Key Cases

Bolitho v Hackney Health Authority, 1997 /

  • new dawn – judiciary over medical prof – demonstrate impc of expert medical opinion, though judge entitled to prefer one respectable body of opinion over anothrer – said that the “responsible body” relied upon by any defendant must demonstrate that an opinion should have a logical basis. – criticised by medical negligence experts as wrongly applying the celebrated “Bolam” test for negligence (whether a responsible body of medical opinion would have done as the defendant did) to the quite separate issue of causation (whether the negligence caused the injury). Plaintiffs have to prove both negligence and causation to succeed. – correct question in determining causation was, what would a doctor have done if one had arrived? – It was “an irrelevance” that the health authority’s expert witness represented a respectable body of medical opinion.
  • NEEDS LOGICAL BASIS TO AVOID MEDICAL PROFESSIONALS FROM IMPOSING WHAT THEY THINK IS MORALLY RIGHT
  • Medical practitioner — Negligence — Test of liability — Conforming with practice accepted as proper by responsible members of the profession — Expert evidence of practice accepted as proper — Circumstances in which expert evidence not to be relied on as establishing proper level of skill and competence — Omission to intubate infant prior to respiratory failure resulting in cardiac arrest — Expert evidence both for and against intubation — Whether evidence for defendants reasonable and responsible — Whether evidence capable of withstanding logical analysis.

RE O (A MINOR) (MEDICAL TREATMENT) Family Division 19 BMLR 148, [1993] 2 FLR 149, [1993] Fam Law 454 HEARING-DATES: 15 March 1993 15 March 1993

  • CATCHWORDS: Medical treatment — Child — Parents Jehovah’s Witnesses — Child born prematurely with respiratory problems — Child requiring emergency blood transfusion — Parents objecting — Local authority applying for emergency protection order — Blood transfusion carried out — Local authority applying for care order — Whether court should override sincerely held beliefs of parents — Whether court’s inherent jurisdiction was the appropriate legal framework

Bolam v Friern, 1957 /

  • Mr bolam underwent electro convulsuive therapy for depression. he was not warned of t risk of fracture and he was not given muscle relaxant drugs and manual control was not used. t treatment resulted in severe physical injuries to mr bolam consiting of dislocation of both hip joints w fractures of t pelvis on each side which were caused by t head fo the femur on each side being driven through the acetabulum (cup of pelvis)
  • it was found that t doctor was not guilty of negligence if he acted
  • ‘…in accordance w a practice accepted as proper by a responsible body of medicl men skillled in that particular area…’
  • ‘…a man is not negligent if he is acting in accordance w a practice, merely because there is a body of opinion who would take a contrary view…’
  • a court in order to determine accepted medical practice relies on expert opinion. in t cased of Bolam t experts were divided but t judge found in favour of the doctor
  • “… where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill…”

Chatterton v Gerson, 1981

  • woman, leg op went wrong, had another got worse – established that failure to provide suff info is negligence, not battery – hwr, failure to ‘broadly’ consent is battery

Re HIV haemophiliac litigation 1990
Court of Appeal (Civil Division)
41 BMLR 171
HEARING-DATES: 20 September 1990
20 September 1990
CATCHWORDS:
Discovery — Negligence action — Plaintiffs receiving imported blood products infected with Human Immuno-deficiency Virus — Risk of developing AIDS — Production sought of documents held by Department of Health — Department of Health claiming immunity from disclosure on grounds of public interest — Appeal.

Blyth v Bloomsbury Health Authority & Another
Court of Appeal (Civil Division)
The Times 11 February 1987, The Independent 9 February 1987,

S. AND ANOTHER v. DISTILLERS CO. (BIOCHEMICALS), LTD, J. AND OTHERS v. DISTILLERS CO. (BIOCHEMICALS), LTD. AND OTHERS. 1970
QUEEN’S BENCH DIVISION
[1969] 3 All ER 1412, [1970] 1 WLR 114
HEARING-DATES: 14, 15, 16, 17, 18, 22, 23, 24, 25, 28, 29, 30 July 1969
30 July 1969
CATCHWORDS:
Damages — Personal injury — Amount of damages — Thalidomide children.

Davies v Eli Lilly & Co and others 1987
Queen’s Bench Division

Davies & Eli Lilley 1988
Queens Bench Division
The Times 16 January 1988, The Independent 15 January 1988, (Transcript:Marten Walsh Cherer)
HEARING-DATES: 14 January 1988
14 January 1988

M’Alister or Donoghue v Stevenson 1932 SC (HL) 31
“… persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected while I am directing my mind to the acts or omissions which are called into question”.

One Sunday in August 1928, a Scottish shop assistant, Mrs. May Donoghue, went to a Paisley café and ordered an “ice cream float”. The proprietor brought the ice cream in a tumbler and poured some ginger beer over it from a bottle bearing the name of D. Stevenson, Glen Lane, Paisley.
Mrs Donoghue took a drink and when her glass was refilled, found the decomposed remains of a snail in her ginger beer. She suffered from shock and not long after from severe gastro-enteritis which landed her in hospital. Her solicitor issued a writ against David Stevenson, claiming £500 damages. The case ultimately reached the House of Lords where the historic decision was made in Mrs Donoghue’s favour.
The upshot was the ‘good neighbour’ principal which has underpinned the law of negligence ever since.

The Creutzfeldt-Jakob Disease Litigation, Plaintiffs v United Kingdom Medical Research Council and another 1996
Queen’s Bench Division
54 BMLR 8
HEARING-DATES: 19 July 1996
19 July 1996
CATCHWORDS:
Negligence — Clinical trial leading to treatment regime — Plaintiffs as minors had been treated with human growth hormone (HGH) — HGH developed from pituitary glands — Contamination of HGH led to Creutzfeldt-Jakob Disease (CJD) — CJD untreatable and terminal — Whether defendants negligent in failing to discontinue treatment with HGH — Date when defendants should have been aware of risks — Standard of care required of a governmental or quasi-governmental body — Burden of proof.

Thomson v James and others
Queen’s Bench Division
31 BMLR 1
HEARING-DATES: 3 April 1996
3 April 1996
CATCHWORDS:
Negligence — Medical practitioner — Standard of care — Failure of general practitioner to give advice to parents which complied with DHSS guidelines on measles vaccination — Child not receiving measles vaccine suffering brain damage as a result of complication of measles — Causation — Failure to advise in favour of vaccination resulting in child contracting measles.

Department of Health and Social Security v Kinnear and others 1984

APPELBY v. SLEEP. 1968
QUEEN’S BENCH DIVISION
[1968] 2 All ER 265, [1968] 1 WLR 948, 66 LGR 555
HEARING-DATES: 22 March 1968
22 March 1968
CATCHWORDS:
National Health Service — Pharmaceutical services — Supply of medicine or drug — Contractual relationship between chemist and National Health Service Executive Council that of contract for services — Supply of drug by chemist against a prescription — Whether a sale to executive council — Sliver of glass in bottle of medicine — Whether offence of selling drug not of the nature, etc. demanded — National Health Service Act, 1946 (8 & 10 Geo. 6 c. 81), s. 38 — National Health Service (General Medical and Pharmaceutical Services) Regulations 1966 (S.I. 1966 No. 1210), reg. 23, Sch. 4, Pt. 1 — Food and Drugs Act, 1955 (4 & 5 Eliz. 2 c. 16), s. 2 (1).

R v Mid Glamorgan Family Health Services Authority and another, ex parte Martin
COURT OF APPEAL, CIVIL DIVISION
[1995] 1 All ER 356, [1995] 1 WLR 110, 21 BMLR 1, [1995] 1 FLR 283, [1995] 2 FCR 578
HEARING-DATES: 29, 30 June, 29 July 1994
29 July 1994
CATCHWORDS:
National Health Service – Medical records – Access to medical records by patient – Former psychiatric patient requesting access to his medical records – Health authorities refusing to allow direct access – Whether patient having unconditional right of access to his records at common law – Whether health authority entitled to deny patient access to his records if disclosure would be detrimental to his health.

South Glamorgan County Council v B and With 1993
Family Division
11 BMLR 162
HEARING-DATES: 27 October 1992
27 October 1992
CATCHWORDS:
Medical treatment — Consent — Child aged 15 years — Right to refuse medical treatment — Child persistently absent from school — Mental health likely to be seriously impaired unless admitted to a specialist unit for psychiatric assessment and treatment — Child refusing proposed treatment — Child understanding nature and purpose of proposed treatment — Whether court exercising inherent jurisdiction can override child’s wishes — Children Act 1989.

AG v Guardian Newspapers 1989
ATTORNEY-GENERAL
APPELLANTS
AND
OBSERVER LTD. AND OTHERS
RESPONDENTS
ATTORNEY-GENERAL
ORIGINAL APPELLANT AND CROSS-RESPONDENT
AND
TIMES NEWSPAPERS LTD. AND ANOTHER
ORIGINAL RESPONDENTS AND CROSS-APPELLANTS
[On appeal from ATTORNEY-GENERAL v GUARDIAN NEWSPAPERS LTD. (No. 2)]
[HOUSE OF LORDS]
[1990] 1 AC 109

Confidential Information – Breach of confidence – Public interest – Disclosure by former Crown servant of alleged illegal activities of British Security Service – Information freely available outside United Kingdom – Balancing public interest in freedom of speech against public interest in maintaining confidentiality – Whether injunction against publication to be granted

MS v Sweden 1997 (correct one?)
European Court of Human Rights
45 BMLR 133
HEARING-DATES: 27 August 1997
27 August 1997
CATCHWORDS:
Privacy — Applicant allegedly sustaining back injury at work and claiming compensation — Disclosure of medical records — Whether interference with right to respect for private and family life — Whether interference in accordance with the law and necessary in a democratic society — European Convention on Human Rights, art 8(1) and (2).

TV v Finland 1994

Tarasoff v Regents of the Uni of California 1976

when a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim against such danger

If a psychiatrist does in fact predict violence, then a duty to warn arises. The majority’s expansion of that rule will take us from the world of reality into the wonderland of clairvoyance.

thompson v county of alameda 1980

lipari v sears, roebuck,1980

myers v quesenberry 1983

Palmer (administratrix of the estate of Palmer) v Tees Health Authority and another 1999
COURT OF APPEAL (CIVIL DIVISION)
[1999] Lloyd’s Rep Med 351, The Times 6 July 1999, (Transcript: Smith Bernal)
HEARING-DATES: 2 JUNE 1999
2 JUNE 1999

R v Department of Health, ex parte Source Informatics Ltd 2001
COURT OF APPEAL (CIVIL DIVISION)
[2000] 1 All ER 786, [2000] 2 WLR 940, 52 BMLR 65; [2001] QB 424
HEARING-DATES: 29, 30 November, 2, 21 December 1999
21 December 1999
CATCHWORDS:
Medical practitioner — Doctor and patient — Disclosure of confidential information — Company seeking to persuade doctors and pharmacists to disclose prescription information which did not reveal identity of patients — Department of Health advising that such disclosure would constitute breach of duty of confidence owed to patients — Whether disclosure of anonymous information by doctors and pharmacists could be breach of confidence.

W v Egdell and others 1990
COURT OF APPEAL, CIVIL DIVISION
[1990] Ch 359, [1990] 1 All ER 835, 1990 2 WLR 471, 4 BMLR 96
HEARING-DATES: 30, 31 OCTOBER, 1, 9 NOVEMBER 1989
9 November 1989
CATCHWORDS:
Medical practitioner — Doctor and patient — Disclosure of confidential information — Public interest — Doctor’s duty to patient and to public — Disclosure of report on patient in public interest — Psychiatrist instructed by patient detained in secure hospital to prepare independent report on patient’s mental condition — Psychiatrist disclosing report to hospital charged with patient’s care and encouraging hospital to disclose report to public authorities responsible for making decisions about patient’s future — Whether psychiatrist barred by duty of confidence owed to patient from disclosing contents of report — Whether duty of confidence subordinate to duty owed to public — Whether doctor’s public duty requiring him to disclose report to public authorities responsible for patient’s treatment and future.

X v Y and others 1988
QUEEN’S BENCH DIVISION
[1988] 2 All ER 648, [1988] RPC 379, 3 BMLR 1
HEARING-DATES: 12, 13, 14, 15, 19, 20 OCTOBER, 6 NOVEMBER 1987
6 November 1987
CATCHWORDS:
Equity — Breach of confidence — Injunction — Information obtained from confidential hospital records — Information identifying AIDS sufferers — Information procured from hospital employees by newspaper — Interlocutory injunction granted restraining newspaper from publishing information — Whether permanent injunction restraining publication necessary in public interest — Whether publication of article in breach of injunction a contempt of court — Contempt of Court Act 1981, s 10.

Stephens v Avery and others 1988
CHANCERY DIVISION
[1988] 1 Ch 457, [1988] 2 All ER 477, [1988] 2 WLR 1280, [1988] FSR 510
HEARING-DATES: 25, 26 FEBRUARY 1988
26 February 1988
CATCHWORDS:
Equity — Breach of confidence — Confidential information — Information relating to sexual conduct — Whether duty of confidentiality attaching to information relating to sexual conduct — Information disclosed by plaintiff to friend in confidence — Friend disclosing information to newspaper — Whether information imparted in circumstances importing an obligation of confidence.

Hunter v Mann 1974
QUEEN’S BENCH DIVISION
[1974] QB 767, [1974] 2 All ER 414, [1974] 2 WLR 742, [1974] RTR 338, 59 Cr App Rep 37, 138 JP 473
HEARING-DATES: 8 FEBRUARY 1974
8 FEBRUARY 1974
CATCHWORDS:
Road traffic – Offence – Information – Duty to give information – Duty of any person to give information which it is in his power to give and may lead to identification of driver – Doctor – Information obtained by doctor in professional capacity – Whether ‘any… person’ to be construed restrictively so as not to include doctor under professional duty of confidence – Whether ‘in [doctor's] power’ to disclose information – Road Traffic Act 1972, s 168(2)(b).

COCO v. A. N. CLARK (ENGINEERS) LTD. 1968
HIGH COURT OF JUSTICE — CHANCERY DIVISION
[1969] RPC 41, [1968] FSR 415
HEARING-DATES: 28 June, 1 July 1968
1 July 1968
CATCHWORDS:
Confidential information — Misuse of — Moped engine — Interlocustory injunction — Elements of breach of confidence — No prima facie case of infringement or that information was confidential — Defendants’ undertaking to pay royalty into joint accaount — Interlocutory injunction not appropriate.

