Law & Epidemiological Evidence: Double, Toil & Trouble- University of Western Australia Law Review, Vol 49 Issue 1

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In late February 2019, I had lunch at Wadham College, Oxford, with Professors Carl Heneghan and Sandy Steel to discuss a seminar on epidemiological evidence and the law. Almost exactly three years later, the results of this seminar at Wadham in July 2019 and a subsequent seminar at DWF London in February 2020 have been encapsulated in an article written by Per Laleng and myself, published in the University of Western Australia Law Review. Given its protracted genesis, the title of “Double, toil and trouble” can have more than one interpretation, however the pandemic at least provides some mitigation in this regard.

We were pleased and honoured to be published in the Special Causation edition of the University of Western Australia Law Review. This is an open-access publication.

As you read through the 15 articles over 475 pages, you will notice the wide range of the authors, to include leading academics, very senior judges and even some practitioners. Incidentally, if you do not have the time to read all 15 articles when you have finished ours, I would recommend Richard Wright’s contribution, which offers remarkable clarity in a very difficult area.

Prior to being invited to submit this article to the editors in Western Australia, we had sent it to two leading academic journals in this country. Both of them considered that the article had too much of a practical focus to be suitable for publication. One of the editors considered that there was insufficient “technical law”. I am not quite sure what “technical law” means, but this does not stop me being instinctively opposed to it.

Traditionally, it was considered a positive feature of the common law that its awareness of the reality of experience made it accessible to a broad range of public opinion, and at least to a significant extent acceptable. The man on the Clapham omnibus was never conclusively identified, but we can be reasonably sure he was not a technical lawyer.

Technical law appears to have developed through the intellectual parochialism of academia in the United Kingdom. Admittedly this excessive and often unfocused complexity in the law does have the attraction of inducing a degree of intellectual terror amongst certain sections of the judiciary. However it represents a damaging movement away from the traditional strengths of the common law. Reading many judgments now, it is quite apparent that their content and methodology has no resonance at all with the vast majority of the population who do not immerse themselves in technical law. Further, judgments inevitably become more extensive reflecting the breadth of argument before the Courts. Such litigation is now often conducted at eye-watering cost, affordable by major corporations and until recently oligarchs , but with the result that resort to the courts is prohibitively expensive for vast sectors of the population .

It is striking that admiring remarks are often made in leading appellate judgments in the Court of Appeal and the Supreme Court about Australian decisions which often appear to be much more concise and focused. It could be reasonably observed that the Australian Courts have remained much closer to the true ethos of the common law. The Editors of the Western Australian Law Journal do not appear to draw any distinction between law in practice and technical law. It is also conspicuous that notwithstanding the considerable time and effort put into producing this Special Edition, it is open-access.

Notwithstanding the toil and trouble in dealing with epidemiological evidence Pro Vide law will continue with its programme of seminars and writing on legal issues. On 9th June we are holding a seminar looking at Montgomery after seven years with clinicians, academics and practitioners entitled “Montgomery. Still too much information?” We held a seminar in 2015 on this subject. Seven years down the line is an opportune time to review the implications of the Supreme court decision for clinical practice and legal liability. If you are interested in attending this event either in person at offices of Weightmans Liverpool or virtually you can let us know.

Charles Feeny

Whittington Hospitals NHS Trust v XX (2020 ) UKSC 1

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The triumph of identity over collectivism? 

On 1 April 2020, the Supreme Court handed down judgment in the case of Whittington Hospital NHS Trust v. XX [2020] UKSC 14.  This inevitably controversial judgment received scant media attention at the time, given the commencement of the Lockdown.  It is likely that the decision will be the subject of considerable discussion once the Lockdown eases.

The Supreme Court, by majority of three (Hale, Kerr and Wilson) to two (Carnwath and Reed) dismissed the Defendant’s Appeal against the Court of Appeal’s award of damages to a Claimant, including damages to cover the costs of a commercial surrogacy arrangement in California.  The Claimant was a young woman who had been rendered infertile by the Defendant’s admitted breach of duty in failing to investigate and treat her cervical cancer.  She wished to have four children and wished to do so by commissioning through surrogacy in California.

