue <em>“ is a matter for expert evidence”. </em>Thereafter, whether those risks should have been communicated to the patient by reference to whether they were material is a question for the court to determine.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test is replicated at Paragraph 12 of the judgment of Yip J in the subsequent case of <em>Hazel Kennedy v Dr Jonathan Frankel</em> [ 2019 ] EWHC 106 ( QB ). This is a sorry case in that the Defendant doctor had provided his diagnosis and treatment gratuitously, but it did not absolve him from his duties in respect of informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hamblem LJ repeated at Paragraph 35 of the Duce judgment , those factors relevant to determining materiality that were previously elucidated by the Supreme Court in Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Alternative treatment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Determination of materiality brings with it a need to inform not only of the risk involved in the treatment but also “ <em>any reasonable or variant treatments “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Bailey v George Elliott Hospital</em> [ 2017 ] EWHC 3398 , HHJ Worster sitting as a Deputy High Court Judge, considered what test should be applied as to whether an alternative treatment was “ reasonable “.&nbsp; He set out the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>What is a reasonable treatment option must depend upon the patient, their treatment and their prognosis. In essence, all the circumstances ;</li><li>An alternative treatment option must be within the knowledge of a reasonably competent clinician as at the relevant time, and in so doing, satisfy Bolam ;</li><li>The alternative treatment must be an accepted practice at the relevant time ; and</li><li>The alternative treatment must be an “ appropriate “ treatment and not just a “ possible “ one.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The case of <em>Mills v Oxford University Hospitals NHS Trust</em> [ 2019 ] EWHC 936 ( QB ) highlights the need to advise as to alternative treatments in addition to the risk involved in the treatment proposed. The surgeon concerned failed to advise that the procedure to be followed was “ new “ and that there was an alternative available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the context of alternative treatment, the case of <em>Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust </em>[ 2021 ] EWHC 1913 ( QB ) considered whether it was reasonable to not offer alternative treatment. In this matter, the clinician, a neurosurgeon offered further remedial spinal surgery and did not propose the alternatives of pain medication or nerve blocks. They had either not worked in the past, or would have had a very limited beneficial effect for a short duration of time. HHJ Blair QC approached the matter through the Bolam prism finding that <em>&nbsp;“ I consider that a responsible, competent, and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion …. “</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A failure to provide informed consent still brings with it the need to establish that the failure was causative. It is not a presumptive sequitur. This is best exemplified in the case of <em>Diamond v Royal Devon and Exeter NHS Foundation Trust</em> [ 2019 ] EWCA Civ 585. The Claimant had had an abdominal hernia repaired using surgical mesh, but was not advised of the alternative of a suture repair. At first instance, HHJ Freedman held that the Claimant had not been given the appropriate information required for informed consent but that had she been so informed she would have proceeded with the mesh repair which in fact took place. The Court of Appeal approved the trial judge’s approach adopted to the question of factual causation. The court re-iterated that the but for test applies to causation in informed consent cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A recent exposition of the consideration given by a trial judge as to the facts to establish causation ( in which causation was established ) is usefully illustrated in the judgment of Stacey J in <em>Betty Plant ( by her son and Litigation Friend , Rodney Winchester ) v Mr Ahmed El-Amir and London Eye Hospital Limited</em> [ 2020 ] EWHC 2902 ( QB ).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before leaving causation, it is worth noting that at first instance in the <em>Diamond </em>case, those acting for the claimant sought a free standing right to damages to compensate for the invasion of the right to personal autonomy/choice. It failed. HHJ Freedman determined that a <em>“ mere failure to warn of a risk , without more “ </em>&nbsp;does not give rise to a free standing claim in damages. That aspect was not pursued before the Court of Appeal. The grounding of any claim in this respect is unlikely to find a renaissance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contemporaneous Evidence</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Contemporaneous evidence is often the deal breaker in informed cases. Such cases generally tend to turn on a dispute of facts in respect of what was said in the consenting process. Accordingly, the contemporaneous medical notes are a must review in the evidential framework of consent, particularly given that the Montgomery decision recognises that each case is bespoke in its considerations. An absence of contemporaneous evidence to establish that informed consent was obtained is “ fraught with risks “. In the case of <em>Malik v St George’s University Hospital NHS Foundation Trust</em> [ 2021 ] EWHC 1913 ( QB )<em>, </em>the clinician concerned did not keep handwritten notes or typed notes of the consent consultation. HHJ Blair QC commented that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I was taken aback by his practice of simply dictating a letter to his patient’s GP after an outpatient clinic appointment to relay the details of his patient’s current symptoms, recording his clinical assessment , giving his opinion as to appropriate treatment ( s ) but omitting to state what advice has been given about the risks and benefits of the avenue ( s ) open to the patient. This is a practice which it seems to me is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A common and sensible approach often seen by clinicians nowadays following Montgomery, is to keep a detailed set of medical notes of the informed consent process, followed by a letter to the claimant and cc’d to the claimant’s GP setting out precisely what was discussed in the informed consent consultation, focusing on treatment options, risks and alternatives. Such an approach goes a long way evidentially to negate a finding of no valid consent having been obtained.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Montgomery Consequences</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A study conducted at Queen Mary University of London : <em>“ the effect of the Montgomery judgment on settled claims against the NHS due to failure to inform before giving consent to treatment “ </em>published in March, 2020 ( by DS Wald, JP Bestwick , P Kelly in the Quarterly Journal of Medicine , DOI : HCAA082 ), gives a fascinating insight into the practical effect of the Montgomery decision in so far as claims initiated as against the NHS concerning a failure to provide informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The research established that while the rate of increase of other clinical negligence claims has remained steady, cases relating to consent have risen four times as fast since the Montgomery decision in March, 2015, and where failure to inform was added as a contributory claim, the rise was nearly ten-fold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;Data established that as between 2005 and 2019 the NHS settled 70,000 cases of which 2,300 were linked to a failure to inform ( either primary or secondary ) with a total value of nearly £400 million. Between 2011 and 2015 , costs for settling informed consent cases rose from £25 million to £28 million per annum. Thereafter, from 2015 ( post Montgomery ) to 2019 costs rose to £62 million per annum. The rise was purely due to the increase in the numbers of claims,as the cost per claim remained steady. The study found that lawyers’ fees accounted for about 40 per cent ( £155 million ) of costs paid by the NHS in settled claims due to a failure to inform.