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Medical Law Precedents for Lawyers

Edited by: Charles Foster

ISBN13: 9780854900374

Published: March 2010

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Hardback

Price: £85.00

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Written by eminent practitioners in their respective fields, Medical Law Precedents for Lawyers provides a comprehensive collection of fully annotated precedents. It is designed to be a procedural one-stop-shop for all lawyers, whether specialists or otherwise, conducting litigation in any area of medical law from clinical negligence to public law. Each section of the book contains precedents – including draft letters, checklists, pleadings, court orders etc – which are designed to be easily adaptable to whatever factual situation the user faces. It is not assumed that the user will be familiar with the legal or procedural reasons for doing things in the way suggested by the precedent, and accordingly each precedent is annotated in detail. These annotations, which are inserted by way of footnote, mean that the book is a complete and very practical guide to most of the relevant procedural law and many important aspects of substantive law. It will be invaluable for any busy practitioner asked for advice on clinical negligence, inquests, consent to treatment, withdrawal of treatment, clinical confidentiality, complaining about a healthcare professional, disciplinary and regulatory law in the medical sphere, public law challenges to the decisions of healthcare bodies and – (of increasing importance) – mental capacity issues.

Subjects:: Personal Injury Law, Mental Health Law, Wildy, Simmonds and Hill, Courts and Procedure, Medical Law and Bioethics

