Duty of Care

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Duty of Care

Solution In cases of clinical negligence, it is not often the case that difficulties are encountered in attempting to establish that a clinician owed a particular individual a duty of care. As practitioners, we are all familiar with the pitfalls in respect of breach of duty and causation. Indeed the majority of the jurisprudence in this area of law concerns these various issues. It is however worth noting a number of decisions in recent times where the duty of the care has arisen. Three consolidated appeals came before the House of Lords under the title J D v East Berkshire Community NHS Trust and Others, Judgment issuing on the 21st April 2005.

The three cases came before the House simultaneously on a preliminary issue. Although unconnected, they raise the same legal question, namely whether hospitals owe any duty to the parents of children wrongly suspected of having been abused. The particular facts of each case are not important. Suffice it to note, for our purposes, that in each case a child was diagnosed by a medical practitioner as having suffered suspected abuse and was referred by the said Practitioner or their employers to the appropriate statutory authorities. After further investigation, the criminal cases did not proceed.

In each case the parents suspected of abuse sought to pursue a claim in respect of psychiatric injury and financial loss consequent thereon. Each case was struck out at first instance and, after the three were consolidated, dismissed by the Court of Appeal in July 2003.

The House of Lords decided (Lord Bingham dissenting) that the Court of Appeal was correct to reject all three claims. Normally the interest of parents and children are congruent. In these cases they were not. Doctors and social workers had to consider countervailing interests; the need to safeguard children from abuse as against the need to protect parents from unnecessary interference with family life.

The Appeals raised the question of how these countervailing interests should be best balanced. In each case the Doctors had acted properly in considering if abuse had occurred. They had correctly communicated their suspicions to the statutory authorities. Their Lordships felt that the proposition that the medical profession owed a duty of care to parents in such circumstances as a “surprising” one. The existence of such a duty would, in their view, fundamentally alter this area of law. It would mean that if a parent suspected a teacher or a babysitter of abusing a child and took that child to a GP, the Doctor would owe a duty of care to that suspect. There was no warrant for such a fundamental shift in the law. The fact that suspicion might disrupt the parents family life did not justify according a parent a higher level of protection than other suspected perpetrators of child abuse. The House emphasised that a Doctor must be able to act single-mindedly in the interest of the child. Nothing should be done to dissuade them from the task. In conclusion the public interest in law enforcement and administration of justice did sometimes require potential liabilities to be excluded.

The existence of a duty of care was also central to the case of Ceri Anne Walters v North Glamorgan NHS Trust. (Part 2 (2003) Lloyds Law Reports Med 49).

In this case the claimant took her son, Elliott, to her GP on the 17th July 1996. He was referred to the local hospital. The medical staff negligently failed to diagnose that Elliott was suffering from acute hepatitis and should have transferred him for a liver transplant. Elliott continued to be monitored until 3.00 am on the 30th July 1996 when the claimant was sleeping by his bedside and awoke to hear him making choking noises in his cot. Elliott was transferred to the Intensive Care Unit but Mrs Walters was advised that it was unlikely that Elliott had suffered any serious damage as a consequence of his fit. A CAT scan was undertaken and Mrs Walter was informed that there was no brain damage. Elliott was then transferred to Kings College Hospital, London for a liver transplant. When the claimant arrived at the said hospital, Mrs Walters was told by three Doctors that Elliott had suffered severe brain damage as a consequence of the fit and he was placed on a life support machine. She described her feelings as being numb, panic stricken and terrified at the sudden turn of events. The next day it was decided the life support machine should be switched off and Elliott died in his mother’s arms at approximately 4.30 pm on the 31st July 1996.

The Defendant’s accepted liability for the death of Elliott and settled the claim by way of payment into Court for the bereavement award, funeral expenses and interest but refused to accept the claimant’s case for psychiatric injuries. She had developed a pathological grief reaction.

The case proceeded to hearing before Mr Justice Thomas sitting in the High Court in Swansea. The case proceeded on the issue as to whether the claimant was a primary or secondary victim within the meaning given by Lord Oliver in Alcock v The Chief Constable of Yorkshire (1992) HL1 AC310. It was also put forward by the claimant that if a small incremental step in the law was required than that step should be taken.

It is important to note that the agreed evidence of both parties psychiatrist confirmed that it was the claimant’s experiences over the 36-hour period which caused the claimant’s pathological grief reaction. They should not separate out each individual incident within that period but all those individual incidents materially contributed to the illness and it was the whole “event” of the 36 hour period commencing with the fit at 3.00 am on the 30th July and ending with the claimant’s baby dying in her arms the next day that caused the claimant’s psychiatric injuries.

