UK: Health Law News - February 2016

Last Updated: 12 February 2016
Article by Clyde & Co LLP

Welcome

Welcome to our February edition of the Health Law news update. This update will cover relevant and topical information relating to recent cases and updates on Health Law, including confidentiality and dealing with sensitive information.

If you have any feedback, or there is a particular issue you would like to see covered in our next edition then please let us know and we shall endeavour to assist.

Clyde & Co and Acumension win a landmark costs victory for the NHS Litigation Authority

Clyde & Co and Legal Costs firm Acumension help the NHSLA win a landmark victory against excessive success fees and ATE premium

The Judge disallowed success fees and an ATE insurance premium claimed by national firm Irwin Mitchell. This is one of the first cases of its kind that addresses the situation where a Claimant transferred from Legal Aid funding to a Conditional Fee Agreement just prior to the abolition of recoverable success fees and ATE insurance premiums.

AH v Lewisham Hospital NHS Trust was a clinical negligence claim where the claimant was legally aided. However, at the end of March 2013, just before the new rules came into force on 1 April stopping a Claimant’s entitlement to recover CFA success fees and ATE premiums, and after the Trust had made a partial admission of breach of duty and causation and an offer, the Claimant discharged legal aid and entered into a CFA with a success fee of up to 100% with Irwin Mitchell. Following settlement of the claim, an 80% success fee was claimed together with the insurance premium.

After hearing evidence from Irwin Mitchell the Judge found that when advising their client about the possible change they had not mentioned the case of Simmons v Castle, a case where the Court of Appeal had ruled that unless a CFA was entered into prior to 1 April 2013 the Claimant would be entitled to a 10% increase in general damages, which in this case was estimated to be Ł17,500. The Irwin Mitchell fee earner giving the advice had not been aware of the case and she had not been told about it by her supervisors when they had asked her to review all her Legal Aid matters prior to 1 April. The Judge found that the adequacy of advice was a relevant factor, and the choice should be shown to be objectively reasonable based on the advice. He concluded that because of the failure to explain the Simmons v Castle consequences “a very significant component was missing” from the advice.

Accordingly the Judge decided that the Trust had no liability to pay the success fees and ATE premium.

The Judge also stated that in any event Irwin Mitchell’s claim for an 80% success fee was excessive. If Irwin Mitchell’s success fee had been recoverable, it would have been reduced to 40%. If Counsel’s success fee had been recoverable, it would have been reduced from 67% to 30%.

Healthcare partner Rob Wilson commented that this is an important precedent for the NHSLA and other clinical negligence defendants. There are many cases waiting in the wings where Claimants have transferred from Legal Aid Funding to a CFA just prior to 1 April 2013. The nature of the advice given to the Claimant will be crucial. As in this case, if a Claimant’s choice is not found to be objectively reasonable based on the advice given then any success fees and ATE premium claimed should be disallowed.

Darnley v. Croydon Health Services and NHS Trust [2-15] EWHC 2301 (QB)

A recent High Court judgment has provided clarification on the duties owed by nonmedically trained personnel in a Hospital setting.

The judgement also provides helpful guidance on two additional issues which are often central to the disputes between parties in clinical negligence claims. These are:

–– The level of responsibility a patient must take for themselves

–– The weight that should be afforded to compliance with NICE guidelines

The facts

The claimant was attacked one evening and was persuaded by a friend to attend A&E at the Defendant Trust. The Court found on the evidence that he arrived in A&E at 8:26pm and left at 8:45pm, a stay of some 19 minutes. His condition deteriorated at home, an ambulance was called at 9:42pm, and on return to the Hospital a CT scan showed the presence of an extra-dural haematoma, which was later removed. It was not disputed that had the Claimant remained in Hospital and been treated earlier, he would have avoided the left hemiplegia from which he now suffers.

