The House of Lords in 2004, in the case of Chester –v- Afshar, took a bold step forward in recognising the doctrine of “informed consent”, a concept which had been rejected when last before the House in 1984 in the case of Sidaway –v- The Board of Governors of the Royal Bethlem and Maudsley Hospital (1985) ALL ER 257. It is sufficient for present purposes to note that by a narrow majority, their lordships considered that in order to ensure that a duty to advise a patient of risks was not a hollow one and unable to fulfil its purpose, justice required the modification of the normal rules of causation. In that case Miss Chester had agreed to undergo an operation on her back. She had not however been warned of the risk of neurological damage and such risk materialised during the course of the operation. The damage was not caused by negligence on the part of the surgeon but rather was a naturally occurring complication of the surgery. It was the Plaintiff’s evidence in that case that had she been warned of the particular risk of neurological damage, she would not have undergone the operation at the time she in fact did. The House of Lords upheld her claim for damages noting that it is contrary to the demands of justice and policy to deny recovery in cases where the patient cannot prove precisely what would have happened had the correct advice been given. It was Miss Chester’s evidence that whilst she would not have undergone the operation on the day in question, she would, on balance of probabilities, have undergone the operation at a later date.
In any event there is now further evidence that the judiciary is moving away from supporting medical paternalism (“doctor knows best”) to upholding patient autonomy.
The 2009 case of Janet Birch –v- University College Hospitals NHS Foundation Trust 2008 EWHC 2237 (QB) is a case in point. There has been a significant amount of uncertainty over the years about the precise ambit of the doctor’s duty of disclosure and how it is to be judged as per the “Sidaway” judgment. What is certain is that the focus, before this case, had been on the risk element of disclosure ie the quantification of the risk vis a vis the patient and the procedure. Little attention had been paid, to the date of this case, to the attendant requirement to discuss alternatives, a facet of the duty arguably as important as the desire to ensure the patient’s autonomy. Birch is reported as being the first English case where the duty to discuss is central to the finding of liability.
In this case the Claimant was a 55 year old lady who had a history of diabetes. She was admitted to the first hospital where she was seen by a consultant neurologist. The consultant neurologist considered that she might have a pupil-sparing third nerve palsy due to the occlusion of the small blood vessel supplying the third nerve. Her presentation was however atypical and there was some concern that she may have had an infection in and around the eyes. A wait and see approach was not an option in this case. An urgent MRI was indicated but could not be performed at the first hospital because slots were not available. The patient was therefore referred to the neurosurgical team at a second hospital who recommended a catheter angiogram instead of an MRI.
The risks of the catheter angiogram were explained to Mrs Birch including the 1% risk of stroke. A consent for the operation was signed and unfortunately during the course of the performance of the catheter angiogram, the Claimant developed weakness down her left side of her body.
The primary allegation was that the decision to perform a catheter angiogram instead of an MRI scan was negligent. The Judge however felt that the neurosurgeon had undertaken the relevant risk/benefit analysis when he concluded the urgency of the case required angiography to rule out an aneurysm. The decision therefore withstood logical scrutiny and was “Bolam” reasonable.
An additional allegation was raised that there had been a failure to provide the Claimant with full information regarding the risk/benefit analysis of performing a catheter angiogram instead of MRI scan. It was in this regard that Mr Justice Cranston found for the Claimant.
He held that although there was no requirement to discuss alternative treatments in every case, there were special circumstances in this particular case for the imposition of such a duty. The Claimant had been offered an MRI at the first hospital. The clinician conceded during the course of his evidence that someone should have discussed the different imaging modalities and their associated risks. Consent for the angiogram indicated that the doctor had discussed the benefits and risks of any available alternative treatments. In the circumstances Carston J found that had different treatment options been discussed, the patient would have opted for the MRI scan and would have thus avoided the injury.
Doctors must still be able to recommend treatment options but if true alternative treatments are available which carry less risk, this must be made clear to the patient.
An important development in the applicability of the “McGhee/Bonnington Castings” test of causation in clinical negligence is Grannia Bailey (by her father and litigation friend, Maurice Bailey) –v- The Ministry of Defence (2008) LS Law Med 481, (2009) 1 WLR 1052, (2008) ALL ER (D) 232 (Jul).
Many will be familiar with the seminal decision in the case of Bonnington Castings –v- Wardlaw (1956) AC 613, (1956) 1 ALL ER 615. In that case the Plaintiff had been exposed during the course of his employment to silica particles which he inhaled into his lungs. Ultimately this resulted in pneumoconiosis. This condition leads to inflammation, fibrosis and, in severe cases, death. In Mr Wardlaw’s case there were two potential sources of dust, only one of which the Defendant could be held liable for. The other exposure was in a legal sense innocent. These were not competing causes. It was noted to be pointless to enquire which particles had caused the harm as all were potentially harmful. In their Lordship’s view the correct question was whether the Defendant’s particles had made a “material contribution.” In such cases of cumulative or concurrent causes, as opposed to competing or alternative causes, then the Plaintiff is put to a lower proof, evidence of material contribution being suffice. This authority was subsequently developed and applied by the House of Lords in the McGhee –v- National Coalboard (1973) 1 WLR 1, (1972) 3 ALL ER 1008.
