Clinical Negligence: A Practical Guide

• Publisher: Bloomsbury Professional
• Year: 2019
• Tongue: English
• Leaves: 947
• Category: Library

✦ Synopsis

DELETE

✦ Table of Contents

Foreword
Acknowledgements
The authors
Acronyms
Table of statutes
Table of statutory instruments
Table of cases
Quotations
Chapter 1 Introduction
A fascinating subject
The growth of litigation
The expense of litigation
On the other hand
PART ONE
Chapter 2 The structure of the National Health Service in England
Introduction
Parliamentary oversight of the NHS
The Department of Health and Social Care (DoH)
Arm’s length bodies (ARMs)
Non-departmental public bodies
Care Quality Commission (CQC)
NHS England (NHSE)
NHS Improvement (NHSI)
Health and Social Care Information Centre (HSCIC)
National Institute for Health and Care Excellence (NICE)
Human Tissue Authority (HTA)
Human Fertilisation and Embryology Authority (HFEA)
Executive Agencies
Public Health England (PHE)
Medicines and Healthcare products Regulatory Agency (MHRA)
Special Health Authorities
Health Research Authority (HRA)
NHS Blood and Transplant (NHSBT)
NHS Resolution
NHS Business Services Authority (NHSBSA)
Health Education England (HEE)
Delivery of healthcare services
Commissioning
Primary care providers
The third sector
GPs
Seven day services
NHS 111
Walk-in centres/minor injuries unit
Dentistry services
Community pharmacies
Opticians
Community health services
Delivery of urgent and emergency care
Ambulance services
A&E departments
Secondary care
NHS trusts
Foundation Trusts
Independent providers
Other care providers
Mental health
Prison healthcare
Summary
Chapter 3 Non legal remedies
Introduction
The cost of clinical negligence litigation
The National Audit Office (NAO)
Legal aid
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012)
Alternatives to litigation
Avoiding litigation
Complaining about private healthcare
The duty of candour
Serious Incident Reports (SIR)
National Health Service Resolution (NHS Resolution) – formerly the NHSLA
The Early Notification Scheme (ENS)
Health Service Investigation Branch (HSIB)
NHS England
Healthwatch England
Requests for information
Data Protection Act 1998, Freedom of Information Act 2000, General Data Protection Regulations (EU) 2016/679
Alternatives to litigation
The Pre-Action Protocol for the Resolution of Clinical Disputes
Mediation
Arbitration
Early neutral evaluation
Rapid Resolution and Redress (RRR)
Professional regulation
Public inquiries
The Care Quality Commission (CQC)
The NHS Redress Act 2006
Conclusion
Chapter 4 Legal remedies
Vicarious liability
General principles
The necessary relationship
Employees
Other relationships
The necessary connection with the act of wrongdoing
Primary liability
Trust or health authority as defendant
Suing two defendants
Naming the wrong defendant
Cases under the old rules (RSC)
The private patient
Contract
The GP
The primary duty of care
Independent providers
Suing over policy decisions
PART TWO
Chapter 5 The duty of care
Introduction
The duty of care to the patient
The doctor-patient relationship
Medical treatment of non-patients
The doctor’s duty to others
Family members
Insurers and employers
Advice given in legal proceedings
The duty of doctors exercising statutory powers
The education cases
The duty owed to members of the public
Cases involving detention
Chapter 6 Breach of duty and strict liability
Introduction
The Bolam test
Bolam does not apply to the facts
Situations where the court has considered not applying a simple Bolam analysis
Bolitho
Applying Bolitho
Factors affecting the standard of care
Errors of judgment
Departing from usual practice
State of knowledge
(In)Experience
Direct liability – system failure
Lack of funds
Emergencies
Alternative therapies
Self-inflicted injury
Children
The burden of proof
The ordinary case: the claimant’s burden
Shifting the burden of proof
Proving an adverse outcome
The absence of non-negligent explanation
Rebuttal
Strict liability
Consumer Protection Act 1987
Vaccine Damage Payments Act 1979
Chapter 7 Causation and damage
Introduction
Actionable personal injury
Proof of causation
Burden of proof
Presumption of competent treatment
Medical cases
Further examples of cases on causation
The Chester v Afshar exception
‘Material contribution’
Materially increasing the risk
Divisibility/apportionment
Breaking the chain of causation
Duty to mitigate
Contributory negligence
Loss of a chance
What is the problem?
