A Local Authority v Mrs A and Mr A

English Medical Law

A Local Authority v Mrs A and Mr A
Image: ‘Autism’ by Samadhi Rajakarunanayake

When two mentally challenged adults elect to cohabit and then marry, the nature of their relationship is brought into question after a pattern of domestic abuse overshadows any informed choice to start a family. It is then that the local authority seeks forced contraception to prevent the continuation of suffering and a potential loss of children through predicted adoption.

With diagnosed Atypical Autism the applicant in this Court of Protection case found herself at an emotional impasse when trying remain in her marriage and evaluate the sensibility of motherhood under the suffocating grasp of a controlling partner. The two parties involved met when working as community volunteers and while the husband had enjoyed the security of a close family relationship, the wife had been fatherless from a young age before being forced to live alone (albeit with community support) when her mother emigrated a number of years later.

Through a series of dysfunctional relationships the applicant had also found herself pregnant on two separate occasions, both of which resulted in her surrendering the child to the care system on grounds that her limited intelligence and reasoning skills fell far short of those required to provide a safe parenting environment. In fact it was only after having met her now husband that the couple were given the freedom to live together under the regular supervision of the local authority. In order to prevent further unwanted pregnancies the applicant was asked to undergo routine depot injections under the terms of her Guardianship order as enacted under the Mental Health Act 1983.

During the course of their time together the husband (who himself suffered from low intelligence) began to exhibit domineering behaviour over the applicant, often obstructing access to those assigned her monitoring until reaching the level that her social activity was virtually non-existent and when seen by her case managers she displayed minor bruising and complained that she was both unhappy and afraid of her partner.

It was also disclosed that in recent months they had decided to start a family and that she no longer wished to receive the injections; although when given the freedom to respond alone the applicant often expressed her reservations but that unless complied with she feared becoming homeless as the property shared was beneficially his. Despite making concerted attempts to maintain regular contact, the aggressive manner in which her husband denied them access left the council unable to assess both her personal safety and the risks of her falling pregnant while under the pervasive influence of a man lacking any cogent understanding of her fragility and fear of reprisal.

Having exhausted all options surrounding the management of the applicant’s social care it was left to the Court of Protection to determine (a) that the applicant understood the concept of motherhood (b) that she could likewise make a measured decision as to her cessation of contraception (c) that an injunction need be applied to her husband to prevent future interference in her autonomous rights. What distinguished this matter from many before was that the issue of contraception had not been properly considered when assessing mental capacity, so the validity of applying a judicial test raised genuine doubts as to the widening of qualifying criteria over and above that of a state medical clinic.

While it was also considered that the applicant had undergone a number of interviews concerning parental responsibility and contraception, her answers often ran risk of appearing scripted therefore the balance hung in equal measure regards any certainty of mind when entering into pregnancy or likewise preventing it. It was on this additional evidence that the court found a test of mental capacity was by extension unfair when her freedom to choose was strangulated by external persuasions.

It was then decided that the best way forward was through deliberate post-natal education and greater inclusion of the husband into the decision making process, which would not only show support of art.8 of the ECHR (respect for private and family life) and art.12 (founding a family) but preclude the need for state intervention where mediation and continued encouragement for capacitous thinking would hopefully give rise to the best possible outcome for all.

Key Citations

“…the administration of contraception is different from any other medical procedure, since (leaving aside sterilisation) no other medical procedure, or the refusal of it, produces such significant social consequence as the potential creation of a child.”

“Although in theory the ‘reasonably foreseeable consequences’ of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons.”

“To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering. Further, if one were to admit of a requirement to be able to foresee things beyond a child’s birth, then drawing a line on into the child’s life would be nigh impossible.”

“…any opinion as to Mrs A’s capacity based in part on an assumption as to what might happen to a child of Mr and Mrs A, must be flawed as to both the test itself and the assumed likely facts.”

“In view of what I find to be the completely unequal dynamic in the relationship between Mr and Mrs A, I am satisfied that her decision not to continue taking contraception is not the product of her own free will.”

“…any step towards long-term court imposed contraception by way of physical coercion, with its affinity to enforced sterilisation and shades of social engineering, would raise profound questions about state intervention in private and family life.”

