Category: Health Professions

London Borough of Lewisham and Another, Regina (on The Application of) v Secretary of State for Health and Others: Admn 31 Jul 2013

The adminstrators appointed to the local NHS Trust had made recommendations which included actions involving a neighbouring NHS trust.
Held: The decision was ultra vires. The powers given in the 2006 Act were restricted to matters relating to the Trust as to which the report was being prepared.

Silber J
[2013] EWHC 2381 (Admin), [2013] PTSR 1298, [2013] WLR(D) 331
Bailii, WLRD
England and Wales

Administrative, Health Professions

Updated: 21 November 2021; Ref: scu.516440

Ottica New Line Di Accardi Vincenzo v Comune Di Campobello Di Mazara: ECJ 26 Sep 2013

ECJ Articles 49 TFEU and 56 TFEU – Freedom of establishment – Public health – Opticians – Regional legislation making the establishment of new opticians’ shops subject to authorisation – Demographic and geographical limitations – Justification – Appropriateness for attaining the objective pursued – Coherency – Proportionality

L. Bay Larsen, P
C-539/11, [2013] EUECJ C-539/11
Bailii
European

Health Professions

Updated: 20 November 2021; Ref: scu.515585

Conseil National De L’Ordre Des Medecins v Ministre De L’Enseignement Superieur Et De La Recherche: ECJ 19 Sep 2013

ECJ Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Directive 2005/36/EC – Recognition of professional qualifications – Dental profession – Specific nature and distinction from the medical profession – Common training

C-492/12, [2013] EUECJ C-492/12
Bailii
Directive 2005/36/EC

European, Health Professions

Updated: 20 November 2021; Ref: scu.515357

Pichon And Sajous v France: ECHR 2 Oct 2001

Three women had been refused the supply of contraceptives prescribed for hem by their doctors by the claimant pharmacists, who were later found to have infringed their duties of supply. The claimants had argued that they had the right to apply their ehical or relgious principles, but the court found that the contraceptives were not abortifacients allowing any such exemption.
Held: The compliants were inadmissible: ‘as long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.’

49853/99 – Admissibility Decision, [2001] ECHR 898
Bailii
European Convention on Human Rights 9
Human Rights

Human Rights, Health Professions, Ecclesiastical

Updated: 20 November 2021; Ref: scu.515301

Kostas Konstantinides, Re: ECJ 12 Sep 2013

ECJ Freedom to provide medical services – Service provider travelling to another Member State to provide the service – Applicability of the rules of professional conduct of the host Member State, in particular those relating to fees and advertising

L. Bay Larsen Rap
C-475/11, [2013] EUECJ C-475/11
Bailii

European, Health Professions

Updated: 20 November 2021; Ref: scu.515252

Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council: CA 9 Jul 2013

The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision permitting the court to extend time. The issue was whether the 28-day time limit was an absolute one, admitting of no exceptions, or whether it might be tempered and, if so, on what basis.
Held: Maurice Kay LJ said that the argument was: ‘it is submitted, Pomiechowski’s case now requires us to ‘read down’ [the statutory provision] so as to interpret it in a manner compatible with article 6 of the Convention, thereby leaving some wriggle-room, notwithstanding the apparently absolute nature of the time limit.’
. . And:
‘The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair ‘the very essence’ of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent . . In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28-day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.’
He continued: ‘The real difficulty is where to draw the line. Mr Pascall, on behalf of the claimants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions . . The omission to do so on this occasion was no doubt deliberate. If article 6 and section 3 of the 1998 Act require [the statutory provision] to be read down, it must be to the minimum extent necessary to secure compliance with Convention. In my judgment, this requires adoption of the same approach as that of Lord Mance JSC in Pomiechowski’s case [2012] 1 WLR 1604, para 39. A discretion must only arise ‘in exceptional circumstances’ and where the appellant ‘personally has done all he can to bring [the appeal] timeously’. I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality.’

Maurice Kay LJ
[2013] EWCA Civ 818
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .

Cited by:
Distinguished – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 15 November 2021; Ref: scu.512189

Nasiopoulos v Pronoias (Minister For Health): ECJ 27 Jun 2013

ECJ Recognition of diplomas and other evidence of formal qualifications – Directive 2005/36/EC – Profession of physiotherapist – Partial and limited recognition of professional qualifications – Article 49 TFEU

A. Tizzano, P
C-575/11, [2013] EUECJ C-575/11
Bailii
Directive 2005/36/EC

European, Health Professions

Updated: 14 November 2021; Ref: scu.511328

Raabe, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Jun 2013

The claimant challenged his removal from a panel advising on the misuse of drugs on the basis that he had authored a paper setting out his approval of heterosexual relationships only.

Stadlen J
[2013] EWHC 1736 (Admin)
Bailii
England and Wales

Health Professions, Discrimination

Updated: 14 November 2021; Ref: scu.510948

Sadighi v General Dental Council: Admn 5 May 2009

The dentist had been convicted by the Council’s professional conduct committee of dishonesty in forging the records of treatment of his patient. The committee tribunal had been chaired by Dr Leitch, who ending five years previously had served for two years as an elected member of the Council. It was submitted that the doctrine of apparent bias applied.
Held: The complaint failed.

Plender J
[2009] EWHC 1278 (Admin)
Bailii
England and Wales
Cited by:
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Updated: 12 November 2021; Ref: scu.347244

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust: QBD 1 Aug 2011

The claimant who had been dismissed by the defendant, asked the court to find that the defendant had failed to meet its contractual obligations as to the procedure to be followed, and that therefore the court declare the dismissal void.
Held: The claim failed. The Trust had in large part followed the procedure rather than departed from it. Whilst the claimant certainly had a human right to practise his profession, that right was not affected by the actions of the defendant, and the right had not been engaged.

Starker QC J
[2011] EWHC 2068 (QB)
Bailii
England and Wales
Citing:
Cited – Warner v Poland ECHR 15-Nov-2001
. .
Cited – Hussain v Surrey and Sussex Healthcare NHS Trust QBD 5-Jul-2011
. .
Cited – G, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .
Cited – Puri, Regina (on The Application of) v Bradford Teaching Hospitals NHS Foundation Trust Admn 15-Apr-2011
The claimant, a consultant urologist complained that the manner of his dismissal by the defendant for alleged misconduct did not accord with his human rights.
Held: A person’s right to practise his profession was a civil right for the purposes . .
Cited – Pfeifer v Austria ECHR 2009
. .
Cited – Kulkarni v Milton Keynes Hospital NHS Foundation Trust and Others CA 23-Jul-2009
The doctor claimant sought to assert a right to have legal representation in disciplinary proceedings by his employer.
Held: The doctor’s contract entitled him to representation. Also, the claimant’s Article 6 rights to a fair trial and to . .
Cited – MA v Belfast Health and Social Care Trust QBNI 4-Dec-2008
Medical practitioner – Health and Social Care Trust – contract of employment – disciplinary proceedings – disciplinary code – legal representation – Health and Personal Social Services (NI) Order 1991, Schedule 3, Part II – departmental directions – . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 12 November 2021; Ref: scu.442513

Regina v Tabassum: CACD 11 May 2000

The defendant had pretended to be medically qualified in order to obtain the opportunity to examine women’s breasts. He appealed against his conviction for indecent assault, saying that the complainants had consented to the examinations.
Held: Where consent was given only because the victim was misled into believing that the defendant was a medical practitioner, the consent which had been was as to the nature of the act, but not as to its quality. The fraud vitiated the consent. Consent did not exist because the act consented to was not that done. The consent was to examination for medical purposes by a practitioner. That act was of a different nature. The defendant had argued that an ‘undoubted consent’ could only be negatived if the victim had been deceived or mistaken about the nature and quality of the act, and that consent was not negatived ‘merely because the victim would not have agreed to the act if he or she had known all the facts’. That argument failed. The court observed: ‘there was no true consent’.

Rose LJ VP, Kennedy, Hallett JJ
Times 26-May-2000, Gazette 31-May-2000, [2000] 2 CAR 328, [2000] EWCA Crim 90, [2000] 2 Cr App Rep 328, [2000] Crim LR 686, [2000] Lloyds Rep Med 404, [2000] All ER (D) 649
Bailii
England and Wales
Citing:
Considered – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Cited – Regina v Linekar CACD 21-Oct-1994
L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . .

Cited by:
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.85580

Save Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts: Admn 7 Mar 2013

The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed.
Held: Review was granted. The respondent had failed to disclose necessary elements of the decision making progress so that the claimants could make representations. It could not be said that the decision would inevitable have been the same if disclosure had taken place.
The scoring was very close as between the competing entres, and the court did not accept that characterisation by the defendants of the ‘sub-scores as being no more than ‘underlying workings’. They provided the basis for the consensus score which was ultimately used as one of the most valuable and thus significant tools in the assessment of ‘Quality’ of the respective centres.’

Nicola Davies J
[2013] EWHC 439 (Admin), [2013] PTSR D16
Bailii
National Health Service Act 2006 1 3, National Health Service (Functions of Strategic Health Authorities and Primary Care Trust and Administration Arrangements) (England) Regulations 2002 3
England and Wales
Citing:
Cited – Regina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Devon County Council and Another v Secretary of State for Communities and Local Government Admn 21-Jun-2010
The court was asked to consider the decision to merge two health authorities. Ouseley J discussed what need to be made available to support the consultation: ‘What needs to be published about the proposal is very much a matter for the judgment of . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Bushell v Secretary of State for the Environment HL 7-Feb-1980
Practical Realities of Planning Decisions
The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the . .
Cited – Eisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
Cited – Kioa v West 18-Dec-1985
kioa_westHCA1985
(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice . .
Cited – Lambeth London Borough Council v Ireneschild CA 16-Mar-2007
The tenant held a secure tenancy of a first floor flat of the Council. She was severely disabled and argued that the danger of injury meant that she should be allowed to occupy the empty ground floor flat. She complained at the way the authority had . .
Cited – Eisai Ltd v The National Institute for Health and Clinical Excellence Admn 10-Aug-2007
The company sought to challenge the decision of the respondent not to approve its drug for use for the treatment of patients with Alzheimer’s disease.
Held: In requiring all patients to have a certain MMSE score in order to qualify for funding . .
Cited – Easyjet Airline Co Ltd, Regina (on The Application of) v Civil Aviation Authority CA 15-Dec-2009
The claimant appealed against rejection of its challenge to the respondent’s decision on charging structures for the use by airline of Gatwick airport, and in particular the alleged lack of adequate consultation by the respondent. After its own . .
Cited – Smith v North East Derbyshire Primary Care Trust CA 23-Aug-2006
The cliamant had challenged a decision by the respondent on the method of provision of general practioner medical services in her village. She said that the procedure had been flawed in that the consultation had been inadequate.
Held: Her . .
Cited – Secretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.471509

Stanley and Another v Revenue and Customs: FTTTx 21 May 2012

VAT on medical reports for o’seas government

FTTTx VAT – Doctors providing medical examinations and reports on applicants seeking Australian immigration visas – Reports sent directly to the Department of Immigration and Multicultural Affairs in Australia – Whether doctors carried out ‘services of consultants’ or ‘other similar services’ – Whether applicant or Department of Immigration and Multicultural Affairs was the recipient of these services – Appeals dismissed

John Brooks Judge
[2012] UKFTT 375 (TC)
Bailii
England and Wales

VAT, Health Professions

Updated: 11 November 2021; Ref: scu.462767

Dubska And Krejzova v The Czech Republic: ECHR 11 Dec 2014

dubskaECHR201412

ECHR Article 8-1
Respect for private life
Legislation preventing health professionals assisting with home births: no violation
Facts – The applicants wished to give birth at home, but under Czech law health professionals are prohibited from assisting with home births. The first applicant eventually gave birth to her child alone at home while the second applicant delivered her child in a maternity hospital. The Constitutional Court dismissed the first applicant’s complaint for failure to exhaust the available remedies. It nevertheless expressed doubts as to the compliance of the relevant Czech legislation with Article 8 of the Convention.
In their applications to the European Court, the applicants complained of a violation of Article 8 as mothers had no choice but to give birth in a hospital if they wished to be assisted by a health professional.
Law – Article 8: Giving birth was a particularly intimate aspect of a mother’s private life encompassing issues of physical and psychological integrity, medical intervention, reproductive health and the protection of health-related information. Decisions regarding the circumstances of giving birth, including the choice of the place of birth, therefore fell within the scope of the mother’s private life for the purposes of Article 8.
The fact that it was impossible for the applicants to be assisted by midwives when giving birth at home had amounted to interference with their right to respect for their private lives. That interference was in accordance with law as, although it was not entirely clear, the legislation had nevertheless enabled the applicants to foresee with a degree that was reasonable in the circumstances that the assistance of a health professional at a home birth was not permitted by law. The interference had served a legitimate aim as it was designed to protect the health and safety of both the newborn child and, at least indirectly, the mother.
As to whether the interference had been necessary in a democratic society, the respondent State was entitled to a wide margin of appreciation on account of the need for an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births, the need for strong State involvement because of newborn children’s vulnerability and dependence on others, the lack of any clear common ground among the member States on the question of home births and, lastly, general social and economic policy considerations, such as the allocation of resources to set up an adequate emergency system for home births.
While the situation in question had a serious impact on the applicants’ freedom of choice, the Government had focused primarily on the legitimate aim of protecting the best interests of the child. Depending on their nature and seriousness, the child’s interests could override those of the parent, who was not entitled under Article 8 to take measures that would harm the child’s health and development. While there was generally no conflict of interest between mother and child, certain choices as to the place, circumstances or method of delivery could give rise to increased risks to the health and safety of the newborn child as the figures for perinatal and neonatal deaths attested.
Although a majority of the research studies before the Court on the safety of home births indicated that there was no increased risk compared to hospital births, this was true only if certain conditions were fulfilled, namely that the birth was low-risk, attended by a qualified midwife and close to a hospital in the event of an emergency. Thus, situations such as that in the Czech Republic, where health professionals were not allowed to assist mothers giving birth at home and where there was no special emergency aid available, actually increased the risk to the life and health of mother and newborn. At the same time, however, the Government had argued that the risk for newborn children was higher in respect of home births and it was true that even where a pregnancy seemed to be without complications, unexpected difficulties requiring specialised medical intervention could arise during delivery. In these circumstances, the mothers concerned, including the applicants, could not be said to have had to bear a disproportionate and excessive burden. Accordingly, in adopting and applying the policy relating to home births, the authorities had not exceeded the wide margin of appreciation afforded to them or upset the requisite fair balance between the competing interests.
Notwithstanding this finding, the Czech authorities should keep the relevant provisions under constant review, taking into account medical, scientific and legal developments.
Conclusion: no violation (six votes to one).

