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Inner House refuses appeal against Health Board

On Friday 19 April 2024 the Second Division issued its Opinion in the reclaiming motion (appeal) in the case of SD v Grampian Health Board.

This case concerned a brain injury suffered by the pursuer’s son shortly before his birth.  It originally went to trial in early 2022.  The trial lasted several weeks and the Lord Ordinary who heard it ultimately found in favour of the defenders.

The pursuer reclaimed (appealed) arguing that the Lord Ordinary had misunderstood the evidence.  The Second Division heard a two-day reclaiming motion in March 2024 and, having considered matters, refused the appeal.  The full decision can be found here.

Vinit Khurana KC and Barney Ross represented the pursuer in the reclaiming motion.  James McConnell and Shane Dundas represented the defenders.  Vinit, James and Shane are members of Ampersand Advocates.

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Ampersand Advocates continues Top Rankings success in 2024 Chambers and Partners UK Bar Guide

Ampersand Advocates has once again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2024.

Ampersand and its members received 75 listings across 17 areas of practice, ranking as top tier (band 1) in Clinical Negligence and Planning & Environmental Law as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Construction, Personal Injury, Professional Negligence, Real Estate Litigation and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”. There are additional rankings for Susanne Tanner KC in the Independent Inquiries all circuits section and Aidan O’Neill KC in the European Law London Bar section. There is wide practice for our clerking team and client service too.

Noted as a Band 1 set for Clinical Negligence, “Ampersand Advocates retains its reputation as a market-leading stable for clinical negligence matters. Its advocates continue to provide expert legal advice and representation to both pursuers and defenders in a wide range of disputes, including claims relating to birth and catastrophic brain and spinal injuries. The members are well versed in cases arising from alleged failures in diagnosis and surgical errors, and regularly appear at fatal accident inquiries. The stable also houses considerable expertise obstetric negligence cases.” Our rankings include 2 “Star Individuals”, Maria Maguire KC and David Stephenson KC, with 13 further silks and 5 juniors also ranked – Simon Bowie KC, Jamie Dawson KC, Simon Di Rollo KC, Una Doherty KC, Lisa Henderson KC, Vinit Khurana KC, Archie MacSporran KC, Euan Mackenzie KC, Geoffrey Mitchell KC, Graham Primrose KC, Lauren Sutherland KC, new silks Fiona Drysdale KC and Paul Reid KC, Shane Dundas, Mark Fitzpatrick, James McConnell, Jennifer Nicholson-White and Phil Stuart.

Ampersand’s Band 1 listing in Planning & Environment states “Ampersand Advocates is well regarded for the complex planning and environmental work undertaken by its advocates. Members of the stable regularly act in judicial reviews and challenges to planning permissions, and frequently act on behalf of developers, objectors, public sector bodies and energy companies. Members are regularly engaged in high-profile matters, including those relating to large renewable energy projects. One source notes that “the quality of advice and advocacy is at the highest level”. Rankings include Malcolm Thomson KC as “Star Individual”, and Band 1 ranked Marcus McKay KC, Ailsa Wilson KC and Laura-Anne van der Westhuizen KC.

Band 2 listings include Administrative & Public Law where Ampersand is praised “highly praised practitioners who are skilled at acting in public law cases involving significant constitutional and human rights issues. They frequently appear before the highest courts in the UK and the EU.” The rankings include “Star Individual” Aidan O’Neill KC, along with Ian Forrester KC, Douglas Ross KC, Laura-Anne van der Westhuizen KC, new silk Paul Reid KC, Usman Tariq and Timothy Young.

In Civil Liberties & Human Rights Ampersand is noted as a “highly regarded civil liberties and human rights stable, known for representing both private individuals and public bodies in significant proceedings. Practitioners at Ampersand are regularly instructed by the government and the Equality and Human Rights Commission.” The rankings include Aidan O’Neill KC, Douglas Ross KC and Usman Tariq.

In Commercial Dispute Resolution Chambers state Ampersand is “admired for its skilful work in high-profile commercial disputes. The stable offers a large team comprising highly rated advocates at the senior and junior levels. The advocates are instructed on behalf of corporations and financial institutions and are involved in a variety of related areas of practice including intellectual property and insolvency.” The rankings include Robert Howie KC, Graeme Hawkes KC, Laura-Anne van der Westhuizen KC, new silk Paul Reid KC, Ross Anderson, Eoghainn MacLean, Giles Reid, Usman Tariq, Tim Young and ‘up-and-coming’ Michael Way.

Within Personal Injury “Ampersand Advocates is a highly regarded stable for personal injury matters and houses a number of dedicated senior and junior advocates. Members act for both pursuers and defenders, including several major insurers, in the full range of claims, and offer considerable expertise in the handling of catastrophic injury cases arising from road traffic and workplace accidents. The team is also well regarded for its expertise in complex product liability and occupiers’ liability disputes and matters involving accidents abroad. Recent matters include acting for the defenders in a claim concerning tetraplegia as a result of a mountain biking accident. Interviewees report: “They have a rich talent of advocates available to instruct.”

Rankings include “Star Individuals” Maria Maguire KC and Graham Primrose KC with others ranked Isla Davie KC, Simon Di Rollo KC, Lisa Henderson KC, Euan Mackenzie KC, Douglas Ross KC, Alan Cowan, Chris Marney and Jenny Nicholson-White.

The Set ranking in Professional Negligence declares “Ampersand Advocates is a leading stable for professional liability matters in Scotland. The advocates often advise and act in proceedings on behalf of and against a suite of professionals including solicitors, surveyors, architects and financial advisers.” The rankings include Paul Reid KC and Usman Tariq.

In the Set ranking for Real Estate Litigation, it exclaims “Ampersand Advocates offers a strong bench of well-regarded advocates who are active across a broad range of real estate litigation topics. The set demonstrates strong expertise in areas of overlap between commercial and real estate disputes. Members are instructed at all levels from the Supreme Court down.” Rankings include Robert Howie KC, Laura-Anne van der Westhuizen KC, Ross Anderson, Giles Reid and Tim Young.

The Construction Set ranking states “Ampersand Advocates offers significant experience in advising clients in relation to a range of building and construction works in Scotland. The bench handles a variety of contractual, delays and construction disputes, also involving defects issues. Its advocates have notable expertise in adjudications and enforcement actions, as well as construction-related bond matters. This year’s work highlights include Greater Glasgow Health Board v Multiplex Construction Europe Ltd & Others, a dispute over a multimillion damages claim in connection with the construction of the Queen Elizabeth University Hospital, Glasgow. One source says: “My instructions to Ampersand Advocates have spanned a variety of complex issues and each of the advocates instructed have provided a service of the very highest level.” Another one enthuses: “Ampersand Advocates is a strong commercial stable, with good advocates at all levels across all disciplines including construction.”  Rankings include Robert Howie KC and Timothy Young.

Within Restructuring/Insolvency “Ampersand Advocates is well regarded for its handling of a wide range of restructuring and insolvency matters. The stable’s advocates are frequently instructed to represent administrators, companies, banks and insolvency office holders in complex claims involving allegations of wrongful trading and breach of fiduciary duty, among other matters. Members have experience of appearing in both domestic and cross-border matters, and are regularly called upon to act for and advise their clients on both contentious and non-contentious insolvency cases.” Rankings include Robert Howie KC, David Sellar KC, Ross Anderson and Usman Tariq.

There are further individual rankings in: Agriculture and Rural Affairs for Laura-Anne van der Westhuizen KC; Company for David Sellar KC and Tim Young; Employment for Aidan O’Neill KC; Information Technology and Intellectual Property for Usman Tariq; Product Liability for Paul Reid KC; and Tax for Ross Anderson.

The Ampersand clerks and client service again receives wide praise across all areas of practice, noting “The clerks and the advocates themselves deliver a very high-quality service” and “the Ampersand clerks provide a highly efficient service” and “all the clerks at Ampersand Advocates have been outstanding in their communication and dealings.” They are described as “very responsive and are very capable in terms of assisting with choice of counsel where help in that regard in” and being “prompt at responding to enquiries and have a good knowledge of the various advocates’ specialities and styles. As well as nothing “”All of the clerks are good. They come back almost instantly, they get everything booked, give alternative counsel if one isn’t available and help with costs.” And that “the clerks are extremely quick at responding and work with you to meet the needs of clients.”

