CASE DISCUSSION

CASE DISCUSSION
6 February 2015
Unreported Judgments
The following (as yet) unreported judgments which are of interest were recently
delivered in the Commonwealth.
In the South African Constitutional Court: H v Fetal Assessment Centre Case CCT
74/14 [2014] ZACC 34). The Constitutionality of the so-called “wrongful life” action
was considered. The case is internationally significant because the Court did not uphold
an exception that the cause of action is not valid – and in doing so, the judgment is one
of the few instances of such a right being potentially countenanced by the courts.
In the United Kingdom Supreme Court: Greater Glasgow Health Board (Appellant) v
Doogan and another (Respondents) (Scotland) [2014] UKSC 68: The Abortion Act
1967 (as amended) sets out the circumstances in which the termination of a pregnancy
can lawfully be brought about. Section 4(1) establishes a right of conscientious
objection: it provides that ‘no person shall be under any duty, whether by contract or by
any statutory or other legal requirement, to participate in any treatment authorised by
this Act to which he has a conscientious objection’ unless, pursuant to subsection (2), it
is ‘necessary to save the life or prevent grave permanent injury to the physical or mental
health of a pregnant woman’. This appeal dealt with the precise scope of the right to
conscientious objection.
In the South African Supreme Court of Appeal: Cecilia Goliath v Member of the
Executive Council for Health, Eastern Cape (085/2014) [2014] ZASCA 182. In this
“swab case”, the court considered the maxim res ipsa loquitur in the context of actions
for medical negligence. The court held that it was inappropriate to resort to a piecemeal
processes of reasoning. There was only one enquiry - whether the plaintiff has
discharged the onus of proving on a balance of probabilities the negligence averred
against the defendant.

Reported Judgments
Birmingham Children's NHS Trust v B and another [2014] EWHC 531 (Fam);
137 BMLR 222.
A week-old baby with transposition of the great arteries required cardiac surgery – he
had no prospects of long-term survival without surgery. The baby’s parents, who were
Jehovah’s Witnesses, were willing to consent to surgery but not to necessary blood on
religious grounds. The hospital sought a declaration from court that it would be lawful
to perform cardiac surgery and to deploy blood during and consequent to that surgery.
The parents did not actively oppose the hospital's application.
In considering this application, the judge considered, in its widest possible sense, the
baby's welfare best interests. It was clear on the evidence that, while risks attached to
him undergoing the procedure, those were minimal risks, whereas if the baby did not
undergo the procedure, his chances of survival were extremely poor. Looking at his
welfare best interests, there was no doubt that it was in his best interests to undergo the
surgery that was proposed. Because it was inevitable that he must receive blood
transfusions during the course of, or subsequent to, the surgery the judge determined,
notwithstanding the parents' understandable objections on religious grounds, that it was
in the baby's welfare best interests to receive blood products both during the surgery
and, if necessary, subsequent to it.
Mental Health Trust and others v DD (by her litigation friend, the Official
Solicitor) and another [2014] EWCOP 11; 140 BMLR 118.
This case dealt with the determination of a person’s best interests who is mentally
incapable of making legally valid decisions.
A mother of five was pregnant with her sixth child. Four of the five children had been
adopted, and the fifth was in care. The patient had a complex obstetric history, learning
difficulties and autistic spectrum disorder, and was accordingly a vulnerable person.
The hospital sought court orders concerning the health of mother during final stage of
pregnancy, and the safe delivery of the unborn baby, as well as an order authorising
assessment of mother's capacity to make decisions about contraception following the
birth of baby. The issues were whether the patient had capacity to litigate on the relevant
issues, whether the declarations sought were in the patient’s best interests, and whether
the patient lacked capacity to consent to an assessment of her capacity to make decisions
in relation to contraception. The applicants proposed that the patient should not be
advised of the date planned for the caesarean procedure, but that they should be given
partial information.

