Category: Health Professions

Dr Carruthers v The General Medical Council: PC 3 Jun 2003

PC (The Professional Conduct Committee of the GMC) The doctor appealed a finding of serious professional misconduct. He sought to practice in a controversial field, the ‘andropause’. He accepted patients through his web-site, and gave advice. A patient was also being treated by another GP, who disagreed with the diagnosis. Complaint was made that he had disgnosed the patient without seeing him or taking a proper history. He now complained that the PCC had reached technical conclusions in a highly specialised field and without the expertise needed.
Held: The Committee had done no more than found that the doctor had overstepped the mark in his advice, and thereby undermined the patient’s own doctor’s fragile relationship with him. As to the conditions on his practice restricting his ability to advise by email, the conditions had been arrived at after an in camera discussion without either party having opportunity to comment. The condition requiring him to attend training had been shown to be unworkable, and the restriction on his giving advice by email did not flow from any direct criticism of his practice. Certain conditions were removed.

Judges:

Lord Hope of Craighead, Lord Rodger of Earlsferry, The Rt. Hon. Justice Tipping

Citations:

[2003] UKPC 42

Links:

Bailii, PC

Statutes:

Medical Act 1983 36(1)(b)(iii), General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (SI 1988/2255) 37(2)

Jurisdiction:

England and Wales

Health Professions

Updated: 23 November 2022; Ref: scu.183089

Dr Gosai v The General Medical Council: PC 10 Apr 2003

PC (The Professional Conduct Committee of the GMC) The doctor challenged the decision of the committee to invoke its power to restrain him from making further applications to be restored to the register.
Held: The power to restrain a doctor from making repeated requests fr restoration was draconian, but that did not mean that it should only be exercised in the most serious or clear of cases. The discretion given to the committee was unfettered.

Judges:

Hoffmann, Walker of Gestingthorpe LL, Sir Phillip Otton

Citations:

[2003] UKPC 31, Times 30-Apr-2003

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Bolton v The Law Society CA 8-Dec-1993
The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 23 November 2022; Ref: scu.180768

Sullivan v Moody: 11 Oct 2001

(High Court of Australia) A medical practitioner who examines and reports on the condition of an individual may owe a duty to more than one person: ‘The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.’
Austlii Torts – Negligence – Duty of care – Appellants suspected of sexually abusing their children – Alleged negligence of respondents in investigating and reporting on allegations – Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations – Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects.

Judges:

Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ

Citations:

(2001) 207 CLR 562, [2001] HCA 59, 75 ALJR 1570

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – 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 – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 22 November 2022; Ref: scu.224418

CLT v Connon and Others: 8 May 2000

Austlii (Supreme Court of South Australia) The father, the appellant, was accused of sexually abusing his three children. He sued for damages alleging negligence on the part of the medical practitioners who examined the children for signs of sexual abuse and on the part of the Department of Community Welfare who requested that police investigations be carried out and who took steps to ensure children were not returned to the care of the appellant – appellant’s relationship with his children significantly impaired – appellant conceded that previous decision of this Court in Hillman v Black could not be distinguished – Master considered himself bound by Hillman v Black and struck out claim as disclosing no cause of action. Whether recent High Court decisions dealing with the approach to be taken to duty of care require a reconsideration of Hillman v Black – whether duty of care was owed to appellant by medical practitioners and/or Department of Community Welfare when investigating and reporting the claims of sexual abuse. Gray J ‘Devastating consequences can follow an incorrect finding that a child has been sexually abused. Those consequences flow not only to the person against whom the findings are made, but also to the child and the family.’

Judges:

Gray J

Citations:

[2000] SASC 223

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence, Health Professions

Updated: 22 November 2022; Ref: scu.224409

Balamoody v United Kingdom Central Council for Nursing: CA 14 May 2001

The applicant sought leave to appeal against a decision disallowing his complaint at his claim for race discrimination being struck out as scandalous, frivolous or vexatious. He said that the Tribunal had dismissed his claim without giving him opportunity to present the facts on which it was based.
Held: Given the decision on Roffey, the case should be allowed to go forward to appeal.