The Claimant put forward a case that there were breaches of duty by both clinical and non-clinical reception staff. As against the clinical staff (triage nurses) it was alleged that there was a failure to assess and triage the Claimant in 15 minutes and in accordance with the relevant NICE guidelines.

As against the non-clinical staff it was alleged that there was a failure to provide accurate information regarding the time the Claimant would have to wait before being seen, and also a failure to assess the Claimant for "priority triage".

On the available witness evidence, the judge found that the Claimant was told that he would have to wait for up to four to five hours to be seen on arrival at A&E. He accepted the Claimant's evidence that had he been told that he would have been seen in thirty minutes, he would have waited in A&E.

Effect of NICE guidelines and "Priority Triage"

The guidance relevant to the issues in question were issued in September 2007. It is widely accepted that NICE guidelines should be taken fully into account by Health Professionals when exercising their clinical judgment.

When asked to address the question as to whether a failure to assess the claimant within fifteen minutes of his arrival at hospital (and in strict accordance with the guidance) was a breach of duty the court pointed towards the Claimant's "straightforward and superficially attractive" primary case. The Claimant argued that NICE guidelines described optimal practice and anything less must represent suboptimal practice and therefore was unacceptable. It was accepted by the experts in their joint discussion that whilst the NICE guidance for triage within 15 minutes applied principle, the potential for other factors to affect compliance with this principle meant that an expectation for a patient to be seen by a triage nurse within 30 minutes would be deemed acceptable.

Based on the Court's assessment and weight afforded to the NICE guidance, the Claimant did not succeed in establishing breach of duty against the clinical staff for failing to triage within 15 (or indeed 19) minutes.

Duty of non-clinical staff

The second issue for the Court then became whether there was a failure (which could amount to a breach of duty) by non-clinical reception staff to provide the Claimant with accurate waiting times to be seen by a triage nurse.

The Defendant argued that it would not be unfair, unjust or unreasonable to hold the A&E department responsible for the consequences of the claimant leaving the A&E department in the circumstances of this case. The Defendant argued that there should not be an assumption of responsibility for the consequences resultant from a failure by a civilian reception staff giving inaccurate or incomplete information. An imposition of such a duty would be unreasonable and would make the role NHS receptionist very difficult.

As the judge highlighted: "We seem to live in an age where there is in perception at least, increasing reluctance by individuals to take personal responsibility for their own actions. Here, the Claimant's case on this issue broadly stated that it was the fault of the receptionist that he left the hospital and thus their fault for everything that flowed from such departure".

The Court found that it was reasonably foreseeable that some people leave A&E without being seen and then in some cases they may suffer harm as a result. Furthermore, it was reasonably foreseeable that a person who believes it may be four or five hours before they will be seen by a doctor may decide to leave and would have waited if believed they would have been sooner.

In this case, the Court concluded that it would not be fair, just and reasonable to impose liability on the defendant as a result of a failure by the receptionist to inform the claimant of the likely waiting time to be seen by a triage nurse. The Court admitted as much when passing judgment that this was a policy decision.

The court even went so far as to say that "The ultimate conclusion could be justified on the basis of the connection between the alleged inadequacies of the information provided and the harm suffered is broken because the decision to leave is ultimately the decision of the claimant. It was the claimant who was aware that he had been struck over the head. He knew he was in pain. He knew that ultimately he would be seen. He took the decision to leave before had had been seen. Ultimately, it is the Claimant who must take responsibility for the consequence of that decision, not the defendant."

Conclusions

The finding in respect of the NICE guidance issue is eminently sensible and was made in circumstances where the Defendant Trust was able to show evidence that this was a particularly busy time in A&E where there was a high clinical workload at the time of the Claimant's attendance. It reiterates what is often argued by Defendants in clinical negligence claims, i.e. that NICE guidance are precisely that and in many circumstances a description of optimal practice. Flagrant disregard for NICE guidelines should be deemed unacceptable but equally a failure to comply to NICE guidance to the letter of law should not on its own be a damning factor.