The Court held, on the facts, that the patient lacked the capacity to litigate in relation to
the relevant issues. She lacked capacity to make decisions in respect of her healthcare,
in particular to decide where to give birth to her unborn child and to decide whether to
have her baby delivered by vaginal delivery or caesarean section. It was in her best
interests, and therefore lawful for her to be taken to a hospital and for the medical,
nursing and midwifery practitioners attending her to carry out a planned caesarean
section and all necessary ancillary care; and to provide the patient with all necessary
ancillary pre-operative care and treatment. The applicants were authorised to take such
necessary, reasonable and proportionate measures to give effect to the best interests
declaration, including forced entry into the patient’s home, restraint to prevent her from
leaving the ward pending treatment and/or until it was clinically appropriate for her to
be discharged, and any necessary sedation. The judge required the applicants to take all
reasonable steps to minimise distress to the patient and to maintain her dignity, and
concluded that there were reasonable grounds to believe that the patient lacked capacity
to consent to an assessment of her capacity to make decisions in relation to
contraception. However, it was not considered to be in the patient's best interests, or
that she should be subject to a one-day assessment of her capacity to make decisions
about contraception at this stage, and that application was refused. That issue would
need to be addressed as a matter of urgency within two months or so after the birth.
(Consideration was given to arts 6 and 8 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950. Human rights – Mental Capacity
Act 2005 – European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950, arts 5 and 8).
R v H 140 BMLR 59; [2014] EWCA Crim 1555.
This is a case dealing with the use of expert evidence, and the undesirability of leading
unreliable or inappropriate expert evidence. The case follows a trend in a number of
jurisdictions in which expert evidence has come under increasing scrutiny by the courts
(see eg. United Kingdom: Jones v Kaney - 119 BMLR 167 [2011] UKSC 13; Ndlovu v
Road Accident Fund 2014 (1) SA 415 (GSJ)).
The applicant was a general practitioner who had been convicted of various offences.
The trial judge had refused to admit evidence of an expert which was in the appellant’s
favour, and the applicant appealed. The appeal against conviction was dismissed. The
court found that the trial judge had not erred in refusing to admit the evidence of the
expert. The defence was entitled in appropriate cases to call expert evidence on a
specific subject outside the knowledge and experience of the jury which might assist
them in the task of assessing credibility and reliability. However, in the instant case, the
trial judge had found that there was no evidence on which the jury could find that the
complainant had 'recovered' or 'retrieved' memories during the treatment for her mental
illness, and there was thus no basis for admitting the expert’s evidence of false memory
syndrome, which would have had the effect of usurping the function of the jury in
assessing the complainant's credibility as a witness.

(Editor’s note: Of importance, the court (per curiam) expressed a real concern about
the use of unreliable or inappropriate expert evidence in such cases. In the United
Kingdom, the Criminal Procedure Rules 2014 and amendments to the Criminal Practice
Directions made by the Lord Chief Justice came into force which incorporated certain
reliability factors recommended by the Law Commission for the admission of expert
evidence. When these changes occurred, a new and more rigorous approach on the part
of the courts to the handling of expert witnesses was adopted. The intention was to avoid
misunderstandings about what was (and what was not) appropriately included in an
expert's report and so either avoid, or at least render far more straightforward,
submissions on admissibility such as those made in the instant case. In particular,
comment based only on analysis of the evidence which effectively usurped the task of
the jury was to be avoided. Part 33 of the Rules now includes an identification of the
expert’s duty to the court as being: to help the court to achieve the overriding objective
that criminal cases be dealt with justly by giving opinion which is objective and
unbiased and within the expert’s area or areas of expertise. This duty overrides any
obligation to the person from whom the expert receives instructions or by whom the
expert is paid. The duty includes obligations to define the expert’s area or areas of
expertise in the expert’s report, and when giving evidence in person. When giving
evidence in person, the expert is obliged to draw the court’s attention to any question to
which the answer would be outside the expert’s area or areas of expertise; and to inform
all parties and the court if the expert’s opinion changes from that contained in a report
served as evidence or given in a statement).