Judges:

Mummery LJ

Citations:

[2001] EWCA Civ 729

Links:

Bailii

Statutes:

Race Relations Act 1976 12, Employment Tribunal’s Constitution and Rules of Procedure Regulations 1993 13(2)

Jurisdiction:

England and Wales

Citing:

See Also – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting Admn 18-Jul-1997
The applicant complained of having been struck off the register of nurses. He said that when he told the court that he wanted to appeal he was sent forms appropriate for a judicial review. He amended and submitted them. In correcting him, the court . .
See Also – Balamoody v United Kingdom Central Council; Balamoody v Manchester City Magistrates’ Court Admn 10-Jun-1998
The applicant had been convicted of offences relating to the management of his nursing home, and had been struck off the Register of Nurses.
Held: It was no defence to the criminal charges that a member of staff had failed in her duties. The . .
See Also – Balamoody v Manchester Health Authority EAT 2-Mar-1999
The claimant appealed against orders striking out his complaint of unlawful racial discrimination. He had owned a nursing home regulated by the respondent authority. A senior white employee had broken regulations regarding safekeeping of drugs, but . .
Appeal from – Balamoody v UkCC for Nursing Midwifery and Home Visitors EAT 5-Dec-2000
The claimant’s claim of unlawful race discrimination had been dismissed as an abuse of process by the EAT. The Tribunal now considered whether the EAT had power to make such a decision.
Held: The 1993 Regulations were more generous to . .
Cited – Care First Partnership Ltd v Roffey and Others CA 22-Nov-2000
An employment tribunal had no power to dismiss a claim as without a reasonable prospect of success before it was begun to be heard. The power to regulate its own hearings did not include such a power, and the power to dismiss a claim as frivolous or . .

Cited by:

See Also – Balamoody v Manchester Health Authority EAT 12-Nov-2001
The Tribunal heard a preliminary application in a claim for unlawful race discrimination. Earlier applications had been struck out. This second set of applications had been struck out as frivolous by the Tribunal on the basis that they were not new . .
Leave Given – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting CA 6-Dec-2001
The claimant had been struck from the register of nurses after convictions arising from failures of his staff at his nursing home with regard to drug management. He had then brought claims of unlawful race discrimination against the health authority . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Discrimination

Updated: 22 November 2022; Ref: scu.201028

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 termination of a pregnancy could assert such a right.
Held: The midwives’ appeal succeeded. The Act set out an exhaustive statement of the arrangements for lawful abortions. ‘The conscientious objection in section 4 is given, not because the acts in question were previously, or may have been, illegal. The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant . . It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’ The actions required of the nurses went beyond administrative support and amouunted to active involvement in the treatment processes.
Lady Dorran expanded on the entitlement to conscientious objection: ‘The right is given because it is recognised that the process of abortion is felt by many people to be morally repugnant. As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy.’

Judges:

Lord Mackay of Drumadoon, Lady Dorrian, Lord McEwan

Citations:

[2013] ScotCS CSIH – 36

Links:

Bailii

Statutes:

Abortion Act 1967 4(2)

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 – 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 – Christian Education South Africa v Minister of Education 2001
(South African Constitutional Court) The court emphasised the fundamental importance of the right to express one’s religion in a pluralistic, multi-cultural society.
Sachs J observed: ‘The underlying problem in any open and democratic society . .
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
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 . .
Appeal from – 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 . .
Cited – Bayatyan v Armenia ECHR 7-Jul-2011
(Grand Chamber) The applicant was a practising Jehovah’s Witness and a conscientious objector. He said that his conviction for refusing to serve in the army had violated his right to freedom of thought, conscience and religion. That complaint had . .
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 – Ghai, Regina (on The Application of) v Newcastle City Council and Others CA 10-Feb-2010
The claimant appealed against a refusal of an order refusing him permission to use land for the purposes of an open air cremations, as required by his religion.
Held: His appeal succeeded. The 1902 Act should be interpreted generously in its . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health Professions

Updated: 17 November 2022; Ref: scu.472959

Dr EY v General Medical Council: Admn 15 Apr 2013

The doctor sought the temination of his conditional registration as a medical practitioner.

