Submitting medico-legal intra-partum CTG (I-P CTG) monitoring to the Bolam and Bolitho principles

2016 ◽  
Vol 85 (2) ◽  
pp. 93-96
Author(s):  
George G Buttigieg
Keyword(s):  
Birth Asphyxia ◽  
Case Law ◽  
Health Board ◽  
Medical Jurisprudence ◽  
Foetal Monitoring ◽  
Legal Principle ◽  
Uk Supreme Court ◽  
The Individual ◽  
The Uk ◽  
Based Medicine

The article analyses some of the seeming weaknesses of the Bolam and Bolitho tests as applied to electronic foetal monitoring in labour, in the form of intra-partum CTG monitoring. Homing on to such aspects as confirmation of foetal hypoxia/acidosis, it evaluates the Bolam and Bolitho tests in the context of evidence-based medicine versus traditionally held views, which still hold their own in medical jurisprudence. Case law examples are quoted to illustrate various points. The discussion is of practical relevance both to the individual obstetrician as well as to national budgetary implications, bearing in mind, that, for example, in 2011, ‘birth asphyxia’ comprised 50% of the UK NHS litigation costs, and in the 2000–2010 decade, the same NHS forked out £3.1 billion for maternity medico-legal claims (the highest of any speciality), mostly involving cerebral palsy and CTG misinterpretation. The article concludes with suggestions to help level the potential extant equivocity between legal principle and medical practice. It also looks at the ruling in Montgomery v Lanarkshire Health Board, UK Supreme Court, and its challenge to Bolam. The implications pose a serious and overdue challenge to a test, born in 1957 and lacking the necessary qualities to serve many 21st century medical quandaries, including the ones raised here.

Informed consent, Montgomery and the duty to discuss alternative treatments in England and Australia

2020 ◽  
Vol 25 (5) ◽  
pp. 187-193
Author(s):  
Tracey Carver
Keyword(s):  
Information Disclosure ◽  
Healthcare Professionals ◽  
Treatment Options ◽  
Case Law ◽  
Health Board ◽  
Alternative Treatments ◽  
Recommended Treatment ◽  
Uk Supreme Court ◽  
The Uk ◽  
Treatment Risks

The UK Supreme Court in Montgomery v Lanarkshire Health Board imposes a duty on healthcare professionals in relation to information disclosure. The obligation is to take reasonable care to ensure that patients are aware, not just of material risks inherent in any recommended treatment, but of any reasonable alternative treatments. While liability for information non-provision was previously decided according to whether the profession would deem disclosure appropriate, the law now judges the sufficiency of information from a patient’s perspective. In doing so, it adopts the approach advocated for Australia in Rogers v Whitaker. However, commentators, in this journal and elsewhere, have expressed concern that the disclosure obligation is unclear. Although Montgomery defines what is ‘material’ for the purpose of identifying notifiable treatment risks, it offers less guidance as to when alternative treatments will be sufficiently ‘reasonable’ to warrant disclosure. Through an analysis of Australian and UK case law and examples, this article considers the ambit of a practitioner’s duty to discuss alternatives. It concludes that although likely subject to further litigation, the identification of reasonable treatment options requiring disclosure will be influenced by the patient’s clinical condition, their prognosis and viable options from a medical perspective, and various non-clinical matters influenced by the test of materiality.

Cross-fertilisation of Constitutional Ideas

2013 ◽  
Author(s):  
Petra Butler
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Bill Of Rights ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Uk Supreme Court ◽  
The Uk

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

scholarly journals You Can’t be Serious

2018 ◽  
Vol 1 (1) ◽  
pp. 1-23
Author(s):  
Albert Sanchez-Graells
Keyword(s):  
Public Procurement ◽  
Case Law ◽  
Main Function ◽  
Eu Law ◽  
The European Union ◽  
Public Enforcement ◽  
Nuclear Decommissioning ◽  
Uk Supreme Court ◽  
State Liability ◽  
The Uk