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Professor Wald remarked that <em>“ claims involving failure to inform are normally invisible in the overall numbers of negligence claims , but the rise we have identified is striking and shows no signs of stopping. The data support concerns that lawyers are adding consent-related claims to other allegations which on their own may not be successful in court. The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill “.</em> Professor Wald’s study is symbolic evidence of the growth in informed cases being brought post Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the medical perspective, some five and a half years post the Montgomery decision, the GMC issued new guidance to doctors entitled “ Decision Making and Consent “. It was dated 30<sup>th</sup> September, 2020, and came into practical effect on 9<sup>th</sup> November, 2020. It replaced the GMC guidance on consent last issued in 2008. The guidance focuses on “ <em>the importance of meaningful dialogue , personalised communication and potential benefits and harms , and how doctors can support patients to make decisions with them about treatment and care “. </em>At its core are <em>“ the </em>seven principles of decision making and consent “ , and Lawrentian in their wisdom . The seven principles find their genesis and meaning in the Montgomery judgment. At the heart of the new guidance is the concept of meaningful dialogue. The new guidance translates the Montgomery decision into practical guidance for medical professionals. A central tenet is the keeping of contemporaneous medical notes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The present vista</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is clear as per the research by Professor Wald and his co-authors that the Montgomery decision has seen a rise in informed consent cases per se, or in tandem with substantive allegations of negligence. It has had a profound effect on informed consent not only from a legal but also a medical viewpoint. The decision from the perceived ivory tower of the Supreme Court has resonated throughout the day to day decisions on consent made in hospitals and GP surgeries nationwide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The crux of what represents informed consent post Montgomery is probably best summed up by the guidance given by the <em>Royal College of Physicians and Surgeons of Glasgow</em>, and which states the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ Despite how it can often feel in the middle of a busy clinic, or at the start of a full theatre list, consent is more than obtaining a signature on a piece of paper. It is process that is part of patient-centred care and begins with finding out what matters to the patient, identifying what options are reasonable – including the option of no treatment – and helping the patient decide which option suits them best.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The decision the patient makes may not be the one you would have made but, if the patient has been kept at the centre of the process, it should be the right one for the individual patient at that time. When the moment comes to sign the consent form if a patient has been fully involved in the process and enabled to weigh up the different options and their benefits and risks – risks that must be transparently presented – then truly informed consent will have been given “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The precis is simple, post Montgomery consent is “ a <em>process not a signature on a form</em>“.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jonathan Godfrey is a specialist clinical negligence barrister.</p> <!-- /wp:paragraph -->

The Ockenden Inquiry into the failures in maternity care at the Shrewsbury and Telford Hospital NHS Trust: where do we go from here?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The final report of the independent review of maternity services at the Shrewsbury and Telford Hospital NHS Trust, led by Donna Ockenden, was published on 30 March 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The independent review commenced in the summer of 2017 with the remit to examine 23 cases of concern. The review was however expanded and considered the maternity care of 1,486 families, the majority of which were patients at the Trust between the years 2000 and 2019.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report investigated all aspects of obstetric care, including cases involving maternal deaths, stillbirths, neonatal death, hypoxic ischaemic encephalopathy, maternal morbidity and cerebral palsy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The report</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The findings of the report were best summarised by Chair of the review, Donna Ockenden, who stated that <em>‘the reasons for these failures are clear. There were not enough staff, there was a lack of ongoing training, there was a lack of effective investigation and governance at the Trust and a culture of not listening to the families involved.’.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notable findings were:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>There was a ‘<em>concerning and repeated culture’ </em>at the Trust of not declaring adverse outcomes. It was notable that when reviewing stillbirth and neonatal deaths between 2011 and 2019, 40% of still births and 43% of neonatal deaths which considered by the review team did not have a Trust investigation. Indeed, the review team identified cases where similar and continuing errors in practice had occurred over a prolonged period. A central criticism of the report is that the failure to investigate led to missed opportunities to learn, improve and prevent future incidents.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>When investigations were undertaken by the Trust, they were of poor quality and the subsequent complaint responses lacked <em>‘transparency and honesty’</em>, especially with regards to clinical care.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>There was a constant change over the period to the Trust’s executive team and board. This led to a failure in oversight and an inability to deliver service change and improvement.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>As recent as March 2022, staff reported to the investigating team that they felt unsupported and were encouragement not to escalate any concerns with regard to patient safety.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>There was poor provision of medical staffing which contributed to delays and led to poor maternity outcomes. It was noted that there was a high reliance on the locum medical workforce without documented appropriate supervision.