Nursing and Midwifery Council, Regina (on The Application of) v Khoulowa: Admn 12 Jan 2010

The Council applied for an extension to the interim suspension order made against the respondent.
Held: Though the delay was long, given the nature of the allegations, a further extension should be granted.

Judges:

Parker J

Citations:

[2010] EWHC 260 (Admin)

Links:

Bailii

Statutes:

Nursing and Midwifery Order 2001

Jurisdiction:

England and Wales

Health Professions

Updated: 22 May 2022; Ref: scu.401858

Kircher v Hillingdon Primary Care Trust: QBD 13 Jan 2006

Judges:

David Foskett QC

Citations:

[2006] EWHC 21 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

FollowedGryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust QBD 2-Nov-2005
In the course of an application for an interim injunction to prevent the Defendant dismissing the Claimant until disciplinary proceedings had been completed, the Judge considered the adequacy of damages as an alternative remedy: ‘On the other hand, . .

Cited by:

CitedEdwards 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 21 May 2022; Ref: scu.238315

Regina v The General Medical Council, ex parte Arpad Toth, Dr David Jarman Interested Party: QBD 29 Jun 2000

A complaint to the General Medical Council should be heard in public unless there was some particular and pressing circumstance. Openness was required to maintain the confidence of the public in the profession, and complainants had a legitimate expectation of a public investigation. Where a practitioner continued in practice, the screeners should be reluctant to disallow continuance of a complaint where there was any doubt at all about the need to proceed.

Citations:

Times 29-Jun-2000, Gazette 06-Jul-2000, [2000] EWHC Admin 361, [2000] 1 WLR 2209

Links:

Bailii

Cited by:

CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 19 May 2022; Ref: scu.85265

Regina v Department of Health, Ex Parte Source Informatics Ltd: CA 21 Dec 1999

Where information was given by a patient to the pharmacist, and he took the data, stripping out any possibility of the individual being identified, the duty of confidence which attached to the prescription was not breached by the passing on of the reduced quantity information to a third party who wished to provide a statistical analysis of the prescriptions filled.

Judges:

Lord Justice Simon Brown Lord Justice Aldous And Lord Justice Schiemann

Citations:

Times 18-Jan-2000, [2001] QB 423, [1999] EWCA Civ 3011

Links:

Bailii

Statutes:

Data Protection Act 1998, 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

Jurisdiction:

England and Wales

Citing:

CitedSeager v Copydex Ltd CA 1967
Mr Seager had invented a patented carpet grip which he manufactured and marketed under the trade mark Klent. There were protracted negotiations between Mr Seager and Copydex over a proposal for Copydex to market the Klent. One of the issues in the . .
CitedMoorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) 1984
The court approved ‘the adaptation of the traditional doctrine of passing off to meet new circumstances involving the deceptive or confusing use of names, descriptive terms or other indicia to persuade purchasers or customers to believe that the . .
CitedCoco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .

Cited by:

CitedAxon, 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.
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Health Professions, Information

Updated: 19 May 2022; Ref: scu.85219

Khan v General Medical Council: EAT 24 Mar 1993

An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave sufficient opportunity of redress being by way of an independent hearing capable of overturning the original decision.

Citations:

Independent 24-Mar-1993, [1993] UKEAT 366 – 92 – 1802

Links:

Bailii

Statutes:

Race Relations Act 1976 12, Medical Act 1983

Jurisdiction:

England and Wales

Citing:

Appealed toKhan v General Medical Council CA 11-Apr-1994
The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the . .

Cited by:

Appeal fromKhan v General Medical Council CA 11-Apr-1994
The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 19 May 2022; Ref: scu.82761

Bainton v General Dental Council: PC 17 Oct 2000

Although the procedures set down for appealing against decisions of the Council to the Privy Council did not include provision for extensions of time for applications out of time, the inherent discretion of the judicial committee included the power to grant such an extension where the justice of the case so required.

Citations:

Times 17-Oct-2000

Health Professions

Updated: 18 May 2022; Ref: scu.78086

Regina (Wright) v Secretary of State for Health: QBD 2008

The court was asked whether in a complaint under the Act, conduct before the Act could be considered.
Held: The Tribunal could rely on misconduct which had taken place, or the relevant provider’s opinion had been formed, before the commencement of the Act. Stanley Burnton J said: ‘If the 2000 Act operates unfairly, the court will seek to interpret it restrictively, on the basis that Parliament must be deemed to have wanted any unfairness to be minimised . . The 2000 Act . . is clearly intended as a measure to protect a vulnerable section of the public, and I should be reluctant to conclude that even obviously dangerous misconduct before [its] . . Commencement . . could not lead to inclusion in the POVA list.’

Judges:

Stanley Burnton J

Citations:

[2008] QB 422

Statutes:

Care Standards Act 2000 86(3), European Convention on Huma Rights5 6

Cited by:

Appeal fromRegina (Wright) v Secretary of State for Health CA 2-Jan-2008
The care worker’s appeal failed. The system for disciplining care workers and placing them on lists was required to be human rights compliant. Lord Justice May said: ‘There is an obvious and unchallenged public interest in having an appropriate . .
CitedJoyce v Secretary of State for Health Admn 1-Aug-2008
The claimant appealed against a decision of the Care Standards Tribunal regarding misconduct, and being placed on the list to prevent her working with vulnerable adults. She was said to have fallen asleep while on night duty. The court considered . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 15 May 2022; Ref: scu.279860

Derry v Ministry of Defence: QBD 8 Jun 1998

A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the failure to diagnose.

