Paula Poolton was murdered in October 2008. Her lover, Roger Kearney, was convicted in June 2010. There was no direct or forensic evidence linking Mr Kearney, or anyone else, to the murder. Mr Kearney has continued to protest his innocence and the case has featured in the BBC series Conviction: Murder at the Station (available on YouTube). Mr Kearney sought disclosure of the original CCTV footage from the Hampshire Police. The CCRC would consider the CCTV but would not request it. In light of the CCRC’s decision not to refer the appeal to the COA; Hampshire Police refused the disclosure request. Mr Kearney sought to judicially review that decision. Andrews J refused permission to apply for judicial review on the papers, accepting the Hampshire Police’s arguments, she also agreed that the application was totally without merit. Mr Kearney applied to the Court of Appeal to have decision quashed. The Court of Appeal agreed that they did not have jurisdiction so to do and that the decision that the application was totally without merit was both justified and proportionate. To see the judgment, please click here.

Matthew Holdcroft was instructed by Hampshire Police throughout the proceedings.

Anthony Haycroft successfully defended a consultant cardiologist before the MPT, the doctor faced a host of clinical negligence allegations and also those of discrimination in respect of his treatment of a patient with trisomy 21 (Down syndrome).

The patient had a number of health conditions and difficulties of which the cardiac condition was only one. The doctor examined the patient and found there was no need to intervene at that stage. He had always volunteered and admitted that he should have carried out an echocardiogram sooner than he had planned. In doing so he was following hospital protocol but he also had the benefit of a CT scan which neither expert had the relevant expertise to interpret.

Unknown to the doctor and in breach of guidelines and hospital policies, there were a series of failures by other doctors and nursing staff to notice and act upon the patient’s subsequent deteriorating condition. When the doctor next reviewed the patient, being called urgently, he carried out a challenging emergency procedure but did so successfully. Unfortunately the patient was overcome by their already severely deteriorated condition, for which the doctor was not responsible.

The GMC‘s case was constructed on top of the admitted failure and was heavily dependent upon expert evidence. After over a week of evidence and four days of deliberations the MPT produced a 27 page determination which effectively dismissed all of the challenged allegations against him. They accepted the doctor’s evidence and that of his expert Dr Nicholas Pegge.

Despite their findings on the facts, the GMC maintained that the submitted failure was serious misconduct. The MPT rejected this argument acceding  to the submissions of Mr Haycroft that  not only was this not serious misconduct in all of the circumstances but even if it had been, the doctor’s subsequent extensive remediation meant that on any view his fitness to practice was not impaired.

Mr Haycroft was instructed by Kirsty Jeeves of the MDU.

Anthony Searle has written an academic article which has been published in this year’s October edition of Family Law, the leading practitioner journal and the publication of record in the field of family law since 1970.

The article is entitled, ‘Commercial surrogacy: the birth of a new head of loss in clinical negligence claims’. Co-authored by Anne Kavanagh of Irwin Mitchell, the article focuses on the impact of the important clinical negligence case of XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, [2019] PIQR Q4, in which Christopher Johnston QC and Claire Watson acted on behalf of the successful appellant. That same decision is now being appealed to the Supreme Court.

Anthony was invited to write the article following his considerable interest in this case since the High Court’s decision in 2017. He has also written blog posts on XX on the UK Healthcare Law Blog (here and here) and was interviewed about it by LexisNexis earlier this year.

A summary of the article is as follows:

“This article analyses XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, [2019] PIQR Q4, the first case in which a court has awarded damages for the costs of overseas commercial surrogacy. After outlining English law on surrogacy and the significant, yet outdated, decision in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010, [2002] QB 856, the authors discuss the High Court’s decision in XX. Thereafter, they focus on the key aspects of the Court of Appeal’s judgment, namely public policy (following Patel v Mirza [2016] UKSC 42, [2017] AC 467) and the distinction between ‘own egg’ and ‘donor egg’ surrogacy. The authors consider the impact of the judgment and set out learning points for practitioners. It is envisaged that claimants will seek to rely on XX in a variety of claims but to varying degrees of success, the principle of reasonableness being the key limiting factor. The authors’ thesis is that, despite being an important decision, XX has not created new law and is simply an application of settled legal principles in the context of modern society. However, this will not be the last word on XX; the defendant Trust’s appeal to the Supreme Court will be heard in December 2019. It is hoped that this article will be of interest to both clinical negligence and family practitioners.”