In  the leading speech, Lady Hale explicitly declined to follow her own earlier judgment as Lady Justice Hale in the case of Briody v. St Helens & Knowsley Area Health Authority[2001] EWCA Civ 1010. In that case, the Court of Appeal had unanimously decided that it would not be appropriate to award damages for a commercial surrogacy in California because the award of damages would include the payment of sums for activities which were unlawful under statute in the United Kingdom.  In paragraph 53 of her speech, having reviewed a number of issues where, on her analysis, the position in XX was markedly different to that at the time of Briody, Lady Hale considered that it was no longer contrary to public policy to award damages for the costs of a foreign commercial surrogacy.

Lord Carnwath, with whom Lord Reed agreed, dissented.  At paragraph 63, Lord Carnwath concluded that the issue was essentially one of “legal policy” and that the most relevant factor was what had been described in earlier authorities as “the coherence of the law”.  A legal system which criminalised conduct but at the same time awarded damages to carry out the same activity could not be regarded as coherent.  Insofar as there was debate as to whether commercial surrogacy should be unlawful, Lord Carnwath indicated:

“It is difficult to think of a better guide to where to draw the line in a highly sensitive area such as this, than that indicated by Parliament.”

It is interesting to contrast Lady Hale’s approach in XX with her statement in Briodyin paragraph 15, where precisely the same argument arose as to funding an arrangement in California which would have been unlawful in the United Kingdom:

“It would appear (although I do not know whether there was any evidence on this before the Judge) that in California commercial agencies are permitted and surrogacy agreements may be binding.  If so, I have no difficulty in agreeing with the Judge that the proposals put to her were contrary to the public policy of this country clearly established in legislation and that it would be quite unreasonable to expect a Defendant to fund it.” 

Lord Justice Judge expressed a similar view at paragraph 39:

“Second, irrespective of dire medical prospects, the entire surrogacy agreement was unlawful in the United Kingdom.  The Judge was being asked to award damages for the express purpose of enabling Ms Briody to be provided with the wherewithal to pay for an unlawful contractual arrangement.  That is not a principal basis upon which to make a compensatory award.” 

Considering the reasons Lady Hale gave for adopting a different position, they do not appear to address this fundamental problem square-on.

In paragraph 49 of her speech, Lady Hale acknowledged that the usual position is that UK Courts will not enforce a foreign contract which would be contrary to the public policy of the United Kingdom.  She then asked, reasonably:

“Why then should the UK Courts facilitate the payment of fees under such contracts by making an award of damages to reflect them?” 

In paragraph 50 she indicated that not every aspect of the payments to be made in California would be unlawful in the United Kingdom.  However, given that the whole arrangement would have been unlawful and unenforceable in the United Kingdom, it is not clear what relevance is the fact that certain specific items of expenditure viewed in isolation of the overall purpose of the expenditure would be considered lawful.  There are many aspects of unlawful expenditure which, viewed in this way, could not in themselves be regarded as being contrary to the law. For example, a claimant might suggest that he or she wanted to travel to Columbia to use drugs which are illegal in this country, for pain relief. Would this claim succeed on the basis that neither the flight to Columbia nor the accommodation costs would in themselves be unlawful? Or a similar argument in relation to paying a solicitor to convey property in the context of a mortgage fraud? The reality is that the court would look at the proposal as a whole and would regard the lawfulness of individual components as irrelevant.

In paragraph 51 of her speech, Lady Hale referred to the continuing practice of the courts to grant parental orders to parents who had commissioned children through surrogacy. However, this practice had been established before Briodywas considered. It was concluded by the Court of Appeal that these orders were made retrospectively with the best interests of the child being paramount. They did not support authorising expenditure on commercial surrogacy.

Then in paragraph 52 of her speech, Lady Hale made reference to the great changes in societal attitudes to family and parenthood since the time of Briody.  Whilst this was undoubtedly correct and relevant to other aspects of the decision in relation to surrogacy, in particular in relation to the use of donor eggs, the position in relation to commercial surrogacy was conspicuous as to those which had not occurred. In particular, the statutory provisions prohibiting commercial surrogacy remain in place. The Law Commission, in a wide-ranging consultation paper published in 2019, did not suggest that there should be any change in the law in this respect, nor indeed suggest that this issue needed to be included in the consultation.