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The recommendations</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report makes 15 recommendations for immediate action to drive forward improvements in maternity services. The focus of these recommendations is on:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Staffing levels and in particular the need for Trusts to invest in recruitment and retention to alleviate pressures on an already depleted workforce.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>A well-trained workforce and the need for protected time to allocated to staff training.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Robust investigation into incidents and the lessons learnt to be the basis of a multidisciplinary training plan. Any change from clinical practice identified from an incident investigation must be evidenced by six months after an incident has occurred.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Importantly, the report also reinforces the need for clinicians and Trusts to listen to patients with regard to their care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The report is a damming and distressing read. It is hoped that the outcome of the report has provided the families with a voice and some resolution that they have now been listened to. Ms Ockenden is clear that the Trust’s maternity services <em>‘failed both families across Shropshire and sometimes their own staff over a prolonged period of time’</em>. Sadly, the findings raised by the report may not be unique to Shrewsbury and Telford Hospital NHS Trust.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The 15 recommendations for immediate action are intended to have implications for maternity services across the NHS. The report comes at a time when the NHS is already under immense pressure and both resources and staff are depleted due to covid-19. The concern will therefore be as to whether the recommendations, particularly in relation to staffing issues, can realistically be implemented. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A key area of the recommendations is the importance of robust and transparent internal investigations. This is a reminder of what should be considered best practice in any event and in accords with the duty of candour.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From a clinical negligence perspective, a robust internal investigation may be useful in clarifying failures of care. It is therefore essential for both Claimant and Defendant lawyers that an investigation is obtained at an early stage in proceedings and is shared with the medical experts. Furthermore, a thorough investigation and open approach at an early stage may lead to better communication with the patient and a timely resolution of failures in care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> is a specialist Clinical Negligence barrister. She has a special interest in claims arising out of obstetric and gynaecology care and is able to be understanding with clients &nbsp;on sensitive issues which arise in these types of cases.</p> <!-- /wp:paragraph -->

<em>Crompton v Meadowcroft </em>[2021] EW Misc 20

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Bharat&nbsp;Jangra</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pupil barrister Bharat&nbsp;Jangra examines the decision of Deputy District Judge Ayers in the case of <em>Crompton v Meadowcroft</em> [2021] EW Misc 20 regarding the exceptionality test under CPR 45.29J and the fixed costs regime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This claim arose following an RTA on 7 January 2017. The claim was entered into the portal on 9 January 2017, and exited 15 days later. Liability was admitted on 8 March 2017.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Proceedings were issued in early 2020, in July 2020 the Claimants agreed to the Defendant’s settlement offer. However, whilst settlement negotiations were ongoing the court had sent out directions questionnaires, which were completed and filed with the court. On 10 September 2020, the court allocated this matter to the multi-track.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue before the Court was whether the Claimant’s solicitors were limited to the fixed costs regime or whether they would be able to obtain their costs on the standard basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Parties’ Submissions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR45.29B provides the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, and for as long as the case is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) the fixed costs in rule 45.29C;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) disbursements in accordance with rule 45.29I.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The phrase <em>“and for as long as the case is not allocated to the multi-track”</em> being added following the decision in <em>Qader v Esure Services Limited</em> [2016] EWCA Civ 1109.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Defendant’s contention was that as this case had been issued in the portal and had settled prior to allocation to the multi-track, the fixed costs regime should therefore apply. Here it may have been <em>“…</em><em>the case that the claimant’s representatives carried out an amount of work that was greater than will be properly reimbursed under the fixed costs regime, but they have to take that on the chin because that is the nature of the scheme</em><em>…” </em>(para. 9)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the Claimant contended that the costs in this case should not be restricted to the fixed costs regime on the basis that the case was ‘exceptional’ further to CPR45.29J, which states:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(2) If the court considers such a claim to be appropriate, it may—</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(a) summarily assess the costs; or</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) make an order for the costs to be subject to detailed assessment….”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant submitted that this was not a straightforward case and met the exceptional circumstances, a high bar as per <em>Ferri v Gill</em> [2019] EWHC 952 (QB), due to the following:</p> <!-- /wp:paragraph --> <!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:list --> <ul><li>The number of experts involved;</li><li>Extensive medical disclosure;</li><li>The Claimant’s solicitors had to consider that the Claimant may suffer disablement as a result of her injuries;</li><li>Reference had to be made to the Ogden tables to calculate future losses; and</li><li>The agreed settlement figure was outside the fast-track limit.</li></ul> <!-- /wp:list --></div> <!-- /wp:group --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In these circumstances, the Court did consider that the exceptionality bar had been met and <em>“</em><em>that the work required by those representing the claimant was significantly greater than might have been anticipated … I&nbsp;do deem it appropriate to allow the claimant to depart from the fixed costs regime so as to be properly reimbursed in respect of the work done and the costs incurred on their client’s behalf.” </em>(para. 13)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><span style="text-decoration: underline;"><a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/" target="_blank" rel="noreferrer noopener">Bharat&nbsp;Jangra</a></span> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family&nbsp;Team&nbsp;or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Interested in applying for Pupillage at Parklane Plowden?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>More information on available at <a href="https://www.parklaneplowden.co.uk/pupillages/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">www.parklaneplowden.co.uk/pupillages</span></a></p> <!-- /wp:paragraph -->

