Wednesday, 28 November 2012

Rabone - Claiming Damages under the Human Rights Act

This is a short blog post with a link to a paper I have written on this subject.

I acted as Counsel for Mr and Mrs Rabone throughout their case, instructed by Pannone LLP and led by Robert Francis QC and, in the Supreme Court, by Jenni Richards QC, before I took silk in March 2012.

There have been widely differing reactions to the judgment of the Supreme Court. In Clinical Risk, Bertie Leigh, Senior Partner of Hempsons, the firm which represented the Trust, writing in a personal capacity described the case as vitally important but the decision as profoundly wrong. Meanwhile, in his commentary the Medical Law Reports, James Watson QC said of the decision that it was "one small step for human rights and one giant leap for the humanity of our compensatory system."

Psychiatrists writing to Psychiatry have questioned the expert evidence in the case. It should be noted that it was the Defendant's expert who advised that the risk of Melanie Rabone committing suicide during her period of home leave ranged from 5% to 20%. The Claimant's expert would not use percentages in his written evidence, but was pushed in court to give a percentage figure. His was higher than 20% and the Judge preferred the evidence of the Defendant's expert on that issue. Whatever the general risks of the population of psychiatric patients with depression, the experts have to look at the particular risks of the particular individual and ask whether the risk of suicide was real and immediate and whether that was or ought to have been known to the authorities.

One other note: no judge who heard this case found that the breach of article 2 comprised a failure to detain Melanie under the Mental Health Act 1983. Indeed it was no part of the Claimant's case that she ought to have been detained. The trial judge found that if she had been refused home leave she would have been compliant and therefore would not have required detention. The Claimant's psychiatric expert considered that allowing limited home leave with conditions attached would have been reasonable and would have been adequate protection against suicide. This case was not about detaining patients (pace Mr Leigh).

Here is the paper  which can also be found on my chambers website.

Tuesday, 2 October 2012

PPOs for Dying Claimants

Final settlement of a personal injury claim precludes claims under the Fatal Accidents Act should the claimant later die of the injuries caused by the defendant - Thompson-v-Arnold. There are several means of protecting future claims by the dependants of living claimants who have a reduced life expectancy. Where liability is not disputed and death is likely within a short period, interim payments could be agreed or ordered, with final resolution to be determined following the claimant's death. Alternatively, some heads of claim could be determined, with others, including future care or earnings, stayed. When the claimant dies, those stayed claims become the dependency claims of the bereaved relatives. Provisional damages might be claimed - an award of provisional damages does not preclude future claims arising out of the death of the claimant.

In some delay in diagnosing cancer cases which I have handled we have settled the PI claim to include recovery of damages which would be claimed under any future Fatal Accidents Act claim. However, the courts do not have the power to order compensation under the FAA if the Claimant is still alive! Or do they?

Under CPR 41.8(1)(c) a Periodical Payment Order must specify that the claimant's future pecuniary losses are to be paid for the duration of the claimant's life, or such other period as the court orders. It is clear from 41.8(3) that this "other period" could be a period longer than the Claimant's life: "Where the court orders that any part of the award shall continue after the claimant's death for the benefit of the claimant's dependants, the order must also specify the relevant amount and duration of the payments and how each payment is to be made during the year and at what intervals." 41BPD.2(1) confirms that such an order may be made when the dependant would have had a claim if the claimant had died "at the time of the accident" (presumably "accident" includes "injury caused by negligence" in say a clinical negligence claim).

Since PPOs can be stepped (different periodical payments at different stages in the future), it would theoretically be possible to make an order for payment of say £50,000 per annum during the claimant's life and £40,000 per annum to their dependants after the claimant's death until the youngest dependent is, say, 21 years old, or until the surviving spouse dies.

I confess that I have never seen an order to that effect. I would be interested to know if anybody else has (please leave comment below). I wonder whether there has ever been an order or settlement on those terms. But if not, why not?

Many potential problems would need to be addressed in any such order:

 -   Under CPR 41.8(3) a step change in the periodical payment has to be made on a specified date. Since the date of the claimant's death cannot be predicted then presumably it is acceptable to provide for a step change upon the claimant's death whenever that might occur. Thereafter there would have to be changes in payments as the dependency changes (e.g. as each child reaches 21).

-   What if the claimant later dies for some reason other than the negligence of the defendant (e.g run over by a bus the day after the order is made)? Provision would have to be made to ensure that all PPs will cease on the claimant's death where that is due to a reason other than the defendant's negligence.

-   If the date of death is not known, how can the level of dependency be predicted in advance of death? How do you draft the order such that the payments after death are at a level which will fairly reflect the dependency at that time, when you do not know when death will occur or what the financial circumstances of the family will be at that time? Any order would be riddled with conditions: "if the claimant's death should occur between 2018 and 2020, and provided that dependant A is in full time education between those dates, the periodical payments after 2018 shall be ...."

-   To whom are the dependency payments to be made after the claimant's death? FAA awards are usually apportioned. I presume that periodical  payments would have to be apportioned and the order would have to specify the amount to be paid periodically to each dependant, whether the payments are to be made into court, or to a trustee or to the dependant directly.