Citations:

Times 08-Jun-1998

Statutes:

Crown Proceedings Act 1947

Cited by:

Appeal fromDerry v Ministry of Defence CA 18-Mar-1999
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions, Armed Forces

Updated: 15 May 2022; Ref: scu.79928

PF v Disclosure and Barring Service (Safeguarding Vulnerable Groups): UTAA 27 Aug 2020

Safeguarding Vulnerable Groups Act 2006 – section 4(2)(b) – mistake of fact – interpretation and application – relevance of specialist expertise of Disclosure and Barring Service in assessing evidence.

Citations:

[2020] UKUT 256 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions

Updated: 15 May 2022; Ref: scu.656578

M v United Kingdom: ECHR 1987

The protection of those responsible for the care of mental patients from being harassed by litigation is a legitimate objective.

Citations:

(1987) 52 DR 269

Cited by:

CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 14 May 2022; Ref: scu.254624

Felix v General Dental Council: PC 1960

A restricted meaning should be given to the phrase ‘infamous conduct in a professional respect’ by adding the qualifier that the conduct must be of such a kind as is ‘deserving the strongest reprobation’ and ‘so heinous as to merit . . the extreme professional penalty of striking-off’.
Improper conduct is conduct which falls short of ‘infamous conduct’. ‘It is constituted by something less than serious professional conduct that is nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency’.

Judges:

Lord Jenkins

Citations:

[1960] AC 704, [1960] 2 All ER 391, [1960] 2 WLR 934

Cited by:

CitedLibman v The General Medical Council PC 20-Oct-1971
PC (General Medical Council) The appellant a consultant physician appealed against a finding of serious professional misconduct. He had had sexual relations with a patient, and offered to pay a sum for her . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 14 May 2022; Ref: scu.242399

Cavanagh, Bhatt, Redmond v The Health Service Commissione: Admn 2004

Mr Redmond had complained to the Health Sevices Comissioner about the treatment of his daughter at a hospital. She had been referred for specialist treatment, but the unit had been closed down, and she was left untreated. The Commissioner had reported about the closure of the unit and had also made adverse comments about the doctors involved. Mr Redmond and the doctors sought judicial review of the Commissioner’s report.
Held: The grounds fell under three main heads: that the inquiry had exceeded the Commissioner’s powers; that it had been conducted unfairly; and that some of its conclusions were untenable. Henriques J rejected the first two in their entirety. In relation to the third he held that two of the Commissioner’s findings against Dr Cavanagh did not stand up, but apart from quashing these he dismissed the applications.

Judges:

Henriques J

Citations:

[2004] EWHC 1847 (Admin

Statutes:

Health Service Commissioners Act 1993

Jurisdiction:

England and Wales

Cited by:

Appeal fromNicholas Cavanagh Raymond Bhatt Frank Redmond v The Health Service Commissioner CA 15-Dec-2005
A parent had complained about the closure of a hospital unit which led to his daughter not receiving treatment. The Commissioner in her report commented adversely on the doctors involved. Both doctors and the parent sought judicial review of the . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Administrative

Updated: 14 May 2022; Ref: scu.237700

Regina (Arley Erlester Clark) v United Kingdom Central Council for Nursing, Midwifery and Health Visiting: 2004

The court described the function of the appellate court when deciding whether the decision of a disciplinary committee was challenged: ‘In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a rehearing, it is one usually conducted, and conducted in this case, on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making Committee had the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the Committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, and Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691 …’

Judges:

Richards J

Citations:

[2004] EWHC 1350

Jurisdiction:

England and Wales

Cited by:

CitedWatson v General Medical Council Admn 26-Aug-2005
The claimant said that the procedure of the fitness to practice panel was unfair in that representations had been accepted by the panel from an expert witness without him having an opportunity to challenge or comment on that evidence.
Held: . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 14 May 2022; Ref: scu.234547

Regina v Dhingra: CC 1991

(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case from the jury. The medical expert said ‘so far as the current thinking of the medical profession is concerned the use of the word ‘miscarriage’ relates to the spontaneous loss of an established pregnancy and not the result of anything done to interfere with the processes of fertilization or implantation.’
Held: ‘Both doctors agree that so far as the current thinking of the medical profession is concerned the use of the word ‘miscarriage’ relates to the spontaneous loss of an established pregnancy and not the result of anything done to interfere with the processes of fertilization or implantation.’ and ‘Both doctors agree that in the proper use of modern medical terminology the function of both the pill and the coil in such circumstances is contraceptive, and not abortifacient. To put it in layman’s terms, the use of pill or coil in such circumstances is to prevent a pregnancy commencing, and not to displace an established pregnancy.’ The court referred to the case of Price: ‘The essential question for the jury is . . whether the defendant, at the time he inserted the coil, knew or believed that Miss F was pregnant, and, accordingly, introduced the instrument with intent to procure a miscarriage, or whether, as is the case for the defence, that he knew or believed that she was not pregnant, in the true sense of the word, and that his purpose in inserting the coil was for contraceptive purposes; in other words, to prevent her from becoming pregnant thereafter.’ As to the meaning of ‘miscarriage’: ‘I . . adopt the narrower interpretation of this part of section 58, and hold that the word ‘miscarriage’ in this context relates to the spontaneous expulsion of the products of pregnancy. I further hold, in accordance with the uncontroverted evidence that I have heard, that a pregnancy cannot come into existence until the fertilized ovum has become implanted in the womb . . It follows from this – and I so hold – that the insertion of an intra-uterine contraceptive device before a pregnancy has become established, with the intention of preventing the successful implantation in the uterine wall of any fertilized ovum that may result from a prior act of sexual intercourse, does not amount to an offence under section 58 of the Offences Against the Person Act 1861.’