The Bailey case concerned a situation where there were concurrent causes for the injuries sustained including the Defendant’s negligence. The Claimant sustained a cardiac arrest. The cardiac arrest was the culmination of a prolonged period in hospital which began in and around 9th January 2001. The patient had been admitted on 9th January in order to undergo a procedure to remove a gall stone from her bile duct. That procedure was undertaken on 11th January 2001 and was carried out by way of ERCP (endoscopic retrograde cholangiopancreatography). The procedure was complicated by bleeding and the patient became progressively unwell. By 14th January she had developed bleeding from the gut, renal failure and acute pancreatitis. Respiratory failure also began. She was admitted to the Intensive Care Unit and was transferred, from there, to another hospital where she underwent further surgery for massive bleeding to the liver. She was close to death but began to mount a recovery. She was transferred from the Intensive Care Unit at the second hospital to a renal ward. Whilst on that ward, she vomited, aspirated the vomit and suffered a heart attack. It was the Plaintiff’s case that had she been treated correctly at the first hospital, then she would not have been in such poor condition in the second hospital that she could not evacuate the vomit.
The Judge, Mr Justice Foskett upheld the claim. He found that;
The decision was upheld by the Court of Appeal. As many practitioners will be aware, in clinical negligence, the “but for” test has for a long time been the normal and common approach taken when addressing caution. If the Plaintiff’s damage would have occurred in any event then the Defendant’s breach of duty is irrelevant. Practitioners will of course be familiar with the cases of Hotson –v- East Berkshire Health Authority (1987) AC 750, (1987) 2 ALL ER 909 and Wilsher –v- Essex Health Authority (1988) AC 1074, (1988) 1 ALL ER 871.
Both cases are good authority for the proposition that if the Plaintiff cannot demonstrate a causative nexus between the breach of duty, on the one hand, and damage, on the other, then the claim will fail. In Hotson a fracture went undiagnosed for five days. The Plaintiff developed avascular necrosis due to the interruption of the blood supply. Even had the treatment been timeous and adequate, there was still a 75% risk that the patient would have developed the condition. In the circumstances the claim failed because the Plaintiff could not establish that he would have avoided the condition had adequate care been provided. Similarly in Wilsher a baby born prematurely was administered excessive oxygen. The baby went blind. Oxygen overdose can lead to this eventuality but, equally, there were four other potential causes of the condition. The other four causes were not coterminous with a breach of duty. In the circumstances that claim also failed.
In certain situations however the case law provides an alternative to the “but for” test, more favourable to the Plaintiff, relying as it does that the breach of duty provided a “material contribution “ to the Plaintiff’s harm. Bailey was such a case. Lord Justice Walker in the Court of Appeal, having noted that clinical negligence cases are no different to other cases in the application of the usual test in a law of causation stated:-
“I would summarise the position in relation to cumulative causes as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortuous cause or causes in any event, the Claimant will have failed to establish that the tortuous cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that “but for” the contribution of the tortuous cause the injury would probably not have occurred, the Claimant will “obviously” have discharged the burden. In a case where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for” test is modified and the Claimant will succeed.”
Thus in this case in particular and in clinical negligence cases in general, where the question arises in relation to consecutive, cumulative or concurrent causes, a causal link is made out if the Defendant is responsible for a material contribution to the harm. The answer to what is “material” considering the facts of the precedent cases, is simply not clear. The consensus opinion is that it must be something sufficient to be regarded as substantial. The Court of Appeal in the Bailey case expressly favoured the opinion of Lord Rodger in Fairchild –v- Glenhaven Funeral Services (2002) 1 AC 32, (2002) ALL ER (D) 139 (Jun). Conceptually, “substantial” is meant to connote a level of contribution to risk which goes considerably beyond something minimal or trivial.
In practice the approach of the Court of Appeal in the Bailey case has lead to some interesting decisions. In the case of Canning – Kishver –v- Sandwell and West Birmingham Hospitals NHS Trust (2008) LS LAW MED WEB 51, the court was required to determine liability as a preliminary issue in a claim for damages for personal injuries brought by the Claimant against the Defendant NHS Trust.
The Claimant had been born prematurely and was admitted to the Neo-Natal Intensive Care Unit. Several medical complications presented as a consequence of the prematurity including a recurrent metabolic acidosis. Extubated at six days, it was recognised that the 36 hours following the extubation would be a struggle for the premature newborn. Forty-eight hours later a doctor noted that the Claimant’s heartrate had fallen, she was pale and her metabolic acidosis had climbed to a dangerous level. She was in cardiac collapse and needed resuscitative measures. She survived but developed features consistent with cerebral atrophy which she was found to have suffered before or relatively shortly after her birth.
She claimed that her brain damage was due to the failure of nursing staff to recognise her deteriorating medical condition and to summons assistance accordingly. It was argued that had assistance been sought in a timeous and appropriate manner then the drastic life saving measures which in fact were required could have been avoided. It followed therefore that the inadequate care in the case had materially contributed to the cerebral atrophy. The Judge held that there had been a breach of duty and intervention should have taken place at an earlier juncture. In terms of causation, the evidence did not establish on balance of probabilities the cause of her injury which militated against her success on the basis of the “but for” test. The medical evidence was that on the balance of probabilities her cardiac collapse occasioned by the Trust’s breach of duty, constituted a contribution to the cerebral atrophy that was more than negligible and therefore the Claimant’s claim succeeded.
Needless to say the case has attracted comment since judgment was handed down. Some commentators have welcomed the decision arguing that it coheres in substance both with the relevant authorities and with common sense. In cumulative cause situations, it is argued that the “but for” test stands because, by definition, for the cumulative cause problem to arise, there must be several causes, all of which, on balance of probabilities, contribute to the end state of the Claimant. Otherwise, it is a multiple potential cause situation, like Wilsher, in which a causal link cannot be forensically identified. It is argued that in Bailey type situations it is the apportionment exercise which would be carried out were the cumulative causes to have operated independently, that has to be modified. Needless to say the case has not found unanimous approval. Some commentators seek to draw a distinction between industrial disease cases and medical negligence claims, justifying a more Plaintiff friendly approach in the former. In industrial disease cases the Plaintiff is exposed to risk factors that, even if the Defendant is only at fault for one, all ultimately derive from the workplace environment. By contrast, in medical cases, the doctor intervenes on behalf of the patient to ward off natural risks and the treatment itself usually adds to the risks in play. Furthermore in the case of NHS care, allowing recovery in doubtful causation cases will affect the resources available for other patients. In such circumstances the commentators argue that the Court of Appeal’s approach is not sustainable. It will undoubtedly be the subject of further challenge in due course.
