the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

When is a dentist not a dentist? Tooth whitening and the Dentists Act 1984

The nation's passion for cosmetic enhancement continues apace.  When I was a child we Brits were as perplexed by the American obsession with even shiny white teeth as the Americans were by our yellow snaggly tombstones.  Nowadays simply turning on the television can be blinding.  Every presenter, actor and popstar seems to bare even rows of bright, white veneers.  I am often reminded of one of my favourite episodes of Friends: "The One With Ross's Teeth".  After an ill advised teeth whitening treatment Ross ends up on a date caked in makeup and mute.  The enthusiasm for dental perfection has led to a huge industry in tooth whitening and a similar campaign by dentists against "illegal" tooth whitening.  It has also been a growth industry for healthcare lawyers.  This week the courts have turned their attention to whether tooth whitening constitutes the "practice of dentistry" within the meaning of s. 37(1) of the Dentists Act 1984.  In General Dental Council v Jamous the Divisional Court concluded that tooth whitening does indeed fall within this definition and, as a result, a person not qualified as a dentist is prohibited from providing this treatment.  This decision seems likely to cause quite a shake up in the industry and it will be interesting to see whether the issue is taken any further. 

Never say never again... "Never events" and NHS Performance

Most people don't know that the NHS has a list of "never events", being a list of preventable events that should never happen.  The October 2012 Never Events Policy Framework defines never events as "serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by healthcare providers".  The Framework contains a list of 25 never events.  These range from wrong site surgery, retained foreign objects post surgery and misidentification of patients to entrapment in bed rails, misplaced naso or oro-gastric tubes and maternal death due to post partum haemorrhage following elective caesarian section.   There has been coverage in the news this week following the disclosure that there have been 750 such incidents reported in the NHS in the last four years.  The BBC website has produced an interactive table letting you explore the reported incidents by Trust: http://www.bbc.co.uk/news/health-22466496 What is more interesting in many ways is the breakdown of the number of incidents by "event".  The October 2012 Framework makes very interesting reading, containing a table of the 2011/12 results.  Of the 326 incidents for that year (which seems remarkably high considering the overall statistic for four years), the overwhelmingly common category was retained foreign objects post operation, with 161 reported incidents.  Wrong site surgery followed with 70 cases, then 41 cases of wrong implant / prosthesis.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/127087/never-events-policy-framework-update-to-policy.pdf.pdf  

Is dissatisfaction with bedroom performance a 'recognisable psychiatric illness'?

The Times reports today that ‘millions of people risk being labelled as mentally ill under new classifications which have prompted calls for a boycott by psychologists (The Times, March 20 2013). The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders is due out in May and it is reported that dozens of new conditions have been created. Thus there is a Generalised Anxiety Disorder which includes everyday worries, a Minor Neurocognitive Disorder for forgetfulness in old age and Behavioural Addictions which, the report says, turn much of what people enjoy doing into a disorder. Professor Peter Kinderman who is the head of the Institute of Psychology, Health and Society at the University of Liverpool said that his favourite is the Female Orgasmic Disorder which is the temerity to complain about your husband’s ability to perform in bed. The Times goes on to say that a group of psychologists will launch a campaign today to boycott the new manual. In Page v Smith [1996] AC 155 the House of Lords made it clear that one of the control mechanisms in claims for damages for what used to be called ‘nervous shock’ was that they were only recoverable for a recognisable psychiatric illness. This control mechanism assumed that there was some agreement among psychiatrists as to what ‘recognisable psychiatric illnesses’ were. That consensus seems to be coming undone. It will be interesting to see whether some of the more controversial conditions and disorders will be pruned from the Diagnostic and Statistical Manual following a consultation period and prior to publication. (Image courtesy of Mr Lightman/FreeDigitalPhotos.net)

After pasties and caravans … CFAs and DBAs?

Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson’s recommendations is being introduced?   Why have there been so few announcements about what are, after all, radical and far reaching public policy changes? If we as legal professionals are unsure about the proposed changes, how can we properly advise the public after 1 April 2013?   Will legal professionals soon be joining bakers and caravanning enthusiasts in pointing out to the government the potential far reaching consequences of over hasty legislation?   In the foreword to his final report on costs in civil litigation dated 21 December 2009 Lord Justice Jackson wrote:   “ … I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice ...”   He went on to make a total of 109 separate recommendations some but not all of which have found their way into proposed new legislation. In particular the Conditional Fee Agreements Order 2013 (the CFA Order) and the Damages-based Agreements Regulations 2013 (the DBA Regulations) have now been laid before Parliament and were subject to a Motion to Approve debate in the House of Lords on 26 February 2013.   Both have been described by the General Council for the Bar (GCB) as “not fit for purpose”. The GCB also suggested that the proposed order and regulations “will deny access to justice, burden the courts’ time with unnecessary satellite litigation and limit the commercial use of DBAs”.    There are certainly grounds for concern. As we all know, the success fee under a CFA entered into after 1 April 2013 for proceedings at first instance will be capped at 25%. Article 5(2) of the proposed CFA Order provides that this will be 25% of “(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss” (my emphasis). However, in a lecture given on 29 February 2012, Lord Justice Jackson amended his view in response to submissions from a number of parties and proposed that the cap should be 25% of all damages. There must be a risk that in larger and more complicated cases which are difficult to cost budget and involve significant initial disbursements, limiting the cap to 25% of past losses will not promote “access to justice” as Lord Justice Jackson hoped but may in fact prove to be a disincentive to  taking on such cases in the first place.   Then there is VAT. As drafted, the proposed CFA Order provides that the “damages” to which the 25% cap applies are “net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions”. There is no exclusion for VAT. But if VAT is included in such damages there is not only scope for uncertainty (what happens, for example, if the VAT rate changes after the CFA has been entered into but before a bill of costs is rendered?) but in the larger and more complicated cases this may be a further reason why those contemplating taking on such cases may decline to do so on the grounds that the unpredictability of the risk will not be properly compensated by the level of the CFA.   The same objections apply to the proposed DBA Regulations. As presently drafted, the cap for DBAs is inclusive of VAT but exclusive of damages for future pecuniary loss. In addition, the DBA Regulations do not allow for “hybrid” agreements i.e. agreements under which some costs are recoverable if a “win” does not occur rather than no costs at all. This is again contrary to what Lord Justice Jackson recommended and may prove a disincentive to the use of DBAs particularly in commercial cases.   Access to justice may not be as newsworthy as Cornish pasties and static caravans but in resource-intensive cases, the government’s aim of protecting the damages recoverable by claimants may actually result in some claimants being unable to obtain legal representation and thus recovering no damages at all.       Image – cornishpasties.com