Hotson v Fitzgerald
Do not confuse
Gregg v Scott and the loss of a prognosis
Further examples – no award for lost chance
Scenarios involving ‘chance’
Conclusion
Chapter 8 Foreseeability and remoteness
Introduction
Too remote
Foreseeability of harm
Degree of foreseeability
Exceptions
Policy
‘You must take the claimant as you find him’: the ‘egg shell skull’ principle
‘Type’ of injury suffered
The ‘precise manner’
Conclusion
Chapter 9 The proof of negligence
Introduction
Difficulties in causation
Burden of proof
Lost records
Witness evidence
Res ipsa loquitur
Whose negligence?
Appeals and the burden of proof
The principles of appeal
Must a judge give reasons for his conclusions?
Recent appeals
Chapter 10 Consent
Introduction
Relevant legislation
Assault and battery
Different causes of action: the merits of assault v negligence
Clinical negligence claims for consent: the law before Montgomery
Montgomery: confirmation of the doctrine of informed consent
The facts
The Supreme Court’s decision
The new test
Impact of Montgomery
Consent and confidential information
Challenges to Chester v Afshar
Obtaining consent
Valid consent
The primary question – does the person have capacity to give consent?
Is any consent given voluntarily?
Consent to visual and audio recordings
Who should seek consent?
When should consent be sought?
The form of consent
Special circumstances – form of consent
The duration of consent
When consent is refused or withdrawn
Caesarean section cases
The timing of the withdrawal of consent
Advance decisions to refuse treatment
Difficult cases
Self-harm
Post operation – use of removed tissue
Research and innovative treatment
Chapter 11 Adults without capacity
General principles
Protecting P’s Article 5 rights
Duration of lack of capacity
Statements of preferences and wishes
Lasting power of attorney (LPA)
Court appointed deputies
Independent mental capacity advocates (IMCAs)
Consent forms
Referral to the Court of Protection
Research
Children and young people
Young people aged 16–17
Children under 16 – the concept of Gillick competence
The requirement of voluntariness
Child or young person with capacity refusing treatment
Child lacking capacity
Research on children or young people
Using children as bone marrow donors
United Nations Convention on the Rights of the Child (CRC)
Life-sustaining treatment – withdrawing and withholding
The general principles
Adults and children with capacity
Adults and children lacking capacity
The quality of life and terminally ill patients
Other exceptions to the general principles
Chapter 12 Wrongful birth
The failed sterilisation and similar mishaps
Sterilisation
The failure rate of sterilisation
Lines of attack
Vasectomy
Scenario 1: Wrongful pregnancy with a healthy child
The McFarlane case
Post-McFarlane
Value of the claim
Scenario 2: Wrongful pregnancy with a disabled child
The Parkinson case
Scenario 3: A disabled woman’s wrongful pregnancy with a healthy child
The Rees case
Scenario 4: Wrongful birth claims
Limitation in Scenarios 1 to 4
Scenario 5: Wrongful life claims
Transatlantic cases
The McKay case
Loss of fertility
Chapter 13 The Congenital Disabilities Act 1976
The problem
The common law
The Act
Causation
The damage
Limitation
Extensions and restrictions
Chapter 14 Psychiatric injury
Primary and secondary victims
What is psychiatric injury caused by shock?
The older cases
Further development in Alcock – ‘control’ mechanisms for secondary victims
What qualifies as the ‘aftermath’ of a shocking event?
Causation – must the psychiatric injury be caused by proximity to the shocking event rather than the consequences of the event itself?
Unusual cases
What amounts to a ‘shocking event’?
What needs to be proved?
Fatal accident and bereavement
Death of an infant
Cases
Chapter 15 Economic loss
Introduction
The ‘electricity’ cases
Development
Retrenchment
Comment
Medical context
Chapter 16 Product liability in a medical context
Introduction
History of medical product liability claims
Consumer Protection Act 1987
Who can claim?
Identifying the appropriate defendant
Temporal limitations
Geographical/jurisdictional limitations
What is a product?
What makes a product defective?