It is worth noting the decision of the Court of Appeal in the case of Wootton –v- J. Docter Limited and Another (2008) LS LAW MED WEB 84. In that case the victim was negligently dispensed the triphasic contraceptive pill Logynon ED instead of Microgynon ED which is a monophasic preparation. She took the incorrect medication for two days during which time she conceived. On the expert evidence before the court the original trial judge rejected the contention that the negligent dispensation had caused or materially contributed to the conception.
The case was appealed to the Court of Appeal who also rejected the case in robust terms. The Court of Appeal was content to base its decision on the fact that the evidence did not even establish an increase in the risk of damage. As Lord Justice Moses noted, “In my view, this is not a case in which to add to the teaching of the Court of Appeal on causation. The reason is obvious. The Appellant has failed to establish that the erroneous intake of two Logynon pills materially increased the risk of contraceptive failure. She cannot invoke any principle to be derived from Fairchild or Barker to overcome the Judge’s findings….”
The Claimant/Appellant had sought to argue that her case fell within the Fairchild extension of the law of causation whereby it is sufficient to prove an increase in the risk of damage. The court in dismissing the Plaintiff’s argument did however leave the door open to the argument at a later date. It advised that whether this was a case in which the Claimant must satisfy the “but for” test or whether the Fairchild principle could be extended was immaterial. The case failed in demonstrating any causation whatsoever. It is important to note however that that is not to say that in the proper case the Fairchild extension will not be applied, in order to permit recovery where it can be proved that the breach of duty had the effect of increasing the risk of a poor outcome.
In the case of Yearworth –v- North Bristol NHS Trust (2009) EWCA Civ, the Court of Appeal held that a chemotherapy patient who gave a sample of his sperm, had property rights in it. Mr Yearworth and a number of other cancer patients appealed against the determination of preliminary issues in proceedings against the Respondent NHS Trust. They were being treated at a hospital run by the Defendant. Due to the risk of infertility attendant upon their cancer treatment, they banked sperm samples at the hospital which had a fertility unit and licence under the Human Fertilisation and Embryology Act. The sperm was banked free of charge. The storage equipment failed and the samples were destroyed. As a consequence of same those patients whose fertility had been adversely affected by their cancer treatment, lost the opportunity or chance of fathering genetic children.
The Claimant’s brought proceedings for negligence. The court determined the preliminary issues finding that sperm did not amount to property and that the damage and loss sustained did not constitute a personal injury.
The Court of Appeal ruled that the judge at first instance was correct that damage to and loss of the sperm did not constitute a personal injury. The court suggested that it would be a fiction to hold that damage and loss sustained to a substance produced and removed from the human body, inflicted after removal and storage could so amount to an injury.
The court however held that there was a course of action under the law of bailment, in respect of the damage suffered, and that the Claimants could seek damages for the loss of the non-pecuniary benefits that banking the sperm had been intended to provide. It did not matter that the service had been provided free of charge. Breach of bailment was closely akin to breach of contract and therefore the measure of damages to be awarded fell within the ambit of contractual principle. The law of contract of course provides for damages for mental distress where contracts are not purely commercial but have, as their object, non-pecuniary personal benefits; vide, holiday cases. The object in this case was to preserve the ability of the Claimants to become fathers and that fell within the ambit of a non-pecuniary personal benefit. The Claimants were therefore entitled to compensation for psychiatric injury or actionable distress foreseeably consequent upon the breach of bailment.
This case, demonstrating an imaginative solution to a problem established as a consequence of the ever expanding field of practice of medicine, leads us neatly on to the case of Sean Fryers –v- Belfast Health and Social Care Trust which has been making its progress through the courts in this jurisdiction in recent years. The case was most recently considered by Mr Justice Gillen in the Queen’s Bench Division of the Royal Courts of Justice (2008 NIQB 123). The case came before Gillen J. as an appeal against a dismissal of the Plaintiff’s case by Her Honour Judge Loughrane. The facts are reasonably straightforward. The Plaintiff sustained a needlestick injury, a puncture injury, from a used needle which was protruding from a waste bag at his place of work. That injury occurred on 4th May 2006. The injury was painful at the time and bled. In accordance with hospital protocol and infection control protocol, he obtained immediate treatment, prophylactic injections against the risk of blood borne disease including HIV and hepatis and he also underwent blood testing. Due to the nature of the risk it was necessary for the testing to be repeated over a period of time. It was not until approximately 5 months later that Mr Fryers was assured that he had not contracted any serious disease or condition as a consequence of the needlestick injury. It was common case that the Plaintiff had developed an adjustment disorder, a recognised psychiatric injury. The Plaintiff sought damages for personal injury, loss and damage sustained by reason of the negligence and breach of statutory duty of the Defendant. When the case originally proceeded in the County Court for the Division of Belfast the case was pleaded merely on negligence and breach of statutory duty. By the time the case came before Mr Justice Gillen, an additional cause of action, in the form of a claim for breach of contract, had also been raised. Loughrane J. had dismissed the Plaintiff’s case relying upon the decision of the House of Lords in Rothwell –v- Chemical and Insulating Company Limited and Another (2007) 4 ALL ER 1047. The physical injury, the puncture wound, was dismissed as de minimus. Loughrane J. felt it would be an unwarranted extension of the principle in the case of Page –v- Smith (1996) AC 155, to apply it to psychiatric illness caused by the apprehension of the possibility of an unfavourable event which had not actually occurred. In this case the Plaintiff did not go on to develop a blood disease but merely became concerned in relation to the possibility of same. In the House of Lords case of Page –v- Smith, a victim of a road traffic accident caused by another’s negligence claimed damages solely for psychiatric illness. The Plaintiff suffered no physical injury. Their Lordships held that Mr Page was a primary (direct) victim of the accident, since he was directly involved in it and risked personal injury. Therefore, no issues of foreseeability of psychiatric shock needed to be considered. In that case psychiatric shock was to be treated as direct personal injury. The case is to be distinguished from cases of secondary victims, such as spectators or rescuers, where the requirements of proximity and foreseeability were essential to establish the duty of care.