The webpage for the article can be found here. Its citation is: (2019) 49 Fam Law 1186.

Nageena acted in this important case on behalf of the vulnerable adult  in Redcar & Cleveland Borough Council v PR & Ors [2019] EWHC 2305 (Fam), in which the court noted her “primary, and powerful, submission” that it would be wrong for the court to use the inherent jurisdiction where there is available a good statutory scheme to provide protection to the vulnerable adult and further considered her argument that it was inappropriate to make any order directed against PR herself, given her vulnerability.

Cobb J stated that he “prefered the argument advanced on PR’s behalf by Ms Khalique that it was illogical for the court to conclude that PR needed the protection of the court, yet required her, by order, to refrain from doing something which she wanted to do, backed with the punitive force of an injunction”.

Cobb J further confirmed that before a Local Authority makes an application under the court’s inherent jurisdiction which is designed to regulate the conduct of the person by way of injunction, particularly where mental illness or vulnerability is an issue, it should demonstrate (and support with evidence) that it has appropriately considered whether the person:

1.     is likely to understand the purpose of the injunction;

2.     will receive knowledge of the injunction; and

3.     will appreciate the effect of breach of that injunction.

If the answer to any of these questions is in the negative, the injunction is likely to be ineffectual, and should not be applied for or granted as no consequences can truly flow from the breach.

On Friday 11th October Eloise Power appeared before Williams J in the case of An NHS Trust v CG and others. CG, a woman in her 20s with very severe learning disabilities, had become pregnant in unknown circumstances. A Police and safeguarding inquiry is ongoing. Following a detailed exploration of the evidence, Williams J ordered that it was lawful and in CG’s best interests for the NHS Trust to perform a surgical termination of pregnancy.  Williams J also ordered that the NHS Trust should retain the products of conception and hand them over to the Police or other safeguarding authorities to enable DNA analysis to take place. Interestingly, the Court explored the question of whether there were any inherent or social benefits in continuing a pregnancy and giving birth, but concluded that no such benefits existed in circumstances where a mother had no prospects of looking after her baby.

In Bond v Chief Constable of Suffolk the Claimant sought damages in excess of £80,000 for the disposal of goods following a criminal investigation.

Matthew represented the Chief Constable who argued that the Claimant had neither properly pleaded the claim nor produced sufficient evidence for it to succeed. Matthew asserted that there had been no seizure of the relevant goods, albeit they had been catalogued, but that the police officers had been entitled to prevent the Claimant from collecting them. The Claimant discontinued the claim, following the cross-examination of himself and two witnesses, with one further witness to call.

Matthew was instructed by Sera Jones of Weightmans LLP on behalf of Suffolk and Norfolk Police.

Eloise Power has been interviewed by Mishal Husain on Radio 4’s Today programme alongside Baroness Ilora Finlay. Eloise was debating the ethics of cases regarding medical treatment of children and responding to the argument that parents should have more of a say. To listen to the programme please click here (1:51:45).

Congratulations to Nageena Khalique QC who has been appointed as an Expert Adviser for the NICE Centre for Guidelines.

Over the next 3 years, Nageena will contribute by giving advice on the impact of new evidence in relation to updating various NICE guidance and issues associated with implementation, participating in committees as a topic specialist member, and performing peer reviews.

For further details of Nageena’s practice please click here.

Congratulations to Amy Street who has been appointed as a Recorder, to be deployed on the South Eastern Circuit in Family.

Amy is also Assistant Coroner for Bedfordshire and Luton, alongside her practice in chambers.