Contents:: Contributors; Preface; ; 1 CLINICAL NEGLIGENCE: THE SOLICITOR’S SIDE: Susan Bartfield; Solicitor-client documents; A.1 Telephone screening form: clinical negligence; A.2 Initial letter to client: general advice re clinical negligence claims; A.3 Letter to client re initial appointment; A.4 Clinical negligence client questionnaire; A.5 Private service plan and terms of business: clinical negligence other than a fatal claim; A.6 Private service plan and terms of business: clinical negligence (fatal accident claim);; A.7 Client’s form of authority for disclosure of clinical information; A.8 Case plan; A.9 Letter to client enclosing new case plan; A.10 Letter to client enclosing conditional fee agreement; A.11 Letter to client re offer of insurance; A.12 Letter to client explaining mediation; A.13 Letter to claimant setting out the main steps in a clinical negligence claim; A.14 Letter to claimant after receipt of defence; A.15 Authority from client to make an offer of settlement; A.16 Authority from client to discontinue claim; A.17 Letter to client re costs incurred to date; A.18 Letter to client seeking approval of witness statement; A.19 Letter to client re conference with counsel; A.20 Letter to client re expert report; A.21 Letter to client seeking approval of formal documentation; A.22 Letter to client re effect of statutory benefits; A.23 Letter to client re receipt of offer of settlement; A.24 Letter to client/witness re timetabling of trial; ; Disclosure; A.25 Letter to hospital/NHS trust seeking disclosure of medical records; A.26 Application on behalf of a patient for hospital medical records for use when court proceedings are contemplated; A.27 First response to application for hospital records; A.28 Second response enclosing patient’s hospital medical records; A.29 Letter to GP seeking disclosure of medical records; A.30 Letter to potential defendant GP re disclosure of GP records; A.31 Medical records review instruction; A.32 Medical records review findings; ; Experts; A.33 Letter to expert inviting them to accept instructions; A.34 Letter instructing expert; A.35 Letter to experts explaining their duties and responsibilities; A.36 Letter to expert informing them that they will not receive instructions; A.37 Letter to expert inviting comments on draft letter of claim/particulars of claim; A.38 Letter forwarding witness statements to experts; A.39 Letter enclosing expert’s payment; A.40 Letter to expert re client’s capacity to conduct proceedings; A.41 Letter to expert re conference with counsel; A.42 Letter to expert re trial date; A.43 Letter to claimant’s expert forwarding defendant’s expert report; A.44 Letter to expert advising of court order; A.45 Letter to expert on receipt of defence; ; Funding; A.46 A step-by-step guide to conditional fee agreements; A.47 Conditional fee agreement: explanatory documents; A.48 Conditional fee agreements: what you need to know; A.49 Conditional fees checklist; A.50 Conditional fee agreement; A.51 Demands and needs statement; ; Miscellaneous; A.52 Letter of claim under pre-action protocol for the resolution of clinical disputes; A.53 Instructions to counsel; A.54 Draft directions; A.55 Completing the allocation questionnaire; A.56 List of documents; ; 2 CLINICAL NEGLIGENCE: PLEADINGS: Jamie Carpenter; B.1 ‘Standard’ claim in negligence against GPs and NHS trust; B.2 Defence of the first defendant in claim B.1; B.3 Claim against cosmetic surgery clinic and private surgeon: negligent mis-statement, consent and performance of operation; B.4 Claim against a PCT, independent sector treatment centre and doctor; B.5 Claim against a dentist for negligence, battery and aggravated damages; B.6 Claim for provisional damages by a minor; B.7 Fatal Accidents Act claim arising out of delayed diagnosis of cancer; B.8 Defence to claim B.7 admitting breach of duty, denying causation and raising a limitation defence; B.9 Reply to the previous defence, addressing limitation; B.10 Claim arising out of birth asphyxia leading to death of infant and psychiatric injury to mother; B.11 Request for further information in claim B.1; B.12 Response to request for further information; B.13 Agenda for a discussion between experts; B.14 Skeleton argument for an application for an interim payment of damages in a cerebral palsy claim; B.15 Skeleton argument of a defendant for trial on liability and quantum; ; 3 CLINICAL NEGLIGENCE: QUANTUM CONSIDERATIONS: Cara Guthrie; C.1 Claim form: requirements; C.2 Claim for interest; C.3 Provisional damages; C.4 Handicap on the labour market; C.5 Foreign currency; C.6 Statement about periodical payments; ; Schedules and counterschedules; C.7 Schedule in a case of a child claimant with cerebral palsy who will remain a protected beneficiary; C.8 Schedule in a Fatal Accidents Act case involving a deceased child; C.9 Counterschedule in a case of a child claimant with cerebral palsy who will remain a protected beneficiary; C.10 Counterschedule in a Fatal Accidents Act case involving a deceased adult; ; Periodical payments orders;; Introduction; C.11 Model periodical payments order; ; State funding; How it words in practice; C.12 Passive reverse indemnity; C.13 Where the claimant will come under the jurisdiction of the Court of Protection; ; 4 CLINICAL CONFIDENTIALITY: Nicholas A. Peacock; D.1 Letter of claim in breach of confidence case; D.2 Letter of response in breach of confidence case; D.3 Particulars of claim in breach of confidence case; D.4 Defence in breach of confidence case; D.5 Form of order for interim injunction; ; 5 MEDICAL TREATMENT OF CHILDREN: Susan Freeborn; When should the court be involved?; Children and medical treatment – an outline; Children under 16 who lack capacity; Children under 16 with capacity to give consent; Children aged between 16 and 18 with capacity; Children aged between 16 and 18 without capacity; How the court approaches medical treatment cases; Application for specific issue order under the Children Act 1989 – principles; Applications concerning the unborn child – principles; The inherent jurisdiction of the High Court and wardship; Wardship procedure; Applications under the inherent jurisdiction – procedure; Urgent applications; ; Precedents; E.1 Section 8 application for a specific issue order; E.2 Directions order in a section 8 application; E.3 Final order in a section 8 