In the High Court judgment Gillen J. set himself four questions which appear at paragraph 4. He enquires:-
Gillen J. found that the needlestick injury failed to rise above the de minimus threshold and as such the physical injury was not actionable per se. In short order Gillen J. went on to find that Rothwell does apply and Page does not. The application of Page –v- Smith is dismissed because it was felt that the psychiatric injury had not resulted from the needlestick injury but rather from the worry about the possibility of future illness resulting from exposure. Gillen J. dismisses the contention that Mr Fryers was the primary victim of the negligent act, because he did not suffer psychiatric injury caused by fear or distress resulting from involvement in the accident brought about by the Defendant’s negligence. Rather Mr Fryers was a person who suffered psychiatric injury because of something that he might experience in future as a result of the Defendant’s past negligence and as such this placed him in an “entirely different category”. Gillen J. dismisses the suggestion that the needlestick injury had sufficient sudden or alarming elements which were necessary according to the Judgment in Page.
As for Rothwell, Gillen J. appears to agree with Loughrane J. that it would be an unwarranted extension of the principle in Page to apply it to psychiatric illness caused by the apprehension of the possibility of an unfavourable event which had not actually happened.
Gillen J. did however find a way to award damages to the Plaintiff. In doing so he relied upon the line of authority which has grown up around claims for damages for distress where breach of contract had deprived the victim of an intangible non-pecuniary benefit. He found that the employer owed a duty of care to the employee, that the employer had breached that duty of care, as guaranteed by contract, and as a consequence of same had offended the Plaintiff’s reasonable expectations that his health and safety would be ensured in the course of his employment.
Suffice it to note that the High Court Judgment in this case is not the end of the matter. The case has been further appealed to the Northern Ireland Court of Appeal by the Defendant. I am advised by the solicitor with conduct of the action that the hearing of the further appeal is imminent. It remains to be seen how the Court of Appeal will address the particular problems raised by this case. Quite clearly the court is being asked to wrestle with a problem which has consistently caused difficulties for common law courts throughout the United Kingdom. It reflects the basic dilemma of where and how to draw the line with regard to liability, demonstrating a continuing acceptance of the floodgates argument. It also serves to highlight problems which the courts create when distinguishing between physical injury and psychiatric injury.
The Judgment of the House of Lords in the case of Savage –v- South Essex Partnership NHS Trust (2008) UK HL 70, represents the single most interesting decision concerning the application of human rights’ medical treatment in recent times. This case started its life in the High Court on 21st December 2006. Mrs Carol Savage had been detained under Section 3 of the Mental Health Act 1983 for treatment for paranoid schizophrenia on an open acute psychiatric ward. She had a long history of mental illness with a number of in-patient omissions. Since 16th March 2004, when her final admission began, she made various attempts to leave. On 5th July 2004 she succeeded in absconding, walked two miles to a railway station and jumped in front of a train, suffering fatal injuries. Her daughter, Anna Savage, commenced proceedings against the Trust, not in negligence, but rather alleging infringements of the Human Rights’ Act 1998. Specifically she claimed breach of Article 2 (Right to Life) and Article 8 (Right to Respect for Private and Family Life). The Trust applied for a determination of a preliminary issue, namely the proper test in law to establish a breach of Article 2, and for summary judgment. The case was dismissed at first instance. The court held that any risk to Mrs Savage would have arisen from her own medical condition and not by reason of any action on the part of the State. The appropriate test for the applicability of the substantive obligation under Article 2 was that argued for by the Trust ie in the context of the patient being treated in hospital, at the least one of gross negligence. That test was applicable whether the allegation was one-off incompetent treatment, lack of treatment or failure to protect from suicide as in this case. It had been accepted by the Claimant that gross negligence could not be demonstrated. The Claimant appealed the decision to the Court of Appeal. The Court of Appeal reversed the decision of the High Court Judge and found that in order to establish breach of Article 2, on the assumed facts the Appellant had to demonstrated that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self harm and that it failed to take measures within the scope of their powers which, if judged reasonably, might have been expected to avoid the risk.
Permission was given to appeal the case to the House of Lords and a two day hearing on October 2008 ensued. Judgment was delivered on Wednesday 10th December 2008.
Two of the five lawlords gave substantive judgments and all agreed that the Trust’s appeal should be dismissed. The lead opinion comes from Lady Hale.
The case found that it was well established that the State’s obligation to protect life under Article 2 imposed three different duties upon the State; (i) a negative duty to refrain from taking life; (ii) an implied positive duty properly and openly to investigate deaths for which the State might bear some responsibility; (iii) a duty to take positive steps to protect the lives of those within the State’s jurisdiction. This case concerned the third duty.
The principle requirement of the duty to protect life was an effective system of criminal law to deter people from taking other people’s lives and to punish those who do. However the requirement went further than that. The House found that in certain well-defined circumstances, there was a positive obligation on public authorities to take preventative operational measures to protect an individual whose life was at risk from the criminal acts of another individual (Osman –v- UK (1998) 29 EH RR 245).
The European Court, in the Osman case, defined the level of risk which would trigger the obligation as follows “It must be established that the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party.” The House also had regard to the test laid down in Keenan –v- UK (2001) 33 EH RR 913. That case suggested a test based on whether the authorities knew or ought to have known that the deceased posed a real and immediate risk of suicide and, if so, whether they did all that they reasonably could be expected to do to prevent that risk. The trigger of real and immediate risk to life had rarely been demonstrated in reported cases. The House of Lords therefore decided in a unanimous judgment that a health authority could be liable for a breach of Article 2 (Right to Life) dismissing the appeal by the Trust. Mentally ill patients, similar to prisoners, are a particularly vulnerable group, deserving of protection. They present a heightened risk of suicide, against which a health authority needs to put in place measures to minimise such risks. Failure to do so could result in a breach of Article 2 of the European Convention on Human Rights. Needless to say the decision has not been welcomed by all practitioners. Whilst Lady Hale was at pains to state that professionals should not behave any more defensively as a consequence of the Judgment, defence practitioners have interpreted the decision, unsurprisingly, as requiring health authorities to adopt a more safety first approach. Commentators have however indicated that the caution being exhibited may not necessarily be justified. It is difficult to see however the test laid down in this case differs very much from the duty not to commit negligence. In other words, the test under Article 2, as annunciated by the House of Lords, does not appear to differ in substantial effect from the basic obligation to provide reasonable care.
If the defence practitioner feared that this judgment would open up the vista of potentially open ended liability on the part of health authorities, this notion was quickly disabused by the case of Rabone –v- Pennine Care NHS Trust which was heard in the High Court in England on 23rd July 2009 by Mr Justice Simon. The case fills a number of significant gaps left by the House of Lords in the Savage case.
This was a claim under Article 2 of the European Convention on Human Rights (Right to Life) from the parents of a patient, Melanie Rabone, who committed suicide on 20th April 2005. The Defendant’s had already settled the claim in negligence arising out of the same event.
The patient had suffered symptoms of depressive illness in 2000. On 4th March 2005 she attempted to commit suicide. She was admitted to hospital and on 7th March was assessed by a consultant psychiatrist as having suffered a severe episode of a recurrent depressive disorder. Approximately a week later she was considered to have shown sufficient signs of recovery to be allowed overnight leave. She was discharged from care on 18th March. The family went on holiday and returned on 31st March. On her return she cut her wrists. She attempted suicide on 11th April 2005. She continued to display worrying behaviour. On 19th April she was permitted to leave the ward for home leave. It was common ground between the parties that that decision to grant home leave at that time was negligent. During the course of this leave the patient hanged herself.
The Plaintiff’s representatives lodged a human right’s claim on the basis that the Trust was allegedly in breach of its obligation to take preventative operational measures to protect Melanie’s life. It appears however that the Plaintiff’s representatives had also issued a claim in respect of negligence which had been settled by the Trust. The Human Rights’ Act claim was divided into nine agreed issues. I do not propose exhaustively listing same but will highlight those I consider pertinent to practice.
The first issue concerned the operational issues. On the facts of the present case Simon J. held that the House of Lords in Savage was drawing a distinction between those who are detained and lack capacity and those who are not detained and have capacity to consent or object to treatment. Melanie had not been detained for assessment or treatment on 19th April 2005. She was not subject to complete and effective control over her care and movements and in the circumstances the operational obligation referred to in Savage was confined to cases of detained mental patients. Simon J. therefore found that the Trust was not in breach of this obligation towards Melanie. Simon J. found that whilst there was a real risk to the patient’s life it was not an immediate risk and had to be measured against what steps it was reasonable to take so as to avoid it. In the circumstances he found that there had been no breach of Article 2.
An issue was raised as to whether or not there was a systemic breach of Article 2. The Judge held that what occurred at the hospital fell far short of a failure to have a system for the assessment of risk of suicide in mental patients. He held that there was plainly a system for assessing the risk and noting the conclusions. Whilst the risk had not been properly documented, that did not constitute a systemic breach. Rather the breach represented simple negligence.
A query was raised as to whether serious negligence, in the sense of a collective failure to provide protection for Melanie, amounted to a breach of Article 2. It had been argued on behalf of the Claimant that the level of culpability required for a breach of Article 2 was more than simple negligence, but less than gross negligence. They suggested a test of “serious negligence”. Such a test was unfounded in law and was rejected.
It is also worth noting that an issue was raised as to whether the Claimants were victims for the purposes of bringing a claim under the Human Rights’ Act. The Trust argued that they were not, and moreover that having settled the negligence claim, they could not bring a further claim under the Human Right’s Act. The court held that the definition of victim was relatively narrow when considering the substantive Article 2.1 positive and negative obligations. The court would be careful to examine any claim which forms part of proceedings which had been settled, since the claim which had been settled might amount to an appropriate vindication of Article 2 rights. Whilst there was no absolute bar to advancing a claim based on Article 2 where part of the original claim had been settled, the more serious the breach, the less likely it would be that the court would regard the claim as being barred on the sole ground of the Claimant’s status. The claim for breach of the substantive obligation under Article 2 had failed. Moreover, this was not a case where no other remedy was available, given the Trust’s admitted failure to provide reasonable care for the patient and offered their apology. For these reasons, the Claimant’s did not fall into the category of victims and this aspect of the claim failed.
In terms of the remedy, the measure of bereavement damages under the legislation was not an appropriate guide. Had the Claimant’s been successful, a more modest sum would have been appropriate to recognise the breaches of convention rights. That sum would have been £1,500 for each parent.
