Chester v Afshar Revisited: Scope of Duty and Causation in Medical Negligence Cases, Schemes and Mind Maps of Law

Download Chester v Afshar Revisited: Scope of Duty and Causation in Medical Negligence Cases and more Schemes and Mind Maps Law in PDF only on Docsity! Scope of Duty and Causation: Chester v Afshar revisited JUNE 2019 2 Contents Programme Slides Hypothetical Case Study Key Cases Speakers UK Human Rights Blog Mediation Services Members Programme Discussion of the Case Study Chaired by Clodagh Bradley QC Updates on the law Dominic Ruck Keene Jonathan Metzer Speakers for the Claimant: Robert Kellar QC, Isabel McArdle & Dominic Ruck Keene Speakers for the Defendant: Sarabjit Singh QC, Pritesh Rathod & Jonathan Metzer 5 Slide 5 What was the issue of law? (take 1) Lord Hope (who found for C): The question of law which arises from these findings is whether it was sufficient for Miss Chester to prove that, if properly warned, she would not have consented to the operation which was in fact performed and which resulted in the injury, or whether it was necessary for her to prove also that she would never have had that operation. The issue is essentially one of causation. [40] Slide 6 What was the issue of law? (take 2) Lord Hoffmann (dissenting): The claimant argued that as a matter of law it was sufficient that she would not have had the operation at that time or by that surgeon, even though the evidence was that the risk could have been precisely the same if she had it at another time or by another surgeon. [28] 6 Slide 7 The result By a 3-2 majority, C succeeded.  Lords Steyn, Hope and Walker found for C.  Lords Hoffmann and Bingham dissented in favour of D. Slide 8 The reasoning of the majority Lord Hope:  The function of the law is to protect the patient's right to choose, which will not be protected if an appropriate remedy cannot be given where a patient is not informed of the very risk that occurs as a result of the surgery [56].  There was no doubt that in this case the injury which C sustained was within the scope of D’s duty to warn [62].  The issue of causation cannot be separated from an important issue of policy, regarding whether, in the unusual circumstances of this case, justice requires the normal approach to causation to be modified [85]. 7 Slide 9 The reasoning of the majority Lord Hope (continued):  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 ... On policy grounds therefore I would hold that the test of causation is satisfied in this case. [87] Lords Steyn and Walker reasoned their conclusions in similar terms (see [24] and [101]). Slide 10 So, to draw it together… A clinician who fails to warn a patient of a risk of injury inherent in surgery may be liable when that risk eventuates, even if:  The risk was not increased by the failure to warn; and  The patient had not shown that she would never have had the operation had she been properly warned. 10 Slide 15 THEMES FROM THE CASES POST CHESTER: (RE-) INTERPRETATION OF THE RATIO OF CHESTER  Shaw – decision on causation  Correia • Negligent failure to warn of a particular risk from an operation and the injury is intimately connected to the duty to warn, then injury caused by the breach of the duty to warn.  Duce • An ineffective ‘but for’ cause was sufficient cause in the circumstances. • Still have to prove operation would not have taken place when it did Slide 16 THEMES FROM THE CASES: AVOIDING CHESTER Crossman v St George’s Healthcare NHS Trust[2016] EWHC 2878 – “Baking the cake” on a different occasion, but still succeeded on ‘conventional’ causation 11 Slide 17 THEMES FROM THE CASES: CONFINING CHESTER  No new duty • Shaw • Duce • Diamond  Re scope of duty not causation • Pomphrey  Requirement to plead • Correia  To consent • SAAMCO, sufficient connection and the mountaineer’s knee • Khan • Pomphrey v Secretary of State for Health [2019] 4 WLUK 483  To its facts • Correia – negligent failure within an operation did not vitiate informed consent • Diamond – no factual connection • Barry v Cardiff and Vale University LHB [2019] Med LR 191] Slide 18 THEMES FROM THE CASES: CRITICISMS OF CHESTER Meiklejohn v St George’s Healthcare NHS Trust [2014] EWCA Civ 120 Duce 12 Slide 19 ANY HOPE FOR CHESTER?  Mills v Oxford [2019] EWHC 936 - The risk that happened was the risk that should have been warned about. Slide 20 SUMMARY  Conventional But For • Would never have consented to procedure • Damage has still to be related to risk for which should have been consented  Chester • Would have been delay • On later date on balance of probabilities damage would not occur • Damage must be within scope • Has to be explicitly pleaded  No separate head of loss for violation of personal autonomy 15 List of Key Cases Pomphrey v Secretary of State for Health [2019] 4 WLUK 483 Barry v Cardiff & Vale University Local Health Board [2019] Med LR 191 Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585 Khan v Meadows [2019] 4 WLR 3 Duce v Worcester [2018] EWCA Civ 1307 Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356 Shaw v Kovac [2017] 1 WLR 4773 Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) Montgomery v Lanarkshire Health Board [2015] AC 1430 Chester v Afshar [2005] 1 AC 134 16 CHAIR Clodagh Bradley QC Year of call: 1996 Year of silk: 2016 clodagh.bradley@1cor.com Clodagh Bradley QC @ClodaghBradley Clodagh Bradley QC specialises in healthcare regulatory law, clinical negligence and inquests with a medical or psychiatric element to them, including in custodial settings. Her clinical negligence practice, on behalf of Claimants and Defendants, has included a variety of obstetric claims, surgical cases and missed diagnoses, resulting in catastrophic life- changing or fatal injuries, spanning brain or spinal injuries, limb loss and sight loss. She has dealt with a broad range of disciplinary cases predominantly on behalf of doctors before the Medical Practitioners Tribunal Service (previously GMC), and also cases brought by the General Dental Council (GDC), the General Osteopathic Council (GOsC), the General Optical Council (GOC) and the Nursing and Midwifery Council (NMC). Clodagh has successfully challenged regulatory decisions in the Administrative Court. In inquests Clodagh has appeared on behalf of families, doctors, NHS Trusts, the police and the prison service as interested persons. Clodagh also undertakes work in the Court of Protection, dealing with matters relating to capacity, treatment decisions and the best interests of protected persons. Qualifications: Magdalene College, Cambridge University, MA (Law) (1992-1995) Awards: Middle Temple Astbury Major Scholar (1995-1996) Middle Temple Harmsworth Major Entrance Exhibitioner (1995–1996) 17 Directories: Clodagh has been recommended for many years by legal directories. "A brilliant litigator. She is excellent on her feet and her paperwork is excellent. She is a real all-rounder and a robust negotiator." "Very bright and easy to deal with." (Chambers & Partners UK, 2019) ‘She has extraordinary capacity to absorb detail.’ ‘Fiercely bright, asks the right questions and is a tenacious and fearless advocate.’ ‘A highly effective advocate who never fails to impress.’ (Legal 500 2018) “"Her attention to detail is exceptional and she is very user-friendly." "Extremely thorough and excellent with clients." (Chambers & Partners UK, 2018) “Supremely confident and unrelenting." (Legal 500 2016) "A first-class barrister who fights to the end and provides sound advice." (Chambers & Partners UK 2017) “A reassuring presence in conference and a real fighter in the courtroom.” (Legal 500 2016) 20 Robert Kellar QC Year of call: 1999 Year of silk: 2019 Robert.kellar@1cor.com Robert has a broad civil, regulatory and public law practice which encompasses: clinical negligence, personal injury, professional discipline, judicial review/human rights, healthcare inquests and employment law. In clinical negligence he is instructed by both Claimants and Defendants and has considerable experience in complex, multi-party and high value claims. He deals with all types of case including claims involving brain injury, spinal injury, vascular injury and missed cancer diagnoses. He is regularly instructed by Claimant and Defendants, including by Government Departments, in all types of personal injury claim. He was recently instructed as junior counsel, before taking silk, for the Claimants in the Paterson Group ligation. He is highly recommended as a leading junior, now new silk, in the Legal 500 and Chambers & Partners. Appointments: Junior Counsel to the Crown (A Panel) Panel of External Advisers to the Legal Services Board Qualifications: LLM (Cantab) (First Class) – Queens College, Cambridge BA (Oxon) – Magdalen College, Oxford Academic Awards: Scholar of Queens' College, Cambridge; Scholar of Magdalen College, Oxford; Winner of Lee Essay Prize, Gray's Inn Directories: "He's brilliant at every stage of a case." (Chambers & Partners 2019) ‘Very strong court advocate and a good strategic thinker.’ ‘Able to take on the most complex cases and can turn his hand to any aspect of public law.’ (Legal 500 2018) 21 "Detailed and gives good practical advice. He was clear in advising clients while also being sensitive given the nature of the cases." "Calm and can make what might seem complicated simple." (Chambers and Partners 2018) ‘An exceptional talent.’ He is very approachable and gives excellent practical advice.’ ‘Always very thorough and detailed, and very approachable too.’ (Legal 500 2017) "I find him very easy to deal with, very pragmatic and a good communicator. He always turns things around on time." (Chambers and Partners 2017) "Extremely persuasive, charming and affable." (Legal 500 2016) 22 Pritesh Rathod Year of call: 2006 pritesh.rathod@1cor.com Pritesh Rathod is a sought after barrister who specializes in the fields of clinical negligence and personal injury. He regularly appears in the High Court and County Courts in a wide range of hearings, with a particular strength in trials and appeals. He represents both claimants and defendants. His main area of practice is clinical negligence. His experience ranges from low value claims to multi-million pound claims and across the full range of medical specialisms. He has a significant amount of courtroom experience, appearing in applications, trials and appeals. He has successfully appeared in the Court of Appeal, having obtained a strike out in a case where it was alleged that the Claimant had received full compensation for her claim in previous proceedings. He also successfully appeared in an appeal relating to the use of employment experts in a brain injury claim. Pritesh has a special interest in quantum issues and is particularly proficient at drafting schedules and counter-schedules. He also has an interest in fatal accident claims. Inquests also feature heavily in his practice, where he acts for families, NHS Trusts and individual doctors. Pritesh has experience in professional discipline cases and is keen to maintain a broad practice, he accepts instructions across a wide spectrum of common law areas. Appointments: Registered Pupil Supervisor (2014 – present) Bar Council Social Mobility Committee Member (2012-2015) Secretary to South Eastern Circuit Minorities Committee (2009-2013) South Eastern Circuit Committee Member (2009-2013) Bar Council Training for the Bar Committee Member (2011-2012) Clerk to the Bar Disciplinary Tribunals (2009-2012) South Eastern Circuit Law School Liaison Officer (2009-2012) Memberships: PIBA PNBA 25 Dominic Ruck Keene Year of call: 2012 dominic.ruck-keene@1cor.com Dominic Ruck-Keene Dominic Ruck Keene has developed a varied practice in all the core areas of Chambers’ work, in particular inquests, public law and human rights, and clinical negligence. He also has a growing practice in the specialist areas of child abuse compensation, cyber and data protection, as well as employment and equality. As a member of the Attorney General’s C Panel, he is instructed by a number of different Government departments in cases involving a wide spectrum of different areas of law. Dominic accepts direct instruction from lay clients across a range of practice areas, with a particular interest in representing families at inquests. Within clinical negligence and personal injury, Dominic has considerable experience of acting in clinical negligence claims for both claimants and defendants: drafting the full range of pleadings, advising on merits, quantum and settlement; successfully representing parties at RTMs and at mediation; as well as appearing in case management hearings, application hearings, and at trial in both the County and High Courts. This includes representing hundreds of claimants against Mr Ian Paterson. Appointments: Attorney General’s C Panel of Counsel Memberships: PIBA PNBA ALBA ELF 26 Qualifications: Advanced International Advocacy Course, Keble College, Oxford (2016) ADR Group Accredited Mediator (2012) Bar Vocational Course, Very Competent – BPP, London (2012) MA War in the Modern World, Merit – King’s College London (2011) Graduate Diploma in Law, Distinction – City University (2005) MA (Oxon) Modern History First Class – St Peter’s College, Oxford (2004) Awards: Lord Denning Scholarship - Lincoln’s Inn (2011) Lord Haldane Scholarship - Lincoln’s Inn (2005) Smith Prize for History and College Scholar - St Peter’s College (2002) British Army University Bursar (2001) British Army Sixth Form Scholar (1998) Eton College Oppidan Scholarship (1995) Publications: ‘Big Brother Watch & Others v UK‘ Counsel Magazine, November 2018. Dominic is a regular contributor to the UK Human Rights Blog. 27 Jonathan Metzer Year of call: 2016 jonathan.metzer@1cor.com @JonathanMetzer Jonathan Metzer is developing a broad practice across all areas of chambers’ work, with particular expertise in public and human rights law, asylum and immigration, clinical negligence and inquests. He appears regularly in the Immigration Tribunals, the County Court and the Coroner’s Court, and has also undertaken hearings in the Administrative Court. He accepts instruction from lay clients, with particular interest in immigration, public law, inquests and civil matters. Before coming to the Bar, Jonathan undertook voluntary work at The Death Penalty Project, Simons, Muirhead & Burton LLP. He also worked on a pro bono basis for the School Exclusion Project, acting as lay legal representative for the parents of excluded pupils at hearings in front of school governors and independent review panels. Jonathan is also commissioning editor for the UK Human Rights Blog and appears on Law Pod UK. Qualifications: BPTC (Very Competent), City University, London (2015-2016) GDL (Commendation), City University, London (2014-2015) BA Hons in Classics (Double First Class), Worcester College, Oxford (2010-2014) Awards: Inner Temple Pegasus Award (2019) Lord Denning Scholar for the Bar Professional Training Course, Lincoln’s Inn (2015) Hardwicke Entrance Award for Membership of the Inn, Lincoln’s Inn (2015) Lord Bowen Scholar for the Graduate Diploma in Law, Lincoln’s Inn (2014) Graduate Diploma in Law Moot, Runner-up, City University, London (2014)