Avoidability, risk-benefit and cost
Regulations and standards
Learned intermediaries
Defences
Causation
Claims in contract
Satisfactory quality
Fit for a particular purpose
Claims in negligence
PART THREE
Chapter 17 Procedure to service of proceedings
Prior to issue
Pre-Action Investigations and the Pre-Action Protocol
Issue
Starting proceedings
Court fees on issue
The claim form
Service of the claim form
Extending time for service of the claim form
Particulars of claim
Late service of particulars of claim
Documents required to be served with the proceedings
The defence
Reply to the defence
Chapter 18 Procedure from service to trial
Introduction
The litigation timetable and directions
Case management
Disclosure
Witness evidence
Expert evidence
Further directions
Common applications
Requests for further information
Requests for disclosure
Strike out and analogous orders of the court
Strike out
Default judgment
Summary judgment
Fundamental dishonesty
Considerations during and after strike out
Other matters
Civil restraint orders
Submission of no case to answer
‘Back in play’: new claims made on the same facts
Multi-party actions
Representative actions
Group litigation orders
Quantifying claims under a GLO
Distribution of damages
Costs
PART FOUR
Chapter 19 The inquest – the law, procedure and funding
Introduction
Reform
Statutory framework and subordinate legislation
Overview
Coronial areas
Chief Coroner
Coroners
Coroners officers
Coronial investigation stages
Pre-investigation inquiry
The investigation
The inquest
Reporting deaths to the coroner
Medical examiners and reportable death reforms
Jurisdiction
Violent death
Natural death/unnatural death
The cause of death is unknown
The deceased died in custody or otherwise in state detention
Stillbirth
Post-mortem examination
Wishes of the family
Practical arrangements
The post-mortem examination
Pathologist
Autopsy: invasive examination
The post-mortem report
Second post-mortem examination
After the post-mortem examination
Removal and retention of organs and tissue
The inquest
Statutory questions
Interested persons
Preparing for the inquest
Inquest opening
Pre-inquest review hearing ‘PIR’
Bias
Evidence
Expert evidence
Advance disclosure
Scope of the inquiry including Art 2 of the ECHR
Engagement of Article 2
Summoning a jury
The inquest hearing
The resumed hearing
Witnesses called to give evidence
Self-incrimination
Evidential points
Hearsay
Closing speeches
Summing up to the jury
Conclusions
Conclusion: adequacy of the evidence
Limits to conclusions
Conclusions and causation
Conclusions: standard of proof
Conclusions in healthcare deaths
Natural causes
Suicide
Accidental death/misadventure
Want of attention at birth
Lawful/unlawful killing
Unlawful act manslaughter
Open conclusion
Stillbirth
Neglect
Narrative conclusion
Closure of the inquest, media, and publicity
Funding and the recoverability of costs
Public funding
Applying for exceptional funding for provision of advocacy at hearings
Refusal of public funding
Extent of funding
Payment rates
Contribution
Legal expenses insurance (LEI)
Conditional fee agreements (CFAs)
Recovering costs of the inquest after the conclusion of the civil claim
Post-inquest remedies
Judicial review
Coroners Act 1988, s 13
Civil proceedings
Criminal proceedings
Disciplinary/professional misconduct proceedings
Chapter 20 Limitation
Introduction
The period of limitation
What amounts to a personal injury action?
Assault
Capacity
Deliberate concealment
Knowledge
Actual knowledge
‘Significant’ injury
Attributability
Constructive knowledge
Section 33 discretion
The rule in Walkley v Precision Forgings and the effect of Horton v Sadler
Preliminary trial
Fatal accident claims
Amending a claim
Amending the statement of claim
Chapter 21 The medical records
The records of treatment
Records lost or destroyed
Do the records prove themselves?
The Data Protection Act 1998 and the Freedom of Information Act 2000
The right to pre-action disclosure
Confidentiality of medical records
Consent and confidential information
Other pre-action facilities
The reverse side of the coin
Privilege
Legal professional privilege
Public interest privilege
Documents obtained by mistake
Contents of the records
GP records
The electronic patient record (EPR)
Telephone recordings
Paper records: the Lloyd George record
Other records
The summary care record
Hospital records
Examples of the form and abbreviation in medical records
Form and abbreviation in hospital records: an annotated example
Abbreviations and hieroglyphs
Chapter 22 Experts
Why do you need experts?
What the court expects of the expert
The bad old days
Reform
Codes of guidance
What the lawyer expects of the expert
Selecting an expert
The Expert Witness Institute and the Academy of Experts
Clinical Disputes Forum
Instructing an expert
Do the lawyers need medical knowledge?
Interlocutory use of experts
Judicial oversight: the effect of the Woolf and Jackson reforms
Cutting down on experts
When is an expert not an expert?