This paper offers some reflections on the position advanced by the EFTA Court that a simple breach of EU public procurement law is in itself sufficient to trigger the contracting authority’s liability in damages (Fosen-Linjen). I argue that this position is flawed because it deviates from previous case law of the Court of Justice of the European Union (Spijker), and because it is based on interpretive errors and internal contradictions in the EFTA Court’s reasoning. In criticising the EFTA Court’s Judgment from the perspective of the harmonisation of EU law, I rely on the better view of the UK Supreme Court. The latter held that the liability of a contracting authority for the breach of EU public procurement rules under the remedies directive is assimilated to that of the State under the general EU law doctrine of State liability and thus requires a sufficiently serious breach (Nuclear Decommissioning Authority). My reflections are based on the need to keep procurement damages litigation constrained to its main function and limited to justified cases. I use this normative position to argue against the expansion of private enforcement of EU public procurement law as a correction of the shortcomings in its public enforcement.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

AbstractThe judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

Administrative Procedure and Judicial Review in the United Kingdom

2021 ◽  
pp. 82-86
Author(s):  
Sarah Nason
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Case Law ◽  
Administrative Law ◽  
High Court ◽  
Administrative Procedure ◽  
The United Kingdom ◽  
Uk Supreme Court ◽  
The Uk ◽  
To Receive

This chapter focuses on administrative procedure and judicial review in the United Kingdom. Initially, it should be stressed that administrative law is different across the UK due to devolution. The UK Supreme Court generally acts as a final court of harmonizing case-law principles. As the UK constitution is uncodified, the existence of constitutional provisions concerning judicial review remains somewhat controversial, but the necessity of judicial review is thought to be required by the rule of law. The scope of judicial review is generally governed by judicial precedent. Under section 84 of the Criminal Justice and Courts Act 2015, the High Court must refuse to grant a remedy 'if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. In general, there is no right on judicial review to claim damages for losses caused by unlawful administrative actions. It is usually only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review.

scholarly journals Too attentive to our duty: the fundamental conflict underlying human rights protection in the UK

Legal Studies ◽  
2018 ◽  
Vol 38 (3) ◽  
pp. 360-378
Author(s):  
Benedict Douglas
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Fundamental Conception ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Individual ◽  
The Uk

AbstractAre we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.

Bringing RightsMoreHome: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?

2014 ◽  
Vol 15 (3) ◽  
pp. 407-436 ◽  
Author(s):  
Sarah Lambrecht
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Case Law ◽  
Bill Of Rights ◽  
European Court ◽  
Domestic Courts ◽  
International Obligations ◽  
Uk Supreme Court ◽  
The Uk ◽  
Mirror Principle

This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.

scholarly journals Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

2018 ◽  
Vol 44 (6) ◽  
pp. 384-388 ◽  
Author(s):  
Malcolm K Smith ◽  
Tracey Carver
Keyword(s):  
Informed Consent ◽  
Information Disclosure ◽  
Healthcare Providers ◽  
Health Board ◽  
Patient Decision Making ◽  
Rigorous Approach ◽  
Patient Decision ◽  
Uk Supreme Court ◽  
The Uk ◽  
Negligence Law

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

Abstract The judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

Consent for septoplasty: Are we meeting patients’ expectations?

2021 ◽  
pp. 002581722110426
Author(s):  
Haseem Raja ◽  
Rishi Talwar
Keyword(s):  
Informed Consent ◽  
Supreme Court ◽  
Literature Search ◽  
Significant Proportion ◽  
Health Board ◽  
Current Standard ◽  
Negative Change ◽  
Uk Supreme Court ◽  
The Uk ◽  
Nose And Throat

The requirements for informed consent were modified in 2015 following the UK Supreme Court judgment of Montgomery v Lanarkshire Health Board. This marked a decisive shift from the traditional paternalistic ‘doctor knows best' model towards a more patient-centred approach. This study examines the current standard of consent for septoplasty and whether it complies with the law. We also report whether the ‘reasonable patient’ and surgeon agree about which risks should be discussed during the consent process. Ten complications were identified as common or serious via a literature search. Using questionnaires, 21 Ears, Nose and Throat surgeons were asked which of these they routinely discussed, and 103 patients were asked how seriously they regarded those complications. Results were compared using the Test of Proportions. Most surgeons routinely discuss all risks except negative change in sense of smell and numbness of upper incisors. The ‘reasonable patient’ regarded these two complications as serious or very serious. However, less than 70% of surgeons mentioned them. A significant proportion of Ears, Nose and Throat surgeons do not routinely mention all the risks that the ‘reasonable patient' would want to know about before undergoing a septoplasty. This may result in more clinical negligence claims, as managing a patient's reasonable expectations is an important factor.

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