Whilst this was a tragic case, it would appear that the legal attempt to have a second bite of the cherry was ill advised, given the settlement of the negligence cases. Overall however it would appear clear that in the appropriate case, pleading infringement of the Human Rights Act 1998 can enhance and strengthen the case advanced on behalf of the Plaintiff.
5. Damages
When I was last asked to speak on behalf of the Belfast Solicitors’ Association, my presentation concerned the calculation of damages. As part of that presentation I considered the authorities which had grown up around the issue of the provision of future care. In the case of Sowden –v- Lodge (2004) EWCA Civ 1370, the Court of Appeal determined that where a Claimant proposed to put in place a system of care based on private provision, the correct approach in assessing whether such a claim should be allowed was to compare what the Plaintiff might reasonably require with what the local authority was likely to provide. If local authority provision was likely to fall short of what might be reasonably required, then the tort-feasor must pay for private provision. There is no legal burden on the Plaintiff to prove local authority care is inadequate. Similarly, the case of Freeman –v- Lockett (2006) ED8 C102, is good authority for the proposition that the Plaintiff should be free to choose to set up a private care regime and it will not amount to a failure to mitigate loss by refusing to rely on state provision. Notwithstanding what appears to be reasonably clear authority coming from these decisions, the issue of the provision of future care and the costs associated with same came before the Court of Appeal in England again in the case of Peters –v- East Midlands Strategic Health Authority, P. Halstead and Nottingham City Council (2009) ED CA Civ 145.
The Plaintiff, aged 20, was severely disabled having been born with congenital rubella syndrome. The Health Authority had been ordered to pay damages to her on the basis of its negligence. A sum of almost £4m had been awarded in 2000 in respect of future care and accommodation. In 2007 the Plaintiff had moved from a local authority. The Plaintiff had been taken into care and was living in a private care home for seriously handicapped young people. The cost of accommodation was shared equally between the local authority and the local health authority.
The question was broadly whether the cost of the Plaintiff’s care and accommodation should be borne by the health authority as a tort feasor, or by the local authority charged with a statutory duty of making arrangements for providing care and accommodation. The health authority, the tort feasor, sought a declaration that the local authority was not entitled to charge for the care and as a consequence of same the care would remain free. In the circumstances the health authority contended that the Plaintiff could not seek damages in respect of future care and accommodation.
In response the local authority claimed that if it was obliged to fund the care, it would seek a financial contribution from the Defendant health authority, the tort-feasor, in respect of the costs of care. The Judge held that there would be no reduction in the accommodation and care elements of the damages awarded to reflect the local authority’s statutory duty to provide accommodation for the Plaintiff. The Judge dismissed the local authority’s claim to be reimbursed for the costs of care, as the whole sum of damages had to be disregarded in accordance with the regulations concerning financial eligibility for local authority care.
The decision of the Judge at first instance was appealed to the Court of Appeal where the Court of Appeal upheld the original finding. The Court of Appeal found that there was no reason in principle or in policy why a Plaintiff who wished to opt for self-funding and damages in preference to reliance on the statutory obligations of the local authority, should not be entitled to do so as of right provided there is no double recovery. Regarding double recovery, where the court ordered a tort-feasor to pay 100% of care costs, there was no duty on a care manager to seek public funding. An effective way of dealing with the risk of double recovery where the Plaintiff’s affairs were being administered by the Court of Protection was to provide that court with a copy of the Judgment of the personal injuries claim and seek an order that no application for public funding of the Claimant’s care should be made without further order. There would also be provision for the Defendants to be notified of an application for permission to apply for public funding. Therefore the risk of double recovery could not justify rejection of the Judge’s decision to award the Plaintiff the full cost of care and accommodation in damages.
Overall the Judge’s conclusion that the Plaintiff was not being unreasonable in refusing to make herself dependant on State resources was justified. It was not open to a Defendant to say that a Claimant making such a decision was being unreasonable.
An interesting High Court decision, in England, emerged in May 2008 in the case of Loraine –v- Wirral University Teaching Hospital NHS Foundation Trust (2008) EW HC 1565 QB. The Plaintiff was born in August 2000. He suffers from cerebral palsy which, it was agreed, resulted from asphyxia caused when his mother sustained a profound placental abruption shortly before his birth. This was Mrs Loraine’s fifth pregnancy. All children had been born at the same hospital. A scan taken during the third pregnancy in 1997 revealed a fibroid measuring 5.2 cm x 4.8 cm on the posterior uterine wall. This had the effect of obstructing the fetal head. The records of the fourth pregnancy made no reference to this fibroid. During the course of the fifth pregnancy, whilst several matters were mentioned in association with past medical history, the fibroid was not referred to. An ultrasound test revealed nothing untoward but there was no indication that the sonographer had been alerted to the existence of the fibroid or indeed had looked for one. The placental abruption occurred shortly before the birth. The Plaintiff was born by emergency caesarean section. It was alleged that the Trust’s negligently failed to diagnose the presence of the fibroid prior to the delivery and that the mother should have been admitted to hospital prior to the emergency. After the delivery Mrs Loraine was found to have a cervical fibroid measuring 6 cm x 6 cm and a retroplacental clot. The Trust’s consultant stated that the medical notes and records in respect of the patient were held in the Obstetrics Archive and they were not pulled for the patient’s first visit. He maintained that the system reflected the practice throughout the country and indeed the world. This view was contested by the Claimant’s expert who contended that it is prudent to review a patient’s records of previous pregnancies in the first booking visit at the hospital. He contended that this was the normal practice in the generality of hospitals. The midwife at the booking-in interview should have had in front of her Mrs Loraine’s records.