“I certainly do not think the court should intervene at a stage when Mr A has not yet been included in any ability-appropriate discussion or help on the contraception issue; when Mr and Mrs A have not yet had any therapeutic input as a couple about it (as recommended by Dr K), nor about their relationship generally; and when they have not yet had the chance to be helped to understand this judgment.”

Chester v Afshar

English Medical Law

Chester v Afshar
Image: ‘No Full Disclosure’ by Robert Burridge

‘But for’ causation and the principles of tort, while reminiscent of criminal procedure can fall foul to policy loopholes when a duty of care is involved. In this matter the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.

After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief and had now given serious thought to surgical intervention despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.

The recommended procedure involved delicate removal of a number of vertebrae that would by extension bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action along with known side-effects and possible nerve damage. Having consented to undergo the surgery the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated and which had in fact it left the respondent immobile and diagnosed with cauda equina syndrome.

Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision it was important to address both the breach of duty to fully disclose and the liability for the subsequent injury arising from the procedure. On this occasion and relying upon the evidence presented, the court took time to debate the principal function of causation in which the defendant is not required to establish exemption but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.

With judgement found in favour of the respondent in the first hearing, the surgeon moved to appeal before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords that the finer details of causation and right to damages became of greater significance.

While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent and it had been proven as well as agreed, that irrespective of the performing surgeon the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.

However the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly.

Key Citations

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

“In this case there is no dispute that Mr Afshar owed a duty to Miss Chester to inform her of the risks that were inherent in the proposed surgery, including the risk of paralysis.”

“It was his duty to warn her of the risks of the operation that he was proposing to perform, and it was in the course of that same operation that she sustained the very kind of injury that he ought to have warned her about.”

“To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most.”

“The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.”


R (C) v Berkshire Primary Care Trust

English Medical Law

R(C) v Berkshire Primary Care Trust
Image: ‘The Danish Girl’ by Gerda Wegener

Psychological dependence upon a surgical procedure to establish a definite sense of identity lies within the heart of this matter when a transgender patient experiences disappointment with the outcome of hormone treatment and seeks remedy from the National Health Service (NHS).

Having experienced a life of emotional turmoil and unrelenting conflict with the gender nature afforded him, a man takes the steps required to adjust his gender to that of a woman inasmuch as reassignment procedures will allow. While not yet at the point of invasive surgery the appellant elected to follow course of therapy that by its own methodology would increase his existing breast tissue to that of an average woman; thereby removing any fears that members of society would (on a superficial level) ever confuse him with a man.

At the conclusion of the programme the appellant was left with only a minimal increase in tissue growth and that the inadequacy felt lingered to the point of mild depression and disillusionment with both himself and the future. Following consultation with his consultant psychiatrist, his case was put forward to the relevant Primary Care Trust in the hope that both the poor outcome of the biological intervention and the circumstantial criteria of the Gender Dysphoria and Cosmetic Breast Surgery Policies would allow funding for breast augmentation (augmentation mammoplasty) to redress the balance.

Having had prior experience of transgender applications for the mammoplasty and in the knowledge that current policy considers the procedure to be low priority, the Primary Care Trust conducted independent research to establish if there was sufficient data to support the claim that breast augmentation was important enough to have a positive impact upon a patient’s life and mental health in claims where such surgical adjustments are compellingly argued.

Despite previous case discussions around the subject, the results of the investigative report concluded that there remained insufficient justification to amend the policy and so unless in the case of extreme symptoms the funding could not be provided and that the patients would need to seek their own source of revenue. When first refused and in consideration of two complaints to the Health Commission the second application failed again before a request for judicial review was presented. On this occasion the application for review was dismissed before the appellant moved to argue for funding on grounds of human rights violations and discrimination.

Citing art.8 of the Human Rights Act 1998 (right to respect for private and family life) and art.14 (prohibition of discrimination) it was contested that denial of surgery was a breach of that right and constituted excessive demands for an emotionally distressed transgender to suffer beyond that of an equally unhappy natural woman when determining eligibility for funding; and that such distinction results in nothing less than discrimination between the two types of patient.