Mr Justice Thomas found unsurprisingly that the claimant was not a primary victim of the breach of duty as, in his view, there must either have been a foreseeable risk of physical injury to the victim or the belief that the victim might be the cause of another’s death or injury. He felt that the claimant was not a participant in any sense analogous to these as there was no risk of physical injury to her and in no sense could she be said to have played any causative role in Elliott’s death. In coming to this decision he relied upon the definition of primary victim as set out by Lord Ackner as well as Lord Steyn in Frost v Chief Constable of South Yorkshire (1999) HL 1 ALL ER1. Discounting Mrs Walters as a primary victim, Mr Justice Thomas then considered whether she fell within the control mechanism set down by Lord Ackner in Alcock. In order to recover damages four criteria must be fulfilled. They are:-

1. A close relationship of love and affection must exist between the secondary victim and the primary victim.
2. The secondary victim must be close both in time and space to the tortuous event.
3. The secondary victim must have direct perception, through sight and hearing, of the shocking event or its immediate aftermath.
4. Psychiatric illness must be induced by shock ie. a sudden appreciation by sight or sound of a horrifying event which violently agitated the mind.

It was not in dispute that Mrs Walters had a close relationship with the victim. It was not in dispute that she had suffered a recognised psychiatric illness. What was in dispute was whether the psychiatric illness had been caused by shock and therefore by the sudden appreciation by sight or sound of a horrifying event or its immediate aftermath.

Mr Justice Thomas was satisfied that the claimant’s mind was violently agitated and that this happened due to a sudden appreciation by sight or sound of a horrifying event rather than an accumulation over time of more gradual assaults on the nervous system and it was that sudden appreciation that caused the pathological grief reaction. Mr Justice Thomas did not consider that it made a difference that the claimant, although present at the fit, did not understand the full significance of the fit until it was explained to her by medical staff. He felt that the period of 36 hours commenced with the epileptic fit and contained incidents including mis-diagnosis at Prince Charles Hospital, the correct diagnoses at Kings College Hospital and the switching off of the life support machine. When looked at as a whole Mr Justice Thomas felt that it was a horrifying event.

Her appreciation of the horrifying event was sudden rather than involving more gradual assaults on her mind. It was this sudden appreciation of the event that caused the pathological grief reaction. He concluded on the unusual facts of the case that the claimant was entitled to recover and therefore did not have to consider whether an incremental step in the law was required for the claimant to succeed.

The Defendant’s appealed on the basis that the Judge was mistaken in holding that the 36 hour period could be properly described as one horrifying event, that the claimant’s appreciation of the 36 hour period was not sudden and that the Judge had expanded the established control mechanisms with insufficient regard to policy. Lord Justice Ward, in the leading judgment found that the present law permitted a realistic view as to what constitutes the necessary “event”. After considering the authorities Lord Justice Ward concluded, on the facts of the case, there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then treat the baby, the fit causing the brain damage which shortly thereafter made termination of the child’s life inevitable and the dreadful climax when the child died in Mrs Walters arm. The Judge described it as a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.

On the question of whether the event was horrifying he decided that the facts only had to be stated for the test to be satisfied. He found that Judge was not only entitled to find that the event was horrifying but was bound to do so.

On the question of whether the claimant’s appreciation of the events was sudden rather than a gradual assault on her mind, he considered each piece of bad news as an assault on her nervous system and that she reeled under successive blows as each was delivered. The Court of Appeal therefore did not believe that it had to consider whether an incremental step was required.

Consider therefore this case in contrast to the more recently decided case of Ward v Leeds Teaching Hospitals NHS Trust (Clinical Risk Vol 11 No. 2 March 2005 Page 91). This judgment was delivered on the 16th March 2004.

In this case the claimant’s daughter was admitted to hospital for the removal of her wisdom teeth under general anaesthetic. The claimant’s daughter died, 48 hours after the operation. She did not regain consciousness after the operation. The claim on behalf of the estate was accepted and settled. The defence however resisted the claim advanced on behalf of the mother in respect of her psychiatric injury.

Mother and daughter, Katherine Hallas, lived together and were very close. Mrs Ward had a previous history of depression associated with the break-up of her marriage. On the day of the operation Mrs Ward brought her daughter to hospital and then went to her work. She contacted the hospital at 4.00 pm to be told that her daughter had yet to return to the Ward. She arrived at the hospital at 7.00 pm and was permitted to see her daughter at 8.30 pm. By this time her daughter had been intubated. At midnight Mrs Ward was told that Katherine had a stroke. The next morning Mrs Ward was told that she should prepare herself for the worst. In the afternoon she was advised by medical personnel that Katherine had sudden and severe ischaemic injury and that brain death was probable. The next day brain death was confirmed and the ventilator was switched off at 4.35 pm. Mrs Ward was not present when the ventilator was switched off but subsequently attended her daughter’s body in the Ward. She also visited the body in the mortuary the next day.

Judge Hawkesworth QC held that for a secondary victim to recover she would have to satisfy the four criteria set down in Alcock. Dismissing the claimant’s case, the Judge held that whilst the daughter’s death was undoubtedly distressing, the events occurred in a hospital setting, controlled by staff who were careful to keep the claimant informed of the gravity of the situation throughout. A psychiatrist instructed on behalf of the claimant conceded that Mrs Ward would probably have suffered a psychiatric reaction even if not at the hospital. The Judge also found that an event outside the range of human experience does not encompass the death of a loved one unless accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify. The Judge therefore found that the claim failed because it had failed to satisfy criterion four of the Alcock decision ie. that the event was not sufficiently horrifying or shocking.

