The patient in this Court of Protection case, a 50 year old mother of three, had unsuccessfully attempted suicide by taking a paracetamol overdose; she suffered severe kidney failure and relied on dialysis to stay alive. After 8 weeks’ she refused further treatment. On the Trust’s application for a declaration that she should have dialysis forcibly, if necessary, the Court had to determine whether she had capacity to refuse. Finding that she did, the Court reaffirmed her Article 8 right to self-determination.

Mr Justice MacDonald said:

“That she considers… the fear that she has lost, and will not regain, ‘her sparkle’ outweighs a prognosis that signals continued life will alarm and possibly horrify many.

“Her decision is certainly one that does not accord with the expectations of many in society.

“Indeed, others in society may consider her decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general.

“None of this, however, is evidence of a lack of capacity.”

Mike Horne acted for the Trust and Katie Gollop was instructed by the Official Solicitor on behalf of the patient.

Click here to read the full judgment.

The case has been widely reported in the media. Please click the following links to read coverage on The Sunday Times, Guardian and ITV websites.

We are delighted to announce that Gemma Hobcraft (2006 call) has joined Chambers as a new tenant. Gemma practises in professional discipline and regulatory work and public law. She regularly appears before health care regulators, acting in the full range of conduct, competence and health cases.

This paper supplements the debate that took place between Angus Moon QC and Rad Kohanzad at the Duty of Candour seminar on 24th September 2015 entitled “Duty of Candour (“DOC”) and whistleblowing”.

Whilst the talk assumed little knowledge of whistleblowing, this paper provides the background to the subject matter of discussion and explores the interrelationship between the duty of candour and whistleblowing.

The phrases “whistleblowing” and “duty of candour” are now often used in conjunction with each other but even to seasoned lawyers, the precise relationship between the two is not entirely clear.

At its simplest, as Sir Robert Francis QC observed in Freedom to Speak Up: An independent review into creating an open and honest reporting culture in the NHS, they are part of a range of measures which help enable or ensure staff speak up. Before exploring the relationship between the DOC and whistleblowing, it may be worth providing a brief summary of the evolution of whistleblowing legislation.

At a hearing before the Fitness to Practise Panel of the GMC between 2nd and 10th November 2015, the complainant (Patient A), who was a young mother who had just given birth, made an allegation of indecent assault against the Respondent, who was working at the time as a locum SHO in paediatrics. It was alleged that the doctor had rubbed her back and touched/held her breast for 2-3 minutes and that his conduct was deliberate and sexually motivated. Patient A alleged that the assault took place while she was breast-feeding.

The Fitness to Practise Panel acceded substantially to the application made on behalf of the doctor to throw out the allegations at the close of the Council’s case under rule 17(2)(g) of the FTP Rules.

The panel concluded that the many inconsistencies in Patient A’s various accounts rendered her evidence so weak and inconsistent as to be insufficient for the case, in relation to the main allegations, to proceed.

A single remaining factual allegation concerning chaperoning, that was not thrown out at the close of the Council’s case, was also found not proved. Accordingly, the case was closed with no adverse finding.