Therefore, Lady Hale’s speech did not confront the essential question of how a legal system which criminalises conduct but at the same time awards damages to facilitate that conduct could in any way be considered coherent.

Lord Sumption in his 2019 Reith lectures, “Trials of the State: Law and the Decline of Politics”, argued that there had been a growing tendency for what might be described as issues of social policy to be determined by the Courts rather than by Parliament.  Parliament, he felt, was becoming less powerful and this was unfortunate because Parliament was the appropriate forum for resolving differences of opinion over social issues.  He stated:

“A nation cannot hope to accommodate divisions amongst its people unless its citizens participate in the process of finding political solutions to common problems.  Law has its own competing claim to legitimacy, but it is no substitute for politics.” 

Lady Hale offered a reply to this in her Patterson Memorial Lecture on 8 October 2019.  Whilst any reputation that Lord Sumption has had for popular wisdom has probably been dispelled by his suggestion that we should view Coronavirus in the same apparently sanguine way that medieval peasants felt about the Black Death, nonetheless Lady Hale’s speech in XX is not a reply to his argument, but appears to be making it good.  Once it is acknowledged that she has failed to deal with the issue in relation to coherence of the law, her speech can only be read in terms of its conclusion as to commercial surrogacy as expressing a personal view, thereby translated into public policy.

I think the real reason for Lady Hale’s different view lies at the very commencement of her judgment in paragraph 1:

“For some women, the ability to bear and to rear children is a vital part of their identity.  What then should be the measure of damages for a woman who has been wrongfully deprived of the ability to bear children herself?”

The concept of identity did not figure in the arguments in Briody, nor generally in society at that time. The importance of identity has grown since that time and is now a paramount, indeed possibly all-prevailing concept.  It is interesting to contrast the basis of legal policy in the speech of Lord Carnwath.

The discussion of legal policy starts with the case of McFarlane v. Tayside Health Board[2000] 2 AC 59.  In McFarlane, the House of Lords identified that through a process of what was described as legal policy it would not be appropriate to award damages for the costs of bringing up a healthy child even though the child was the result of negligent failed sterilisation.  The House of Lords considered that whilst the parents had not wished the child, she would nonetheless be a loved child who would bring great pleasure to her parents.  Given the other demands on the resources of the NHS, it was not fair, just or reasonable that they should pay damages for the upbringing of this child.  This was essentially a collectivist approach which took into account the interests of all in determining the policy question.

When giving evidence in Briody, the Defendant’ expert, Professor Lord Winston, was asked by Claimant’s Counsel what the Claimant could do if she was not able to have a child through surrogacy, to which Lord Winston replied that she could reconcile herself to childlessness.  Some 20 years later this would be considered as an extremely controversial reply.  However, it did reflect a certainly 20th century attitude that there were things that had to be accepted, albeit still acknowledged in the level of awards of general damages for infertility.

The Claimant’s case for damages so that she could have a family in XX was, at every human level, extremely compelling.  Very clear reasons would have to be identified as to why it should not succeed.  Coherence in the law is, however, more compelling.  Coherence is not just a desirable quality from the law.  It is an essential quality.  Without coherence, law is not law, but becomes a selection of seemingly arbitrary rules.  How would you explain to a person who was subject to a criminal prosecution in the United Kingdom for running a commercial surrogacy agency that the Courts in this country awarded substantial sums to fund payments to such agencies?

I have a further problem with the claim for paramount nature of identity.  I have to admit to being an unreformed (and never to be reformed) mid 20th century collectivist who is quietly enjoying queuing outside of shops at present.  I readily admit that such collectivism had its unattractive qualities, including automatic male supremacy, the involvement of a class system, and intolerance (even mockery) of minorities.  The developing emphasis on identity can be seen as a reaction to these negative and out-moded features of collectivism.  However, I agree with Professor Mark Lilla who coined the term ‘identity liberalism’, that excessive concentration on individual identities will detract from core liberal values. Commenting after the election of President Trump, Mark Lilla stated:

“American liberalism has slipped into a kind of moral panic about racial, gender and sexual identity that has distorted liberalism’s message and prevented it from becoming a unifying force capable of governing.”

