Health Authorities may be liable for

CASE

Cassidy v Ministry of Health

[1929]

Chester v Afshar

[2003]

Montgomery v Lanarkshire Health Board [2015]

R v Cambridge HA, ex parte B [1995] FACTS

Cassidy had an operation on his hand which, through negligence, resulted in stiff fingers.

Chester was asked about the risks implicit in a surgery to correct back pain. The neurosurgeon omitted to mention the small risk of a certain complication. The neurosurgeon did not operate negligently, but the complication developed as a result. The patient would have gone ahead with the operation even if she had been warned but the court did not apply the “but for” test.

A rare, but severe, complication during the birth led to Mrs Montgomery’s child having severe disabilities. Had she known of the risk, she would have requested a less risky caesarean section.

The health authority stopped providing an expensive experimental treatment for a child dying of a rare leukaemia.

PRINCIPLE

Medical professionals and authorities owe a duty of care to their patients –it is not necessary to establish precisely which employee of a hospital authority was negligent.

1. When asked, a doctor is under an obligation to discuss any risk, no matter how small.

2. The neurosurgeon's failure to warn of the complication did not increase the risk, so conventional causation principles could not be satisfied. Causation was satisfied on policy grounds –unless the failure to warn was regarded as part of the chain of causation, the duty to warn would be hollow. This case is problematic. COMPARE with Montgomery and

Duce.

1. The court overruled Sidaway on the size of risks that should be disclosed. A doctor is “under a duty to … ensure the patient is aware of any material risks”, where materiality is determined by whether a reasonable person in the patient's position would be likely to attach significance to the risk. Moving away from Bolam, it does not matter if a body of medical opinion would support not disclosing a risk.

2. The Chesterapproach on causation was not considered.

OVERRULED Sidaway COMPARE with Bolam

The duty on health authorities is not absolute; they are not obliged to provide every possible treatment no matter the cost (although in this case they had not given due weight to the family's views).

CASE

R v Jordan [1956]

Roe v Minister of Health [1954]

White v Jones

[1995]

Whitehouse v Jordan

[1981]

Wilsher v Essex Area Health Authority [1988] FACTS

The defendant stabbed the victim who died in hospital eight days later of pneumonia. The pneumonia was caused by negligent treatment (the administration of a drug continued after it was discovered he was intolerant to it, and he was given abnormal amounts of intravenous fluid).

Microscopic cracks in vials in which anaesthetic was stored allowed contamination. It was used in minor surgery and caused paraplegia of the claimant.

Solicitors received instructions from a client to amend a will after a family quarrel, but the solicitors did nothing and the testator then died. The solicitors were found to be negligent to the would-be beneficiary.

A baby was born with brain damage following a complicated birth. The damage was caused by the use by the doctor of forceps to assist in the delivery.

A junior doctor gave a prematurelyborn baby the wrong amount of oxygen. The baby developed blindness, which could have been caused by a number of different factors. The medical evidence on whether it was the excess oxygen was conflicting.

PRINCIPLE

A medical act must be “palpably wrong” to break the chain of causation, as it was here. The victim's death was caused by the medical negligence, not the criminal act.

It is not negligent to fail to take into account risks which were unforeseeable at the time (the “state of the art” defence). The anaesthetist was not negligent in relying on a visual inspection for cracks.

A professional can be held liable for negligence, where they assume a duty to the claimant, even if there is no contract. The solicitor's duty here extended to the intended beneficiary as it was reasonably foreseeable by the solicitor that his negligence might deprive that beneficiary.

An error of judgement made with reasonable care and skill is not automatically a breach of duty.

1. A health authority has a duty to provide staff of a sufficient skill level. 2. There is no lower standard for a trainee doctor –all doctors are held to the same standard.

3. The “but for” test could not be satisfied as there were multiple possible causes. The onus of proof was on the claimant.

ADDITIONAL CASES

CASE

Bailey v Ministry of Defence

[2008] Bull v Devon Area Health Authority [1993] Crawford v Board of Governors of Charing Cross Hospital [1953] De Freitas v O’Brien and Connolly [1995] Duce v Worcetershire Acute Hospitals NHS Trust [2019] FACTS

A woman with gallstones received negligent treatment following an operation in a hospital managed by the Ministry of Defence. She suffered brain damage as a result of the

deterioration of her condition.

A woman delivered twins at a hospital site without adequate resources to deal with the complications. A suitably qualified practitioner could not be called over to assist in time.