<em>Celine Martin v Salford Royal NHS Foundation Trust </em>: the question of double recovery in care claims when there is a pre-existing state funded care package

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The central issue in this assessment of damages case was whether the provision of state-funded care was a sufficient reason to refuse to award future care costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a result of the Defendant’s negligence, the Claimant had suffered physical injuries and a brain injury that had resulted in severe neurological impairment. The Claimant also had a pre-existing diagnosis of Emotionally Unstable Personality Disorder and paranoid schizophrenia which had led to an extensive psychiatric history.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant’s care requirements could be separated into her mental health needs (which the Defendant was not responsible for) and her physical needs (which were as a result of the negligence). The Claimant was in receipt of a package of care, funded through s.117 Mental Health Act 1983, which supported both her mental health and physical needs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Quantum</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although there were several quantum issues, the most interesting was in respect of the Claimant’s future care package.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought a claim for a privately funded care package, which would meet both her mental health and physical needs. The Defendant contended that as the Claimant would continue to receive s.117 funded care, which also covered her physical needs, an award for future care would result in double recovery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Judge Bird considered whether the Claimant’s s.117 care was sufficient to put her in the position she would have been in had the negligence not occurred. He noted that the Claimant had a good relationship with carers and that she was happy with the care provided. The Judge, however, applied weight to the evidence that she had also requested a more extensive package of care at home. Judge Bird accepted the Claimant’s evidence that she wanted <em>‘more support than the package provides her with’</em> and concluded that the s.117 care package was not sufficient to put her in the position she would have been in but for the negligence. He therefore found that she was entitled to an award for care for the entirety of her expected lifetime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With regard to the Defendant’s argument in respect of double recovery, Judge Bird commented that <em>‘I am satisfied that any possibility that Miss Martin might continue to take advantage of section 117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Capacity</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was an issue as to whether the Claimant had capacity to manage and control any money awarded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was accepted by all parties that the Claimant had an impairment of the mind or brain. Judge Bird preferred the expert opinion who had assessed the Claimant in a ‘<em>real life setting’</em> rather than a <em>‘controlled clinical setting’</em>. In Judge Bird’s opinion, this allowed the expert to see the Claimant <em>‘balance the demands on her time, recall details, juggle facts and make decisions’ </em>and was preferrable to psychometric testing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge accepted the Claimant was vulnerable, he found however that this was due to her personality disorder rather than her brain injury. The Judge applied substantial weight to the Claimant’s father’s evidence that his daughter had sought his advice regarding lending £10,000. In the Judge’s opinion, this showed that she had retained information (as she had been able to relay it to her father), that she had insight into her vulnerability (as she had sought her father’s advice) and that she was then capable of accepting and acting on that advice. &nbsp;The Judge therefore concluded the Claimant had capacity and thus was not entitled to Court of Protection and Deputy costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The adequacy of the state funded care is crucial to the assessment of double recovery. In many cases, state funded care is unlikely to be sufficient to place the Claimant in the position they would have been but for the negligence, especially if there is a requirement for expensive care costs such as overnight care.&nbsp; Where the state funded care is not adequate, it seems that double recovery will not be a barrier for a claim for a more extensive care package even if there is an overlap in the care provided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also a useful reminder of the evidence required in capacity cases. Significant weight is likely to be placed on an assessment which follows a pragmatic rather than theoretical approach to the Claimant’s ability to understand, retain and weigh up information.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong> </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Anna Datta</span></a>, specialises in Clinical Negligence and Court of Protection work and has experience in cases where there are an overlap in these two areas. </p> <!-- /wp:paragraph -->

Covid-19 Vaccinations for Looked After Children: C (Looked After Child) (Covid-19 Vaccination)[2021] EWHC 2993 (Fam)

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C, a boy almost 13 years old, is a looked after child following the making of a care order in 2015. C wishes to be vaccinated with the winter flu and Covid-19 vaccines. On 12 September 2021 it was announced that Covid-19 vaccination would be offered to 12-15 year old children, and the winter flu vaccine for school years 7-11 was added to the flu vaccine programme on 13 October 2021. C informed his Mother at supervised contact on 22 September 2021 that he wished to be vaccinated for Covid-19, and confirmed this to his social worker the next day. The LA and CG considered it in C’s best interests, with C’s Father supporting C’s decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>C’s Mother was strongly opposed to him being vaccinated and had informed CSC of her opposition to the Covid-19 vaccine on 13 September 2021. She wrote to the LA on 23 September 2021 and enclosed a signed “Vaccine Refusal Declaration”. The Mother’s case remained that she wanted compelling evidence that the vaccines were both safe and effective for C. She did not accept that the national programmes were based on sound evidence, and she did not accept that either vaccine would be effective in protecting C or other children. The Mother also stated she would hold the court responsible if C suffered an adverse reaction, whilst acknowledging that he had no known health conditions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The LA sought confirmation from the High Court that it is authorised to exercise PR and consent to vaccinations under s33 Children Act 1989. The LA’s application for a declaration under the inherent jurisdiction of the High Court was issued on 25 October 2021. The case was brought because of: (i) the Mother’s implacable opposition, (ii) the point on these specific vaccinations not having yet been tested in Court, and (iii) for the court to exercise its inherent jurisdiction to declare it in C’s best interests to have the vaccinations if the LA does not have the power under s33.