Lilla is denounced variously as a misogynist, homophobic, and even worse, when on analysis all he is saying is that identity liberalism has gone too far.  His jibe that identity liberalism is “Reaganism for lefties” is instructive.  We are, to our very obvious detriment, living in uniquely consumerist times.  Emphasis on identity could be seen as a form of psychological consumerism encouraging an individual to focus on him or herself and their specific attributes.  In the same way that material consumerism is obviously destroying our environment, it is possible that psychological consumerism could damage our social fabric.

It has been suggested that when we emerge from the lockdown it will be to a world which will be at least materially different.  It will be interesting to see how the decision of the Supreme Court in XX is viewed, either as a step in the right direction or a step too far?

Charles Feeny, Gus Baker and Sam Irving published in the Journal of Patient Safety and Risk Management

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“Charles Feeny, Gus Baker and Sam Irving have been published in the Journal of Patient Safety and Risk Management. In the April 2020 Volume 25, Issue 2, their article “Medical Accidents: a Socratic resolution?” has appeared.

The Journal of Patient Safety and Risk Management, formerly known as Clinical Risk, is an international publication. The Editor in Chief is Professor Albert Wu, of the John Hopkins University, USA. It is published online with access by subscription.  It publishes cutting edge articles in relation to patient safety and risk management.

The article by Charles, Gus and Sam discusses the response to medical accidents in the United Kingdom. They argue that the approach appears to be something which has developed in a piecemeal way.

The authors believe that the processes are now outmoded and lack a clear overview, in particular in terms of promoting better clinical management and less psychological impact on the victim.

There is specific discussion of the effect of clinical negligence litigation in terms of adverse outcomes in terms of patient safety and the psychological wellbeing of victims. The conclusion is that an overall approach has to be considered which will improve both patient safety and psychological outcomes for those injured by medical accidents.“

The article is subject to copy right but an abstract together with a link to sign up for the journal can be found here.

Litigation: when is it time to get up close and personal?

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The recent surge in digital communication is obviously a reaction to the lockdown. The interesting question is whether this will be a temporary phenomenon, or rather what might be seen as an overdue sea change in the use of technology in the law.

The technology which can be used to conduct meetings and indeed court hearings through video link has been widely available since the 1990’s. However, bizarrely, at the commencement of the lockdown one chambers claimed that they had conducted what they believed to be the first joint settlement meeting by video link. In my experience, negotiation through a joint settlement meeting or mediation by way of video link has been ongoing for at least the last 20 years, albeit still a very small minority of the total number of such negotiations.

This lack of use, and indeed appreciation of the use of such technology is no doubt substantially explained by inertia and conservatism in the law. The advantages of digital communication are obvious, both in terms of commercial benefit and also perhaps more importantly at this time, environmental impact. One possible positive outcome of the Coronavirus crisis, following swiftly on bushfires and floods, is that it might make more people appreciate that we cannot continue to abuse the planet in the way we do.

If digital communication is to become the norm, is it realistic to anticipate that this will extend to all aspects of litigation, to include contested hearings and trials?

Last month, Mr Justice Mostyn conducted what was said to be the first full hearing in the Court of Protection by way of video link. The Judge and the lawyers involved all considered the hearing to have been an unqualified success. Interestingly, a different view was taken by Professor Celia Kitzinger of the Transparency Project website. As reported in Legal Futures, Professor Kitzinger had spent the hearing in the company of the principal witness, the daughter of the patient who was subject to the Court of Protection hearing. The patient’s daughter, Sarah, had flown in to the United Kingdom because she expecting a face-to-face hearing. She gave evidence in a small room with her solicitor and barrister observing the social distancing rules. She was clearly dissatisfied, indeed apparently upset, about the way the hearing was conducted. She was quoted as saying:

"In a courtroom people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little 1-inch box on a screen and being honest, I bet half of them weren't even engaged in looking at it – as the Judge couldn't monitor them to make sure they were paying attention."