Judges:

Wright J

Citations:

Unreported, 1991

Statutes:

Offences Against the Person Act 1861 58

Citing:

CitedRegina v Price (Herbert) CACD 1989
A woman went to consult the defendant, a doctor, as she thought she was pregnant and did not wish to have the child. It was common ground that she told the defendant she thought she was some three months pregnant, that she desired not to have the . .
CitedRoyal 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 by:

CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Updated: 13 May 2022; Ref: scu.223705

A Health Authority v X (Discovery: Medical Conduct): FD 2001

There is a compelling public interest in authorising the disclosure of documents to the General Medical Council if they ‘are or may be relevant to the General Medical Council carrying out its statutory duties to protect the public against possible medical misconduct’.

Judges:

Cazalet J

Citations:

[2001] 2 FLR 673

Statutes:

Children Act 1989 12

Jurisdiction:

England and Wales

Citing:

Appealed toA Health Authority v X (Discovery: Medical Conduct) CA 2001
The court considered whether papers in a children’s case should be made available to the GMC: ‘There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of . .

Cited by:

Appeal fromA Health Authority v X (Discovery: Medical Conduct) CA 2001
The court considered whether papers in a children’s case should be made available to the GMC: ‘There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of . .
CitedKent 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 . .
Appeal fromA Health Authority v Dr X and Others CA 21-Dec-2001
Where, after a children case has been heard, a party wishes to apply for the release of papers, the application should be made before the judge who had heard the case. To do otherwise left the second judge making a difficult assessment with . .
CitedBritish 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 . .
CitedDurham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Children

Updated: 13 May 2022; Ref: scu.194856

A Health Authority v X (Discovery: Medical Conduct): CA 2001

The court considered whether papers in a children’s case should be made available to the GMC: ‘There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine.’ ‘The balance came down in favour of production as it invariably does, save in exceptional cases.’

Judges:

Thorpe LJ

Citations:

[2001] EWCA Civ 2014, [2002] 1 FLR 1045

Jurisdiction:

England and Wales

Citing:

Appeal fromA Health Authority v X (Discovery: Medical Conduct) FD 2001
There is a compelling public interest in authorising the disclosure of documents to the General Medical Council if they ‘are or may be relevant to the General Medical Council carrying out its statutory duties to protect the public against possible . .

Cited by:

Appealed toA Health Authority v X (Discovery: Medical Conduct) FD 2001
There is a compelling public interest in authorising the disclosure of documents to the General Medical Council if they ‘are or may be relevant to the General Medical Council carrying out its statutory duties to protect the public against possible . .
CitedKent 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Children

Updated: 13 May 2022; Ref: scu.194857

Re A (Male Sterilisation): CA 2000

The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient.’ and ‘In my judgment best interests encompasses medical, emotional and all other welfare issues.’ and (Thorpe) ‘the evaluation of best interests is akin to a welfare appraisal . . Pending the enactment of a checklist or other statutory direction . . the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case an instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension of risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.’

Judges:

Thorpe LJ, Dame Elizabeth Butler-Sloss President

Citations:

[2000] 1 FLR 549

Jurisdiction:

England and Wales

Cited by:

CitedSimms, PA v Simms (Acting By the Official Solicitor As Litigation Friend), an NHS Trust (Acting By the Official Solicitor As Guardian Ad Litem), an NHS Trust FD 11-Dec-2002
‘In a situation where there is no application to the court, and the patient does not have capacity to make a decision about medical or surgical treatment, the doctor has, in my judgment, two duties. First he must act at all times in accordance with . .
FollowedPortsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .
CitedE v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
CitedAintree University Hospitals NHS Foundation Trust v James and Others CA 1-Mar-2013
The patient had been found to lack capacity to litigate and make decisions as to his medical treatment. The Hospital appealed against rejection of its request for a declaration that it would be lawful to withhold treatment in the case of clinical . .
Lists of cited by and citing cases may be incomplete.

Health, Health Professions

Updated: 13 May 2022; Ref: scu.194083

S v McC; W v W: HL 1972

The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter of upbringing in which the child’s interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. (Lord MacDermott) ‘The duty of the High Court as respects the welfare and affairs of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the common law courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act 1873. It recognises that the infant, as one not sui juris may stand in need of aid. He must not be allowed to suffer because of his incapacity. But the aim is to ensure that he gets his rights rather than to place him above the law and make his rights superior to those of others. The Official Solicitor, however, relied on something more than the protective jurisdiction. He relied upon what is commonly referred to as the ‘custodial jurisdiction’ – the second of the broad categories which I have mentioned already. This is an aspect of the prerogative and paternal jurisdiction of the former Court of Chancery. It is derived mainly from the administrative functions of the Court of Chancery in which that court had to make a choice between conflicting claims as to the custody and upbringing of the infant or the management of his affairs, or to determine the course to be taken in such matters even when not in actual dispute.’ (Lord Hodson) ‘In custody cases the child’s welfare is the governing consideration when all the relevant facts, claims and the wishes of the parents are taken into account. I am not persuaded that the position is the same where a paternity issue has to be tried. True that, as in all cases where infants are concerned, the court will see that the infant is protected. . . . The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of persons other than the child are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others.’
(Reid) ‘But even if one accepts the view that in ordering, directing or permitting a blood test the court should not go further than a reasonable parent would go, surely a reasonable parent would have some regard to the general public interest and would not refuse a blood test unless he thought that would clearly be against the interests of the child.’ (Sir Thomas Bingham MR) ‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.’