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered s33 Children Act 1989 regarding the exercise of PR by an LA, in line with the current authorities around vaccination, including <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664. It was agreed that the Court of Appeal held in <em>Re H</em> that an LA with a care order can arrange and consent to vaccination of a child in its care where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. The parties were unable to identify a judgment in a public law case concerning either the Covid-19 or winter flu vaccination programmes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment of MacDonald J in the private law vaccination case of <em>M v H and PT</em> [2020] EWFC 93 was also considered. This judgment, it was noted, was confined to the vaccines of the NHS vaccination schedule. At the time of that judgment the adult Covid-19 vaccination programme was in its early stages with no such programme on the vaccination of children. MacDonald J’s obiter comments at [4] were raised, however, given he had stated:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“… it is <u>very</u> difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidence contraindication specific to that subject child.” </em>[emphasis in the original]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the court considered the “Gillick Competence” test as per<em> Gillick v West Norfolk and Wisbech Area Health Authority </em>[1985] 3 WLR 830. In this case, Poole J noted the child was almost 13 and strongly in favour of being vaccinated. Poole J examined <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> and noted that that particular case dealt with very young children. &nbsp;The court reiterated that the assessment of whether a child is indeed Gillick competent is both child-specific and decision-specific, and that the decision of a Gillick competent child will not necessarily be determinative and can be overridden by the court. Finally, a 12-year old cannot be conclusively be presumed Gillick competent in relation to a vaccination decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of the question of Gillick competence, Poole J noted that if a Gillick competent child were to refuse vaccination it would raise different questions than that to be looked at here (overriding the views of a parent). He noted that the LA overriding a child’s decision would be a different situation. However, Poole J declined to determine this issue any further as in the present circumstances it would be an academic activity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court found it would not be appropriate to investigate the merits of whether a national programme for vaccination of children (Covid-19 and winter flu) was in the best interests of children in general. It was about whether the best interests of the particular child were served by the vaccination. The Court should only consider expert evidence around the vaccines where there is new peer-reviewed research evidence focused on the safety or efficacy of the vaccine(s), or where there is a well-evidenced concern that the vaccine is contraindicated for that particular child. In most cases, therefore, expert evidence is not necessary or appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court confirmed under s33(3)(b) Children Act 1989, where an LA has a care order (including an interim care order), they can arrange and consent to vaccination of a child in its care for the Covid-19 and winter flu vaccines despite the objections of the child’s parents. The basis for this was (i) the vaccination is part of an ongoing national programme; (ii) the child is Gillick competent and consents or is not Gillick competent; and (iii) they are satisfied it is necessary to safeguard or promote that individual child’s welfare. The Court reiterated there is no requirement for an application to be made for authorisation by the Court before vaccinating in those circumstances. Instead, a parent opposing vaccination would need to apply to prevent vaccination as per <em>Re H.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For completeness, it was recognised that s33(3) Children Act 1989 does not provide total freedom for an LA to arrange and consent to vaccinations in every case. LAs should not rely on s33(3)(b) to make grave decisions with profound or enduring consequences for that child. “Individualised” welfare decisions must be taken for each child, and it also cannot be discounted that there is a possibility an individual child’s circumstances may make such a decision “grave”. In the vast majority of cases, however, no application is necessary even with parental objection.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Commentary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>We now have a High Court authority specifically addressing the Covid-19 and winter flu vaccine programmes. Whilst the judgment essentially reiterates the law from the previous cases, the judgment is particularly welcome given the Court had previously chosen not to consider the Covid-19 vaccination scheme. Together, <em>Re C (Looked After Child) </em>and <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> confirm that the LA need not apply for a declaration that it is in a child’s best interests to have such vaccinations. Despite being a public law judgment, this case is also likely now to assist in private law disputes as it goes a step further than <em>M v H and PT</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the Court again confirmed that the LA need not in most cases apply for a declaration, (and reiterated that the onus is on the parent opposing vaccination to apply instead,) it is likely that LAs will continue to bring such applications. LAs remain cautious about their powers in the face of strong opposition, particularly with something as emotive as vaccination. It will be interesting to see whether any cases come before the Court following this decision where a child’s Gillick competence is to be assessed and potentially overridden.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Related Articles</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To read more about <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664 and <em>M v H and PT</em> [2020] EWFC 93 please see the following articles also on the website.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/"><span style="text-decoration: underline;">Vaccinating Children in Local Authority Care: Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA </span></a><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Civ 664.</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/specific-issue-order-for-vaccination-including-covid-19-m-v-h-private-law-vaccination-2020-ewfc-93-15-december-2020/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020)</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e="><span style="text-decoration: underline;">C</span></a><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e=" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;"> (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021) (bailii.org)</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>, specialises in children law work, both public and private law. She undertakes both public and private law children work and is regularly instructed for Local Authorities, Children’s Guardians and parents. Chloe has a particular interest in cases involving: vaccination, FGM and forced marriage, and the removal of parental responsibility.</p> <!-- /wp:paragraph -->

Pension Loss &#8211; Withdrawal Factors