28859/11 28473/12 – Chamber Judgment, [2014] ECHR 1373, 28859/11 28473/12 – Legal Summary, [2014] ECHR 1439
Bailii, Bailii LS
European Convention on Human Rights 8-1
England and Wales

Human Rights, Health Professions

Updated: 11 November 2021; Ref: scu.540016

Department of Health, Regina (on The Application of) v Information Commissioner: Admn 20 Apr 2011

The department appealed against an order requiring it to disclose statistical information about late abortions. The department argued that the numbers involved were such that the individual patients involved mighty be identified, and that therefore the information constituted personal data and was exempt under section 40 of the 2000 Act. The claimant had altered its practice to follow guidelines published by the Office for National Statistics. Though there had been occasional attempts to identify the doctors and patients involved, the risks were thought to be low.
Held: The decision to order the disclosure of the information was correct. The Tribunal had been in error in holding the requested information to be personal data. The court traced where the Data Protection and Freedom of Information laws met and used similar definitions. The fact that the Department had other information which could be added to the data to identify subjects did not make this personal data. The consequences of the identification of a patient could indeed be disatrous, but the tribunal had been entitled to conclude that the risk was extremely remote.

Cranston J
[2011] EWHC 1430 (Admin)
Bailii
Freedom of Information Act 2000 1(1) 40, Abortion Act 1967 1(1), Data Protection Act 1998 7(1)(c), European Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data
England and Wales
Citing:
Cited – Corporate Officer of the House of Commons v The Information Commissioner and others Admn 16-May-2008
Applicants had sought disclosure of information supplied by members of Parliament in support of expenses claims. The Office appealed against an order from the Commissioner to produce that information, saying that the actions of Parliament are not . .
Cited – Department of Health v Information Commissioner (Freedom of Information Act 2000) FTTGRC 15-Oct-2009
The Department had altered the way it reported the incidence of late abortions so as to protect the identities of those involved. It said that the numbers were so small that any detail could lead to identification.
Held: (1) The disputed . .
Cited – Common Services Agency v Scottish Information Commissioner HL 9-Jul-2008
An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the . .

Lists of cited by and citing cases may be incomplete.

Information, Health Professions

Updated: 11 November 2021; Ref: scu.440859

General Medical Council (GMC) v Hiew: CA 30 Apr 2007

The doctor sought to challenge the extension of his suspension from practice.
Held: It was inappropriate in such an application to challenge the findings of fact which had led to the initial suspension. If he wished to do that, he should seek judicial review of that decision. Arden LJ said: ‘the powers conferred by s.41A(10) are also original powers and not merely powers of judicial review.’
As to the attitude to be taken by the court to the IOP’s opinion: ‘It is for the court to decide what weight to give to that opinion, It is certainly not bound to follow that opinion. All that is required is that the Court should give that opinion such weight as in the circumstances of the case it thinks fit. Weighing up the opinion of a body that has special statutory responsibilities and relevant experience and expertise is again part of the ordinary task of judicial decision-making . . I would prefer to say that the approach of the court to the opinion of the IOP is not a question of giving respect but of attaching appropriate weight to the evidence in the ordinary way. In contrast to the giving of respect, there can be no automaticity about the attaching of weight to evidence. Weight does not attach to evidence by virtue only of his experience or status. The giving of weight to opinion evidence entails a holistic evaluation of the persuasiveness of the evidence on the relevant issue, having regard to the relevant circumstances including its content as well as the viewpoint of the author of the opinion.’

Tuckey LJ, Arden LJ, Lawrence Collins J
[2007] EWCA Civ 369, Times 15-Jun-2007, [2007] 1 WLR 2007
Bailii
Medical Act 1983 41A
England and Wales
Citing:
Appeal from – General Medical Council v Hiew Admn 17-Oct-2006
. .
See Also – General Medical Council v Hiew Admn 20-Apr-2007
Application for extension of interim suspension order, now as restriction subject to conditions. . .

Cited by:
Cited – Bradshaw v General Medical Council Admn 4-Jun-2010
The doctor sought to end an order temporarily suspending his registration. He had been accused of dishonesty in his practice records, and of making false allegations against a fellow doctor. The suspension was pending the hearing. He was undergoing . .
Cited – Sandler v General Medical Council Admn 14-May-2010
Nicol J considered the court’s jurisdiction under section 41A(10) and said: ‘Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler’s . .
Applied – Dr EY v General Medical Council Admn 15-Apr-2013
The doctor sought the temination of his conditional registration as a medical practitioner. . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.251567

Trent Strategic Health Authority v Jain and Another: HL 21 Jan 2009

The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by then ruined. The authority was criticised scathingly. The Authority replied that no allegation of bad faith having been made they had no duty in tort to the claimants.
Held: Human rights law could not be applied here by the English courts since the acts complained of preceeded the 1998 Act. All the authorities pointed to a conclusion that no duty or claim arose. The exercise of the powers under sections 25, 28 and 30 may often, perhaps usually, cause economic damage to the proprietors of the nursing homes, or, in the case of section 25, the intended nursing homes. The purpose of these powers, however, is to protect the interests of the residents in nursing homes. The interests of the proprietors of nursing homes that the homes should remain open for that use ‘are in potential conflict with the interests of’ the residents. The remedy lay in the provision of proceural safeguards. The absence of any worthwhile protection against a health authority whose negligent use of statutory powers to close a care home, ruining its innocent proprietors, was insufficient to create a correlative duty of care.
Baroness Hale: ‘there was indeed a serious injustice here which deserved a remedy. It is with the greatest of regret that we have all reached the conclusion that the common law of negligence does not supply one.’ The claimants may have a remedy before the ECHR.

Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Neuberger of Abbotsbury
[2009] UKHL 4, Times 22-Jan-2009, [2009] WLR (D) 14, [2009] 2 WLR 248, (2009) 106 BMLR 88, [2009] HRLR 14, 106 BMLR 88, [2009] 1 All ER 957, (2009) 12 CCL Rep 194, [2009] PTSR 382, [2009] LS Law Medical 112
Bailii, HL
Registered Homes Act 1984 23(1), Human Rights Act 1998
England and Wales
Citing:
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – Van Marle And Others v The Netherlands ECHR 26-Jun-1986
The applicants were accountants who had practised as such for some years when a new statute came into force which required then to register. Their applications were refused.
Held: Article 1PI was engaged. In paragraphs 41 and 42 the Court said . .
Cited – Lyons v East Sussex County Council 1987
When an authority applies for the revocation of a nursing home’s licence, only evidence relevant to the issues identified in the 1984 Act can be presented. The authority must show a case to the civil standard of proof. The authority need not be . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Columbia Pictures Industries Inc v Robinson ChD 1986
The plaintiff had obtained an Anton Piller order against a defendant whose business consisted almost entirely in the manufacture and sale of pirated videos.
Held: The injunction had been obtained for an improper purpose and without full . .
Appeal From – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
Cited – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – B and others v Attorney General and others PC 16-Jul-2003
(New Zealand) Children were removed from their home. The father was interviewed for suspected child abuse, but no charges were laid. He sought damages in negligence for the way the matter had been handled. Children whose allegations against adopted . .
Cited – Harris v Evans and Health and Safety Executive CA 24-Apr-1998
A Health and Safety inspector, making negligently excessive requirements of operators of a bungee jump, was not liable since he operated under a statutory duty and had no duty of care to the operators. His duty was owed to members of the public. . .
Cited – Business Computers International Ltd v Registrar of Companies ChD 1988
A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Brooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
Cited – Reeman and Reeman v Department of Transport; West Marine Surveyors and Consultants and Richard Primrose Ltd CA 26-Mar-1997
The purchaser of a fishing boat had relied on an incorrect safety certificate in respect of the vessel. He sought to claim in negligence.
Held: The object of the statutory scheme pursuant to which the certificate had been issued was to promote . .
Cited – Martine v South East Kent Health Authority CA 22-Mar-1993
The authority applied ex parte under the 1984 to the magistrate for the revocation of the plaitiff’s nursing home licence. It was supported by a written statement of the reasons for making the order made by the health authority’s chief nursing . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
See Also – Jain and Another v Trent Strategic Health Authority QBD 4-Dec-2006
. .

Cited by:
Cited – Home Office v Mohammed and Others CA 29-Mar-2011
The claimants sought damages saying that after a decision had been made that they should receive indefinite leave to remain in 2001 (latest), the leave was not issued until 2007 (earliest) thus causing them severe losses. The defendant now appealed . .
At HL – Jain and another v The United Kingdom ECHR 16-Sep-2009
. .
At HL – Jain and another v The United Kingdom ECHR 9-Mar-2010
The applicants ran a Registered Nursing Home. The health authority, having concerns about its elderly residents, brought an ex parte application under section 30 of the Registered Homes Act 1984 for an order cancelling the Certificate of . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Negligence, Human Rights

Updated: 11 November 2021; Ref: scu.280077

Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance): HL 13 Mar 2003

Court to seek and Apply Parliamentary Intention

The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to give effect to the intentions of Parliament, and statutes were to be read accordingly. The words which suggested it only applied to those which had human life given by fertilisation were words of description and not words of exclusive definition.
The words ‘where fertilisation is complete’ were intended not to qualify which embryos were protected, but the time at which they were protected. This was an Act passed for the protection of live human embryos created outside the human body. The essential thrust of section 1(1)(a) was directed to such embryos, not to the manner of their creation. The process was within the scope of the Act, and could accordingly be licensed under it. There was a ‘clear purpose in the legislation’ which could ‘only be fulfilled if the extension [was] made’.
Lord Bingham said: ‘The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulties. Such an approach not only encourages immense preliminary complexity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutia of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement to the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment . . There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking . . The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language . . a revealing example is found in Grant v Southwestern and County Properties Limited [1975] Ch 185, where Walton J had to decide whether a tape recording falls within the expression ‘document’ in the Rules of the Supreme Court. Pointing out, at p190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that a tape recording was a document.’
Lord Steyn noted that Acts were generally to be construed as ‘always speaking’ unless they were in an exceptional category dealing with a particular problem. Otherwise the court was free to apply the meaning of the statute to the present day conditions.

Bingham of Cornhill, Steyn, Hoffmann, Millett, Scott of Foscoe, LL
[2003] UKHL 13, Times 14-Mar-2003, [2003] 2 WLR 692, [2003] 2 AC 687, (2003) 71 BMLR 209, [2003] 1 FCR 577, [2003] 2 All ER 113
House of Lords, Bailii
Human Fertilisation and Embryology Act 1990 1(1)
England and Wales
Citing:
Appeal from – Regina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
Adopted – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Grant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
Cited – Cabell v Markham 1945
In discussing the purposive approach to the interpretation of statutes, the judge held: ‘Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of . .
Cited – Christopher Hill Ltd v Ashington Piggeries Ltd HL 1972
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula.
Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: ‘Unless the Sale of Goods Act 1893 is to be allowed . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .

