Tag: Health Professions

GMC v Szisz: Admn 23 Dec 2013

Application made by Part 8 claim form for an extension of an interim order of conditions imposed on the defendant by the Interim Orders Panel of the General Medical Council originally on the 4th January 2013. The defendant is a Hungarian national who currently practises in Hungary.

Pelling QC HHJ
[2013] EWHC 4452 (Admin)
Bailii

Health Professions

Updated: 29 November 2021; Ref: scu.521083

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

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

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

Health Professions, Discrimination

Updated: 14 November 2021; Ref: scu.510948

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

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

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

Lists of cited by and citing cases may be incomplete.

Health Professions, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.471509

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

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

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

Lists of cited by and citing cases may be incomplete.

Information, Health Professions

Updated: 11 November 2021; Ref: scu.440859

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

Court to seek and Apply Parliamentary Intention

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

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

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

Lists of cited by and citing cases may be incomplete.

Health Professions, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.179803

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

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

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

Lists of cited by and citing cases may be incomplete.

Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.540220

Z v Finland: ECHR 25 Feb 1997

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

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Information, Health Professions

Leading Case

Updated: 11 November 2021; Ref: scu.165488

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

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

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

Health Professions, Employment

Updated: 10 November 2021; Ref: scu.568631

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

Child’s Wish for post-mortem cryonic Preservation

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

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

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children, Health Professions

Leading Case

Updated: 09 November 2021; Ref: scu.571412

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

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

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

Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 09 November 2021; Ref: scu.552779

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

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

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

Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights, Natural Justice

Updated: 09 November 2021; Ref: scu.563227

Landeshauptstadt Kiel v Norbert Jaeger: ECJ 9 Sep 2003

Concepts of working time and rest period – On Call

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

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

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

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.186330

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

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

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

Health Professions, Children, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.562140

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Coroners, Health Professions, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.87444

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

No Doctor’s appeal out of time.

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

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

Health Professions

Updated: 01 November 2021; Ref: scu.569625

DB v The General Medical Council: QBD 23 Sep 2016

Council unable to Disclose report

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

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

Health Professions, Information

Updated: 01 November 2021; Ref: scu.569595

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

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

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

Lists of cited by and citing cases may be incomplete.

Crime, Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.223563

Spencer v General Osteopathic Council: Admn 8 Nov 2012

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

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

Lists of cited by and citing cases may be incomplete.

Health Professions

Leading Case

Updated: 01 November 2021; Ref: scu.465681

Wilsher v Essex Area Health Authority: HL 24 Jul 1986

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

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

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

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Leading Case

Updated: 31 October 2021; Ref: scu.177399

Darnley v Croydon Health Services NHS Trust: CA 23 Mar 2017

Claimant’s appeal in personal injury litigation based upon alleged negligence by the receptionist in a hospital’s accident and emergency department. The principal issue in the appeal is whether the receptionist (or the health trust acting by the receptionist) owed any tortious duty to provide accurate information to the claimant about waiting times.
Jackson, McCombe, Sales LJJ
[2017] EWCA Civ 151
Bailii
England and Wales
Citing:
Appeal from – Darnley v Croydon Health Services NHS Trust QBD 31-Jul-2015
The claimant sought damages, alleging that the defendant Trust had failed in its treatment of him when he attended Accident and Emergency after being assaulted. The court now considered the issue of liability. The claimant attended with a head . .

Cited by:
Appeal from – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .
Cited – Darnley v Croydon Health Services NHS Trust SC 10-Oct-2018
The claimant had been assaulted. He presented at the defendant hospital with head injuries. Despite his complaints he said he was not treated properly, being told to wait five hours at reception, and went home. Later an ambulance was delayed and he . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.581069