<!-- wp:paragraph --> <p>Parklane Plowden Chambers barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Gareth Price</span></a>, was called in 2009 and specialises in employment and clinical negligence. He authored the below article in regards to withdrawal factors in relation to pension loss.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pension loss claims of any complexity often fill employment lawyers with dread.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Other than short periods of lost employer pension contributions into a direct contribution pension, such claims can be time-intensive, difficult to analyse and costly to calculate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Delays in acquiring information from pension administrators, annual revaluation under CARE schemes, Ogden table calculations and the possible need for expert evidence are just some of the hurdles in presenting or defending such claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunals Principles for Compensating Pension Loss (‘the Principles’), now in its 4<sup>th</sup> edition (most recently revised as of 2021), provides a ‘how-to’ guide for undertaking calculations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For more straightforward cases, the Basic guide to Compensation for Pension Loss, exists.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With a cold towel and a cup of tea, the thicket of calculating a loss is more manageable than it may first appear.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But one aspect of such claims that attracts relatively little attention, and yet is the area where employment lawyers might be expected to add most value to a case, is what ‘withdrawal factors’ a Tribunal might apply to such a claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What is a withdrawal factor?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A ‘withdrawal factor’ is a factor that provides for other contingencies that arise in the case, and which may affect how long employment would have continued but for the dismissal (i.e. whether the claimant would have ‘withdrawn’ from the pension scheme, for different reasons, at a future date).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is conceptually the same as the <em>Polkey</em> principle.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The purpose of this article is to explore this concept, consider its use in pension loss claims and look at some examples of its application.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Pension Loss claims concepts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To put matters in context, the following is important.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First</strong>, most employees will be members of occupational pension schemes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Those pension schemes are typically described as either direct contribution schemes or defined benefit schemes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Direct contributions</strong> schemes are ubiquitous in the private sector. Each pay period, the employee and employer contribute a portion of pay into the pension scheme. That money is invested and the pot at the end of the employee’s involvement in the scheme is the pension.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Defined benefit</strong> schemes come in different guises, but the most common are final salary or career average revalued earnings (CARE) schemes. They are more common in the public sector.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>VERY simplistically, final salary schemes calculate the pension by multiplying the employee’s salary in their final year of employment by a fraction that reflects their years of employment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Also very simplistically, CARE schemes add a fraction of an employee’s annual earnings (a ‘slice’) up over the course of their employment, with each slice being revalued for inflation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In each case, that pension is then an annual income for life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Second</strong>, when calculating pension loss claim, the Tribunal is guided by the Principles as to different methods of calculating pension loss claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For employees dismissed from positions benefiting from a direct contribution pension scheme, the ‘contributions method’ should be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For employees who had a defined benefit (‘DB’) pension scheme, their cases might be ‘Simple DB cases’ or ‘Complex DB cases’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For simple DB cases, the contributions method may be appropriate. For instance, if a Tribunal, applying <em>Polkey</em>, considers that the likelihood that the Claimant would have remained in employment until retirement (and therefore a member of the pension scheme at that point) is low, the Principles suggest that even where the employee was a member of a defined benefit scheme, the contributions method is a ‘better choice.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For Complex DB cases, the Principles suggest either using the ‘seven steps model’ (involving Ogden table calculations) or using expert evidence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under the seven steps model, the first step is to calculate the ‘multiplicand’. The multiplicand is the annual income amount that the Claimant would have received had they reached retirement whilst still an employee under the ‘old job’ and still a member of the DB scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Third</strong>, ‘complex’ cases include career loss cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A career loss case is one where the employee contends that, whatever their future career path, the loss of pension benefits from their old job occupational pension will never be replaced. Consequently, on retirement, the employee will (save for any mitigation by way of other pension schemes to which they become members) have a pension loss for life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whether an employee in fact will not be able to mitigate this loss is of course subject to Tribunal assessment of fact.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, it is these career loss cases which most commonly generate the need to engage in assessing whether any withdrawal factors should apply to the pension loss claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Where and how do withdrawal factors come in?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After calculating the multiplicand, the Principles guide Tribunals to then:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘…<em>take account of any withdrawal factors that may apply. The analysis is like the one done when applying the ‘Polkey’ principle; the tribunal consider the ‘old job facts’ and engages in a degree of speculation about what the future may have held</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Factors relevant to a <em>Polkey</em> reduction may also be relevant withdrawal factors.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Of course, Tribunals must avoid double-discounting (and, within the Principles, step seven explicitly considers this risk and how to avoid it), but the reality is that if a Tribunal considers that on a proper application of the <em>Polkey</em> principle any loss might be relatively short, further consideration of withdrawal factors is unlikely to be necessary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should the Tribunal reach the stage of considering withdrawal factors however, the Tribunal must then engage in the sliding-doors world of what might have happened had the employee not been dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is not a binary, balance of probabilities assessment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is a future loss under <em>Mallet v. McMonagle</em> principles and is therefore the loss of a chance - what is the chance (or likelihood) that X may have happened?