ATTORNEY-GENERAL v. MULHOLLAND., ATTORNEY-GENERAL v. FOSTER. 1963
COURT OF APPEAL
[1963] 2 QB 477, [1963] 1 All ER 767, [1963] 2 WLR 658, ([1984] CLJ 272)
HEARING-DATES: 12, 13 February 1963
13 February 1963
CATCHWORDS:
Evidence — Privilege — Press — Newspaper reporter — Source of information — Whether privileged from disclosure — Tribunals of Inquiry (Evidence) Act, 1921 (11 & 12 Geo. 5 c. 7), s. 1 (2) (b), (3).
Tribunal — Tribunal of inquiry — Evidence — Newspaper reporter — Refusal to disclose source of information of newspaper report — Whether a question which tribunal might legally require him to answer — Relevance — Privilege — Discretion of court — Tribunals of Inquiry (Evidence) Act, 1921 (11 & 12 Geo. 5 c. 7), s. 1.

Gordon v Wilson, 1992

GORDON v WILSON AND OTHERS
COURT OF SESSION: OUTER HOUSE
1992 SLT (NOTES) 849, (1991) Outer House Cases
18 October 1991
CATCHWORDS: Reparation — Negligence — Medical negligence — Brain tumour — Alleged delay in diagnosis and treatment with resulting losses to hearing, sensation and movement — Whether defenders’ liable.
Damages — Brain — Brain tumour — Alleged delay in diagnosis and treatment with resulting losses to hearing, sensation and movement — Personal injuries — Amount — Woman — Solatium: £20,000 — Past nursing care — Assessment thereof — future care; multiplier of 15 — Expenses — Assessment thereof.
COUNSEL: Act: Paton, QC et Mackie, Balfour & Manson, Nightingale & Bell; Alt: DRA Emslie, QC et Cullen, Shepherd & Wedderburn

Re M (child: refusal of medical treatment) 1999
FAMILY DIVISION
[1999] 2 FCR 577, 52 BMLR 124, 29 [1999] Fam Law 753
HEARING-DATES: 9, 10, 15 July 1999
15 July 1999
CATCHWORDS:
Child — Medical treatment — Refusal of consent — Heart transplant operation — Child certain to die without operation — Child an intelligent 15-year-old — Child overwhelmed by sudden serious medical condition — Whether court should override child’s wishes and authorise operation

Re A FINLAYSON (REPORTER TO CHILDREN’S PANEL, LOTHIAN REGION) IN THE CASE OF T 1989
SHERIFF COURT, EDINBURGH
1989 SCLR 601
13 March 1989
CATCHWORDS: Parent and child — Compulsory measures of care — Parents’ refusal of conventional medical treatment — Whether grounds of referral established — Social Work (Scotland) Act 1968 (c 49), s 32(2)

V v F 1990
SHERIFF COURT, EDINBURGH
1991 SCLR 225
26 July 1990
CATCHWORDS: Mental health — Fifteen-year-old girl — Application for compulsory detention as patient in hospital — Whether order necessary where parents prepared to consent to detention and treatment — Mental Health (Scotland) Act 1984 (c 36), ss 17, 18

RE L (MEDICAL TREATMENT: GILLICK COMPETENCY) 1998
Family Division
[1998] 2 FLR 810, [1999] 2 FCR 524, [1998] Fam Law 591
HEARING-DATES: 10 June 1998
10 June 1998
CATCHWORDS:
Medical treatment — Inherent jurisdiction of High Court — Teenage child in life-threatening condition refusing blood transfusion — Whether child concerned was ‘Gillick competent’

RE C (WELFARE OF CHILD: IMMUNISATION)
Family Division
[2003] EWHC 1376 (Fam), [2003] 2 FLR 1054
HEARING-DATES: 13 June 2003
13 June 2003
CATCHWORDS:
Specific issue order — Immunisation — Best interests of child — Dispute between parents

RE C (WELFARE OF CHILD: IMMUNISATION) 2003
Court of Appeal (Civil Division)
[2003] EWCA Civ 1148, [2003] 2 FLR 1095
HEARING-DATES: 30 July 2003
30 July 2003
CATCHWORDS:
Specific issue order — Immunisation — Best interests of child — Test to be applied — Dispute between parents

RE C (HIV TEST) 1999
Court of Appeal (Civil Division)
[1999] 2 FLR 1004, [2000] Fam Law 16
HEARING-DATES: 21 September 1999
21 September 1999
CATCHWORDS:
Medical treatment — Specific issue order — Infant — HIV test — HIV positive mother refusing to allow test on newborn baby — Importance of parental views when determining welfare of child

Re C and F (children)(immunisation) 2003
FAMILY DIVISION
[2003] All ER (D) 179 (Jun)
HEARING-DATES: 13 June 2003
13 June 2003
CATCHWORDS:
Children – Medical treatment – Immunisation – Best interests of children – Children Act 1989, s 1.
HEADNOTE:
This case digest has been summarised by LexisNexis UK editors.
C, a four-year-old, and F, a ten-year-old, both lived with their mothers. The children’s fathers had both been granted parental responsibility orders and were in contact with them. The children had not been inoculated nor received any form of immunisation. The fathers wished their children to receive a range of immunisation appropriate to their age. The mothers opposed that course. The fathers applied to the court, pursuant to s 1 of the Children Act 1989, for a declaration that their children should be inoculated.
The application would be allowed.
The court had to consider each of the two children separately in respect of each of the vaccinations which were proposed. Their welfare was the court’s paramount consideration. The court’s particular concern was the harm which each of the children was at risk of suffering if they remained unvaccinated. But that was not in isolation. The court also considered their emotional needs. That included the important bond they had with their main carer, their mothers. Both mothers were devoted mothers who had taken a stand in what they believed to be in their child’s best interests. However, the medical evidence the court accepted was both clear and persuasive. Further, the impact on the mothers and their care of their children, whilst of great importance and properly to be weighed, was not in either case of such a potential impact as should in the children’s best interests deter the court from the decision which it would otherwise have reached. On the evidence and the facts of the instant case, the court was satisfied that it should make an order rather than make no order. Immunisation was in the children’s best interests.
PANEL: SUMNER J

[2003] All ER (D) 179 (Jun)

Gregg v Scott, 2002

Hunter v Hanley, 1955
“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown”.

“The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

Marriott v West Midlands Health Authority, 1998

Maynard v W. Midlands Health Authority 1985

Rowan v Stenberg 1997

Sidaway v Board of Governors… 1985

(rejected us decision to require standard as what a reasonable patient would want to know- instead prudent patient test

Medical Practitioner – Negligence – Duty to inform – Surgeon performing operation with inherent risks – Whether duty to give necessary information for patient’s full consent – Undisclosed risk causing damage – Claim in negligence for non-disclosure of risk – Whether accepted professional standard test decisive

medical practioner – negligence – test of liability – risk of misfortune inherent in treatment proposed by doctor – doctors duty to warn of inherent risk of misfortune – operation to relieve persistent pain in neck resulting in serious disablement of patient – doctor warning patient of material risks but not of all risks inherent in operation – whether standard of care required of doctor in giving advice before operation t same as tht normally reqd of medical practioner in course of diagnosis and treatment – whether higher stndard requiring full disclosure to patient of all details and risks before operation

Whitehouse v Jordan 1981

Medical practitioner – Negligence – Test of liability – Error of judgment – Hospital registrar testing forceps delivery – Registrar pulling fetus several times with obstetric forceps – Baby born with brain damage – Whether error of clinical judgment amounting to negligence – Whether doctor negligent.
Appeal – Evidence – Finding of fact of trial judge -Inference from finding of fact – Whether appellate court entitled to substitute own inference from finding of fact.

in this case a claim was brought on behalf of a baby born disastrously and irretrievably brain damaged. mr jordan was alleged to be negligent by not proceeding sooner to deliver by caesarean section and by pulling too hard and for too long when attempting to deliver t baby by forceps.

the claim dragged on for eight years from t issue of proceedings and t child was nearly eleven by t time t claim was dismissed. t cost would have been astronomical. and t opinions of t experts as to how far an attempt at forceps delivery could be pursued were miles apart. additionally there was confusion over the interpretation by t judge of an expert report.

Moyes v. Lothian Health Board [1989]

Penney and others v East Kent Health Authority, 2000

De Freitas v. O’brien 1995
Court of Appeal, CA
(Leggatt, Swinton-Thomas and Otton L.JJ.):
February 2, 1995
Medical negligence–whether defendant’s practice would have been approved by a responsible body of medical opinion–whether there is a requirement for a sizeable body of medical opinion

Barnett v Chelsea and Kensington HMC 1968
BARNETT v. CHELSEA & KENSINGTON HOSPITAL MANAGEMENT COMMITTEE.
QUEEN’S BENCH DIVISION
[1969] 1 QB 428, [1968] 3 All ER 1068, [1968] 2 WLR 422
HEARING-DATES: 25, 26, 27 October, 8 November 1967
8 November 1967
CATCHWORDS:
Hospital — Negligence — Liability for negligence of members of staff — Casualty officer — Duty to see and examine patient presenting himself at casualty department and complaining of illness, when casualty department open — Arsenical poisoning — Patient’s death not caused by the negligence.

Cassidy v Ministry of Health 1951
CASSIDY v. MINISTRY OF HEALTH (FAHRNI, Third Party).
COURT OF APPEAL
[1951] 2 KB 343, [1951] 1 All ER 574, 212 LT 250, [1951] WN 147
HEARING-DATES: 15, 16, 24, 25 January, 15 February 1951
15 February 1951
CATCHWORDS:
Hospital — Negligence — Liability for negligence of members of staff — Medical practitioner employed by hospital under contract of service — House surgeon.

Goorkani v Tayside Health Authority 1991
OSSEIN ALI GOORKANI v TAYSIDE HEALTH BOARD
COURT OF SESSION: OUTER HOUSE
1991 SLT (NOTES) 94, (1990) Outer House Cases
18 January 1990
CATCHWORDS: Negligence — medical negligence — duty of care — duty to advise — pursuer irreversibly infertile through drug treatment for serious eye condition — whether pursuer advised of risk of infertility — whether pursuer would have declined treatment or sought sperm banking if advised of risk — whether failure in duty of care
Damages — amount — solatium — male infertility through drug treatment — pursuer from culture valuing large families — resultant tension in marital relationship — loss of self-esteem, shock and anger upon sudden discovery of condition

Hotson v East Berkshire AHA 1987
Hotson v East Berkshire Area Health Authority
HOUSE OF LORDS
[1987] 1 AC 750, [1987] 2 All ER 909
HEARING-DATES: 11, 12, 13 MAY, 2 JULY 1987
2 July 1987
CATCHWORDS:
Negligence — Causation — Breach of duty causing or contributing to damage — Balance of probabilities — Plaintiff injured and having 75% chance of permanent disability developing — Hospital wrongly diagnosing injury for five days — Wrong diagnosis making permanent disability inevitable — Whether plaintiff entitled to damages for loss of 25% chance of full recovery — Whether plaintiff having to prove that disability caused by hospital’s negligence — Whether loss of chance of better medical result an issue of causation or of quantum.

Re KB (adult) (mental patient: medical treatment)
Family Division 19 BMLR 144
HEARING-DATES: 28 January 1994
28 January 1994
CATCHWORDS:
Mental health — Medical treatment — Force feeding — Patient suffering from anorexia nervosa — Patient detained under Mental Health Act 1983 — Declaration — Whether forcefeeding medical treatment for mental disorder — Mental Health Act 1983, ss 63, 145.

Joyce v Merton, Sutton…1995
Joyce v Merton Sutton and Wandsworth Health Authority
Court of Appeal, Civil Division
27 BMLR 124
HEARING-DATES: 28 July 1995
28 July 1995
CATCHWORDS:
Negligence — Locked-in syndrome — Upper brain stem infarction — Thrombus dislodged during an arch aortogram to rectify unsuccessful brachial artery reconstruction surgery — Partial occlusion of brachial artery after brachial cardiac catheterisation — Whether patient given adequate post-operative care information — Whether patient’s condition properly investigated and treated in time.

Kay’s Tutor v Ayrshire and Arran Health Board 1986
KAY’S TUTOR v AYRSHIRE AND ARRAN HEALTH BOARD
Outer House
(1985) Outer House Cases 23
1 March 1985
CATCHWORDS: Negligence – personal injury – medical negligence – overdose of penicillin to child aged 2 and one half suffering pneumococcal meningitis – causation – whether overdose caused or contributed to deafness – whether deafness caused by meningitis – whether child deaf before overdose administered – no proof that deafness ever previously caused or contributed to by penicillin – prospects of a symptomatic recovery without overdose – whether overdose probably materially contributed to increased chances of deafness supervening – whether speech loss and behavioural difficulties caused by deafness.
HEADNOTE: Damages – amount – solatium and loss of earnings prospects – child aged 11 at proof – deafness and speech loss caused by drug overdose at age of 2 and one half – no prospect of recovering speech or hearing – high natural intelligence – likelihood of obtaining university degree – solatium of 42000 pounds sterling – loss of earnings amounting to 60000 pounds sterling, ie 15 years at 4000 pounds sterling per annum.
Practice – conduct of proof – party litigant – circumstances in which greater than normal participation in proceedings by court.

RE Y (MENTAL INCAPACITY: BONE MARROW TRANSPLANT)
Family Division
[1996] 2 FLR 787, [1997] Fam Law 91, 35 BMLR 111, [1997] 2 WLR 556, [1997] 2 FCR 172l; HEARING-DATES: 14 June 1996
14 June 1996
CATCHWORDS:
Medical treatment — Mental incapacity — Plaintiff with bone marrow disorder seeking blood tests and donation of bone marrow by her defendant sister who was incapable of giving consent — Whether procedures would benefit the defendant

Mahone v Osborne 1939
Mahon v Osborne
COURT OF APPEAL
[1939] 1 All ER 535
HEARING-DATES: 16, 17, 18 JANUARY, 10 FEBRUARY 1939
10 FEBRUARY 1939
CATCHWORDS:
Medicine – Negligence – Surgical operation – Swab left in patient – Res ipsa loquitur – Difficulty of operation – Condition of patient – Counting of swabs.

WRIGHT v. DUNLOP RUBBER CO. LTD. AND ANOTHER; CASSIDY v. SAME 1972
COURT OF APPEAL (CIVIL DIVISION)
13 KIR 255
HEARING-DATES: 31 October 1972
31 October 1972
CATCHWORDS:
Negligence — Duty of care — Manufacturer — Purchaser’s employees exposed to chemical containing carcinogen — Whether danger foreseeable.