A complication from a blood transfusion during surgery had been written about in The Lancet six months before the surgery.

A spinal surgery resulted in complications. A negligence claim was brought. At issue was the size of the body of medical opinion required

for the second limb of the Bolam test.

A woman who underwent a total hysterectomy was not advised by her doctor that there was a very small risk of her developing chronic postsurgical pain (CPSP). She had been advised of the general risk of pain.

PRINCIPLE

The courts are willing, in exceptional circumstances, to utilise a “material contribution” approach to causation. It was sufficient for the patient to establish that the negligent post-op care had made a material (i.e. more than negligible) contribution to the condition that caused the subsequent brain damage.

1. Hospitals and Health Authorities owe a duty of care to their patients. 2. Health Authorities may be liable for an inadequate system which puts a patient under the care of an inappropriate staff member.

It is not negligent for a professional to be unaware of every single new development in their field.

A body of opinion for the Bolam test does not need to be “substantial” ora majority (here, 11 professionals in agreement out of a body of over 1,000 was sufficient).

APPLIED Bolam

COMPARE with Bolitho

The defendant surgeon was able to show that a reasonable body of surgeons would not have warned of the risk. Montgomery was applied. The test was two stage, the first was to look at what risks were known and the second to look at a body of opinion to see if a warning should have been given. It was held that the warning was not required.

CASE

F v R

[1983]

Goodwill v British Pregnancy Advisory Service

[1996]

Marriot v West Midlands RHA

[1998]

Maynard v West Midlands RHA

[1985]

Newman v UK Medical Research Council (“CreutzfeldtJakob Disease Litigation”) [1997]

O'Hare v Coutts & Co

[2016] FACTS

A woman was not advised of the very small risk of a sterilisation process failing. She later became pregnant and sued her gynaecologist for negligence. BPAS did not advise of the risks of a vasectomy reversing. A man subsequently fathered a child. The child’s mother tried to claim. A man with head injuries was discharged from hospital. His condition did not improve. His GP came to see him but failed to appreciate how serious the condition might become. The GP did not refer him back to hospital. The man later deteriorated further. An invasive biopsy was performed to determine a patient’s illness. The doctors did not want to wait for less invasive tests as one potential illness needed to be treated in its very early stages. A link between human growth hormone and the Creutzfeldt-Jakob disease (CJD) had been known about for nearly 20 years but children were given the growth hormone, and some went on to develop CJD. At issue was whether a bank had provided the claimants with sufficient information regarding a series of investments so that they were aware of the material risks.

PRINCIPLE

Suggested, as in Bolitho, that unreasonable practices will not meet the Bolam standard.

APPLIED Bolitho

Doctors do not owe a duty to third parties. There must be a proximity of relationship between the

professional and the person advised. The court applied the “risk analysis” approach in Bolitho and held, contrary to the evidence presented by the medical experts, that it was not a reasonable exercise of the GP's discretion to leave the patient at home in the circumstances.

APPLIED Bolitho

There is room for differences of opinion in the medical profession. The court will generally not arbitrate between differing bodies of competent medical opinions.

APPLIED Whitehouse v Jordan

Established risks should be acknowledged and the consequent risk of harm should be appreciated. The Council should have ceased

treatments while they investigated. The court favoured the Montgomery standard over the Bolam test in relation to advice on investments.

APPLIED Montgomery

CASE

Pearce v United Bristol Healthcare NHS Trust

[1996]

Prendergast v Sam & Dee Ltd

[1989]

Re F (Mental Patient: Sterilisation) a.k.a.

F v West Berkshire Health Authority [1990]

Ross v Caunters

[1980]

Sidaway v Board of Governors of Bethlem Royal Hospital [1985]

Smith v Leech Brain & Co

[1962] FACTS

A baby was stillborn after a doctor refused to medically induce delivery or perform a Caesarean section.

A pharmacist dispensed incorrect drugs due to not double-checking the doctor's near-illegible handwriting on the prescription.

A mentally handicapped 36-year-old woman in a mental hospital began a relationship with another patient. Doctors wanted to sterilise her as she had no way to deal with pregnancy or capacity to understand the alternative options.

A court found solicitors owed a duty of care to potential beneficiaries who would have benefitted but for the incorrect execution of a will.

A surgeon did not advise his patient about a highly unlikely complication of surgery. The complication occurred, leaving her disabled. She claimed that it was negligent to have failed to disclose the risk.

The claimant was burned as a result of his employer’s negligent care of working conditions. The burn caused existing pre-cancerous cells to develop into cancer, which killed the claimant.

PRINCIPLE

In deciding which risks to disclose to a patient, the doctor should consider the emotional state of the patient and their ability to comprehend what is being said to them.

The duty of care includes writing and checking prescriptions competently. Liability was apportioned 25% to the doctor and 75% to the pharmacist.

1. Doctors may operate on adults unable to consent to or refuse treatment (due to an emergency or mental disability) if doing so is in the patient's best interest. 2. The court should be consulted where sterilisation is considered to be in the patient's best interest due to its special characteristics and effects.

Professionals owe a duty of care to their clients when acting for them but may also owe a duty of care to third parties, such as the beneficiaries under a will.

SEE White v Jones

Lord Bridge considered a 10 percent risk (or higher) being the boundary above which a risk must be discussed with a patient in advance.

OVERRULED by Montgomery

The defendant takes the claimant as he finds him and is responsible for the damage he causes –the “thin skull rule”. As the defendants could have foreseen injury by burning, they were liable for the resulting death.

CASE

Taaffe v East of England Ambulance Service NHS Trust

[2012]

Webb v Barclays Bank plc; Webb v Portsmouth Hospitals NHS Trust

[2001] FACTS

Paramedics examined a woman suffering from chest pains, but did not advise her to go to hospital, as she had a pre-existing appointment with her GP the next day. She died of a cardiac arrest five days later.

Webb, who already suffered from the effects of polio, fell while at work and was badly hurt. She had an amputation above the knee. The doctor had negligently failed to inform her of the alternatives, for which she would have opted in preference to amputation.

PRINCIPLE

An application of the Bolam test as modified by Bolitho: expert evidence can be overturned if it is illogical. Although other paramedics might have done the same, that still would not have made it reasonable. The paramedics were negligent.

The doctor's intervening clinical negligence was not enough to break the chain of legal causation; the employer remained liable in negligence because it had failed to maintain the land where she fell.

KEY CASES

CASE

R v Anderson and Morris

[1966]

R v English [1997]

R v Jogee [2016]

R v Mendez and Thompson [2010]

JOINT ENTERPRISE

FACTS

Morris and the victim were fighting. Anderson came and joined in. Anderson stabbed the victim. In this case the killing was “an overwhelming supervening event”. The other protagonists were not guilty of the murder.

English and another man used wooden posts to attack a police officer. The other man then stabbed the policeman to death. It was argued that English did not know the other man had a knife.

Jogee's co-defendant killed a man with a knife. The judge directed the jury that Jogee was guilty of murder as an accessory if he had participated in the attack on the victim and realised that his co-defendant might stab the victim with intent to cause him really serious harm. Both were convicted. Jogee appealed the trial judge's directions to the jury.

A group of boys attacked another after a disagreement at a party. One of them stabbed him, and he died.

PRINCIPLE

For joint enterprise, each person is liable for the actions in pursuit of the enterprise, even if they have unusual consequences, provided that what happens is not outside all contemplation. COMPARE with English and Jogee

Where the act committed is fundamentally different from the original act that was foreseen and envisaged, there should be no liability for joint enterprise.

COMPARE with Anderson and Morris

and Jogee

Asecondary party needs to intend the offence is carried out before they can be convicted of it –it is not sufficient that they simply foresaw that the offence might occur: “The error [in the old case law] was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.” The judge's direction was therefore incorrect and Jogee's conviction was quashed.

COMPARE with Anderson and Morris English

and

If the act is in “a different league” from that which the defendant foresaw, they will not be liable for joint enterprise.

COMPARE with Anderson and Morris English

and

CASE

R v Powell and Daniels

[1999] CASE R v Becerra and Cooper [1975] R v Gilmour [2000] R v Grundy [1977] R v Rook [1993] R v Whitefield [1984] FACTS

Two men went with a third to a drug dealer to buy drugs. One shot the drug dealer as soon as he opened the door. The other two were held jointly liable for his murder. They knew that he was carrying a gun, and so could foresee he could cause death or serious injury.

FACTS

Becerra gave Cooper a knife to use in a burglary. When they were interrupted during the burglary, Becerra said, “Let’s go” and tried to run away, but Cooper stabbed the victim. A fire bombing resulted in the deaths of three people. The defendant had not foreseen this infliction of GBH. The defendant helped plan a burglary, but withdrew two weeks before it took place, during which time he repeatedly tried to prevent it happening. The defendant helped plan a murder but did not participate on the day. He was convicted of joint enterprise murder. The defendant agreed to burgle a flat, but told the other party that he was withdrawing and took no part in the event. The burglary took place.

