On 25th January 2016 the Privy Council upheld the decision of the Appeal Court of Bermuda to award significant damages to a claimant on the basis that a short delay in operating on his appendix had materially contributed to his injury. The headline is that the doctrine of material contribution survives and that the Privy Council did not accept an argument that the decision in Bailey v MoD was wrong.

Angus Moon QC and Caroline Hallissey were instructed in the Court of Appeal on behalf of the Claimant in the important decision in Reaney v University Hospital of North Staffordshire NHS Trust. Judgment was given on 2nd November 2015.

The Claimant suffers from very serious disabilities as a result of negligently caused pressure sores. The case deals with the circumstances in which a Claimant may recover for the costs of care when there was a need for care prior to the Defendants’ clinical negligence. Although the Defendants’ appeal from Mr Justice Foskett was successful, the Claimant now has the opportunity to seek to argue before Mr Justice Foskett that as her care needs following the Defendants’ negligence are qualitatively different from those which pre-existed the negligence, the Claimant is entitled to recover her care costs.

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.