Prendergast v Sam and Dee 1988
Prendergast v Sam & Dee Ltd & Others
Queen’s Bench Division
The Independent 17 March 1988, The Times 24 March 1988, (Transcript:DL Sellers)
HEARING-DATES: 16 March 1988
16 March 1988
COUNSEL:
RJ Walker QC and A Hogarth for the Plaintiff; J Dennis, for the second Defendant; DNR Latham QC and N Underhill for the Third Defendant
PANEL: Auld J

Sheridan v Boots Co Ltd and Another
Queen’s Bench Division
(Transcript:Association)
HEARING-DATES: 19 December 1980
19 December 1980

Worsley v Tambrands Ltd
QUEEN’S BENCH DIVISION
(Transcript: Beverley F Nunnery)
HEARING-DATES: 3 DECEMBER 1999
3 DECEMBER 1999
COUNSEL:
J Grace QC and A Garrett for the Claimant; M Spencer QC and E Power for the Defendant
PANEL: EBSWORTH J
JUDGMENTBY-1: EBSWORTH J
JUDGMENT-1:

Foster v Biosil 2000
London Central County Court
59 BMLR 178
HEARING-DATES: 18, 19 April 2000
19 April 2000
CATCHWORDS:
Product liability — Silicone breast implants — Whether breast implants inserted following a bilateral mastectomy operation were defective — Whether burden of proof of showing the cause of the leakage and rupture of the breast implants lay on the claimant — Whether claimant merely had to show that they had leaked and ruptured in unsafe circumstances and nothing more — Whether for defendant to show that implants were not defective — Whether the legislation reversed burden of proof in relation to proof of defect — Consumer Protection Act 1987, ss 1, 2, 3, 4(1)(d), (e) — EC Directive on Liability for Defective Products (EEC) 85/374, arts 4, 6.

Richardson v LRC Products Ltd 2000
Queen’s Bench Division
59 BMLR 185
HEARING-DATES: 24, 25, 26, 27, 28 January, 2 February 2000
2 February 2000
CATCHWORDS:
Product liability — Contraceptive — Defective product — Defective condom led to unwanted pregnancy — Whether condom defective — Whether condom suffered ozone damage during manufacture — Whether ozone damage suffered while body of condom stored by claimant after use — Whether causal relationship between fracture and ozone damage — Whether defendant could rely on development risks defence — Whether claimant should have taken steps to avoid pregnancy by seeking ‘morning after’ pill — Whether damages for unwanted pregnancy available under the Act — Consumer Protection Act 1987, ss 3, 4.

A and others v National Blood Authority and another
QUEEN’S BENCH DIVISION
[2001] 3 All ER 289, 60 BMLR 1
HEARING-DATES: 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24,
25, 26, 27, 30 October, 1, 6, 7, 8, 9, 13, 15, 16, 20, 21,
27, 28, 29 November, 1, 4, 5, 6, 8, 11, 12, 13 December
2000, 9, 10, 11, 12, 15, 16, 17, 18, 19, 26, 29, 30 January,
26 March 2001
26 March 2001
CATCHWORDS:
European Community — Consumer protection — Product liability — Whether
unavoidability of risk relevant in determining whether product defective –
Whether unavoidable risk falling within development risks defence if producer
unable to discover defect in particular product by means of accessible
information — Consumer Protection Act 1987 — Council Directive (EEC) 85/374,
arts 6, 7(e).

Summary of case
- Court of Justice concluded that UK was compliant with EC law on products
- Key dispute of case is in rel to the wording of the EC directive (CPA)
o Particularly art 6 (equivalent of CPA art s3) and art 7(e) (equivalent CPA being s4(1)(e))
- Generic issues of claim amount to whether defendants are liable to claimants under the CPA (whether claimants as a whole can prove that (assuming injury, causation and loss can be proved in respect of each claimant) the defendants are liable under s3 (art6), and not exonerated within s 4(1)e) (art 7(e)).
- Choice of lead 6 claimants, derives from showing a spread of consequences of infection
- Calling Hep-C HCV led to distress (impied connotations with HIV)
- Many sufferers of Hep-C have few or no clinical symptoms
- Claim not based on ‘avoidability’, or ‘loss of chance’, nor ‘negligence’
- Case against is that they are liable, regardless of fault
- Follows the Thalidomide cases, for which rulings were aimed to introduce obligations respective of fault (by strict liability) and to make it easier for injured consumer to receive compensation, by removing negligence as element of liability (with escape clausefor producer of ‘developments risk’ defence)
- Dispute largely about wording of European and uk directives. Defendant claims that maintaing UK is all that matters, any discrepancy between 2 is not relevant.
- REF: Newdick, Law Quarterly Review ‘ future of negligence in prod liab’ 1987, 103, 288
- Liability should be on defectiveness, not fault
- Case resides on whether is defective, which includes whether it meets the standard of safety to which a person is entitled to expect
o Legitimate expectation rather than entitled expectation

History of UK Blood Management
National Health Service bodies prior to 1 April 1993 in England = 14 regional blood transfusion centres (RTCs)
Post-1993, then National Blood Authority, responsible for
- RTCs
- Central Blood Laboratory Authority – responsible for Blood Products (later Bio Products) Laboratory (BPL)
- Blood Groups Research Laboratory (BGRL)
Since 1994, NBA would receive any actions brought against these bodies
History of Blood Donation in UK
- began in 1921, unpaid volunteers
- 1970, 14 Rtcs and South Glamorgan HA responsible for all collection, processing and testing
- each RTC managed by own indep. Medically qualified regional transfusion director
- no central co-ordinating arrangements or admin until 1988, when National Directorate of the National Blood Transfusion Service (NBTS) was formed
- In 1993, this was replaced by NBC
Blood is managed through separation of constitutive elements, as necessary

NBA ruling has been considered a welcome approach to the UK application of CPA1987, since it demonstrated a dismissal of the ‘development risks’ defence and, as such, ‘expanded the protection afforded to consumers from defective products’

McGhee v National Coal Board 1973
McGhee v National Coal Board
HOUSE OF LORDS
[1972] 3 All ER 1008, [1973] 1 WLR 1, 13 KIR 471, [1973] RVR 57
HEARING-DATES: 9, 10 OCTOBER, 15 NOVEMBER 1972
15 NOVEMBER 1972
CATCHWORDS:
Negligence – Causation – Breach of duty – Damage to plaintiff – Breach of duty causing or materially contributing to damage – Evidence – Damage caused or contributed to by factors for which defendant not responsible – Defendant’s breach of duty materially increasing risk of damage to plaintiff – No positive evidence that plaintiff would not have suffered damage in absence of defendant’s breach of duty – Whether defendant liable to plaintiff in respect of breach of duty.

Rance v Mid-Downs Health Authority 1991
Rance and another v Mid-Downs Health Authority and another
QUEEN’S BENCH DIVISION
[1991] 1 All ER 801, [1991] 1 QB 587, [1990] 2 WLR 159, 5 BMLR 7
HEARING-DATES: 22, 23, 24, 25, 30, 31 JANUARY, 1, 2, 5 FEBRUARY 1990
Abortion – Child capable of being born alive – Abortion of child ‘capable of being born alive’ unlawful – When child capable of being born alive – Whether foetus ‘capable of being born alive’ if capable, if born, of living and breathing through its own lungs without any connection to mother – Whether abortion of foetus in such a state unlawful – Infant Life (Preservation) Act 1929, s 1 – Abortion Act 1967.
Medical practitioner – Negligence – Abortion – Failure to detect foetal deformity in ultrasound scans when mother more than 27 weeks pregnant – Foetus capable of being born alive – Termination of pregnancy unlawful – Whether failure to discover abnormality and advise on possibility of abortion amounting to negligence if termination would have been unlawful – Infant Life (Preservation) Act 1929, s 1 – Abortion Act 1967.

R v Adomako 1995
REGINA
RESPONDENT
AND
ADOMAKO
APPELLANT
[HOUSE OF LORDS]
[1995] 1 AC 171
HEARING-DATES: 10, 11, May 30 June 1994
30 June 1994
CATCHWORDS:
Crime – Homicide – Manslaughter – Involuntary manslaughter – Breach of duty – Appropriate test – Whether necessary to show gross negligence – Whether jury to be directed as to “recklessness”

R v Prentice and Sullmann 1993
REGINA v PRENTICE
REGINA v SULLMAN
REGINA v ADOMAKO
REGINA v HOLLOWAY
[COURT OF APPEAL]
[1994] Q B 302
HEARING-DATES: 22, 23, 24, 25, February 1, March 20 May 1993
20 May 1993
CATCHWORDS:
Crime – Homicide – Manslaughter – Involuntary manslaughter – Breach of duty – Appropriate test – Whether necessary to show gross negligence – Whether jury to be directed as to “recklessness” Law Reform – Whether necessary – Manslaughter – Need for examination of all aspects

Roe v Ministry of Health 1954
ROE v. MINISTRY OF HEALTH AND OTHERS., WOOLLEY v. SAME.
COURT OF APPEAL
[1954] 2 QB 66, [1954] 2 All ER 131, [1954] 2 WLR 915
HEARING-DATES: 22, 23, 24, 25 March, 8 April 1954
8 April 1954
CATCHWORDS:
Hospital — Negligence — Liability for negligence of members of staff — Specialist anaesthetist — Spinal anaesthetic administered to patients — Contamination of drug in ampoules — Molecular flaws in ampoules.

Wilsher v Essex Area Health Authority 1988
Wilsher v Essex Area Health Authority
HOUSE OF LORDS
[1988] 1 AC 1074, [1988] 1 All ER 871, 3 BMLR 37
HEARING-DATES: 1, 2, 3, 4, 8, 9 FEBRUARY, 10 MARCH 1988
10 March 1988
CATCHWORDS:
Medical practitioner — Negligence — Causation — Burden of proof — Breach of duty causing or materially contributing to damage — Enhancement of existing risk — Doctor’s negligence merely one of several factors which could have caused injury — Existence and extent to which doctor’s negligence contributed to plaintiff ‘s injury not able to be ascertained — Whether plaintiff discharging burden of proof as to causation — Whether doctor liable for breach of duty.

Crawford v Board of Governors of Charing Cross Hospital 1953
(CA) Court of Appeal
7 December 1953
Where Reported
Subject: Negligence
Keywords: expert evidence; Medical negligence; medical treatment; palsy
Catchphrases: Medical practitioner; liability of hospital
Summary: An operation was performed on the plaintiff which involved a blood transfusion. His left arm was extended at an angle of 80 degrees from the body in which position things were the the least likely to go wrong as far as the blood drip was concerned. As a result he developed brachial palsy in the left arm. He claimed damages for the negligence of the anaesthetist against the hospital. Gerrard, J., basing his judgment on the fact that the anaesthetist had failed to read an article in the Lancet on the subject which appeared six months before the operation, held that the defendants were liable. The Court of Appeal (Somervell, Denning and Romer, L.JJ.) allowing the appeal held that the medical experts’ evidence showed that there was no negligence by the anaesthetist.

Re W. (A Minor) (Medical Treatment: Court’s Jurisdiction) 1992
Court of Appeal
CA
Lord Donaldson of Lymington M.R., Balcombe and Nolan L.JJ.
1992 June 29, 30; July 1; 10
Children–Court’s inherent jurisdiction–Medical treatment–Transfer of 16– year–old girl to specialist unit for treatment for anorexia nervosa–Girl refusing consent to proposed treatment–Whether absolutely entitled to refuse treatment–Whether court having jurisdiction to override refusal–Family Law Reform Act 1969 (c. 46), s. 8

Re B (adult: refusal of medical treatment) [2002] EWHC 429, [2002] 2 All ER 449

B (adult: refusal of medical treatment) 2002
Re B (adult: refusal of medical treatment)
FAMILY DIVISION
[2002] EWHC 429 (Fam), [2002] 2 All ER 449, [2002] 1 FLR 1090, [2002] 2 FCR 1, 65 BMLR 149
HEARING-DATES: 6, 7, 8, 22 March 2002
22 March 2002
CATCHWORDS:
Medical treatment — Adult patient — Consent to treatment — Right to refuse treatment — Tetraplegic patient being kept alive by ventilator — Patient wishing to have ventilator turned off — Whether patient competent to refuse treatment — Whether treatment of patient unlawful. – - patient was allowed to have it switched off and awarded £100 as token of assault

Chester v Afshar 2002
Chester v Afshar
COURT OF APPEAL (CIVIL DIVISION)
[2002] EWCA Civ 724, [2002] 3 All ER 552, [2002] 3 WLR 1195, 67 BMLR 66
HEARING-DATES: 4, 5 December 2001, 27 May 2002
27 May 2002

key point of case was that had to show would not have gone through procedure AT THAT SPECIFIC POINT IN TIME – bu patient must prove to court that would not have gone through with procedure at that time /

CATCHWORDS:
Medical practitioner — Negligence — Causation — Failure to warn of risks of operation — Surgeon negligently failing to advise patient of risk inherent in operation — Patient suffering injury when risk materialising during operation — Patient establishing that she would not have had operation if properly advised but unable to show that she would never have had operation in future — Whether surgeon causing damage suffered by patient.

Freeman v Home Office 1984
FREEMAN v HOME OFFICE (No. 2)
[1979 F. No. 1449]
[COURT OF APPEAL]
[1984] Q B 524
HEARING-DATES: 3, 4, 5, 6, 9, 10, 11, 12, 16, 17, 18, 19 May 1983, 22, 23, February 7 March 1984
7 March 1984
CATCHWORDS:
Trespass – Person – Consent – Drugs administered to prisoner serving sentence of life imprisonment – Whether prisoner capable in law of consent – Whether consent to battery must be informed – Allegation of forcible restraint – Whether consent real Prisons – Prison officer – Prison medical officer – Psychiatrist in prison service prescribing drugs to prisoner – Whether prisoner capable of giving consent to treatment Fact or Law – Medical treatment – Injection of drugs to prisoner – Whether consent to treatment

Gold v Haringey 1987
GOLD v HARINGEY HEALTH AUTHORITY
Queen’s Bench Division
[1987] 1 FLR 125, [1987] Fam Law 16
HEARING-DATES: 5,6,9,10,16 June 1986
16 June 1986
CATCHWORDS:
Maternity — Negligence — Hospital staff — Contraceptive counselling — Risk of failure of operation — Duty to warn and inform — Plaintiff undergoing sterilization operation — Not informed of risk of failure beforehand — Not counselled on alternative methods — Whether duty to warn and inform
Negligence — Medical practitioner — Negligent conduct of operation
- PLAINTIFF: should be higher standard because non-therapeutic
- COURT: no, same standard should apply

Pearce v United Bristol Health Care Trust 1999
Pearce and another v United Bristol Healthcare NHS Trust
Court of Appeal, Civil Division
48 BMLR 118
HEARING-DATES: 20 May 1998
20 May 1998
CATCHWORDS:
Consent — Negligence — Provision of information — Pregnancy — Whether mother should have been told of increased risk of stillbirth — Whether doctor has a duty to provide honest answers to patients’ questions about risks of treatment.

