Fiona Paterson

Year of call:
2003
Email:
fiona.paterson@39essex.com

Clerks:
020 7832 1111

“an absolute star”
Chambers & Partners

Described as “an absolute star” by Chambers & Partners, Fiona has been ranked by the directories as a leading junior in the fields of Administrative and Public Law, Court of Protection and Regulatory Law. Specialising in difficult, complex and sensitive medical and welfare cases concerning substantial claims, regulatory issues and treatment decisions, Fiona acts both for and against the state in matters involving fundamental human rights. She has appeared in several landmark cases before both the Supreme Court and the Court of Appeal over the last 2 years, acting for vulnerable adults through the Official Solicitor, children through CAFCASS, as well as NHS Trusts such as the Great Ormond Street NHS Foundation Trust and King’s College NHS Foundation Trust.

Before coming to the Bar, Fiona practised for 9 years as a solicitor, specialising in all aspects of healthcare law and acting both for claimants and defendants. She also worked as a research assistant for the mediation provider, CEDR examining the possible use of mediation in clinical disputes and training as a mediator. Fiona has participated in a wide variety of mediations, both as a lead and assistant mediator, often involving multiple nationalities and cultures.

Administrative & Public


A member of the Attorney General’s B Panel, Fiona has a broad public law practice involving cases both for and against the state and is recognised by the Legal 500 as a leading junior.

She has acted in two of the three appeals to the Supreme Court under the Mental Capacity Act 2005; namely N v A CCG and Y v An NHS Trust and Ors in which judgment was handed down in July 2018.

Last year she appeared for one of the most restricted patients in Broadmoor Hospital in Djaba v West London Mental Health Trust which concerned the applicability of the Human Rights Act 1998 to the powers of Mental Health Tribunals.

Fiona regularly advises NHS bodies both in relation to Article 2 inquests and their public law duties to patients. She also advises NHS England, NHS Trusts and private healthcare providers on issues from “bed blockers” to disputes over liability for provision of services.

She is presently instructed by the Official Solicitor on behalf of a young woman whose prolific and life-threatening self-harming in prison custody has led to an Article 2 investigation commissioned by the Ministry of Justice. The investigation will consider whether her life-threatening self-harming could have been prevented and if so, how?

CASES & WORK OF NOTE

  • Y v An NHS Trust and Ors [2018] UKSC 46 [2018] 3 WLR 751 The third appeal to the Supreme Court concerning the Mental Capacity Act 2005. The court held that obtaining an order under the Mental Capacity Act is unnecessary where a family and treating clinicians agree that clinically assisted nutrition and hydration should be withdrawn from an incapacitous adult in a prolonged disorder of consciousness.
  • Haastrup v King’s College NHS Foundation Trust and Ors [2018] EWCA 287 (Civ) [2018] 4 WLR 46 The appeal concerned whether life – sustaining treatment should be withdrawn from a brain injured baby and whether his parents should be allowed to adduce fresh expert evidence which had not been before the court below.
  • Re N v A CCG [2017] UKSC 22 [2017] 2WLR 1011 The second ever appeal to the Supreme Court concerning the Mental Capacity Act 2005. The court determined what the Court of Protection should do when faced with a dispute between the funders of health or social care services and the family members of an incapacitated person.
  • Djaba v West London Mental Health Trust [2017] EWCA Civ 436 [2018] 1 WLR 1333 The Court of Appeal concluded that the statutory tests within sections 72 and 73 of the Mental Health Act 1983 did not require a “proportionality assessment” to be conducted pursuant to Articles 5 and 8 (taking into account the conditions of a restricted patient’s detention).

Court of Protection


Fiona is currently ranked by Chambers and Partners as a Band 1 leading junior in Health and Welfare matters in the Court of Protection.

Fiona is instructed at all appellate levels up to the Supreme Court by the Official Solicitor, CAFCASS (Children and Family Court Advisory Support Service), NHS Trusts and Clinical Commissioning Groups, in relation to medical treatment decisions and welfare matters.

Over the last 2 years, she has appeared in 2 of the 3 appeals arising from the Mental Capacity Act 2005 to reach the Supreme Court; N v A CCG and Y v An NHS Trust and Ors, in which judgment was handed down by the Supreme Court in July 2018.

She has also appeared in the Court of Appeal in medical treatment cases concerning children. In Re A (A Child)she appeared on behalf of the guardian of a seriously brain injured child. The court examined the significance of the child’s alleged inability to experience pain in determining his future treatment and best interests. More recently, she successfully represented King’s College NHS Foundation Trust in relation to the appeal brought by the father of Isaiah Haastrup, a gravely brain injured baby against the order by MacDonald J that it was in his best interests that treatment be withdrawn. The Court of Appeal dismissed the appeal having determined that fresh expert evidence should not be considered by the court and that the judge’s order should be upheld.

Fiona has also acted for Great Ormond Street in a number of high profile medical treatment cases including the Charlie Gard and Olivia Stanca cases both of which received extensive press attention.

CASES & WORK OF NOTE

  • Y v An NHS Trust and Ors [2018] UKSC 46
    The third appeal to the Supreme Court concerning the Mental Capacity Act 2005. The court held that obtaining an order under the Mental Capacity Act is unnecessary where a family and treating clinicians agree that clinically assisted nutrition and hydration should be withdrawn from an incapacitous adult in a prolonged disorder of consciousness.
  • Haastrup v King’s College NHS Foundation Trust and Ors [2018] EWCA 287 (Civ)
    The appeal concerned whether life – sustaining treatment should be withdrawn from a brain injured baby and whether his parents should be allowed to adduce fresh expert evidence which had not been before the court below.
  • Re N v A CCG [2017] UKSC 22 [2017] 2 WLR 1011
    The second appeal to the Supreme Court concerning the Mental Capacity Act 2005. The court provided guidance about how a dispute between a public body and the family of an incapacitated adult about the provision of services should be determined.
  • Re A (A Child) [2016] EWCA Civ 759
    The appeal concerned the withdrawal of life support from a seriously brain injured toddler. The Court of Appeal examined whether the fact the child would suffer no pain as a result of proposed treatment should affect an assessment of his best interests.
  • Sandwell and West Birmingham Hospitals NHS Trust v AB (by her litigation friend, the Official Solicitor) [2014] EWCOP 23; [2014] Med LR 424
    Theis J gave direction on how out of hours or emergency applications to the Court of Protection should be made.
  • An NHS Trust v A [2013] EWHC 2442 (COP); [2014] Fam 161; [2014] WLR 607; [2013] Med LR 561
    Baker J gave a landmark decision regarding the management of incapacitous patients, requiring medical treatment who were detainable under the Mental Health Act 1983.

Clinical Negligence & Healthcare


A leading clinical negligence solicitor recently described Fiona in trial as “fighting with grace and elegance” and “displaying a razor sharp intellect which is rarely matched.” She regularly appears both in the County Court and High Court for both claimants and defendants.

As a solicitor, Fiona was accredited by the Law Society of Scotland as a clinical negligence specialist. For four and half years she was regularly instructed by the Medical and Dental Defence Union of Scotland which exposed her to a very wide range of clinical matters involving both GPs and hospital clinicians. Regularly meeting doctors within their own professional settings of clinics, surgeries and hospitals enhanced her understanding of clinical practice, which she brings to her cases.

Since coming to the Bar, Fiona has regularly acted for both claimants and defendants. Her practice has extended to military and prison medicine. She has represented the Ministry of Defence in relation to a large number of claims brought by former soldiers for alleged psychiatric negligence, following exposure to trauma either in combat or training. She has also advised the Ministry of Justice in relation to claims brought by prisoners regarding their clinical care whilst in custody.

Fiona has developed a particular specialism in obstetric negligence. She is regularly instructed on behalf of women who have sustained psychological and physical injuries during childbirth, which she finds very rewarding.

CASES & WORK OF NOTE

  • Y v A Health Services NHS Trust – settlement December 2016.
    Acted for the claimant who received a seven figure sum after an RTM, after receiving negligent treatment for birth injuries. The claimant developed long-term complications which left her continence severely compromised and at risk of deterioration. She also suffered a severe psychiatric injury.
  • Z v A Health Services NHS Trust – settlement November 2016.
    Acted for the claimant, a young woman who received a six figure sum after an RTM, after sustaining a very severe perineal tear due the negligent management of her labour.
  • Crook v Royal Wolverhampton NHS Trust  contested seven days trial June and November 2015.
    Acted for the NHSLA in a highly complex trial with evidence from six experts regarding multi-organ failure following sepsis, following the death of the claimant’s father within 24 hours of admission to a NHS hospital with a suspected bowel perforation.
  • X v A Health Services NHS Trust – settlement November 2015.
    Acted for the claimant, a woman who suffered a perineal tear, during her daughter’s birth. The claimant who was left doubly incontinent received a six figure sum shortly before the trial. There were complex arguments concerning causation, involving experts from three different disciplines.
  • X v Y NHS Foundation Trust – case settled July 2015
    A claim for psychiatric injury by a young woman whose baby died three days after delivery, as a result of a negligent delay in performing a caesarean section. Claim settled shortly before trial, after a mediation for a six figure sum.
  • Clarke v Hartley  February and March 2015
    Claim which concluded in fully contested eight day trial, brought by the former patient of a private orthopaedic surgeon. Highly complex in terms of the expert evidence regarding shoulder replacement surgery and how it has evolved over the last 30 years.