Cited by:
Cited – Quintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Kay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
Cited – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Cited – Transport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – Barlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.179803

Greater Glasgow Health Board v Doogan and Another: SC 17 Dec 2014

Roman Catholic Midwives, working as Labour Ward Co-ordinators had objected to being involved in an administrative capacity in abortions being conducted by the appellants. The Outer House had said they were not entitled to opt out, but the Inner House had declared that ‘the petitioners’ entitlement to conscientious objection to participation in treatment for termination of pregnancy and feticide all in terms of section 4(1) of the Abortion Act 1967 includes the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing termination of pregnancy or feticide throughout the termination process save as required of the petitioners in terms of section 4(2) of the said Act’. The Board appealed.
Held: The appeal succeeded, and the declarator was set asde.
Lady Hale said: ‘the course of treatment to which the petitioners may object is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It would also, in my view, include the medical and nursing care which is connected with the process of undergoing labour and giving birth, – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane. In some cases, there may be specific aftercare which is required as a result of the process of giving birth, such as the repair of an episiotomy. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the 1967 Act and thus was not made lawful by it.’
. . And ‘Whatever the outcome of the objectors’ stance, it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional’s duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection. ‘

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKSC 68, [2015] 2 WLR 126, [2014] WLR(D) 550, UKSC 2013/0124
Bailii, WLRD, Bailii Summary, SC Summary, SC
Abortion Act 1967 4(2), Human Fertilisation and Embryology Act 1990
Scotland
Citing:
At Outer House – Doogan and Another, Re Judicial Review SCS 29-Feb-2012
(Outer House, Court of Session) Midwives worked on a labour ward which also had care of patients having later terminations. As sincere Roman Catholics, they sought to assert a right of conscientious objection to allow them to be excused from taking . .
Appeal from – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Regina v Newton and Stungo 1958
Ashworth J gave a direction at trial: ‘The law about the use of instruments to procure miscarriage is this: such use of an instrument is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman. . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security CA 1981
The College sought clarification of the role to be undertaken by nurses in abortion procedures. Lord Denning MR said: ‘when a pregnancy is terminated by medical induction, who should do the actual act of termination? Should it be done by a doctor? . .
Cited – Janaway v Salford Area Health Authority HL 1-Feb-1988
The plaintiff took work as a secretary at a health centre, but objected to having to type out letters referring patients to an abortion clinic, saying that she conscientiously objected to participation in the process.
Held: Her appeal was . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.540220

Z v Finland: ECHR 25 Feb 1997

A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with HIV. Z’s doctors had been required to give evidence about her medical condition in spite of their, and her, objections to the disclosure of this information, and the police seized her medical records, including laboratory tests and information about her mental state. The police copied these and the Court included them in the case file.
Held: The court considered the making of an order for the disclosure of medical records: ‘In this connection the court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection those in need of medical assistance may be deterred, when revealing such information of a personal and intimate nature as may be necessary in order to receive the appropriate treatment, from seeking such assistance thereby endangering their own health but, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards so there may be no such communication or disclosure of personal health data as may be inconsistent with the guarantees of Article 8 of the Convention.’

22009/93, (1997) 25 EHRR 371, [1997] ECHR 10
Worldlii, Bailii
Human Rights
Cited by:
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – Szuluk, Regina (on the Application of) v HM Prison Full Sutton Admn 20-Feb-2004
The prisoner was receiving long term health treatment, and objected that his correspondence with the doctor was being read. He was held as a category B prisoner but in a prison also holding category A prisoners, whose mail would be read. The prison . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – KD v Chief Constable of Hampshire QBD 23-Nov-2005
The claimant’s daughter had made a complaint of rape. She alleged that she was sexually harassed by the investigating police officer, and sought damages also from the defendant, his employer. The officer denied that anything improper or . .
Cited – TB, Regina (on the Application of) v The Combined Court at Stafford Admn 4-Jul-2006
The claimant was the child complainant in an allegation of sexual assault. The defendant requested her medical records, and she now complained that she had been unfairly pressured into releasing them.
Held: The confidentiality of a patient’s . .
Cited – Re B (Disclosure to Other Parties) 2001
Witnesses and others involved in children proceedings have article 8 rights. . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Mersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
Cited – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Hafner and Hochstrasser (A Firm), Regina (on the Application of) v Australian Securities and Investments Commission Admn 5-Mar-2008
The Commission renewed its application for a review of a decision on their request for judicial assistance in obtaining evidence from the firm. The firm had produced confidential documents to the court, and not disclosed to the Commission.
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Information, Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.165488

British Pregnancy Advisory Service v Secretary of State for Health: Admn 14 Feb 2011

The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical abortions in part self-administered.
Held: The request was refused. Parliament had passed the Act aware that future medical developments might allow medical rather than surgical abortions.
Section 1(3A) refers to treatment consisting primarily in the ‘use’ of medicines; it is not limited to the prescription of medicines. Furthermore the section does make clear Parliament’s decision that it is the Secretary of State, not the medical profession, who has the responsibility for approval of the place where the treatment may take place.

Supperstone J
[2011] EWHC 235 (Admin), [2011] 3 All ER 1012, [2011] 3 FCR 541, [2011] Med LR 191, (2011) 118 BMLR 172, [2012] 1 WLR 580
Bailii
Abortion Act 1967 1, Human Fertilisation and Embryology Act 1990
England and Wales
Citing:
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Janaway v Salford Area Health Authority HL 1-Feb-1988
The plaintiff took work as a secretary at a health centre, but objected to having to type out letters referring patients to an abortion clinic, saying that she conscientiously objected to participation in the process.
Held: Her appeal was . .
Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Cited – Isle of Anglesey County Council and Another v The Welsh Ministries and others CA 20-Feb-2009
The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make . .

Cited by:
Main Judgment – British Pregnancy Advisory Service v Secretary of State for Health Admn 18-Mar-2011
. .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – British Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 5-Jun-2019
Abortion Time Limit statement was correct.
The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the . .

Lists of cited by and citing cases may be incomplete.

Health, Health Professions

Updated: 10 November 2021; Ref: scu.429679

Susisalo And Others: ECJ 21 Jun 2012

ECJ Article 49 TFEU – Freedom of establishment – Public health – Pharmacies – National licensing scheme for the operation of pharmacies – Establishment of branch pharmacies – Conditions which differ according to whether the pharmacy is a private pharmacy or a University of Helsinki pharmacy – University of Helsinki Pharmacy having specific tasks in connection with pharmacy teaching and pharmaceutical services

Lenearts P
C-84/11, [2012] EUECJ C-84/11
Bailii
European

European, Health Professions

Updated: 10 November 2021; Ref: scu.460898

Regina v Shulman, Regina v Prentice, Regina v Adomako and Regina v Holloway: CACD 21 May 1993

A patient had been injected with the wrong medicine, and died as a result.
Held: The ingredients of the offence of involuntary manslaughter by breach of duty are the existence and breach of a duty, which had caused death and gross negligence considered so serious as to justify a criminal conviction; the jury might properly find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled either with a determination nevertheless to run it or with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction or of inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded he should address; The appeals of the two junior doctors and the electrician would be allowed and the appeal of the anaesthetist, namely Dr. Adomako, was be dismissed.

Independent 21-May-1993, Gazette 30-Jun-1993, Times 21-May-1993
England and Wales
Cited by:
Cited – Regina v Director of Public Prosecutions, ex parte Jones CA 2000
A company Managing Director had arranged for a dockside crane to be adapted, so that with the jaws of the grab bucket open bags could be attached to hooks fitted within the bucket. Jones was in the hold of a ship loading bags onto the hooks when the . .
Cited – Regina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Appeal from – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Leading Case

Updated: 10 November 2021; Ref: scu.87569

Petrova v Latvia: ECHR 24 Jun 2014

pterova_latviaECHR2007

ECHR Article 8-1
Respect for private life
Removal of organs for transplantation without knowledge or consent of closest relatives: violation
Facts – In 2002 the applicant’s adult son died in a public hospital in Riga as a result of serious injuries sustained in a car accident. The applicant subsequently discovered that her son’s kidneys and spleen had been removed immediately after his death without her knowledge or consent. Her complaint to the Prosecutor General was dismissed on the grounds that the organs had been removed in accordance with domestic law. The applicant had not been contacted because the hospital had no contact details and, as the law then stood, medical practitioners were only obliged to actively search and inform close relatives of possible organ removal if the deceased was a minor.
Law – Article 8: The applicant complained that she had not been informed about the possible removal of her son’s organs for transplantation purposes and had therefore been unable to exercise certain rights established under domestic law. Latvian law at the relevant time explicitly provided close relatives of the deceased, including parents, with the right to express their wishes regarding the removal of organs. The point at issue was therefore whether or not the law was sufficiently clear. The Government argued that when close relatives were not present at the hospital, national law did not impose an obligation to make specific inquiries with a view to ascertaining whether there was any objection to organ removal and that, in such cases, consent to removal could be presumed. However, the Court found that the way in which this ‘presumed consent system’ operated in practice in cases such as the applicant’s was unclear: despite having certain rights as the closest relative she was not informed – let alone provided with any explanation – as to how and when those rights could be exercised. The time it had taken to carry out medical examinations to establish the compatibility of her son’s organs with the potential recipient could have sufficed to give her a real opportunity to express her wishes in the absence of those of her son. Indeed, even the Minister of Health had expressed the opinion that the applicant should have been informed of the planned transplantation. Moreover, amendments had since been made to the relevant domestic law. The Court accordingly found that Latvian law as applied at the time of the death of the applicant’s son had not been formulated with sufficient precision or afforded adequate legal protection against arbitrariness.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

4605/05 – Chamber Judgment, [2014] ECHR 647, 4605/05 – Legal Summary, [2014] ECHR 805
Bailii, Bailii
European Convention on Human Rights 6 8-1

Human Rights, Health, Health Professions

Updated: 10 November 2021; Ref: scu.535176

G, Re (Human Fertilisation and Embryology Act 2008): FD 6 Apr 2016

The applicant sought a declaration of parenthood. She and her same sex partner had been asked to signthe wrong forms when undergoing fertility treatment.
Held: The court was able to rely upon the euitable doctrine of recification were there had, as here, been a clear mistake. In this cas a wholesale transposition of the content from the correct form was better calculated to achieve the desired result.

Sir James Munby P FD
[2016] EWHC 729 (Fam), [2016] 4 WLR 65, [2016] WLR(D) 177
Bailii, WLRD
Family Law Act 1986 55A, Human Fertilisation and Embryology Act 2008 42(1)
England and Wales

Health Professions, Children, Equity

Updated: 10 November 2021; Ref: scu.561546

The NHS Business Services Authority v Williams: ChD 28 Jul 2016

The court was asked whether the Respondent was ‘in pensionable employment as a nurse’ within the meaning of Regulation 2 of Part R of the 1995 Regulations. She had no nursing qualification, and had worked as a nursery nurse in a hospital. The Authority now appealed against a decision that she was.
Held: The appeal succeeded. The phrase ’employment as a nurse’ within the Regulations had been intended to capture those members of the scheme who were qualified nurses employed in nursing jobs.

Warren J
[2016] EWHC 1952 (Ch), [2016] WLR(D) 461
Bailii, WLRD
National Health Service Pension Scheme Regulations 1995
England and Wales

Health Professions, Employment

Updated: 10 November 2021; Ref: scu.568631

Savage v South Essex Partnership NHS Foundation Trust (MIND intervening): HL 10 Dec 2008

The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that she was detained for her own protection rather than to protect others required different standards from the hospital. Just what protection was required was a matter for trial. At common law, ‘in deciding what measures should be taken to protect the lives of patients in mental hospitals, or of patients in general hospitals who are suffering from mental illness, the authorities will have to take account of the vulnerability of these patients – including a heightened risk they may commit suicide.’
Under Article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals which ‘requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients.’

Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger
[2008] UKHL 74, [2009] HRLR 12, [2009] 1 All ER 1053, [2009] PTSR 469, [2009] UKHRR 480, [2009] 2 WLR 115, (2009) 12 CCL Rep 125, [2009] 1 AC 681, (2009) 105 BMLR 180, [2009] LS Law Medical 40
Bailii, HL, Times
Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1976, Human Rights Act 1998 7, European Convention on Human Rights 2, Mental Health Act 1983 3
England and Wales
Citing:
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Appeal from – Savage v South Essex Partnership NHS Foundation Trust and Another CA 21-Dec-2007
The claimant said that the defendant hospital had been negligent in failing to prevent her daughter escaping from the mental hospital at which she was detained and committing suicide.
Held: The status of a detained mental patient was more akin . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – LCB v United Kingdom ECHR 9-Jun-1998
The applicant’s father had been present on Christmas Island during British nuclear tests. She was diagnosed with leukaemia. She claimed the UK had been should have warned her parents of the risks associated with exposure to radiation and monitored . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Renolde v France ECHR 16-Oct-2008
A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Ataman v Turkey ECHR 27-Apr-2006
The Court set out the need to supervise soldiers to whom weapons were entrusted and to prevent suicides. Since the carrying of weapons was involved, the authorities could be expected to show particular diligence and adopt a suitable system for . .
Cited – Akdogdu v Turkey ECHR 18-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 2; Violation of Art. 3; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses . .
Cited – Kilinc And Others v Turkey ECHR 7-Jun-2005
kilinc_turkeyECHR05
A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces. . .
Cited – Slimani v France ECHR 27-Jul-2004
A Tunisian was committed to a psychiatric hospital on several occasions. He died while detained in a detention centre awaiting deportation. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre . .
Cited – Salman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Isiltan v Turkey ECHR 22-May-1995
(Commission) . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
Cited – Tarariyeva v Russia ECHR 14-Dec-2006
A complaint was made that the authorities had failed in their duty to protect a prisoner’s life. The authorities had him in custody for two years and knew of his health problems. He was not properly treated in the penal colony. When he had acute . .
Cited – Dodov v Bulgaria ECHR 17-Jan-2008
The applicant’s mother, who had Alzheimer’s lived in a nursing home needing constant supervision. She was left alone in a courtyard and disappeared. There had been negligence by staff in leaving her alone. The applicant complained to the . .
Cited – Thorne v Northern Group Hospital Management Committee 6-Jun-1964
At common law, ‘as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental . .
Cited – Selfe v Ilford and District Hospital Management Committee 26-Nov-1970
. .
Cited – Herczegfalvy v Austria ECHR 24-Sep-1992
The applicant was detained in an institution for mentally deranged offenders. While so detained he was subjected to the forcible administration of food and neuroleptics and to handcuffing to a security bed. He complained of violation of his Article . .
Cited – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
Cited – Sacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
Cited – Goodson v HM Coroner for Bedfordshire and Luton Admn 17-Dec-2004
A patient had died in hospital following an operation. The NHS Trust submitted that ‘There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London Admn 16-Dec-2004
A patient suffering schizophrenia had been a voluntary patient. He was allowed to visit another unit within the hospital grounds, but then left altogether and was next found preparing to jump from Tower Bridge. He was taken by ambulance to Hospital . .