We have the options of communicating by telephone, video link or in person, in relation to many aspects of our lives . How do we decide which is the most appropriate?

First, it is reasonable to think that an important factor is how well we know the individual in person. With those we know very well, we are quite relaxed and confident in communicating by telephone. This is because we are familiar with the person and can sense from just the tone of their voice whether there is anything beyond the mere words being used, that is being communicated. We are less able to do this with people we have not met before. Here, we need much more of an impression of the person, to include the visual clues to which the witness Sarah made reference. The screen on a video link is still not good enough to give a full impression of the facial and body language of a person speaking. I have had many conferences with experts on the telephone. I think how well I know the expert is an important component to how effective this is. I still insist on having face-to-face conferences with experts at what might be described as crucial stages in litigation. This would, in particular, be the case when the action was running towards trial. I do not just want to hear what the expert has to say, but I want to form an assessment of how he or she would come over to a Judge in cross-examination. I would not be confident of doing this on the phone.

Secondly, the sensitivity of the information to be communicated is an important factor in deciding how to do it. There is an expectation that bad news, for example a poor diagnosis or prognosis from a doctor or the loss of employment, will be communicated in person. There was outrage when certain employers decided to tell their employees that they were being made redundant by text. This represents an expectation that sensitive information with an emotional impact should be communicated in person.

These factors probably underlie the different perceptions in relation to the Court of Protection hearing. For the Judge and the lawyers it was, in effect, just another day at the office. In saying this, I am not in any way suggesting that they were being insensitive to the situation, but those of us who are habituated to the courtroom are able to feel more relaxed and confident in that environment. For the witness Sarah, however, it was an important and emotional day of her life and she did not feel that this was significantly acknowledged in the process by video link.

Therefore, whilst the increased use of digital communication is undoubtedly to be welcomed and here to stay, there will remain, in my view, limits. Certainly in the short to medium term it is unlikely that trials by video link will be deemed satisfactory to most litigants. In the long term this may change, since eventually communication by video link will be more common than communication in person, and therefore represent the norm of human contact. That day is, however, I think, a long way off. We are all missing the daily personal contact with our friends and colleagues.

Resolution Through Mediation – Charles Feeny

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Charles Feeny writes in the May 2019 issue of Liverpool Law:

In April 2017, the National Health Service Litigation Authority (NHSLA) changed its name to NHS Resolution. This was not meant to be a nominal re-brand. It represented an aspiration to achieve what might be described
as a more holistic response to medical accidents. The new approach was taken in conjunction with other initiatives such as duty of candour and patient safety. Whilst the more jaundiced clinical negligence litigators viewed this development with some scepticism, there can be no doubt that the process of change has been approached with serious intent.

Click here to read the entire article and the rest of the magazine.

Band 1 again in Chambers & Partners…

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2nd November 2017

Band 1 again in Chambers & Partners and spotlight table for Charles Feeny in Clin Neg and Industrial Disease. ‘Widely recognised as leading clin neg specialist. Popular choice for firms looking to fight intricate cases on causation and quantum’.  ‘Highly esteemed by peers for his exceptional expertise in Industrial Disease matters, approachable, authoritative and excellent’.

Charles Feeny has been invited to join the CEDR Mediator Panel

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We are delighted to announce that Charles Feeny has been invited to join the CEDR Mediator Panel and becomes their only accredited Mediator in Liverpool.

View Charles’ profile page here.

The next CEDR event deals with ‘Mediation in Public Healthcare’ which is due to take place on 26th September. Full details can be found here.

THE DIGITAL CITY: DOES ACTUAL LOCATION MATTER?

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In previous articles, we have suggested that the Digital City does not have any specific location, but rather is constituted by the connections which the internet facilitates. Against this background, where the citizens are located might be regarded as essentially happenstance, but digitally they are all citizens of the same entity.

However, personal interactions remain and individual locations have different cultural and social traditions. Therefore, whilst there is a Digital City, it has distinct neighbourhoods and those neighbourhoods have different characteristics.

Recent research has confounded many people’s perceptions with the realisation that Liverpool now has the biggest proportion of fast growth firms of anywhere in the United Kingdom, to include London. We suggest that this is because the city is so attuned to the development of the digital world.

Uniquely, certainly for the United Kingdom and perhaps in the world, the character of the city was formed by people in transit, rather than a longstanding indigenous population. Liverpool expanded from a small fishing village in the 18th Century to a major port in the 19th Century. The expansion brought many people of different ethnicities into to the city and this effect was exacerbated when the Port became a major exit point from the old world into the new world, in particular North America. The character of the city can be judged from a piece in the Liverpool Mercury in 1887 which described the city’s atmosphere without any resistance to the use of stereotypes,

“The streets of Liverpool during the emigrant season present stirring spectacles of cosmopolitan animation, and the city itself is the temporary resting place of visitors from all parts of the hemisphere. Russians, suspicious and sullen, … Finns and Poles, men of fierce and haughty natures, … Germans, quiet and inoffensive, brave and determined … the flaxen-haired Scandinavians, paragons of nature’s handiwork, erect and stately.”

This great Port went into massive decline with the end of the empire, the disappearance of the traditional industries of North West England and the ravages of war. By the 1980s, its ultimate demise was confidently predicted. Significantly, the city’s incredible renaissance in the 21st Century has been driven by a similar process to its original growth that is by people in transit. These people are now tourists and cultural visitors. Many will be descended from the economic migrants, although no doubt considerably wealthier and less given to stereotypical presentations.

The character formed and regenerated by this process is complex, involving openness with strangers and a willingness to assist them, an acceptance of change, a lack of concern over financial security, and a disrespect for status and authority. It is easy to see how Liverpudlians could seamlessly become citizens of the Digital City. Of course, this exciting growth has to be seen against the background of a low starting point by contrast with other cities, in particular London. Whilst the Digital City exists in London, in particular at Silicon Roundabout, it does not appear, certainly at a distance, that the digital industry is characterised by originality or creativity. Rather, as with large parts of London, it appears to be in the psychological and financial paw of the global corporations, with its energy directed principally towards enhancing their lavish profits.

We have already argued that the Digital City should be regarded as a rebel city. If it has different neighbourhoods like most cities, it may have its affluent but ultimately rather staid districts, but also its much more stimulating bohemian quarters.

Upcoming event: Cerebral Palsy & Brain Injury Cases – Ensuring you do the best for your client

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Date & Time: 16/03/2016, 9:00 am – 5:00 pm
Location: Foresight Centre, Liverpool

Complete Counsel in association with AvMA (Action against Medical Accidents), Atlantic Chambers and A Neat Legal Services will be organising a conference on 16th March 2016 that will discuss and analyse the key areas currently under the spotlight in Cerebral Palsy and Brain Injury Cases so that lawyers are aware of the challenges required to best represent their clients.

The conference will commence with an in-depth session on CP litigation analysis, involving medical experts and barristers including Charles Feeny and Ana Samuel from Complete Counsel. The discussion will then move on to cover intrapartum fetal distress and surveillance focusing on CTGs, neonatal risk factors for CP, paediatric neurology and neuroradiology and case management input and care. Tactical budgeting in CP litigation will also be examined. The conference will be chaired by John Benson QC from Atlantic Chambers.

To download the full conference programme and to book your place in the event, please visit AvMA website here.

Charles Feeny and Ana Samuel Published in The AvMA Legal and Medical Journal

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A clinical risk article entitled “She should have died hereafter? When is death caused in law by breach of duty?” written by Charles Feeny and Ana Samuel has been published in the forthcoming issue of Action Against Medical Accidents (AvMA) Medical Journal. The article examines the law surrounding causation in situations when a death could be said to have been accelerated with particular reference to the case of Davies v Countess of Chester Hospital [2014] EWHC 4294 (QB). In doing so, the authors argued that there are two options available to the courts, one that is an arbitrary time limit and the second which focuses on materiality.

For further details please contact editors@pro-vide-law.co.uk.