Recent news
This not a case about choosing to die, but about an adult’s capacity to shape and control the end of his life
Barnsley NHS Trust v MSP [2020] EWCOP 26.
Bridget Dolan QC acted for the NHS Trust in this profoundly sad case that reaffirms the principle of autonomy and also sends a clear message to all of us who might want to decide for ourselves whether life-sustaining treatment should be given to us on losing capacity: Make sure your advanced decision is signed and witnessed if you wish to avoid unwanted medical treatment and litigation.
Chambers welcomes Christopher Hough and Hannah Hinton
We’re delighted to announce the arrival of two new barristers in recent weeks, Christopher Hough and Hannah Hinton, as part of our strategy to extend our service for clients.
Chris (1981 Call) joins our award winning clinical negligence team, building on the senior expertise already available to clients in this field. Ranked as a leading practitioner by both legal directories, he represents claimants and has a vast experience of all types of cases: cerebral palsy, acquired brain injury in children and adults, spinal cord injury, brachial plexus injury, blindness, amputations and Fatal Accident Act cases. Chris also deals with clinical negligence related solicitor negligence and employment and discrimination cases. Clients cited by the directories describe him as “ingenious…able to formulate novel solutions to complex problems” with a “very good bedside manner with the clients”.
Hannah (2008 Call), who has appeared in 33 reported cases in the last three years with a Supreme Court case currently in the pipeline, strengthens our business and specialist crime team in particular. Specialising in public law in extradition, cross-border financial crime, fraud, police law, unlawful detention claims and complex disciplinary misconduct cases, she represents individuals, governments and other public bodies in cases involving technical arguments as well as sensitive health, capacity and human rights issues and judicial review. She is a member of the Attorney General’s civil panel. She is ranked as a leading junior by the directories, and has been commended in the editorial as “fearless and quick on her feet” with a “friendly approach” .
This will further enhance the service we are able to provide to you, significantly consolidating our expertise in all our core fields.
For further details, please see Chris and Hannah’s full profiles. Please contact our clerking team if you need any further information or would like to discuss how they might assist you.
Angus Moon QC and Eleanor Morrison succeed in a clinical negligence action for severe brain damage caused at birth by the Defendant’s negligent failure to monitor the claimant’s heart rate with a CTG monitor whilst his mother was in labour
Angus Moon QC and Eleanor Morrison, instructed by Leigh Day, successfully represented NKX in the case of NKX v Barts Health NHS Trust, in which judgment was given on April 7th 2020. Liability was in dispute both on breach of duty and causation.
The case involved complex factual questions, which required cross-examination of six midwives, and difficult expert evidence leading the judge to say that the experts were “on the edge of what they could confidently say”. On the timing of the brain damage, Mr Simeon Maskrey QC, sitting as a Deputy Judge of the High Court, rejected the so-called conventional model and accepted an extended model, finding that the damaging insult lasted 35 minutes.
Damages are to be assessed at a later date.
A copy of the judgment can be found here.
COVID-19: Allocation and withdrawal of ventilation – the urgent need for a national policy
This blog is written towards the beginning of the Covid-19 lockdown. We are not yet three weeks in, and do not know what the future holds. This post has already been updated once since publication and in the fast paced news of coronavirus, more updates will come. This post therefore may not be an exhaustive analysis, but we will revisit the subject as and when developments require. We would also welcome any relevant new information on the topic, especially from those at the front line: please send to sroper@serjeantsinn.com.
The Government is clear that there is not, and is unlikely to be, a situation where there are more patients nationally requiring ventilation than there are ventilators. If achieved, avoidance of the situation faced by doctors in Italy and Spain will come about by a combination of increased supply of ventilators, moving patients and ventilators around to match supply to demand, and the application of tough triage criteria, so that access to ventilation is limited to those likely to make a recovery.
But avoidance cannot be guaranteed. Local surges in demand will occur, and may lead to temporary shortages. The risk of demand exceeding supply exists. News reports in The Guardian and Daily Mail suggest that this has already happened in some hospitals.