-   In some cases there may be future dependants who are not yet born at the time of the settlement of the PI case.

-   The tax position needs careful consideration : whilst PPOs during the claimant's lifetime are exempt, the exemption does not continue after their death.

Notwithstanding the potential difficulties with drafting an order of this kind, the great advantages of using a PPO in such cases include:

-   not only protection of the dependants' claims, but resolution of them, together with the claimant's own claims, during the claimant's lifetime, thus giving peace of mind to the dying claimant and his or her family and saving costs.

-   provision for non-financial dependency could be secured - the law as it stands may not support a claim for loss of services in the lost years - Phipps-v-Brooks Dry Cleaning. 

-   a carefully tailored PPO could address and meet all the future uncertainties in a way in which a single lump sum settlement can only do with a broad brush.

I see no reason to avoid PPOs in such cases merely because there are compromises on liability which prevent 100% recovery.  

PPOs could be used in cases where the claimant is likely to die prematurely as a result of the defendant's negligence. They will not suit all cases, but there may be advantages of using them for the purpose of a once and for all resolution of present and future claims, even where damages are not of the highest level.

Friday, 21 September 2012

Risk - Managing Psychiatric Patients

At the Kings Chambers Mental Health Conference on 21 September 2012 we discussed the question of risk in relation to the management of psychiatric patients.

Case law demonstrates that, at common law, liability may lie with healthcare providers who fail adequately to protect psychiatric patients against self-harm and suicide, but that it is evidentially difficult to establish negligence - see G-v-Central & North West London Mental Health NHS Trust [2007] EWHC 3086 in which the court held that it had not been negligent to allow home leave to a patient who had previously placed herself on a tube train track and expressed ideas of killing herself. The patient put herself back on the track and was struck by a train. See also Rabone-v-Pennine Care NHS Trust [2012] SC 2 in which negligence in allowing the patient home leave had been admitted by the Defendant Trust prior to trial. Ms Rabone committed suicide when on home leave.

In Rabone there was no allegation that the negligent omission was failing to detain Ms Rabone. However the common law would probably accept that a decision not to detain, although it involves the exercise of a discretion not to use a statutory power, might be negligent. Certainly, in S-v-South West London and St George's NHS Mental Health Trust [2011] EWHC 1325 QB, in a claim that the defendant had negligently detained the claimant under the Mental Health Act, although the claim was dismissed, no point was taken that the decision to exercise a power of detention could not in law be regarded as negligent. And in Palmer-v-Tees HA et al [1999] Lloyds Rep Med 351, where the allegation was that the defendants should have prevented a patient from being released from hospital when he was at risk of committing offences against children (he subsequently murdered a 4 year old girl) Stuart-Smith LJ observed that "there is no question in the present case of the defendants relying on the policy/discretion argument to say that they are not under a duty, breach of which is actionable."

So, failure to detain may, in certain circumstances, found an action in common law negligence, but it will most often be difficult to establish negligence on the facts

The duty of care, in common law, may extend to the protection of others from the risk that they will be harmed by a psychiatric patient. Palmer is clear authority, however, that the duty extends only to victims who "came into a special or exceptional or distinctive category of risk from the activities of [the patient]."

In the more recent case of Selwood the Court of Appeal found that the persons who might come within that distinctive category could include a social worker who was working in conjunction with NHS Trusts in relation to a particular patient (who later stabbed her). Interestingly, in that case the claim had been brought both in negligence and under the Human Rights Act. The Court of Appeal held that it was arguable that an NHS Trust was analogous to the police who may be under an operational duty to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved. Compare Osman-v-UK and Van Colle-v-Ch Cons Herts Police [2008] UKHL 50

The Osman duty arises, under the ECHR where the authorities knew or ought to have known at the time 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 and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk." That is close to the Palmer test for common law liability.

Given that the ECtHR has held that the scope of any positive duty on the state to protect life must not be intereted so as to impose a disproportionate burden on the authorities, and that it only arises once there is actual or constructive knowledge at the time of a real and immediate risk to life, it cannot reasonably be argued that the Human Rights Act has opened the floodgates to litigation in this area.

At the conference, Dr Jonathan Hellewell, Consultant Psychiatrist spoke about the conceptual and practical difficulties of assessing risk and managing risk . And Simon Burrows from Kings Chambers addressed the legal limits on the interference with liberty, which may well prevent public authorities from taking certain measures to protect against the  risk of self harm or harm to others. The risk of suicide, let alone homicide, by psychiatric patients is very very small. Measures to reduce the risks might well by themselves lead to unacceptable results. Some risks are acceptable or "positive" and may attend management decisions which are generally beneficial to the patient. No court would expect public authorities to detain all patients who present with some risk of self harm or suicide. It is only when the authorities know (or ought to know) of a real and immediate (present and continuing) risk to life, that article 2 imposes an obligation to act (not necessarily to detain, but to take precautionary steps which can be expected to be effective and which do not impose a disproportionate burden on the state).

Thanks to Dr Hellewell and Simon and all those who attended the conference.

Friday, 27 July 2012

Ten Rules for Telephone Conferences with Experts

They reduce costs and delay and are now almost the norm, but there are pitfalls in having conferences where the experts "attend" by telephone.  Here are ten rules to help them run more smoothly.

1.            Arrange to call the experts at least  15 minutes after the start of the conference.

Conferences rarely start bang on time. Coffee and tea are served. Everyone settles down. Counsel breaks the ice by talking about the weather and then introduces the conference. The client has something they want to get off their chest at the outset. Fifteen minutes have passed. If the expert was expecting a call at ten o'clock and it is now quarter past, they are getting nervous that they have been forgotten. They are busy people and not used to being kept waiting. At twenty past they are cross and calling the solicitor's office.  So, solicitors should arrange to meet counsel and the client about fifteen minutes before the time set for the conference call.

2.            Inform the expert who is present in the room with you.

And, if necessary, keep reminding them throughout the conference. Even then I wonder whether experts sometimes forget that the client is present with the lawyers and listening to the discussions. In one conference I asked the expert microbiologist over the telephone what  dosage of antibiotic  ought to have been administered to my, admittedly overweight, client who was sitting next to me. "Well,", replied the expert, "We are dealing here with what is basically a whale".

3.            Landlines are preferable to mobile phones.

Not only is the connection generally worse on a mobile, but mobiles allow experts to take part in the conference in less than ideal circumstances, usually involving their cars. I have had experts say, "I am stuck in a traffic jam but I will be fine - carry on", and "I have just pulled into a lay-by. Hang on, I'll get the papers from the boot."

4.            Avoid calls to experts when they are abroad.

Many is the time when I have had a conference by telephone with an expert who has been abroad on a conference or on holiday. They rarely run smoothly. If your expert is going to be abroad they are unlikely to be taking three ring-binders of medical records with them, so consider providing records and other documents in electronic form.

5.            Don't let experts' patients interrupt the conference.

I am not suggesting that experts should ignore emergency calls and carry on the conference regardless, but rather that it is best to avoid timing the conference for midway through an operating list or out-patient clinic. 

The trouble with "office time" conference calls is that experts' patients may be within reach. I recall one conference which had been arranged to take place with the surgical expert when he was between patients on his theatre list. I had the distinct impression that he was operating with the phone tucked under his chin.

6.            Try to avoid calling the expert when they are at home.

At least an expert in the office is more likely to be in "work mode". When they take the call at home, there are countless distractions which may interrupt the conference. Dogs are a particular and common menace and seem to choose to bark loudly at vital moments. 

I remember one expert becoming increasingly angry with his noisy retriever: "Rufus! Shut up!". Other potential distractions include children, "Daddy, can I watch a video" and visitors, "Sorry, Mr Poole, I will just have to let in the decorator. One minute."  The client may think that the expert is not paying full attention when he hears him shouting, "I left the keys in the kitchen drawer, darling".

7.            Ensure there is a proper "hands free" telephone and someone present who knows how to use it.

The conference sets which look like small UFO's are best.  Conventional sets often give only a very faint line when using the hands free function. I have conducted several conferences by shouting. The one that stays with me involved a client who had Peyronie's disease. The expert could not hear what the client's wife was saying, so I had to shout it down the line: "She says her husband's penis was bent at an angle of nearly 90 degrees". Not everyone is efficient or even capable of  operating the telephones for conference calls. "Now, I think I can remember how to do this", is always a worrying beginning to the conference. Technophobes - know your limits. Someone present needs to know exactly how to operate the system. An alternative, at additional cost, is to use a service such as BT conference calls: "Press *0 for assistance".

8.            Remind the expert to have the records and reports available for the conference.

Too many experts participate in telephone conferences without having the records and other documents in front of them. I recently had to dictate the entries from an observation chart over the telephone.

9.            Beware the Disappearing Expert

Sometimes the line just fails and an expert is cut off. The problem comes when you don't know that has happened. On one  occasion I was midway through a question to the expert when the receptionist came in the room with a message to call him because he had been disconnected. I had, not for the first time, been speaking to myself.

10.          Check the Conference Note

It is good practice to send the experts a note of the conference, but check what you send them.  They may not appreciate seeing what was said about them or their opinions after they had finished the call.  I know of one telephone conference where, immediately after the call to the expert had ended, counsel said to the client that he thought the expert was "completely batty". The diligent trainee solicitor duly noted the comment and the full conference note was sent to the expert. It may be no co-incidence that the same firm now produces two notes: one of the conference with the experts and a second note of the further discussions between counsel, solicitor and client.

I have no doubt that the physical distance between expert and client at a telephone conference makes it less awkward for the expert to give unsupportive opinions. You may think that to be an advantage or disadvantage of telephone conferences, but from the  point of view of client care, it is sometimes better to allow them to see an unsupportive expert face to face. However the bean-counters would not approve. So telephone conferences will continue, together with video or even skyping, and there will be plenty more pitfalls ahead. Good luck!