There is no doubt that the issues that arose in this case will arise in subsequent cases; however, for the time being, it provides useful assistance to clinicians and, indeed, lawyers when deciding what level of importance to assign strict adherence to NICE guidelines. It is a reminder to lawyers and Trusts when considering complaints or adverse incidents that things are rarely black and white.

Wells and Smith v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB)

The judgment of Mr Justice Dingemans in the case of Wells and Smith v University Hospital Southampton NHS Foundation Trust [2015] EWHC 2376 (QB) comments on the inappropriate use of hindsight by experts to hold treating clinicians to a higher standard than that required by the law. It also considered the need for secondary victims to have experienced a sudden, shocking event in order to recover damages for psychiatric injury.

Experts and the correct standard of care

The matter concerned a mother and father who had brought claims against the Trust for damages for bereavement and psychiatric injury following the death of their baby. On arrival at the hospital at 08.00, a slightly accelerated foetal heart rate was recorded (but within normal range) followed by a deceleration at 08.56, which was attributed to maternal vomiting. The heart rate recovered but did not increase to its previous rate. At 10.00, the membranes were ruptured and it was noted that the baby had passed meconium.

Importantly, according to NICE Guidance, this was not a necessary indication for caesarean section. The foetal heart rate improved again at 10.20 but by 10.40 an abnormal reading was noted and it was reviewed at 10.45. NICE Guidance recommended obtaining a foetal blood sample but the attempt was unsuccessful. At 11.15, it was decided to carry out a caesarean section but sadly at 11.53 the baby was delivered with no signs of respiratory effort and pronounced dead.

The Claimants alleged that the CTG trace at 08.48 showed a "wavy" unstable baseline foetal heart rate and were critical of the decision to undertake a foetal blood sample.

The Consultant Obstetrician and Gynaecology and expert witness for the Claimants, gave evidence that there was a failure to recognise evidence of ongoing hypoxia on the CTG trace and that delivery by caesarean ought to have been recommended by 10.20. The Claimant's expert was also critical of the failure to compare the foetal heart rate with the rate recorded at the last clinic attended by Mrs Wells. The expert witnesses for the Defendant explained however that it is not uncommon for the heart rate to fall in a maturing foetus and there was a risk of making a false comparison. The literature and guidance did not recommend making this comparison and Mr Justice Dingemans found that this was not a necessary step.

The Claimant's expert was very critical of the response following the 08.56 reading but did not maintain his initial suggestion in oral evidence that every reasonable doctor should have carried out a caesarean section in response to the 08.56 hours deceleration. It was accepted by the Court that this was unsustainable because: (1) vomiting is a well-known cause of an abnormal trace and its effect on the CTG needed to be taken into account; (2) there was a recovery of FHR to 120 bpm, which although not at the pre-existing level was within the normal range; and (3) the CTG showed good variability and it was common ground there were 4 contractions every 10 minutes, which was the expected frequency of contractions.

Crucially, Mr Justice Dingemans found that the Claimant Expert's changing evidence on whether all reasonable practitioners should have carried out a caesarean following the 08.56 hours deceleration gave him no confidence that he had appreciated the differences between:

  • Practices which he considered to be best practice
  • Practices which he considered to be reasonable
  • Practices which no reasonable practitioner would carry out

The judge went on to comment that the Claimant's expert was unable to set aside hindsight and look at the evidence (namely the CTG trace) with the eyes of a reasonably competent and prudent doctor reviewing the reading in the course of that particular morning. Further, there was nothing in the NICE Guidance to suggest that a "wavy" baseline or absence of cycling on the trace were likely to be a problem.

