Health Professions - 1970- 1979

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This page lists 6 cases, and was prepared on 28 October 2012.

Libman -v- The General Medical Council [1971] UKPC 1
20 Oct 1971 PC Lord Hailsham	Health Professions	Casemap 1 Cites
	PC (General Medical Council) The appellant a consultant physician appealed a finding of serious professional misconduct. He had had sexual relations with a patient, and offered to pay a sum for her silence. The Board was aksed to consider its jurisdiction in appeals from the disciplinary committee of the GMC. Held: The Board set out four general general propositions supporting their decision to reject the appeal. Lord Hailsham: "(1) The appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision. See Per Lord Radcliffe in Fox v General Medical Council ([1960] 3 All ER at 226, [1960] 1 WLR at 1020). (2) Notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked. The appeal is not by way of re-hearing in the sense that the witnesses are heard afresh or the evidence gone over again (see per Lord Radcliffe). This, amongst other things, means that there is a heavy burden on an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory. (3) Beyond a bare statement of its findings of fact, the disciplinary committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which an appeal by way of rehearing lies to the Court of Appeal (see per Lord Radcliffe ([1960] 3 All ER at 227, 229, [1960] 1 WLR at 1021, 1023)). It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the disciplinary committee would be a case where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them. (4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision. See Fox v General Medical Council and per Lord Guest in Sivarajah v General Medical Council ([1964] 1 All ER at 507, [1964] 1 WLR at 116, 117)."
	Link[s] omitted

S -v- McC; W -v- W [1972] AC 24
1972 HL Lord Hodson, Lord MacDermott, Lord Reid	Children, Torts - Other, Health Professions	Casemap 1 Citers
	The distinction between the court's 'custodial' and 'protective' jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter of upbringing in which the child's interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. (Lord MacDermott) "The duty of the High Court as respects the welfare and affairs of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the common law courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act 1873. It recognises that the infant, as one not sui juris may stand in need of aid. He must not be allowed to suffer because of his incapacity. But the aim is to ensure that he gets his rights rather than to place him above the law and make his rights superior to those of others. The Official Solicitor, however, relied on something more than the protective jurisdiction. He relied upon what is commonly referred to as the 'custodial jurisdiction' - the second of the broad categories which I have mentioned already. This is an aspect of the prerogative and paternal jurisdiction of the former Court of Chancery. It is derived mainly from the administrative functions of the Court of Chancery in which that court had to make a choice between conflicting claims as to the custody and upbringing of the infant or the management of his affairs, or to determine the course to be taken in such matters even when not in actual dispute." (Lord Hodson) "In custody cases the child's welfare is the governing consideration when all the relevant facts, claims and the wishes of the parents are taken into account. I am not persuaded that the position is the same where a paternity issue has to be tried. True that, as in all cases where infants are concerned, the court will see that the infant is protected. . . . The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of persons other than the child are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others." (Reid) "But even if one accepts the view that in ordering, directing or permitting a blood test the court should not go further than a reasonable parent would go, surely a reasonable parent would have some regard to the general public interest and would not refuse a blood test unless he thought that would clearly be against the interests of the child." (Sir Thomas Bingham MR) ‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.’

Dunning -v- United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586; [1973] 2 All ER 454
1973 CA James LJ, Lord Denning MR, Stamp LJ	Evidence, Health Professions	Casemap 1 Citers
	Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been properly made. Given the delay, the court was asked whether a claim was 'likely' to be made. Held. Whether the parties are likely to be parties in subsequent proceedings does not depend on the state of affairs prior to pre-action discovery. If one concentrates solely on things as they stand prior to pre-action discovery then it will often be impossible to say that anyone is likely to be a party to any subsequent proceedings. Lord Denning MR said: "One of the objects of this section is to enable a plaintiff to find out – before he starts proceedings – whether he has a good cause of action or not". “likely” must be given its more extended and open meaning. A more restricted meaning would defeat the purpose of the statute. James LJ said: "In order to take advantage of the section, the wording of which is no different from that of s 33(2) of the 1981 Act the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it. Ill-founded, irresponsible and speculative allegations or allegations based merely on hope, would not provide a reasonable basis for an intended claim in subsequent proceedings." Stamp LJ dissented, saying that the expert's opinion was that proceedings were unlikely, and disclosure was unlikely to produce anything to justify it.
	Administration of Justice Act 1970 31

In re D (A Minor) (Wardship: Sterilisation) [1976] Fam 185
1976	Torts - Other, Health Professions	Casemap 1 Citers

Pountney -v- Griffiths; Regina -v- Bracknell Justices, Ex parte Griffiths [1976] AC 314
1976 HL Lord Edmund-Davies, Lord Simon of Glaisdale	Torts - Other, Health Professions	Casemap 1 Cites 1 Citers
	The applicant was a male nurse at Broadmoor Special Hospital. He was on duty while patients were saying goodbye to visitors. He approached the detained patient telling him to "come on" and allegedly punched him on the shoulder. The patient brought criminal proceedings for assault without first obtaining the leave of the High Court under section 141(2) of the 1959 Act. The applicant was convicted and applied for certiorari to quash the conviction on the ground that since the leave of the High Court had not been obtained the proceedings were a nullity. Held: The case questioned the rights of nurses in secure mental hospitals to oblige patients to return to their wards at the end of visiting time. The House accepted that the power to detain brought with it powers of control which would allow the practice. Quoting Lord Widgery in the Divisional Court that: "where a male nurse is on duty and exercising his functions of controlling the patients in the hospital, acts done in pursuance of such control, or purportedly in pursuance of such control, are acts within the scope of section 141, and are thus protected by the section." Lord Edmund-Davies said "That, in my respectful judgment, was the correct view to take of the case, and it follows that, since the leave of the High Court was not obtained, the proceedings before the magistrates were a nullity and the Divisional Court had no alternative but to quash the conviction." Lord Simon of Glaisdale observed that s.141 of the 1959 Act placed a hindrance on the recourse of a class of citizens to the courts and drew a comparison with the requirement for a vexations litigant to obtain the permission of the court before commencing proceedings.
	Mental Health Act 1959 141(2)

Ziderman -v- General Dental Council [1976] 2 All ER 334; [1976] 1 WLR 330
1976 PC Lord Diplock	Health Professions	Casemap 1 Citers
	Lord Diplock: "The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession."