In November 2019 the Appellant was convicted at the Old Bailey of a single offence of possession of a single indecent video clip of a child. It had been sent to her unsolicited by her sister and it was an image which the Appellant never opened or played. At a ‘fast track’ misconduct hearing in March 2020 the Appellant was summarily dismissed for discreditable conduct by the Metropolitan Police.

Before the Police Appeals Tribunal, Gerry successfully argued that the Presiding Officer at that misconduct hearing had misapplied the law, failed to comply with statutory guidance and reached a decision to dismiss the officer which was unreasonable and unfair. The Police Appeals Tribunal allowed the appeal, overturning Supt Williams’ dismissal.

Gerry worked with Matthew Hardcastle, John Harding and Maeve Keenan of Kingsley Napley LLP , instructed by Victor Marshall of the Police Superintendents’ Association.

Khan (Respondent) v Meadows (Appellant) [2021] UKSC 21

Neil acted in the Supreme Court in a claim arising from the wrongful birth of a child born with both haemophilia and autism, in circumstances where the Respondent GP had negligently advised in relation to the risk of the child being born with haemophilia (but not in relation to the risk of autism).  The case concerned the sole legal issue of whether the scope of the GP’s duty extended to the costs associated with the autism.

Judgment was handed down today in favour of the Respondent. The Supreme Court was unanimous in rejecting the Appellant’s appeal and laid down a new approach to analysing liability in clinical negligence cases.

Neil acted alone for the Defendant at first instance and as junior before the Court of Appeal and the Supreme Court. He was instructed by Greg McEwen of BLM.

A summary of the case can be found here.

We are pleased to announce that Sebastian Naughton has been appointed as an Assistant Coroner for London South (Croydon).

Sebastian regularly acts for families, NHS Trusts, individual clinicians and various other statutory bodies in complex multi-factorial deaths, often involving Article 2. He is frequently praised by his clients not only for his forensic questioning of witnesses, but for his compassionate and reassuring conduct, and his ability to put nervous witnesses at ease.

For further information on Sebastian’s practice, please click here.

Anthony Haycroft represented a GP at the Crown Court at Amersham facing an allegation of sexual touching of a patient during a heart and lung examination. In addition there had been purported bad character allegations concerning other patients. The Crown accepted the defence argument against bad character and so the case continued in respect of the single incident only. The jury took under two hours to return a unanimous verdict of not guilty and the doctor was discharged.

Anthony Haycroft was instructed by Ian Sadler and Jinal Shah of Radcliffe LeBrasseur, London through Dr Nicholas of Medical Protection Society.

On 19 May 2021, Lieven J determined the renewed oral application of Andrew Riddle for Permission to Appeal the two judgments of Senior Judge Hilder dated 11 August 2020 and 4 September 2020. They are reported as The Public Guardian v Andrew Riddle (No1) and (No2) [2020] EWCOP 41.

The litigation is particularly complex, but in short, the court at first instance had to consider some 40 cases in which Mr Riddle, who is a professional deputy, but not a solicitor, sought authority to charge fees at solicitor rates or a specified rate. In the original judgments, Senior Judge Hilder refused Mr Riddle’s application to charge rates higher than the Local Authority rate, and also refused his application for retrospective authorisation for the solicitor rates he had been charging his clients without authority.

The 4 grounds of appeal can be summarised as the Judge having:

1. Erred in concluding that Mr Riddle’s qualification, experience, and business structure did not justify a specified rate on a general basis;
2. Erred in concluding that Mr Riddle’s qualification, experience, and business structure did not justify a specified rate on a specific basis;
3. Erred in refusing to grant Mr Riddle’s application for relief from liability for past charging;
4. Erred in refusing Mr Riddle’s application for the Public Guardian to pay his costs associated with responding to the revocation applications.

In a comprehensive judgment, the court determined that each of the 4 grounds did not reach the threshold for permission to appeal set out in rule 20.8(1) of the Court of Protection Rules 2017 – namely that there was no reasonable prospect of success, and no other compelling reason why the appeal should be heard.

Paragraphs 7-8 and 13-34 provide a helpful legal framework regarding appeal hearings, renumeration of deputies and retrospective authorisation.

Points to take away from the judgment

1. The whole tenour of the judgment relates to Mr Riddle’s arguments being a result of his disagreement with the Judges’ evaluative judgement and the weight she attached to various evaluative matters. In particular, at paragraph 37, Mrs Justice Lieven emphasises that ‘Those are things for the first instance judge, and subject to any misdirection (of which there was none), this is not a matter that the appeal court should interfere with’;
2. Judgments must be read as a whole, and it is wrong to focus on extracts of a judgment without seeing the broader context (paragraph 10);
3. Cumbria County Council v A [2020] EWCOP 38 does not change the law in any way. It simply provides a number of indicators of when it may be appropriate to appoint a professional deputy. The decision is ultimately a matter for the court having regard to the individual facts of a case (paragraph 41);
4. If an order is made refusing SCCO assessment, the appropriate route (if made without a hearing) is to seek reconsideration. It is not an appeal point (paragraph 43);
5. The starting position is that a Judge has a wide discretion regarding costs, and the appellate court should be very slow to intervene (paragraph 53);
6. In litigation which ‘evolves’ (in terms of the number of issues and the number of applications concerning differing P’s) it may not be possible to set out all of the grounds in one overarching letter before action, and a failure to engage in pre-action conduct (in such circumstances) may not be an appropriate criticism (paragraph 54).

Emma Sutton appeared on behalf of the Public Guardian instructed by Baljit Dhillon-Sidhu, senior lawyer within the Legal and Information Team. The judgment can be found here.

Since March 2020 the Mental Health Review Tribunal for Wales, which is the legal court applicable to those who are detained under the Mental Health Act to challenge their detention, did not enable cases to be heard face to face via Video Means, in contrast to England, and has held all cases over the last 14 months to date via telephone means only. The successful application resulted in the first Mental Health Review Tribunal case in Wales to be held via video conferencing.

The tribunal’s president has confirmed that following this decision a series of trial hearings will be selected going forward in Wales to have cases heard face to face with alternative video platforms.

Emma Sutton worked with Amy Roberts-Rees, Partner in charge of the Mental Health Department at CJCH Solicitors, and Craig Mills on this successful application.

Emma Sutton acts for the applicant Mental Health Trust, and Caroline Hallissey for the respondent Acute Trust.

In A Mental Health Trust v ER (by her litigation friend the Official Solicitor) & An NHS Foundation Trust [2021] EWCOP 32, the applicant Trust, represented by Emma Sutton, sought authorisation to withhold life sustaining medical treatment in the form of clinically assisted nutrition and hydration to a patient, ER, who had a long standing diagnosis of anorexia nervosa. Due to a prolonged history of hospital admissions where ER would put on weight whilst in hospital, only to lose it again upon discharge, the Trust did not seek to again treat ER against her will (via the Mental Capacity Act 2005 or the Mental Health Act 1983), with the consequence that she would sadly die.

ER had capacity to make decisions regarding other physical health needs, including  treatment for her end stage renal disease which required dialysis 3 times a week. Caroline Hallissey represented the acute Trust and ER’s treating clinician indicated that ER was likely to have a life expectancy of between 6 and 12 months arising from her renal failure.

Having met ER prior to the commencement of the final hearing, and due to the differences in ER’s decision making ability, Mrs Justice Lieven wanted to ensure that ER’s capacity to make decisions regarding treatment for her anorexia was properly analysed. The court heard oral evidence from Dr Cahill, a consultant psychiatrist with significant expertise of treating patients with particularly severe anorexia, and ultimately accepted the clinical and expert evidence that ER lacked capacity.

The Judgment helpfully summarises the relevant authorities regarding anorexia and capacity, and highlights the complicating factor in this particular as being ER’s terminal renal condition and how that issue impacted on ER’s decision to refuse treatment for her anorexia nervosa. Please see here for the judgment.

Emma Sutton was instructed by Sophie Barbour of Hempsons and Caroline Hallissey was instructed by Simon Lindsay of Bevan Britton.

This High Court case concerned a heavily pregnant 21 year old who, as a result of agoraphobia, had barely left her house for the past three years. Agoraphobia made her unable to attend antenatal appointments and scans. The doctors and midwives were worried she would not be able voluntarily to attend hospital even in an emergency and that a home birth would be unnecessarily risky. A hospital birth was what she, her partner and mother all wanted. Capacity was not in issue: inability to leave the house because of agoraphobia made the mother to be unable to make a decision about whether to give birth at home or in hospital.

The issue for the Court, balancing physical and psychiatric risks, was whether it was in her best interests to have force applied to get her to hospital for a planned delivery before she went into labour. Katie Gollop QC and Claire Watson were instructed by Jemma Gillson of DAC Beachcroft for the Trusts, argued that it was. Sophia Roper, instructed for the woman by The Office of the Official Solicitor, argued that it was not. Judgment will be published imminently.