In finding for the Plaintiff, the Judge challenged the safety of the system of relying on the history supplied by the patient’s GP, and the patient herself, when booking her in for the management of her pregnancy. The Judge decided that when Mrs Loraine was booked in for what was her fifth pregnancy, all of the records from her four previous pregnancies should have been to hand and reviewed, so that a complete history could be obtained. The Judge preferred the evidence of the independent expert retained on behalf of the Claimant. His experience was more extensive and included ten years as Editor in Chief of “Clinical Risk”. The relevant breadth of the expert’s knowledge made him better placed than the Defendant’s surgeon to speak with authority on the practice in hospitals generally. Relying on the patient to identify complications was hazardous because the patient may be unaware of the significance of particular factors, or may have forgotten or remembered them incorrectly. If the gynaecologist had asked for an ultrasound reading of the fibroid, as he ought to have done if supplied with the appropriate records, and if the scan had confirmed both the size and location, this could not have failed to affect the management by a competent medical team. That management would have entailed admitting the patient for observation towards the end of the 37th week of her pregnancy.
On behalf of the Trust it was argued that the injury was not reasonably foreseeable. In other words a profound placental abruption is an uncommon complication and the risk of it happening in this case could have not have been foreseen. However the risk of cord prolapse was actually foreseeable. Fetal asphyxia can result from both abruption and prolapse. Based upon the ruling in Hughes –v- Lord Advocat (1963) AC 837, the Defendant can only escape liability if damage can be regarded as differing in kind from what was foreseeable. In this case, the consequence of negligence was foreseeable even the mechanism bringing it about was not. In conclusion therefore the court found that the Trust ought to have disclosed to the gynaecologist treating Mrs Loraine the records of her treatment in the same hospital earlier.
The Judge was unequivocal in ruling that what the Trust consultant took to be normal practice, namely not resurrecting the notes of previous pregnancies for the first booking appointment of a subsequent pregnancy, was negligent. He was also critical about hospitals relying upon patients, in such circumstances to disclose everything of relevance. Quite clearly this case raises a number of interesting questions which no doubt will be the subject of further litigation in due course. From a narrow obstetric perspective, a query arises as to what the position would have been had the patient’s previous deliveries been at a different hospital or in a different Trust. Would the obligation to have obtained those notes and records have extended to writing to the centre of treatment which the Plaintiff had previously attended? More broadly, one wonders the extent to which this decision can be read across to other distinct areas of medical practice, for example orthopaedics or urology. It is not an uncommon complaint by Plaintiffs that medical practitioners do not obtain records of previous treatment, particularly where that treatment has occurred a long time in the past. It is unlikely that this issue will not be considered again in early course.
6. Interim Payments
The case of Brewis –v- Heatherwood and Rexam Park Hospitals NHS Trust (2008) LS LAW MED WEB 53 provides a useful summary of the principles and authorities in relation to the making of an interim payment.
Mr Justice Coulson indicated that the following principles can be clearly discerned from the leading cases:-
The approach to interim payments was endorsed by the Court of Appeal in Cobham Hire Services Ltd –v- Eeles (2009) EWCA Civ 2004. Giving the Judgment of the Court Lord Justice Smith indicated that although the power to order an interim payment is discretionary, it is not an unfettered discretion. The court summarised the approach that a judge take when considering whether to make an interim payment in a case in which the trial judge may wish to make a periodical payments order.
The Judge’s first task is to assess the likely amount of the final Judgment, leaving out of account the heads of future loss which the Trial Judge might wish to deal with by way of a periodical payments order. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. The practice of awarding accommodation costs, including future running costs, as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. The interim payment will normally be a reasonable proportion of that assessment. The objective is not to keep the Claimant out of his money but to avoid any risk of overpayment. For this part of the process, the Judge need have no regard as to what the Claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will. If not then the expenditure will be controlled by the Court of Protection in England or the Office of Care and Protection in this jurisdiction.
The Court of Appeal Judgment also considers the circumstances in which the Judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. This can be done when the Judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. For example, where the request is for money to buy a house, the Judge must be satisfied that there is a real need for accommodation and the amount of money requested is reasonable.
Some concern has been expressed concerning the necessity for the Claimant to establish a real need for the interim payment requested. Previous authorities are thought to have suggested that the court should not, when considering whether to order such a payment, investigate how the money was going to be used. In any event the guidance from the Court of Appeal in the instant case represents the most up to date expression of the principles governing the award of interim payment.
7. Periodical Payments
Leading on from the previous Judgment concerning interim awards, whilst periodical payments have yet to find any great popularity in this jurisdiction, practitioners should be aware of the provisions of Tameside and Glossop Acute Services NHS Trust –v- Thompstone (2008) EW CA Civ 5. In this litigation the Court of Appeal was concerned with a group of severely injured Claimants who were seeking future losses, particularly costs of future care. In three of the four cases the Judge decided to make an order providing for the amount of payments, to be made by way of periodical payments, to vary by reference to the Annual Survey of Hours and Earnings for the Occupational Group of Care Assistants and Home Carers (ASHE 6115) produced by the Office of National Statistics. These decisions were upheld by the Court of Appeal. Although the Defendants, essentially the National Health Services Litigation Authority, obtained leave to appeal to the House of Lords, on 4th June 2008 they abandoned the appeal, leaving intact the decision to award periodical payments indexed by reference to ASHE 6115 and such awards are now the norm.
Pending the outcome in the Thompstone group of cases, orders had been made in a large number of cases whereby periodical payment orders were made to be indexed by reference to the Retail Price Index, but allowing the parties to return to court in the event that the decision to index by reference to ASHE 6115 was upheld.
The outcome of the Judgments in Thompstone and in related cases was that a model order was approved by the court for use in future cases.