On the recent rankings, Practice Manager, Alan Moffat, said: “This is again wonderful recognition and praise, which is a testament to the collaboration between our advocates, clerking team and those that instruct our counsel. My gratitude to all who offered their perspectives to Chambers – your time and insights are invaluable. These rankings are an affirmation that our collective pursuit of excellence and service is succeeding. We will continue striving to raise the bar even higher.”

The full rankings can be viewed on the Chambers and Partners website here.

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Ampersand Advocates ranked as top tier set by Legal 500 in 2024 guide

Ampersand is delighted to once again be recommended as a top-tier set by The Legal 500 UK Bar Directory in their latest listings for the 2024 guide.

Listed as tier 1 in Administrative & Public Law, Personal Injury & Medical Negligence and Property, Planning & Construction, and tier 2 in Commercial Disputes, Ampersand has collected 29 Senior Counsel rankings, 18 Junior Counsel rankings, including 2 rising star, across the Scottish Bar listings.

In Administrative and Public Law, Aidan O’Neill KC continues to be highly regarded for his expertise in human rights and EU law. Douglas Ross KC is noted as ‘A silk at the top of his game.’ Una Doherty KC, Geoffrey Mitchell KC, Laura-Anne Van Der Westhuizen KC and Susanne Tanner KC are leading silks. Paul Reid KC took silk in 2023. At the junior level, Ross Anderson and Usman Tariq are highlighted for their strong public law practices. Rising star Michael Way is noted for the first time.

The stable’s strength in complex commercial disputes continues, with new silk Paul Reid KC joining leading practitioners Robert Howie KC and Laura-Anne Van Der Westhuizen KC. Mark Boni, Eoghainn MacLean, Usman Tariq and Timothy Young are recommended as leading juniors. Rising star Michael Way receives praise.

Ampersand maintains its top-tier ranking in Personal Injury and Medical Negligence, with leading silks Simon Bowie KC, Lisa Henderson KC, Euan Mackenzie KC, Maria Maguire KC, Geoffrey Mitchell KC, Graham Primrose KC, David Stephenson KC and Lauren Sutherland KC highlighted. Tier 2 silks include Alan Dewar KC, Una Doherty KC, Vinit Khurana KC, Archie MacSporran KC, and Douglas Ross KC. Fiona Drysdale KC took silk in 2023 and is noted as ‘very precise’ and having ‘the ear of the court.’ Jennifer Nicholson-White is hailed as ‘a stand-out junior counsel’ in the field, alongside Shane Dundas and James McConnell.

In Property, Planning and Construction, Malcolm Thomson KC, Ailsa Wilson KC and Laura-Anne Van Der Westhuizen KC are recommended as leading silks, along with Robert Howie KC and Marcus McKay KC. Juniors Nicholas McAndrew, Timothy Young and Giles Reid receive praise for their property and planning law expertise, alongside Eoghainn MacLean and Ross Anderson.

Aidan O’Neill KC is also ranked in Employment matters.

The Ampersand clerking team, led by Alan Moffat, is noted for providing an excellent service. Moffat is described as “a stand-out clerk” who “takes client relationships extremely seriously.” The clerks are praised as “very pro-active,” “quick to respond,” and “very user friendly.” Sheena Hume is noted as “very organised and always quick to help.”

Overall, Ampersand continues to be recognised for its breadth and depth of expertise across key practice areas.

Full listings, including all Scottish rankings can be viewed on the Legal 500 website here.

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Ampersand Advocates Clinical Negligence Seminar 2023

Ampersand was delighted to confirm our Clinical Negligence seminar for 2023. This afternoon half day event attracted 3 hours of CPD and was followed by a social hour.

Chaired by Lisa Henderson KC, the full programme was:

As part of our commitment to this area of practice there was no charge for practitioners attending this event.

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Supreme Court interprets Montgomery and upholds decree of absolvitor for Forth Valley Health Board

Ampersand’s Una Doherty KC acted for the respondent in the appeal to the Supreme Court in the action McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) [2023] UKSC 26. On 12 July 2023, the Supreme Court handed down its judgment in this action which was described during the oral hearing as being the most important clinical negligence appeal in years. The Supreme Court refused the appeal. Una presented the oral submissions for the respondent at the hearing on 10 and 11 May 2023. Ewen Campbell, Advocate and David Myhill, Barrister appeared with her. The appellants were represented by Rob Weir KC and Ampersand’s Lauren Sutherland KC. The Dean of Faculty appeared for the GMC who were interveners.

Background

This action arose out of allegations of negligence against a consultant cardiologist, after the death on 7 April 2012 of Mr McCulloch who suffered a fatal cardiac arrest as a result of cardiac tamponade. The alleged negligence related to the care given to Mr McCulloch in hospital prior to being discharged home on 6 April 2012. After proof, the Lord Ordinary found that there was one breach of duty but no causal link to the death, so decree of absolvitor was granted (Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40). The appellants reclaimed, and the respondent cross-appealed the one finding of breach of duty. The appellants’ reclaiming motion was rejected, while the respondent’s cross-appeal was granted (Jennifer McCulloch and others v Forth Valley Health Board 2021 CSIH 21; 2021 SLT 695). The appellants were refused leave to appeal to the Supreme Court, but applied directly and in April 2022 were granted permission to appeal.

Appeal

The appellants had two grounds of appeal: 1) that the lower courts had erred in their application of the law on information disclosure as set out in Montgomery v Lanarkshire Health Board 2015 UKSC 11, as they wrongly held that the reasonableness of a doctor’s decision whether to inform a patient about an alternative treatment was governed by the Bolam professional practice test, whereas the appellants’ position was that the reasonableness of an alternative treatment was a matter for the court; and 2) that the lower courts erred in law in not applying the principle as set out in Drake v Harbour (2008) 121 Con LR at [28] to the issue of causation. The appellants’ position was the Mr McCulloch should have been advised that non-steroidal anti-inflammatory drugs, such as ibuprofen, were a treatment option and that had he been so advised, he would have taken the drugs and not died.

The respondent’s position was that the lower courts were correct in their interpretation of the law as to the assessment of what is a reasonable treatment option, and that a reasonable treatment option is a clinically appropriate treatment determined by the medical profession on the Hunter v Hanley test. The consultant cardiologist reasonably and supported by responsible expert opinion did not regard non-steroid anti-inflammatory drugs as a reasonable treatment option in Mr McCulloch’s case, therefore she did not require to discuss them with Mr McCulloch. The appellants’ contention was not consistent with Montgomery.

In relation to causation, the respondent’s position was that there was insufficient evidence to establish a causal link between the alleged failure to discuss possible treatment with non-steroidal anti-inflammatory drugs and the death. The authorities on which the appellants sought to rely did not support a finding of a causal link in this case – causation required to be established on conventional principles.

Judgment

In its judgment, the Court agreed with the findings of the lower courts and the respondent’s submissions, that the legal test which applies to the assessment of whether an alternative treatment is reasonable and requires to be discussed with the patient, is the professional practice test found in Hunter v Hanley and Bolam. Its decision and reasons on this issue are set out at paragraphs 56- 78, and 83.

The Court decided not to deal with questions of causation, given that there was no breach of duty and so causation did not arise (paragraph 82).

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McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [2023] UKSC 26

This case is concerned with the extent to which a doctor is required, under the duty of care owed to a patient, to inform the patient about alternative possible treatments to the one that is being recommended.

In Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”), the Supreme Court held that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

Following that decision, the main issue in this case is what test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, does a doctor fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable, and that opinion was supported by a responsible body of medical opinion (thus complying with what is sometimes referred to as the ‘professional practice test’ set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587 (“Bolam”) and in the Scottish case of Hunter v Hanley 1955 SC 200 at 206 (“Hunter”))?

The facts of the case are as follows. On 23 March 2012, Mr McCulloch, aged 39, was admitted to the Forth Valley Royal Hospital complaining of chest pains, nausea and vomiting. Dr Labinjoh, a consultant cardiologist at the hospital, was asked to review an echocardiogram that had been performed on Mr McCulloch. Her review of Mr McCulloch indicated that his presentation did not fit with a standard diagnosis of pericarditis (an inflammation close to the heart). During the next few days, Mr McCulloch’s condition improved. On 30 March, he was discharged home on antibiotics.

