In this article...

• Nothing less than gross negligence
• Setting the bar high
• Watch this space
• Preventing double recovery
• Judicial discomfort
• Check that policy
• In the clear

Nothing less than gross negligence

In the case of Savage v South Essex Partnership NHS Foundation Trust [2006] EWCH 3562 9QB0 [2007] All ER(D)148 (Feb), Mrs Savage was detained under s.3 Mental Health Act 1983. She absconded and killed herself by jumping in front of a train.  Unusually, the Deceased’s husband did not bring a Fatal Accidents Act (FAA) claim. Instead the Deceased's adult daughter (who does not qualifty to bring a FAA claim) is pursuing a claim under Articles 2 and 8 of the Human Rights Act 1998 (rights to life and respect for private and family life).

The Defendant argued that for the Claimant to succeed in a clinical negligence claim under Article 2 concerning a detained patient, she must establish that there had been 'gross negligence' following the principles established in R (Takoushis) v Inner London Coroner and another [2006] 1 WLR 46. The Claimant argued for a more liberal test and submitted that where there was negligence in the face of a 'real and immediate risk to life' she should succeed.  She also invited the court to apply a test tailored to the specific facts of this case concerning a detained patient and apply principles of 'common sense and humanity'.

Setting the bar high

Striking out the claim, Mrs Justice Swift held that in cases relating to patients subject to compulsory detention, Claimants must establish that there has been gross negligence before they can recover damages for personal injury under the Human Rights Act 1998. To hold otherwise could lead to patients on the same ward being treated differently based on whether they are voluntary patients or detained patients. The Claimant was given permission to appeal to the Court of Appeal on the basis that the issues in the case are of general public importance.

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Watch this space

We are representing the Trust at the appeal, expected to be heard between August and November 2007 and will report the outcome in a future edition of Claims Online. Mrs Justice Swift’s decision is encouraging for Defendants and if it is upheld at the appeal it will help stop Claimants using the Human Rights Act as an easy route to bring clinical negligence claims ‘by the back door’ under a lower standard or where the family member does not qualify under the FAA.

Preventing double recovery

Crofton v NHSLA [2007] EWCA Civ 71 is good news for NHS Trusts in claims where local authorities are making ‘direct payments’ to meet Claimants’ care needs. It confirms that these direct payments should be taken into account when assessing damages and this reduces the amount that Trusts will be ordered to pay.

 

The Claimant was severely brain damaged at birth.  The Judge at first instance assessed the Claimant’s total yearly care costs at £122,602.  Setting off annual direct payments of £68,018 produced an annual net figure payable by the Trust of £54,584, so the Trust’s liability was reduced by about half a million pounds over the Claimant’s lifetime.  

The Claimant appealed the reduction in compensation arguing that these payments should not be taken into account when considering damages.  He submitted that the local authority would not be obliged to continue paying the direct payments after the claim had settled because the damages awarded would enable him to purchase his own private care package. He would not therefore need any assistance from the local authority and without that ‘need’ he would lose his entitlement to the direct payments.

Finding in favour of the NHSLA, the Court of Appeal concluded that a local authority was obligated to disregard personal injury damages awarded by the Court when assessing the threshold level for care provision so the local authority had a continuing obligation to make the direct payments to the Claimant.

Judicial discomfort

This is not a straightforward decision.  Allowing Defendants to set off direct payments reduces the amount they have to pay injured Claimants so they arguably enjoy an unearned windfall.  But refusing to allow Defendants to set off direct payments would lead to double recovery for Claimants who would receive full compensation from the Defendants and then direct payments also funded by the tax payer on top.  To reflect the risk that direct payments may not continue indefinitely, the court held that it would be wrong to apply a ‘whole life’ multiplier when calculating the value of future direct payments so the multiplier should be discounted (by how much is an issue which has been remitted for a further hearing and we will report the outcome in a future edition of Claims Online)

Check that policy

The case of Cowley v Cheshire and Merseyside Strategic Health Authority [2007] All ER (D) 168 (Jan), serves as a good reminder that hospital policies must be kept up to date and followed by medical staff because they may be scrutinized in court. Here, a doctor’s reliance on her hospital’s policy helped to successfully defend a claim for negligence.

The Health Authority's policy at the time of the Claimant's birth in 1991, was not to administer betamethasone (a cortico-steroid) unless the mother was in premature labour. The Claimant's mother had previously had two healthy pre-term babies and presented at the hospital at about 28 weeks. She was not administered with betamethasone but kept in overnight for observation. When labour was confirmed the following afternoon, she was assessed to be at risk of a premature delivery and prescribed betamethasone.  The Claimant was born later that evening with significant brain damage. It was alleged that the hospital’s policy was deficient because it restricted the use of betamethasone which should have been administered on admission.

In the clear

The Defendant relied on literature published in 1991 which supported its policy. The court held that the hospital's labour policy had been within the reasonable range of such policies for the management of pre-term labour at that time following the well established principles in Bolam and Bolitho.  The doctor had acted in accordance with the policy so neither the doctor nor the hospital were found to be in breach of their duty of care.

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