Fiona Paterson

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

Clerks:
+44 (0)20 7832 1111

“simply masterful in court…has the ability to translate complex and extensive information into compelling and persuasive submissions”
Legal 500 2022

“her written submissions are excellent…she is extremely reliable.”
Legal 500 2022

“thinks very well on her feet”
Chambers & Partners 2021

“Very skilled and highly sensitive.  Great on detail.”
Legal 500 2021

“a formidable advocate” and “an amazing lawyer”
Chambers & Partners 2020

“one of the leading lights in admin and public law.”
Legal 500 2020

Fiona is ranked as a leading junior in Public Law and the Court of Protection by the legal directories.

She has appeared in a number of landmark cases before the Supreme Court and Court of Appeal, representing vulnerable adults, children, NHS Trusts and government departments, both with leading counsel and alone.

She is a member of the Attorney General’s B Panel and has broad public law experience having acted both for and against the state.

Described as a “delight to work with” and “very understanding of the client’s needs” Fiona was a solicitor for nine years; specialising in all aspects of medical law before coming to the Bar. She is also CEDR trained mediator and has mediated a wide variety of disputes both as a lead and assistant mediator.

Administrative & Public


“…brings a huge amount of expertise and wealth of experience in particular to issues concerning mental capacity and rights in prisons. Her written submissions are excellent and she is extremely reliable

Legal 500 2022

“…able to think broadly about a case but also provide expert advice on very specific issues that other barristers would not have knowledge of”

Legal 500 2021

One of the leading lights in admin and public law”

Legal 500 2020

A member of the Attorney General’s B Panel, Fiona specialises in public law in a wide range of fields including human rights, mental health, mental capacity, social security benefits, the provision of health care and prisons.

Cases of note during 2021 include:

  • Re JB – appeal heard by the Supreme Court 15 July 2021- judgment awaited. Led by Vikram Sachdeva QC: Represented a Local Authority responsible for a learning – disabled man’s care, who sought a declaration that the test for capacity to engage in sexual activity includes an understanding that a partner or potential partner must be consenting at all times.
  • Re C – appeal heard by Court of Appeal- 29 July 2021- judgment awaited. Led by Sir James Eadie QC: Represented the Secretary of State for Justice in an appeal from the Court of Protection re whether carers assisting a learning-disabled young man to secure the services of a sex worker would commit a criminal offence under section 39 Sexual Offences Act 2003.
  • Re (Discharge of a Party)[2021] EWCA Civ 512 [2021] 1 WLR 3098: Represented a young woman, through the Official Solicitor suffering serious mental health problems whose mother had been discharged as a party from proceedings in the Court of Protection, without notice or reasons, on the basis that her continued involvement in the proceedings would amount to an infringement of daughter’s privacy. First appeal to the Civil Division of the Court of Appeal using a closed procedure. Extensive examination of ECHR Article 6 and 8 rights.
  • Abbasi v Newcastle Hospitals NHS Foundation Trust and Ors [2021] EWHC 1699 (Fam) Led by Gavin Millar QC: Represented two NHS Trusts who successfully argued that the High Court had jurisdiction to maintain or re-impose a reporting restriction order protecting the anonymity of clinicians involved in the care of a child, now deceased, who had been the subject of end of life proceedings under the inherent jurisdiction.
  • Professional Standards Authority v HCPC and Yong [2021] EWHC 52 (Admin) [2021] 4 WLR 31: Represented the Professional Standards Authority for Health and Social Care in an appeal to the High Court from a disciplinary panel of the Health and Care Professions Council. The court held that the panel had erred in finding that a social worker’s inappropriate behaviour towards six female colleagues was not behaviour “in a harassing manner” or sexually motivated. The panel had failed to consider that the Council was subject to the public sector equality duty imposed by the Equality Act 2010 s.149 and had failed to consider the statutory definition of harassment in Equality Act 2010 s.26.
  • Re CS – appeal heard by Lieven J  May 2021- judgment awaited: Represented the Secretary of State for Justice in an application under the Inherent Jurisdiction for a declaration that it was lawful to deprive a restricted patient of his liberty in a community setting, who was capacitous.
  • Klak and Mitchell v Secretary of State for Work and Pensions – appeal heard by Upper Tribunal Judge Ward -September 2021- judgment awaited: Represented the Secretary of State in an appeal by two claimants who allege that the Personal Independence Payment (Amendment) Regulations 2017 are unlawful and consequently, should not have been applied by the First Tier Tribunal.