Judges:

Lord Hodson, Lord MacDermott, Lord Reid

Citations:

[1972] AC 24

Jurisdiction:

England and Wales

Cited by:

CitedMs B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
CitedRe S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
CitedIn re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
CitedA and D v B and E FD 13-Jun-2003
In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
CitedE v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Children, Torts – Other, Health Professions

Updated: 12 May 2022; Ref: scu.184558

Dr (Mrs) U A Uruakpa v Royal College of Veterinary Surgeons: EAT 18 Jun 2001

The applicant appealed an order striking out her complaint of race discrimination as hopeless. She sought recognition as a veterinary surgeon. Her claim had been dismissed because, under the section the College exercised a statutory power. She asserted that the regulations gave a wide discretion to the College to exempt individuals from all or part of the qualification procedures. It was held that the discretion only applied to those who already held one or more of the qualifications which were recognised. She claimed also that the tribunal system denied her the possibility of equality of arms, and therefore a fair hearing under art 6. The EAT held that the tribunal system was designed to be informal, and Chairmen are specifically required to give assistance to lay parties. There was no breach of that right.
EAT Human Rights –

Judges:

His Honour Judge J Altman

Citations:

EAT/1074/98

Statutes:

Veterinary Surgeon (Examination of Commonwealth and Foreign Candidates) Regulations 1967 Sch para 5, Race Relations Act 1976 41

Human Rights, Discrimination, Health Professions, Employment

Updated: 12 May 2022; Ref: scu.168224

Breen v Williams: 6 Sep 1996

High Court of Australia – Medicine – Doctor/patient relationship – Medical records – Patient’s right to access – Contractual right – Doctor’s duty to act in patient’s ‘best interests’ with utmost good faith and loyalty – Patient’s proprietary right or interest in information contained in records – Whether doctor under fiduciary duty to grant access – ‘Right to know’.
Brendan CJ said that fiduciary duties could arise either from agency or from a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other. An obvious example of the ‘agency’ type of situation was the case where a person received money or other property for and on behalf of or as trustee of another person: ‘It is plain that fiduciary duties may well arise as aspects of a commercial relationship. Moreover, it is clear that legal and equitable rights and remedies are capable of co-existence, even in a single transaction.’

Judges:

Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ

Citations:

(1996) 186 CLR 71, [1996] HCA 57

Links:

Austlii

Cited by:

CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Health Professions

Updated: 11 May 2022; Ref: scu.554212

Department of Health v Pensions Ombudsman and Another: CA 25 Aug 1998

Where a pension was calculated by setting base then applying factor for inflation, a deduction to be made to reflect payment of state pension was to be applied first before application of inflation uprooting.

Citations:

Times 25-Aug-1998, Gazette 30-Sep-1998

Statutes:

National Health Service (Superannuation) Regulations 1980 (1980 No 362)

Jurisdiction:

England and Wales

Health Professions

Updated: 10 May 2022; Ref: scu.79905

Bhattacharya v General Medical Council: PC 1967

The Board rejected an argument that the disciplinary committee of the GMC were wrong in principle to find the appellant guilty of infamous conduct in a professional respect where he contended that the doctor’s intimate relationship began before the woman became his patient. The tendency of conduct to debase or degrade the standing and reputation of the profession will vary from case to case, that there may be cases when the maintenance of a long-standing, pre-existing association can be regarded as much less serious than those when the professional relationship has deteriorated into an improper association, but that this was not to exclude the former from the category of those cases which could be made the subject of disciplinary action. But in each of these cases the improper relationship continued after the professional relationship had been established, and it was this fact that formed the basis of the allegation of professional misconduct.

Judges:

Lord Hodson

Citations:

[1967] 2 AC 259

Cited by:

CitedLibman v The General Medical Council PC 20-Oct-1971
PC (General Medical Council) The appellant a consultant physician appealed against a finding of serious professional misconduct. He had had sexual relations with a patient, and offered to pay a sum for her . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 10 May 2022; Ref: scu.242402

Choudhary v General Medical Council: PC 2001

The Board heard an appeal against a final order of suspension for 12 months. It considered Madan’s case.
Held: The Board wished to reserve their opinion on the reasoning in the judgments that it was the application of Article 6 which required the IOC to weigh the doctor’s interests against the protection of the public. But this reservation related not to whether Article 6 applied, but to the importation of the need for proportionality.