Professional Discipline & Regulatory


Fiona appears before all of the major clinical regulators, including the GMC, GDC, NMC and the HCPC. She also advises regularly on appeals, judicial review challenges and injunctive relief against various regulators. Her background in clinical negligence and public law mean that she not only has a grasp of the forensic issues, but also the remedies available to registrants facing unfairness.

Fiona began regulatory work as a solicitor, acting for the MDDUS. As a consequence, she is aware not only of the challenges faced by solicitors, but also the concerns experienced by clinicians and their families during an investigation. She acts for clinicians referred to their regulator on a wide variety of matters from misconduct, performance and health.

She was junior counsel in Casey v GMC, [2011] NIQB 95, the first substantive appeal from the GMC to the Northern Irish High Court. The court’s decision provided landmark guidance as to how regulators should view inconsistencies in complainants’ accounts.

CASES & WORK OF NOTE

  • GOC v X [2016]
    The registrant was accused of making extensive amendments to a patient’s records over a three day period, following a complaint. After hearing mitigation evidence, the GOC imposed a 12 month suspension after which the registrant was allowed to return to work.
  • GDC v X [2016]
    This was a week-long hearing before the GDC’s fitness to practise panel concerning a dentist who had provided poor cosmetic and general treatment to a large number of patients over a two year period. The case involved highly complex technical expert evidence.
  • British Psychoanalytic Council v Dr A [2015]
    One of the first fitness to practise hearings before the BPC. The case entailed extensive challenges to the BPC’s procedures under the High Court’s inherent jurisdiction. The evidence was highly unusual as the treatment by psychoanalysis involves the exploration of the patient’s sub-conscious processes. Consequently, the examination of the manner in which both the therapist and patient had behaved involved an examination on two different levels i.e. what they said / did and what it meant in the context of the therapeutic relationship, which made it forensically challenging. The hearing lasted two days.
  • GDC v X [2015]
    A full fitness to practise hearing over a 10 day period. The case concerned a young dentist who had failed to provide basic dental care to a large cohort of patients over a two year period. The case was disposed of with conditions, after mitigating evidence was adduced.
  • GDC v X [2014]
    This was a challenge to the GDC’s decision that there was a prima facie case against a dentist that his fitness to practise was impaired and that the case should be referred to the Council’s Fitness to Practise Panel. The dentist who had an exemplary track record was accused of an isolated clinical error. The case was removed from the list for a hearing before the FTP on the basis that there was inadequate evidence to support the referral to the FTP, after a detailed pre action protocol letter was sent to the GDC.

Recommendations


Fiona is ranked by the leading legal directories, The Legal 500 and Chambers & Partners, as a leading junior in Administrative and Public Law and Court of Protection

Recent directory editorial has included the following:

  • very pragmatic, astute and very intelligent…also very good at measuring the approach that other parties are going to take;
  • can consume information at very short notice and very understanding of the client’s needs;
  • so quietly forceful and a very calm presence;
  • takes on a range of challenges particularly in the healthcare field;
  • an advocate to watch;
  • she is making her name and her mark;
  • has a fantastic grasp of the law, its always at her fingertips;
  • understated and can disguise fierce advocacy;
  • procedurally she’s brilliant;
  • shows astute and far-sighted analysis, and an appreciation of the wider consequences for her client;
  • highly regarded for complex medical cases;
  • she demonstrates a clear aptitude for understanding clinical issues;
  • the assistance she gives the court is absolutely extraordinary;
  • she has an eye for detail and is extremely hardworking;
  • she has a serenity about her when everything is going bonkers around her;
  • she is a delight to work with and very much a team player.

Call +44 (0)20 7832 1111 for more information

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