PRINCIPLE

All that is necessary is foresight that the other crime may be committed: “Where two parties embark upon a joint enterprise to commit a crime and one foresees that the other may carry out an act constituting a crime in the course of the enterprise, the former is also liable for the crime committed by

ADDITIONAL CASES

the latter.”

PRINCIPLE

The closer an attempted withdrawal is prior to commission of the offence, the less likely it is to be effective as a withdrawal from the joint enterprise.

Where an accomplice has contemplated the consequences, he will be liable for the extent to which he acted with intention (here manslaughter, not murder).

COMPARE with Jogee

An example of an effective withdrawal.

COMPARE with Rook

Withdrawal must be unequivocal and before the offence is committed. Just not being around was not enough.

COMPARE with Whitefield Grundy

and

Where the defendant has effectively withdrawn from his part in the enterprise, he will not be liable. COMPARE with Grundy and Rook

KEY CASES

CASE

AG’s Ref (No. 1 of 1975) [1975]

Callow v Tillstone

[1900]

National Coal Board v Gamble

[1959]

R v Clarkson

[1971]

R v Russell

[1987]

ACCOMPLICE LIABILITY

FACTS

The defendant spiked the drink of another, knowing that he was going to drive. The other was later convicted of drink-driving. The defendant could be convicted under s.36 CJA.

An old case. A butcher asked a vet to check whether meat was fit for consumption. The vet negligently and incorrectly certified that it was.

A haulier took an overweight lorry of coal onto the road. He was collecting the shipment to transport it to a power plant run by the coal board, who were charged with aiding and abetting.

The defendant was present as a woman was raped but did not participate or encourage in any way. The defendant was not guilty.

The defendant stood by while his wife drowned his children. He was guilty of abetting manslaughter.

PRINCIPLE

1. “Aid, abet, counsel or procure” are given their ordinary English meanings. 2. Example of “procurement” –meaning to “produce by endeavour” here.

An offence of strict liability does not require any accomplice to it to have MR.

Established the MR for aiding and abetting: intention to commit the act that assisted the primary defendant and knowledge that the perpetrator is committing the act.

“Aiding” would include (as some others at the scene did) holding someone down but would not include simply being present.

COMPARE with Du Cross v

Lambourne and Russell

The defendant had a duty to act; his failure to intervene made him liable.

COMPARE with Clarkson Cross v Lambourne

and

Du

ADDITIONAL CASES

CASE

DPP for NI v Maxwell

[1978] Du Cross v Lambourne [1907] Johnson v Youden [1950] R v Bainbridge [1960] R v Bryce [2004] R v Gianetto [1997] R v Luffman [2008] FACTS

A man thought to be a member of a paramilitary group in Northern Ireland knew that some violent attack was planned but did not have exact details. He guided the perpetrators to

a pub which was then bombed.

The defendant was in his car while it was speeding. It was not clear who was driving but in any event the

defendant was guilty.

The defendant solicitor was charged with helping a builder sell a house at a price in breach of a statutory regulation. The solicitor was not party to the events, which included an earlier and undeclared payment by the purchaser. He could not have the

mens rea to commit the offence.

The defendant purchased equipment which was used to break into a bank. He was aware that it might be used for some illegal purpose but did not

know the details.

The defendant drove a man to a site where he committed a murder. He claimed not to know that the other man had a weapon or a plan to commit the offence.

The defendant either killed his wife himself or arranged for a hired killer to do it. It was not clear who was the killer; both had the mens rea and the actus reus had occurred.

The defendant hired a bouncer to kill her ex-husband. She was not present at the killing.

PRINCIPLE

“Aiding” includes guiding the lead perpetrators to the scene, even without concrete knowledge of what they will do there.

The defendant had a duty to act, so his failure to intervene made him liable.

COMPARE with Clarkson and Russell

The defendant must merely foresee the “essential matters” constituting the offence.

1. Example of “aiding”. Supplying with tools, knowing that they were to be used for some illegal purpose was sufficient.

2. The defendant does not need to know exact details of the offence.

The defendant only needs to have contemplated a “real possibility” that the offence may be committed to be liable.

An example of “counselling”. Conviction was possible.

Example of “counselling”: soliciting a crime before the event.