Tag: medical negligence

Friday Round Up

It’s been a while since our last Friday round-up – here’s this week’s feminist legal news, plus a few highlights from the month.

In Scotland, Adnan Ahmed won his appeal against conviction. Ahmed was a “pick up artist” who made a career out of unsolicited approaches to young women, including two who were in school uniform at the time. Indicating a depressing lack of insight into the difference between “street harassment” and “a compliment,” the all-male appeal court held that “It does not seem to us that a polite conversational request or complement [sic] can be construed as threatening merely because it is uninvited or unwelcome.” They also had much to say about the Sheriff’s descent into the arena of cross-examination.

At Yew Trees hospital, which housed autistic women and / or women with learning disabilities, ten staff have been suspended after footage showing abuse was passed to the CQC. Police action appears to be pending.

Mirth among legal twitter from the judgment in Pile v Chief Constable of Merseyside Police, which was introduced in the first paragraph as looking at the “liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing.” This seems to have been a slightly facetious introduction to a case which looked at the balancing of a detainee’s right to consent to the removal of clothing and the police’s obligations to ensure her safety and dignity including the necessity of a male officer to check on her while she was in her underwear. The conclusion was that the practical needs outweighed her concerns about consent, but that is not quite how it was introduced. The judgment, while circulated as an example of judicial humour, carries an unfortunate note of contempt for drunken women. As to merits, someone had plainly granted permission, so it wasn’t entirely unmeritorious. Legal Feminist wonders whether an equally insensible male claimant would have been the subject of quite so much elbow-jogging amusement.

In Leeds, it appears that the council have decided to extend the “managed zone” in which prostitution is legalised. This is on the strength of the review document, which concluded that while the system failed from 2014-2018, the claimed improvements of 2019 justified extension. It will be interesting to learn whether or not Leeds have complied with PSED in making this decision. 

Barrister Alexandra Wilson has received an apology from HMCTS after being mistaken for a defendant three times in one day. BAME barristers being asked if they are defendants or interpreters is sadly not uncommon, and we hope this apology leads to real change. 

In sex and gender news, a busy period recently: 

In the case of Taylor v Jaguar Land Rover, the Claimant, who identified as gender fluid / non-binary and wore women’s clothing to work, had applied to the Employment Tribunal as a result of a course of harassment over a period of time, including insults and abuse. S.7 Equality Act 2010 defines the protected characteristic of “gender reassignment” as follows:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Claimant’s submission was that she was included within the protected characteristic of “gender reassignment” while Jaguar as the Defendant argued that gender-fluid or non-binary identities did not meet the relevant definition. Finding for the Claimant, the Tribunal awarded aggravated damages “because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings.”  Although this is a first-instance decision, and therefore not binding on any other court or tribunal, it demonstrates that the Employment Tribunal is willing to consider that the definition of gender reassignment should be broadly interpreted. Congratulations on a good win to Robin White of Old Square Chambers who was instructed for the Claimant.

Liz Truss MP announced this week that there would be no change to the substantive requirements to obtain a Gender Recognition Certificate. Applicants will continue to produce evidence of gender dysphoria. However the process will be made less expensive and waiting times will be cut considerably with three new gender clinics opening.

At the same time, the NHS announced that there will be an independent review, led by Dr Hilary Cass OBE, into gender identity services for young people. This follows the cases brought by Keira Bell and by Sonia Appleby relating to concerns at GIDS. We note that the first ‘no win no fee’ adverts by solicitors to represent negligence claims brought by detransitioners are already being seen.

The Department for Education has also published guidance on teaching Relationships and Sexual Health (RSE) clarifying that “You should not reinforce harmful stereotypes, for instance by suggesting that children might be a different gender based on their personality and interests or the clothes they prefer to wear. Resources used in teaching about this topic must always be age-appropriate and evidence based. Materials which suggest that non-conformity to gender stereotypes should be seen as synonymous with having a different gender identity should not be used and you should not work with external agencies or organisations that produce such material.” It is shocking that in 2020 it was necessary to clarify that girls can like engineering and trousers, but welcome guidance nonetheless. 

