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.

Charles Feeny

Welcome back to Pro-Vide Law

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Pro-Vide law commenced in 2013. The aim was to provide a focus for education and training involving practising lawyers, expert witnesses, clinicians, and legal academics. The projects’ emphasis was achieving communication and debate.
Like so many other activities, Pro-Vide Law became moribund in the lockdown. In 2021 the website was taken down with the intention of re-launch. Again as with so many other activities, re-launch has taken longer to achieve than initially anticipated.
As we re-launch now in 2023 it is appropriate to reflect on the changes in the last decade. In relation to personal injury and clinical negligence litigation the most conspicuous differences can be seen in funding and cost recovery. The bonanza in such litigation which followed the abolition of legal aid and the identification of much more lucrative ways of offering ended with the Jackson and subsequent reforms. Whilst law firms have attempted to achieve similar levels of profitability since 2013, this has met with at best mixed success. In fact ,it is hard to find any real winners in the changes over the last decade. The most conspicuous losers are individual claimants who would struggle to find a lawyer unless the claimant had a very strong case and was prepared to forego a substantial proportion of their damages under a DBA.
What about the law itself? My perception is that it has become increasingly subject to internal and retrospective focus. Skeleton arguments and judgments are constantly growing in size with citation of authority and intricate argument.
I read the Tate Modern judgment in the Supreme Court with interest. The issue could be simply formulated albeit the answer was always going to be controversial since as evidenced in the judgments in the case different views could reasonably be taken. Accepting that residing in an urban area inevitably involves being overlooked by others should this acceptance extend to the creation of a facility where crowds of people can look directly into your home being lawful? The question could be seen as a broad one reflecting social and personal expectations in the early 21st century. The speeches in the Supreme Court involved a minute analysis of the development of the law. Over 80 cases were cited either in argument or in the speeches with the earliest authority being from 1752.
Similar comments can be made about any number of appellate judgments over the last decade with the law being treated as some form of historic given as opposed to a living entity. Whilst this approach could be described as being good for business, both for practising lawyers and academics, the unnecessary and increasing complexity of the law creates a level of costs which makes litigation prohibitively expensive for most individuals within the community.
We are re-launching Pro-Vide Law with two webinars filmed at Wadham College, Oxford in April. The first webinar on material contribution was live streamed. It was refreshing to be joined by Professor Sandy Steel and John de Bono KC for an open and stimulating exchange of views. With Sandy’s assistance we were able to identify in each context why the law is the way that it presents. However , the debate should not stop there. The next question is whether the law should be so? In relation to material contribution the reasonable question arises that if the standard of proof is going to be attenuated, why there should not be an apportionment of damages even though the same would have no scientific basis? In relation to patient fault and contributory negligence, the question is reasonably asked why a person who through serious misconduct causes themselves significant injury should not have that fact reflected in the assessment of damages for subsequent clinical negligence?
These, and other issues are those which we hope to consider and debate through Pro-Vide Law.
Charles Feeny

Bolam v Montgomery: Where Does Medicine End & Law Begin?

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Date: Friday 10th November 2023

Location: The Municipal Hotel, Dale Street, Liverpool, L2 2DH

Your Speakers:

  • Charles Feeny
  • Charles Austin
  • Jonathan Hobson, ENT Consultant
  • Dr Simon Minkoff GP
  • Dr Craig Purshouse, Senior Lecturer in Law

Following the decision of the Supreme Court in McCulloch v Forth Valley Health Board the time seems right to consider (or reconsider) the principles underlying consent to treatment.

The extent to which the law requires clinicians to adopt an approach to management following the guidance in Montgomery remains unclear presenting practical problems.

The Seminar will include discussion of the law and its implications for clinicians.

There will be an opportunity to discuss the issues arising over drinks after the seminar.

To book a place please email emma.wall@completecounsel.co.uk
or editors@pro-vide-law.co.uk.

McCulloch v. Forth Valley, Bilal v. St George’s: Was Montgomery really necessary?

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On November 10th, Pro-VIDE-Law are holding a seminar in Liverpool to reflect on Montgomery. The seminar is entitled “Where does medicine end and law begin?

We are approaching the 10th birthday of Montgomery. It is reasonable to think of Montgomery as having a 10th birthday, as it is undoubtedly a favoured child of the judiciary, meriting attention at all times. The scope of the Montgomery duty was discussed in two recent appellate decisions in the Court of Appeal in Bilal v. St George’s Hospital and in the Supreme Court in McCulloch v. Forth Valley.