Quite clearly this is a robust decision which limits secondary victims claims. In many cases, particularly involving injuries to children, there could be a potential secondary victim. The important issues to consider are firstly the medical evidence and whether the potential secondary victim has suffered a recognised psychiatric illness due to what they have witnessed perceived or participated in.

If that is the case then it is whether that injury has been caused by sudden appreciation of a horrifying event (following the Walters decision, an event can run for at least 36 hours, possibly longer).

It is important to note that in the successful case both medical experts were in agreement that the Plaintiff had suffered shock as a consequence of the negligent treatment of her child it is on this basis that I believe that the decision in Ward can be distinguished. These are clearly important decisions. Every Practitioner dealing with clinical negligence cases should clearly consider the position with regard to psychiatric injuries of close family members in all cases.

The final case in the context of the existence of a duty of care. In the case of London Borough of Islington v UCL Hospital NHS Trust (2005) CA 171, the Court decided that there was no sufficient relationship of proximity between the hospital and a local authority charged with providing care to an injured party (injured as a consequence of the hospital’s negligence, set as to entitle the local authority to recover the costs of providing that care from the negligent trust.

BREACH OF DUTY AND CAUSATION
In the latter part of 2004, the majority of the House of Lords 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 Board of Governors of Royal Bethlem and Maudsley Hospital (1985) ALL ER 257.

Lord Steyn came to the conclusion, “…that as a result of the surgeons failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles”.

By a majority of three to two 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 a modification of the normal rules of causation.

The facts of Chester v Afshar (2004) UKHL41 are reasonably straightforward. On the 21st November 1994 Miss Chester had an operation on her lumbar spine performed by Mr Afshar, a Consultant Neurosurgeon. Prior to the operation she had been treated in the usual conservative manner; namely she had been previously provided with analgesia as and when required and had also undertaken courses of physiotherapy and similar treatments. Her condition however had deteriorated and she began to suffer repeated episodes of ever increasing pain and disability. An MRI scan demonstrated marked disc protrusion into the spinal canal at three levels. She was offered an operation to remedy the problem. The operation was a microdiscectomy. There was a small but known risk attached to that operation, rated at 1 to 2%, of a serious neurological injury resulting in partial paralysis, a condition known as cauda equina. The risk of this injury could arise notwithstanding the best care being given. In other words, cauda equina was a potential complication of the operation which was not necessarily associated with inadequate or substandard care.

At a consultation three days before the surgery Miss Chester was not warned of the risk by Mr Afshar. Unfortunately for Miss Chester that risk materialised at her operation.

It was Miss Chester’s case that had she been warned of the risk of cauda equina, she would not have had the operation there and then but would have sought other opinions and alternatives before embarking upon the treatment. She did not however discount the fact that she would have undergone the operation at a later date. This was found as a fact by the trial Judge.

It was the defence’s case that even had Miss Chester been warned of the risk, she may well have had the operation at a later date and that the occurrence of the adverse outcome was entirely random and was not related to the care or skill of the surgeon or any individual characteristic of the patient. Therefore the risk was the same at any subsequent operation. Thus the defence argued, there was no causal link between the failure to warn and the damage that materialised.

The lower Courts held for the Plaintiff. At trial in the High Court, the Judge held that the necessary causal link had been established and could not see how the fact the claimant cannot prove that at no future time she would have undergone the operation can break the causal link.

The Court of Appeal, for its part, accepted that it was necessary in order to satisfy the existing rules of causation for the claimant to show that the Defendant’s negligent act had caused the risk in a material way. Their finding was that the Defendant had done so because his negligent advice had procured the claimant’s consent to an operation which she would not otherwise have had there and then.

The House of Lords rejected both these routes to finding for the claimant. By a slim majority Lord Steyn, Hope and Walker (Lords Bingham and Hoffman dissenting) found that the duty to warn of risk was a fundamental one affecting the right of a patient to determine what happens to his or her body. The purpose of the rule imposing liability is to ensure that patients are warned and are not exposed to risks that they are not prepared to accept. Given this, it is contrary to the demands of justice and policy to deny recovery in cases where the patient could not prove precisely what would have happened had the correct advice been given. It would, otherwise, render the duty “hollow, stripped of all practical force and devoid of all content”.

There is a lack of logical rigour in the decision of the House in Chester and Afshar which means that the decision is difficult to understand except on grounds of policy. It is far from clear however what the majority intended should be the result in different factual situations.

As Lord Bingham said “…if the failure to warn and the occurrence of injury which should have been the subject of warning are, without more, enough to found a successful claim, the claimant would presumably succeed even…where it is found on the balance of probabilities that the claimant would have consented to the operation even if properly advised”.

As luck might have it, or more accurately, as misfortune might have it, the Courts did not have to wait too long before the issue of informed consent raised it head once more. In the case of Mann v Mid Yorkshire Hospital NHS Trust (Clinical Risk Vol. 12 No. 1 January 2006 Page 40-41), the High Court again considered the issue of consent in a judgment delivered by Judge Langan on the 12th September 2005.