Click here to see press coverage from the Guardian.

In Re KM, Mr Justice Keehan, sitting in the Court of Protection, granted the application of the Trust to withdraw life-sustaining medical treatment in the form of extra-corporeal membrane oxygenation from a 52 year old man who had been fit and well before suffering a pulmonary embolism and heart failure and contracting COVID-19. Emma Sutton represented the applicant Trust and Michael Horne QC represented KM, by his litigation friend, the Official Solicitor.

The evidence of the treating clinicians and expert intensivist was that there was no chance of recovery and that KM was in pain and distress. KM’s family, supported by the family pastor, strongly opposed the application due to their deeply held religious beliefs as Pentecostal Christians that a miracle would happen. The court afforded great weight to their views, and the likely wishes and feelings of KM that treatment should continue, but held that such views were not determinative, and that the withdrawal of life sustaining treatment was in KM’s best interests and would provide him with a dignified death.

Michael Horne QC was instructed by Tracy Hollamby of The Official Solicitor and Emma Sutton was instructed by Victoria Colclough and Ed Pollard of Browne Jacobson. A summary is at [2021] 5 WLUK 89, and the published judgment will follow in due course.

In R (Chief Constable of Avon & Somerset) v Police Misconduct Tribunal & Archer [2021] EWHC 1125 (Admin) the Chief Constable challenged a misconduct panel’s decision not to dismiss an officer who used a racist epithet in the workplace by way of judicial review. While the Chief Constable’s claim was unsuccessful, the Administrative Court gave useful guidance on the test to be applied by panel chairs in deciding which witnesses should be called to give oral evidence at a hearing – see [69] – [70]; [72]; [82]. In doing so, the Court accepted submissions made by Elliot Gold on behalf of the Claimant and James Berry on behalf of the IOPC who intervened in the case to make submission on that discrete issue.

In R (Chief Constable of Nottinghamshire) v Police Appeals Tribunal & Flint [2021] EWHC 1248 (Admin), the Chief Constable challenged the PAT’s decision to reinstate an officer who had been dismissed for gross misconduct. The Chief Constable succeeded and the PAT’s decision was quashed. The Court accepted submissions made by John Beggs QC and James Berry on behalf of the Chief Constable that when the PAT substitutes its own sanction for that imposed by the first instance panel, it must follow the same approach to sanction as required of the panel – see [72] – [77]. The need for that approach to be followed by the first instance panel was established in R (Chief Constable of Greater Manchester Police) v Police Misconduct Tribunal & Roscoe (2018), where James Berry acted for the successful Chief Constable.

John, Elliot and James frequently act for all parties in judicial review challenges to decisions in the police misconduct jurisdiction and more generally, as well as appearing in first instance misconduct hearings and appeals from misconduct proceedings.

Michael Mylonas QC, Richard Partridge and Ranald Davidson provided pro bono legal advice to the Royal College of Radiologists as they worked to create a pioneering series of new patient consent forms.

Launched on the 4th of May, the standardised forms are for recording a patient’s informed agreement to radiotherapy treatment, and relevant treatment information, after they have decided on a regime with their cancer team. They have been designed to provide consistent and relevant information on treatment and side-effects, but still be adaptable for individual patients.

To read more about the UK’s first standardised radiotherapy consent forms please see here.

Webinars

Lawyers in lockdown: managing the challenges
Bridget Dolan QC and Rachel Spearing  discuss the challenges created by the pandemic. Despite Bridget’s PhD in psychology and her 13 years working with the NHS as a Psychologist before she came to the Bar and Rachel’s experience gained as the co-founder and first Chair of the Bar Wellbeing Initiative, they are clear that there are no simple solutions and that what works for one person may not be relevant to another.

 P in Lockdown: getting in to P and getting P out
Practical advice for assessments, advocacy and access.
This Court of Protection webinar, chaired by Jess Flanagan and Sophia Roper, will draw on the panel’s experience of difficult issues arising from lockdown.

Skype in the Court of Protection – the courts in the time of Coronavirus
Serjeants’ Inn barristers Sophia Roper and Nageena Khalique QC acted for two of the parties in the first case to be heard remotely in the Court of Protection. In a lunchtime seminar introduced by Michael Mylonas QC they share their experience and answer questions.