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once that assessment of chance has been made, the Tribunal must then endeavour to reduce the likelihood to a fixed percentage and apply that to the multiplicand.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>How does one assess the likelihood of a withdrawal factor?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This question is, really, the most difficult to advise clients on.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For instance, in any given case, what is the percentage reduction appropriate to reflect the likelihood that, for instance, the employer will become insolvent and be liquidated?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That, of course, is entirely fact dependent and, ultimately, down to the Tribunal hearing the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As employment lawyers, whilst we are tasked with analysing facts and applying the law to them in order to provide advice, the reality is that accurately predicting whether a Tribunal will consider there to be a 5% or 50% chance that an employer will become insolvent is – in all but the rarest of cases – very, very difficult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Perhaps the only constant guiding principle (commonly reflected in <em>Polkey</em> assessments) is that the further away in time from assessment (i.e. the remedy hearing) the prediction is made, the less confident the Tribunal should be about any status quo remaining true or any change occurring.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal in <em>Griffin v. Plymouth Hospitals NHS Trust<sup>1</sup></em>, however, did make it clear that the higher the likelihood of the withdrawal factor occurring, the more likely it is that engaging in the process at all is wrong:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>The question is whether the uncertainties that would have to be reflected in such a discount are so great that they undermine the point of assessing the hypothetical whole-career loss in the first place</em>’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, remarking that ‘…<em>experience shows that in most cases the relevant uncertainties are indeed too great</em>’, demonstrates that it will be only rarely that a career long loss is best analysed in this way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In such circumstances, the Tribunal might consider the contributions method more appropriate. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What are typical examples of withdrawal factors?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The following are all factors that may be more or less relevant depending on the facts of the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The common theme for all these factors is that they affect the likelihood of the employee being a member of the occupational DB scheme on retirement or affect their benefits under any such scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Remember, the question is ‘what is the chance that [the following] would have happened?’:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>The employer would have restructured, become insolvent or otherwise dismissed the employee for redundancy<ul><li>This might be in the context of, or reflect, wider economic factors, technological progress in the sector, the history of the business or the financial health of the business</li></ul></li><li>The employee would have left the role, resigned or taken early retirement<ul><li>This might be in the context, or reflect, prior length of employment, general employment history of the claimant, retention rates within the relevant industry, the particular role occupied and common career progression from that role, prospects of working in a different sector (including moving from public to private sector for enhanced salary), the relevant facts giving rise to the Tribunal litigation<sup>2</sup> in the first place and the employee’s health or that of their immediate family</li></ul></li><li>The employee would have been dismissed fairly<ul><li>This, of course, may be the approach taken by the Tribunal under a <em>Polkey</em> assessment. If not, then (for instance) relevant evidence about the employee’s health and likelihood of losing their employment for ill-health capability reasons might constitute a withdrawal factor</li></ul></li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>It should also be added that, of course, evidence for the above will be needed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The nature of that evidence need not come solely from parties and witnesses. Subject to matters of proportionality, expert evidence on these factors may be appropriate. For instance, geographical factors, industry-specific matters not within the usual competency of a Tribunal or medical evidence about the long-term effects of a medical condition may all be appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lastly, a more nuanced withdrawal factor might also be that the employee would have reduced their working hours or salary whilst nonetheless remaining within the pension scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Similarly, many people take sabbaticals, take career breaks or take secondments – but then later return to the employer and pension scheme.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The likelihood of each of these factors might be informed by the employee’s home / family life, caring responsibilities, qualifications or desired career progression.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such adjustments will likely have an impact on the employee’s pension benefits come retirement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moreover, such adjustments ‘bite’ at different stages of the employee’s career.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The nature and impact on pension benefits of these adjustment would be set out in the pension scheme terms and evidence from the pension scheme administrator may be necessary – rather than simply ascribing a percentage reduction to the multiplicand. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p>1- Albeit in the context of the pension guidance applicable at the time, from 2003, which recommended adopting either a ‘simplified’ or ‘substantial loss’ approach. This dichotomy was not retained in the 2017, 4<sup>th</sup> edition.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2- For which see Plaistow v. SoS for Justice, in which the claimant’s resilience to previous work incidents supported a finding that he would have remained in employment until retirement</p> <!-- /wp:paragraph --> <!-- wp:image {"width":300,"height":300,"sizeSlug":"large"} --> <figure class="wp-block-image size-large is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/gareth-price-34.jpg" alt="Gareth Price" width="300" height="300"/><figcaption><a href="https://www.parklaneplowden.co.uk/our-barristers/gareth-price/" rel="noreferrer noopener" target="_blank"><span style="text-decoration: underline;">Gareth Price</span></a>&nbsp;was called in 2009 and specialises in employment and clinical negligence.</figcaption></figure> <!-- /wp:image -->

Thorley v Sandwell &#038; West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