This case concerned a gynaecological operation performed on the 22nd July 1999. The claimant’s pain failed to resolve subsequently despite extensive further procedures. Prior to the operation the patient, a 41 year old female, was a frequent attendee of both her GP and hospital, with gynaecological and psychological problems. In early 1999 Mrs Mann noted a lump in her vagina. She thought she might have cancer and thus attended her GP who referred her to Miss Fishwick, a Consultant Uro-gynaecological surgeon.

Miss Fishwick concluded after consultation, examination and testing that the claimant was suffering from a prolapse which warranted surgery. A vaginal hysterectomy was advised. She did not offer, nor advise, the patient about any alternative treatments whether surgical or non-surgical.

The Defendant admitted that this omission on her part was in breach of her duty. She however denied causation in relation to the injuries.

Surgery was undertaken on the 22nd July 1999. The operation was competently performed but did not resolve the claimant’s problems. She had several further procedures in an attempt to remedy the situation but to no avail.

At the trial of this matter it was submitted on behalf of Mrs Mann that the absence of informed consent reversed the burden of proof following the decision of the House of Lords in Chester v Afshar. Judge Langan gave this argument short shrift holding that the judgment did not have such drastic consequences.

It was Mrs Mann’s evidence that had she been offered alternatives she would have chosen the least invasive option. In his judgment Judge Langan held that regard should be had to the judgment of Mr Justice Hutchinson in the case of Smith v Barking, Havering and Brentwood Health Authority (1994) 5 MED LR 285. “…if everything points to the fact that a reasonable patient, properly informed would have assented to the operation, the assertion being maintained (that the patient would not have consented had he been warned) does not carry any weight unless there are additional or extravenous factors to substantiate it”.

The experts agreed that Miss Fishwick should have suggested alternatives, but the Judge held that Miss Fishwick, had she properly outlined other procedures to the patient, would not have recommended any of them, chiefly because they would not have been suitable to Mrs Mann or led to a resolution of her problems.

The Judge refused to accept the claimant’s version of what she would have chosen had she been given the option. In so finding he took account of the facts that she had submitted to further procedures post-1999 and furthermore, that her expert psychiatrists had agreed that persons suffering from her condition tended to seek out more dramatic interventions rather than more conservative ones.

What can we therefore conclude from the foregoing in order to give us guidance, going forward when presented with a Plaintiff alleging inadequate or deficient consents? Chester v Afshar would suggest that clinicians are very much on the back foot in terms of negligence litigation if they fail to extract an adequately informed consent. The more recently reported case however reminds us that such an omission is no impediment to a successful defence. In that case the Trust proved that the claimant would have agreed to the same procedure even if the options had been fully explained, contrary of course to the claimant’s own evidence in this regard. It begs the question however of what happened to the patients right of autonomy and dignity as emphasised by the House of Lords in the Chester case. It seems therefore that Lord Bingham can sleep easy in the knowledge that notwithstanding the judgment of the House in that case, there are still Courts and Judges oblivious to the policy established in that important judgment. As a lesson to Practitioners it helps if your client is consistent, from the outset, in his or her version of what he or she would have done had choice been offered or had the risks been explained. It is also important to note that if one carefully reads the judgments of the majority in the House of Lords, it is clear at least in the text of the judgments that Lords Hope, Steyn and Walker place considerable reliance on the existence of “cause in fact” as a basis for their decision. In other words they were reassured in their view that the claimant was entitled to recover because she would have delayed in operation had the risks been explained. A similar analysis could not be undertaken, on the evidence, in Mrs Mann’s case.

Before the defence practitioners become too down in the mouth concerning the prospect of rampant Plaintiff litigation it is important to note that 2005 also witnessed another eagerly anticipated House of Lords Judgment, this time concerning the “loss of a chance”.

In Gregg v Scott BMLR (2005) HL52, Mr Gregg proceeded in respect of the negligent diagnosis of a lump under his left arm. Mr Gregg was assured that the lump was innocuous. It was in fact cancerous. This led to a 12-month delay in the correct diagnosis and a consequent delay in receiving the correct treatment for his condition. The deterioration in Mr Gregg’s condition reduced his prospects of disease free survival for 10 years from 42% to 25% at the date of diagnosis. The Judge found that if treated properly, Mr Gregg’s initial treatment would probably have achieved remission without the immediate need for high dose chemotherapy and would have prevented the cancer spreading to the pectoral region.

It is important to note that Mr Gregg’s case was limited to the “loss of a chance”. For two decades, in and since the case of Hotson v East Berkshire AHA (1987) AC 750, lawyers acting for Plaintiffs’ had wondered whether their client’s should be compensated if negligence had deprived them of some chance of a better outcome, even if that chance was less than 50%.

Gregg v Scott answers that question. The answer went against the claimant. The traditional approach to the law of causation remains unchanged.

The majority of the House (Lords Hoffman and Phillips and Baroness Hale) felt that the “…whole sale adoption of possible rather than probable causation as a criterion on liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and for the NHS…any such change should be left to Parliament”.