Judges:

Lord Hutton

Citations:

Appeal No 78 of 2001

Statutes:

European Convention on Human Rights 86

Jurisdiction:

England and Wales

Cited by:

CitedMalik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 10 May 2022; Ref: scu.242445

Madan v General Medical Council: Admn 2001

There had been an interim suspension by the Interim Orders Committee of the GMC. Counsel for the GMC conceded the application of Article 6.
Held: Newman J: ‘For myself, I regard it as highly likely that the interim suspension hearings engage Article 6. I regard the fact that it has not been argued fully as no impediment in the way in which we must proceed in this application and whilst I do not have any deep reservations as to the applicability of the Article I would have preferred full argument being to see the exact working out of the Strasbourg jurisprudence and to identify the precise point at which, and the precise reasons why, Article 6 is engaged.’

Judges:

Newman J, Brooke LJ

Citations:

[2001] Lloyds Med R 539

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

CitedMalik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 10 May 2022; Ref: scu.242444

Regina v General Medical Council, ex parte McNicholas: Admn 2001

Judges:

Sullivan J

Citations:

[2001] EWHC 279 Admin

Jurisdiction:

England and Wales

Cited by:

CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 10 May 2022; Ref: scu.237838

Regina v Royal Pharmaceutical Society of Great Britain, ex parte Mahmood and Another: CA 31 Jul 2001

The Society had introduced rules which had the effect that candidates who had failed the registration examination three times were refused permission to try again. The applicants sought to challenge the bylaws by judicial review. The council of the society were authorised by their charter made under the Act, to make, alter etc bylaws for all or any purposes. The power was framed very widely, and this view was supported by the statutory history. The statute also suggested that the source of the power should be framed by reference to the Act rather than the Charter. Nevertheless, the bylaw was not curtailed by statute, and was not ultra vires.

Judges:

Kennedy LJ, Chadwick LJ, Rix, LJ

Citations:

Times 09-Aug-2001, Gazette 27-Sep-2001

Statutes:

Pharmacy Act 1852, Poison and Pharmacy Act 1908 4, Pharmacy Act 1954 4(1)

Jurisdiction:

England and Wales

Administrative, Health Professions

Updated: 08 May 2022; Ref: scu.136174

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 Sosanya continuing in practice. In considering the view taken by the IPO, ‘deference must not be subordinated into obsequiousness’.

Judges:

Davis J

Citations:

[2009] EWHC 2814 (Admin)

Statutes:

Medical Act 1983 41A

Jurisdiction:

England and Wales

Cited by:

CitedBradshaw 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 08 May 2022; Ref: scu.416456

In re D (A Minor) (Wardship: Sterilisation): 1976

Citations:

[1976] Fam 185

Jurisdiction:

England and Wales

Cited by:

CitedF v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Health Professions

Updated: 07 May 2022; Ref: scu.250058

Regina v Price (Herbert): CACD 1989

A woman went to consult the defendant, a doctor, as she thought she was pregnant and did not wish to have the child. It was common ground that she told the defendant she thought she was some three months pregnant, that she desired not to have the child and that there was talk of going to Harley Street if there was any question of terminating any pregnancy. Although she exhibited most of the classic symptoms of being pregnant the defendant apparently told her that he did not think she was. The defendant suggested that she should be fitted with a Gynekoil, an IUD, according to the defendant, because she was frightened of becoming pregnant, and according to the woman, to procure an abortion. Two days later, the coil was inserted. The following day the woman went to a police surgeon who concluded she was pregnant and would shortly miscarry which she did on the following day, the foetus being some ten weeks old. The defendant was convicted by the jury of using an instrument – the Gynekoil – with intent to procure a miscarriage, contrary to section 58 of the 1861 Act.
Held: The judge had misdirected the jury in failing to warn them of the dangers of convicting the defendant on the uncorroborated evidence of the woman – she being in law an accomplice. Sachs LJ: ‘The essential issue for the jury was, did the defendant at the time that he inserted the Gynekoil with the insertion tube know or believe that [she] was pregnant and accordingly introduce the instrument with intent to produce a miscarriage, or did he, as it was his case for the defence, think that she was not pregnant and introduce it for the purpose of allaying anxieties on her behalf as regards the future.’

Judges:

Sachs LJ, Fenton Atkinson and Cusack JJ

Citations:

[1969] 1 QB 541

Jurisdiction:

England and Wales

Cited by:

CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedRegina v Dhingra CC 1991
(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case . .
Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Updated: 06 May 2022; Ref: scu.223716

Everett v Griffiths: HL 1921

The plaintiff had been committed to a mental hospital. The question was whether the doctor (Anklesaria) who signed the certificate to support his committal was liable to him in negligence.
Held: The House affirmed the judgment of the Court of Appeal, but without confirming this point. Lord Haldane thought it ‘probable that if the matter were argued out Anklesaria would have been found to have been under a duty to the appellant to exercise care, the precise nature of this duty would require consideration before it could be exactly defined.’ Lord Moulton: ‘If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of the duty to the public and then leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision.’

Judges:

Lord Finlay, Lord Moulton, Viscount Haldane, Viscount Cave

Citations:

[1921] 1 AC 631, 90 LJKB 737, 125 LT 230, 85 JP 140

Jurisdiction:

England and Wales

Citing:

Appeal fromEverett v Griffiths CA 1920
The plaintiff, who had been detained as a lunatic as the result of the decision of Griffiths, a Justice of the Peace and Chairman of the Board of Guardians in reliance on a medical certificate signed by Anklesaria, a Doctor, sued them both in . .

Cited by:

CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
No longer sustainableID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
CitedJD 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.