Judges:

Andrew Gilbart QC

Citations:

[2013] EWHC 860 (Admin)

Links:

Bailii

Statutes:

Medical Act 1983

Citing:

Applied – 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 17 November 2022; Ref: scu.472683

Patel, Regina (on The Application of) v General Medical Council: CA 27 Mar 2013

The claimant had qualified as a doctor in St Kitts and Nevis. He appealed against refusal of his challenge to the decision of the respondent not to recognise his qualification. He relied upon a statement upon which he had relied.
Held: Whether there is such an undertaking is ascertained by asking how, on a fair reading, the representation or course of conduct would reasonably have been understood by those to whom it was made.

Judges:

Lord Dyson MR, Lloyd, Lloyd Jones LJJ

Citations:

[2013] EWCA Civ 327, [2013] WLR(D) 128, [2013] 1 WLR 2801

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Badger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 17 November 2022; Ref: scu.472570

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.

Judges:

Wyn Williams J

Citations:

[2013] EWHC 696 (Admin)

Links:

Bailii

Statutes:

Nursing and Midwifery Order 2001 21

Citing:

Cited – Roylance v The General Medical Council (No 2) PC 24-Mar-1999
(Medical Act 1983) Dr Roylance was the chief executive of a hospital in which there had been excessive mortality rates of children who underwent cardiac surgery and had failed to take steps to deal with the problem.
Held: A doctor who carried . .
Cited – Cohen v General Medical Council Admn 19-Mar-2008
The appellant consultant anaesthetist appealed against the decision of the respondent’s Fitness to Practice Panel to impose conditions on his registration.
Held: The appeal succeeded: ‘Any approach to the issue of whether a doctor’s fitness to . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 14 November 2022; Ref: scu.472510

British Medical Association v Chaudhary: CA 27 Jul 2007

Citations:

[2007] EWCA Civ 788, [2007] LS Law Medical 554, (2007) 97 BMLR 15, [2007] IRLR 800

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Chaudhary v Secretary of State for Health CA 27-Jul-2007
The court was asked whether there was indirect racial discrimination against the claimant who was a member of the BMA of Asian origin and who, in common with all other members, was entitled to advice and assistance except for the purpose of . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .

Cited by:

Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Cited – Olafsson v Foreign and Commonwealth Office QBD 22-Oct-2009
The claimant sought damages after the defendant had negligently failed to arrange for the service of the claimant’s defamation proceedings on a defendant in Iceland leaving the action time barred.
Held: The Claimant had not acted unreasonably . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Discrimination

Updated: 14 November 2022; Ref: scu.258422

Kapfunde v Abbey National Plc and Dr Daniel and Another: CA 25 Mar 1998

A Doctor employed by a potential employer to report on the health of applicants for employment, owed no duty of care to those applicants.

Judges:

Kennedy LJ

Citations:

Times 06-Apr-1998, [1998] ECC 440, [1998] IRLR 583, (1999) 46 BMLR 176, [1998] EWCA Civ 535, [1999] ICR 1, [1999] Lloyd’s Rep Med 48

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – 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 – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 14 November 2022; Ref: scu.144013

Toth and Another, Regina (On The Application of) v General Medical Council: Admn 23 Jun 2000

Lightman J said: ‘The general principle is well established that, if an applicant establishes in judicial review proceedings that the decision which he challenges is bad in law, he should be granted relief, and most particularly an order quashing that decision, unless there are strong reasons in public policy for refusing relief or unless to quash the decision would occasion so great an injustice either to the respondent or to a third party as to require some other course to be taken.’