It is interesting to consider the reasoning of their Lordships in reaching this conclusion. The quantification argument was advanced on behalf of Mr Gregg. He argued that the Courts routinely take account of risks that do not amount to probabilities, for example, a 15% risk of developing osteoarthritis in 15 years as a consequence of the late diagnosis and treatment of a fracture. This approach was distinguished by Lord Hoffman on the basis that it was a risk created by an accepted negligent act. In Mr Gregg’s case he could not prove his premature death would be caused by the negligent act.

Likewise Lord Hoffman gave short shrift to the argument that the claimant should be awarded compensation for his “loss of a chance”. Not so, what was missing was a lack of knowledge (of whether the risk of premature death was attributable to the breach of duty) and the law deals with a lack of knowledge by the concept of the burden of proof.

Lord Phillips’s judgment, difficult and complex, considered the argument that damages should be awarded for a possibility rather than a probability. He too dismissed same for three reasons:-

1. To hold so would require the House to overrule two other House of Lords decisions namely Hotson and Wilsher v Essex Area Health Authority (1988) AC 1074.
2. The ramifications of doing so were better considered by the Law Commission than by the House of Lords.
3. The complications of Mr Gregg’s case were such that even if minded to do so, it would not be an appropriate vehicle for their Lordships to introduce the concept of damages for loss of a chance.

Baroness Hale also rejected the quantification argument on the same basis as Lord Hoffman, because consequential loss still had to be proved on balance of probabilities. As regards the loss of a chance, she identified a series of problems which led to its rejection. It would be difficult to apply in practice. It could lead to liability in almost every case, and almost any personal injury claim would be reformulated as a claim for loss of chance of a more favourable outcome. Baroness Hale stressed however that proportionate recovery could cut both ways. A Plaintiff with a better than even chance of recovery, would be required to discount his damages to reflect the chance of an adverse outcome. Thus Defendants could reduce damages even in successful cases and this would serve to over complicate the majority of straightforward personal injury actions.

It is very important to note from the Plaintiff’s Practitioners perspective that even so, notwithstanding the refusal of the House to extend causation beyond the traditional parameters of the balance of probabilities, there is still something in the judgment which will be of assistance to the Plaintiff Practitioners. A careful reading of the judgments and in particular those of Hale and Hoffman will reveal that in “loss of chance cases”, on conventional principles, the Defendant will still be liable for any extra pain, suffering, loss of amenity, financial loss or loss of expectation of life resulting from a delay in diagnosis. Likewise where the delay has resulted in an acceleration of the claimant’s suffering, in principle, he will be recover compensation in respect of same.

Thus for example, even if the chances of survival have not been effected, on balance of probabilities, it may still be possible to successfully advance a claim that death has been brought forward due or accelerated due to the delay in diagnosis.

Lest I be accused of a House of Lords bias in my talk, there was an interesting decision delivered by the Northern Ireland Court of Appeal on the 25th May 2006 by the Lord Chief Justice Kerr, Mr Justice McLaughlin and Mr Justice Weir. In the case of Jacqueline Stewart v Nicholas Wright (2006) NICA 25, the Defendant appealed the decision of Judge Hart, awarding compensation to the Plaintiff against her dentist.

The Plaintiff had sued the Defendant for damages for personal injury, loss and damage which arose from an operation performed to remove an impacted wisdom tooth from her right lower jaw. The Plaintiff alleged that she had not been warned about the risks of the surgery namely damage to the inferior dental nerve. Such damage did in fact occur during the course of the extraction causing the Plaintiff to experience numbness in her chin and lip. No criticism was made of the way that the surgery was carried out. The sole case was that the risk had not been disclosed.

It was agreed by the parties that a warning sufficient to properly inform the Plaintiff of the risks associated with the surgery was required. The issue before the trial Judge was whether the warning had in fact been given. As a matter of fact, a consent form had not been completed. This was thought somewhat “cavalier” by Judge Hart and whilst he considered that this represented something less than best practice, it was not, in his opinion, conclusive in respect of breach of duty.

Judge Hart then considered the contents of the dental notes and records. Having considered the totality of the evidence, Judge Hart was unable to accept the Defendant’s evidence that he made the notes at the time that he had asserted in his evidence. The Court of Appeal agreed with his findings, regarding them as “unsurprising”. Judge Hart concluded that taking the evidence as a whole, the Defendant failed to persuade him that he explained the risk to the patient and therefore she was prevented from giving informed consent to the procedure.

The Defendant appealed the judgment on two grounds. Firstly that the Court had reached an unsupportable conclusion on the basis of the evidence and secondly that the Judge had incorrectly reversed the burden of proof on whether the warning had been given and imposed same upon the Defendant.

For the Plaintiff it was contended that although the Judge had expressed himself in terms of the Defendant having failed to persuade him that a warning had been given, the effect of the Judge’s finding was that the Plaintiff had discharged the burden of proving that no warning was given.