Negligence, Professional Negligence, Health Professions

Updated: 06 May 2022; Ref: scu.216358

Carter v Canada (Attorney General): 15 Jun 2012

Supreme Court of British Columbia – [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
[2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
[3] I will summarize, in brief, my findings of fact and legal reasoning.
[4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
[5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
[6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
[7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
[8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
[9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
[10] The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
[11] I turn to the legal issues.
[12] The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
[13] Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided. Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
[14] Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
[15] The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
[16] The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
[17] The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
[18] The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
[19] The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.

Judges:

The Honourable Madam Justice Lynn Smith

Links:

Canlii

Commonwealth, Health, Health Professions, Crime, Human Rights

Updated: 06 May 2022; Ref: scu.551081

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 limited to the elements set out in the written statement of reasons, and, on appeal, matters arising subsequently could be adduced.

Judges:

Farquharson J

Citations:

(1987) 86 LGR 369, Times 27-Jul-1987

Statutes:

Registered Homes Act 1984 10 11 15(1)

Jurisdiction:

England and Wales

Cited by:

CitedTrent 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 05 May 2022; Ref: scu.280409

Association of General Practitioners v Denmark: ECHR 1989

The contractual entitlement of Danish GPs under a collective agreement to indexation of their remuneration was accepted by the Commission as amounting to a possession under the Convention.

Citations:

(1989) 62 DR 226

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 05 May 2022; Ref: scu.277077

McCoan v General Medical Council: PC 1964

The Board advised: ‘Their Lordships are of opinion that Lord Parker CJ may have gone too far in In re a Solicitor [1960] 2 QB 212 when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their Lordships agree with Lord Goddard CJ in In re a Solicitor [1956] 1 WLR 1312 when he said that it would require a very strong case to interfere with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct.’

Citations:

[1964] 1 WLR 1107

Jurisdiction:

England and Wales

Cited by:

CitedBolton 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: 05 May 2022; Ref: scu.271154

Sivarajah v General Medical Council: PC 1964

The board considered the duty of the legal advisor to the disciplinary committee of the General Medical Council: ‘The legal assessor is, however, in no sense in the position of a judge summing up to a jury, nor is the committee’s function analogous to that of a jury. The legal Assessor’s duties are confined to ‘advising on questions of law referred to him, and to interventions for the purpose either of informing the committee of any irregularity in the conduct of their proceedings which comes to his knowledge, or of advising them when it appears to him that, but for such advice, there is a possibility of a mistake of law being made’ (Fox v General Medical Council). The committee are masters both of the law and of the facts.’

Judges:

Lord Guest

Citations:

[1964] 1 All ER 504, [1964] 1 WLR 112

Statutes:

General Medical Council (Legal Assessors) Rules 1980 (SI 1980/941)

Jurisdiction:

England and Wales

Citing:

CitedFox 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 by:

CitedLibman v The General Medical Council PC 20-Oct-1971
PC (General Medical Council) The appellant a consultant physician appealed against a finding of serious professional misconduct. He had had sexual relations with a patient, and offered to pay a sum for her . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 04 May 2022; Ref: scu.242401

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 centre, but if merely contactable then the rules applied to the time actually spent. Merely being on call at night regularly did not make them night workers, but they could be classed as shift workers where appropriate. Consents given collectively by a trade union are not to be equated with consent given by the doctor himself.
ECJ Social policy – Protection of the safety and health of workers – Directives 89/391/EEC and 93/104/EC – Scope – Doctors in primary health care teams – Average period of work – Inclusion of time on call – Night workers and shift workers

Citations:

Times 18-Oct-2000, [2000] ICR 1116, C-303/98, [2000] IRLR 845, [2000] EUECJ C-303/98

Links:

Bailii

Statutes:

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time

Jurisdiction:

European

Cited by:

CitedLandeshauptstadt 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 . .
CitedMacCartney 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] . .
CitedHughes 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 . .
CitedGallagher 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 . .
CitedHughes 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

Updated: 04 May 2022; Ref: scu.162474

SSP Health Ltd v The National Health Service Litigation Authority (Primary Care Appeals Service) and Others: CA 25 Nov 2020

The issue on this appeal is whether an adjudicator appointed to resolve a dispute under an NHS contract made a lawful decision not to award interest on sums that she considered due.

Judges:

Lord Justice Stuart-Smith

Citations:

[2020] EWCA Civ 1574

Links:

Bailii

Statutes:

National Health Service Act 2006 9

Jurisdiction:

England and Wales

Citing:

At AdmnSSP Health Ltd, Regina (on The Application of) v Care Quality Commission Admn 12-Aug-2016
Redress for unamended report
‘Suppose that a regulator, charged by Parliament with the responsibility for the assessment and rating of certain bodies providing services to the public, affords an inspected entity the opportunity to make factual corrections to its draft report . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Damages

Updated: 04 May 2022; Ref: scu.656358

North West Anglia NHS Foundation Trust v Gregg: CA 19 Mar 2019

There had been an internal and police investigation of serious allegations against the doctor. He was suspended without pay. He now appealed saying that that was a breach of the contract.

Judges:

Lewison, Peter Jackson, Coulson LJJ

Citations:

[2019] EWCA Civ 387, (2019) 168 BMLR 1, [2019] Med LR 226, [2019] ICR 1279, [2019] WLR(D) 167, [2019] IRLR 570

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Health Professions, Employment

Updated: 04 May 2022; Ref: scu.634768

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 Parliament would find it necessary to impose a heavier liability on those who are in such a position, and make them more strictly accountable for any breaches of the Act.’