Having evaluated the history behind the matter and the recent investigatory methods used by the NHS it was concluded that great attention had been placed upon the equality of a patients emotional well-being and that unilateral guidelines were exacting enough to determine when funding was appropriate. This decision was supported in the decisory notes which read that any patient seeking to obtain funding for policy procedures must demonstrate:

(a) That the patient’s case constitutes exceptional circumstances

(b) That there is evidence of significant health benefit from the requested treatment and

(c) There is evidence of the intervention improving health status

On this occasion the court quickly agreed that despite evidence of ‘chronic mild to moderate distress’ conveyed by the patient’s doctor, there was simply nothing to suggest that his situation was any more exceptional than a patient denied the resources or that his symptoms were similar to those qualifying; transgender or otherwise.

Key Citations

“The claimant’s point of view is that she is different from and more needy than a natal woman with a similar problem matters; but it is a point of view which has to take its place within both legal and clinical criteria.”

R (Condliff) v North Staffordshire Primary Care Trust

English Medical Law

R (Condliff) v North Staffordshire Primary Care Trust
Image: ‘Daniel Lambert by Unknown Artist

Accusations of human rights violations and irrationality of policy lay behind this failed judicial review hearing after the denied care trust funding of laparoscopic gastric surgery upon a morbidly obese patient.

While often difficult to draw absolute clarity from NHS guidelines and framework policies the matter dealt with here stems from a number of misapplications, breakdowns in communication and unwillingness to pursue a claim through the accorded channels. As may or may not be common knowledge to many, it is operationally agreed that the associated Primary Care Trusts of the United Kingdom are given the freedoms to set (within reason) their own thresholds and qualifying criteria for certain procedures, one of which includes preventative gastric surgeries to patients seen as most in need.

Unfortunately on this occasion the patients BMI fell short of the required level, despite neighbouring counties demonstrating more lenient grading for the same treatment. Subsequently when his application for an individual funding request was refused on grounds that his condition failed to meet the prescribed eligibility, the call for judicial review commenced.

Resting upon four reasons for review the claimant cited that (1) the policy guidelines set by the issuing body were discriminatory in that they precluded social factors relevant to a claim for exclusivity  (2) that as a result of such prohibition art.8 of the Human Rights Act 1998  (Right to respect for private and family life) was in contravention (3) that the same breach impacted upon art.6 of the HRA (Right to a fair trial) and that (4) the conclusive argument against funding lacked clarity enough to satisfy the patient and acting representatives.

Upon close examination of the facts it was agreed that while no such interferences of human rights could be seen to exist in the former article, the resulting decision of the latter would have remained the same regardless. This position was supported by the observation that social factors were immaterial when deciding the award of funds and that the prerequisite medical evidence for exception was balanced enough to remain within the two articles presented. In closing it was also found that the written opinion of the key adjudicating panel consultant was determinable enough to uphold their decision to reject the application, and that in light of those collective arguments a judicial review could not stand.

Key Citations

“It seems to me a legitimate point to say that for the PCT, essentially concerned with clinical matters, it will be difficult to make an objective assessment of individuals’ differing non-clinical factors, even if not impossible.”

“It is hard to see how non-clinical social factors are to be treated other than by generally ruling them in or ruling them out. Any other policy would be very complex and time consuming.”

“There is the further point that if social factors were permitted there would be many more application which would take longer to process with inevitable consequences for resources which would otherwise be available for others.”

If the Social Factors Exclusion, as a policy, does not violate A8 (in other words there is no need to consider non-clinical social factors insofar as they would not be considered anyway and insofar a they touched upon A8 rights) I fail to see how any decision which applied it is subject to some yet further A8 scrutiny.”

“If my primary analysis of the A8 position is correct, there is no scope for A6 to operate with reference to A8 because no A8 obligations rose at all.”

“The decision of the PCT was an administrative one, allocating or not allocating medical resources on the basis of evaluative judgements where there is no underlying “right” to any particular medical treatment, only target duty on the PCT to provide it.”

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health

English Medical Law

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health
Image: ‘Arthritic Hands’ by Tim Benson

Finally decided within the European Court Of Justice (COJ) this protracted and game-changing case determines well the principle of unreasonableness whether individually or in this instance as exercised through the actions (or inactions) of the National Health System of Great Britain (NHS).

When diagnosed as having severe osteoarthritis in both hips an elderly lady was duly assigned a slot in a typically lengthy waiting list on the provision that her operation would at least begin inside a twelve-month period, but that no other adjustments could be made under the existing policy framework.

Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself before claiming back those costs under the umbrella of art.49 of the EC. When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless.

