The European Court of Human Rights has handed down judgment in the case of Pal v United Kingdom in which Aaron Rathmell acted for the applicant, instructed by Advocate (the Bar Pro Bono Unit) with assistance by Hugh Tomlinson QC of Matrix Chambers.

The case concerned a decision by a police force to arrest and charge a journalist with the offence of harassment, in connection with an article and Twitter posts, and whether the police and domestic courts had recognised the applicant’s Article 10 ECHR freedom of expression and carried out the appropriate balancing exercise between potentially competing rights.

The European Court clarified the article 10 ECHR right as it applies to journalists and bloggers, gave guidance for balancing that fundamental right against other rights that may be in issue when complaints are made to police, and found that the applicant’s rights had been violated both by her arrest and prosecution, making a declaration and damages award accordingly.

Please see the judgment here.

Patient A died hours after seeing a trainee GP [Dr A]  in consultation at the GP surgery, with symptoms attributed to a chest infection. Following news of Patient A’s death,  Dr A amended the electronic record of the consultation, by making a number of additions to it. It was Dr A’s account that the additions to the records, which could be clearly tracked on the electronic record, were carried out in order to make them fuller and more accurate. Following complaint by a family member of the deceased, a contested hearing took place before the Medical Practitioners Tribunal. The key issues before the tribunal were whether or not Dr A’s care fell seriously below the expected standard and whether or not her amendments to the records were made dishonestly. Expert GP evidence was adduced by the GMC and on behalf of Dr A.  Further expert evidence was adduced from a respiratory expert who confirmed that the deceased died from a rare and fulminant viral pneumonitis [as classically seen with fulminant influenza cases in the flu pandemic 100 years ago and, subsequently to this case, in some recent COVID cases] where deterioration and death occurred very rapidly. The contested facts were found not proved and the tribunal determined that the admitted facts did not amount to misconduct. There was therefore no issue of impairment of Dr A’s fitness to practise. The tribunal also determined that there was no basis for a warning.

Andrew Hockton represented Dr A and was instructed by Adam Lotter of MDDUS.

In this Court of Appeal case concerning judicial visits to P, Katie Gollop QC represented the NHS Trust (instructed by Kennedys) and Nageena Khalique QC represented AH instructed by her litigation friend, the Official Solicitor.

Read Katie Gollop QC’s analysis of the case below:

Judicial visits to P in the Court of Protection: First, work out its purpose

Re AH [2021] EWCA Civ 1768 (25 November 2021)

In Re AH,[1] for the first time the Court of Appeal considered judicial visits to P in the Court of Protection, set out the matters that will need to be determined before any such visit takes place, and called for guidance, similar to that in the Family Court with regard to judges meeting children subject to contested proceedings.

Pending such guidance, and per Moylan LJ (see §75), the following matters will need to be determined before any visit to P takes place and after submissions from the parties:

1. Whether the judge will visit P;
2. The purpose of any visit;
3. When the visit is to take place and the structure of the visit (in other words, how the visit it to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken);
4. What is to happen after the visit. This will include, depending on the purpose of the visit, how the parties are to be informed what occurred; when and how this is to happen; and how this will fit within the hearing so as to enable it to be addressed as part of the parties’ respective cases.

The Facts

In December 2020, AH, who has four adult children, was admitted to hospital with Covid-19. The virus caused her devastating, permanent injuries to her brain, nerves and muscles, unable to speak or move other than small movements of the head and neck, in a minimally conscious state plus, and dependent on mechanical ventilation.

The hospital became concerned that further treatment with ventilation was causing distress and was not in her best interests. It issued proceedings for a declaration that it was lawful and in AH’s best interests not to be provided with further such treatment.

The application was heard by the Vice President of the Court of Protection.[2] The two experts instructed independently reached the view that more treatment was not in AH’s best interests. Some of her children did not agree and pointed to her faith as a Muslim and the pleasure she derived from the company of her family as reasons why AH would wish to continue to be ventilated, and why it was in her best interests for that treatment to continue. The application was also opposed by the Official Solicitor.

After the conclusion of the evidence, and having received final written and oral submissions, the Vice President visited AH in hospital and saw and spoke to two of her children there. Throughout, the Judge was accompanied by a solicitor from the Office of the Official Solicitor who made a record. That record was not sent to the parties and the Judge did not communicate with the parties about what happened during his visit. He then gave judgment deciding that there should be time to enable the family to gather round AH, and that ventilation should not continue after the end of October 2021.  AH’s children appealed that decision.

The Court of Appeal was unable to uphold the Vice President’s decision and directed that it be set aside and that there be a re-hearing.

What Went Wrong

There were four grounds of appeal all of which were unsuccessful. Shortly before the appeal hearing, the appellants received the Official Solicitor’s Note of the Judge’s visit to AH. That led to a fifth ground of appeal which did succeed (see §4):

“the Judge’s visit was wrongly used by him as an “evidence gathering exercise to establish what AH’s views were”, which “likely influenced his overall conclusions”, and that this rendered his decision procedurally unfair because the parties were not given the Note of the visit, nor given an opportunity to make submissions in respect of the visit, prior to the judgment.”

The Court of Appeal agreed that it was possible that the judge had used the visit to gather evidence and that to ensure procedural fairness, the parties needed to be informed of the content of the visit and an opportunity to make submissions.

The President will now invite the CoP’s multi-disciplinary forum “the Hive” to consider judicial meetings with P so that a new[3] Practice Direction or Guidance may be issued. Pending that, he endorsed the approach described by Moylan LJ.