application; E.4 Interim declaration and direction: inherent jurisdiction; E.5 Interim order: wardship; E.6 Originating summons: wardship; E.7 Order under inherent jurisdiction authorising withholding of life-prolonging treatment; E.8 Practice Note: Official Solicitor: Deputy Director of Legal Services CAFCASS:Applications for reporting restriction orders; E.9 Reporting restrictions orders; E.10 CAFCASS Practice Note re appointment of CAFCASS officers in private law proceedings; ; 6 TREATMENT OF ADULT PATIENTS UNDER THE MENTAL CAPACITY ACT: Andrew Allen and Charles Foster; Introduction; ‘P’ and the assessment of capacity; Lasting powers of attorney/existing enduring powers of attorney; Advance decisions to refuse treatment; F.1 Advance decision to refuse treatment; Deputies/existing receivers; Independent mental capacity advocates; Public Guardian and the Office of the Public Guardian; Ill treatment/wilful neglect of someone lacking capacity; Relationship with the Mental Health Act 1983; Deprivation of liberty safeguards; ; Court of Protection; Jurisdiction; When to go to court; Discussions with Official Solicitor’s staff before issue; F.2 The COP1 form; F.3 Statement of truth; F.4 Accompanying documents; Written evidence; Expert evidence; F.5 Service and acknowledgement; Notification to persons other than the respondent; Parties; Permission; Application within proceedings; Urgent applications; F.6 Urgent applications: inherent jurisdiction; Claims based on the Human Rights Act 1998; Reporting restrictions; Disputing the court’s jurisdiction where P ceases to lack capacity or dies; Deputy’s declaration and report; Registration of an existing EPA; Registration of an LPA; F.7 Court orders; Appeals; ; 7 DISCIPLINE AND REGULATION; Alan Jenkins and Charles Foster; Introduction; ; The General Medical Council; History and remit; Publications; The old disciplinary/regulatory scheme; The new disciplinary/regulatory scheme; The hypothetical cases: an introduction; G.1 Conviction/health: chronology; G.2 Conviction/health: first notification to the GMC; G.3 Conviction/health: letter from police to GMC, setting out details of the conviction; G.4 Conviction/health: first letter from the GMC to the doctor; G.5 Conviction/health: first letter of response to GMC; G.6 Conviction/health: letter from GMC asking the doctor to submit to a medical examination; G.7 Conviction/health: letter from GMC re first appearance before interim orders panel; G.8 Conviction/health: letter to GMC, submitting to medical examination and making observations on the allegations; G.9 Conviction/health: letter to GMC re attendance at interim orders panel; G.10 Conviction/health: determination of interim orders panel; G.11 Conviction/health: GMC rule 7 letter and annexed draft allegations; G.12 Conviction/health: response to rule 7 letter/draft allegations; G.13 Conviction/health: determination of interim orders panel on review hearing; G.14 Conviction/health: fitness to practise panel determination on the facts; G.15 Conviction/health: fitness to practise panel determination on impairment; G.16 Conviction/health: fitness to practise panel determination on sanction; G.17 Conduct/conviction: chronology; G.18 Conduct/conviction: first letter from GMC, indicating receipt of information and annexing letter of concern; G.19 Conduct/conviction: first response from doctor’s solicitors; G.20 Conduct/conviction: correspondence and particulars of claim re High Court application to extend order of the interim orders panel; G.21 Letter from doctor’s solicitors, querying appropriateness of interim orders panel order, but submitting to application for extension; G.22 Letter from PCT re review of doctor’s inclusion on performers list; G.23 Response to PCT re doctor’s inclusion on performers list; G.24 Conduct/conviction: fitness to practise panel’s determination on sanction; G.25 Performance: chronology; G.26 Performance: first letter from GMC indicating concerns re performance and inviting doctor to be assessed; G.27 Performance: letter from doctor’s solicitors querying whether assessment is appropriate; G.28 Conduct: chronology; G.29 Conduct: determination of interim orders panel; G.30 Conduct: response to rule 7 letter; G.31 Conduct: notice of hearing; G.32 Conduct: fitness to practise panel’s determination on the facts; G.33 Letter to PCT re hearing to consider whether doctor should remain on performers list; G.34 Notice of appeal to the Family Health Services Appeal Authority; ; The General Dental Council; Introduction; Resources; Procedures; The hypothetical case: introduction; G.35 First letter from GDC, indicating that information has been received, and inviting response; G.36 Draft charges; G.37 Letter from dentist’s solicitor, responding to the allegations; ; The Nursing and Midwifery Council; Introduction; Resources; Procedure; The hypothetical case: introduction; G.38 The hypothetical case: chronology; G.39 First letter from NMC, enclosing draft allegations and inviting comments; G.40 Nurse’s first letter of response; The Health Professions Council; Other healthcare professions; The Council for Healthcare Regulatory Excellence; ; 8 INQUESTS; Fiona Borrill; Basic principles; When must an inquest be held?; Should there be a jury?; Funding: principles; Challenging a coroner’s decisions and an inquest’s conclusion: principles; Inquisitions and narrative verdicts in healthcare contexts: principles; ; Correspondence; H.1 Letter to coroner advising that a solicitor is acting, and requesting the inquest be taken out of the list; H.2 Letter to coroner advising that a solicitor is acting, and requesting the post mortem report; H.3 Letter to coroner requesting the witness list; H.4 Letter to coroner requesting that additional witnesses be added to the list; H.5 Letter inviting coroner to adopt an expert witness; H.6 Letter to coroner requesting a jury; H.7 Letter to coroner requesting a pre-inquest review; H.8 Letter to Legal Services Commission applying for exceptional public funding; H.9 Letter to NHS trust solicitor requesting copy of serious untoward incident report and missing medical records; H.10 Letter to NHS trust solicitor requesting transcription of medical notes; H.11 Letter to coroner following conclusion of inquest; ; Exhumation; H.12 Principles; H.13 Ministry of Justice guidance notes on applications for removal of human remains