The NICE Guidance did recommend CTG trace monitoring if meconium was present, which was being done. The Guidance also recommended taking foetal blood sample and, despite the Claimant's expert's objection to this approach, the judge found that there was a logical reason for carrying out the sample in order to gain a better idea of the foetus' state; the measure did not fall foul of the Bolitho test. Mr Justice Dingemans found that the fact that the Guidance in 2007 and 2014 had recommended taking a foetal blood sample was strong evidence of the reasonableness of doing so. The judge was critical of the Claimant's Expert showing that he was "willing to condemn as negligent all doctors who accept and follow NICE Guidance on FBS in circumstances where there appears to be a logical reason" to do so.

The claim was therefore dismissed on failing to establish a breach of duty.

Secondary victims

The case also interestingly provided some comments on the seemingly increasing number of recent clinical negligence cases where claims by secondary victims for psychiatric injury are being made (see Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB); Wild v Southend Hospital NHS Trust [2014] EWHC 4053 (QB)).

The relevant criteria for such a claim to succeed are set out in Alcock v South Yorkshire Police [1992] 1 AC 310, namely:

  • A close tie of love and affection to the person killed
  • Being close to the incident in time and space
  • Directly perceiving the incident
  • Experiencing a sudden, shocking event arising from the death of or extreme danger to the relevant person

In Alcock, a shocking event was described as a "sudden appreciation by sight of round of a horrifying event, which violently agitates the mind" and although the events were inevitably distressing to Mr Smith, there was no such shocking event.

The judge commented that the criteria have been referred to as "both arbitrary and pragmatic" (Ronayne) but that he was bound to apply them. The circumstances were not the same as in Walters v North Glamorgan NHS Trust [2003] P.I.Q.R. P16, for instance, where there was a sequelae of events that were found to be a single horrifying event. Mr Smith's claim for damages for psychiatric injury would therefore have been rejected had negligence been established. It seems that for the time being Walters will remain a discrete example (on the particular facts of that case) of a successful secondary victim claim by a parent witnessing the death of their newly born child.

Retention of highly sensitive information: How long is too long?

Public bodies are subject to clear obligations to treat personal information with the appropriate sensitivity and security, but there is also an allied question as to how long such information should be kept for.

The High Court considered this very issue in the recent case of R(on the application of C) v (1) Northumberland County Council and (2) The Information Commissioner. The question before the Court was whether it was lawful for the Council to have a policy of retaining child protection records for 35 years after the case had been closed.

The Court considered the current landscape across the country and noted the divergent practice amongst public bodies in respect of their retention policies. They range from retaining the information up to the subject's 21st body to keeping hold of it until 75 years from the subject's date of birth. Clearly, there is no uniformity in approach and it will vary from case to case as to whether the retention period is lawful.

The Court decided that the Council's policy was indeed lawful, and in particular noted a number of characteristics which meant it was in the public interest to retain information for such a long period of time. Firstly, it was designed to protect other children. The information could be integral in future care proceedings. Secondly, it allowed those whose data was retained access to information which otherwise would not be available. Finally, it would make available information which could be of great importance to later investigations, enquiries or litigation. In respect of the latter, the judge noted the following:

"Records of the neglect and abuse of children may be of significant interest to criminal investigators and prosecutors many years after the events themselves; and it is plainly in the public interest that critical evidence be preserved to enable justice to be done..."

Clearly, this is currently of utmost importance with the various inquiries and investigations which have taken place recently into allegations of historic abuse. Without those records, effective investigation could be rendered very difficult indeed.

The net result is not that all public bodies should continue to hold records for 35 years, as the Council's policy was found to be "within the bracket of legitimate periods of retention" rather than the only legitimate retention period. The message to take away is all public bodies that hold highly sensitive information, particularly where there is a safeguarding element, need to think very carefully about the time for which they keep such information. This is in order to ensure that the policy serves the purposes set out above of protecting the data subject and others. It also needs to reflect the fact that information may not necessarily be of relevance now, but could well turn out to be of critical importance a long way into the future.

Alongside this, careful thought needs to be given to security and technical measures which are put in place in order to keep that information safe for the entirety of the time it is held.

To continue reading this article, please click here.

Health Law News - February 2016

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