During the period between the successful operation and her application for authorisation the patients condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately this still left her unable the receive the care (and ultimately adequate pain relief) she needed and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.

When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court who themselves referred it to the COJ. There after much scrutiny and comparison with similar EU cases it was held that any refund issued in respect of treatment sought in another Member State did not contravene s.152(5) of the EC which provides:

“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”

And furthermore that any excuse offered with regard to waiting times and the limitations of such healthcare provision failed to satisfy the individual rights offered under art.49 of the EC.

Key Citations

“…the national authorities are required to have regard to all the circumstances of each specific case and to take due account not only of the patient’s medical condition at the time when authorisation is sought and, where appropriate, of the degree of pain or the nature of the patient’s disability, which might, for example, make it impossible or extremely difficult for him to carry out a professional activity, but also of his medical history…”

“Considerations relating to the management of waiting lists can only justify a refusal to receive hospital treatment in another member state if those waiting lists are managed in such a way that they take the individual medical needs of patients sufficiently into account and do not prevent treatment being provided in another member state in case of urgency.”

“The fact that , because the hospital treatment in the national health service in question is free of charge, the legislation of the competent member state does not include a tariff for reimbursement, does not preclude the application of the provisions of articles 22(1)(c)(i) and 36 of Regulation No 1408/71.”

“…a patient who was authorised to go to another member state to receive there hospital treatment or who received a refusal to authorise subsequently held to be unfounded is entitled to seek from the competent institution reimbursement of the ancillary costs associated with that cross-border movement for medical purposes provided that the legislation of the competent member state imposes a corresponding obligation on the national system to reimburse in respect of treatment provided in a local hospital covered by that system.”

H (A Healthcare Worker) v Associated Newspapers Ltd and N (A Health Authority)

English Medical Law

H (A Healthcare Worker) v Associated Newspapers Ltd and N (A Health Authority)
Image: ‘HIV Aids’ by Judy Seidman

Balancing the need to protect individual privacy against those of public interest is both difficult and often painful for the party that loses. When a healthcare worker retires through ill-health it is under a truth that HIV infection was the primary cause for departure.

The employer concerned followed procedural rules during the ending of the relationship but later found themselves torn between performing an obligatory ‘look back’ exercise requiring contact with patients that had been assigned the retirees care when carrying our their duties, and assisting with the request that the former healthcare worker’s privacy be respected (the former element was still uncertain due to a change of guidelines and therefore such actions may have proven unnecessary pending the revised policy). The escalating factor in this appeal case was the knowledge that while the infected worker was contractually obliged to submit the medical records of those treated under the NHS, a reasonable percentage of the remaining patients were seen privately and therefore liable for protection against disclosure under the Data Protection Act 1998.

Shortly after the ‘look back’ request was made the former employee secured a court order preventing any publication of patient records that might allow for disclosure of the infected party on grounds of unlawfulness and a fundamental right to individual privacy. After a newspaper learned of the matter it published an article on grounds of public interest although in breach of a previously issued restraining order and aware that disclosure of the health authority at least would soon allow readers to make educated guesses as to the identity of the infected party. This then led to action being taken against the newspaper on the footing that the previously published article had indirectly disclosed the identity of the healthcare worker through disclosure of the gagging order and the subject to which it applied.

There were of course a number of other factors that required diligence from the courts but the essence of the argument also addressed very sensitive and fear-laden concerns that threatened disproportionate cost implications upon the state along with a risk of flagrant sensationalism. On this occasion the court ruled that until such time as the new guidelines were issued the newspaper must reduce the identities of both the employer and employee to initials, which would allow the nature of the matter to become publicly accessible while concealing the names of the two parties involved; and that should the new guidelines require absolute disclosure of medical records private or otherwise, the infected party must comply.

Key Citations

“…if healthcare workers are not to be discouraged from reporting that they are HIV positive, it is essential that all possible steps are taken to preserve the confidentiality of such reports.”

“We would view with concern any attempt to invoke the power of the Court to grant an injunction restraining freedom of expression merely on the ground that release of the information would give rise to administrative problems and a drain on resources. Such consequences are the price which has to be paid, from time to time, for freedom of expression in a democratic society.”

“If an investigative journalist were to put two and two together, the injunction would still restrain any publication of material that would lead to the deduction of H’s speciality or of when he was diagnosed as HIV positive.”