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Hylton Armstrong succeeds at trial in fatal Clinical Negligence Claim

The Deceased was 21 years old when he took his own life by hanging himself outside a probation office. The legal claim related to an in-person appointment with the Defendant General Practitioner 3 days earlier.   The Claimant’s case was that the Defendant had failed to conduct an adequate assessment of the Deceased’s risk of suicide, failed to address another recent suicide attempt, and failed to make an urgent same day referral to the local crisis team.   Hylton acted for the Claimant, who was the Deceased’s mother acting on behalf of the Deceased’s estate, and successfully argued that (1) the Defendant was negligent, and (2) that but-for the Defendant’s negligence the Deceased would not have died when he did.   The Claimant relied on expert evidence from Dr Adrian Rees (General Practitioner) and Dr Sikandar Kamlana (Consultant Psychiatrist). The Defendant relied on expert evidence from Dr Oliver Starr (General Practitioner) and Dr Christopher Buller (Consultant Psychiatrist).    The trial was heard at Leeds County Court across 3 days before His Honour Judge Walsh. Hylton was instructed by Richard Lewis, Abigail Lewis, and Carlos Lopez from Express Solicitors.

James Murphy secures settlement of £1.83m in transhumeral amputation claim

The Claimant, aged 56, suffered a severe crush injury to his right dominant arm when he was pulled into a conveyor at work. The Claimant’s arm was amputated to save his life.   The Claimant has a short stump and advices received were initially equivocal about whether a myoelectric prosthetic would be beneficial or even operable by him.   Phil Davison of Sintons LLP arranged a trial supervised by Blatchford of Sheffield using interim payments which was successful such that the Claimant’s motivation and control of his arm were considered exceptional. The Claimant is self-caring and can use the arm well for many tasks. He additionally benefits from cosmetic and sports prosthesis.   Expert evidence relating to prosthetic use was received from Dr. Renjith Bose - Rehabilitation Medicine, Ms. Michelle Henry – Care/OT, Ms. Carolyn Hirons - Specialist amputation physiotherapist and Mr. Abdo Haidar - Prosthetist.   The claim compromised at a hybrid settlement meeting.   James worked with <a href="https://sintons.co.uk/our-people/phil-davison/">Phil Davison</a>, Partner at <a href="https://sintons.co.uk/about/">Sintons LLP</a>, on behalf of the Claimant.

