Winter 2016

No 18 Chambers eBulletin

Welcome to our Winter Newsletters

What impact do the findings and opinions of earlier investigations by other panels or individuals have on a fitness to practice hearing?

Normally none says the High Court (Holman J.) in Enemuwe v Nursing and Midwifery Council.

The appellant midwife was charged with a number of conduct allegations relating to her behaviour and performance whilst assisting with a birth at St Thomas’ Hospital in September 2012.

The NMC Panel assessing the appellant’s fitness to practice, heard from a number of witnesses, including the Supervisor of Midwives appointed by the Local Supervising Authority who had authored an internal investigation report (‘SOM’) which was before the Panel.

The Panel found one charge by admission and a further two following the final hearing, subsequently finding the appellant’s fitness to practice impaired.

The appellant appealed to the High Court on grounds concerning (a) the reliance on the SOM outcome, (b) the reliance on the evidence of Dr1 and (c) inconsistencies between evidence of witnesses called by the NMC.

Turning its mind only to ground (a), as (b) and (c) consequently did not require determination, the Court allowed the appeal under CPR 52.11(3)(b) (‘a serious procedural or other irregularity in the proceedings in the lower court’).

Referring the matter back for rehearing before a different Panel, the Court reminded itself the investigating officer was not an expert for the purposes of the hearing and therefore findings should not be admissible.

At paragraph 79 of the judgment, Holman J. stated – “…normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this Committee”
The decision is a stark reminder that earlier determinations are far from binding in fitness to practice hearings.

Internal relocation- the child’s welfare is the paramount concern

The recent decision of Re C (Internal Relocation) [2015] EWCA Civ 1305 has clarified the law on internal relocation, confirming the only principle is the welfare of the child.

The case concerned an appeal by Father. An order was made on 23rd March 2015 by Mr Recorder Digney allowing the Mother to move the child from London to Cumbria. The existing case law suggested a test of ‘exceptional circumstances’ in order to prevent such a move taking place.

In her leading judgment, Lady Justice Black gave full consideration on the law of internal relocation.

She said ‘’ There is no doubt that it is the welfare principle in section 1(1) of the Act which dictates the result in internal relocation cases, just as it is now acknowledged that it does in external relocation cases. It is difficult to see any room in the statutory scheme for the outcome to be dictated by other, different, principles. And when one goes back over the internal relocation cases, it is clear that one of the main influences behind the exceptionality "test" was always the welfare of the child. The protection of the freedom of the adults to choose where they would live within the United Kingdom was, of course, another significant influence, but the "exceptional cases" where that would be restricted were those where the welfare of the child required it.’’ (para 51).

At paragraph 53 she stated ‘’ It is no doubt the case, as a matter of fact, that courts will be resistant to preventing a parent from exercising his or her choice as to where to live in the United Kingdom unless the child's welfare requires it, but that is not because of a rule that such a move can only be prevented in exceptional cases. It is because the welfare analysis leads to that conclusion.’’

Lady Justice Black acknowledged the diversity of relocation cases. She stated ‘’ At one end of the spectrum, it is not to be expected, for instance, that the court will be likely to impose restrictions on a parent who wishes to move to the next village, or even the next town or some distance across the county, and a parent seeking such a restriction may well get short shrift. At the other end of the spectrum, cases in which a parent wishes to relocate across the world, for example returning to their original home and to their family in Australia or New Zealand, are some of the hardest cases which the courts have to try and require great sensitivity and the utmost care’’ (para 54).

Although difficult for any parent, the court was clear on the test required to determine the issue- ‘’The interests of the parents are not ignored but, if it is not possible to accommodate everyone's wishes, the best interests of the child dictate the outcome’’ (para 60)

Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 – Individual autonomy succeeds against medical advice as to a patient’s best interests

The Court of Protection has ruled that a mentally incapacitated man can refuse lifesaving treatment.

Mr. B, a diabetic with a severely infected leg, refused amputation. Doctors treating Mr. B wished to perform such operation in order to save his life.  The court noted that ‘’without the operation, the inevitable outcome is that he will shortly die, quite possibly within a few days. If he has the operation, he may live for a few years’’ (para 1).