Judges:

Lightman J

Citations:

[2000] 1 WLR 2209, [2000] EWHC Admin 361

Links:

Bailii

Cited by:

Cited – Baker v Police Appeals Tribunal Admn 27-Mar-2013
The claimant a former police constable sought judicial review of a decision made by the tribunal, saying that it had had no jurisdiction to make it. The respondent tribunal, having now accepted that it had not had the power it exercised, being then . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Judicial Review

Updated: 14 November 2022; Ref: scu.472246

Skatteverket v PFC Clinic Ab: ECJ 21 Mar 2013

ECJ VAT – Directive 2006/112/EC – Exemptions – Article 132(1)(b) and (c) – Hospital and medical care and closely related activities – Provision of medical care in the exercise of the medical and paramedical professions – Services consisting in the performance of plastic surgery and cosmetic treatments – Interventions of a purely cosmetic nature based solely on the patient’s wishes

Citations:

C-91/12, [2013] EUECJ C-91/12

Links:

Bailii

Statutes:

Directive 2006/112/EC

European, VAT, Health Professions

Updated: 14 November 2022; Ref: scu.471950

Brooklyn House Ltd v Commission for Social Care Inspection: Admn 25 May 2006

The defendant company had been convicted of failing to keep proper drugs records in the nursing home it ran.
Held: The prosecution by the CSCI ws necessarily authorised by the CSCI. As to the issue of intention, the offences alleged were ones of strict liability. The judge had looked to the outcome of the offences of failing to make arrangements, finding that if administered drugs were not recorded, then it was the case that proper arrangements for recording had not been made. The protection to the defendant came in that he would first receive a notice on which he could make representations.
Lord Justice Maurice Kay: ‘Describing offences as ones of ‘strict liability’ is not the same as describing them as ones of ‘absolute liability’. In the present context it means that the proven facts establish the offence without regard to what was in the mind or imputed mind of the defendant. Outcome is relevant but not necessarily determinative. It is a question of fact and degree. In considering that question, the National Minimum Standards are relevant and must be taken into account. That does not mean, as Mr Kimblin submits, that the Standards are being allowed to create or define the offences. It simply means that, in deciding whether a statutorily defined offence has been committed, the court will take into account the statutorily enabled standards. ‘

Judges:

Maurice Kay LJ, Tugendhat J

Citations:

[2006] EWHC 1165 (Admin)

Links:

Bailii

Statutes:

Care Standards Act 2000 25, Care Homes Regulations 2001

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Northallerton Magistrates, ex parte Dove QBD 17-Jun-1999
The defendant having provided sufficient evidence of his means, a court awarding prosecution costs, where the other penalty is a fine, should not allow these to be completely disproportionate to the fine. Where a defendant failed to provide . .
Lists of cited by and citing cases may be incomplete.

Health Professions, crime

Updated: 14 November 2022; Ref: scu.242202

Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care: SC 27 Feb 2013

The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was dissolved. The transitional provisions appeared inadequate in failing to identify which body was to continue any proceedings, and whether the Commission was to be deemed to have continued in existence for this purpose.
Held: The appeal failed. The case was remitted to the Inner House for such further orders as were required to make progress. The matter was to be determined under the 2001 Act, since the case had not yet been determined.

Judges:

Lord Hope, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath

Citations:

[2013] UKSC 12, UKSC 2012/0048

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Regulation of Care (Scotland) Act 2001

Jurisdiction:

England and Wales

Citing:

At Sherriff’s Court – Davies and Another v The Scottish Commission for The Regulation of Care ScSf 9-May-2011
The pursuers ran a day care nursery. They had been subject to proceedings for the cancellation of their registration. The Commission had been dissolved and replaced by a new body, and they said that the new body could not be substituted in that . .
Appeal from – Davies and Another (T/A All Star) v The Scottish Commission for The Regulation of Care SCS 24-Jan-2012
The Commission had begun proceedings seeking to revoke the Davies’ registration to provide nursery facilities. The Commission was dissolved and the Sherriff had found that the new body could not take over the proceedings.
Held: The appeal . .
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
Cited – Tonner and Another v Reiach and Hall SCS 12-Jun-2007
In order to succeed in a minute asserting want of prosecution, the defender must show (i) that there had been both inordinate and inexcusable delay and (ii) that there was an ‘added element of unfairness . . specific to the particular factual . .
Cited – Moore v The Scottish Daily Record and Sunday Mail Ltd SCS 9-Dec-2008
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Health Professions

