Serjeants’ Inn Chambers & Oxford Neurosurgery and Spine Practice – 7th Annual Oxford Medical Law Conference
Wadham College
26 September 2016

Legal Update

Duty of Care

1. Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) (15 April 2016):

1. Neil Caven (“Neil”) a patient at the Defendant hospital (D) suffered from a long-standing (undiagnosed) disease. In March 2003 a doctor at D’s hospital requested a diagnostic test but the test was not performed.
2. In March 2006 Callum Smith (“Callum”) was admitted to hospital and underwent testing and was subsequently diagnosed as suffering from Adrenoleukodystrophy (ALD) (a childhood version of Adrenomyeloneuropathy (AMN)). By the time of diagnosis the condition was too far advanced for treatment to be effective and Callum subsequently died on 26 April 2012.
3. Following Callum’s diagnosis, his brother Connor Smith (“Connor”) underwent testing and was also diagnosed with ALD. Connor received treatment and his general health remained satisfactory.
4. Following the diagnosis of Callum and Connor, Neil was seen in D’s clinic in 2006 and stated that his first cousin had been identified as a carrier of ALD. It was then noticed that the diagnostic test considered in 2003 had never been performed. The test was carried out and Neil diagnosed with the adult form of AMN.
5. C alleged that D was negligent in not performing the test on Neil in 2003 and alleged that had the test been performed it would have led to testing of the wider family which would have included Connor and Callum and would have given rise to their diagnosis 2.5-3 years earlier which would have led to a materially improved outcome for both.
6. The Claim was struck out on policy grounds.
7. HHJ McKenna held: “this is a novel claim where it would not be fair just and reasonable on policy grounds to impose a duty of care on the Defendant in respect of those who are not its patients” (§30).

On 15th April 2016 Peter Jackson J handed down judgment in Spencer v Anderson (Paternity Testing: Jurisdiction) [2016] EWHC 851 (Fam), an unusual case involving novel legal issues about whether the court can use the inherent jurisdiction to direct scientific testing of the DNA of someone who has died, for the purpose of providing evidence of paternity. The DNA sample had been provided as part of the deceased’s medical treatment. No consent had been given for paternity testing and it was not clear that the deceased had ever known he might have a son.

1. Commentators have asked about the legal consequences of a health service body or other registered person under the Regulated Activities Regulations 2014 providing a notification of a patient safety incident under Regulation 20 (2) upon information provided by an individual doctor.

Would that material be admissible against the individual doctor in (say) some later criminal prosecution in relation to the same event?

Eloise Power comments:

“The General Medical Council have this week made a welcome announcement that new guidance on cosmetic procedures will be brought into force from June 2016. This follows the recommendations in the Keogh review and a number of high-profile cases such as the PIP breast implant litigation. The guidance sets out a framework for protecting patients who are considering or undergoing cosmetic procedures.

The provisions on consent will be of great interest to the medico-legal community in the light of last year’s landmark Supreme Court judgment in Montgomery – which is yet to be considered by the higher courts in the context of cosmetic surgery claims. Under the new GMC guidance, the doctor who performs the cosmetic procedure will be responsible for consenting the patient and must not delegate this responsibility. It remains to be seen whether the civil courts will recognise this as an aspect of the duty to obtain properly informed consent.”

Eloise acted for the Thompsons subgroup of claimants in the PIP litigation, has published for Jordans on the Cosmetics Regulation and has experience of clinical negligence cosmetic surgery claims. Please click here for further details of her work.

On Tuesday 24 February 2016 the Supreme Court gave judgment in Knauer v Ministry of Justice, which has completely changed how future dependency loss is to be assessed in claims under the Fatal Accidents Act 1976.

Please click here to read Sebastian Naughton‘s summary and analysis of the case.