Poynter v Hillingdon…1997
Poynter v Hillingdon Health Authority
Queen’s Bench Division
37 BMLR 192
HEARING-DATES: 23 April 1997
23 April 1997
CATCHWORDS:
Negligence — Failure to inform of risk inherent in surgery — Child, aged 15 months, required heart transplant surgery — Heart stopped during anaesthetisation — Irreversible brain damage — Parents not informed of risk of permanent brain damage — Parents alleged they would have refused consent — Quantification of risk — Whether defendant’s medical team under duty to disclose risk — Whether parents would have consented to surgery had they been informed.

Re D (a minor) [1976] 1 All ER 326

Ward of court – Jurisdiction – Protection of ward – Fundamental rights of ward – Right of woman to reproduce – Sterilisation operation – Non-therapeutic reasons for operation – Ward a mentally retarded girl – Proposal to perform operation to sterilise girl – Operation irreversible – Fear that girl might be seduced and give birth to mentally abnormal child – Operation advised by consulting paediatrician in charge of girl’s case – Girl’s parent consenting to operation – Girl incapable of giving informed consent to operation – Girl having sufficient intellectual capacity to enable her to marry in due course and to make her own choice whether to be sterilised – Whether court should exercise wardship jurisdiction to prevent operation.
Official Solicitor – Guardian ad litem – Wardship proceedings – Institution of proceedings – No duty on Official Solicitor to institute proceedings.

Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206 (HL)
mentally incapable to understand link between sex and pregnancy, incapable of taking care of child

R (ex p. Mellor) v Secretary of State for the Home Dept, April 2001 (CA)
mellor life prisoner, murder – earliest realise 12 yrs – wife would be 31 – he met wife while in prison (she was a warder) – seeking right to prov sperm sample to artificially inseminate – based on Art 8 and 12 of ECHR – DISPOSITION: Art 12 accord to previous jurisprudence is prejunctive – right to marry and found a family – because had right to marry, he had tf founded a family (so he had already enjoyed that right), but that meant that art 8 came into effect – can have conditions on this. If is allowed under 8.2, cannot tf be a violation of art 12.
- technically, Article 12 is absolute right – according to national laws
- art 8 includes quals in para 8.2 – protection of health, etc
- European Commission on Human Rights no longer exists – used to decide whether was an issue that could be referred to court, now Court makes decisions\
- UK was entitled to have a penal policy to punish and deter – which included family – so restrictions on sperm sample – this liberty is denied by being in prison
- Was concern about establishing a single-parent family – was legit for gov to take a view on this
- Human rights do not exist without conditions

Briody v St Helens & Knowsley AHA (Claim for Damages and Costs), (2001) 62 BMLR 1, 2001 WL 676777 (CA)
- would have been unlawful according to her own laws
- unreasonable to expect defendant to pay for something that is not legal in this country
- also would not put her back in the same situation
- rights to family should not be arbitrarily restricted

R v Ethical Committee of St. Mary’s Hospital (Manchester), ex p. Harriot [1988] FLR 512.
IVF – PROSTITUTION – REJECTION BY ETHICS COMMITTEE – JUDGEMENT: REFUSED
Judicial review — Applicant seeking in vitro fertilization under National Health Service — Application refused (because of criminal record (prostitution) and running brothel and poor understanding of foster role) — Applicant seeking judicial review to quash advice of ethical committee of hospital and decision of medical team at regional IVF unit to refuse application for in vitro fertilization.

R v Sheffield Health Authority, ex p. Seale (1994) 25 BMLR 1
Judicial review — Refusal of health authority to provide in vitro fertilisation treatment — Age based discrimination (age 37, upper limit = 35) — Duty to provide treatment — Whether refusal to treat is illegal or irrational (CLAIM THAT LIMIT IS UNSCIENTIFIC) — Wednesbury reasonableness — National Health Service Act 1977, s 3. REFUSED
DEFENCE: IVF GOES TO BEST CHANCE FIRST
- in the end she got enough financial support from publicity to get treatment at a clinic
- complicated since she and endometriosis – treatment is pregnancy or hysterectory

R v Human Fertilisation and Embryology Authority, ex p. Blood [1997] 2 All ER 687, (1997) 35 BMLR 1 (CA).
Medical treatment — Human fertilisation — Sperm taken without written consent from comatose husband who subsequently died — Sperm placed in storage — Wife seeking to be inseminated with husband’s sperm — Statutory body refusing to release sperm in absence of written consent or to consent to export of sperm for treatment abroad — Wife seeking judicial review of authority’s decision — Whether authority acting within its powers — Whether exception to requirement of written consent applicable — Whether refusal to permit export of sperm infringement of freedom to obtain medical services elsewhere in European Community — Human Embryology and Fertilisation Act 1990, s 4, Sch 3 — EC Treaty, arts 59, 60.
Husband clinically dead – sperm sample removed (unlawfully) – applicant wishes artificial insemination – RULING: REJECTED

Laskey, Jaggard and Brown v. United Kingdom 1997

Smart v HMA 1975
SMART v HM ADVOCATE
HIGH COURT OF JUSTICIARY
1975 JC 30, 1975 SLT 65
24 January 1975
CATCHWORDS: Crime – Assault – Evidence that complainer consented to fight with the panel – Whether consent a defence.

R v Brown 1993
COURT OF APPEAL (CRIMINAL DIVISION)
Lexis UK CD 438, 99 Cr App Rep 69
HEARING-DATES: 28 MAY 1993
28 MAY 1993
CATCHWORDS:
Criminal law – Personal data – Improper use – Viewing of data on computer screen – Whether bringing data to screen amounting to use – Data Protection Act 1984, s 5(2)(b)
HEADNOTE:
This judgment has been summarised by LexisNexis UK editors.
The appellant, a police officer, was convicted of improper use of personal data, contrary to s 5 of the Data Protection Act 1984, in relation to data he had accessed through the police national computer. The appellant contended that he had merely viewed the data on the screen and had not “used” it for anything other than proper police purposes. The judge held that a person “used” personal data within the meaning of s 5(2)(b) of the Act if he held it in the sense of bringing it to the computer screen. The appellant appealed, contending that s 5(2)(b) had been improperly construed.
Held: A person did not “use” data within the meaning of s 5(2)(b) of the Act by merely accessing the computer screen and viewing what was contained in it since, on its ordinary meaning, the word “use” entailed doing something with the data. Data would be used, for example, if a person, having accessed the information, proceeded to deploy it in his own business affairs against the interests of someone else. In the instant case, the data had merely been viewed and, accordingly, the appeal would be allowed.
COUNSEL:
R Johnson for the Appellant; T Kark for the Crown
PANEL: STAUGHTON LJ, HIDDEN, LAWS JJ
SOLICITORS:
Registrar of Criminal Appeals; Crown Prosecution Service

Evans v Amicus Healthcare ltd [2004] 3 All ER 1025, (2004) 78 BMLR 181 (CA)
See also Evans v Amicus Healthcare ltd, Hadley v Midland Fertility Services Ltd [2003] 4 All ER 903
WOMAN NO FURTHER CHANCE OF HAVING CHILD WITHOUT FROZEN EMBRYO – COUPLE SPLIT, MAN WANTS THEM DESTROYED, SHE DOESN’T – CONTINUING CONSENT NECESSARY AND IS INTENTION OF HFE ACT – DISPOSITION: APPEAL DISMISSED
Medical treatment – Human fertilisation – Embryo – Frozen stored embryos – Consent to treatment together of each of male and female gamete providers in treatment involving in vitro fertilisation, freezing and storage of embryos – Whether consent effective after couple separating – Whether implantation of embryo in female gamete provider ‘treatment together’ – Whether requirement for consent by both partners contrary to right to respect for private and family life and discriminatory – Human Fertilisation and Embryology Act 1990, Sch 3, para 6(3) – Human Rights Act 1998, Sch 1, Pt I, arts 8, 14

U v The Centre for Reproductive Medicine [2002] EWCA Civ 565, [2002] Lloyd’s Rep. Med 259 (CA)
Medical treatment – Human fertilisation – Posthumous use of sperm – Sperm removed from husband for wife’s in vitro fertilisation treatment – Husband initially signing form consenting to storage and use of sperm in the event of his death or incapacity – Clinic having ethical policy not to perform posthumous insemination – Husband being asked by clinic to alter form so as to withdraw consent (WIFE CLAIS UNDUE INFLUENCE)- Husband altering form – Husband dying unexpectedly – Clinic seeking permission to destroy sperm – Wife wishing to continue with in vitro fertilisation treatment using husband’s sperm – Wife contending that husband’s consent withdrawn as result of undue influence – Whether clinic entitled to destroy sperm – Human Fertilisation and Embryology Act 1990, Sch 3

R. (on the application of Quintavalle) v Secretary of State for Health [2001] 4 All E.R.1013

R (ex p. Quintavalle) v Secretary of State for Health [2002] QB 628, [2002] 2 WLR 550, [2002] 2 All ER 625, (2002) 64 BMLR 72 (CA)
Medical ethics — Abortion — Emergency contraception — Morning-after pill — Supply and use of drugs with intent to cause miscarriage — Whether morning-after pill abortifacient — Whether prescription, supply, administration or use of morning-after pill involving commission of offence — Offences against the Person Act 1861, ss 58, 59.
- Concluded that way embryos created, not as set out in Act., if apply purposive interpret of Act, this was something that was new state of affairs, the purpose was to regulate use of human embryos, so act must be read to include all embryos however created.

- cloned embryo not covered by HFEA Act 1990
- not using gametes, but enucleated egg
o isit fertilisation (cloning)
o is fertilization complete? No
- Cloning process does not include gametes
- No definition of fertilization
- Court decided that it did
o Because applied ‘purposive’ interpreration
• Intended to regulate ‘ex vivo’ human embryos
• When legislation produced not known, that could be possible to do (but had voted to include it)

R (on the application of Quintavalle) v Human Fertilisation and Embryology Authority [2003] 3 All ER 257
Medical ethics — Abortion — Emergency contraception — Morning-after pill — Supply and use of drugs with intent to cause miscarriage — Whether morning-after pill abortifacient — Whether prescription, supply, administration or use of morning-after pill involving commission of offence — Offences against the Person Act 1861, ss 58, 59.
- Concluded that way embryos created, not as set out in Act., if apply purposive interpret of Act, this was something that was new state of affairs, the purpose was to regulate use of human embryos, so act must be read to include all embryos however created.

Re R (A Child) (Contact: Human Fertilisation and Embryology Act 1990), (No. 2) [2003] 2 All ER 131, (2003) 71 BMLR 157 (CA)
Paternity — Declaration of paternity — Appeal against declaration — Child born after IVF treatment with donor sperm — Unmarried mother having started treatment together with partner — Parties having separated before implantation of embryo which resulted in birth of child — Whether former partner legal father of child — Human Fertilisation and Embryology Act 1990, s 28(3).
WAS NOT THE MAN’S SPERM; MAN RE-APPEALED UNDER S 28(3) OF THE 1990 ACT; APPEAL WAS GRANTED. – HE IS PARENT.

R v HFEA, (ex p. Assisted Reproduction and Gynaecology Centre and H) [2002] Lloyd’s Rep. Med 148, [2002] Fam Law 347 (CA)
Medical treatment – Human reproduction – Infertility – In vitro fertilisation – Statutory authority created to regulate treatment involving creation, keeping and use of human embryos outside the body – Authority’s code of practice precluding use of more than three embryos in one cycle – Clinic wishing to use more than three embryos in treatment of patient – Authority refusing to authorise treatment – Whether authority’s decision susceptible to judicial review – Human Fertilisation and Embryology Act 1990

R (ex p. Rose) v Secretary of State for Health (2003) 69 BMLR 83 CANT FIND
- now lives in Australia and discovered that she was a child of artificial insemination and tried to get info, but records had been destroyed
- by chance met someone in exactly same sitn
- for other child was governed by 1990 act
- wanted judicial review of sec of state not to reveal info, based on ECHR Art 8 and 14
- outcome: was breach of Art 8, but were not prepared to go any further and allow access (req sec of state to give info)
- did not say that they had a ‘right’, but had a ‘need’
- also concern for potential donor rights
- thought that might take further, but nothing has happened since then
- interesting as discussion weight placed on ‘need to know’
- European cases on adoption – local authority not releasing info on adoption
- Right to know ones family
- But didn’t go quite that far
- Have had statements from Gov about future intentions – will no longer be anonymous
- Will not have retrospective effect – privacy
- From April 2005 anyone who donates gametes will be told that info will be told, but only prospective – not until 2020s until that info will be able to access that info
- Children born up until that date will not be able to get the info
- No obligation to tell children
- Birth certificate will indicate legal parent
- HFEA gives a lot of info about legal parent, because common law does not function
- All it will say is ‘if you ask you will be told’ (and told more than people are currently told)

The Leeds Teaching Hospital NHS Trust v A & Others case [2003] EWHC 259 (QB)
Paternity — Determination — Declaration of paternity — Twins born after IVF treatment — Incorrect sperm used to inseminate egg — Identity of legal father — Whether certain statutory provisions applying to facts of the case — Whether statutory provisions incompatible with Convention rights — Human Rights Act 1998, Sch 1, Pt I, art 8 — Human Fertilisation and Embryology Act 1990, s 28(2) and (3).
TWO COUPLES – MIXED UP THE SPERM – 28(3) DID NOT APPLY, SINCE WERE NOT ‘TREATED TOGETHER’. TF. 28(2) DID NOT APPLY; SINCE FATHER DID NOT CONSENT TO ‘THIS’ TREATMENT, HE IS NOT REQUIRED TO BE LEGAL FATHER – INSURMOUNTABLE ISSUE IS ‘TO WHAT DID HE CONSENT’ – LITERAL INTERPRETATION OF ACT = A AS FATHER -
- Brian toft – set up inquiry about this clinic, which had a number of problems

Attorney General’s Reference 2 of 2003 [2004] 1 WLR 2062 (CA, Crim Div.)
Criminal evidence and procedure – Trial – Submission of no case to answer – Statutory offence – Keeping of embryos – Defendant having supervisory role pursuant to licence – Judge finding defendant not vicariously liable for embryologist having kept embryos – Reference by Attorney General – Ruling appropriate – Human Fertilisation and Embryology Act 1990, ss 3(1)(b), 17(1) and 41(2.

Thompson v Sheffield Fertility Clinic(QBD) 24 November 2000

Re T. (ADULT: REFUSAL OF TREATMENT)
[COURT OF APPEAL]
[1993] Fam 95
HEARING-DATES: 22, 23, 24, 30 July 1992
30 July 1992
CATCHWORDS:
Medical Practitioner – Medical treatment, consent to – Refusal of blood transfusion – Adult patient under sedation and in premature labour – Patient attended by relative opposed to blood transfusion – Transfusion later necessary – Whether refusal effective – Whether doctors entitled to treat in accordance with patient’s best interests

RE C (REFUSAL OF MEDICAL TREATMENT)
Family Division
[1994] 1 All ER 819, [1994] 1 WLR 290, [1994] 1 FLR 31, 15 BMLR 77, [1994] Fam Law 131, [1994] 2 FCR 151
HEARING-DATES: 14 October 1993
14 October 1993
CATCHWORDS:
Medical treatment — Adult patient suffering from mental illness — Capacity to refuse medical treatment — Jurisdiction of High Court to grant injunction or declaration relating to future medical treatment
Prisoner leg has gangrene, need to amputated, refuses to allow it. Injunction to prohibit hospital from amputating. Granted.

Re C [1985] FLR 846
Wardship – Surrogacy – Child conceived by artificial insemination – Natural father making commercial arrangement with agency and surrogate mother – Mother to relinquish parental rights and hand child over to the father and his wife – Local authority obtaining a place of safety order when child born – Father commencing wardship proceedings – Whether in best interests of child to be committed to care and control of the father and his wife.
SO THIS IS ONE OF THE EARLY CASES, WHICH IS WHY IT WAS BROUGHT TO COURT’S ATTENTION; kim cotton case?
Couple never actually met surrogate; fee of £13,000 –which went to kim cotton;
Kim Cotton
- gave birth to twins after first pregnancy; Re C; reported in Times in 1985
- controversy
- British surrogate
- American Couple
- payment
- Cotton case forced gov to react to public outcry
- Judge: wasn’t for court to decide on morality, but to decide what is best for child.

C v S 1996 SLT 1387 (sub nom C and C v GS 1996 SCLR 837). Cant find

Re an adoption application (surrogacy) [1987] 2 All ER 826
Adoption – Adoption order – Payment or reward – Proposed adopters entering into surrogacy agreement – Payments made to mother – Whether payment unlawful – Whether court having jurisdiction to authorise payments retroactively – Adoption Act 1958 (7 Eliz. 2, c. 5), s. 50(1)(3) (as amended by Children Act 1975 (c. 72), s. 108(1), Sch. 3, paras. 21(2)(4), 34
WOMAN RCEVIEVED £5,000 TWO YEARS EARLIER; COUPLES AGREED £10,000; MOTHER NOT MOTIAVTED BY MONEY; SURROGATE MUM WROTE A BOOK ABOUT IT – COMPROMISE PRIVACY; IS ADOPTION PERMISSIBLE?; NO LEGISLATION AT TIME OF INCIDENT; ADOPTION ORDER IS GRANTED; FIRST CASE OF ITS KIND IN UK COURT

Re W (minors) [1991] 1 FLR 385
CATCHWORDS:
Injunction — Children born by surrogacy arrangement — In vitro fertilisation — Welfare and best interests of wards — Whether terms of injunction should be varie

Re P (a minor) [1987] 2 FLR 421
Wardship — Surrogacy — Woman making surrogacy agreement to bear child for childless couple for payment — Woman bearing twins — Woman refusing to give up children — Factors to be considered in awarding custody

Re C (A Child) [2002] EWHC 157 (Fam Div)
Parental order — Surrogacy — Payment — Sum to cover expenses — Said to include loss of earnings — Surrogate mother had not been earning — Whether reasonable expenses — Whether payment could be authorised retrospectively

R (ex p. John Smeaton on Behalf of Society for the Protection of Unborn Children) v The Secretary of State for Health, Schering Health Care Limited, Family Planning Association 18 April 2002 QBD (Admin Ct) [2002] EWHC 610
Medical ethics — Abortion — Emergency contraception — Morning-after pill — Supply and use of drugs with intent to cause miscarriage — Whether morning-after pill abortifacient — Whether prescription, supply, administration or use of morning-after pill involving commission of offence — Offences against the Person Act 1861, ss 58, 59.

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830 (HL)
National health service — Family planning clinics — Contraception — Circular containing guidance to area health authorities — Legality of advice contained in circular — Advice given regarding contraception for girls under 16 — Whether doctor may give advice and treatment on contraception to girl under 16 without parental consent — Whether doctor committing criminal offence or acting unlawfully by giving advice on contraception to girl under 16 — Whether doctor interfering with parental rights — Sexual Offences Act 1956, ss 6(1 ), 28(1 ).
HEADNOTE:

origins in 1974 DHSS circular on family planning – contraceptives should be available more widely, to younger people – advice was that doctor could decide -if child did not want parents involved doctor patient confidentiality preserved – Victoria Gillick – wrote to Local HA seeking assurance that none of her daughters would be given contraceptive or abortion advice or treatment without her prior knowledge and consent until tehy were 16 – refused – went to court, seeking that DHSS advice was unlawful – only interested in contraception, but could not separate from other medical advice – two approaches – 1. challenged assump that comm law had ever permitted med treat of children under 16 in absense of parental consent – 2. argued that sinec under 16 sex crime, providing w contracpeiotn amounts to t crime of causiing or encouraging sex w under 16 – Woolf J rejected both claims – if child understood, could consent, – Court of Appeal found for Gillick – poss battery and infringe parental rights – since that decision, no doctor could safely see a child under 16 in clnic or surgery without parental knowledge – DHSS appealed and won – 3 issues – 1. gen prob of consent (parentall rights have changed (and are about duty to child), welfare of child most imp) – 2. special prob of contraceptin/abortion (court said doctor can make judgement, Gillick doubted they would have time! – 3. criminal law as it affects contraeption (court ocnsideed no crime, but failure to assess patient well might face action /

.

Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206 (HL)|

F v West Berkshire Area Health Authority [1989] 2 All ER 545 (HL)

Sterilisation — Mentally handicapped person — Consent — Female voluntary in-patient at mental health hospital — Patient having sexual relations with male patient and operation required to be performed on her in her best interests — Whether operation can lawfully be carried out despite inability of patient to consent — Whether court having jurisdiction to give or withhold consent to operation — Appropriate procedure to be adopted.

Medical practitioner — Trespass to the person — Consent to operation — Operation on or other treatment of person unable to give consent — Lawfulness of operation or other treatment — Operation or other treatment in person’s best interests — Whether operation or other treatment lawful — Whether lawful only if carried out to save life or to ensure improvement or prevent deterioration in physical or mental health.

Declaration — Jurisdiction — Declaration as to lawfulness of proposed conduct — Proposed medical treatment — Medical treatment of person unable to consent thereto — Mentally handicapped person — Sterilisation — Sterilisation in person’s best interests — Whether declaration necessary to establish lawfulness of sterilisation — How application for declaration should be made — Who should be parties to application — RSC Ord 15, r 16.

Mental health — Patient — Management of property and affairs of patient — Management by judicial authorities — Affairs — Whether ‘affairs of patient’ extending to medical treatment or limited to business affairs etc — Mental Health Act 1983, s 93(1).

Re S (Adult Patient: Sterilisation: Patient’s Best Interests), Also known as: Re SL (Adult Patient) (Medical Treatment) and as Re SL v SL [2001] Fam 15, [2000] 3 WLR 1288, [2000] 2 FLR 389, (2000) 55 BMLR 105 (CA)

Mental Disorder – Medical treatment, consent to – Sterilisation – Mentally handicapped woman unable to consent to operation – Application for declaration that sterilisation or hysterectomy lawful – Alternative of contraceptive device recommended by doctors – Whether in patient’s best interests

Re A (male sterilisation) (Mental Patient: Sterilisation), Also known as: Re A (Medical Treatment: Male Sterilisation) and as Re R-B (A Patient) v Official Solicitor and as Re RB (Male Patient: Sterilisation) [2000] 1 FLR 549, [2000] 1 FCR 193, (2000) 53 BMLR 66 (CA)

Subject: Health
Keywords: Learning disabilities; Vasectomy
Catchphrases: medical treatment; learning disabilities; sexually aware male with Down’s syndrome; operation not in best interests at present time

X (Adult Patient: Sterilisation) Also known as: Re X (Adult Sterilisation) [1998] 2 FLR 1124 [1999] 3 FCR 426, [1998] Fam Law 737

Medical treatment — Consent — Incapacity — Sterilisation — Risk of pregnancy — Patient’s best interests

E v Eve (1986), 31 DLR (4th) 1, (Supreme Court of Canada).

R v Bourne [1939] 1 KB 687
Criminal law–Procuring miscarriage–Defence that operation was to save life of mother–Probable effect of continuing pregnancy physical and mental wreck of mother–”For the purpose of preserving the life of the mother”–Offences Against the Person Act, 1861 (24 & 25 Vict. c. 100), s. 58.
GIRL OF 14 – VIOLENT RAPE – PARENT CONSENT TO ABORTION – DOCTOR WOULD NOT HAVE DONE IT IF HEALTH RISK TO MOTHER OR IF MOTHER HAD BROUGHT THIS ABOUT HERSELF THROUGH PROSTITUTION – BEST INTEREST OF MOTHER – FIRST COURT CASE LIKE THIS – IF NOT DONE IN GOOD FAITH TO PRESERVE LIFE OF GIRL, THEN GUILTY (DISPUTES WHAT ‘LIFE’ MEANS,SINCE CAN IMPLY HEALTH – JUDGE MAKES A CLEAR DISTINCTION BETWEEN THIS AND NON-PROFESSIONAL ABORTION, WHICH IS A MUCH MORE WORRYING SITUATION – NOT GUILTY

R v Collins and another, ex parte Brady
Queen’s Bench Division 58 BMLR 173
HEARING-DATES: 28 February, 2, 3, 10 March 2000 10 March 2000
CATCHWORDS:
Mental health — Detention under Mental Health Act 1983 — Applicant serving three life sentences for murder — On hunger strike in Ashworth special hospital — Being force fed — Whether such feeding lawful — Whether treatment for his mental disorder — Test for judicial review that of ‘super-Wednesbury’ — Mental Health Act 1983, s 63.

Paton v BPAS [1979] 1 QB 270
Abortion – Legal abortion – Power of husband to prevent wife having abortion – Wife obtaining necessary medical certificates for legal abortion – Wife wanting abortion – Husband applying for injunction to stop her having abortion – Whether injunction could be granted – Abortion Act 1967, s 1.
DOCTORS CONCERNED ABOUT RISK OF INJURY (PHYS, MENT) – FATHER CLAIMED RIGHT TO SAY – HELD: FATHER HAS NO RIGHT – COURT CANNOT ENFORCE LAWS ON PERSONAL FAMILY RELATIONSHIPS, EVEN IF THEY NEGATE MATRIMONIAL OBLIGATIONS – CLAIM DISMISSED

Paton v United Kingdom (1981) 3 EHRR 408 (ECHR) CANT FIND
APPLICANT SOUGHT INJUNCTION ON ABORTION – *C v S [1988] QB 135, [1987] 1 All ER 1230
Abortion — Legal abortion — Power of father to prevent mother having abortion — Unmarried mother 18 to 21 weeks pregnant — Mother wishing to have abortion — Mother obtaining necessary medical certificates for legal abortion — Father applying for injunction to stop abortion — Father contending that fetus old enough to be ‘capable of being born alive’ — Whether abortion in such circumstances constituting an offence — Whether injunction preventing abortion should be granted — Infant Life (Preservation) Act 1929, s 1(1) — Abortion Act 1967, s 1.
BORN ALIVE= REAL AND DISCERNAIBLE SIGNS OF LIFE I.E. PRIMITIVE CIRCULATION AND MOVEMENT IN LIMBS – WHETHER A CRIME – FETUS CANNOT HAVE CLAIM TO LIFE, UNTIL BORN – WHETHER VIABLE LIFE – IF CRIMINAL, BURDEN OF PROOF MUST BE ON PROSECUTION AND INCLUDEE MENS REA (CRIMINAL INTENT)

no breach of Article 2 in that case involving a 10-week foetus but left open whether because the foetus was not protected by the Article or because right not absolute in the light of the mother’s rights under Article 8.

Rance v Mid-Downs Health Authority (1990) 5 BMLR 75

CATCHWORDS:
Medical Practitioner – Abortion – Termination – Parent’s lost opportunity of abortion prior to birth of severely handicapped child – Legality of abortion – Whether child “capable of being born alive” – Whether medical practitioner negligent in failing to detect abnormal foetus – Infant Life (Preservation) Act 1929 (19 & 20 Geo. 5, c. 34), s. 1 – Abortion Act 1967 (c. 87), ss. 1(1)(b), 5(1)

C v S 1987
QUEEN’S BENCH DIVISION
[1987] 1 All ER 1230, [1987] 2 FLR 505, [1987] Fam Law 269, 2 BMLR 143
HEARING-DATES: 17, 18, 20, 21, 23 FEBRUARY 1987
23 February 1987
CATCHWORDS:
Abortion — Legal abortion — Power of father to prevent mother having abortion — Unmarried mother 18 to 21 weeks pregnant — Mother wishing to have abortion — Mother obtaining necessary medical certificates for legal abortion — Father applying for injunction to stop abortion — Father contending that fetus old enough to be ‘capable of being born alive’ — Whether abortion in such circumstances constituting an offence — Whether injunction preventing abortion should be granted — Infant Life (Preservation) Act 1929, s 1(1) — Abortion Act 1967, s 1.
Abortion — Legal abortion — Power of father to prevent mother having abortion — Locus standi — Unmarried mother wishing to terminate pregnancy — Father applying for injunction restraining termination — Father applying as next friend of child en ventre sa magere — Whether father having locus standi to apply as next friend of child — Whether child en ventre sa magere having any right to be party to such proceedings.
Court of Appeal — Judgment — Effect — Act done in reliance on judgment of Court of Appeal — Judgment given in circumstances of real emergency — Whether parties entitled to act in reliance on judgment without waiting to see if there will be appeal to House of Lords.