Cited by:
Cited – Rabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .

Lists of cited by and citing cases may be incomplete.

Negligence, Human Rights, Health Professions

Leading Case

Updated: 10 November 2021; Ref: scu.278662

Re JS (Disposal of Body): FD 10 Nov 2016

Child’s Wish for post-mortem cryonic Preservation

JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents were divorced, and they differed as to what should be done.
Held: The form of application was for a specific issue order. JS had capacity, and there would be no inevitable practical obstacle: ‘All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.’
Applying the JSB case, with acknowledgement to the different statutory context, a prospective order was available, and granted injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies.

Peter Jackson J
[2016] Inquest LR 259, [2016] EWHC 2859 (Fam), (2017) 153 BMLR 152, [2016] WLR(D) 650, [2017] WTLR 227, [2017] Med LR 37, [2017] 4 WLR 1
Bailii, Judiciary
Human Tissue Act 2004, Children Act 1989 8, Wills Act 1837 8, Non-Contentious Probate Rules 1987 22(1)(c)
England and Wales
Citing:
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – Regina v Gwynedd County Council ex parte B and Another 1992
The ambit of the 1980 act does not extend to regulating events arising after a child’s death. . .
Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
Cited – Borrows v HM Coroner for Preston QBD 15-May-2008
The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral. . .
Cited – Ibuna and Another v Arroyo and Another ChD 2-Mar-2012
The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (‘Congressman Arroyo’) to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines. . .
Cited – Anstey v Mundle ChD 2016
When faced with a dispute as to the disposal of a deceased’s body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements . .
Cited – Curtis v Sheffield CA 1882
Lord Jessel MR said: ‘Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – Public Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Applied – In re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
Cited – Takamore v Clarke and others 18-Dec-2012
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
Cited – Hughes and Others v Bourne and Others ChD 27-Jul-2012
A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children, Health Professions

Leading Case

Updated: 09 November 2021; Ref: scu.571412

Bradshaw v General Medical Council: Admn 4 Jun 2010

The doctor sought to end an order temporarily suspending his registration. He had been accused of dishonesty in his practice records, and of making false allegations against a fellow doctor. The suspension was pending the hearing. He was undergoing retraining, and said that the interim suspension would make it impossible to continue.
Held: The appeal failed. Exercising his own judgment, but respecting that of the Panel, that decision was correct. The nature and seriousness of the allegations, and the evidence in support of it, (accepting that they were not yet proved) justified the suspension.

Roger Kaye QC J
[2010] EWHC 1296 (Admin), [2010] Med LR 323
Bailii
Medical Act 1983 41A
England and Wales
Citing:
Cited – General Medical Council (GMC) v Hiew CA 30-Apr-2007
The doctor sought to challenge the extension of his suspension from practice.
Held: It was inappropriate in such an application to challenge the findings of fact which had led to the initial suspension. If he wished to do that, he should seek . .
Cited – General Medical Council v Sheill Admn 30-Nov-2006
. .
Cited – Shiekh, Regina (On the Application of) v General Dental Council Admn 9-Nov-2007
. .
Cited – Regina (On the Application of Sosanya) v General Medical Council Admn 2009
The court considered an application to lift the doctor’s suspension.
Held: Though a charge of money-laundering was not sufficient to justify suspension, the court also noted that no risk to members of the public had been identified from Dr . .
Cited – Walker, Regina (on the Application of) v General Medical Council Admn 15-Aug-2003
Where a doctor sought to have lifted an extension to his suspension, the court should start from the position that the suspension was currently in place before deciding whether it needed altering. However, ‘The terms of subsection 10 indicate that . .
Approved – Sandler v General Medical Council Admn 14-May-2010
Nicol J considered the court’s jurisdiction under section 41A(10) and said: ‘Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler’s . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 09 November 2021; Ref: scu.416396

In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others: FD 11 Sep 2015

The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
Held: The court pointed again to the failures to keep proper records within several fertility clinics. However: ‘Given the statutory framework, what it provides and, equally significant, what it does not provide, I do not see how a mere failure to comply with the HFEA’s direction that Form WP and Form PP ‘must’ be used can, of itself, invalidate what would otherwise be a consent valid for the purposes of section 37 or section 44. These sections do not prescribe a specific form. What is required is a ‘notice’ and that is not defined, although I would agree with Miss Broadfoot that, given the context, what is required is a document of some formality. The argument must be that it is the combined operation of section 12(1)(d) of the 1990 Act, which in effect elevates this requirement into a condition of the licence, coupled with the words ‘treatment provided . . under the licence’ in sections 37(1)(a) and 44(1)(a) (and the corresponding words ‘being so treated’ in sections 37(1)(b) and 44(1)(b)), that invalidates what would otherwise be a consent valid for the purposes of section 37 or section 44.’
. . And ‘in principle:
i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;
ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.
iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.[2]
iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.’

Sir James Munby
[2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, (2015) 146 BMLR 123, [2015] 3 FCR 555, [2016] 1 All ER 273, [2015] WLR(D) 387, [2015] Fam Law 1333
Bailii, WLRD
Human Fertilisation and Embryology Act 2008
England and Wales
Citing:
Cited – AB v CD FD 24-May-2013
The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of . .
Cited – Wallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
Cited – X v Y v St Bartholomew’s Hospital Centre for Reproductive Medicine (Assisted Reproduction: Parent) FC 13-Feb-2015
The required Form PP was not on the clinic’s file. Theis J set out four issues which accordingly arose: (1) Did X sign the Form PP so that it complied with section 37(1) of the 2008 Act? (2) If X did, was the Form PP subsequently mislaid by the . .

Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 09 November 2021; Ref: scu.552779

The British Medical Association, Regina (on the Application of) v The General Medical Council and Another: Admn 4 May 2016

The BMA sought to challenge the validity of the rules governing the procedure of Fitness to Practice panels. In particular the BMA challenged the new absence of a requirement that the panel’s legal advice and assistance be available to the parties.
Held: The claim failed: ‘I am wholly unconvinced that a legally qualified chair has two discrete and distinct functions subject to different criteria of conduct, so that, when he advises his fellow panel members, the jurisprudence that has built up around assessors applies.’
Although not formally judicial bodies, GMC disciplinary panels – FPPs and IOPs, and their predecessors or successors – exercise a judicial function, in respect of which the requirement for a fair hearing is protected by both article 6 of the ECHR and the common law.
Where a legal member of a tribunal expresses a view on the law to other members, he can properly be described as ‘advising’ those other members, without engaging the jurisprudence of legal assessors, because the member is a full member of the tribunal who participates fully in the decision-making process and thus attracting all of the jurisprudence that attaches to judges and other legal members who exercise full judicial function within a mixed tribunal.

Hickinbottom J
[2016] EWHC 1015 (Admin), [2016] 4 WLR 89, [2016] WLR(D) 237
Bailii, WLRD
Medical Act 1983, General Medical Council (Fitness to Practise and Over-arching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015
England and Wales
Citing:
Cited – Fox v General Medical Council PC 1960
The appeal by a doctor from the disciplinary committee of the GMC to the board of the Privy Council lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that . .
Cited – Nwabueze v General Medical Council PC 6-Apr-2000
Deliberations of the professional conduct committee hearing a case of professional conduct were in the presence of an assessor who gave advice to the committee. After returning from deliberation the assessor described the advice given, and the . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 18-Oct-1982
Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
Cited – Clark (Procurator Fiscal, Kirkcaldy) v Kelly PC 11-Feb-2003
PC (The High Court of Justiciary) The minuter challenged the role of the legal adviser to the district courts in Scotland, and as to his independence.
Held: The legal adviser was not subject to the same . .
Cited – Chien Sing-Shou v The Building Authority PC 12-Jun-1967
(Hong Kong) The Board considered the Hong Kong Architects’ Disciplinary Board which, by section 5 of the Buildings Ordinance 1955, comprised five members: three architects, the Building Authority or his representative, and ‘a legal adviser’. The . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 09 November 2021; Ref: scu.563227

Kulkarni v Milton Keynes Hospital NHS Foundation Trust and Others: CA 23 Jul 2009

The doctor claimant sought to assert a right to have legal representation in disciplinary proceedings by his employer.
Held: The doctor’s contract entitled him to representation. Also, the claimant’s Article 6 rights to a fair trial and to legal representation will apply in disciplinary proceedings brought by a public sector employer, where the consequences of a contrary finding in those proceedings are such that the employee will be effectively barred from practising his profession. The Department of Health Policy document denied a right to representation in a legal capacity and was wrong.

Smith LJ
[2009] EWCA Civ 789, Times 06-Aug-2009, [2009] 109 BMLR 133, [2009] IRLR 829, [2009] LS Law Medical 465
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Appeal from – Kulkarni v Milton Keynes Hospital NHS Trust QBD 1-Aug-2008
The claimant sought an extension to his injunction that the defendant should not depart from its disciplinary procedures. . .

Cited by:
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Cited – Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust QBD 1-Aug-2011
The claimant who had been dismissed by the defendant, asked the court to find that the defendant had failed to meet its contractual obligations as to the procedure to be followed, and that therefore the court declare the dismissal void.
Held: . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.361452

Healthcare at Home Ltd v The Common Services Agency: SC 30 Jul 2014

The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an unsuccessful tenderer for a public contract challenges that award, the issue as to whether the criteria for the award of the contract had been sufficiently clearly set out was to be decided by the court by applying an objective legal standard with reference to a reasonably well informed and diligent tenderer. It did not depend on the evidence of witnesses as to how they had understood the document.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hughes
[2014] UKSC 49, [2014] WLR(D) 351, UKSC 2013/0108, [2014] PTSR 1081, 2014 GWD 25-505, 2014 SLT 769
Bailii, WLRD, Bailii Summary, SC Summary, SC
Scotland
Citing:
Outer House – Healthcare At Home Ltd v The Common Services Agency SCS 1-Feb-2011
Outer House – The pursuer sought an order in terms of the Regulation, setting aside the decision of the defender to award the ‘NP 341/10 Trastuzumab Homecare and Near Patient Treatment Services’ Framework Agreement to BUPA Home Healthcare Ltd. . .
Outer House (2) – Healthcare At Home Ltd v The Common Services Agency SCS 1-May-2012
Outer House – Healthcare challenged the award of a framework agreement contract to a competitor contractor. . .
Inner House – Healthcare At Home Ltd v The Common Services Agency SCS 21-Mar-2013
Inner House – Healthcare challenged the loss of a contract for provision of cancer treatments for their patients to a competitor. . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – SIAC Construction v County Council of the County of Mayo ECJ 18-Oct-2001
ECJ Public works contracts – Award to the most economically advantageous tender – Award criteria.
There was a disagreement between the parties as to the interpretation of tender documents.
Held: The . .
Cited – Commission v Netherlands ECJ 10-May-2012
ECJ Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Procedures for the award of public works contracts, public supply contracts and public service contracts – Contract for the supply, . .
Cited – Evropaiki Dynamiki v EMSA ECFI 2-Mar-2010
ECJ Law Relating To Undertakings – Public service contracts EMSA tendering procedures – Provision of information technology services – Rejection of the tender – Action for annulment – Jurisdiction of the Court – . .
Cited – Lammerzahl GmbH v Freie Hansestadt Bremen ECJ 7-Jun-2007
Judgment – Law Relating To Undertakings – Public contracts Directive 89/665/EEC Review procedures concerning the award of public contracts Limitation period Principle of effectiveness
Article 1 of the Directive required member states to take . .
Cited – EVN AG et Wienstrom GmbH v Republik Osterreich ECJ 4-Dec-2003
ECJ Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive . .
Cited – Universale-Bau and others v Entsorgungsbetriebe Simmering GmbH ECJ 12-Dec-2002
ECJ Judgment – Directive 93/37/EEC – Public works contracts – Definition of ‘contracting authority’ – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates . .

Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

European, Health Professions, Commercial

Updated: 09 November 2021; Ref: scu.535438

Barts and The London NHS Trust v Verma: SC 24 Apr 2013

The parties disputed the effect of the NHS terms for employment of doctors, and in particularly the provisions as to maintenance of pay grade. The doctor had become a consultant trust grade doctor in oral surgery, but was then required to retrain from her qualification as a dentist. She said that she was entitled to not have her pay reduced while training. Her appeal to the EAT had been successful, but the Court of Appeal had restored the Employment Tribunal’s rejection of her claim.
Held: The appeal succeeded. The terms of the agreement were not well drafted as was demonstrated by the number of different interpretations of them. However the case was resolved by using the standard techniques of contract interpretation using and giving the words used their natural and ordinary meanings to reveal the parties’ intentions. The meaning of the ‘incremental point’ reached by a practitioner was derived by converting sessional to hourly rates, not limited by the number of sessions worked. This interpretation of section 132 of the Terms was supported by other provisions.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Sumption, Lord Carnwath
[2013] UKSC 20, [2013] ICR 727, [2013] WLR(D) 152, [2013] IRLR 567, UKSC 2011/0246
Bailii, Bailii Summary, SC, SC Summary
Employment Rights Act 1996
England and Wales
Citing:
At EAT – Verma v Barts and The London NHS Trust EAT 23-Nov-2010
EAT CONTRACT OF EMPLOYMENT – Construction of term
UNLAWFUL DEDUCTION FROM WAGES
On the true construction of the pay protection provisions in the Terms and Conditions for Hospital Doctors a part-time . .
Appeal from – Barts and The London NHS Trust v Verma CA 12-Oct-2011
The doctor, originally qualified as a dentist, had achieved a contractual status as a surgeon with the Trust. When required to retrain, she complained that contrary to the NHS Terms for the employment of doctors, her pay grade had not been . .
Applied – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Contract, Employment

Updated: 09 November 2021; Ref: scu.472942

Landeshauptstadt Kiel v Norbert Jaeger: ECJ 9 Sep 2003

Concepts of working time and rest period – On Call

ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals.
Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals
Where a doctor was required to be on hospital premises whilst he was ‘on-call’, the full on call duty was to be counted for the purposes of the working time Directive. This applied equally to periods in which he would be entitled to rest. Such periods of inactivity were part and parcel of on-call duties. There was a need for doctors to be available for emergencies and such rest could not be planned. ”working time’ shall mean any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”.

GC Rodriguez Iglesias, President, M Wathelet, R Schintgen (Rapporteur) and CWA Timmermans, Presidents of Chambers, C Gulmann, DAO Edward, P Jann, V Skouris, F Macken, N Colneric, S von Bahr, JN Cunha Rodrigues and A Rosas
C-151/02, Times 26-Sep-2003, [2003] EUECJ C-151/02, [2004] ICR 1528, (2004) 75 BMLR 201, [2003] 3 CMLR 16, [2003] ECR I-8389, [2004] All ER (EC) 604, [2003] IRLR 804
Bailii
Council Directive 93/104/EC concerning certain aspects of the organisation of working time.
European
Citing:
Cited – Sindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .

Cited by:
Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Cited – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Cited – Hughes v Jones and Another EAT 3-Oct-2008
EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
Approved – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Gallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
Cited – Hughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.186330

Edwards v Chesterfield Royal Hospital NHS Foundation Trust: CA 26 May 2010

The claimant, a consultant doctor, sought damages saying that his employer had failed to follow the contract when disciplining and dismissing him. The GMC had dismissed as unfounded the allegation on which the dismissal was based. He sought damages for the severe and continuing damages to his career. The court had limited his claim to loss of earnings.
Held: The question was whether he was entitled as a matter of law to recover damages for the loss of the opportunity to hold another full-time appointment with the NHS as a consultant surgeon. Damage caused to an employee’s reputation by the manner of his dismissal is not normally recoverable, because the making and conduct of a complaint made does not amount to a breach of contract, and damages are not recoverable for personal distress or loss of reputation, except in a limited class of cases. ‘However, the proposition that a breach of contract in the form of a failure to comply with an agreed disciplinary procedure gives rise to no claim is difficult to accept in principle and is difficult to reconcile with the decision in Gunton.’
Assuming the facts for the purposes of the appeal: ‘Mr. Edwards relies on two breaches of his contract: summary dismissal and a failure to carry out a proper disciplinary procedure. He can also point to the fact that the failure to carry out the proper disciplinary procedure resulted in the very findings of misconduct that have prevented him from obtaining similar employment elsewhere in the NHS. On the facts that must be assumed in his favour, therefore, wrongful dismissal is not his only cause of action and his claim for damages for failure to carry out proper disciplinary proceedings is not excluded by Johnson v Unisys.’

Ward LJ, Lloyd LJ, Moore-Bick LJ
[2010] EWCA Civ 571, [2010] WLR (D) 135, [2010] IRLR 702, [2010] Med LR 307
Bailii, WLRD
England and Wales
Citing:
Appeal from – Edwards v Chesterfield Royal Hospital NHS Foundation Trust QBD 31-Jul-2009
The claimant, a consultant surgeon had been subject to disciplinary proceedings by his employer. They were however conducted in a manner which breached his contract. The GMC had summarily dismissed the same allegations. The claimant now appealed . .
Cited – Gunton v Richmond-upon-Thames London Borough Council CA 1980
The plaintiff college registrar had been the subject of disciplinary proceedings, but the defendant had not followed the contractual procedure. The judge had ordered an inquiry as to damages on the basis that the Plaintiff was entitled to remain in . .
Cited – Malloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
botham_modQBD10
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Eastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Eastwood v Magnox Electric plc CA 2002
There was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer . .
Cited – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Cited – Skidmore v Dartford and Gravesham NHS Trust HL 22-May-2003
The disciplinary code for doctors employed by the NHS provides different procedures cases involving allegations of ‘professional conduct’ or ‘personal conduct.’ The first would involve a more judicial process, and the second a more informal . .

Cited by:
Appeal from – Edwards v Chesterfield Royal Hospital NHS Foundation Trust SC 14-Dec-2011
The claimant had been employed as consultant surgeon. He had been dismissed in a manner inconsistent with the extress terms of his employment contract. He sought common law damages for the manner of his dismissal. The employer appealed.
Held: . .

Lists of cited by and citing cases may be incomplete.

Employment, Damages, Health Professions

Updated: 01 November 2021; Ref: scu.416099

Salford Royal NHS Foundation Trust v Roldan: CA 13 May 2010

The employee appealed against the reversal by the EAT of her successful claim for unfair dismissal. She had been dismissed for alleged gross misconduct in disrespectful treatment of a patient. She said that investigation had been procedurally unfair. The EAT had discounted each of three reasons the tribunal had found for finding the procedures unfair.
Held: The appeal succeeded, and the Tribunal decision was re-instated. The EAT had directed itself correctly as to the law, but had misunderstood the factual basis of the Tribunal’s decision.
Since no evidence had been brought as to issues under section 98A, there was no obligation on the tribunal to consider it.
Tribunals should be careful of compartmentalising evidence for different stages of a hearing where this may result in a witness giving evidence on the same matters more than once, and ‘where there is a split hearing, the parties before the Tribunal clarify with the Tribunal precisely what issues the Tribunal wish to have determined at which stage. If there is doubt about whether a party needs to adduce evidence on a particular point or whether it should be left to a later hearing, that ought to be raised with the Tribunal.’
In misconduct hearings dependant on sharply conflicting witness evidence, it can be proper for a disciplinary body to find the case unproved without having to disbelieve any particular witness.

Elias LJ, Etherton LJ
[2010] EWCA Civ 522, (2010) 114 BMLR 152, [2010] IRLR 721
Bailii
Employment Rights Act 1992 98(1)
England and Wales
Citing:
Appeal from – Salford Royal NHS Foundation Trust v Roldan EAT 2-Sep-2009
EAT UNFAIR DISMISSAL
S.98A(2) ERA
Polkey deduction
Contributory fault
The Employment Tribunal erred when if found procedural defects in the investigation by the Respondent of the allegations . .
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Cited – Kelly-Madden v Manor Surgery EAT 19-Oct-2006
EAT The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice . .
Effetively re-instated – British Labour Pump Co Ltd v Byrne EAT 1979
The respondent had been dismissed for misconduct on the morning of the day on which he was dismissed. There had been previous misbehaviour but the industrial tribunal held that the case had to be determined on the basis of what had happened on that . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – Taylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
Applied – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Red Bank Manufacturing Co Ltd v Meadows EAT 1992
A party wishing to complain about a member of the employment tribunal should make his complaint to that tribunal rather than at the EAT. The Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even . .

Cited by:
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .
Cited – Boardman v Nugent Care Society and Another EAT 10-Jul-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
Appeal by employee against Employment Tribunal’s finding (majority decision) that claims of unfair and wrongful dismissal fail. Teacher dismissed for gross . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 01 November 2021; Ref: scu.414950

Phipps v General Medical Council: CA 12 Apr 2006

Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application and then explained: ‘Whilst I fully accept that the instant case is not a proper forum for the promulgation of guidelines, my provisional view is that paragraph 14 of the decision of the Privy Council in Gupta v GMC identifies an approach which reflects current norms of judicial behaviour. In every case, as it seems to me, every Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost?
If, in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck off the Register. They are entitled to know in clear terms why such findings have been made.’

Lady Justice Arden Lord Justice Wall
[2006] EWCA Civ 397, [2006] Lloyds Reports (Medical) 345
Bailii
England and Wales
Citing:
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Cited by:
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Southall v The General Medical Council Admn 22-May-2009
The doctor appealed against the erasure of his name from the register of medical practitioners after a finding of serious professional misconduct. There had been earlier similar findings, but based on different allegations.
Held: The doctor’s . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.240359

Re I (Human Fertilisation and Embryology Act 2008): FD 12 Apr 2016

The court considered questions arising on applications for use of the equitable doctrine of rectification in cases of mistake at IVF Clinics.

Sir James Munby
[2016] EWHC 791 (Fam), [2016] Fam Law 678, [2017] 1 FLR 998
Bailii, Judiciary
Human Fertilisation and Embryology Act 2008
England and Wales

Health Professions, Children, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.562140

Ashraf v General Dental Council: Admn 29 Jul 2014

The dentist appealed against an order for his erasure from the register, after findings as to misconduct in the filing of claims to the NHS, despite his acquittal by a criminal court.
Held: The appeal failed. Whilst it would not be usually fair to proceed with disciplinary charges brought on similar facts, it not need always be unfair to proceed.

Sir Brian Leveson P QBD, Cranston J
[2014] EWHC 2618 (Admin), [2014] WLR(D) 342
Bailii, WLRD
Dentists Act 1984 29
England and Wales

Health Professions

Updated: 01 November 2021; Ref: scu.535405

Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson: CA 27 Apr 1994

The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A finding of neglect is rarely consistent with a suicide, or one where the deceased contributed to his own death. It would be wrong to allow the jury to attribute blame.
Sir Thomas Bingham MR said: ‘Despite the rulings given by the appellate courts, problems continue to arise both for coroners seeking to conduct inquests and direct juries in accordance with the law as they understand it and for those interested in the death of a deceased person seeking to explore the full circumstances of the death and draw lessons which may prevent repetition. Coroners do their utmost to confine the proceedings before them within the bounds of what they consider to be proper. Interested parties not infrequently strain to pursue their quarry well beyond the boundaries set by the coroner.’ and ‘General Conclusions. An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbid any expression of opinion on any other matter.
Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, ‘how’ is to be understood as meaning ‘by what means.’ It is noteworthy that the task is not to ascertain how the deceased died, which might reach general and far-reaching issues, but ‘how the deceased came by his death,’ a more limited question directed to the means by which the deceased came by his death. It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.’
‘It is not the function of a coroner or his jury to determine or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame . . the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by ‘neglect’. Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show he obviously needs it may amount to neglect . . Neglect can rarely, if ever, be an appropriate verdict on its own . . Neglect may contribute to a death from natural causes. Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.’

Sir Thomas Bingham MR
Times 28-Apr-1994, Independent 27-Apr-1994, [1995] QB 1, [1994] 3 All ER 972, [1994] 3 WLR 82, (1994) 158 JP 1011;, (1994) 19 BMLR 35
Coroners Act 1988 11(5)(b)(ii), Coroners Rules 1984 36(1) 40
England and Wales
Citing:
Appeal from – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson QBD 12-Jul-1993
northhumberside_jamiesonCA1993
A prisoner had hanged himself after being left unsupervised in a single cell. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A coroner was free not to . .
Cited – Regina v Coroner for Surrey, ex parte Wright 18-Jun-1966
The deceased died when unconscious under general anaesthetic in the course of dental surgery, as a result of an obstruction to his airway.
Held: There was no basis in such circumstances for contending that the verdict of accident should have . .

Cited by:
Cited – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Khan, Regina (on the Application of) v HM Coroner for West Hertfordshire and Another Admn 7-Mar-2002
The deceased died in police custody. The coroner refused to leave to the jury possible verdicts of unlawful killing, or death contributed to by neglect, or breach of his right to life. He adjourned the hearing to allow this challenge.
Held: . .
Cited – Regina on the Application of Mullholland v HM Coroner for St Pancras QBD 7-Nov-2003
The applicant sought to re-open a coroner’s inquest. The deceased had been drunk, slipped banged his head and fallen to the ground. Police and ambulance were called. The ambulance worker was not told he had been unconscious, and he was taken to the . .
Cited – In the Matter of Captain Christopher John Kelly Admn 14-Jun-1996
The deceased was killed by ‘friendly fire’ during a night exercise in Kenya. A verdict of accidental death was returned, and a fresh inquest was sought particularly in the light of a statement from a fellow officer.
Held: The emergence of . .
Cited – Sacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
Cited – In Re Neal (Coroner: Jury) QBD 17-Nov-1995
The father of the deceased sought to have the coroner quash the inquest. His daughter had died in Spain from carbon monoxide poisoning, apparently emanated from a faulty water heater in the apartment in which she had stayed. Her body had been . .
Cited – In re Catherine Lucy Clegg (an Application to Quash Inquisition on Inquest) Admn 2-Dec-1996
The father of the deceased sought an order quashing the inquest on her death. He had recorded a verdict of suicide. She had died from acute salicylate poisoning, an aspirin overdose. The hospital was said not to have recognised her condition and not . .
Cited – Bloom v HM Assistant Deputy Coroner for the Northern District of London and Another Admn 20-Dec-2004
The deceased had gone to hospital and was diagnosed as having a kidney stone. As it was removed there was evidence of infection. She declined and was transferred to the local NHS hospital in intensive care. She died and a post-mortem identified . .
Cited – LM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
Cited – O’Connor, Regina (On the Application of) v HM Coroner for District of Avon and Another Admn 7-May-2009
Two children died when their father jumped with them from a hotel balcony. The father had been acquitted in Crete of manslaughter after evidence of his psychiatric condition. The applicant now challenged the English coroner’s verdict of unlawful . .
Cited – P, Regina (on The Application of) v HM Coroner for The District of Avon CA 18-Dec-2009
The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a . .
Cited – Jones v HM Coroner for The Southern District of Greater London and Another Admn 28-Apr-2010
The mother of the deceased asked for a new inquest, saying that there had been insufficient enquiry. He was an adult suffering Asperger’s syndrome and other difficulties, but had sought and been given excess prescriptions of fentanyl a drug to . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Wilkinson, Regina (on The Application of) v HM Coroner for The Greater Manchester South District Admn 11-Oct-2012
The court was asked whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the 1988 Act is capable of justifying a verdict of ‘unlawful killing’ at an inquest.
Held: The . .
Cited – Kent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
Cited – Sreedharan, Regina (on The Application of) v HM Coroner for The County of Greater Manchester Admn 28-May-2012
The claimant doctor renewed his application for judicial review of the jury verdict of unlawful killing at the inquest into a patient. The patientwas alcoholic. The doctor prescribed a sedative drug for him, but it was known to be potentially lethal . .
Cited – Tyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Coroners, Health Professions, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.87444

Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway: HL 1 Jul 1994

An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross negligence ‘in failing to notice or respond appropriately to obvious signs that a disconnection had occurred and that the patient had ceased to breathe.’
Held: ‘In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following Rex v Bateman, 19 Cr.App.R. 8 and Andrews v Director of Public Prosecutions [1937] AC 576 and that it is not necessary to refer to the definition of recklessness in Reg. v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.’ Following Andrews, the ordinary principles of negligence apply to ascertain whether the defendant breached a duty of care towards the deceased. The next question is whether that breach of duty caused the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
Lord Mackay of Clashfern LC, approving Andrews: ‘On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
My Lords, the view which I have stated of the correct basis in law for the crime of involuntary manslaughter accords I consider with the criteria stated by counsel although I have not reached the degree of precision in definition which he required, but in my opinion it has been reached so far as practicable and with a result which leaves the matter properly stated for a jury’s determination.
My Lords, in my view the law as stated in Reg. v Seymour [1983] 2 AC 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991. It may be that cases of involuntary motor manslaughter will as a result become rare but I consider it unsatisfactory that there should be any exception to the generality of the statement which I have made, since such exception, in my view, gives rise to unnecessary complexity.’
As to Lawrence: ‘In my opinion it is quite unnecessary in the context of gross negligence to give the detailed directions with regard to the meaning of the word ‘reckless’ associated with Reg. v Lawrence [1982] AC 510. The decision of the Court of Appeal (Criminal Division) in the other cases with which they were concerned at the same time as they heard the appeal in this case indicates that the circumstances in which involuntary manslaughter has to be considered may make the somewhat elaborate and rather rigid directions inappropriate. I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter may apply are so various that it is unwise to attempt to categorise or detail specimen directions. For my part I would not wish to go beyond the description of the basis in law which I have already given.’

Lord Mackay of Clashfern LC
Times 04-Jul-1994, Independent 01-Jul-1994, Gazette 21-Jul-1994, [1995] 1 AC 171, [1994] UKHL 6, [1994] 3 WLR 288, [1994] 3 All ER 79
Bailii
England and Wales
Citing:
Approved – Andrews v Director of Public Prosecutions HL 22-Apr-1937
The defendant was accused of manslaughter in a road traffic case.
Held: The House sought a simple definition of manslaughter which would be applicable for road traffic cases. Lord Atkin said: ‘My Lords, of all crimes manslaughter appears to . .
Appeal from – Regina v Shulman, Regina v Prentice, Regina v Adomako and Regina v Holloway CACD 21-May-1993
A patient had been injected with the wrong medicine, and died as a result.
Held: The ingredients of the offence of involuntary manslaughter by breach of duty are the existence and breach of a duty, which had caused death and gross negligence . .
Approved – Rex v Bateman CCA 1925
A doctor was convicted of manslaughter arising out of his treatment of a woman in childbirth. Lord Hewart CJ discussed the law governing manslaughter by negligence, which required, as the element distinguishing criminal from civil liability, proof . .

Cited by:
Cited – Regina v Wacker CACD 31-Jul-2002
The defendant had been convicted of manslaughter. He had been driving a lorry into the UK. 58 illegal immigrants died in the rear. He appealed against his conviction for gross negligence manslaughter, saying that because the victims were engaged in . .
Cited – Regina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Applied – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – Brown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
Cited – L, Regina (on the Application of) v Commissioner of Police of the Metropolis Admn 19-Mar-2006
The court considered the duties on the respondent in providing an enhanced criminal record certificate. In one case, the claimant had brought up her son who was made subject to child protection procedures for neglect. Her job involved supervising . .
Cited – Evans (Gemma), Regina v CACD 2-Apr-2009
The applicant appealed against her conviction for gross negligence manslaughter. Her half sister had died of a heroin overdose. Instead of calling for assistance when she had complained, the defendant and her mother had put the deceased to bed . .
Cited – Winter and Another v Regina CACD 6-Jul-2010
The defendants, father and son, operated a firework storage facility. Two fire service employees died when a fire was fought. They were thought to have been storing Type 1 fireworks for which they had no licence. They were each convicted of . .
Cited – ABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.86037

Re Gard (A Child): FD 24 Jul 2017

The baby boy suffered life threatening conditions. Doctors at the hospital sought directions to allow the withdrawal of life support. His parents wanted him to be given the chance of experimental treatment in the US. In April a declaration had been made allowing the withdrawal of life support. The parents appeals had been rejected by the Court of Appeal, the Supreme Court and the European Court of Human Rights. The parents asserted that new evidence was now available and asked the court to review its decision.
Held: The court had to treat the child’s welfare as the paramount consideartion. The decision could only be reversed for compelling new evidence. The proposed treatment remained completely untested for this condition, and ‘The consequences of the MRI scans were briefly referred to in court last Friday. The parents have had to face the reality, almost impossible to contemplate; that Charlie is beyond any help even from experimental treatment and that it is in his best interests for him to be allowed to die. Given the consensus that now exists between parents, the treating doctors and even Dr Hirano, it is my very sad duty to confirm the declarations that I made in April this year, and I now formally do so. I do not make a mandatory order.’
As to any suggestion that the boy was in effect a prisoner of the state: ‘This is the antithesis of the truth. In this country children have rights independent of their parents. Almost all of the time parents make decisions about what is in the best interests of their children and so it should be. Just occasionally, however, there will be circumstances such as here where a hospital and parents are unable to decide what is in the best interests of a child who is a patient at that hospital. It is precisely because the hospital does not have power in respect of that child that this hospital makes an application to the court, to an independent judge, for a determination of what is in that child’s best interests. In circumstances where there is a dispute between parents and the hospital, it was essential that Charlie was himself independently represented and a guardian was therefore appointed to represent Charlie so that there was someone who could independently report to the court as to what was in his best interests. Our judges are fiercely independent of the state and make decisions, having heard evidence and having considered the law.’

Francis J
[2017] EWHC 1909 (Fam)
Bailii, Judiciary
Children Act 1989 1
England and Wales
Citing:
Cited – Great Ormond Street Hospital v Yates and Others FD 11-Apr-2017
Baby Gard suffered an overwhelming and life threating condition. The Hospital considered that his welfare wa sbest served by withdrawal of life support. His parents could not agree. The Hospital now sought a declaration from the court as to the . .

Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 01 November 2021; Ref: scu.591137

General Medical Council v Adeogba: CA 18 Mar 2016

The court was asked as to the approach to be adopted by a professional regulator, in this case the General Medical Council, when those whom it seeks to regulate do not participate in the potentially lengthy disciplinary hearing convened to examine their behaviour.

Sir Brian Leveson P QBD, Gross LJ, Sir Stanley Burnton
[2016] EWCA Civ 162, [2016] WLR(D) 156
Bailii
England and Wales

Health Professions

Updated: 01 November 2021; Ref: scu.561208

El-Huseini v General Medical Council: Admn 23 Sep 2016

No Doctor’s appeal out of time.

The court was asked whether it had jurisdition to hear an appeal out of time against a suspension of the claimant medical practitioner from practice made on the basis that his fitness to practise was impaired by reason of misconduct and his adverse physical and mental healthHeld: The ourt had no jurisdiction to give an extension of time to hear an appea.

David Cooke HHJ
[2016] EWHC 2326 (Admin)
Bailii
Medical Act 1983 40(4)
England and Wales

Health Professions

Updated: 01 November 2021; Ref: scu.569625

DB v The General Medical Council: QBD 23 Sep 2016

Council unable to Disclose report

The Claimant General Practitioner, sought an order against the General Medical Council to prevent it from disclosing to his former patient, pursuant to his request under the 1988 Act, an expert report obtained by the GMC for the purpose of investigating P’s complaint concerning his professional competence.
Held: The claim succeeded: ‘in conducting the balancing exercise in mixed data cases of this type:
(1) it is essential to keep in mind that the exercise involves a balance between the respective privacy rights of data subjects;
(2) in the absence of consent, the rebuttable presumption or starting point is against disclosure (Durant). Furthermore the express refusal of consent is a specific factor to be taken into account;
(3) if it appears that the sole or dominant purpose is to obtain a document for the purpose of a claim against the other data subject, that is a weighty factor in favour of refusal, on the basis that the more appropriate forum is the Court procedure under CPR 31.’

Soole J
[2016] EWHC 2331 (QB)
Bailii
Data Protection Act 1998
England and Wales

Health Professions, Information

Updated: 01 November 2021; Ref: scu.569595

Jenkins, Regina (on The Application of) v HM Coroner for Portsmouth and South and Others: Admn 11 Dec 2009

The deceased had contracted gangrene, but not sought treatment, and he died of it. The claimant challenged the narrative verdict saying that it was perverse and that the only proper verdict was unlawful killing by his partner, a nurse who had provided some nursing care. The deceased had spiritual beliefs regarding natural healing, and was found to have refused medical assistance.
Held: Had there been a finding that the deceased had lost his capacity before his death, then the partner would have found herself under an obligation to seek treatment. There had been no such finding and the coroner had considered it a a possibility. The claimant had not shown the verdict to be perverse.

Pitchford J
[2009] EWHC 3229 (Admin)
Bailii
England and Wales
Citing:
Cited – Regina v Stone and Dobinson CACD 1977
The male defendant, Stone, and his mentally disabled son lived in Stone’s house with the female defendant, Dobinson. Stone’s sister came to live as a lodger. She neglected herself to such an extent that she became helplessly infirm. Fanny refused to . .
Cited – Land v Land; In re Land, deceased ChD 13-Jul-2006
The claimant had cared for his elderly mother who ‘shunned any type of ‘officialdom’ including doctors and home helps.’ However, the claimant so neglected her that she suffered severe bed sores which had become infected in consequence of her lying . .
Cited – In Re T (Adult: Refusal of Treatment) CA 30-Jul-1992
Appeal with regard to a right as to how the claimant should live. . .
Cited – Regina v Hood CACD 2004
The defendant had been convicted of the manslaughter by gross negligence of his wife. On 14 March 2002 she had suffered a fall at home fracturing a number of bones including her right leg and hip. The defendant sought no medical help until 4 April . .
Cited – HE v Hospital NHS Trust and Another FD 7-May-2003
Munby J gave reasons for his decision to permit AE’s treating doctors to infuse her with blood, if necessary, notwithstanding the existence of a living will in which she refused, in advance, to accept the transfusion of blood. He said: ‘There is now . .

Lists of cited by and citing cases may be incomplete.

Coroners, Health Professions

Updated: 01 November 2021; Ref: scu.384053

Pharmaceutical Society of Great Britain v Storkwain: HL 19 Jun 1986

The defendant pharmacist had filled a prescription, but unknown to him the prescription was forged.
Held: The offence of sale of medicine contrary to the Act was one of strict liability, and was made out.
Lord Goff of Chieveley (with whom the other members of the House of Lords agreed) was prepared to ‘draw support from’ an order made twelve years after the statute he was construing

Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner, Lord Goff of Chieveley
[1986] 2 All ER 635, (1986) 150 JP 385, [1986] 1 WLR 903, 150 JP 385, [1986] Crim LR 813, [1986] UKHL 13, (1986) 83 Cr App R 359
Bailii
Medicines Act 1968 58(2)(a), Medicines (Prescription only) Order 1980
England and Wales
Citing:
Cited – Regina v Tolson CCR 11-May-1889
Honest and Reasonable mistake – No Bigamy
The defendant appealed against her conviction for bigamy, saying that she had acted in a mistaken belief.
Held: A man commits bigamy if he goes through a marriage ceremony while his wife is alive, even though he honestly and reasonably . .
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Appeal from – Pharmaceutical Society of Great Britain v Storkwain 1985
Farquharson J said: ‘It is perfectly obvious that pharmacists are in a position to put illicit drugs and perhaps other medicines on the market. Happily this rarely happens but it does from time to time. It can therefore be readily understood that . .

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.223563

General Dental Council v Savery and Others: Admn 16 Nov 2011

Complaints had been made against certain dentists. Their patients object that they had not been asked about disclosure of their medical records to the tribunals hearing the fitness to practice cases.
Held: The GDC was under no obligation to seek such consent. The obligations to keep medical records confidential was strong, but the intened disclosure was in pursuance of legitimate objectives specified in article 8(2) as being ‘in the interests of . . public safety’, ‘for the protection of health and morals’ and ‘for the protection of the rights and freedoms of others.’ Moreover it was pursuant to law in applying the 1984 Act, and was proportionate because of the high respect given to the duties by the Council and its members.

Sales J
[2011] EWHC 3011 (Admin), [2011] WLR(D) 332
WLRD
European Convention on Human Rights 8, Dentists Act 1984
England and Wales
Citing:
Applied – MS v Sweden ECHR 27-Aug-1997
Hudoc Sweden – communication, without the patient’s consent, of personal and confidential medical data by one public authority to another and lack of possibility for patient, prior to the measure, to challenge it . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Intellectual Property, Human Rights, Information

Updated: 01 November 2021; Ref: scu.448404

Southall v The General Medical Council: Admn 22 May 2009

The doctor appealed against the erasure of his name from the register of medical practitioners after a finding of serious professional misconduct. There had been earlier similar findings, but based on different allegations.
Held: The doctor’s appeal failed. Of the three sets of allegations, one had not been shown to the required standards, and the second would not of itself justify the erasure. The third allegation involved a finding of oppressive behaviour in interviewing a bereaved parent. The panel had been justified in reaching the conclusion it had. ‘Public confidence in the science of expert assessment in those cases where serious issues of child protection were indeed raised would be undermined, if egregious behaviour of the kind under consideration here when combined with the lack of insight into or acknowledgment of its nature and extent was considered to be compatible with continued registration as a medical practitioner. ‘

Blake J
[2009] EWHC 1155 (Admin)
Bailii
England and Wales
Citing:
Cited – Wickramsinghe v United Kingdom ECHR 9-Dec-1997
(Commission) Although professional disciplinary proceedings may be conducted to the criminal standard of proof, that does not make them ‘akin to criminal proceedings’. ‘in general’, disciplinary proceedings are not ‘criminal’ for the purpose of . .
Cited – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
Cited – Cheatle v General Medical Council Admn 27-Mar-2009
. .
See Also – Council for the Regulation of Healthcare Professionals v General Medical Council and Professor Southall Admn 14-Apr-2005
The doctor, a famous pediatrician had been criticised for his trenchant views concerning the probable criminal responsibility of many parents for the cot deaths of their children. The Council referred as too lenient a sentence of being debarred from . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – Phipps v General Medical Council CA 12-Apr-2006
Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application . .

Cited by:
Appeal From – Southall v The General Medical Council CA 20-Apr-2010
. .
Appeal from – Southall v The General Medical Council CA 4-May-2010
The doctor had appealed against an order striking him from the register of medical practitioners. The court having decided that the order could not stand, now considered the appropriate order to make.
Held: It was appropriate to remit the . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 01 November 2021; Ref: scu.346313

MAK and RK v The United Kingdom: ECHR 23 Mar 2010

mak_ukECHR10

When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had acted in a way to infringe the child and the parent’s human rights in acting without parental consent. The child’s condition was not critical, and she was not in any pain or discomfort. Her condition was not deteriorating so as to require the intervention before her mother’s arrival. The Court could find no justification for taking the blood sample and intimate photographs against the express wishes of both parents, and while she was alone in the hospital.
The doctor’s failure to seek a dermatological diagnosis in accordance with recommendation several days additional delay and distress.
The applicant was not prevented from raising a point at the ECHR which could have been raised in the national court but had not been. The parents had been given no remedy for the failings of the doctors, and damages were awarded accordingly.
As to the withdrawal of Legal Aid, where it results in a restriction on the right of access to court, it will only be compatible with Article 6 – 1 if it is both pursuant to a legitimate aim and proportionate to that aim. The principle question for the Court is whether the restriction was legitimate and proportionate.

L Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, J. Sikuta, M. Poalelungi and N. Vucinic
45901/05, [2010] ECHR 363, 40146/06, 28 BHRC 762, (2010) 51 EHRR 14, [2010] 2 FLR 451, (2010) 13 CCL Rep 241, [2010] Fam Law 582
Bailii, Times
European Convention on Human Rights 8 3, Family Reform Act 1969 8, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine
Citing:
Appeal from – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Martin v Legal Services Commission Admn 27-Jul-2007
The claimant challenged by judicial review the discharge of a legal aid certificate in educational negligence proceedings.
Held: A final decision to revoke a legal aid certificate may be challenged by judicial review. . .
Cited – Tyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – RK and AK v The United Kingdom ECHR 18-Oct-2005
The applicants’ young child had been suspected of being the victim of physical abuse. After court proceedings the child was removed. In later proceedings and after being placed with an aunt, she was diagnosed as having brittle bone disease. In the . .
Cited – Prince Hans-Adam II of Liechtenstein v Germany ECHR 12-Jul-2001
Hudoc No violation of Art. 6-1; No violation of P1-1; No violation of Art. 14
Hudoc No violation of Art. 6-1; No violation of P1-1; No violation of Art. 14 . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – Garcia Manibardo v Spain ECHR 15-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses award – Convention proceedings
Limitations on a citizen’s right of access to the . .
Cited – Edificaciones March Gallego S A v Spain ECHR 19-Feb-1998
The right of access to the courts is not an absolute one,and may be properly subject to limitations. . .
Cited – Gasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Del Sol v France ECHR 26-Feb-2002
. .
Cited – TP And KM v The United Kingdom ECHR 10-May-2001
The Grand Chamber found a violation of Articles 8 and 13 and awarded each applicant GBP 10,000 in respect of a separation which lasted a year. Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings: . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – YF v Turkey ECHR 22-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Health Professions, Torts – Other

Updated: 01 November 2021; Ref: scu.403497

BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another: HL 30 Apr 2008

The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s appeal failed. The fact that the guidance differentiated between NHS service and private medical care indicated that this was a matter of policy, not of employment law. As such, the guidance could only have been introduced under the 1971 Act. The guidance was unlawful. (Lord Scott dissenting)

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2008] UKHL 27, Times 01-May-2008, [2008] 2 WLR 1073, [2008] LS Law Medical 265, [2008] 1 AC 1003, [2009] 1 All ER 93, [2008] ICR 659
Bailii, HL
Immigration Act 1971
England and Wales
Citing:
At First Instance – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another QBD 9-Feb-2007
The claimants said that changes to the Highy Skilled Migrant Programme were unfairly introduced, that they had effectively barred non-EU doctors from applying for first tier doctor appointments, and that the guidance could properly be derived only . .
Appeal from – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
Cited – Town Investments Ltd v Department of the Environment HL 2-Mar-1977
The House considered the application of Orders made under the Counter-Inflation Acts 1972 and 1973 to premises let initially to the Minister of Works and then to the Secretary of State for the Environment for occupation by civil servants. Each of . .
Approved – Mapere, Regina (on the Application of) v Secretary of State for the Home Department Admn 3-Jul-2000
To establish a legitimate expectation, the assurances relied on should be assurances that have been given by the decision-maker: ‘it would be wrong in principle for courts to rule that a decision-maker’s discretion should be limited by an assurance . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – S and others v Secretary of State for the Home Department CA 4-Aug-2006
The asylum applicants had complained that the appellant’s discretionary leave policy for the grant of temporary admissions was unlawful. As failed asylum seekers, they had been held on temporary admission rather than being granted discretionary . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Immigration

Updated: 01 November 2021; Ref: scu.267372

Spencer v General Osteopathic Council: Admn 8 Nov 2012

Irwin J was asked to elucidate the meaning of the phrase ‘unacceptable professional conduct’ within the 1993 Act. No authority was cited to the learned judge dealing, specifically, with that phrase in that Act but Counsel for the Appellant placed considerable reliance on authorities concerning legislation governing the medical and dental professions in which ‘misconduct’ was one of the bases upon which the regulator could find fitness to practise impaired. Having considered those authorities Irwin J answered: ‘In my judgment, the starting point for interpreting the Osteopaths Act 1993 must be the language of the Act itself. Although one notes that ‘unacceptable professional conduct’ has the definition in section 20(2): ‘conduct which falls short of the standard required of a registered osteopath’, there is an unhelpful circularity to the definition. Indeed one might not unfairly comment that the statutory definition adds little clarity. The critical term is ‘conduct’. Whichever dictionary definition is consulted, the leading sense of the term ‘conduct’ is behaviour, or the manner of conducting oneself. It seems to me that at first blush this simply does imply, at least to some degree, moral blameworthiness. Whether the finding is ‘misconduct’ or ‘unacceptable professional conduct’ there is in my view an implication of moral blameworthiness, and a degree of opprobrium is likely to be conveyed to the ordinary intelligent citizen. That is an observation not merely about the natural meaning of the language, but about the likely effect of the finding in such a case as this, given the obligatory reporting of a finding under the Act.’

Irwin J
[2012] EWHC 3147 (Admin), [2012] WLR(D) 314, [2013] 1 WLR 1307, (2013) 129 BMLR 162, [2013] Med LR 18
Bailii
Osteopaths Act 1993
England and Wales
Cited by:
Cited – Harford v The Nursing and Midwifery Council Admn 10-Apr-2013
The appellant challenged a finding that her fitness to practice had been impaired by misconduct and the attachment of a conditions of practice order effective for six months.
Held: The Panel had applied the correct test. . .

Lists of cited by and citing cases may be incomplete.

Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.465681

D, Regina (on The Application of) v The General Medical Council: Admn 23 Sep 2013

The Claimant D challenged a decision made by the General Medical Council to waive the ‘five year rule’ under Rule 4(5) of the 2004 Rules and refer allegations involving sexual misconduct by D with a child (X) to the GMC’s case examiners, notwithstanding that they related to matters more than five years old. The GMC’s case examiners subsequently determined that there was a realistic prospect of a finding that D’s fitness to practise was impaired.
Held: The decision was plainly flawed and wrong, involving stale 21 year-old allegations which had been thoroughly investigated by the police and social services at the time and found to be without foundation.

Haddon-Cave J
[2013] EWHC 2839 (Admin)
Bailii
General Medical Council (Fitness to Practice) Rules 2004 4(5)
England and Wales

Health Professions

Updated: 01 November 2021; Ref: scu.515417

Roy v Kensington and Chelsea and Westminster Family Practitioner Committee: HL 6 Feb 1992

The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be by way of public law action through a judicial review.
Held: The fact that the defendant’s decision was a public law act did not prevent the plaintiff pursuing his rights in private law and that could be by way of ordinary action. The plaintiff had a relationship with the committee which established private law rights. The rule of procedural exclusivity does not apply where a defendant in a civil case simply seeks to defend himself by questioning the validity of a public law decision.

Lord Bridge of Harwich, Lord Emslie, Lord Griffiths, Lord Oliver of Aylmerton, Lord Lowry
Gazette 06-May-1992, [1992] 1 AC 624, [1992] 7 CL 474, [1992] 2 WLR 239, [1991] UKHL 8, [1992] IRLR 233, (1992) 4 Admin LR 649, [1992] 3 Med LR 177, [1992] 1 All ER 705
Bailii
England and Wales
Citing:
Applied – Davy v Spelthorne Borough Council HL 13-Oct-1983
Although section 243(1)(a) provides that the ‘validity’ of an enforcement notice is not to be questioned except as therein provided, the word ‘validity’ is evidently not intended to be understood in its strict sense. It is used to mean merely . .
Cited – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
Cited – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .

Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Applied – Lonrho plc v Tebbit CA 1992
The company became involved in a takeover bid. It was referred to the Monopolies Commision, and the buyer undertook not to increase his shareholding pending the report. In the meantime another buyer acquired a majority shareholding. The buyer had . .
Cited – Steed v Secretary of State for the Home Department HL 26-May-2000
The claimant surrendered guns and ammunition under the 1997 Act, and was due to be compensated. His claim was not settled, and he commenced an action in the County Court for the sums claimed. The defendant denied any duty to pay up within a . .
Cited – Ruddy v Chief Constable, Strathclyde Police and Another SC 28-Nov-2012
The pursuer said that he had been assaulted whilst in the custody of the responder’s officers. He began civil actions after his complaint was rejected. He repeated the allegation of the assault, and complained also as to the conduct of the . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.88883

Vinyagamoorthy, Regina (on The Application of) v The National Health Service: CA 19 Feb 2013

The claimant and her husband, both doctors, had contracted with their PCT to provide General Practitioner Services. Her husband had been convicted in the US of offences involving money laundering on behalf of a Sri Lankan terrorist organisation. The PCT had terminated the contract. She now appealed against a refusal of leave to bring judicial reviewof the cancellation of the contract, saying that the punishment inflicted had been nominal.
Held: Leave was refused. It was inevitable that if the PCT remade the decision, their decision would be the same.

Jackson, Lewison, Beatson LJJ
[2013] EWCA Civ 299
Bailii
England and Wales

Health Professions

Updated: 01 November 2021; Ref: scu.472632

Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another: HL 21 Jan 2009

The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. Typically the process took many months.
Held: The procedure asked only if the employer reasonably considered that misconduct had occurred. The scheme did not comply with Article 6(1). The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment. The solution proposed by the Court of Appeal was inadequate to remedy the failing. The declaration of incompatibility was restored.

Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2009] UKHL 3, (2009) 12 CCL Rep 181, (2009) 106 BMLR 71, 26 BHRC 269, [2009] UKHRR 763, [2009] PTSR 401, [2009] HRLR 13, [2009] 1 AC 73, [2009] 2 WLR 267, [2009] 2 All ER 129
Bailii, HL, Times
Care Standards Act 2000 82, European Convention on Human Rights 6 8
England and Wales
Citing:
At first instance – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Appeal from – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another CA 24-Oct-2007
Where it was proposed to provisionally list care workers as been prevented from undertaking work with vulnerable adults or children, that worker should be given opportunity to make representations first. Provisional listing did engage article 6, but . .
Cited – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
Cited – Dogmoch v Germany ECHR 18-Sep-2006
An interim order may not engage the Convention in the same way as a finall order. . .
Cited – Zlinsat, Spol. SRO v Bulgaria ECHR 15-Jun-2006
The Sofia Public Prosecutor’s Office had ordered the suspension of the performance of a privatisation contract relating to an hotel. The office had acted under its criminal jurisdiction and had also brought a civil action. There had been no finding . .
Cited – Bakker v Austria ECHR 10-Apr-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses (domestic proceedings) – claim . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Markass Car Hire Ltd v Cyprus ECHR 2-Jul-2002
The complaint was as to the length of the proceedings to set aside an ex parte interim order. The order was obtained on 31 March 1998 and under it the applicant was required to hand over to the plaintiff cars worth over andpound;Cyprus 500,000. It . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Stefan v United Kingdom ECHR 1998
. .
Cited – X v United Kingdom ECHR 19-Jan-1998
The complainant said that the system under which he had been declared unfit to be involved in the management of an insurance company was unfair. . .
Cited – X v Iceland ECHR 18-May-1976
The right to respect for private life was held to ‘comprise also, to a certain degree, the right to establish and develop relationships with other human beings’. . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Sidabras And Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers complained that they were banned, not only from public sector employment, but also from many private sector posts. This ‘affected [their] ability to develop relationships with the outside world to a very significant degree, and . .
Cited – Turek v Slovakia ECHR 14-Feb-2006
. .

Cited by:
Cited – L, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Information

Updated: 01 November 2021; Ref: scu.280078

General Medical Council v Professor Sir Roy Meadow, Attorney General: CA 26 Oct 2006

The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was privileged.
Held: Immunity given in a criminal court did not provide an excuse before a professional body considering a complaint of misconduct. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.
The purpose of FTP (Fitness to Practice) proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The question of sanction for a professional conduct committee is not the same as that of a court imposing retributive punishment. The FTP thus looks forward not back. The powers exerciseable by the committee under the 1983 Act were not limited to situations where the judge had referred the case to them. In this case the decision of the High Court granting relief to the particular doctor was correct on the facts, but the GMC had the jurisdiction it claimed.
The court set out the proper approach for the administrative Court hearing an appeal under section 40. The test is whether the decision below was wrong. This is a more intrusive appellate function than that deployed in judicial review where the question is limited to whether the decision was reasonably open to the tribunal below. However, it is also plain that this re-hearing will normally take place on the basis of the documents only, where no fresh oral evidence is admitted or tendered. In those circumstances the court must be conscious of the considerable advantage enjoyed by the tribunal below of hearing the witnesses and forming an impression as to their credibility and reliability that is not open to the appeal court. Depending upon the context of the subject matter in dispute, the panel may also enjoy particular professional expertise in the assessment of clinical or related medical issues that will not be within the court,s experience.
Auld LJ expressed the approach to be taken on an appeal from a statutory tribunal, saying: ‘On an appeal from a determination by the GMC . . it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The Tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.’

Sir Anthony Clarke MR, Auld LJ, Thorpe LJ
Times 31-Oct-2006, [2006] EWCA Civ 1390, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196
Bailii
Medical Act 1983 40
England and Wales
Citing:
Appeal from – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – Stanton and Another v Callaghan and Others CA 8-Jul-1998
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint . .
Cited – Hussein v William Hill Group 2004
. .
Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Evans v London Medical College (University of London) 1981
A report was prepared by various analysts employed by the defendant Hospital following a post-mortem examination of a deceased child. It said that organs of the child contained various concentrations of morphine. The result was reported to the . .
Cited – Silcott v Commissioner of Police of the Metropolis CA 24-May-1996
The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Marrinan v Vibart CA 2-Jan-1962
Two police officers gave evidence in a criminal prosecution of others, that the plaintiff, a barrister, had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before . .
Cited – Munster v Lamb CA 1883
Judges and witness, including police officers are given immunity from suit in defamation in court proceedings.
Fry LJ said: ‘Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Mann v O’Neill 31-Jul-1997
High Court of Australia – Courts should be reluctant to extend the immunity given to witnesses: ‘the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is . .
Cited – Stanton and Another v Callaghan and Others CA 8-Jul-1998
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint . .
Cited – Docker, Head, and others v Chief Constable of West Midlands Police CA 17-Mar-1998
Immunity from suit for abuse of process attaching to judicial process was attached also to steps taken as part of the investigation of a crime with a view to a possible prosecution of the matter. Auld LJ said: ‘The whole point of the public policy . .
Cited – Harmony Shipping Co SA v Saudi Europe Line Limited (‘The Good Helmsman’) CA 1979
One party objected to the use of the same expert handwriting witness by its opponent. The expert had already given his opinion to both sides, and the question was whether he could be compelled to appear at the trial.
Held: There is no property . .
Cited – Palmer v Durnford Ford QBD 1992
The plaintiff had consented to judgment for his opponent in a case against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance . .
Cited – Ziderman v General Dental Council PC 1976
Lord Diplock said: ‘The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as . .
Cited – Gupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
Cited – Regina (Dr Heath) v Home Office Policy and Advisory Board for Forensic Pathology Admn 4-Aug-2005
The applicant sought judicial review of the decision of the screening body of the Home Office policy and advisory board for forensic pathology to refer his case to the full panel.
Held: Judicial review was not appropriate as a remedy at this . .
Cited – Antonelli v Secretary of State for Trade and Industry CA 31-Jul-1997
The Secretary of State had the right to take account of a foreign criminal conviction against property, when assessing the fitness of a Estate Agent to act as such, even though the offence also took place before the Act came into effect. The statute . .

Cited by:
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Southall v The General Medical Council Admn 22-May-2009
The doctor appealed against the erasure of his name from the register of medical practitioners after a finding of serious professional misconduct. There had been earlier similar findings, but based on different allegations.
Held: The doctor’s . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Harford v The Nursing and Midwifery Council Admn 10-Apr-2013
The appellant challenged a finding that her fitness to practice had been impaired by misconduct and the attachment of a conditions of practice order effective for six months.
Held: The Panel had applied the correct test. . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.245604

In re X and Others (Deprivation of Liberty): CoP 7 Aug 2014

inreX_dolCoP1408

The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that arrangements must be made for scrutiny of decisions mde for the detention of mental health and other patients lacking capacity.
Held: The court set out a new procedure for recourse to and supervision by the court of such arrangements, and suggested the design of an appropriate new form for applications.

Sir James Munby P
[2014] EWCOP 25
Bailii
European Convention on Human Rights 5
Citing:
Applied – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – Gregory and Gregory v Turner, Turner; Regina (Morris) v North Somerset Council CA 19-Feb-2003
The parties were involved in a boundary dispute. One granted an enduring power of attorney, and sought to appear as a litigant in person through the power.
Held: The right of a litigant in person to represent himself was a personal right, and . .
Cited – Salford City Council v BJ (Incapacitated Adult) FD 11-Dec-2009
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Health Professions

Updated: 31 October 2021; Ref: scu.535650

Regina v Lee: CACD 24 Jun 2010

The defendant pharmacist faced a charge of supplying a medicinal product with a misleading label, an offence under section 85 of the 1968 Act. Working as a locum in a busy supermarket pharmacy she had signed off a mislabelled prescription. The patient ended up in hospital. After directions as to the law, she pleaded guilty. She now appealed questioning whether she had supplied the drug in law, saying that the offence required to a sale or supply ‘in the course of a business carried on by him’.
Held: The appeal succeeded. The words of the section could not be ignored. The words directed the section at the business owner which she was not. It was argued that ‘business’ should be construed to include a professional practice. That argument was not accepted since it failed to address the issue of ownership clearly pointed to by the section. A person in the defendant’s position could still face prosecution for a lesser offence.
The court considered it ability to substitute a conviction for a lesser offence. The test set out in R v Ramzan was met in this case.

Aikens LJ, Royce J, Radford J
[2010] EWCA Crim 1404, WLRD 24-Jun-2010, [2010] WLR (D) 160, [2010] 2 Cr App Rep 26, (2010) 116 BMLR 147, [2011] 1 WLR 418
Bailii
Medicines Act 1968 85, Criminal Appeal Act 1968 3A(1), Criminal Procedure and Investigations Act 1996 40(1)(b)
England and Wales
Citing:
Applied – Ramzan and Others, Regina v CACD 21-Jul-2006
The court considered its power on allowing an appeal after a plea of guilty to substitute a conviction for an appropriate lesser offence.
Held: Hughes LJ said that section 3A of the 1968 Act imposed a two stage test. The court considering . .

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions, Criminal Practice

Updated: 31 October 2021; Ref: scu.417794

Wilsher v Essex Area Health Authority: HL 24 Jul 1986

A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it had failed to prove that it had not caused the injury.
Held: The appeal succeeded. It was for the plaintiff to prove his case, and the court must allow that the Health Service will employ inexperienced doctors. The standard of care to be expected must be looked at relative to the experience of the doctor employed. However, the senior registrar was negligent in failing to recognise the error, and the damage was shown to be of the sort which might be expected to follow.
It was one thing to treat an increase of risk as equivalent to the making of a material contribution where one agent was involved, but quite another where any one of a number of events may equally probably have caused the damage.

Sir Nicolas Browne-Wilkinson V.-C., Mustill and Glidewell L.JJ.
[1988] AC 1074, [1988] 1 All ER 871, [1987] UKHL 11
Bailii
England and Wales
Citing:
Appeal from – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited – Thompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
Cited – Clark v MacLennan 1983
The court considered the judment in McGhee: ‘It seems to me that it follows from McGhee that where there is a situation in which a general duty of care arises and there is a failure to take a precaution, and that very damage occurs against which the . .
Cited – Vyner v Waldenberg Brothers Ltd CA 1946
Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the . .
Cited – Wakelin v London and South Western Railway Co HL 1886
The liability of a defendant in negligence must rest in the first place on there being, per Lord Watson) ‘some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of . . .
Cited – Caswell v Powell Duffryn Associated Collieries HL 1939
An action was brought for injuries caused by a breach of statutory of duty.
Held: A breach of statutory duty is regarded as ‘akin to negligence’.
Lord Atkin said that a common sense rather than a philosophical or scientific approach to . .
Appeal from – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .

Cited by:
Approved – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Appealed to – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – St George v The Home Office CA 8-Oct-2008
The claimant was taken into prison. He was known to be subject to epilepsy, with high risks on withdrawal from drugs, but was allocated a high bunk. He had a seizure and fell, suffering head injuries. He sought damages in negligence. The defendant . .
Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Cited – Sanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Leading Case

Updated: 31 October 2021; Ref: scu.177399

Pountney v Griffiths; Regina v Bracknell Justices, Ex parte Griffiths: HL 1976

The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to ‘come on’ and allegedly punched him on the shoulder. The patient brought criminal proceedings for assault without first obtaining the leave of the High Court under section 141(2) of the 1959 Act. The applicant was convicted and applied for certiorari to quash the conviction on the ground that since the leave of the High Court had not been obtained the proceedings were a nullity.
Held: The case questioned the rights of nurses in secure mental hospitals to oblige patients to return to their wards at the end of visiting time. The House accepted that the power to detain brought with it powers of control which would allow the practice. Quoting Lord Widgery in the Divisional Court that: ‘where a male nurse is on duty and exercising his functions of controlling the patients in the hospital, acts done in pursuance of such control, or purportedly in pursuance of such control, are acts within the scope of section 141, and are thus protected by the section.’
Lord Edmund-Davies said ‘That, in my respectful judgment, was the correct view to take of the case, and it follows that, since the leave of the High Court was not obtained, the proceedings before the magistrates were a nullity and the Divisional Court had no alternative but to quash the conviction.’ Lord Simon of Glaisdale observed that s.141 of the 1959 Act placed a hindrance on the recourse of a class of citizens to the courts and drew a comparison with the requirement for a vexations litigant to obtain the permission of the court before commencing proceedings.
Lord Edmund-Davies, Lord Simon of Glaisdale
[1976] AC 314
Mental Health Act 1959 141(2)
England and Wales
Citing:
Appeal from – Pountney v Griffiths QBD 1975
A mental patient sought damages for assault from a nurse. The nurse replied that the proceedings were a nullity since the patient had not first obtained permission to commence proceedings.
Held: Lord Widgery CJ said: ‘Although no point was . .
Cited – Bradford Corporation v Myers HL 1916
The 1893 Act was criticised for its complexity. A section gave protection to public authorities for ‘any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any power duty or authority, or in respect of any . .
Cited – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .

Cited by:
Cited – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Cited – Patel and others v London Borough of Brent CA 25-May-2005
Application for return of deposit made to secure commencement of road works on development. . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.185207

Howard and Another v Secretary of State for Health: Admn 15 Mar 2002

The Claimant each sought judicial review of a decision of the Secretary of State for Health not to hold a public inquiry into circumstances surrounding the serious misbehaviour of a doctor.
Mr Justice Scott Baker
[2002] EWHC 396 (Admin), [2003] QB 830, [2002] 3 WLR 738
Bailii
England and Wales

Updated: 23 October 2021; Ref: scu.168734