Coronavirus police powers and duties talks
Dijen Basu QC, David Lawson and Elliot Gold recorded video seminars on new and existing police powers, the Civil Contingencies Act 2004, police organisation and collaboration and the duty of care to officers, police staff and members of the public arising from the Coronavirus emergency.

Podcasts

13.05.20   How has the law adapted to coronavirus
LBC, Alexander dos Santos

04.05.20   The Coronavirus Legislation
Police Law On Demand, Elliot Gold & Deborah Britstone

24.04.20   Covid-19 Guidance and Police Misconduct Hearings
Police Law On Demand, Cecily White  & Deborah Britstone

Articles

02.06.20  One Kingdom but four nations emerging from lockdown at four different rates under four different laws
UK Police Law Blog, Dijen Basu QC

15.05.20  Reducing restrictions, increasing inconsistency? Impact of the Lockdown Amendment Regulations on the Police’s Enforcement Ability
UK Police Law Blog, Dijen Basu QC & Frances McClenaghan 

11.05.20  Trial by ordeal? Not necessarily
Counsel, Michael Mylonas QC, Nageena Khalique QC, Sophia Roper, George Thomas, Simon Cridland, Alexander dos Santos & Hannah Hinton

07.05.20  Dealing with the increased risks to BAME NHS staff treating Covid-19 patients
UK Healthcare Law Blog, Dijen Basu QC & Sebastian Naughton

28.04.20  Covid-19 Deaths and Possible Exposure in The Workplace: The Coroner’s Role
UK Inquest Law Blog, Clare Hennessy

24.04.20  Covid-19: Government guidance on emergency rationing of critical care is needed to support professional decision making
BMJ, referencing paper by George Thomas, Katie Gollop QC & Sophia Roper

23.04.20  NHS faces billions in coronavirus claims
The Times, quoting George Thomas

23.04.20  The lawfulness of the Coronavirus Restrictions Legislation imposing ‘Lockdown’
UK Police Law Blog, Dijen Basu QC

15.04.20  Remote Verification of Community Deaths During the Covid-19 Pandemic: Should family members be relied upon?
UK Inquest Law Blog, Katie Gollop QC

14.04.20 Families of patients who die due to lack of ventilators could sue hospitals, legal experts warn
The Telegraph, quoting Katie Gollop QC and referencing paper by George Thomas, Katie Gollop QC & Sophia Roper

06.04.20  COVID-19: Allocation and withdrawal of ventilation – the urgent need for a national policy
UK Medical Decision Law Blog, George Thomas, Katie Gollop QC & Sophia Roper

01.04.20  A life worth living: Continuation of clinically assisted nutrition and hydration in an incapacitous but sentient man
UK Medical Decision Law Blog, Nageena Khalique QC

31.03.20   Legislation and guidance – what is in force
UK Police Law Blog, Elliot Gold

31.03.20   The quickly mutating Coronavirus legislation – drafting anomalies and police powers
UK Police Law Blog, Dijen Basu QC

30.03.20  Corona Crisis: Standard of Care
UK Healthcare Law Blog, Eloise Power

30.03.20   Guidance to Appropriate Authorities: police misconduct hearings during the coronavirus restrictions
UK Police Law Blog, Aaron Rathmell & Cecily White

27.03.20   Coroners’ Courts open for urgent and essential business only
UK Inquest Law Blog, Briony Ballard

27.03.20   Joggergate: How frequently is it necessary to exercise in Wales?
UK Police Law Blog, George Thomas

26.03.20   Lockdown Regulations made: restrictions and police powers
UK Police Law Blog, Dijen Basu QC & Elliot Gold

25.03.20   What powers does “take such action as is necessary to enforce” give to police officers?
UK Police Law Blog, Dijen Basu QC, George Thomas & Elliot Gold

24.03.20   The Coronavirus Bill – police powers explained
UK Police Law Blog, Dijen Basu QC

24.03.20   Coronavirus Lockdown: Police Powers? What Police Powers?
UK Police Law Blog, George Thomas

23.03.20  Skype in the Court of Protection
UK Medical Decision Law Blog, Nageena Khalique QC & Sophia Roper

13.03.20  Prison conditions and Coronavirus
Serjeants’ Inn News Page, Hannah Hinton

05.03.20   CORONAVIRUS QUARANTINE
New Law Journal, David Lawson

12.02.20   The UK Coronavirus regulations – legal powers to control a public health crisis
UK Medical Decision Law Blog, David Lawson

11.02.20   The power to quarantine
UK Medical Decision Law Blog, David Lawson