In rejecting the appeal, the Court of Appeal held that the trial Judge was best placed to assess the credibility of witnesses. The Lord Chief Justice quoted approvingly from Lord Hoffman in the case of Biogen v Medeva plc (1996) 38 BMLR 149 who in turn quoted Renan “la verite est dans une nuance”. It was held that the trial Judge had reached a perfectly tenable conclusion on each factual dispute. The Court, it should be noted, were assisted in their conclusion that the notes could not possibly be correct. In reaching their decision it was quite clear that the Judges simply did not believe the Defendant’s evidence.

As to the burden of proof, the Court found that the Judge had erred in stating that it was for the Defendant to prove that the Plaintiff was given the necessary information. However, and crucially for the outcome of the Appeal, the Court of Appeal determined that the mis-direction had not caused a miscarriage of justice. In the words of the Lord Chief Justice “…the decision was plainly right although arrived at by an incorrect route”.

Further guidance as to how disputes on credibility will be resolved is provided by the case of Paula Johnston v Northern Ireland Housing Executive (2006) NIQB 46, a judgment given by Mr Justice Morgan on the 30th June 2006. Whilst the case concerns a personal injury sustained in a property occupied by the Defendant, the issue for consideration by Mr Justice Morgan was the credibility of the Plaintiff in relation to her version of events. She alleged that she had tripped over a metal draught excluder and as a result of which she fell and sustained a fracture dislocation of the right ankle and soft tissue injury to her right knee. Her version of events was not reflected in the medical notes and records. The Accident & Emergency Department note recorded that she had fallen down the stairs. The Doctor at the Accident & Emergency Department made a handwritten note which indicated the same history. The Plaintiff, for her part, denied that she had reported that she had fallen downstairs. The defence called evidence from Dr Clarke who was the Doctor who examined the Plaintiff at the Fracture Clinic. He stated that it was his practice to look at the medical records in relation to the patient before speaking to the patient. Having done so he then took a history from the patient. Having taken the history he then carried out such examination as was required.

Mr Justice Morgan determined that he could not be satisfied that the Plaintiff was correct in her recollection in this case. Firstly he was satisfied that Dr Clarke took a history from the Plaintiff at the Fracture Clinic and he considered it probable that the nurse and examining Doctor at the Down Hospital also took a history from her. Secondly he was satisfied that the Plaintiff gave a history to Dr Clarke which included a reference to a fall down three stairs. The Plaintiff was the only person from whom Dr Clarke could have obtained that history. Such a history was inconsistent with the Plaintiff’s case and remained unexplained. In the circumstances Mr Justice Morgan could not be satisfied on the balance of probabilities that the Plaintiff’s account represented the manner in which the incident occurred. The case was dismissed.

HUMAN RIGHTS DEVELOPMENTS
In this section of my talk I do not propose dealing with the application of the Human Rights Act 1998 in general. Mr John O’Hara QC gave a very detailed and interesting talk in relation to same as part of a presentation on behalf of the AVMA on 16th September 2004. Rather, in keeping with the theme my presentation thus far I want to concentrate on recent case developments in clinical negligence which will serve to illustrate the practical application of the Act and demonstrate that the ambit of the Act and it’s parent, the European Convention on Human Rights, extents beyond the situations that those responsible for conceiving it may have had in the forefront of their minds when the legislation was originally framed.

The Act has now had over five years to bed down and Judges and practitioners have become much more familiar with the arguments. It is clear that the Act has had some impact on the work done by clinical negligence practitioners. The Articles must likely to be engaged in cases concerning the provision of health care are Articles 2, 3 and 8.

1. Article 2 – The Right to Life.
2. Article 3 – Prohibition against Torture/Inhuman or Degrading treatment.
3. Article 8 – Right to Private and Family Life.

Article 2 may in appropriate circumstances provide legal address to family members whose love ones have died whilst undergoing medical care.

In the case of Debra Britton v Cardiff and Vale NHS Trust (Clinical Risk, the AVMA Medical and Legal Journal Vol. 11 No. 3, May 2005, Pages 121 – 124). Ms Debra Britton received a sum of £15,000.00 in settlement of a claim based on an alleged breach of Article 2 following her father’s death because of a delay in providing a vital piece of medical equipment. As noted the case settled before trial.

Mr Derek Britton had been admitted to the University Hospital of Wales in Cardiff after suffering a massive episode of haemoptysis (coughing up blood). This was caused by a stent which had been surgically inserted into his sub-clavian artery a few months before. In order to remedy the situation it was decided to insert a covered stent where previously Mr Britton had an open stent. The hospital did not possess a covered stent. Three covered stents were ordered urgently from a supplier. The alternative to dealing with the bleeding was to operate to stop the source of the bleed. This option was not exercised notwithstanding the absence of a covered stent in the hospital. Eventually the three ordered stents arrived the next day. They did not however make it to Mr Britton until four hours later. As they were being prepared, Mr Britton suffered another massive episode of haemoptysis and he died.

An Inquest was held. At the Inquest it became apparent that the delay was due to a procedure known as “procurement” ie. the recording and monitoring of items purchased through NHS funds.