Judges:

Farquharson, Tudor Price JJ

Citations:

[1985] 3 All ER 4

Cited by:

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

Crime, Health Professions

Updated: 04 May 2022; Ref: scu.542921

The NHS Trust v L and Others: COP 2012

The patient suffered extreme anorexia. A declaration was sought as to the possibility of discontinuing compulsory medical treatment. The medical opinion was that the course of action proposed had a ‘close to’ 100% likelihood of causing Ms L’s death; survival would in the view of the experts lead to serious adverse physical and psychological consequences for Ms L. No patient with such a low BMI was reported to have survived such an enforced re-feeding regime whilst in intensive care.

Judges:

Eleanor King J

Citations:

[2012] EWHC 2741 (COP), [2013] COPLR 139

Cited by:

CitedA NHS Foundation Trust v Ms X (By Her Litigation Friend, The Official Solicitor) CoP 8-Oct-2014
X suffered both severe anorexia and alcoholism. She had in the past been repeatedly and compulsorily admitted to hospital for treatment, but her doctors considered that whilst this might be life extending treatment it had proved ineffective and . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 04 May 2022; Ref: scu.537492

Buxton v Swansea NHS Trust: 27 Apr 2007

Mercantile Court, Birmingham – The surgeon appellant had been dismissed by the NHS Trust which employed him. The reason for his dismissal was described as ‘a breakdown in relations between yourself and your Consultant colleagues that is both mutual and most likely irrevocable’. The case proceeded on the assumption that the surgeon’s dismissal for that reason related to his conduct. There were factors not referred to in the court’s judgment which showed that the surgeon was in fact dismissed for his conduct which had caused those relationships to break down. The surgeon appealed against his dismissal.
Held: The appeal procedure depended on whether the dismissal had been for personal misconduct or professional misconduct. The dismissal had been for professional misconduct.

Citations:

Unreported, 27 April 2007

Cited by:

CitedEzsias v North Glamorgan NHS Trust EAT 18-Mar-2011
EAT CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
(1) An employee who has been dismissed because of the . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 04 May 2022; Ref: scu.520060

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 child protection work for three years.
Held: The respondent had not shown any inclination to moderate his views. It was not necessary that he be struck off, but the conditions on his practising should be more tightly drawn.

Judges:

Mr Justice Collins

Citations:

[2005] EWHC 579 (Admin), [2005] Lloyds Law Reports (Medical) 365

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoSouthall 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

Updated: 30 April 2022; Ref: scu.224124

In re J (a Minor) (Wardship: Medical Treatment): CA 1986

The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory failure. The treating physician proposed that in that event, mechanical resuscitation would not be employed.
Held: The court upheld the first instance decision not to order anything to reverse the doctor’s recommendation. The test for whether treament should be discontinued was whether ‘the child in question, if capable of exercising sound judgment would consider the life tolerable’.
Lord Donaldson MR said: ‘it is sensible to define the relationship between the court, the doctors, the child and its parents.
The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.
The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.
The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.’ and
‘In Re B (supra) seems to me to come very near to being a binding authority for the proposition that there is a balancing exercise to be performed in assessing the course to be adopted in the best interests of the child. Even if it is not, I have no doubt that this should be and is the law . . This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the ‘cabbage’ case to which special considerations may well apply, it is not irrebuttable. As this court recognised in Re B account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself . . In the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child’s and mankind’s, desire to survive.’

Judges:

Lord Donaldson MR, Taylor LJ

Citations:

[1991] Fam 33, [1990] 3 All ER 930, [1991] 2 WLR 140

Jurisdiction:

England and Wales

Citing:

AppliedIn Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .

Cited by:

CitedW Healthcare NHS Trust v KH and Others CA 17-Sep-2004
The patient was very severely disabled. She was a lady of 59 suffering from multiple sclerosis. She was not competent to make decisions about her own treatment. She was in a pitiful state, and had to be fed through a percutaneous gastronomy tube but . .
CitedIn re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 30 April 2022; Ref: scu.221444

In Re J (A Minor) (Child in Care: Medical Treatment): CA 26 Aug 1992

Citations:

Gazette 26-Aug-1992, [1993] Fam 15

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re J (A Minor) (Medical Treatment) FD 8-Jul-1992
The Court should be slow to interfere in the exercise of a bona fide clinical judgment to withdraw treatment from a patient, and may overrule a child’s wishes as to the need for medical treatment even though she expressed her wishes clearly. . .

Cited by:

CitedPortsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .
CitedKent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 30 April 2022; Ref: scu.216347

Tarnesby v Kensington and Chelsea Health Authority (Teaching): HL 1981

Dr Tarnesby, a part-time consultant psychiatrist’s name was for a time suspended from the Medical Register after the appropriate Medical Authority had found him guilty of infamous conduct in a professional respect. The Hospital Board, his employer, informed him that in view of his suspension his contract of employment had ended. He sued for a declaration that his employment continued. He was unsuccessful at first instance and in the Court of Appeal.
Held: The appeal was dismissed. The relevant statute provided that ‘no person, not being fully registered, shall hold any appointment as . . Medical Officer . . in any hospital’.
Lord Russell of Killowen spoke of erasure of the doctor’s name from the Register: ‘Erasure would clearly in my opinion have brought about the statutory ban in this case and an automatic termination by law of the Appellant’s appointment and of the contract with the Board which was the basis of that appointment. The contention put forward was that the appointment was one thing and the contract of employment was another, the section affecting only the appointment. I am wholly unable to accept that position: the contract of employment and the appointment were not two things but one.’
The suspension from registration equally had the effect of terminating by law the appointment and the contract of employment ‘which is the appointment’ Lord Bridge resisted any distinction being drawn between holding an appointment as a hospital Medical Officer and being employed as such: ‘So long as the contract of employment continues, so does the appointment and the statutory termination of the one must automatically terminate the other.’

