We are delighted that Michael has been included as one of 16 barristers featured in The Lawyer’s Hot 100 this year:

The Lawyer comments as follows: “Michael Mylonas QC had 24 hours to secure the extraction and posthumous use of a fatally injured man’s sperm to allow the victim’s wife to become pregnant.

A day before the man died, Mylonas collaborated with the doctors involved and the Human Fertilisation and Embryology Authority to urgently submit an application to the Court of Protection, which hears cases related to people who – due to lack of mental capacity – cannot make decisions for themselves.

Showing how the couple was undergoing a fertility treatment and was keen to have a child, the barrister convinced the judge that it was the man’s will to enable his wife to conceive, and subsequently allowed for his sperm to be retrieved and stored through the signature of a deputy.

As part of his medical law practice, Mylonas has been working on a series of groundbreaking cases at the intersection of biology, ethics and law, often pushing regulatory boundaries and shaping the public debate. Next year, he will work on the regulatory void surrounding the case of a transgender man who wants to be recognised as father of his baby after a local registrar said he would be forced to be recorded as mother.”

Serjeants’ Inn is delighted to announce that Rhys Hadden has been appointed as a part-time Judge of the First-tier Tribunal.

Rhys has been assigned to the Health, Education and Social Care Chamber which is responsible for mental health, special educational needs and disability, care standards and primary health list cases. His practice in Chambers will continue as usual.

UCH v KG [2018] EWCOP 29 

The Court of Protection yesterday authorised a third incapable person commencing a novel potential treatment for sCJD.  Bridget Dolan QC has represented three patients through the Official Solicitor in this series of cases.  That there is no known treatment for this devastating disease has been a significant factor in the court approving administration of PRN100 to incapable persons in the absence of any prior clinical trials in humans.

Judgment in Owens -v-South West Yorkshire Partnership NHS Foundation Trust was given on 9th January 2019. In the case Angus defended a claim by a Claimant who was a Consultant Radiologist and who had jumped from a balcony and sustained very serious injuries. The Claimant was paralysed and confined to a wheelchair. The Claimant alleged he had been negligently treated by a number of psychiatric nurses who refused to admit him to hospital. The Judge dismissed the claim for negligence and found for the Defendant.

A copy of the order and judgment is here.

On 5 October 1974 bombs exploded at the Horse and Groom Pub and the Seven Stars Pub in Guildford, Surrey. Four soldiers and one civilian were killed and dozens of people were injured. Inquests into the five deaths were opened and adjourned pending criminal investigations. The inquests were never resumed following the convictions of the “Guildford Four” and the Maguire Seven” arising out of the bombings. Those convictions were later quashed by the Court of Appeal.

On 20 December 2018 an application to resume the inquests into the Guildford Pub Bombings was heard by the Senior Coroner for Surrey, Richard Travers. A decision on the application is expected on 31 January 2019.

Edward Pleeth represented the Ministry of Defence.

James Berry represented the Metropolitan Police Service.

Conrad has successfully defended the Chief Constable of Kent police in jury trial involving allegations of assault, false imprisonment and misfeasance in public office.  The Claimant alleged that he had sustained a head injury caused by the unlawful use of force by a police officer during a disturbance in Ashford Kent. The claim for misfeasance in public office was struck out on legal grounds.  The claim for assault was dismissed on the basis that whichever version of events was preferred, the officer’s use of force was reasonable.

Instructing solicitor: Daniel West (BLM).

Anthony Haycroft successfully represented a Scottish hospital doctor in an 8 day Fitness to Practise hearing in Manchester against an allegation of rape whilst he was a medical student, from a fellow medical student, at his home after an evening of drinking. The doctor was not prosecuted by the Scottish authorities where the criminal rules of evidence are different from those in England. Scots law is akin to English law pre-1994 and so there is an absolute right to silence in police interviews and in relation to giving evidence at trial. In addition, all sexual offences must be corroborated by independent evidence. These rules do not automatically apply in the MPTS and so a Scots doctor may potentially incriminate himself.

The GMC decided to bring FTP proceedings. The complainant gave evidence and was cross examined via video link from abroad.

The case was legally complex: the doctor intimated he would not give evidence but merely call other evidence as he wished to exercise his absolute right of silence under Scots law. He called a “skilled” witness in Scots law (ie the equivalent of an expert witness in Scotland) in support of his position. The GMC sought to argue that the MPT could draw “adverse inferences” from his failure to give evidence, which the defence resisted. There is currently no authority on the point and the FTP Rules of 2004, which have been revised as recently as 2017, do not allow for adverse inferences to be drawn expressly in these circumstances.

There was a day of legal argument on this issue at the conclusion of the GMC case. The MPT accepted Mr Haycroft’s argument that it should not draw any such inferences and the doctor did not give evidence.

After two days of deliberations on the facts, the Tribunal acceded to Mr Haycroft’s submission that a “heightened examination of the facts” was called for and that, upon such an exercise, “cogent evidence” of proof was lacking. None of the charges were found proved by the MPT, which found the complainant’s evidence inconsistent in places. They did find consensual sexual intercourse had occurred although not admitted. Although the Tribunal also found “sexual motivation” proven, no misconduct was found as the matter was consensual. This is the second adverse inference case which Anthony has defeated in as many months.