An NHS Trust and Others v Y and Another: SC 30 Jul 2018

The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. The Official Solicitor appealed from the grant of a declaration.
Held: The appeal failed. It was not established law that a court’s permission was required. The question facing anyone considering treatment of a patient not able to make his or her own decision is not whether it is lawful to withdraw treatment, but rather the legality of giving it. Treatment is lawful only if it is in the patient’s best interests. A doctor carrying out treatment in the reasonable belief that it will be in the patient’s best interests, is entitled to the protection from liability conferred by section 5 of the 2005 Act. Airedale v Bland did not impose such a requirement. Where the situation was not clear than a court application was appropriate.
Lady Hale, President, Lord Mance, Lord Wilson, Lord Hodge, Lady Black
[2018] UKSC 46, (2018) 21 CCL Rep 410, [2019] AC 978, (2018) 163 BMLR 1, [2018] WLR(D) 490, [2018] 3 WLR 751, UKSC 2017/0202
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Feb 26 am Video, SC 2018 Feb 26 pm Video, SC 2018 Feb 27 am Video
Mental Capacity Act 2005 42(1), European Convention on Human Rights
England and Wales
Citing:
Appeal from – NHS Trust v Y and Another QBD 13-Nov-2017
Claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (‘CANH’) from a patient who has a prolonged disorder of consciousness in circumstances where . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Director of Legal Aid Casework and Others v Briggs CA 31-Jul-2017
Orse In re Briggs (Incapacitated Person) . .
Cited – SCC v MSA and Another CoP 20-Sep-2017
Orse In re M (Incapacitated Person: Withdrawal of Treatment)
The court was concerned with the withdrawal of CANH from a woman who was suffering from Huntington’s disease and was in a minimally conscious state. Her family, her clinicians, and a . .
Cited – W v M S and Others CoP 28-Sep-2011
Orse – In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment)
The case concerned a woman in a minimally conscious state, Baker J expressed the view that ‘all decisions about the proposed withholding or withdrawal of ANH . .
Cited – LB (Plastics) Ltd v Swish Products Ltd ChD 1979
Whitford J said: ‘The cases since the Act of 1911 have, however, I think quite plainly established that no originality of thought is needed to sustain a claim to copyright. Under copyright ideas are not protected, only the skill and labour needed to . .
Cited – In re Briggs (Incapacitated Person) 2018
. .

Cited by:
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.620170

NHS Trust v Y and Another: QBD 13 Nov 2017

Claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (‘CANH’) from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient’s family are agreed that it is not in the patient’s best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn.
Held: The declaration was granted, but the transfer to the Court of Protection refused. It was not established that there was any common law principle that all cases concerning the withdrawal of CANH from a person who lacks capacity had to be sanctioned by the court: ‘where the clinicians have followed the Mental Capacity Act and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.’ Such was the situation in Mr Y’s case, she considered, and accordingly she granted the following declaration: ‘It is not mandatory to bring before the court the withdrawal of CANH from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Y’s family are agreed that it is not in his best interests that he continues to receive that treatment.’
O’Farrell J
[2017] EWHC 2866 (QB), [2017] 4 WLR 222, [2017] WLR(D) 771
Bailii, WLRD
Mental Capacity Act 2005, European Convention on Human Rights 2 6
England and Wales
Cited by:
Appeal from – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .
At First Instance – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.601109

LG v The Independent Monitor: Admn 21 Dec 2017

The ECRC recorded the acquittal of a nurse on charges of theft from a patient, noting that her earlier admission of theft had been ruled inadmissible at trial, and the jury directed to acquit.
Held: The information had been properly included.
Lane J
[2017] EWHC 3327 (Admin)
Bailii
England and Wales
Cited by:
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.602591

Re D (A Child): CA 31 Oct 2017

The court considered an order effectively depriving child D of his liberty.
Sir James Munby P FD, David Richards, Irwin LJJ
[2017] EWCA Civ 1695, (2018) 160 BMLR 61, [2018] 2 FLR 13, [2018] COPLR 1, [2018] PTSR 1791
Bailii
Mental Capacity Act 2005, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and eucation. . .
Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .

Cited by:
Appeal From – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.598462

BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another: QBD 9 Feb 2007

The claimants said that changes to the Highy Skilled Migrant Programme were unfairly introduced, that they had effectively barred non-EU doctors from applying for first tier doctor appointments, and that the guidance could properly be derived only from powers under the 1971 Act. The respondent denied that the rules came under the 1971 Act, being rather a matter of employment guidance only.
Held: The guidance was not universal in effect and the claim was rejected. An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements
Stanley Burnton J
[2007] EWHC 199 (QB)
Bailii
Immigration Act 1971
England and Wales
Citing:
See Also – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 9-Feb-2007
. .

Cited by:
Appeal from – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
At First Instance – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another HL 30-Apr-2008
The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s . .
Cited – Jewish Rights Watch (T/A Jewish Human Rights Watch), Regina (on The Application of) v Leicester City Council Admn 28-Jun-2016
The claimant challenged the legaity of resolutions passed by three local authorities which were critical of the State of Israel. They said that the resolultions infringed the Public Sector Equality Duty under section 149 of the 2010 Act, and also . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2021; Ref: scu.248444

Newcastle Upon Tyne NHS Foundation Trust v Haywood: CA 17 Mar 2017

The Trust had sent to the respondent a letter terminating her employment. The parties disputed when the notice took effect.
Held: Proudman J held that ‘the contents of the letter had to be communicated to the employee’.
Arden LJ held that the letter had to be ‘received’; where it has been delivered to the party’s address, there is a rebuttable presumption that it has been received; but that presumption had been rebutted by the judge’s finding that Mrs Haywood did not receive the letter until 27 April – there was no need for her to have read the letter but she had to have received it.
Lewison LJ dissented: ‘notice is validly given under the contract when a letter containing the notice actually arrives at the correct destination, whether the recipient is there to open it or not’
Arden DBE, Lewison LJJ, Proudman DBE J
[2017] EWCA Civ 153, [2018] 1 WLR 2073, [2018] ICR 882, [2018] 4 All ER 467, [2018] WLR(D) 265, [2018] IRLR 644
Bailii, WLRD
England and Wales
Cited by:
Appeal from – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood SC 25-Apr-2018
Notice of dismissal begins when received by worker
The court was asked: ‘If an employee is dismissed on written notice posted to his home address, when does the notice period begin to run? Is it when the letter would have been delivered in the ordinary course of post? Or when it was in fact . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.581074