The court considered the principles of section 1 and 2 Mental Capacity Act 2005 and the authorities notably Aintree University Hospitals NHS Trust v James [2014] AC 591.

The Judge was satisfied that Mr B did not have capacity to make decisions (para 34). However, on the balance of interest test, the court considered that it would not be in Mr B’s interest to have the operation. Mr Justice Peter Jackson stated ‘’ I am quite sure that it would not be in Mr B's best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter’’ (para 45).

Mr Justice Jackson visited Mr B as to his needs and wishes. It was noted that mental illness of Mr B resulted in him having religious delusions. Despite these being delusions, the Judge noted the importance of religion to him.

The court stated ‘’Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is’’ (para 43).

The case demonstrates the importance of a person’s right to autonomy and the weight that this should hold. Despite evidence of mental illness, the Judge stated that ‘’I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his "fierce independence", and it is this that is now, as he sees it, under attack’’ (para 43).

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112

Misuse and abuse of section 20.

Sadly we are all too well aware of the delays that the misuse of section 20 can cause.  This mechanism for accommodating children means that as long as their immediate welfare needs are safeguarded they go to the bottom of the list when it comes to local authorities issuing proceedings and getting on with any assessments.  Months can go by with children languishing in foster placements without any attempts being made to return them to the care of their parents.  

Parents in this situation rarely have an understanding of their rights to withdraw consent and when they do seek advice and withdraw their consent they are usually criticised for it.  However, withdrawing consent or threatening to withdraw consent is often the only way to force the hand of the local authority to issue proceedings and for there to be proper oversight of the issues.

Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 the President has again looked at the use or misuse of section 20 by local authorities.  Whilst it is clear that “Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings,”it is not to be used, as it currently is, as a holding position for lengthy periods of time before proceedings are commenced.

The President sets out his view in respect of good practice at para 170.

“It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above:

i)  Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

ii)  The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

iii)  The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

iv)  The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

v)  Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

171. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”

Practitioners beware!!!  On behalf of parents we should no longer be agreeing to fetters on their right to withdraw consent to section 20. We should no longer be offering a period of notice in writing before the parents can withdraw consent.  Such actions are likely unlawful.

Consumer Rights Act 2015

The main parts of the Consumer Rights Act 2015 came into force today, 1 October 2015.  It is impossible to set out all the provisions in a short article, but I hope the following gives an awareness of its provisions.  It is a consolidation of many enactments and much case law will still be relevant in interpreting the meaning of words already in use.

The Act is in three Parts:
1  Consumer contracts for goods, digital content and services;
2  Unfair terms; and
3  Investigatory powers; Weights and Measures (Packaged Goods) Regulations 2006; Enterprise Act 2002; maximum penalties re premium rate services; competition law; letting agents; higher education complaints handling scheme; resale of tickets for recreational, sporting and cultural events.

Part 1 deals with consumer law.  This statutory code will be a help to consumers of small value products once the effects are widespread knowledge.  The courts will only see cases where the value at stake is worthwhile litigating however.  Even in the 21st century, consumers will have experienced difficulties in getting retailers to observe the 1893 Sale of Goods Act provisions.  However it is a progressive piece of legislation with its heart in the right place.

Dealing mainly with Part 1:-

It sets out the standards that goods must meet. (satisfactory quality (s9), fit for particular purpose (s10), as described (s11), match a sample (s13), match a model seen or examined (s14))  This reflects a good attempt to ensure consumers receive what they believed they were buying.

There is a consolidation of inconsistent remedies available to consumers for goods supplied under different contract types, such as sale, work and materials, conditional sale or hire purchase.  This is a good move towards consistency.

A time limit of 30 days is set (s22) in which consumers can reject (s20 - short term right to reject) substandard goods and be entitled to a full refund.  Rejection of goods has always been a brave move for any consumer often when met with a hostile retailer.  But s19 does set out clearly the crux of what most consumers will need to know.