Other recent cases of note:

  • Y v An NHS Trust and Ors[2018] UKSC 46 [2018] AC 978 Represented Y through the Official Solicitor, a middle-aged man, in a prolonged disorder of consciousness in an appeal to the Supreme Court. 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. Led by Richard Gordon QC
  • Re N v A CCG [2017] UKSC 22 [2017] 2 WLR 1011: Represented the CCG in an 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. Led by Hugh Southey QC
  • Re AB (termination of a pregnancy) [2019] EWCA Civ 1215 [2019] 1 WLR 5597:
    Represented an NHS Trust caring for a pregnant, learning-disabled young woman, AB who lacked capacity to consent to sex. Continuing with the pregnancy was thought to be harmful to AB. It was unclear if she understood the birth process and the implications of having a child. Yet she had stated that she wanted the baby. The Court of Appeal examined how her best interests should be assessed in light of the conflicting evidence.
  • Haastrup v King’s College NHS Foundation Trust and Ors[2018] EWCA 287 (Civ): Represented King’s College Hospital in an appeal concerning 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.
  • Djaba v West London Mental Health Trust [2017] EWCA Civ 436 [2018] 1 WLR 1333: Represented a restricted patient held in a super seclusion suite in Broadmoor Hospital. The Court of Appeal held 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). Led by Kerry Bretherton QC
  • Re A (A Child) [2016] EWCA Civ 759 [2016] Med LR 427: Represented the child’s guardian in an appeal concerning 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.
  • Avon and Wiltshire Mental Health Partnership and WA and Ors [2020] EWCOP 37: Represented the mental health Trust looking after a young man who was refusing nutrition and hydration. The court held that he lacked capacity to conduct proceedings but that no treatment should be imposed upon him even if his life were put at risk. Having been granted asylum, WA had become fixated on the fact that the Home Office had re-assigned his date of birth, which he perceived as an assault on his identity. The court held that the fixation occluded his ability to weigh the relevant information in the context of a decision whether or not to eat/drink, constituting “an impairment of the mind.”
  • Clark v Cygnet and the Secretary of State for Justice[2020] UKUT 230 (AAC): Represented the Secretary of State for Justice in an appeal from the First-tier Tribunal concerning a restricted mental health patient. The Secretary of State’s submission that the patient, who lacked capacity could be conditionally discharged to a community placement into a placement where she would be deprived of her liberty, was upheld.
  • Re (on the application of AB) v Chief Constable of Hampshire[2019] EWHC 3461 (Admin): Represented the Secretary of State for Justice in judicial review proceedings brought by the parents of a learning disabled child who had allegedly been sexually assaulted while in respite care, for failures to investigate the crime properly, pursuant to his ECHR Articles 3,8 and 14 rights.
  • SLL v Priory Health and the Secretary of State for Justice[2019] UKUT 323 (AAC): Represented the Secretary of State for Justice in appeal by restricted mental health patient. The Upper Tribunal gave guidance on the evaluation called for by the Mental Health Act 1983 s73 (1)(b) concerning whether it was appropriate for a patient to remain liable to be recalled to hospital for further treatment.
  • Re P (Court of Protection: Transparency) [2019] EWCOP 67: Represented the National Probation Service in proceedings relating to a learning- disabled man convicted of several sexual offences, which had received significant press attention; placing him at risk. The court held that the case should be heard in public with a transparency order but that only accredited members of the press should be allowed to attend. That would respect the ECHR Articles 8 and 10 rights of the individual and the press/media respectively.

Court of Protection


“Fiona is simply masterful in court. She has the ability to translate complex and extensive information into compelling and persuasive submissions”

Legal 500 2022

Very skilled and highly sensitive. Great on detail”

Legal 500 2021

“A good advocate who thinks very well on her feet”

Chambers and Partners 2021

A formidable advocate whose attention to detail singularly sets her apart from her contemporaries

Chambers and Partners 2020

“…an amazing lawyer, reliable, thorough and has an incredible breadth of knowledge within her field

Chambers and Partners 2020

Fiona is ranked by both Chambers and Partners and the Legal 500 as a Band 1 leading junior in the Court of Protection. She has appeared before the Supreme Court and Court of Appeal in cases which have shaped the fundamental rights of vulnerable adults and children.

She regularly acts for both vulnerable adults and public bodies in the Court of Protection in medical treatment and welfare cases.

Cases of note during 2021 include:

  • Re JB – appeal heard by the Supreme Court 15 July 2021- judgment awaited. Led by Vikram Sachdeva QC: Represented a Local Authority seeking a declaration that the test for capacity to engage in sexual activity includes an understanding that a partner or potential partner must give consent which can be withdrawn at any time.
  • Re C – appeal heard by Court of Appeal- 29 July 2021- judgment awaited. Led by Sir James Eadie QC: Represented the Secretary of State for Justice in an appeal from the Court of Protection re whether carers assisting a learning-disabled young man to secure the services of a sex worker would commit a criminal offence under section 39 Sexual Offences Act 2003,
  • Re (Discharge of a Party)[2021] EWCA Civ 512 [2021] 1 WLR 3098: Represented a young woman, through the Official Solicitor suffering serious mental health problems whose mother had been discharged as a party from proceedings in the Court of Protection, without notice, on the basis that her continued involvement in the proceedings would amount to an infringement of daughter’s privacy. First appeal to the Civil Division of the Court of Appeal using a closed procedure. Extensive examination of ECHR Article 6 and 8 rights.
  • Abbasi v Newcastle Hospitals NHS Foundation Trust and Ors [2021] EWHC 1699 (Fam) Led by Gavin Millar QC: Represented two NHS Trusts who successfully argued that the High Court had jurisdiction to maintain or re-impose a reporting restriction order protecting the anonymity of clinicians involved in the care of a child, now deceased, who had been the subject of end of life proceedings under the inherent jurisdiction.
  • London Borough of Southwark v P and Ors [2021] EWCOP 46: Represented a young woman, through the Official Solicitor in a successful application to discharge her mother as a party to Court of Protection proceedings; issued by the local authority over concerns that she had suffered severe neglect and alleged abuse at home. The daughter asserted that she felt unable to participate in the proceedings while her mother remained a party. The mother argued that her Article 8 rights would be infringed if she were no longer a party. The court held that where there was a conflict between the Article 8 rights of a vulnerable adult and those of a third party, in the Court of Protection, the rights of the vulnerable adult must prevail.
  • A Mental Health Trust v ER and Anr [2021] EWCOP 32: Represented a young woman terminally ill with anorexia nervosa. Although she could understand and retain the relevant information regarding her treatment, she could not use and weigh it up as required by the Mental Capacity Act 2005 Pt 1 s.3(1)(c). Accordingly, the court found that she lacked capacity to make decisions about her medical treatment for anorexia and to litigate