Attorney-General’s Reference (No 2 of 2003); 1 Apr 2004

References: Unreported, 1 April 2004
Coram: Judge LJ, Elias, Stanley Burnton JJ
Ratio:The license holder of a fertility clinic was accused of keeping an embryo otherwise than in pursuance of the licence. The clinic had employed a respected consultant who had carried out the task, but had done so unlawfully.
Held: The Act made a clear distinction between the person responsible for keeping the embryos and the license holder. The licence holder might be subject to disciplinary procedures within the licence system, but he had not been the person responsible within the Act in this case.
Statutes: Human Fertilisation and Embryology Act 1990

Last Update: 07-Jul-16
Ref: 196067

X v Y v St Bartholomew’s Hospital Centre for Reproductive Medicine (Assisted Reproduction: Parent); FC 13 Feb 2015

References: [2015] EWFC 13
Links: Bailii
Coram: Theis J
Ratio The required Form PP was not on the clinic’s file. Theis J set out four issues which accordingly arose: (1) Did X sign the Form PP so that it complied with section 37(1) of the 2008 Act? (2) If X did, was the Form PP subsequently mislaid by the clinic? (3) Was the treatment ‘provided under a licence’ as required by section 37(1)? (4) If the Form PP form was not signed can the court ‘read down’ section 37(1) to enable the court to make the declaration of parentage sought? She summarised her conclusions as follows: ‘I have concluded, on the facts of this case, that it is more likely than not that X did sign the PP form on 26 October 2012, and it has subsequently been mislaid by the clinic. I have also concluded, in the circumstances of this case, the failure by the clinic to maintain records did not amount to a breach of the licence so as to invalidate it, so that the treatment was ‘provided under a licence’ as required by s. 37(1).’
Ratio Theis J summarised the statutory record requirements: ‘Section 12(1)(d) HFEA 1990 provides that one of the conditions of every licence granted is that ‘proper records shall be maintained in such form as the Authority may specify in directions’. Direction 0012 requires licensed centres to maintain for a period of 30 years certain specific records, including ‘all consent forms and any specific instructions relating to the use and/or disposal of gametes and embryos’ (paragraph 1(f)). Licence condition T47 provides ‘All records must be clear and readable, protected from unauthorised amendment and retained and readily retrieved in this condition throughout their specified retention period in compliance with the data protection legislation’. At paragraph 31.2 of the guidance it provides ‘A record is defined as ‘information created or received, and maintained as evidence by a centre or person, in meeting legal obligations or in transacting business. Records can be in any form or medium providing they are readily accessible, legible and indelible’.’
It is clear from the findings I have made about the clinic not keeping the PP form for X that the CRM is in breach of Direction 0012.’
Statutes: Human Fertilisation and Embryology Act 2008
This case is cited by:

  • Cited – In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others FD (Bailii, [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, (2015) 146 BMLR 123, [2015] 3 FCR 555, [2016] 1 All ER 273, [2015] WLR(D) 387, [2015] Fam Law 1333, WLRD)
    The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
    Held: The court pointed again to the failures to keep proper records within several fertility clinics. . .

(This list may be incomplete)

Last Update: 17-May-16
Ref: 542927

Breen v Williams; 6 Sep 1996

References: (1996) 186 CLR 71, [1996] HCA 57
Links: Austlii
Coram: Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ
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.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    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 . .

(This list may be incomplete)
Last Update: 06-Nov-15 Ref: 554212

Carter v Canada (Attorney General); 15 Jun 2012

Links: Canlii
Coram: The Honourable Madam Justice Lynn Smith
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.

Buxton v Swansea NHS Trust; 27 Apr 2007

References: Unreported, 27 April 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.
This case is cited by:

  • Cited – Ezsias -v- North Glamorgan NHS Trust EAT (Bailii, [2011] UKEAT 0399_09_1803, [2007] ICR 1126, [2007] 4 All ER 940, (2011) 121 BMLR 84, [2011] IRLR 550, [2011] Med LR 251)
    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 . .

The NHS Trust v L and Others; COP 2012

References: [2012] EWHC 2741 (COP), [2013] COPLR 139
Coram: Eleanor King J
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.
This case is cited by: