Judicial Review for Treatment Denial

1. The scenario concerning Ben raises a claim in relation to medical negligence. In order for the claim to succeed, three requirements must be proved:

The defendant owed the claimant a duty of care

Ben must be able to establish that Dr Smith owed him a duty of care. A duty of care is plainly owed by a doctor to his or her patient as there is a sufficiently close relationship between the doctor and patient and the doctor can reasonably foresee the damage that can be caused by his failure to take care. Therefore, duty of care arises out of the doctor-patient relationship.

The defendant’s performance fell below the standard expected resulting in a breach of duty

The objective standard of care, that is, what a reasonable person would have done in similar circumstances, when applied in medical negligence cases, depends on the accepted practices of the medical profession. In order to identify if a breach of duty has occurred, the Bolam test is applied, as per which a medical professional liable for negligence if he failed to act in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area of practice.

In this case the doctor did not examine Ben as he assumed that he was solely inebriated and told the receptionist to tell Ben to go home. It is cardinal within the medical profession to perform an examination on the patient prior to forming any judgement. In Montgomery v Lanarkshire Health Board (Scotland), the court held a doctor negligent for his omission to give medical advice as reasonably expected. In Barnett v Chelsea and Kensington Hospital Management Committee, the court held that the doctor liable only where the harm to the plaintiff is attributable to the negligence of the doctor.

For Ben to have a successful claim, it must be shown that on the balance of probabilities, the harm resulted from the breach in the duty of care and that others within the medical professional would not have followed the same procedure.

The claimant’s injury was caused by the defendant’s breach of duty.

The ‘But- For’ test will be used to allow the courts to determine whether Ben would have paralysed if the disease would have been diagnosed earlier and would it have been possible to treat or their condition improved. If the answer is in affirmative then material contribution is enough to suffice this test.

Furthermore, the Bolitho test will be applied to assess whether the doctor’s opinion is susceptible to logical analysis. The question which will arise in court is whether a pool of medical opinion done the same thing. Would Dr Smith had recommended treatment/offered a diagnosis if an examination had been performed, and if not, would that itself be negligent? The court will need to consider this when evaluating the causation on the balance of probabilities. This is because a doctor’s duty requires them not to exacerbate a patient’s condition, but they will generally not be liable if the patient is left no worse off than they would otherwise have been, including delays of hospital admissions.

To conclude, it is likely that a claim will be brought against Dr Smith. The claim will succeed only if it can be demonstrated on the balance of probabilities that the failure of Dr Smith’s to examine Ben led to him being sent home erroneously which led to the paralysation which he now suffers. Ben will be able to recover damages for the pain he suffers and loss of amenity. As a final point, this must be brought to court within three years from the date of the claimant‘s knowledge of the right of action as per s11 of the Limitation Act 1980.

2. This scenario concerning Alice raises a claim in consent.

Abortion Act 1967 itself makes no distinctions as to age groups.

Alice is under the statutory age of consent which is 18 years, therefore it must be proven that she is Gillick competent in order for her wishes to be carried out. As per the judgment in Gillick, if a minor child understands the nature of treatment and the possible consequences, the parental rights to consent for the treatment are terminated and the child is able to make a decision as to medical treatment. In order to be proven Gillick competent, the child must conform to Lord Scarman’s definition of competence, which is, sufficient understanding and intelligence to understand fully what is proposed. Alice must be able to show that she understands the implications of keeping the pregnancy, including the potential side effects and also has an understanding of not pursing abortion, meaning that she will have to become a mother. If she has a level of understanding of what this role entails, this will show that she has sufficient intelligence and maturity to weigh information and arrive at a decision. Then this claim will most likely be successful.

If incompetent as per Gillick test then the doctor has two options, which is to either use the best interest test, which allows her mother to make the decision on Alice’s behalf if tge latter is incompetent; or apply for a court order. If parents and child disagree with doctors, then doctors can get court order. The doctor must also approve that keeping the baby will not act in her detriment such as causing injury to her mental or physical health which is contained in s.1 of the Abortion Act.

Prior to the application of best interest test, Alice must prove her mental capacity under the MCA 2005 s.2(1). Emily’s decisions can also be overridden by the courts if the child doesn’t have the capacity.

The Children’s Act 1989 can also be used for ascertaining the welfare of Alice by the court before making its order. The courts will choose the decision which promotes the welfare of the child as the child is paramount which in this case is Alice.

Alice’s maturity is central in the decision making because if she found to not be Gillick competent then her mother or the court will be authorised in deciding whether Alice will continue the pregnancy or terminate. Alice can also use Article 12 in the UN convention, which is that the views of the child must be respected, this is because every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously.

3.) Ant may challenge this using Judicial Review (JR).

Ant may seek judicial review (JR) to challenge the decision not to provide him treatment based on his age. This is because the NHS are a public body therefore, they are subject to JR. The Civil Procedure Rules, Part 54 provide the process for judicial review through Part 8 application, under which an individual can move the High Court for judicial review. He can use the grounds of illegality, irrationality(unreasonableness), procedural impropriety and unfettered discretion. Article 3 of the European Convention of Human Rights (ECHR) wherein inadequate care and suffering may be shown by Ant. Cancer can cause pain by compressing organs and nerves adjacent to the tumour. ECHR, Article 2 can also be used as the denial of treatment can be viewed as intentional deprivation of his right to life.

Another possible framework for challenge under JR is through Equality Act 2010 as age is covered in s.5. ‘Age’ can also potentially be read into ECHR, article 14 as discrimination against Ant is based on age. The courts will also assess whether Ant’s individual circumstances had properly been taken into account by the doctor such as the risk of death without the treatment and surviving and living a few more years with the treatment. In Condliff, the court said they wouldn’t force doctors to take non clinical grounds into account but here Ant could argue that there are clinical grounds that are being ignored, such as, impact of non treatment for her prognosis. However, the doctor may argue that new treatment is not viable due to advanced age. An argument based on ECHR, Articles 14 and 2 would be most likely to find favour with the courts if the only difference between an individual offered treatment and an individual refused treatment was their age. It has been held in R (on the application of Rogers) v Swindon Primary Care that where the clinical needs are equal, discrimination between patients in the same eligible group cannot be justified on the basis of personal characteristics. Based on the principle of this case, it can be said that Ant can claim that she is being discriminated against because the same treatment that is available to others is not being provided to her. The only difference between her and the other patients is the age and this can be used as a ground for discrimination.

Table of cases

Barnett v Chelsea and Kensington Hospital Management Committee (1969] 1 QB 428

Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781

Bolitho v City and Hackney Health Authority [1998] AC 232; [1997]4 All ER 771

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118,121

Caparo plc v Dickman, [1990] AC 605.

Condliff R(on the application of) v North Staffordshire PCT [2011]EWHC B8

Davies v Countess of Chester Hospital NHS Foundation Trust [2014] EWHC 4294 (QB);

Donohue v Stevenson [1932] UKHL 100.

Gillick v West Norfolk and Wisbech AHA [1989] AC 112

Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.

Re R (Child) 2016 EWCA Civ 1016

R (Ann Marie Rogers) v Swindon PCT [2006] EWCA Civ 392

Books

Herring J, ‘Medical Law and Ethics’ (Oxford University Press 2016).

Auburn J, Moffett J and Sharland A, Judicial Review: Principles and Procedure (Oxford: OUP 2013).