Other recent cases of note:

  • Y v An NHS Trust and Ors [2018] UKSC 46 [2018] AC 978
    Represented Y, through the Official Solicitor, a middle-aged man in a prolonged disorder of consciousness in an appeal to the Supreme Court. 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. Led by Richard Gordon QC
  • Re N v A CCG [2017] UKSC 22 [2017] 2 WLR 1011
    Represented the CCG in appeal to the Supreme Court. 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. Led by Hugh Southey QC
  • Re AB (termination of a pregnancy) [2019] EWCA Civ 1215 [2019] 1 WLR 5597
    Represented an NHS Trust caring for a pregnant, learning-disabled young woman, AB who lacked capacity to consent to sex. Continuing with the pregnancy was thought to be harmful to AB. It was unclear if she understood the birth process and the implications of having a child. Yet she had stated she wanted the baby. The Court of Appeal examined how her best interests should be assessed in light of the conflicting evidence.
  • Haastrup v King’s College NHS Foundation Trust and Ors[2018] EWCA 287 (Civ)
    Represented King’s College Hospital in an appeal concerning 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 A (A Child) [2016] EWCA Civ 759 [2016] Med LR 427
    Represented the child’s guardian in an appeal concerning 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.
  • Avon and Wiltshire Mental Health Partnership and WA and Ors [2020] EWCOP 37: Represented the Mental Health Trust treating a young man refusing nutrition and hydration. The court held that he lacked capacity to conduct proceedings, but that no treatment should be imposed upon him even if his life were put at risk. Having been granted asylum, WA had become fixated on the fact that the Home Office had re-assigned his date of birth, which he perceived as an assault on his identity. The court held that the fixation occluded his ability to weigh the relevant information in the context of a decision whether to eat/drink, constituting “an impairment of the mind.”
  • London Borough of Southwark v NP and Ors[2019] EWCOP 48
    Represented a vulnerable young adult, through the Official Solicitor before the Vice President of the Court of Protection in proceedings in which the court provided guidance on the management of expert evidence in proceedings under the Mental Capacity Act 2005.
  • Re P (Court of Protection: Transparency) [2019] EWCOP 67: Represented the National Probation Service in proceedings relating to a learning- disabled man convicted of several sexual offences, which had received significant press attention; placing him at  The court held that the case should be heard in public with a transparency order but that only accredited members of the press should be allowed to attend. That would respect the ECHR Articles 8 and 10 rights of the individual and the press/media respectively
  • NHS Cumbria CCG v Rushton [2018] EWCOP 41 [2019] COPLR 283
    Represented an elderly woman in a prolonged disorder of consciousness through the Official Solicitor. The Vice President of the Court of Protection provided guidance on the importance of ensuring that advance directives were respected by treating clinical teams.

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 has extensive experience as both a solicitor and barrister of representing registrants before all of the major clinical regulators. 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.

She has also advised and represented the Professional Standards Authority for Health and Social Care.

Recent Cases of Note

  • Professional Standards Authority v HCPC and Yong [2021] EWHC 52 (Admin) [2021] 4 WLR 31: Represented the Professional Standards Authority for Health and Social Care in an appeal to the High Court from a disciplinary panel of the Health and Care Professions Council. The court held that the panel had erred in finding that a social worker’s inappropriate behaviour towards six female colleagues was not behaviour “in a harassing manner” or sexually motivated. The panel had failed to consider that the Council was subject to the public sector equality duty imposed by the Equality Act 2010 s.149 and had failed to consider the statutory definition of harassment in Equality Act 2010 s.26.

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:

  • an absolute star
  • one of the leading lights in admin and public law
  • an amazing lawyer. She is reliable, thorough and has an incredible breadth of knowledge within her field. She leaves no stone unturned.
  • a formidable advocate whose attention to detail singularly sets her apart from her contemporaries
  • 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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