Monday, 16 February 2015

The SARAH Act 2015 - Similar Fact Evidence and Disclosure

The Social Action, Responsibility and Heroism Act 2015 has received Royal Assent and will come into force on a day to be appointed by regulations to be made by the Secretary of State. It is worth considering how it will affect the conduct of clinical negligence litigation, in particular the exercise of disclosure.

The Act applies "when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining steps that the person was required to take to meet a standard of care." Thus the Act applies to any clinical negligence claim and in relation to the determination of whether the Bolam/Bolitho tests are met.

By Section 2, the court must have regard to whether the alleged negligence occurred when the person (healthcare professional) was acting for the benefit of society or any of its members. Negligent treatment causing harm tends not to have been beneficial, but I suppose the point is that medical treatment generally is of benefit to society. A doctor will have been generally acting for the benefit of patients and so the court must take that into account. If so, Section 2 will always apply and a court must have regard to it. Just how it will take it into account is unknown - see my previous post.

Section 4, on heroism, might apply to clinical negligence claims in a limited number of cases.

It is section 3 - the responsibility part of the Act  - which might cause the most difficulty in  clinical negligence litigation. It provides that:

"The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence ... occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others."

The phrase "the activity" might be construed widely - the provision of treatment to patients by the practitioner - or narrowly - the particular consultation at which the GP failed to refer the patient with a breast lump to a breast clinic. On the narrow interpretation, it is difficult to see how the provision would be meaningful - "Apart from my amputating the wrong leg Mr Jones, the operation was a huge success..." On any wider interpretation, the doctor's past record becomes relevant.

The word "predominantly" is also ripe for judicial interpretation - does it mean "more often than not" - a pretty low standard for a neurosurgeon or indeed any other healthcare professional? Or would even a few examples of a poor approach to patient safety establish that the doctor did not have a predominantly responsible approach?

In the recent Court of Appeal decision in Laughton-v-Shalaby  the Court of Appeal considered that the claimant could not rely on evidence from a GMC investigation into seven operations on other patients by the defendant surgeon to prove negligence on the occasion of the claimant's operation - [21] to [27]. Only similar fact evidence could be probative of negligence. 

If the SARAH Act had been in force, then the court would have been required to have regard to whether the surgeon demonstrated a predominantly responsible approach when performing surgery. As such perhaps it would have been bound to have regard to the evidence of his standard of surgery on other patients. Surely the new Act renders such evidence admissible whether or not it is similar fact evidence. 

The future exercise of disclosure will accordingly become far more problematic than it has been in the past. Since the Court must have regard to whether a doctor demonstrated a predominantly responsible approach, it will have to receive evidence on the issue. There is no escaping that requirement. Nor can this be a one-way enquiry. Evidence tending to establish a predominantly responsible approach, and evidence tending to establish the reverse, must be equally relevant and equally disclosable. Is a claimant in a surgical negligence claim going to be entitled to expect disclosure of success rates for the surgeon's similar operations, or even for all operations? Does evidence of past complaints, findings of negligence, adverse incidents etc become disclosable? How far can this enquiry reasonably extend? Under the Act it seems that evidence of approach after the index injury would be as relevant as evidence of previous approach. 

I can foresee pre-action protocol letters changing to adapt to this new Act.

The Court of Appeal in Laughton recognised the difficulties for a Judge of a "roving cross-examination into other cases" but the SARAH Act surely makes that more likely, thereby prolonging trials.

And how will all this enquiry assist the court? The court must take into account the evidence of whether the doctor has a "predominantly responsible approach", but how does it take it into account? If the evidence is positive for the doctor, but evidence about his practice in the particular case establishes negligence, then his "predominantly responsible approach" will avail him nought. And if the evidence is negative for the doctor, isn't it likely that the courts will revert to the similar fact evidence rule when it comes to assessing the probative value of the evidence?  Either way, the whole exercise will have been an expensive waste of time. 








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