Abstract
Family
Re A (a child) sub nom An NHS Foundation Trust v A (1) M (2) P (3) A Local Authority (4) (2014)
[2014] EWHC 920 (Fam)
FAM (Hayden J) 12 February 2014
A, a 15-year-old girl, suffered from persisting vomiting which had caused severe weight loss. She weighed just 5½ stones and had been confined to hospital for 10 months. She was vomiting up to 30 times a day following oral intake during waking hours, but did not vomit at night. A was examined by a consultant paediatrician and consultant gastroenterologist, neither of whom was able to identify an organic cause for the symptoms, despite various (and sometimes intrusive) tests having been carried out.
A and her mother were not convinced by this finding, and an examination by another consultant gastroenterologist, Dr C, was arranged. Further tests were carried out, and by the time of the hearing, all of the doctors with the relevant expertise involved in the case agreed with to a high degree of certainty that there was no gastroenterological cause for A’s vomiting.
Dr C concluded that A was suffering from a form of fabricated or induced illness, with which A’s mother may or may not be colluding. He felt A was demonstrating more than mere exaggerated illness behaviours, and that removing the child from a potentially harmful parent would make it possible to see if less invasive care could be effective.
A and her mother did not accept the doctor’s findings. So the NHS Trust sought a declaration from the court that it was lawful and in A’s best interests for a nasojejunal tube to be inserted, and for fluids, nutrition and medication to be inserted through that tube, and that it was lawful and in A’s best interests for her to receive psychiatric assessment and treatment.
As A was almost 16, she was represented by her own legal team, but the available psychiatric evidence indicated that she was not competent to make decisions about what medical treatments were appropriate: A presented as a child with a complex somatising condition who has a disordered relationship with food. A’s general reaction to any new treatment was to say no.
There was a clear consensus among the doctors that a nasojejunal tube was the appropriate treatment for A, but A complained that this was painful, and she and her mother proposed a series of treatments which were not supported by any of the experts. A and her mother were resistant to A being transferred to an annexe to the Children’s Hospital where specialist treatment for eating disorders was available.
The judge found the arguments in favour of the treatments being sought compelling, and made the declarations requested, authorising a temporary suspension of contact between A and her mother on the basis that this would assist A’s treatment.
Finally, remarking that the relationship between A, her doctors and social services had become marked by conflict, and noting that he had heard evidence that A required decisions to be made by an independent authority figure, the judge considered that he was best placed to be that authority figure. Invoking his inherent jurisdiction under the doctrine parens patriae, the judge made A a ward of court. He visited A in hospital and explained his decision to make clear to A why he had taken this course of action and who was making decisions about her treatment. This was done in the hope that A would understand that neither she nor the doctors were making these decisions, and that this would reduce the conflict between the parties.
Personal injury
Sheri Leigh Everett v London Fire & Emergency Planning Authority (2013)
Unreported
QBD (John Leighton Williams QC) 22 November 2013
E, a firefighter, was injured at work while carrying out a training exercise in August 2009. The training exercise involved E and three other crew members raising a 110 kg extension ladder and placing it against a wall. After taking the ladder off the fire engine, two firefighters held one end of the ladder while E and another crew member lifted their end and walked forward, raising the ladder into a vertical position.
On the occasion in question, one crew member who was holding the end of the ladder momentarily lost his grip, causing the ladder to become unstable and twist. E claimed that this had caused a jarring injury to her back.
At the time of the incident, E suffered some back pain, and this progressed over the following days. After remaining at work to complete a training course, E visited her GP a few days later. It was only on returning to work 8 days after the incident that E formally reported to her Watch Manager that she had sustained an injury.
E’s GP diagnosed her with back strain and prescribed anti-inflammatories which were not effective. E developed pins and needles, and subsequent X-rays showed mild scoliosis of the lower thoracic spine with early spondylotic changes and tiny osteophytes on the vertebrae, and reduction of normal lumbar lordosis and early spondylotic changes with tiny osteophytes on L3 and L4. E continued to complain of back pain and arranged her own private treatment. She was prescribed further drugs and a TENS machine treatment for pain relief. E was signed off work, and has not returned to work since.
E made further complaints of pain, numbness and incontinence, but a magnetic resonance imaging (MRI) scan report and nerve conduction studies found no explanation for E’s symptoms and no evidence of neuropathy. E sought steroid injections in Italy in March 2010 and April 2011. E underwent cognitive behaviour therapy, and it was established that E was experiencing significant anger. E’s private orthopaedic expert who found that she had suffered a spinal cord injury indicated that an MRI scan showed pressure on the L3/L4 disc.
E made an application to the defendant for an ill-health pension in November 2011. This application was refused, and her appeal was unsuccessful. The doctor who examined her found that she was unlikely to be permanently disabled from performing her duties.