Procurement did not take account of clinical urgency. A verdict of death by misadventure was recorded.

Debra Britton, a grown woman, no longer dependent on her father, did not enjoy a right of action pursuant to the Fatal Accidents Act 1976. Nor was she entitled to bring a claim on behalf of the estate. Her stepmother was the next of kin and she did not wish to proceed.

A claim was therefore formulated under Article 2. The claim did not allege individual negligence but instead alleged that the system itself was deficient and flawed, in that bureaucracy trumped clinical urgency. The claim pleaded this as a breach of the positive Article 2 duty to protect the patient’s life. The claim was unusual in that it invoked the Human Rights Act to claim damages, it did not separately rely on allegations of negligence, it did not require expert opinion, it claimed damages in a situation where but for any right of action available to her under the Human Rights Act, Debra Britton would have had no right of action for damages under English common-law or statute.

Whilst the case did not proceed to trial. The learned author of the article in Clinical Risk submits that there are a number of cogent reasons why the Trust was prudent in settling it.

1. The Trust was clearly a public authority.
2. Debra Britton was a victim for the purposes of Article 2 Osman v UK (1998) 1 29 EHHR 245 held the wife of the deceased could claim to be an indirect victim).
3. Whilst errors of clinical judgment are not sufficient to call a contracting state to account (Powell v UK App No 45305-99) it is sufficient to show that the authority did not do all that could be reasonably expected of it to avoid a real and immediate risk to life of which they have or ought to have knowledge. (Osman v UK as above).

The issue in this case was where the line should be drawn in determining whether this systemic failure was sufficiently serious to constitute a breach of Article 2. The claim resulted in a settlement, a payment of £15,000.00. A similar approach was adopted in another settled case reported in clinical risk vol. 11 No. 2 March 2005. In the matter of D P (As Mother and Administratrix of the Estate of J P deceased) v Northern Birmingham Mental Health NHS Trust, DP proceeded in respect of the death of her son, JP, a patient who suffered from a severe form of schizophrenia. J P was in the care of the said Trust. He was admitted under Section 3 of the Mental Health Act 1983 on the 3rd July 2000. He remained in their care until his death on 26th October 2001. During that time he engaged in various self-harming and unpredictable behaviours. Ultimately he absconded, after his medication had been changed, made his way on to a railway line and was struck by a train. An Inquest was held on the 21st March 2002 which returned an open verdict. The family remained dissatisfied with the Coroner’s enquiry feeling insufficient weight had been given to the deceased’s reaction to his medication change about which he had complained. The family were also concerned that the deceased was able to kick open a door whilst wearing training shoes. The family felt that these issues had not been dealt with satisfactorily at the time of the original Inquest. As J P was a single man over the age of 21 with no dependents, there was no claim under the Fatal Accidents Act 1976. There was no loss of dependency. As the impact with the train was sudden, it was thought by his mother’s advisors highly unlikely that she would recover anything more than minimal damages in respect of the pain and suffering on behalf of the estate.

Bereavement damages were not available as he was a child over 18 years of age.

The family were advised, as in the previous case, that there were important considerations arising under the terms of the Human Rights Act and in particular that the deceased had died in violation of his Article 2 rights.

It was argued under European jurisprudence where a vulnerable individual had been under state control with the state operating an unsafe system which led to his death, redress in the form of compensation should be available. A claim was issued within the 12 month limitation period set down by the Act, claiming damages for breaches of Article 2 and 3 of the ECHR.

Discovery produced a report which revealed that the locks on the ward had been installed some 18 months before and that no risk assessment had been carried out, that the door was in poor condition and that no maintenance had been done to the door or the locks in that time. The claimant claimed funeral expenses of £2,000.00 and heads of damages for counselling and psychiatric damage on behalf of the claimant. A claim was also made for a sum equivalent to the statutory bereavement award, then set at £7,500.00.

Breach of duty was admitted by the Trust and it was accepted that had the door worked properly the deceased would not have been able to abscond. An offer of £10,000.00 was made which was accepted. Once again damages were obtained on behalf of the claimant solely on the basis of a breach of the Human Rights Act. No individual claim of negligence was made.

If these settlements are indicative of the approach that the Courts would have taken at trial, it suggests that, in an appropriate case, the class of potential claimants may be wider under the Human Rights Act than the restricted class entitled to bring a claim on behalf of the estate of the deceased under the Fatal Accidents Act. Furthermore it suggests that a remedy may be available under the Human Rights Act where individual or collective negligence may be impossible to establish. That is not to say that it is necessarily the position that in the event of a systemic or administrative failure, such as that alleged in these cases, as opposed to a clinical failure, a right of action for breach of a common-law duty of care owed by the hospital could not also lie. But of course the latter right of action, if available, could only lead to recovery of damages by those within the restricted class entitled to bring a claim on behalf of the estate or under the Fatal Accidents Act. Finally the quantum of the settlement does nothing to undermine the suggestion that, in appropriate circumstances, the quantum of damages may be greater in a claim under the Human Rights Act than would be the case of a Fatal Accidents Act claim.