Joint experts
Challenging a report from a joint expert
Medical literature
Disclosure
Joint expert discussions
Agendas
When the expert gives the case away
Spa litigation
Judicial preference
An expert’s immunity
Chapter 23 Human rights
Introduction
The European Convention on Human Rights and Fundamental Freedoms
The Human Rights Act 1998
Interpretation of primary and subordinate legislation
Public authorities: the duty to act compatibly with Convention rights
Public authorities: what is a ‘public authority’?
Appropriate forum and procedure: bringing a claim under HRA 1998
Limitation
Standing: who can bring a claim under HRA 1998?
Remedies
Taking a case to Strasbourg
The Convention Rights
Interpretation of Convention Rights
Article 2: The right to life
Article 3: Freedom from inhuman treatment
Article 6: The right to a fair trial
Article 8: The right to respect for private and family life, home and correspondence
Article 10: Freedom of expression
Article 12: The right to marry and have a family
Conclusion
Chapter 24 Court of Protection and issues involving capacity
Mental Capacity Act 2005
The principles of the MCA 2005
The general defence in ss 5 and 6
Who should make the application?
Lasting powers of attorney
Advance decisions to refuse treatment
Excluded decisions
Protecting Article 5, Right to liberty
The Court of Protection
Article 8 and the Court of Protection
Judges of the Court of Protection
Court of Protection Rules 2017
Practice directions
Forms
Fees
Costs
Making an application to the Court of Protection
Appointment of a deputy
Orders appointing deputies for property and affairs purposes
Duties of a deputy
The Office of the Public Guardian (OPG)
Statutory wills
Codes of Practice
Chapter 25 Wales
Complaints handling and redress for low value clinical negligence claims in Wales
National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011
Background
The arrangements for Responsible Bodies
Potential drawbacks
The Regulations 2011
When do the Regulations apply?
Who can raise a concern?
Methods for raising a concern
What concerns can be raised?
Time limits for notification of a concern to the Responsible Body
Withdrawal of concerns
Initial response by the Responsible Body
Effect of a conditional fee agreement or insurance premium
Part 5 of the regulations: investigation of concern
Part 6 of the regulations: redress
PART FIVE
Chapter 26 Funding
Historical background
The Jackson Report
The implementation of Jackson
The funding options
Private retainer
Legal expense insurance
Legal aid (public funding)
ADR
Exceptional cases funding
Conditional fee agreements (CFAS)
The history
The era of recoverability
Conditional Fee Agreements Regulations 2000
The CFA Regulations 2005
The current position post-Jackson
Practical considerations
Damages based agreements (contingency fees)
The verdict on Jackson so far
The Ministry of Justice’s verdict on Jackson
The future
Chapter 27 Costs
The twin pillars of costs jurisprudence
Some rules about costs
Multiple defendants
Partial success
Issues-based costs orders
Mediation
CPR Part 36
Form and content
The defendant’s offer
Timing of a Part 36 offer
Clarification of a Part 36 offer
Withdrawing a Part 36 offer
Changes or withdrawal of a Part 36 offer before the expiry of the relevant period
Acceptance of a Part 36 offer
Costs consequences of accepting a Part 36 offer
Acceptance of a Part 36 offer made by one or more but not all defendants
Costs consequences following judgment
Where the claimant fails to beat the offer: CPR 36.17(3)
Factors to be taken into account in making an award under CPR 36.17(3) and (4)
Interest: CPR 36.17(6)
Exceptions: CPR 36.17(7)
Personal injury claims and future pecuniary loss
Part 36 and provisional damages
Qualified one way costs shifting (QOCS)
Where the permission of the court is not required: CPR 44.15
Where permission of the court is required: CPR 44.16
QOCS and interlocutory costs orders, including Part 36
QOCS and multiple defendants
Principles of costs assessment
Standard and indemnity costs
Standard costs: proportionality
Factors to be taken into account in determining the amount of costs
Pro bono costs orders
APPENDICES
Appendix I Statutes
1 Damages
2 Limitation
3 Congenital Disabilities (Civil Liability) Act 1976
Appendix II Practice Directions and Protocols
1 Practice Direction – Pre-Action Conduct and Protocols
2 Pre-Action Protocol for the Resolution of Clinical Disputes
3 The Pre-action Protocol Form for Requesting Medical Records
Appendix III Directions
Model Directions for Clinical Negligence Cases (2018) – Before Master Yoxall and Master Cook
Appendix IV Common hieroglyphs and abbreviations
Appendix V The Hippocratic oath
Appendix VI Letters of instruction to expert
Appendix VII Example of an agenda for the experts
Index