Updated: 14 November 2022; Ref: scu.471221

Care North East Northumberland, Members of The Committee of, Regina (on The Application of) v Northumberland Care Trust: Admn 15 Feb 2013

The claimants sought judicial review of the decision as to the rates payable to care homes in their area under the 1948 Act.

Judges:

Supperstone J

Citations:

[2013] EWHC 234 (Admin)

Links:

Bailii

Statutes:

National Assistance Act 1948

Health Professions

Updated: 14 November 2022; Ref: scu.470994

Luthra v General Medical Council: Admn 18 Feb 2013

The doctor said that the erasure of his name from the register was disproportionate.

Judges:

Mostyn J

Citations:

[2013] EWHC 240 (Admin)

Links:

Bailii

Citing:

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 – Raschid v General Medical Council Admn 30-Mar-2006
. .
Cited – Fatnani and Another v General Medical Council CA 15-Jan-2007
Two doctors appealed against the erasure of their names from the register by the Fitness to practice panel. . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 14 November 2022; Ref: scu.471010

Merelie v Newcastle Primary Health Care Trust and Others (No.3): Admn 20 Jun 2006

Judges:

Underhill J

Citations:

[2006] EWHC 1433 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Merelie v Newcastle Primary Care Trust QBD 11-Nov-2004
An harassment claim was being considered. It was suggested that a defendant sought revenge against the claimant. . .
See Also – Merelie v Newcastle Primary Care Trust QBD 21-Feb-2006
. .
See Also – Merelie v Newcastle Primary Care Trust QBD 20-Jun-2006
. .

Cited by:

Appeal from – Merelie v Newcastle Primary Care Trust CA 2-Mar-2007
. .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 13 November 2022; Ref: scu.242672

Powell and Another v Boldaz and others: CA 1 Jul 1997

The plaintiff’s son aged 10 died of Addison’s Disease which had not been diagnosed. An action against the Health Authority was settled. The parents then brought an action against 5 doctors in their local GP Practice in relation to matters that had taken place post death. The allegations included conspiracy to injure by unlawful means.
Held: An unlawful act actionable at the suit of the claimant was a necessary ingredient of unlawful means conspiracy.
No duty of care was owed because the element of proximity was lacking.
Stuart-Smith LJ said: ‘I propose to consider first whether a sufficient relationship of proximity existed. It must be appreciated that prior to April 17th 1990 although the Plaintiffs were patients of the Defendants in the sense that they were on their register, the only patient who was seeking medical advice and treatment was Robert. It was to him that the Defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice, the Doctor obviously owes a duty to be careful. It was to him [the child] that the defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice, the doctor obviously owes a duty to be careful. But the duty is owed to the child, not to the parents.’ and ‘After the death, the defendants may owe the plaintiffs a duty of care; but this depends upon whether they are called upon, or undertake, to treat them as patients.’

Judges:

Stuart-Smith LJ, Morritt LJ and Shiemann LJ

Citations:

[1997] EWCA Civ 2002, [1998] Lloyds Rep Med 116, [1997] 39 BMLR 35

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1978

Jurisdiction:

England and Wales

Citing:

Applied – 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 – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – Hargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
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 by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Binding – Applied – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Negligence, Torts – Other, Health Professions

Updated: 13 November 2022; Ref: scu.142399

West London Mental Health NHS Trust v Chhabra: CA 25 Jan 2013

The Trust appealed against a decision that its procedures in seeking to discipline the respondent consultant forensic psychiatrist were wrongly applied and the associated injunction.
Held: The appeal succeeded. The conduct complained of was of a nature and of sufficient gravity to justify the course taken.