Were that risk to eventuate, the withdrawal issue would arise:
Can a ventilator ever lawfully be removed from a ventilated patient who may be deriving benefit from it, for the purpose of providing that ventilator to different patient?
If it can, how should withdrawal and reallocation decisions be made?
In our view, these questions should be asked and answered now, before the risk eventuates, and in the profoundest hope that it never does.
Read the full article on our UK Medical Decision Law Blog.
Andrew Hockton wins case for NHS England (West Midlands) before First Tier Tribunal
The appellant, an optometrist, sought to challenge a decision made by the Performers List Decision Panel [PLDP] to impose conditions on his inclusion in the Ophthalmic Performers List. The appellant challenged the jurisdiction of the PLDP on the basis that the General Optical Council (GOC) had already made an interim decision in relation to the same subject matter. The appellant further challenged the merits of the decision. Upon a review of their respective statutory roles and functions, the First Tier Tribunal (FTT) accepted the argument made on behalf of the Respondent, NHS England (West Midlands), that the roles of the GOC and PLDP were separate, distinct and complementary and that the jurisdictional argument must therefore fail. The FTT also held that the conditions imposed by the PLDP were necessary and proportionate. Accordingly, the appeal was dismissed on both grounds. Andrew Hockton acted for the Respondent, instructed by Hill Dickinson.
Sir Robert Francis QC
This is to announce that Sir Robert Francis QC, who has been a barrister in these Chambers since 1973 and became a Queen’s Counsel in 1992, has decided to retire from regular practice with effect from 31 March 2020.
Maintaining his links with Serjeants’ Inn as an Associate Tenant, Robert will continue to be available to undertake work connected with inquiries, reviews, investigations, mediations and employment processes, while pursuing his work as Chair of Healthwatch England, non-executive director of the CQC and President of the Patients Association. He will also continue as a Governing Bencher of the Honourable Society of the Inner Temple, where he is currently Reader-Elect.
Robert was knighted in 2014 for services to healthcare and patients. A leading specialist in medical law, including mental health treatment and capacity issues, clinical negligence and professional discipline, he has chaired several important health-related inquiries, including two into the care provided by Mid Staffordshire Foundation Trust, and the Freedom to Speak Up Review into the treatment of NHS staff who raise concerns. He has acted in many leading cases which have shaped the law and the society it reflects, ranging from the first PVS withdrawal of treatment case in 1993 (re Tony Bland, the last victim of the Hillsborough disaster) to – most recently – the Undercover Policing Inquiry (as Leading Counsel for the National Police Chiefs’ Council). He was Joint Head of Chambers from 2000 to 2009.
Robert comments, “Since I started in 1973, Serjeants’ Inn has grown from a tiny, young set into the major player it is today in medical, police and public law, as well as financial and other regulatory sectors. I am immensely privileged to have played a small part in that development. Giving up my practising certificate brings mixed emotions, but the time has come for a change of direction. I look forward to being able to contribute in various ways to the cultural learning and development of the public and private sectors. Serjeants’ Inn has been my professional and emotional home for so long; so I am delighted to be able to retain my links here. I look forward to being available to assist in inquiries, investigations and similar work.”
Angus Moon QC and Michael Horne QC, Joint Heads of Chambers at Serjeants’ Inn, comment, “The pioneer of the Duty of Candour and the Freedom to Speak Up agenda now embedded in the NHS, Robert has been a colossus bestriding the medical and legal landscapes for four decades. Serjeants’ Inn has been honoured to have him as a member of Chambers casting his gold dust for the benefit of others throughout that time. With his wisdom and warmth, we are delighted that he will continue to be so closely associated with Chambers’ life and work as an Associate Tenant.”
Robert can be retained to chair or assist with inquiries, arbitrations and mediations by contacting Lee Johnson, Senior Clerk, as usual on LJohnson@serjeantsinn.com and 020 7427 5000.