DELAY AND TREATMENT OVERSEAS
On the 16th May 2006 the European Court of Justice gave judgment in the long running case of Watts v Bedford Primary Care Trust. This clarified the circumstances in which an NHS patient faced with unreasonable waiting list delays can seek treatment in another EU members state at the expense of the NHS. The case was referred back to the English Court of Appeal to make a final decision, given that the European Court of Justice Judgment is only advisory.

The case concerned a Mrs Yvonne Watts who, in September 2002, was diagnosed as a bilateral hip replacement. She sought prior authorisation from Bedford Primary Care Trust, under the E-112 process, for treatment in Belgium. In the UK the waiting time was a year. In Belgium it was two weeks. In November 2002 the Primary Care Trust declined its permission, based on its understanding of EU and UK law. It felt that Mrs Watt’s case was routine and believed that it was entitled to refuse permission as there would be no “undue delay” in treatment based on then NHS waiting time target of 12 months. Mrs Watt’s condition then worsened. Her Consultant saw her again in February 2003 and decided that she ought to have her hip replacement by mid March. Mrs Watt’s was therefore re-categorised as a “soon” case and on that basis she could expect treatment on the NHS within three to four months. Mrs Watt’s elected not to wait, however and as the NHS would neither accelerate her treatment nor authorise treatment overseas, she independently arranged to have the operation privately in France. The procedure was carried out on the 7th March 2003 and Mrs Watt’s then sought to recover the cost of her treatment from the NHS.

This case turned on the proper interpretation of two detailed provisions of European Law.

1. Article 49 of the EC treaty dealing with the freedom to provide services throughout member states of the European Union without undue hindrance.
2. Regulation 22 of Council Regulation No. 1408/71 which deals with the right of patients to receive treatment in other member states if authorised to do so by their own host countries.

The Secretary of State throughout challenged whether the NHS as a health system of a kind to which these provisions apply at all, also raising other points about the nature and extent of what constitutes undue delay.

The European Courts Judgment was consistent with a string of earlier European Courts of Justice decisions in similar cases. The Judgment is, needless to say, not an easy read imaginable. It is however possible to summarise the key findings:-

1. Under EU Law, member states are prohibited from setting up barriers to the free provision of services within the internal market save in certain circumstances. This applies to the provision of health services as it does to everything else.
2. Persons originally resident in the UK are entitled to receive hospital treatment in another member state at the expense of the NHS and the NHS may lawfully require that person to obtain prior authorisation before doing so.
3. To be lawful, there must be a system in place for obtaining that authorisation which is easily accessible, which judges each request impartially and within a reasonable time, and which does so by reference to clear, objective and non-discretionary criteria. If authorisation is refused that decision must be capable of being challenged in a judicial or quasi-judicial forum.
4. The request cannot be judged on the basis that the treatment the patient needs will be available within national waiting time targets. The NHS must have regard to the condition of the individual patient, which involves taking into account the seriousness of the present position, the degree of pain, the extent of the individual’s disability and the likely course of events. If having regard to those factors, treatment cannot be provided without undue delay the patient is at liberty to seek treatment in another member state at the expense of the NHS.
5. It is incumbent on member states to ensure that their health systems incorporate sufficient flexibility to accommodate treatment abroad. Therefore although the NHS is free to manage priorities through waiting list procedures, the system must allow for the possibility of urgent cases being treated elsewhere in the EU where there would otherwise be undue delay in providing treatment for an individual patient.
6. Authorisation cannot be refused on financial grounds alone. In saying this, the Court fully appreciated the finite nature of resources available and the virtually infinite nature of demand. EU Law does not however allow these factors to be taken into account when deciding whether any delay which a patient might face is reasonable and not undue. As to the amount to be reimbursed to the patient, the Court was asked to consider whether the patient was entitled to be reimbursed the expenses incurred in accordance with the laws of the state in which the treatment was provided or those of the state with the obligation to pay. The practical effect is that the patient should be neither better nor worse off than if the treatment had been provided by the NHS in the UK.
7. The Court was asked whether treatment must be funded regardless of budgetary considerations and whether that would be incompatible with the responsibility of each member state to organise and deliver its own health care system. In the Courts opinion, there was no conflict. States may organise their own systems but must do so in a way that reflects their own EU law obligations. In other words the NHS must build into its processes recognition that some NHS patients, based solely on the urgency of the medical condition, may be able to seek treatment elsewhere in the EU at the expense of the NHS.

It is debatable how likely it is that patients will wish to take advantage off this ruling. Waiting times have fallen and for many patients treatment abroad may not be something they wish to embark upon or feel capable of undertaking for whatever reason. Furthermore there is always an element of risk if patients go it alone. Whether undue delay exists remains a matter of opinion even though the law and the criteria to apply it may be clearer. If permission is sought but refused, the patient has to make a judgment call and may get it wrong. If they do, they will have no financial recourse against the NHS. In all the circumstances, cross border treatment will therefore be risky in a borderline case.

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Article details

Article ID:	194
Category:	Medical Negligence
Date added:	20-11-2009 02:27:49
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