In Beggs –v- Medway NHS Trust (2008) ED HC 2888 (QB), Judge Hawkesworth QC, sitting as a High Court Judge, delivered a Judgment in October 2008 dismissing a Claimant’s claim for damages for Erbs’ Palsy.
The Claimant, born on 21st July 2002 suffered an injury to his right brachial plexus at birth which despite surgery, will mean that he will always have very limited use of his right hand and arm. It was alleged in the course of the action that the attending midwife applied improper traction to the baby’s head during the course of the delivery in order to deliver the shoulders thus causing the injury.
On behalf of the Claimant it was maintained that the Claimant was delivered in the left occipito-anterior position (LOA), ie the head was delivered first with the back of the head facing towards the mother’s left thigh. That would have meant that the right shoulder was uppermost.
The Trust, relying upon contemporary notes and records, claimed that the Claimant’s presentation was right occipito-anterior (ROA) ie he was facing the other way and the left shoulder was uppermost.
The Judge noted that during the course of the birth the baby’s lower or posterior shoulder had to pass the sacral promontory. By this stage the head has not emerged so if the shoulder is obstructed it is only the mother’s uterine contractions which can propel the baby passed this point. That is unless there is a high forceps delivery which did not arise in this particular case. When the head finally delivers, the upper or anterior shoulder still has to be brought out below the symphysis pubis. It is at this stage that improper traction by the birth attendant can result in brachial plexus injuries.
When proceedings were first commenced in 2006 an ROA presentation was conceded. The Trust applied for summary judgment but failed. In October 2007 the Claimant’s solicitors stated that Mrs Beggs had recalled at conference that when Jack was born she could see his right ear and cheek. Accordingly an LOA presentation was now alleged. In other words the injured shoulder, the right shoulder, was anterior or uppermost and therefore would have caught on the symphysis pubis.
The Judge did not accept the Claimant’s case. Rather the Judge accepted the evidence of the Defendant that the Claimant’s injured shoulder had been posterior. The defence contended that posterior shoulder injuries occurred before delivery when the posterior shoulder is trapped on the sacral promontory. As the head is pushed down the birth canal, the posterior brachial plexus gets lengthened. As the head delivers, the posterior shoulder is released but the damage is already done. In this case the defence alleged that Mrs Beggs had a long second stage of labour and this could be explained by delivery being delayed with the posterior shoulder trapped on the sacral promontory. The defence contended therefore on balance of probabilities that the injury was sustained prior to the delivery of the head and the actions of the attending midwives an obstetric clinician made no difference to the outcome. The fact that the anterior shoulder then became trapped was simply a reflection of the difficulty of delivery and was appropriately managed.
The case reflects a point which it is important for all Plaintiff clinical negligence lawyers to appreciate. Simply because you have shoulder dystocia and a brachial plexus injury, does not mean that liability will automatically accrue. Where there is shoulder dystocia, in other words where the labour is abnormal or difficult as a consequence of the shoulder impeding progress, and there is a serious brachial plexus injury to the same shoulder that is stuck on the symphysis pubis, there is a prima facie case of negligence. It is however not conclusive of negligence and detailed investigation is still required in respect of the case. Those of you who have prosecuted such cases will know that obstetric brachial plexus injury claims continue to excite controversy among clinicians and lawyers. The “propulsive forces of labour” theory is gaining ground, particularly, as here, when damage is to the posterior shoulder.
This point is also reflected in the decision of the High Court in the case of Bennion –v- North East Wales NHS Trust (unreported). In reaching his decision, Judge Halbert made reference to some 89 medical publications to which he had been referred including an article by Mr T. Draycott and Others which appeared in “Clinical Risk” 2008, Volume 14 pages 96-100. In that article a template was proposed to provide guidance to those assessing issues of causation in clinical negligence cases, setting out the factors for and against the injury being caused by the natural forces of propulsion and the injury being caused by excessive traction on the part of the accoucheur.
In the event, on the facts, the Judge found in favour of the Defendant, concluding that the narrow balance favoured a propulsion injury. Equally the template can be of assistance to those representing Plaintiffs. Iatrogenic injury is more likely where the anterior arm has been injured, where shoulder dystocia has occurred, where staff have not received recent training, where incorrect manoeuvres are employed, where there is evidence of excessive traction, insufficient attendance, fundal pressure and permanent injury results.
Interestingly the article also cites some useful data demonstrating that training has reduced the incidence of brachial plexus injury by significant amounts in the Bristol Hospital. The fact that training has been able to produce a reduction in the incidence of this type of injury would seem to indicate that the majority of these injuries were caused by excessive traction. Had they been caused by the forces of maternal propulsion before the shoulder dystocia ever occurred, training in how to deal with shoulder dystocia would have made no difference to the incidence of such injury.
It is also worth noting that Mr Roger V. Clements carried out a detailed critique of the “propulsive forces of labour” theory in his article entitled “Obstetric Brachial Plexus Injury” published in “Clinical Risk” Volume 12 No 1 pages 3-11. Having conducted a careful study of the literature Mr Clements drew a number of cautious conclusions. Not all congenital obstetric brachial plexus injury is the result of operator applied trauma. Interrogation of large databases for two diagnosis is not a helpful way to determine the incidence of such non-operator induced injuries. Shoulder dystocia is underreported in some American hospitals. An alternative explanation for the discrepancy between the diagnosis of shoulder dystocia and obstetric brachial plexus injury is that unrecognised, and therefore unreported, shoulder dystocia carries a greater risk of such injury. There is as yet no mechanically feasible mechanism promulgated to explain the injuries that appear to occur at the time of birth but without recorded excessive traction. If maternal propulsive forces are responsible for such injury, by some mechanism as yet unexplained, they cannot apply where maternal propulsive forces have so clearly failed as in midcavity operative delivery.