Judges:

Russell of Killowen, Wilberforce, Fraser and Lowry LL

Citations:

[1981] ICR 615

Jurisdiction:

England and Wales

Cited by:

CitedVerner, Sheppard, Ridley v Derby City Council, Norfolk County Council, St Thomas More Roman Catholic High School QBD 14-Nov-2003
The question was whether, when a teacher has applied for and accepted ill-health retirement benefit, usually a lump sum and a pension, on the ground of permanent incapacity, there exists a public law duty on his employer to dismiss the employee.
CitedWright 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Employment

Updated: 29 April 2022; Ref: scu.187970

In re B (Childen: Patient Confidentiality): CA 21 May 2003

A pyschiatrist treating a child was given information under the cloak of professional privilege, to suggest there had been abuse. She had reported her concerns to the child protection services, and gone on to make a statement.
Held: A health professional in such circumstances may well be correct to break confidentialty but must recognise that if she goes beyond reporting her concerns to making a statement, she cannot then object to being called as witness if that evidence is used.

Judges:

Thorpe, LJ, Bodey J

Citations:

Times 01-Jul-2003

Jurisdiction:

England and Wales

Children, Health Professions

Updated: 29 April 2022; Ref: scu.184144

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 patients and to maintain the high standards and good reputation of an honourable profession.’

Judges:

Lord Diplock

Citations:

[1976] 2 All ER 334, [1976] 1 WLR 330

Cited by:

CitedRegina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
CitedGeneral 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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 28 April 2022; Ref: scu.181629

Regina v Statutory Committee of Pharmaceutical Society of Great Britain: 1981

The court asked if the Latin maxim ‘nemo debit bis vexari, si constat curiae quod sit pro una et eadem causa’, or ‘nemo debet bis punire pro uno delicto’ (no one ought to be twice punished for the same offence) were relevant where criminal charges were sought to be pursued after a finding of the disciplinary committee.
Held: The maxim has no reference to professional disciplinary tribunals. Although the facts might be the same before a criminal Court and before the tribunal the offence and the findings are distinct; and second, it is plain on the authorities that such a tribunal is not a court of competent jurisdiction to which the maxim applies.

Judges:

Lord Lane CJ

Citations:

[1981] 2 All ER 805

Cited by:

CitedRegina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Criminal Practice

Updated: 28 April 2022; Ref: scu.181630

Nancy B v Hotel-Dieu de Quebec: 1992

An individual of full capacity is not obliged to give consent to medical treatment, nor is a medical practitioner or other service provider under any obligation to provide such treatment without consent, even if the failure to treat will result in the loss of the patient’s life. The Superior Court of Quebec applied the Civil Code of Lower Canada to hold that Mrs. B. had the right to discontinue her respiratory support treatment, even though this would soon lead to her death.

Citations:

(1992) 86 DLR (4th) 385, [1992] RJQ 361

Jurisdiction:

Canada

Cited by:

CitedAiredale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Lists of cited by and citing cases may be incomplete.

Health Professions

Updated: 28 April 2022; Ref: scu.180673

Quirk v Burton Hospitals NHS Trust Secretary of State for Health: EAT 4 Dec 2000

The Appeal tribunal upheld the refusal of an employment tribunal to grant the applicant a declaration that he was entitled to retire at 55 with the same superannuation terms as had female nurses also retiring at that age.
EAT Sex Discrimination – Direct

Judges:

His Honour Judge Peter Clark

Citations:

Times 19-Feb-2002, EAT/1031/99

Statutes:

National Health Service (Superannuation) Regulations 1980 (1980 No 362)

Discrimination, Health Professions

Updated: 28 April 2022; Ref: scu.171968

Regina (Howard and Another) v Secretary of State for Health: QBD 15 Mar 2002

The applicants sought orders that enquiries into the activities of doctors under the Act should be held in public.
Held: The Act contained no presumption that enquiries should be in public, and the Wagstaff case created no general principle to that effect. The right to free expression did not include the right to receive from others information they were unwilling to impart. It was for the Secretary of State to make a decision in each case, and his decisions stood.

Judges:

Justice Scott Baker

Citations:

Times 28-Mar-2002, Gazette 23-May-2002

Statutes:

National Health Service Act 1977 2, European Convention on Human Rights Art 10.1

Jurisdiction:

England and Wales

Citing:

CitedRegina v Secretary of State for Health, Ex Parte Wagstaff etc QBD 31-Aug-2000
The Secretary of State announced a public enquiry into the Shipman case. He did not say whether it would be a public enquiry. The bereaved families and media wanted it to be public, and contended that it had been invalidly constituted, that an . .
CitedLeander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Lists of cited by and citing cases may be incomplete.

Administrative, Health Professions, Human Rights

Updated: 28 April 2022; Ref: scu.168067