2012 02 Health Care

Thursday 1 March 2012

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A Crawford & another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 (Laws LJ, Elias LJ, Kitchin LJ): In allowing an appeal in part the Court of Appeal made obiter comment about the appropriateness of involving the police where it was alleged that elderly dementia patient abuse had occurred through nurses using an unauthorised from of restraint. The appellant nurses appealed against a decision of the Employment Appeal Tribunal overturning a decision of an employment tribunal that they had been unfairly dismissed by the respondent NHS trust in respect of restraint of dementia patients. It was important that hospitals in the situation, that the NHS trust found itself presented with, had to be seen to be acting transparently and not concealing wrongdoing. Employers should not subject employees to burden of criminality without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct. That requirement was not satisfied in the instant case. No-one suggested that C were acting other than in the best interests of the particular patient and the other patients. The alleged restriction in this case was not essentially different to the physical restraint which had been carried out on the patient before. There was obvious justification for restraining the patient in question, even if the appropriate procedures for doing so were not employed, and the police should never have been involved as they had been in the instant case (click here for transcript).

Timothy Coombs v (1) Dorset NHS PCT; (2) Nottinghamshire Healthcare NHS Trust (2012) QBD (Judge Platts): Extempore judgement. In deciding a preliminary issue the court held that a person detained under the Mental Health Act 1983 was not, as a matter of public policy or otherwise, prevented from paying for his own care or treatment, although the choice of appropriate placement or treatment would remain to be made by the detaining authority or the patient's responsible clinician. The Defendants were granted permission to appeal this decision.

Case C-495/10 -Centre hospitalier universitaire de Besancon v Thomas Dutrueux (2011): ECJ (Grand Chamber) The court held that the liability of a public healthcare establishment, in its capacity as a service provider, did not fall within the scope of Directive 85/374 (the Product Liability Directive). The Directive thus did not prevent the Member States from laying down rules whereby such an establishment must pay compensation, even when it was not at fault, for injury suffered by a patient as a result of a defect in a product used intreating him (click here for transcript).

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