Meshed Up: The Treatment of Women Following Mesh Surgery

Victoria Phillips, partner and head of employment rights (client relations) at social justice law firm Thompsons Solicitors, discusses how women have been treated following complications from surgical mesh.

Over the years, there has been growing awareness and press coverage surrounding the issues of surgical mesh, particularly following the publication of the Independent Medicines and Medical Devices Safety Review on 8 July 2020, led by Baroness Cumberlege. The First Do No Harm report looked into three medical scandals: primodos, a hormone pregnancy test associated with birth defects that was withdrawn in the 1970s; sodium valproate, an anti-epileptic drug, which can harm children during pregnancy; and vaginal mesh implants, a cause of unbearable pain and life-long complications. 

We represent more than 200 women in vaginal mesh surgery claims so, in terms of the review, our focus has always been on this medical intervention. But the commonalities that bind the three are far more staggering than their differences. The review had many overarching themes but the concerns of female patients being ignored by health professionals was a significant common denominator, which exposed an institutionalised inability for the healthcare system to listen to women.

At Thompsons Solicitors, we’ve witnessed how male surgeons patronise female patients and dismiss legitimate concerns in a way that we’re convinced would never happen if the patient was a man. There has been an overriding  paternalistic approach to female issues and patients have had no choice but to trust their surgeon, despite their body telling them something quite different. 

If mesh was to be inserted anywhere near male sexual organs, I believe there would have been rigorous and comprehensive pre-market testing before it was even hinted at as a potential treatment option. If there was even a slight risk to a man’s ability to function sexually , mesh probably would have been dropped far sooner, or more likely, never considered an option in the first place. 

It begs the question that should a man have been put in the same position, would he have been given all of the necessary information? Would he have been listened to when he voiced concerns about the pain he was feeling after his mesh surgery? Would his medical team have looked into the issue thoroughly and found a suitable alternative? Looking at the findings of the review and speaking to our clients, the answer is a resounding yes. Instead, women were told it was “all in their head”, or part of the menopause, and often referred for counselling in lieu of any effort being made to discover the true cause of their agony. 

Many who had mesh surgery didn’t experience issues until years later, but some reported pain and complications immediately after regaining consciousness from their surgeries with assurances it was completely normal and in time would wane. For thousands of women, it never did. They spoke to their GPs, numerous surgeons and other healthcare professionals but were often dismissed  when they suggested their pain was from mesh. One client recalled her surgeon telling her parents she was inventing her pain because of school-related anxiety. That client has since been told the rectopexy surgery she had at just 15 years old, which has left her self-irrigating every night since, was unnecessary. She must continue to self-irrigate for the foreseeable future, unless she agrees to have a colostomy bag. She is just 22 years old. 

The review team heard hundreds of accounts across the country on all three health scandals and Baroness Cumberlege summed it up by saying she “couldn’t believe that people had gone through so much agony and suffering and had been ignored” and that “much of this suffering was entirely avoidable.” 

The life-changing disabilities our clients have suffered from mesh implants has been heart-breaking to see. There has been a systematic failure with a lack of warning from both the manufacturers and the surgeons and hospitals who carried out the operations, without adequate consent. When they tried to complain, our clients faced rejection and belittlement while being wracked with pain. 

Baroness Cumberlege didn’t pull any punches in her review. The changes she called for are too late for those we represent, but they offer the possibility of real reform. This is not just about the NHS. Her recommendations must equally apply to the private healthcare sector, which is every bit, if not more, complicit. 

An apology to the women and men who have suffered, as well as their families, is as welcome as it is overdue, but it won’t bring back the people our clients once were or the childhoods or relationships they have lost. 

To ensure this is not a further slap in the face for our clients, and others affected, the promised changes must be swift, real and resourced from new money, not recycled funds taken from other parts of the health service.

What those who have suffered for so long deserve is decisive action that leads to real change. And that must start without delay.