[1] [2021] EWCA Civ 1768 –  judgment here
[2] [2021] EWCOP 51 – judgment here
[3] The existing guidance issued by Charles J in 2016 on Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings (here) only touches briefly at §14 on meetings with the judge.

For Nageena Khalique QC’s blog, please see our UK Medical Decision Law Blog here.

Congratulations to John de Bono QC  (shortlisted for Clinical Negligence Silk of the Year), Neil Davy (awarded Clinical Negligence Junior of the Year) and to  Elliot Gold  (awarded Professional Discipline Junior of the Year).

We are also delighted to be awarded Clinical Negligence Set of the Year, and to be shortlisted for Professional Discipline Set of the Year.

Many thanks to all of our clients who participated in the directory research process, and of course to James Cowdell, Eleanor Crundwell, Eleanor Burt, Sam Williamson and the rest of the team at the Chambers & Partners for all their careful work.

We are delighted to announce that Emma Sutton has been appointed as a Fee-Paid Judge of the First-tier Tribunal assigned to the Health, Education and Social Care Chamber with immediate effect. Emma is delighted to add this part-time judicial appointment to her practice, alongside her recent appointment as an Employment Judge.

Emma will continue to practise from Serjeants’ Inn Chambers and accept instructions in the usual way.  She has extensive experience in the Court of Protection, public and administrative law, education and inquest and inquiries work.

To read more about Emma’s practice, please see here.

Emma Sutton has recently successfully completed the ‘25 for 25’ Challenge which involved undertaking a significant number of hours of pro bono work through Advocate. Emma was instructed by the first respondent mother in Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors [2021] EWHC 2574 (Fam) before Mr Justice Peel. The case involved a serious medical treatment application where declarations were sought that it was lawful and in the best interests of a 19 month old child who sustained a profound neurological injury at birth for ceilings of care to be imposed; including any form of invasive ventilation, escalation of intensive care support or CPR.

Please see here for the judgment.

Mr Justice Peel stated within the judgment that he ‘[could] not forbear from comment that it seems to me to be little short of scandalous that in cases of serious, and often urgent, medical treatment for children, where issues of life and death are frequently considered, parents such as these have little option but to rely upon the goodwill, availability, and dedication of members of the Bar acting for free’.

In Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors [2021] EWHC 2574 (Fam), Michael Mylonas QC was instructed by applicants, Emma Sutton was instructed for the first respondent mother, and Neil Davy and Susanna Rickard for the second respondent father. Both parents were represented on a pro bono basis through Advocate.

The case was before Mr Justice Peel and involved a serious medical treatment application where declarations were sought that it was lawful and in the best interests of a 19 month old child who sustained a profound neurological injury at birth for ceilings of care to be imposed; including any form of invasive ventilation, escalation of intensive care support or CPR.

Having heard the clinical evidence, the first respondent did not oppose the application as she did not consider that her daughter’s life should be prolonged at all costs (acknowledging that the suffering her daughter felt may outweigh what little benefit she received from her life). The father opposed the application in terms of  the withholding “Any invasive forms of ventilation”.

The critical issue in the case by its conclusion had narrowed to one aspect of the relief sought, namely whether withholding of invasive ventilation should be authorised. The court ultimately granted the application. The case involved cultural and religious issues in addition to complex medical issues. Please see here for the judgment.

Of note, in relation to the advocates for the parents appearing pro bono, Mr Justice Peel said this:

1. All parties have been represented by counsel, to whom I am grateful for their clear and able written and oral submissions, as well as their immense courtesy towards all the witnesses, and their sensitive handling of difficult human issues. I would like to acknowledge in particular Ms Sutton, on behalf of M, and Mr Davy and Ms Rickard on behalf of F, who have acted pro bono, dedicating a great deal of time, energy and commitment to these intensely personal and demanding proceedings.
2. I cannot forbear from comment that it seems to me to be little short of scandalous that in cases of serious, and often urgent, medical treatment for children, where issues of life and death are frequently considered, parents such as these have little option but to rely upon the goodwill, availability, and dedication of members of the Bar acting for free.

The Brook House Inquiry is a statutory public inquiry set up to investigate mistreatment of individuals who were detained at Brook House Immigration Removal Centre (IRC) between 1 April 2017 and 31 August 2017, as shown in the BBC Panorama programme “Under Cover: Britain’s Immigration Secrets” aired on 4 September 2017. The purpose of the Inquiry is to understand what happened at Brook House IRC identifying responsibility for any mistreatment and to identify learning and to make recommendations that would help to prevent a recurrence of such events. For the purposes of the Inquiry, ‘mistreatment’ is interpreted to mean treatment contrary to Article 3 of the European Convention on Human Rights, namely torture, inhuman or degrading treatment or punishment. The Inquiry will examine a range of issues including whether methods, policies, practices and management arrangements (both of the Home Office and its contractors) caused or contributed to any identified mistreatment; whether any changes to these would help to prevent a recurrence of any identified mistreatment; whether any clinical care issues caused or contributed to any identified mistreatment; whether any changes to clinical care would help to prevent a recurrence of any identified mistreatment and the adequacy of the complaints and monitoring mechanisms provided by Home Office Immigration Enforcement and external bodies (including the centre’s independent monitoring board and statutory role of Her Majesty’s Inspectorate of Prisons) in respect of any identified mistreatment.
Sarah was appointed first junior counsel to the Inquiry in April 2021.