Abstract
CLINICAL NEGLIGENCE
[2010] EWHC 2978 (QB)
F was born prematurely at 27 weeks. She was discharged from hospital following which her mother took her to W's surgery on two occasions. This claim for damages against W was brought by F's mother as a result of events that occurred on the second visit to the surgery while she was collecting a prescription. While at the surgery, F's mother noticed that F's lips were turning blue, her face was blotchy and pale, and her breathing was slow and irregular. F was also making noises as she exhaled. F was seen by W; however, W had no recollection of such events and relied on his notes which stated only that F's body temperature was low and that he had advised her to take F home and keep her warm.
Later that same day F was taken to hospital by her mother where she suffered acute hypoxia following a peripheral perfusion resulting in severe brain damage. The issues for the court in this case, therefore, were liability and causation.
Two experts in general practice agreed in evidence that if F's mother's account of events was correct then the appropriate response for a competent general practitioner would have been to refer F to hospital that same day.
In this case, the court held that as F's mother had attended the surgery for the second time just to collect a prescription, something must have happened for F to be seen by W. Furthermore, there was no reason to doubt A's mother's recollection of events save for the blue colour of F's lips which would clearly have alerted W straight away. W should, therefore, have referred F to hospital immediately and his response to keep F warm was inadequate especially given that F was a premature baby.
The court held that if F had been admitted to hospital earlier the peripheral perfusion which led to the hypoxic injury might have been avoided or corrected and F would not have suffered damage. Accordingly, the court found in favour of F's mother on the issues of liability and causation.
HUMAN RIGHTS
After her baby son died, M informed the coroner that she wanted to know the cause of death. An inquest was opened and adjourned and a death certificate was sent to M by the coroner stating that the cause of death was not yet ascertained. She was informed by the coroner that a decision would be made and she would be kept informed.
M's son was later buried and a toxicology report was produced stating that no drugs had been found in his body. When M contacted the coroner she was informed that a postmortem report had not yet been obtained and that he would contact her when it was ready. No indication was given to M that the postmortem report had not in fact been received nor that the investigation had ended. Therefore, the cause of death remained unascertained.
Some five months after the baby's funeral M wrote to the coroner as she had not heard from him for over three months. A further three months after this, M telephoned the coroner as she had still not received a response. The reports were eventually sent to M and when she later requested the results of other blood samples, she was told that they had been destroyed.
M made a complaint against the coroner which led to a further inquest held by another coroner. After criticizing the conduct of the previous inquest and apologizing, the new coroner recorded an Open Verdict.
M argued that such a delay had prevented further examination of material. In response, the coroner held that M could have requested a second postmortem and that she had made no formal request for copies of any reports. He continued to say that M had not paid any fee after she had requested copies.
M applied for a judicial review of the actions of the coroner therefore and sought a declaration that the coroner had breached common law principles and Rule 57 of the Coroners Rules 1984, in addition to violating her rights under the European Convention on Human Rights 1950 article 8. She also sought damages for the latter.
The court held that the death certificate and letter from the initial coroner would have given M the impression that the investigation into the cause of death was ongoing and she would be told the decision. If M had known the cause of this death then she could have decided whether or not samples should be examined further. This opportunity was lost when the samples were destroyed. Furthermore, the argument that M could have asked for samples earlier and a second postmortem was unrealistic as she had no idea what the original postmortem and toxicology had found. M had relied on the assurances of the coroner and there was a failure by the coroner to act accordingly. There was no duty to disclose a report before an inquest took place or if there was a good reason not to do so, however, the coroner's failure to give M an opportunity was a failure in that it made one of the principal purposes of an inquest, namely establishing cause of death, impossible.
The court further held that while M had not paid a fee for the report she would not have known she had to pay one. In relation to the article 8 argument, however, the court held that there could not be a right to know the cause of death when in so many cases this cannot be established.
M was, therefore, granted a declaration that the coroner had acted in breach of the common law and of rule 57 but the application in relation to article 8 was refused.
PERSONAL INJURY
[2010] EWHC 3009 (Admin)
In this case R, a former police officer, applied for judicial review of a decision of the Police Medical Appeal Board which had rejected his appeal against their decision that he was not entitled to an injury pension.
While carrying out his duties, R suffered injuries to his back. He returned to his duties but became injured again and was diagnosed with left shoulder impingement syndrome, lumbar disc degeneration and depression. The Police Medical Appeal Board concluded that R was permanently disabled but that his condition resulted from progressive degeneration which was accelerated by his injury and could not, therefore, be considered an injury on duty.
On appeal the Board considered that it was more likely that without the injury R's disability would have occurred at some point in the future and that the injury had not aggravated his underlying condition.
R argued that the fact that his disability would have occurred at some point in the future was irrelevant as the test as to whether or not someone was permanently disabled had to be based on a specific time, that is, at the time of assessment.
The court held that that the correct approach was an incapacity test; the relevant condition was ‘permanent disability’ meaning that that the length of time over which the condition was borne was relevant to assessment. A short acceleration of the onset of permanent disability was unlikely to be regarded as substantial. An acceleration of a decade or more, however, would clearly be a significant contribution to a permanent disability.
Each case would depend on its facts and for this reason, R's case has been remitted to the Police Medical Appeal Board for re-consideration.
FAMILY LAW
In this case the appellants were adoptive parents (P) appealing against a decision of a Judge for setting aside an order for adoption in their favour and granting the respondent mother (M) permission to oppose the adoption.
The five-year-old child in question was removed from M's care in 2007 due to her involvement with drugs. A final care order was obtained in 2008 followed by a placement order in which the mother played no part.
In February 2009 the child was placed with P who issued an application for adoption. In March 2010 a final adoption order was made in P's favour. Due to an administrative error, however, notice of the hearing did not reach M and so she did not attend. Upon finding out about the adoption two months later, she made an application to set it aside. The matter was listed at the High Court where the judge recognized the advantages of the adoption, but was of the opinion that should the child later find out that M did not know about the hearing, he might seek her out later in life and regret that he had not returned to her. The order was set aside and M was granted leave under s.47(5) of the Adoption and Children Act 2002 to oppose the adoption application.
P appealed this decision and the Court of Appeal ruled that only in exceptionally rare circumstances would adoption orders be set aside after the making of a care order, placement order, the placing of a child and an application for adoption then final hearing. Before granting leave under s.47(5) a Judge had to be satisfied that a natural parent's change of circumstances since the placement was material and of a nature and degree sufficient to open the door to the exercise of the discretion to give a parent leave to defend the adoption.
In reaching his decision the High Court Judge had undervalued the imperatives in favour of the child's adoption and overvalued much more speculative aspects of the future. The permission granted by the Judge to set aside the adoption order was set aside and the Court of Appeal granted the adoption order unopposed.