S19(3) states ‘If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, or if they do not conform to the contract under section 16, the consumer’s rights (and the provisions about them and when they are available) are—
(a) the short-term right to reject (sections 20 and 22);
(b) the right to repair or replacement (section 23); and
(c) the right to a price reduction or the final right to reject (sections 20 and 24)

There is a limit to the number of repairs or replacements of substandard goods before traders must offer some money back, and this is a good thing for the consumer

S23 (2) states ‘If the consumer requires the trader to repair or replace the goods, the trader must (a) do so within a reasonable time and without significant inconvenience to the consumer.  When does inconvenience come significant?  This is subjective, and for example the return of a printer may be a significant inconvenience to a lawyer who might need it every day as opposed to the occasional user.

Limits have been set on the extent to which traders may reduce the level of refund (where goods are not rejected initially) to take account of the use of the goods the consumer has had up to that point (and see separate rules for motor vehicle - s24).

The act introduces new concepts:-

  • a new category of digital content.
  • tailored quality rights for digital content.
  • tailored remedies if the digital content rights are not met.
  • a new statutory right that if a trader provides information in relation to a service, and the consumer takes this information into account, the service must comply with that information.
  • new statutory remedies when things go wrong with a service.

And finally the act makes it clear that consumers can always request these rights and remedies when a trader supplies a service to them.

In conclusion, the act consolidates, and simplifies for consumers, what has been a collection of extracts from various statutes, and sets out consumer rights in a progressive and not over complicated way.  The difficulty will be for the millions of consumers buying low value goods persuading retailers what their rights are.

Authors note - The above is taken from this more informative link   The author has recently returned a printer to PC World and encountered difficulties!

Enforcing and varying undertakings in consent financial remedy proceedings

Undertakings are regularly given by one party to pay a third party.  Common is the undertaking such as the wife gave in Birch v Birch 2015 EWCA Civ 833:-

4.3   To discharge the mortgage on the FMH and to use her best endeavours to secure the release of H from any liability under the mortgage; or

4.4   To secure his release from the mortgage by sale of the property.
If the court cannot make an order between a party and a third party can it enforce an undertaking to pay a third party ?  Yes, because it is enforcing the promise of a party.

In Gandolfo v Gandolfo (1980) 2 WLR 680 an undertaking to pay school fees was enforceable as  garnishee proceedings.

In Jenkins v Livesey (1985) AC 424 (at 444)  ‘such undertakings are enforceable as direct orders’

In Symmons v Symmons (1993) 1 FLR 317 the husbands undertaking to pay school fees and school clothes was held to be equivalent as an order and enforceable by committal

Recently in Birch v Birch 2015 EWCA Civ 833 McCombe LJ said ‘… it is a recognised process of consent orders … to make arrangements, by way of undertakings by one or more of the parties for matters outside the powers of the court under the 1973 Act.  The undertakings are an essential part of the bricks and mortar with which the edifice of such financial orders are constructed.  It was therefore undoubtedly within the power of the court to extract and/or accept such undertakings as these without which the order for property transfer would not be made’

McCombe LJ also said ‘However it seems to me as Munby J said (in Dinch v Dinch 1987 FLR 162) the jurisdiction to vary the undertakings must technically exist even if rarely to be exercised’.

Undertakings offer a stronger sanction and are easier to enforce than agreements, but advisers should use them with care and it is submitted the following is good practice.

The form of words recommended by the SFLA - 'Upon the parties undertaking to the court and agreeing with each other' - should be used.

The order should include ‘liberty to apply to implement or enforce its terms, including any undertaking or agreement recited in it.’

The parties, as well as their solicitors, should sign and the solicitor for a party giving an undertaking should declare that he has explained the meaning of the undertaking to his client and the consequences of failing to keep it.

The order should contain a statement by the giver of the undertaking in the same terms as that in form N117 - 'I understand the undertaking(s) that I have given and that if I break any of my promises to the court I may be sent to prison for contempt of court' - and be endorsed with a conspicuous penal notice: 'You may be sent to prison if you break the promises you have given to the court'.

Lastly, the solicitors for the giver of an undertaking should be asked to confirm that their client has received a sealed copy.

PD 33A contains provisions for enforcing an undertaking for the payment of money, and the requirements for such an undertaking, as does FPR r37.4 & PD 37A.