Kelly v Kelly [1997] 2 FLR 828, 1997 SLT 896 CS(IH)
Abortion — Scotland — Husband seeking order restraining estranged wife from terminating pregnancy — Abortion otherwise lawful and in accordance with Abortion Act 1967 — Whether rights of child enjoyed after birth could be invoked before birth — Whether foetus had independent legal persona
NO, SINCE THIS RIGHT WOULD INVALIDATE THE ABORTION ACT 1967, WHICH WAS TO PROTECT WOMAN’S RIGHT -

HMA v Anderson 1928 JC 1, 1927 SLT 651

CATCHWORDS: Crime-Procuring abortion-Attempt to procure abortion-Supplying powders to pregnant woman and instigating her to take them with intent to cause abortion-Powders not stated to be noxious-Relevancy.
Crime-Procuring abortion-Acting with intent to procure abortion-Supplying powders to woman and instigating her to take them with intent to cause abortion-No statement that woman was pregnant-Relevancy.
Crime-Procuring abortion-Attempt to procure abortion-Supplying drugs-Drugs known to supplier to be incapable of causing abortion.

HMA v Semple 1937 JC 41, 1937 SLT 48

VO v France application no 53924/00 8 July 2004 (ECHR) CANT FIND

Jepson v Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318 available at westlaw.

Representation
Mr Richard Gordon QC and Mr Charles Foster (instructed by Coningsbys, 87/89 High Street, Croydon CR9 1XE) appeared on behalf of the Claimant.
Miss G Kent (instructed by Solicitor to the Force, West Mercia Constabulary) appeared on behalf of the Defendant.
JUDGMENT
MR JUSTICE JACKSON:
1. This is an application for permission to proceed with a claim for judicial review. The facts giving rise to this application are as follows.
2. During 2001, in the Birmingham area, an abortion was carried out of a foetus which was of more than 24 weeks gestation. The foetus in question had been diagnosed by ultrasound techniques as suffering from a bilateral cleft lip and palate. This abortion was carried out pursuant to section 1(1)(d) of the Abortion Act 1967. That provides:

Roe v Wade (1973) 410 US 113

Planned Parenthood of Southeastern Pennsylvania v Casey (1992) 112 S.Ct. 2791

Thornburgh v American College of Obstetricians and Gynaecologists (1986) 106 S.Ct 2169

Webster v Reproductive Health Services Inc. (1989) 109 S.Ct. 3040

Ohio v Akron Center for Reproductive Health (1990) 497 S.Ct 502

McClusky v HM Advocate 1989 SLT 175
Justiciary–Statutory offence–Causing death by reckless driving–Relevancy– Victim sustaining injuries in utero and being born alive, then dying of injuries–Whether contravention of statute–Road Traffic
THIS IS A CASE OF APPEAL: IT WAS DECIDE THAT THERE IS GROUNDS FOR INJURY OF UNBORN CHILD, BUT THE DEFENDANT APPEALED. THIS CASE REJECTS THAT APPEAL –
VICTIM IS CHILD OF 35 WKS GESTATION – SUSTAINED INJURIES AS RESULT OF HAVING TO BE DELIVERED ALIVE (DIED SOON AFTER) – AND INJURIES TO MOTHER – APPEAL REVUSED SINCE 1972 ACT DID NOT – HINGES ON WHETHER INCLUDES ONLY ‘INDEPENDENT LIFE’ AT THE TIME – RAISES Q OF LINE DRAWING: SHOULD WECOMPENSATE FOR A CHILD, WHO IS JUST VIABLE? – IMPORTANCE GIVEN TO DEATH OF ‘ANOTHER PERSON’ – CONCLUSION: MANSLAUGHTER
“charge was irrelevant on the ground that the 1972 [ROAD TRAFFIC] Act was concerned solely with causing the death of a person who was in independent life at the time of the act of reckless driving”
*176 Statutory provisionsThe Road Traffic Act 1972 provides inter alia:
“1. A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence.”
IN THIS CASE, THE JURY WOULD BE DIRECTED
JUDGES DECIDED THAT WAS A RELEVANT PETITION
DID NOT KNOW HOW TO RULE AND REQUESTED WIEGIE BOARD – WHICH WAS DISMISSED.

B v Croydon Health Authority
COURT OF APPEAL, CIVIL DIVISION
[1995] Fam 133, [1995] 1 All ER 683, [1995] 2 WLR 294, [1995] 1 FLR 470, [1995] Fam Law 244, [1995] 1 FCR 662, 22 BMLR 13
HEARING-DATES: 24, 25 October, 29 November 1994
29 November 1994
CATCHWORDS:
Medical treatment – Adult patient – Consent to treatment – Force feeding – Mentally ill patient refusing to eat – Patient applying for injunction to restrain health authority from feeding her without consent – Whether feeding by nasogastric tube constituting ‘medical treatment . . . for the mental disorder’ – Whether treatment without consent lawful – Mental Health Act 1983, ss 3, 58, 62, 63, 145.

Re L (patient: non-consensual treatment)
Family Division
[1997] FLR 837, 35 BMLR 44
HEARING-DATES: 13 December 1996
13 December 1996
CATCHWORDS:
Medical treatment — Refusal of consent — Adult female patient in obstructed labour at end of normal pregnancy — Caesarian section delivery strongly indicated to save life of the fetus — Patient willing to undergo a caesarian section, but would not consent to intravenous transfusion of anaesthesia — Needle phobia — Anaesthesia by gas inhalation contra-indicated — Whether patient incapable of weighing information as to risks and consequences due to needle phobia — Whether patient competent to refuse treatment.

Burton v Islington Health Authority [1992] 3 All ER 833 (CA)
Negligence – Duty of care to whom? – Child, unborn – Plaintiff’s mother undergoing medical treatment when pregnant – Plaintiff born in 1967 with abnormalities – Whether plaintiff having cause of action in negligence
MOTHER OF BURTON UNDERWENT GYN OP IN 1966 AND IN 1988 COMMENCED ACTION FOR DAMAGE ON NEGLIGENCE – NO CAUSE OF ACTION – SUBSEQUENTLY BURTON CLAIMED NEGLIGENCE WHEN MOTHER IN LABOUR, RESULTING IN DISABLMENT – CAUSE OF ACTION GRANTED IN THIS CASE. HEALTH AUTHORITY APPEALED THIS DECISION AND WAS REJECTED, THOUGH SUCH CLAIMS NOT RECOGNISED PRIOR TO ENACTMENT OF CONGENITAL DISABILITIES (CIVIL LIABILITY) ACT 1976 – CIVIL LIABILITY ACT DID NOT APPLY IN THIS CASE (?)
CONSIDERED THAT DUTY OF CARE MUST PRECEDE DAMAGE CLAIM – CANNOT HAVE DAMAGE LIABILITY TO SOMETHING FOR WHICH THERE IS NO ESTABLISHED DUTY OF CARE – ANALOGY OF ‘TRAIN COMPANY’ – REASONABLE CARE, NOT ABSOLUTE SAFETY AND CONTRACT TO ‘PASSENGER’ (IF PASSENGER HAS PAID FOR ONE, AND IS, IN FACT, 2, THEN THIS CANNOT BE THE TRAIN COMPANIES LIABILITY – RELIED ON WHO ASSUMES DUTY OF CARE – CAN ONLY BE MOTHER IN THIS CASE.
BUT MUST COMPENSATE FOR THE INJURY SUFFERED, SO TO OVERLOOK THIS CLAIM IS UNSATISFACTORY.
“potential relationship capable of imposing a duty on the defendant in relation to the child if and when born”

Re S (adult: refusal of medical treatment) [1992] 4 All ER 671
Medical Practitioner – Medical treatment, consent to – Refusal of Caesarean section – Adult woman in obstructed labour – Lives of mother and unborn child at risk – Refusal of consent to Caesarean section on religious grounds – Whether declaration to be granted enabling operation to be performed
OPEN TO COURT – JUDGE AGRESS THAT SHOULD OVERRIDE MOTHER DECISION – BECAUSE FUNDAMENTAL QUESTION IS LEFT OPEN IN PREVIOUS CASE RE T, NO ENGLISH AUTHORITY WHICH IS DIRECTLY IN POINT

Re Attorney General’s Reference (No. 3 of 1994) [1996] 2 All ER 10

Re MB (1997) 38 BMLR 175 (CA)
Treatment without consent — Pregnant woman — Foetus in breech position — Caesarian section indicated — Woman refused consent to induction of anaesthesia by injection — Needle phobia — Whether lawful to inject without consent — Best interests — Guide lines for future cases — Appeal
WE HAVE DISCUSSED THIS BEFORE – OVERRULE HER DECISION, DESPITE COMPETENCE – JUDGE RULED HER INCOMPETENT – PERMIT APPEAL (WHY? TO ACKNOWLEDGE CLAIM)

St George’s Healthcare NHS Trust v S (No.2) [1998] 3 All ER 673, R v Collins, ex p S (No.2) [1998] 3 WLR 936 (CA)
Medical treatment – Adult patient – Consent to treatment – Right to refuse treatment – Patient 36 weeks pregnant diagnosed with pre-eclampsia and advised she needed to be admitted to hospital for an induced delivery – Patient rejecting advice as wishing her baby to be born naturally – Patient admitted against her will to mental hospital and later transferred to general hospital – Judge on ex parte application disposing with patient’s consent to medical treatment and patient delivered of baby by Caesarean section – Patient transferred back to mental hospital and later discharged herself – Whether judge right in dispensing with patient’s consent – Whether patient’s detention, treatment and transfer lawful – Mental Health Act 1983, s 2

Norfolk and Norwich Health Care (NHS) Trust v W [1996] 2 FLR 613, [1997] 1 FCR 269, (1996) 34 BMLR 16

Tameside and Glossop Acute Services Trust v CH (a patient) [1996] 1 FLR 762, 31 BMLR 93, [1996] Fam Law 353, (1996) 31 BMLR 93

Medical treatment — Mental disorder — Patient compulsorily detained under Mental Health Act 1983 — Pregnant patient resisting treatment needed to save child — Hospital seeking declaration authorising treatment using force if necessary — Whether court having power to authorise force as incident of treatment — Mental Health Act 1983, s 63
HEADNOTE:

Re F (in Utero) [1988] FCR 529; [1988] Fam 122 (CA)

Ward of court — Jurisdiction — Unborn child — Whether court has jurisdiction to make an unborn child a ward of court.

McKay v Essex AHA [1982] 2 All ER 771, CA.
Negligence – Duty of care to whom? – Child, unborn – Mother suffering from rubella during pregnancy – Child born disabled – Doctors not advising mother to have abortion – Child’s claim for wrongful life – Whether to be struck out as disclosing no reasonable cause of action – R.S.C., Ord. 18, r. 19 (1) (a)
FIRST CASE ON WRONGFUL LIFE – NEGLIGENCE OF DEFENDENTS (HA AND DOCTOR) – DID NOT ADVISE – NO CAUSE – CONGENITAL DISABILITIES CIV LIAB ACT 1976 N.3 DID NOT APPLY (I.E. COULD NOT LIMIT CLAIM), SINCE OCCURRED BEFORE PASSSING OF ACT, BUT DOUBTED WHETHER ACT COULD AFFECT CLAIMS ANYWAY – CHILD’S CLAIM NOT A COMPLAINT THAT HAD BEEN BORN (WRONGFUL LIFE), BUT THAT HAD BEEN BORN WITH DEFORMITIES – SET ASIDE MASTER ORDER ON GROUND THAT CHILD HAD IN RESPECT OF CLAIM A HIGHLY REASONABLE AND ARGUABLE CAUSE OF ACTION – CLAIM CONTRARY TO PUBLIC POLICY AS VIOLATION OF SANCTITY OF HUMAN LIFE AND COULD NOT BE RECOGNISED AND ENFORCED SINCE CANNOT EVALUATE NON-EXISTENCE FOR PURPOSE OF AWARDING DAMAGES FOR DENIAL OF IT – NO REASONABLE CAUSE OF ACTION
IN THE EYES OF THE LAW, A DISABLED LIFE IS BETTER THAN NO LIFE, SO NO DUTY TO TERMINATE

Turpin v Sortini 31 Cal.3d 220, 643 P.2d 954, 182 Cal.Rptr.337 (1982). (US case available on Westlaw).

Harbeson v Parke-Davis Inc 98 Wash.2d 460, 656 P.2d 483 (1983) (US case available on Westlaw).

Procanik v Cillo 97 NJ 339, 478 A.2d 755 (1984) (US case available on Westlaw).
In these 3 case
- did they allow recovery of damages?
- Washington California New Jersey
o Not award for being alive
o But will award for disability (special damages)
- If being disabled not a loss, then how can costs not be coverable
- Will not allow general damages, but will allow pecuniary losses attributed to being disabled
- Different to justify on loss
- If you say there is no loss, how can you found claim? (|relies on fact of being born)
- Not maby states in US permit wrongful life claims
What are implications of accepting wrongful life?
- defensive medicine
- doctors being more pro abortion
- alter info counselling
- stigma of illegitimacy?
- How disabled do you have to be to make claim?
- How limit claims?
Closed off in except one sitn:
- Congen disab Liab Act closes of Wrongful life, except for amendment a few years ago as result of HFEA Act?
o Related to negligence in selecting and transferring embryos
o If selecting embryos and can found claim on Congen Disab on basisof selecting embryos, if make mistake on selection, then is negligent act.
o Child had no option but to be born with disab that they have
o Statutory stated poss of wrongful life claim
o Goes contrary to spirit of discussions
o Unclear to what extent court prepared to bend rules.
o But drafting does leave possibility bought by child who had no option but to be born this way due to selection
How could gamete be selected negligently?
- screening gametes to see which have a disorder, and pick the wrong one
- liability excluded when one parent knows of risk of disability
- but depends, if told that screened and selected and negligence clear
- but if they select one that doesn’t have trait, and estab negligence in chosing, then there is a claim
- if you cant prove negligence, no claim
- cannot demand thatmother has abortion
- issue here is wrongful conception
- not just about info disclosure (i.e. risk), but also to negligent process
- but how prove negligence? Standard practice.

McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 3 WLR 1301; [1999] 4 All ER 961; [2000] SLT 154; [2000] Lloyd’s LR Med 1, HL.
Damages – Unwanted pregnancy – Negligence – Husband having vasectomy – Doctor advising husband that he could dispense with use of contraceptives – Wife becoming pregnant and giving birth to healthy child – Whether damages recoverable for pain and distress suffered during unwanted pregnancy – Whether damages recoverable for cost of rearing healthy child
DISMISSED BOTH SINCE DAMAGES IRRECOVERABLE IN PRINCIPLE – REVERSE DECISION ASKED TO PROVE LOSS AND DAMAGE – BOARD APPEALED – WHERE NEGLIGENCE AND BIRTH OF HEALTHY CHILD, PARENTS NOT ENTITLED FOR COSTS OF REARING, BUT MOTHER ENTITLED DAMAGES FOR DISTRESS SUFFERED DURING PREGNANCY AND FINANCIAL LOSS DURING PREGNANCY – REJECTED ON PRINCIPLE OF DISTRIBUTIVE JUSTICE (JUST DISTRIB OF BURDENS AND LOSSES AMOING MEMBERS O SOC

Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2001] 3 All ER 97, CA.
Damages — Unwanted pregnancy — Negligence — Hospital performing sterilisation operation on woman negligently — Woman becoming pregnant and giving birth to child with behavioural difficulties — Whether damages recoverable for cost of rearing disabled child conceived as a result of negligently-performed sterilisation — Whether damages limited to costs of special needs and care attributable to child’s disabilities.
PERMITTED DAMAGES FOR SPECIAL NEEDS PROVISION, BUT NOT MAINTENANCE – FORSEEABILITY AND PROXIMITY TESTS SATISFIED – ARGUED UNDER PRINCIOPLES OF DISTRIBUTIVE JUSTICE – PLUS ADDITIONAL POINT BY JUSTICE HAYLE – DEEMED EQUILIBRIUM ONLY WORKS WHEN HEALTHY CHILD, WHEN DO NOT, THEN DOESN’T WORK, SO AWARD EXTRA BIT FOR DISABILITY – NEEDS BASED ASSESSMENT

Rees v Darlington Memorial Hospital [2002] EWCA Civ 88; [2002] 2 WLR 1483

signif point is that court acknwledgeda wrong and made an aaward

Rees v. Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2003] 3 W.LR. 1091, HL
Negligence – Duty of care to whom? – Birth of child – Pregnancy occurring after mother’s sterilisation – Mother with severe visual handicap giving birth to healthy child – Whether damages recoverable for extra costs of child’s maintenance attributable to mother’s disability
DISABLED MUM,HEALTHY BABY – NEGLIGENT STERILISATION CASE AS WELL – GAVE HER PART OF GENERAL DAMAGES – CONCERN ABOUT INFRINGEMENT OF PEROSNAL AUTONOMY – (DIFFERENT BETWEEN INFRINGING PERSONAL AUTNONY, AND AWARDING ON BAIS OF COSTS OF CHILD) – THEY GAVE MONEY TO RECOGNISE AUTONOMY INFRINGEMENT, BUT NOT COSTS OF CHILD.
How would this reflect on McFarlane?
- should also have same judgement
- is poss for house of lords to overrule own judgement
- court of appeal bound by house of lords
- house of lords reconsidered in Rees, and tried to find some way of giving compensation, but not want to overrule McFarlane
- they awarded £15,000
can you appeal case in house of lords?
- no. once disposed of, cannot do that
- only poss from house of lords is on human rights issue to Strasburg, only on basis of point of law
legislation supersedes common law
- but in Scot, not case if in contravention with ECHR
Rees case disproved equilibrium
House of lords has said you don’t get recovery for healthy child
- they only said you get compensation for

LAW HOSPITAL NHS TRUST v LORD ADVOCATE AND OTHERS
COURT OF SESSION: INNER HOUSE (COURT OF FIVE JUDGES)
1996 SLT 848, 1996 SCLR 491
22 March 1996
CATCHWORDS: Medical treatment — Withdrawal of treatment — Patient in persistent vegetative state with no hope of recovery — Whether in patient’s best interests not to prolong her life — Whether lawful to withdraw medical treatment and to allow patient to die
Process — Court of Session — Parens patriae jurisdiction — Application for authority to discontinue treatment for patient in persistent vegetative state with no hope of recovery — Form of application and test to be applied

Airedale NHS Trust v Bland [1993] AC 789; [1993] 2 WLR 316; [1993] 1 All ER 821, HL
Medical treatment – Withdrawal of treatment – Insensate patient – Patient in persistent vegetative state with no hope of recovery – Whether in patient’s best interests not to prolong his life – Whether continuance of medical care would confer any benefit on patient – Whether lawful to withdraw life support and allow patient to die [BREACH DUTY OF CARE AND CRIMINAL]
Declaration – Procedure – Declaration as to lawfulness of proposed conduct – Proposed medical treatment – Withdrawal of treatment – Insensate patient – Patient in persistent vegetative state with no hope of recovery – Guidance of court to be sought in all cases by way of application for declaration before life-prolonging treatment withheld from patient.
“if the continuance of an intrusive life support system was not in the patient’s best interests the doctor was no longer under a duty to maintain the patient’s life”
My Notes
Bland – Hillsborough disaster survivor, but here the term persistent vegetative state is used.

NHS Trust A v M; NHS Trust B v H [2001] 2 WLR 942; [2001] Lloyd’s Law Reports Medical 28
Medical Treatment — Withdrawal of treatment — Insensate patients — Patient in persistent vegetative state without hope of recovery — Whether withdrawal of artificial nutrition and hydration from patients in permanent vegetative state infringing right to life — Whether withdrawal or continuance of such nutrition constituting inhuman or degrading treatment — Human Rights Act 1998, Sch 1, arts 2, 3.
My Notes
Not a deliberative act, so not . best interests applied

a hospital sought permission to discontinue artificial hydration and nutrition to a person, who in 1997 had been diagnosed as being in a “permanent vegetative state”. The Court noted that Article 2 imposed a positive obligation to give treatment where that is in the best interests of the patient – but not where it would be futile. Discontinuing treatment would not be an intentional deprivation of life under Article 2; and provided that withdrawing treatment was in line with a respected body of medical opinion, that the patient would be unaware of the treatment and not suffering, there would be no torture under Article 3.

The trusts, supported by the patients’ families, both sought declarations that it would be lawful to withdraw artificial nutrition and hydration from patients in a
permanent vegetative state (PVS).19 Dame Butler-Sloss P held that continuing nutrition and hydration would not be in the best interests of either patient.
However, before granting the declarations sought, the President argued that the
principles established by the House of Lords in Airedale NHS Trust v Bland20 had
to be reconsidered under the provisions of the Human Rights Act (HRA) 1998.21

R (on the Application of Burke) v GMC [2004] EWHC 1879 /

Medical treatment — General Medical Council’s guidance — Withdrawal of artificial nutrition and hydration — Absence of consent to withdrawal — Circumstances in which treatment could be withdrawn — Lawfulness of guidance — Scope of doctor’s duty of care when patient objected to withdrawal of treatment — Power of the court to grant declaratory and mandatory relief against a doctor or health authority — Whether withdrawal of life-sustaining treatment a breach of patient’s human rights — Human Rights Act 1998, Sch 1, Pt I, arts 2, 3 and 8.

R v Secretary of State for Social Services, ex parte Hincks (1979) 123 Sol Jo 436, (1980) 1 BMLR 93, CA /

National Health Service — Duty of Secretary of State — Duty to provide services — Delay in provision — Funding shortfall — Whether Secretary of State in breach of duty — National Health Service Act 1977, s 3(1)

R v Central Birmingham Health Authority, ex parte Walker (1992) 3 BMLR 32, CA /

R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 /

Medical treatment – Withdrawal of treatment – Refusal to allocate funds – Judicial review – Minor aged 10 years – Minor suffering from acute myeloid leukaemia – Doctors in charge of minor’s treatment advising that no further treatment could usefully be administered – Medical experts retained by minor’s father advising that further treatment worthwhile – Health authority refusing to fund further treatment – Whether decision lawful – Role of courts in determining whether health authority’s decision lawful.

Re C (Adult: Refusal of treatment) [1994] WLR 290, [1994] 1 All ER 819

Medical treatment — Adult patient suffering from mental illness — Capacity to refuse medical treatment — Jurisdiction of High Court to grant injunction or declaration relating to future medical treatment

THIS IS THE CASE THAT PERMITTED THE PATIENT A RIGHT TO SELF-DETERMINATION
“The patient was an adult detained in Broadmoor mental hospital. He had gangrene in his left leg and the doctors considered that amputation was necessary to save his life. He refused such treatment. Although he was a paranoid schizophrenic his mental illness did not render him automatically incapable of making a decision about his medical treatment.
Although C believed that he was a world-renown doctor, the experts considered that he passed the 3-stage test therefore he had capacity to decide about his medical treatment.”

Re B (a minor) [1981] 1 WLR 1421, [1990] 3 All ER 206

Whether operation in best interests of child – downs syndrome and intestinal blockage, fatal within days if not operated – parents: kinder to let child die – ward of court applied for authorisation to operate – judge respected parents’ wishes – relevant question was whether operation in best interests of child, not whether parents wishes should be respected – had not been demonstrated that life of mongol was such that should be condemned to die and operation should be performed

Re J (a minor) (medical treatment) [1992] 3 WLR 507, [1992] 4 All ER 614, 9 BMLR 10

Re J (a minor) [1991] 2 WLR 140, [1990] 3 All ER 930, 6 BMLR 25
Children–Court’s inherent jurisdiction—Medical treatment–Profoundly handicapped baby
suffering intermittent convulsions—Clinical decision precluding future resuscitation by
mechanical ventilation–Order directing health authority to require adoption of such procedures pending full hearing– Whether mandatory injunctive relief appropriate
CHILD HAD SERIOUS HEAD INJURY AT ONE MONTH – PROFOUNDLY MENTALLY/PHYSICALLY HANDICAPPED – UNLIKELY TO DEVELOP – SHORT LIFE EXPECTANCY – CONVULSIVE – WHETHER ARTIFICIAL SUPPORT PROVIDED – MOTHER WANTED IT – JUDGE DECIDED THAT SHOULD MAINTAIN LIFE – WHETHER DOCTOR SHOULD BE REQUIRED TO PROVIDE SUPPORT – DECIDED THAT THEY SHOULD NOT, WHICH IS AN ENDORSEMENT OF STATUS QUO – TO MAINTAIN DOCTORS’ INTEGRITY.DECISION ALLOWS DOCTORS TO REFUSE LIFE SUPPORT
Minor–Ward of court—Medical treatment–Profoundly handicapped baby suffering intermittent convulsions–Treatment to preclude future resuscitation by mechanical ventilation–Whether in child’s best interests
Prognosis: short life, spastic quadriplegic, probably without sight, hearing, or speech. Only normal reaction would be pain – strong favour towards preserving life – no reliable progosis

Re T (a minor) (wardship: medical treatment) [1997] 1 WLR 242, [1997] 1 All ER 906, 35 BMLR 63
Child born with life threatening liver defect, required transplant – mother refused to consent to avoid stress to child – judge ruled against mother – best interest of child to have surgery – mother appealed – decision flawed, since was court’s consideration should have been reasonableness of mothers decision, but they ruled on best interests of child – best interests of child were that future be left to parents to decide

A National Health Service Trust v D & Ors (2000) 55 BMLR 19
Child 19 months – best interest to let child die with dignity and peacefully – whether in best interest to place on ventilate and subject to care – doctor’s judgment should prevail

Glass v United Kingdom (61827/00) [2004] 1 F.L.R. 1019
Disabled persons; Informed consent; Interference; Just satisfaction; Learning disabled
persons; Legitimate aim; Medical treatment; Necessary in a democratic society; Prescribed
by law; Right to respect for private and family life
David severely handicapped (ment/phys) – needs venilator – dying – family believed he was being covertly euthanised – fight in ward and mother successfully resuscitated him – placed DNR notice without mother’s knowledge interfered with rights under Art.8. (respect for private life – also leaving to doctor’s discretion was inadequate basis on which to ensure respect for right of vulnerable patent (under Art.41)

R v Arthur (1981) 12 BMLR 1

Attempted murder — Doctor — Down’s syndrome neonate — Causation — Intent — Letting die — Wishes of parents — Non-treatment regime — Dihydrocodeine (DF 118) — Clinical judgment — Recognised medical practice — Direction to jury.

Re C (a minor) (wardship: medical treatment) [1989] 3 WLR 240, [1989] 2 All ER 782

Minor–Ward of court–Jurisdiction–Injunction–Terminally ill hydrocephalic baby–Order preventing identification of all involved in ward’s former and current care–Whether injunction necessary in interests of ward

Re C (a baby) (1996) 32 BMLR 44

Medical treatment — Child — Wardship — Child developing meningitis and brain damage — Child artificially ventilated — Whether leave should be granted to discontinue artificial ventilation
Wardship — Child developing meningitis and brain damage — Child artificially ventilated — Whether leave should be granted to discontinue artificial ventilation

Re C (A Minor) (Withdrawal of Lifesaving Treatment) (1997) 40 BMLR 31

Child — Medical treatment — Child aged 16 months suffering from fatal disease — Requiring artificial ventilation when suffering respiratory arrest — Doctors of opinion that in event of further respiratory arrest ventilation should not be reintroduced — Parents unable to agree to this course — Hospital trust applying for order giving leave for child to be treated as advised by consultant responsible for child.

Case note Re C (a minor) ( medical treatment) (1998) 6(1) Medical Law Review 99-103.

doctors: ‘no chance case – wanted to withdraw ventiltor support and allow to die with care – parents orthodox jews felt unable to consent to this – C appeared to smile at parents – Official Solicitor appears as a micus curiae – hospital applied to approve – held, grantindeclaration

Case note A National Health Service Trust v D & Ors (2000) 8(3) Medical Law Review 339-342

severe handicapped 19month child, irreversible lung disease, heart failure, etc – life expectancy one year – learned to smile and wave – nhs trust sought application not to resusictate opposed by parents – sought ward of court – granted -

Attorney General v Able and others [1984] 1 QB 795
Crime–Suicide–Aiding and abetting–Booklet containing practical
instruction for persons contemplating suicide–Whether supply of booklet
conduct amounting to aiding, abetting, counselling or procuring suicide–
Suicide Act 1961 (9 & 10 Eliz. 2, c. 60), s. 2(1)

R. (on the application of Pretty) v DPP [2001] 3 W.L.R. 1598

The Director of Public Prosecutions did not have the power to give an undertaking that he would not consent to prosecute the husband of a terminally-ill woman if he helped his wife to commit suicide. Following an unsuccessful appeal, Mrs Pretty took her case to the European Court of Human Rights (Application no. 2346/02), where judgement went against her on 29 April 2002. Mrs Pretty died unaided on 12 May 2002.