Mind the Gap!

At least you know where you are with the NHSLA. The same is true of the various medical defence organisations. Can the same be said for the new regime proposed under the Health and Social Care Bill (HSCB)? If there are gaps in the indemnity arrangements for NHS care, what does this mean for claimants and defendants? On Friday (24 February 2012) the Department of Health (DOH) issued a short guide for providers of NHS-funded services outlining the proposals in the HSCB. Guide for Providers According to the guide the HSCB “establishes a comprehensive, proportionate and robust legal framework for sector regulation to protect patients’ interests”. NHS services will continue to be delivered by a “mixed economy of public, independent and voluntary sector providers”. A joint licensing regime, applicable to “all providers of NHS services” will come into effect for foundation trusts in January 2013 and other providers from April 2013. The guide also refers to the basis of pricing and payments for “independent sector providers, charities and social enterprises”. What is not clear from the guide is how it is proposed to ensure that these new “providers” have and in keep in place adequate insurance for the care which they provide to NHS patients. If, as the current draft of the HSCB would suggest, there are gaps in the indemnity arrangements for NHS care, claimants may face difficulties in obtaining compensation for substandard care and defendants will be operating with uncertainty over who is liable for what under the proposed new regime. The recent problems with PIP breast implants illustrate what happens when responsibilities become blurred. The danger is that with the HSCB encouraging numerous new “providers” of health care services across both the private and voluntary sectors, there will be confusion when things go wrong. Even if a potential defendant can be identified the HSCB does not at present require new “providers” to meet pre-set indemnity levels. What is to happen if a “provider” is under-insured or goes out of business as some clinics have threatened to do in relation to PIP breast implants? Is there then a claim in negligence against “the commissioning consortia” which may be an individual general practitioner arising out of the original referral? The HSCB still has some way to go to provide the certainty that both claimant and defendants will require if the proposed new regime is to gain the confidence of both. For lawyers faced with increasingly shrill demands to reduce both time and costs, any additional delay in establishing who is responsible and whether adequate indemnity or insurance arrangements are in place will be equally unwelcome. The legal advice from the outset on both sides must be to “mind the gap”.

Transsexual seeking NHS breast augmentation loses appeal

In R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247 the Court of Appeal has dismissed the appeal of a male to female transsexual who was seeking NHS funding for breast augmentation surgery.  In 1996 AC was diagnosed with Gender Identity Disorder (GID).  The PCT provided AC with hormone replacement therapy and was prepared to fund genital reassignment surgery, which AC declined.  AC was disappointed with her breast development as a result of the hormone therapy and sought funding for surgical enhancement, which the PCT declined.  Her challenge to this decision by way of judicial review was unsuccessful at first instance.  She appealed.  The main issue in the case was disposed of in short order by the Court of Appeal (per Hooper LJ): "I understand why the appellant feels aggrieved that the respondent funds the core gender reassignment procedures outlined in the Policy, notwithstanding the absence of evidence of limited clinical effectiveness, but does not also fund breast augmentation surgery for persons like the appellant (given, in particular, that there is no professional consensus on the classification of core and non-core procedures for gender reassignment). But the answer in law to that feeling is that the respondent, in exercising its statutory responsibilities, has to make very difficult choices as to what procedures to fund and not to fund and the choice made in this case is not irrational...  this conclusion disposes of the case”. Hooper LJ went on however to consider arguments that had been pursued on the issue of discrimination.  The PCT had defended its policy in part by arguing that to grant funding for this surgery to transsexual women could be considered to amount to discrimination against women born female who were similarly dissatisfied with the size of their breasts.  It was argued against the PCT that this reasoning was unlawful because it involved treating different cases in the same way improperly.   It was said that breast augmentation for an individual in AC's position was not simply a matter of improving body image but was an important part of the gender transformation, in other words it is an issue of identity rather than simply of body image. The Court of Appeal ultimately decided that discrimination was not proved. The question was essentially what the “relevant characteristic” was when deciding whether to treat particular cases alike or differently in respect of access to breast enlargement surgery.  The Court of Appeal recognised the competing views held by the parties, but concluded that, in the context of making difficult decisions and judgments about treatments and the use of resources, the PCT was entitled to take its view that at the time of presentation both a transsexual female and a congenital female had the same reason for seeking the same treatment.