<!-- wp:paragraph --> <p>Pupil barrister Bharat Jangra examines the outcome of Thorley v Sandwell &amp; West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB) whereby the case was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong><br><br>The Claimant suffered a stroke as a result of his anti-coagulation medication (Warfarin) being stopped whilst undergoing an angiogram in April 2005. Mr Justice Soole’s judgment considered: breach of duty; the Wisniewski principles regarding adverse inferences; causation and material contribution.<br><br>The Claimant advanced two breach of duty arguments:<br><br>• Prior to the angiogram, the Claimant was told to not take any anti-coagulation medication for four days, contrary to the ‘guidance’ document; and<br>• Following the angiogram, the Claimant should have been advised to re-start his Warfarin on the evening of the angiogram.<br><br>The Defendant submitted that the guidance document was not strictly applicable to angiograms and so there was no breach of duty. In response to the second claim, the Defendant submitted that this course of action was not contrary to Bolam or Bolitho and that there was a reasonable body of competent practitioners who would have delayed re-starting Warfarin until the day after the procedure rather than the same day.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Breach of Duty, the Guidance Document, Wisniewski Principles and Adverse Inferences</strong><br><br>The guidance document was titled ‘Anticoagulation and Surgery (Sandwell)’ and had not initially been disclosed by the Defendant as it was their position that it was not directly applicable. The Defendant did not bring any factual evidence regarding this document, either from those who were responsible for drafting the document or from those who had clinical responsibility for Mr Thorley.<br><br>During the trial, the Claimant’s expert advanced the position that the guidance was applicable and should have been followed in this case reducing the period prior to the angiogram without anti-coagulation medication to three days rather than four. He also also accepted that it was only a guideline and could be departed from on clinical grounds [para. 46].<br><br>In contrast, the Defendant’s expert stated it was not applicable as angiography was not a surgical procedure and therefore not covered within the scope of the document. Further, as it was not a protocol or policy, and absence a protocol relating specifically to angiography, it was not reasonable to apply guidance relating to surgery to angiography [para. 43]. The Judge also accepted the position that in 2005 guidance documents were much less common.<br><br>To support their breach of duty arguments, the Claimant sought an adverse inference due to the failure by the Defendant to call any evidence regarding the document, in line with the principles from Wisniewski v Central Manchester Health Authority [1998] PIQR P324, being:<br><br>“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.<br><br>(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.<br><br>(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.<br><br>(4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”<br><br>Soole J did not seek to apply these rules strictly, in reliance on the Supreme Court judgment in the case of Efobi v. Royal Mail Group Ltd [2021] UKSC 33 where Lord Leggatt JSC (with whom the other JSC agreed) observed at [41]:<br><br>‘…Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so…'<br><br>Whilst this was an employment case, Soole J interpreted the above to have the widest possible application.<br><br>Soole J agreed with the Defendant expert’s interpretation regarding the guideline document, in that it did not apply to angiography and it was contrary to the ample material cited to the court advocating a four or five day period without anticoagulation medication. There were no adverse inferences to be drawn by the Court from the Defendant’s failure to call any factual evidence on this issue. Therefore, there was no breach of duty in failing to follow the guideline [paras. 57 - 67].<br><br>The Court went on to discuss that the expert evidence provided no basis to conclude that a three day period was better than a four or five day period of omission without Warfarin. Consequently, regardless of the guideline, there was no breach of duty in the treatment to Mr Thorley [paras. 75 – 77].<br><br>Regarding the second breach of duty claimed around the delay in resuming warfarin, Soole J did acknowledge and accept that some practitioners, with supporting independent publications, would have restarted Warfarin later on the day of the angiogram.<br><br>However, Soole J preferred the Defendant’s expert evidence, in that this position had to be read in the context of the assessment of the Claimant and risk of post-operative haemorrhage. There was a risk of bleeding following the angiogram, which may have been delayed or would not have been immediately apparent after the angiogram, especially considering that the Claimant was obese. The delay in resuming anti-coagulation medicine the day after the angiogram carried a risk, but provided extra safety to the Claimant should a late bleed have occurred [para. 79]. This approach was supported by a reasonable body of competent practitioners, including the Defendant expert himself. Therefore, there was no breach of duty in not resuming Warfarin in the evening on the day of the angiogram.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation and Material Contribution</strong><br><br>The Claimant’s causation case was brought on two grounds: ‘but for’ causation and material contribution.<br>Regarding ‘but for’ causation, Soole J found difficulty in accepting the Claimant’s expert evidence in relation to the applicability of the study he produced to the Claimant’s position, or the points raised regarding the relevance of the study relied on by the Defendant’s expert. Instead, he preferred the evidence of the Defendant’s expert and the way in which he extrapolated the evidence he brought and applied it to the Claimant’s condition. On that basis, he did not find that there was any ‘but for’ causation and that the Claimant would have suffered a stroke in any event.<br>Soole J undertook a comprehensive review of the case law regarding material contribution, and in agreement with the Court of Appeal in both Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86, material contribution is not an issue that can be raised when there is one defendant and an indivisible injury.<br><br>The claim was therefore dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusions</strong><br><br>The Court will not restrict themselves to a formulaic test when considering the Wisniewski principles, and in line with Efobi it will take a holistic and common sense approach to the evidence. Further, material contribution cannot be raised as an issue where there is an indivisible injury and one defendant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Author</strong><br><br>Bharat Jangra is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers offer specialist pupillages based within either our Civil &amp; Employment teams, our Family Team or our Commercial and Chancery teams. We also have pupillages based in Leeds or Newcastle, with the opportunity to spend time in each of our bases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Interested in applying for Pupillage at Parklane Plowden?</strong><br><br>If you are interested in applying for Pupillage at Parklane Plowden join us at our virtual open evenings to hear from our former pupils and barristers: an opportunity to learn from our experiences, to hear our application advice, and to ask any pupillage queries you may have.<br><br>Please click <strong><em><a href="https://www.parklaneplowden.co.uk/future" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">here</span></a></em></strong> to read more.</p> <!-- /wp:paragraph -->