Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Bridget Hughes acted for the Claimant in this brain injury case following a routine hysterectomy. The Claimant suffered complications in the form of intra-abdominal bleeding which led to cardiac arrest resulting in severe hypoxic brain injury. After some apparent gradual improvement the Claimant suffered a further cardiac arrest as a result of which her condition deteriorated further and she lapsed into a permanent vegetative state.
Liability and causation were admitted. A trial was held to determine quantum. In issue was whether it was reasonable for the Defendant to pay for the considerable cost of professional nursing care at home, rather that the Claimant remaining in a nursing home. The Judge commented on the interrelation between “best interests” and “reasonableness” and he heard evidence on the extent to which the family’s views are taken into account by treating clinicians. The Judge held that, notwithstanding the Claimant’s total lack of awareness of her surroundings, it was reasonable that she should be cared for at home.
There were also cultural, religious and spiritual considerations in this case. The Claimant’s immediate family were devout Muslims. They firmly believed that she should be cared for at home in a Muslim environment where they could pray together in her presence and ensure the proper observance of Muslim traditions and practices. The Defendant argued that as the Claimant was wholly unaware of any of these matters she would derive no provable benefit from it, and that it should therefore not be taken into account. The Judge disagreed. He concluded that “the wishes and beliefs of the Claimant’s family and so far as they can properly be attributed to her, those which she herself would have held had she continued to have the capacity to do so, are factors which can and should be taken into account in determining whether it is reasonable for her to be cared for at home, even though no tangible benefits, whether physical or emotional, are likely to flow from a recognition of those wishes and beliefs in view of her profound mental incapacity and lack of awareness.”
Although, sadly, the Claimant passed away before a full transfer home could be achieved, the case resulted in a helpful judgement on the issues, particularly cultural and religious, which should be taken into account when assessing claims of this nature.
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