Introduction
On 8 February 2015 MT suffered a psychotic episode and threatened to stab his daughter, KT. Police officers attended. The following day he actually stabbed KT several times, causing serious injuries. He was prosecuted for attempted murder and found not guilty by reason of insanity. Both MT and KT claimed damages, in MT’s case for negligence and in KT’s under the Human Rights Act. The trust accepted that a decision on 3 December 2014 to discharge MT from secondary psychiatric care was not handled correctly, but denied all other allegations.
Detail
MT had a long history of psychiatric problems, including paranoid schizophrenia, together with criminal convictions for violence and illegal possession of firearms. On 4 June 2014 he was reviewed for the first time by Dr. Pisaca, a consultant psychiatrist at the trust. The outcome was an agreement that MT would have one further depot injection and then take his medication orally. MT was subsequently visited by members of the mental health team five times in July and on three further occasions before a review by a care co-ordinator on 4 December. MT said he felt well and was discharged from secondary mental health care.
MT gave evidence at the civil trial and accepted that he did not believe in taking medication but lied about this to clinicians and his wife. However, Dr. Pisaca told the court that MT’s wife informed him that she would watch her husband taking medication every day. MT had been adamant that he wanted to switch to oral medication and this was a decision he was entitled to make because at that point he was not sectioned under the Mental Health Act, and therefore free to refuse any form of treatment. Dr. Pisaca was alive to the risks of MT coming off depot injections, but these risks were balanced by support from the mental health team and from a vigilant family.
It was agreed between lawyers that the trust’s admission the decision of 4 December was unwise did not make a difference to the outcome because MT would have continued not taking his medication even if he had not been discharged. It was however alleged that Dr. Pisaca had not undertaken a sufficient risk assessment and failed to advise continuation of injections.
The medical notes did not contain any record of a risk assessment. However, the judge accepted that on the balance of probabilities (i.e. more likely than not) one had been performed because risk assessment is integral to the practice of psychiatry and the consultant was well versed in the background, having had a handover meeting with MT’s previous consultant. Moreover, the risks of stopping injections (which are more effective than tablets) were obvious. Again, on balance, Johnson J. concluded that advice to continue injections had been given. Consequently, the judge determined that the allegations of breach of duty had not been made out.
Turning to causation, even if Dr. Pisaca had failed to advise continuation of depot injections there would have been no difference to the outcome, once again because MT would not have taken his medication. Further, MT was capable of cynical manipulation of the system. No amount of advice would have convinced him to take the tablets.
However, the trust’s argument that MT’s should be regarded as having committed an illegal act was not accepted because such a position only applies where the perpetrator knows they were acting illegally. The jury in the criminal trial had concluded that MT was insane when he stabbed his daughter.
If MT had been able to demonstrate negligence by his psychiatrist, his damages would have been reduced by 75% on account of contributory negligence – namely his own deliberate decision not to take medication.
Turning to the daughter’s claims under the Human Rights Act, even though it was unlikely that any reasonable psychiatrist would have predicted what ultimately unfolded, nevertheless as of June 2014 there was a real and immediate risk that MT might suffer a relapse, which would then pose a risk to life for family members. History showed that he could resort to violence, and he had weapons available to him. However, even though Article 2 of the Act (right to life) was engaged, Dr. Piscata had assessed the risks adequately, even though he had not documented them. A reasonable package of measures (regular visits by clinicians and monitoring by MT’s wife) was in place to guard against them. Consequently, the trust had not acted in breach of KT’s Convention rights.
Overall therefore both claims failed. The trust had taken reasonable steps to avoid the risk that MT would suffer a relapse of his psychotic illness. Regular monitoring was in place, but this did not pick up that MT was not taking medication because he lied both to the mental health team and to his wife.
Comment
This was an unusual case involving consideration of several points of law, including illegality, contributory negligence and the Human Rights Act. It differs from EH v. Dorset Healthcare University NHS FT, which we reported on in March last year, where a woman who killed her mother had pleaded guilty to manslaughter by reason of diminished responsibility – therefore accepting she retained some responsibility for her own actions. As a consequence, her claim for damages was rejected by the Supreme Court. A key difficulty for the trust in the present claim was the absence of a documented risk assessment regarding the change of medication. Failure to record important clinical information can often be fatal to a successful defence in clinical negligence claims, but here the judge was persuaded that an assessment had in fact occurred. It is a matter for speculation as to whether the claim might not have been brought had the psychiatrist committed his assessment to writing.