A couple of days later Mr McCulloch was readmitted to hospital complaining of the reoccurrence of chest pain. He was given intravenous fluids and antibiotics under the care of the medical team. On 2 April, a nursing entry stated ‘Nil further chest pain’. The next day, Dr Labinjoh visited Mr McCulloch in the Acute Admissions Unit, having reviewed a further echocardiogram. He looked much better than when she had previously seen him and, in answer to her questions, he denied having any chest pain. That being the case, she saw no reason to prescribe any additional medical treatment. In her professional judgement, she did not regard it as appropriate to prescribe non-steroidal anti-inflammatory drugs (“NSAIDs”), such as ibuprofen, because Mr McCulloch was not in pain at the time she saw him and there was no clear diagnosis of pericarditis.

On 6 April, Mr McCulloch was discharged home and remained on antibiotics. On 7 April he suffered a cardiac arrest at home from which he died.

His widow and other family members brought an action against Forth Valley Health Board alleging that they were vicariously liable for Mr McCulloch’s death, which they say was caused by negligent treatment by Dr Labinjoh. They alleged that Dr Labinjoh was in breach of her duty of care by failing to inform Mr McCulloch that NSAIDs were a possible treatment option for him. It is alleged that had he been so advised he would have taken a NSAID and would not have died.

The expert evidence indicated that, while some doctors would have prescribed NSAIDs to Mr McCulloch, there was also a responsible body of medical opinion that supported Dr Labinjoh’s approach given that Mr McCulloch was not in pain and there was no clear diagnosis of pericarditis.

The Lord Ordinary and the Inner House held that Dr Labinjoh was not negligent in failing to inform Mr McCulloch about the possible treatment by NSAIDs. The widow and family members of Mr McCulloch appealed to the Supreme Court.

Judgment

The Supreme Court unanimously dismisses the appeal. The judgment is given by Lord Hamblen and Lord Burrows with whom Lord Reed, Lord Hodge and Lord Kitchin agree.

Reasons for the Judgment

The correct test to decide what is a reasonable alternative treatment is what can be referred to as the ‘professional practice test’ which is set out in Bolam in England and Wales and Hunter in Scotland. A doctor who has taken the view that a treatment is not a reasonable alternative treatment for a particular patient will not be negligent in failing to inform the patient of that alternative treatment if the doctor’s view is supported by a responsible of body of medical opinion [56].

Taking a hypothetical example to help explain, in more detail, how the court regards the law as working: a doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Say that, in respect of that diagnosis, there are ten possible treatment options; the doctor, exercising his or her clinical judgment, decides that only four of them are reasonable and that decision to rule out six is supported by a responsible body of medical opinion. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in each treatment option [57].

It was submitted by counsel for the appellants that the professional practice test was not the correct test to apply and that it is for the court to determine what are the reasonable alternative treatments about which the patient should be informed. But the Supreme Court rejects that submission for a number of reasons including: (i) consistency with what was said in Montgomery [59-62]; (ii) consistency with the two stage test set out in the Court of Appeal decision in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 [63-66]; (iii) consistency with medical expertise and guidance [67-70]; (iv) avoiding an unfortunate conflict in the doctor’s role – in the sense that acceptance of the submission might lead to a doctor having to inform the patient about a treatment that the doctor, supported by a responsible body of medical opinion, considers to be clinically inappropriate for the patient [71]; (v) avoiding bombarding the patient with information [72-73]; and (vi) avoiding making the law uncertain for doctors who have to apply it [74-77]. In essence, the Supreme Court rejects the submission of the appellants because it would constitute an unwarranted extension of the law on the duty of care to inform that was laid down in the Montgomery case.

Applying that law to the facts of this case, Dr Labinjoh was not negligent because her view, that prescribing NSAIDs for Mr McCulloch was not a reasonable treatment option for him because he was not in pain and there was no clear diagnosis of pericarditis, was supported by a responsible body of medical opinion. She was therefore not in breach of her duty of care by not informing him of that possible option.

References in square brackets are to paragraphs in the judgment.

Full judgment here.

Lauren Sutherland KC for the Appellants

Una Doherty KC for the Respondents

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