Judges:

Pill, Jackson, Treacy LJJ

Citations:

[2013] EWCA Civ 11, [2013] IRLR 398, [2013] Med LR 33

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Chhabra v West London Mental Health NHS QBD 1-Jun-2012
The claimant, a consultant forensic psychiatrist sought to restrain the defendants from going ahead with disciplinary proceedings as to alleged breaches of patient confidentiality.
Held: The application succeeded. The complaint was properly as . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 13 November 2022; Ref: scu.470580

X v Finland: ECHR 3 Jul 2012

ECHR Article 8-1
Respect for private life
Forced administration of therapeutic drugs in mental institution: violation
Article 5
Article 5-1-e
Persons of unsound mind
Forced confinement in a mental institution: violation
Facts – The applicant, a paediatrician, was arrested in October 2004 in connection with criminal proceedings that had been brought against her after she allegedly helped a mother remove her daughter from public care. The court ordered the applicant’s transfer to a mental institution, where a doctor concluded after examining her over a two-month period that she suffered from a delusional disorder and met the criteria for involuntary confinement. In February 2005 the Board for Forensic Psychiatry of the National Authority for Medico-Legal Affairs ordered the applicant’s involuntary treatment on the basis of the doctor’s report. The hospital then started injecting the applicant with medication which she had refused to take orally. She was not released from hospital until January 2006 and her treatment officially ended in June of that year. The applicant unsuccessfully challenged her confinement and involuntary treatment before the domestic authorities.
Law – Article 5 – 1: The initial decision to place the applicant in involuntary hospital care had been taken by an independent administrative body with legal and medical expertise and had been based on a thorough psychiatric examination carried out in a mental institution by a doctor who had not participated in the decision to place her. The decision-making process had followed the domestic legal procedures at all times and the Mental Health Act was sufficiently clear and foreseeable in that respect. However, domestic law also had to protect individuals from arbitrary deprivation of their liberty and security. While there had been no problem with the applicant’s initial confinement, as it had been ordered by an independent specialised authority following a psychiatric examination and had been subject to judicial review, the safeguards against arbitrariness had been inadequate as regards the continuation of the applicant’s involuntary confinement after that period. In particular, there had been no independent psychiatric opinion, as the two doctors who had decided on the prolongation of the confinement were from the hospital where she was detained. In addition, under Finnish law the applicant herself could not bring proceedings for review of the need for her continued confinement, as such periodic review could only take place every six months at the initiative of the relevant domestic authorities. The procedure prescribed by national law had thus not provided adequate safeguards against arbitrariness.
Conclusion: violation (unanimously).
Article 8: Medical intervention in defiance of the individual’s will normally constituted interference with his or her private life, and in particular with his or her personal integrity. Such interference was justified if it was in accordance with the law, pursued a legitimate aim and was proportionate. The accessibility and foreseeability of the law at issue in the applicant’s case did not give rise to any problems. However, Article 8 also required that the law in question be compatible with the rule of law, which in the specific area of forced medication meant that the domestic law had to provide some kind of protection to the individual against arbitrary interference. Under the Mental Health Act, doctors attending a patient could decide on the treatment to be given, regardless of the patient’s wishes, and their decisions were not subject to appeal. However, given the seriousness of the forced administration of medication, the Court considered that the law on which such treatment was based had to guarantee proper safeguards against arbitrariness. In the applicant’s case such safeguards had been missing: the decision to confine the applicant involuntarily had included automatic authorisation for the forced administration of medication if she refused treatment. The decision-making had been solely in the hands of the treating doctors and was not subject to any kind of judicial scrutiny. The applicant had not had any remedy by which she could ask the courts to rule on the lawfulness or the proportionality of the measure or discontinue it. Accordingly, the interference in question had not been ‘in accordance with the law’.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Citations:

34806/04 – CLIN, [2012] ECHR 1998

Links:

Bailii

Statutes:

European Convention on Human Rights 8-1

Jurisdiction:

Human Rights

Human Rights, Health Professions

Updated: 12 November 2022; Ref: scu.466991