Anthony Haycroft was instructed by Laura Donald and Georgia Rose of BTO solicitors, Edinburgh, supported by Dr Claire Macauley of the Medical Defence Union

Christopher Johnston QC and Claire Watson, instructed by Alison Eddy and Anne Kavanagh of Irwin Mitchell, have succeeded on appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832. Acting for the Claimant, Chris and Claire successfully argued that the High Court’s decision not to award her damages for the costs of commercial surrogacy in California was wrong.

Ms X developed cervical cancer and was left infertile due to the Hospital Trust’s negligent failure to correctly report on a number of smear tests and biopsies. At first instance, Sir Robert Nelson held that Ms X could recover limited expenses for UK-based surrogacy using her own eggs but not those of a donor. That decision, the first of its kind, was significant in itself. However, Ms X appealed, arguing that the judge was wrong to follow Hale LJ’s judgment in Briody [2002] QB 856 and hold that commercial surrogacy arrangements were considered to be contrary to public policy.

The Court of Appeal (comprising McCombe LJ, King LJ and Nicola Davies LJ) unanimously allowed the appeal and dismissed the Trust’s cross-appeal. For the first time, the Court has held that, in the light of the Supreme Court’s decision on the concept of illegality in Patel v Mirza [2016] UKSC 42, there is no public policy bar to the recovery of damages for the costs of commercial surrogacy in California. Ms X proposed to do nothing that was unlawful either in the UK or in California. In addition, in a departure from Hale LJ’s dicta in Briody, it was held that damages for the cost of ‘donor egg’ surrogacy had the effect of putting Ms X as nearly as possible in the position she would have been in had the Trust not been negligent. The distinction between ‘own egg’ and ‘donor egg’ surrogacy was artificial and could not be maintained.

The Trust was refused permission to appeal by the Court of Appeal.

Lord Faulks QC and Charles Feeny, instructed by Daniel Morris of Bevan Brittan, acted for the Trust.

See our UK Healthcare Law Blog post on the High Court’s decision below (September 2017) here. A further post on the Court of Appeal’s judgment today will follow shortly. A copy of today’s judgment is here.

Michael Mylonas QC and Susanna Rickard, together with David Halpern QC of 4 New Square, were instructed by Rachel Stewart (Hughes Paddison Solicitors) on behalf of ARB, in his breach of contract claim against IVF Hammersmith. The clinic thawed and implanted a frozen embryo into ARB’s ex-partner without his knowledge or consent – resulting in a child. Judgment was handed down by the Court of Appeal today. ARB succeeded in overturning the trial judge’s finding of no negligence, and in upholding the finding of strict liability under the contract. The Court of Appeal however found that ‘policy’ prevents ARB from recovering any damages for the financial consequences of the breach, drawing on principle from the tort cases of McFarlane and Rees. ARB is likely to seek permission to appeal from the Supreme Court.

Judgment and press summary can be found here.

The Supreme Court has today handed down judgment in the case of Welsh Ministers v PJ [2018] UKSC 66.

The case is about community treatment orders under the Mental Health Act 1983 and deprivation of liberty. The Supreme Court decided that it is not lawful to impose conditions under a community treatment order which amount to a deprivation of liberty. Although this was a case which started in a Welsh tribunal, the case applies to both England and Wales. The Supreme Court’s decision is consistent with the Mental Health Act Codes of Practice for both England (which says that conditions must not deprive a patient of liberty) and Wales (which is silent on the particular point).

Amy Street represented the Welsh Ministers, led by Richard Gordon QC, instructed by Joanna Corbett-Simmons and Allan Wilson at Blake Morgan LLP.

Link to judgment and related material: https://www.supremecourt.uk/cases/uksc-2018-0037.html

In the Court of Appeal, PJ  was heard together with the case of Secretary of State for Justice v MM, which addressed the same question in relation to conditional discharges also under the Mental Health Act 1983. The Supreme Court heard the appeals separately but also reached the equivalent conclusion in MM – ie that a conditional discharge may not have conditions which deprive a patient of liberty. Link to MM judgment and related material: https://www.supremecourt.uk/cases/uksc-2017-0212.html

Essex Police won their appeal against the High Court decision that Barrymore should be awarded more than nominal damages following his arrest in 2007, which was unlawful because the arresting officer did not have the grounds for arrest in mind (the intended arresting officer having been unable to perform the arrest as a result of being delayed in traffic).  The Court of Appeal held that, since Barrymore could and would have been arrested lawfully if the correct procedures had been followed, he had suffered no loss and was only entitled to nominal damages.

John Beggs QC and Cecily White acted for the Chief Constable of Essex Police below and in the Court of Appeal and Lord Faulks QC was also instructed on the appeal. Adam Hunt led the team at Essex Police with Tom Walshaw at DAC Beachcroft as the instructing solicitor.

Analysis of the case and a copy of the judgment are available on our UK Police Law Bog here. BBC coverage of the decision is here.