Skype in the Court of Protection – The courts in the time of coronavirus: a personal perspective on the first remote hearing during the crisis
Mostyn J hears trial concerning withdrawal of life sustaining treatment with five parties and at least 20 participants over Skype for Business (REVISED POST)*
In December 2019, Keehan J presided over a directions hearing in a serious medical treatment application brought by a CCG. A dispute had arisen as to whether or not it was in the best interests of A, a man in his 70s who suffered a stroke in 2016, to continue to receive clinically assisted nutrition and hydration (CANH). A’s daughter believes CANH should be removed; his GP thinks it should stay in place. A is not in a prolonged disorder of consciousness: despite significant impairment, he communicates with those caring for him in gestures and occasional words, and enjoys seeing animals and children, and hearing poetry.
In itself, this would be an unusually difficult and sensitive case for the Court of Protection, and Keehan J listed it for four days, including a day of judicial reading time. As preparation progressed, it became clear that it was going to be a tight timetable. Between them, the five parties (CCG, A, represented by the Official Solicitor, A’s daughter, A’s GP, and the local authority) were calling eleven witnesses to give oral evidence, including three independent expert consultants; all five parties would be making closing submissions; and the evidence available to the court ran to well over 4000 pages. What makes this case even more unusual is that the judge listed it to start on Tuesday 17 March 2020, less than 24 hours after the nation was directed to avoid all non-essential contact to stem the rising tide of Covid19.
Read more about this case on our UK Medical Decision Law Blog.
Andrew Hockton successfully defends dentist at GDC
At a hearing before the Professional Conduct Committee of the GDC, Mr A, a general dental practitioner, faced an allegation that his fitness to practise was impaired by reason of misconduct consisting of alleged dishonesty and multiple clinical failures over a number of years. The clinical failures were admitted and the dishonesty allegations, which were denied, were found not proved. Having regard to the extensive evidence of remediation in relation to the clinical failures, which were deemed to constitute misconduct, the Committee held that Mr A’s fitness to practise was not impaired. Mr A was represented by Andrew Hockton, instructed by Joanna Flowers of the MPS.
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Awards
Clinical Negligence Set of the Year
WINNER
Clinical Negligence Silk of the Year
Christopher Johnston QC
Outstanding Contribution to Diversity & Inclusion Set of the Year
SHORTLISTED
Professional Discipline Set of the Year
SHORTLISTED
Gerry Boyle QC
Professional Discipline Silk of the Year
SHORTLISTED
David Morris
Professional Discipline Junior of the Year
SHORTLISTED
Elliot Gold
Leader of the future, Diversity & Inclusion
SHORTLISTED
Professional Discipline Silk of the Year
John Beggs QC
Chambers Innovation
WINNER
Chambers of the Year
WINNER
Award for Customer Focus
WINNER
Chambers of the Year
WINNER
Katie Gollop QC
Barrister of the Year
WINNER
Client Care Initiative of the Year
HIGHLY ACCLAIMED
Certificate of Recognition for Excellence in Well-being
HIGHLY ACCLAIMED
Michael Mylonas QC
Clinical Negligence Silk of the Year
SHORTLISTED
Angus Moon QC
Clinical Negligence Silk of the Year
SHORTLISTED
Professional Discipline Junior of the Year
ANTHONY HAYCROFT
Clinical Negligence Set of the Year
SHORTLISTED
Angus Moon QC
Clinical Negligence Silk of the Year
SHORTLISTED
Client Management Innovation
FINALIST
Chambers of the Year
WINNER
Litigation Team of the Year
FINALIST
Set of the Year
WINNER
Clinical Negligence Set of the Year
WINNER
Bridget Dolan
WINNER
Set of the Year
WINNER
2015
Set of the Year
WINNER
The Lawyer Awards 2015
Bronze place
GERRY BOYLE
2015
Client Service
HIGHLY ACCLAIMED
Bronze place
SET OF THE YEAR
2016
JOHN BEGGS QC
2016
Set of the Year
HIGHLY ACCLAIMED
2016
Rising Star
CECILY WHITE
Professional Discipline Junior of the Year
ANDREW HOCKTON
Best Strategic Resource
2015
FINALIST
Professional Discipline Finalist
ANTHONY HAYCROFT
Best Service Innovation
FINALIST
2016
BRIDGET DOLAN QC
Professional Discipline Set of the Year
WINNER
Finalist
JOHN BEGGS QC