Pretty v United Kingdom [2002] 2 F.L.R. 45
Right to assisted suicide for motor neurone disease sufferer – claimed obstruction to be biolation of Arts2 (right to life, 3, 8, 9 and 14 of Euro Convention for Human Rihts – court says Art2 (right to life) art 3 (freedom from torture and other inhuman or degrading treatment or punishment), art 8 (right to respect for private and family life) art 9 (freedom of thought, conscience and religion) art 14 (protection from discrim)

Pretty v Director of…2002
R (on the application of Pretty) v Director of Public Prosecutions
HOUSE OF LORDS
[2001] UKHL 61, [2002] 1 All ER 1, [2001] 3 WLR 1598, [2002] 1 FCR 1, [2002] Fam Law 170, 63 BMLR 1
HEARING-DATES: 14, 15, 29 November 2001
29 November 2001
CATCHWORDS:
Criminal law — Suicide — Liability for complicity in another’s suicide — Claimant suffering from terminal disease and wishing to commit suicide — Claimant’s condition preventing her from committing suicide — Claimant seeking undertaking from DPP that husband would not be prosecuted if he assisted her to commit suicide — DPP refusing to give undertaking — Whether human rights convention requiring state to legalise assisted suicide — Suicide Act 1961, s 2 — Human Rights Act 1998, Sch 1, Pt I, arts 2, 3, 8, 9, 14.
Criminal law — Proceedings — Director of Public Prosecutions — Whether DPP having power to give prior undertaking not to prosecute.

Pretty v United Kingdom 2002
v United Kingdom (App no 2346/02)
EUROPEAN COURT OF HUMAN RIGHTS (FOURTH SECTION)
[2002] 2 FLR 45, [2002] 2 FCR 97, 66 BMLR 147
HEARING-DATES: 19 March, 29 April 2002
29 April 2002
CATCHWORDS:
Criminal law — Suicide — Liability for complicity in another’s suicide — Claimant suffering from terminal disease and wishing to commit suicide — Claimant’s condition preventing her from committing suicide — Claimant seeking undertaking from DPP that husband would not be prosecuted if he assisted her to commit suicide — DPP refusing to give undertaking — Whether Human Rights Convention requiring state to legalise assisted suicide — Suicide Act 1961, s 2 — Human Rights Act 1998, Sch 1, Pt I, arts 2, 3, 8, 9, 14.

R v Cox 1992
Crown Court at Winchester
12 BMLR 38
HEARING-DATES: 18, 19 September 1992
19 September 1992
CATCHWORDS:
Trial — Attempted murder — Doctor administering lethal dose to dying patient — Intention — Primary purpose of doctor — Whether therapeutic pain relief or in order to end patient’s life.
The accused, a consultant rheumatologist at the Royal Hampshire County Hospital, was indicted on a charge of the attempted murder of his patient, Lillian Boyes, on 16 August 1991. The patient was dying and in great pain. A short time before her death the accused intravenously administered to her an undiluted injection of two ampoules of potassium chloride. The prosecution led evidence that, injected in that manner and in that quantity, the drug had no therapeutic property and that the accused’s intention in so administrating it was to end the life of his patient. The defence argued that the primary purpose of the accused was to relieve the pain of the dying patient and therefore that there was no intention to kill Lillian Boyes. The trial took place before Ognall J and a jury.

R v Reed [1982] Crim LR 819

R v Bodkin Adams [1957] Crim LR 365 – double effect
sets out principle of ‘double effect’

R v Cox (1992) 12 BMLR 38
- Trial — Attempted murder — Doctor administering lethal dose to dying patient — Intention — Primary purpose of doctor — Whether therapeutic pain relief or in order to end patient’s life.

Re A (children) (conjoined twins: surgical separation) (2000)Family Division
57 BMLR 1
HEARING-DATES: 25 August 2000
25 August 2000
CATCHWORDS:
Medical treatment — Child — Whether lawful to separate ischiopagus conjoined twins leading to death of one — Both to die within months if left united — Whether life of doomed twin worth living — Whether in doomed twin’s best interests not to live short life of suffering — Parents opposed to surgical separation on religious grounds — Unanimous medical opinion supported separation — Declaration sought that separation would be lawful — Inherent jurisdiction of the High Court — European Convention on Human Rights, art 2.

Re A (children) (conjoined twins: surgical separation) [2001] 57 BMLR 1
Medical treatment — Child — Whether lawful to separate ischiopagus conjoined twins leading to death of one — Both to die within months if left united — Whether life of doomed twin worth living — Whether in doomed twin’s best interests not to live short life of suffering — Parents opposed to surgical separation on religious grounds — Unanimous medical opinion supported separation — Declaration sought that separation would be lawful — Inherent jurisdiction of the High Court — European Convention on Human Rights, art 2.
JOINED BY LOWER ABDOMEN – WITHDRAWAL OF BLOOD SUPPLY (BY SEPARATION) IS OMISSION, NOT ACT – MARY DEP ON JODIE – Question OF MARY’S BEST INTERESTS WAS KEY – HER LIFE STILL HAD INELIMNABLE VALUE – WRONG TO CHARACTERISE AS OMISSION, SINCE IMPLIED BODILY INVASION – COURT HAD TO BE SATISFIED THAT DOCTORS WOULD NOT BE GUILTY OF UNLAWFULLY KILLING MARY (WHETHER THEY ACTED OR NOT). – NO DOUBLE EFFECT DEFENCE, SINCE NO BASIS FOR CLAIMING WAS NOT FORSEEABLE – NECESSITY COULD NEVER PROVIDE NEGAL JUSTIFICATION FOR MURDER – ELEMENTS OF DOCTRINE OF NECESSITY Medical treatment — Child — Whether lawful to separate ischiopagus conjoined twins leading to death of one — Both to die within months if left united — Whether life of doomed twin worth living — Whether in doomed twin’s best interests not to live short life of suffering — Parents opposed to surgical separation on religious grounds — Unanimous medical opinion supported separation — Declaration sought that separation would be lawful — Inherent jurisdiction of the High Court — European Convention on Human Rights, art 2. – REF TO AIREDALE NHS TRUST V BLAND – WHERE ACTIVE STEP, CANNOT DO IF TERMINATES OTHER LIFE – PARENTS RIGHTS UNDER ECHR ART8 – BINGHAM IN RE Z – JUDGE CONCLUDES THAT THE FEW MONTHS OF MARY’S LIFE, IF NOT SEPARATEED, WOULD NOT SIMPLY BE WORTH NOTHING TO HER, THEY WOULD BE HURTFUL – IF POSITIVE ACT, THEN NOT LEGAL -
CONCLUSION: lawful, since it is the withdrawal of mary’s blood suppl,y which is an omission

Re AK (2001) 58 BMLR 151
Medical treatment — Consent — Communication — Patient with limited ability to communicate — Removal of ventilator requested — Death inevitable consequence
ACKNOWLEDGES DISTINCTION BETWEEN ACTIVE AND PASSIVE EUTHANASIA, LATTER OF WHICH IS OK
Not the wrong decision, but unsettling because not incompetent, but inability to communicate – possibility that he has changed his mind, but cannot communicate
The code for communication – moving eyelids potentially ambiguous (1 blink yes, 0 for no)

Sections 24-26

Newell and Newell v Goldenberg 1995
Newell v Goldenberg
(QBD) Queens Bench Division
16 March 1995Where Reported
[1995] 6 Med. L.R. 371
Summary
Subject: Negligence
Keywords: Medical negligence; Standard of care; Sterilisation
Catchphrases: Medical negligence; sterilisation; vasectomy; natural reversal; failure to advise
Abstract: N brought a negligence claim against G following a vasectomy performed by G. N underwent the operation in September 1985 believing it to have been successful. However Mrs N later became pregnant after the vasectomy naturally reversed itself. N alleged that G was negligent in failing to warn of the risk that the vasectomy could reverse itself. G accepted that he had not given a warning, as he usually did, but he claimed that he had adopted the practice of a responsible body of medical opinion which did not give warnings in such cases. Therefore he had not fallen below the standard of care expected of a reasonably competent doctor who performs vasectomies.

Re E (a minor) 1990
Family Division
[1993] 1 FLR 386, 9 BMLR 1, [1993] Fam Law 116, [1992] 2 FCR 219
HEARING-DATES: 21 September 1990
21 September 1990
CATCHWORDS:
Medical treatment — Consent — Jehovah’s Witness — Blood transfusion without consent of 15 year-old or parents — Wardship — Jurisdiction — Whether ward had sufficient maturity to refuse consent to treatment — Whether court should grant leave to give blood transfusion against ward’s will.

Re R (a minor) (wardship:medical treatment) 1991
Court of Appeal, Civil Division
[1992] Fam 11, [1991] 4 All ER 177, [1991] 3 WLR 592, [1992] 1 FLR 190, [1992] Fam Law 67, [1992] 2 FCR 229, 7 BMLR 147
HEARING-DATES: 11, 24 July 1991
24 July 1991
CATCHWORDS:
Ward of court — Jurisdiction — Medical treatment — Medical treatment involving administration of medication for ward’s psychotic mental condition — Ward’s mental condition fluctuating — Ward refusing to accept medication — Whether ward having sufficient competence to give or refuse consent to treatment — Whether court having jurisdiction to override refusal by ward.

RE K, W AND H (MINORS) (MEDICAL TREATMENT) 1993
Family Division
[1993] 1 FLR 854, 15 BMLR 60, [1993] Fam Law 280, [1993] 1 FCR 240
HEARING-DATES: 10 September 1992
10 September 1992
CATCHWORDS:
Medical treatment — Secure accommodation — Children admitted to specialised unit for treatment only if parent or local authority providing written consent — Health authority investigating practices of the unit and recommending application under s 8 of the Children Act 1989 if doubt as to consent — Applications made in respect of three children who did not consent to the treatment but whose parents had provided the requisite consent — Official Solicitor indicating support of unit — Whether children having sufficient understanding to participate in the proceedings without next friend or guardian ad litem — Whether children’s refusal, if Gillick competent, affecting consent given to the unit by their parents

McCallister v Lewisham and North Southwark Health Authority and Others 1994
QUEEN’S BENCH DIVISION
(Transcript: Beverley Nunnery)
HEARING-DATES: 15 December 1993
15 December 1993
COUNSEL:
J Grace for the Plaintiff; J Wadsworth QC and J Mishcon for the Defendants
PANEL: Rougier J
JUDGMENTBY-1: ROUGIER J
JUDGMENT-1:

HE v A Hospital NHS Trust [2003] EWHC 1017
Jehovah’s witness – advance directive to not have transfusion – mother wishes for it to be upheld – father seeks for it to be ignored, so daughter lives – father claims that, if daughter were conscious, she would consent – some doubt about her commitment to Jehovah – claims AD can no longer be relied upon – judgment: give treatment
REFUSAL CAN ONLY BE IN WRITING – FATHER SAYS SHE IS ENGAGED TO MUSLIM AND SHE HAS RESCINDED JEHOVAL FAITH – JUSTICE MUNBY AGAIN (STAR OF BURKE CASE) TAKES PRO-LIFE STANCE, NOW MUNBY DEMONSRTRATES HE MEANS WHAT HE BELIEVES – PROBLEM WITH REQUIRING IT BE IN WRITING (WHAT IF CHANGE MIND, BUT CANNOT MOVE) – WHERE HE SAW BURDEN OF PROOF (WE MIGHT HAVE ASSUMED THAT HE WOULD LOOK AT WRITTEN PROOF AS ACCURATE), BUT HE SAW IT ON THOSE WHO REQUIRE ITS IMPLEMENTATION – SIMILAR TO CRUZAN CASE – IF IN DOUBT, ERR ON SIDE OF PRESERVING LIFE – ORDINARLILY, PRESUMPTION OF COMPETENCE -

Re T (Adult – Refusal of Medical Treatment) [1992] 4 All ER 649, [1992] WLR 782

LAW HOSPITAL NHS TRUST v LORD ADVOCATE AND OTHERS (1996)
COURT OF SESSION: INNER HOUSE (COURT OF FIVE JUDGES)
1996 SLT 848, 1996 SCLR 491
22 March 1996
CATCHWORDS: Medical treatment — Withdrawal of treatment — Patient in persistent vegetative state with no hope of recovery — Whether in patient’s best interests not to prolong her life — Whether lawful to withdraw medical treatment and to allow patient to die
Process — Court of Session — Parens patriae jurisdiction — Application for authority to discontinue treatment for patient in persistent vegetative state with no hope of recovery — Form of application and test to be applied

Re D (1998) FLR 411
Family Division
38 BMLR 1, [1998] 1 FLR 411, [1998] 1 FCR 498
HEARING-DATES: 21 March 1997
21 March 1997
CATCHWORDS:
Withdrawal of medical treatment — Whether patient in permanent vegetative state — Application to withdraw artificial nutrition and hydration — Guidelines of Royal College of Physicians.

Rogers v Whitaker [1993] 4 Med LR 79

medical practioner – duty to patient – warning of risks involved in treatrment; whether legal duty in negligence – australia

the appellant, christopher rogers, was an ophtalmic surgeon. t respondent, maree lynette whitaker, was a patient of t appellant who became almost totally blind after he conducted surgery on her right eye.

abstract: a medical practitioner has a legal duty to arn a patient of a material risk inherent in proposed treatment. a risk is material if a reasonable person in t patients position would, ifwarned fo t risk, be likely to attach signif to it.

Hills v Potter and others
QUEEN’S BENCH DIVISION
[1983] 3 All ER 716, [1984] 1 WLR 641
HEARING-DATES: 3, 4, 5, 6, 9, 10, 12, 13, 16, 18 MAY 1983
18 May 1983
CATCHWORDS:
Medical practitioner — Negligence — Test of liability — Risk of misfortune
inherent in treatment proposed by doctor — Doctor’s duty to warn of inherent
risk of misfortune — Operation to cure neck deformity resulting in patient’s
complete paralysis — Patient electing to have operation — Inherent risk of
paralysis following operation — Whether standard of care required of doctor in
giving advice before operation the same as that normally required of medical
practitioner in course of diagnosis and treatment — Whether higher standard
requiring full disclosure to patient before operation of all details and risks.
Medical practitioner — Trespass to the person — Consent to operation –
Operation to cure neck deformity resulting in patient’s complete paralysis –
Patient electing to have operation — Inherent risk of paralysis following
operation — Doctor not explaining all aspects of operation to patient before
operating — Whether patient’s consent to operation vitiated — Whether doctor
committing assault and battery by performing operation — Whether claim for
assault and battery appropriate

Smith v Tunbridge Wells Health Authority [1994] 5 Med LR 334

consent – informed consent – wells operation = patient a yong sexualy active married man suffering from rectal prolapse – whether surgeond under gduty to warn patient of possibility of impotence and incontinence – whether surgeon failed to discharge duty – whether responsible body of medical opinion=, including that of sureon to explain t particular risks to patient such as this plaintiff – causation.

surgeon had failed to explain w suff clarity risk of impotence arising out of wells operation. if risk had been explained patient would have refused operation.

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