In the course of her litigation against her employer, E was examined by orthopaedic, psychiatric, neurological and pain management experts. The defendant’s orthopaedic expert was unable to find an orthopaedic spinal organic explanation for E’s painful symptoms, and he suspected that there were psychological pain issues. He believed that the incident with the ladder would have caused minor soft tissue injuries which would not be likely to affect E for longer than four to six weeks. Her own orthopaedic expert had suggested that E’s injury could not be expected to settle until 18–24 months had passed, but symptoms beyond that time were likely to be psychological.
The psychiatric experts could not agree whether post-traumatic stress disorder (PTSD) was an appropriate diagnosis, but there was a consensus that E had developed symptoms of depression after the incident and that there was a psychological contribution to her symptoms. The pain management specialist and neurologist agreed that three months was a reasonable time frame for E to recover from the accident physically, and any subsequent symptoms were not directly attributable to the accident.
The judge did not accept that E had suffered from PTSD and preferred the time scale of three months for a physical recovery to either of the estimates provided by the orthopaedic experts.
The judge characterised E’s pain as an emotional disorder lacking organic explanation. He concluded that the incident with the ladder had been a peg upon which E hung her dissatisfaction with her workplace and inability to cope in the operational environment.
E had not alleged that harassment from her colleagues had caused her condition, relying only on the ladder drill incident, and the judge concluded that the defendant was not liable for the claimant’s medical condition and consequential losses after the first three months after the incident with the ladder. The major barriers to E returning to work were psychological or behavioural, and not attributable to the negligence alleged by E.
E was awarded just £2500 for her PSLA, and further small awards for prescriptions, travel and child care within that three-month period brought the total damages awarded to £2930 plus interest.
Coronial law
R (on the application of Marina Litvinenko v Secretary of State for the Home Department & (1) Assistant Coroner for Inner North London (2) Commissioner of Police of the Metropolis (3) Investigative Committee of the Russian Federation (2014)
[2014] EWHC 194 (Admin)
DC (Richards LJ, Treacy LJ, Mitting J) 11 February 2014
The claimant, ML, was the widow of the deceased, Alexander Litvinenko (henceforth AL), who died of radiation poisoning on 23 November 2006. The police investigation concluded that a fatal dose of polonium 210 had probably been consumed by AL on 1 November 2006 in the company of two Russian nationals. The Crown Prosecution Service decided to prosecute these individuals, but their extradition to the UK was not achieved, as the Russian government resisted this.
The coroner decided that the inquest into AL’s death should consider the possible involvement of Russian state agencies and the possible failure by UK government agencies to take adequate reasonable steps to protect AL from the threat to his life.
The existence of various potentially relevant documents had been disclosed by government departments and agencies to the inquest. When counsel to the inquest identified the documents which would likely be required for the inquest, the Foreign Secretary claimed public interest immunity (PII) in respect of these documents, with the effect that these documents would be excluded from the inquest. This PII was upheld.
The coroner formed the view that with these key documents no longer available to him, he was not able to carry out his duty to investigate fully, fairly and fearlessly the death of AL with respect to the British and Russian states’ potential liability. He observed that a statutory inquiry would be able to hold closed hearings and could hear all the relevant evidence. On 4 June 2013, the coroner wrote to the Lord Chancellor to request that such an inquiry be held.
The Home Secretary responded to the coroner by letter on 17 July 2013, refusing to set up such an inquiry. She considered that an inquest would go a substantial way in addressing public concern about AL’s death and that whether an inquiry was needed was best judged after the conclusion of the inquest. The scope of the inquest would be limited, as there was no obligation under the European Convention on Human Right (ECHR) Article 2 for British authorities to investigate the death, and the question of how AL came by his death could be investigated without considering the sensitive materials. An inquiry would still be unable to disclose the contents of the sensitive documents, so the interested parties would not learn more from an inquiry than they would from an inquest. An inquiry would be substantially more expensive than an inquest.
Also, an inquest run by an independent coroner was deemed more palatable from a foreign policy perspective than an inquiry lead by a government appointment chairman.
ML sought judicial review of the Home Secretary’s refusal to hold a statutory inquiry.
The Divisional Court found that the Home Secretary’s ‘wait and see’ approach was not rational and therefore quashed the refusal to set up a statutory inquiry. The case for setting up an immediate statutory inquiry was very strong.
The court considered that there were procedural obligations for the state to investigate the death under ECHR Article 2, but that the police investigation and attempted prosecution had satisfied this.
The court considered that it was wrong to suggest that a limited inquest would adequately address public concern about the death and possibility of the Russian state’s involvement – the coroner’s concern about his ability to deal with the key issues of state involvement had not been addressed by the Home Secretary. Further, the coroner had decided that he would not investigate this on the basis of limited evidence, and there was no reason to believe that he would alter his position. These key issues would in fact not be investigated at all. The inquiry’s chairman would be able to make useful public statements having considered the sensitive materials, despite the restrictions on what evidence could be disclosed.
In April 2014, the Home Secretary had not yet remade her decision on whether to hold an inquiry.