It is not necessary to discuss the facts of these cases in any great detail, since the Appeals, as relevant to Montgomery, proceeded on a narrow point, discussed in more detail below. However, it is apparent that in each case the Claimants had failed on factual bases which were not susceptible to challenge on appeal. Any issue on Montgomery was largely tangential to the Claimant’s action failing. Nonetheless, in each appeal the Courts addressed the Montgomery issue. Indeed, reading the speeches in the Supreme Court, it is scarcely noticeable that the Claimant in any event had formidable causation difficulties.

The issue on Montgomery identified in both appeals was whether the assessment of reasonable alternative treatments to that given should be assessed by reference to what was described as the professional practice test, that is Bolam/Bolitho, or whether an approach based on Montgomery should be taken. In both cases it was decided that a Bolam/Bolitho approach should be taken. Accordingly, if a clinician did not advise a patient of alternative treatment because the clinician did not believe it to be reasonable, and that view was supported by a body of relevant opinion, the clinician would not be in breach of duty. This would apply even if there was to the clinician’s knowledge an alternative view held by a reasonable body, and even if the Court accepted that the Claimant would, after proper discussion, have preferred the alternative treatment.

There appears to be a tension here, or at least some unresolved issues, in particular, relating to the definition of “reasonable” in this context.

Dr McLellan, the Consultant advising Nadine Montgomery, presumably considered that a caesarean section was not a reasonable alternative when she advised the Claimant without making reference to this possibility. It is possible to envisage a number of scenarios in which the question of how “reasonableness” of alternative treatment is assessed will come into clearer focus. This could occur if a surgeon does not advise of a new or experimental surgical technique because the surgeon reasonably believes that it is not sufficiently established in clinical practice. However, there are reputable consultants who take a different view. The evidence in the case is that the surgery would have been successful and the Claimant would have consented, being anxious for something to be done to alleviate the condition in question.

It would also be interesting to see how the Court would approach a situation in which a clinician did not advise a certain form of treatment as a possibility because the clinician believed that the Claimant would not be able to comply with a rigorous rehabilitation regime, which was essential to a successful outcome of the treatment in question. The patient, however, might take a different view, and also might reasonably believe that it was an issue that should be discussed.

It is difficult to square a simple statement that the assessment of whether alternative treatment is reasonable as being subject to the professional practice test with the scope and implications of the Montgomery decision.

Considering the facts in McCulloch, it could be suggested that the crucial difference with Montgomery was one of context. The clinician in question was not discussing treatment with the patient with a view to obtaining consent, but rather offering advice in relation to a patient who was under the care of another consultant. The clinician reasonably would have understood that it would not have been her function to facilitate some discussion whereby all possible treatments were brought to the Claimant’s attention. The impracticability of such a duty was clearly material in the Supreme Court’s approach. Importing into these circumstances a legal duty of care going beyond professional practice duty requirements would place an impossible burden on busy clinicians in routine management.

However, the decision in Montgomery specifically requires a clinician in the context of obtaining consent to discuss reasonable alternative treatments. This cannot be dismissed simply as a duty to discuss risks of treatment, but would envisage that a patient would be made aware of alternatives. It is clear that if a clinician believes on reasonable evidence that treatment would not be effective, then no duty could arise to discuss it with a patient. Adopting terms such as “clinically appropriate” or “clinically suitable” as discussed in McCulloch does not resolve the question of the assessment of the degree of suitably or appropriateness necessary to make alternative treatment a reasonable option, at least for discussion.

Ultimately, it could be suggested that the Courts could do no better than reverting to a professional practice test in relation to reasonable alternative treatment in all respects.

The decision in Montgomery was reasonably described as being evolutionary rather than revolutionary; that is representing a move away from traditional medical paternalism. It would have been open to the courts in Montgomery to indicate that on the evidence as to proper professional practice, Dr McLellan was not acting in accordance with her duty to Nadine Montgomery in deciding, without reference to her, that a caesarean section was not a reasonable alternative treatment.

On 10th November we are joined by two experienced medico-legal experts, Jonathan Hobson (ENT surgeon) and Dr Simon Minkoff (General Practitioner) and Dr Craig Purshouse, (Senior Lecturer of Law). The intention is to discuss the impact of the Montgomery decision, the practical issues it presents for clinicians and where the law should go from here.

Charles Feeny