Think twice before making a pre-action admission

Pupil Barrister. <a href="https://www.parklaneplowden.co.uk/our-barristers/oliver-bailey/">Oliver Bailey</a> reviews the decision in Somoye v North West Anglia NHS Foundation Trust [2023] EWHC 191 (KB).   Facts   This case concerned a clinical negligence claim arising out of the death of Dr Oluyinka O Somoye.  In short Dr Somoye attended the Defendant’s hospital for a myomectomy on 28/02/18 and was discharged by the treating doctors on 03/03/18.  On 07/03/18 Dr Somoye returned to hospital with severe abdominal pain. She subsequently vomited faeces, collapsed, and suffered a fatal cardiac arrest.   Admission   In March 2020 the Defendant made a pre-action admission of liability primarily based upon the written expert opinion of Professor Winslet, who had been instructed by the Coroner for the inquest. The Defendant then reiterated this admission by letter a year later in April 2021.     However, at the inquest Professor Winslet changed his opinion somewhat and concluded that different treatment would not have prevented death.   The Defendant then made an application to withdraw the pre-action admission in respect of causation, not in respect of breach of duty.  The Defendant then relied upon Professor Winslet’s updated opinion and also expert evidence from a consultant in intensive care and a cardiologist.      The Law   Under CPR 14.1A(4) a party who makes a pre-action admission may apply to withdraw it.   Practice Direction 14 paragraph 7.2 states:   “In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –   <ol type="a"> <li>The grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;</li> </ol>   <ul> <li>The conduct of the parties, including any conduct which led the party making the admission to do so;</li> </ul>   <ul> <li>The prejudice that may be caused to any person if the admission is withdrawn;</li> </ul>   <ul> <li>The prejudice that may be caused to any person if the application is refused.</li> </ul>   <ul> <li>The stage in the proceedings at which the application to withdraw is made, in particular in relation to the date of a fixed period for trial;</li> </ul>   <ul> <li>The prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and</li> </ul>   <ul> <li>The interests of the administration of justice.”</li> </ul>   Application   Master Sullivan thought that the factors listed in PD 14 are not to be considered in any hierarchy, but ought to be applied to achieve the overriding objective.  The factors were then considered in turn and can be summarised as follows:   <ul> <li>New evidence. The oral evidence given by Professor Winslet was not new but rather a change of opinion. In 2018 he opined aspiration was the cause of death however, he also raised the alternative view. Therefore, the issue was identified from 2018, pre-admission. Master Sullivan noted that the new evidence now obtained by the defendant was evidence in support of the application but not new evidence for the purpose of the test.</li> </ul>   <ul> <li>Conduct. The onus was on the defendant to fully investigate matters prior to making the admission. Especially when the expert had raised an alternative view which could support a defence. The second admission was made to spare a full inquest and to reduce costs. Whilst this is something to be encouraged, we must look at the impact in the round. The Trust will almost always be represented at inquest however a family may not be where an admission has been made and costs may not be recoverable. The claimant then potentially loses an opportunity to fully investigate at inquest. In this case it meant the clinicians were not called to give factual evidence. </li> </ul>   <ul> <li>Prejudice. The prejudice on the claimant who has relied upon this admission and limited their enquiries and investigations as a result was significant. An opportunity to obtain factual evidence had been lost because of the 3 years since the admission. In addition, the defendant’s prejudice in being refused permission to withdraw was mitigated as they were still able to challenge the extent of their losses.</li> </ul>   <ul> <li>Stage in the proceedings. Master Sullivan afforded little weight to the application being at the very start of the civil proceedings. Greater emphasis was placed on the application coming some 5 years post incident, 3 years post admission and after an inquest.</li> </ul>   <ul> <li>Prospects of success. As a result of the two expert reports obtained, the defendant had good prospects of success in respect of 07/03/18. The claimant had not produced any evidence to refute the same. However, the admission was not date specific. The defendant did not provide any evidence dealing with the earlier substandard treatment on 03/03/18.</li> </ul>   <ul> <li>Interests of Justice. The claimant argued that allowing the admission to be withdrawn would result in claimant’s being unable to rely on admissions pre-inquest in case it was later withdrawn. As such claimants would be incurring expenses to fully investigate matters even when an admission has been made. The defendant argued that to allow a trial on an artificial basis, where evidence is against the admission would not be in the interests of justice. Master Sullivan noted this factor was very much connected with conduct (b).</li> </ul>   Decision   The fact the defendant now had a realistic defence was a strong factor in favour of granting permission to withdraw. Master Sullivan felt however that this was outweighed by the conduct and prejudice of the parties on this set of facts. Permission to withdraw the admission was therefore refused.   Conclusions   This case serves as a useful reminder to those considering making a pre-action admission of liability. Generally, pre-action admissions are to be encouraged. They enable parties to narrow down the issues and ensure the case progresses in a proportionate and reasonable manner. However, early admissions in particular will shape the trajectory of a case and inform either parties decision making. Parties are therefore well advised to think long and hard about the evidence and how it may develop before making pre-action admissions.  A party wishing to withdraw from an admission should also act promptly and in a transparent manner to afford themselves the best chance of success.

Nottingham University Hospitals NHS Trust (City Hospital and Queen’s Medical Centre) – Donna Ockenden’s Maternity investigation is under way

Donna Ockenden’s investigation into Nottingham University Hospitals NHS Trust has begun, with the aim of making sure ‘the performance at the trust’s maternity service improves as quickly as possible, and in a way that means those improvements are sustained.’ The report will assess ‘whether cases of concern were adequately investigated by the Trust at the time, if the lessons for learning were appropriate ones, and whether the lessons were indeed learned and acted upon.’   In 2021 it was identified that dozens of grieving families at Nottingham’s City Hospital and Queen’s Medical Centre, had been told that catastrophic maternity care failings leading to death and significant injuries were ‘one offs’.   Investigations by The Independent and Channel 4 suggested a pattern of poor care, inquiries that were delayed and that minimised concerns, and a failure to make changes that could have kept mothers and their newborns safe. The Independent has reported that in some cases notes were missing or never made, and in other cases they were inaccurate.   It is suggested that the Trust has known for some time that the standard of care was not acceptable within the hospitals.   In 2018, the Trust’s board was sent a letter from doctors and midwives working across its two sites, saying that a lack of staff in its maternity units was endangering patient safety.   In 2020 the Care Quality Commission identified ‘several serious concerns’ including poor risk management which they said threatened the safety of mothers and babies. Maternity care was rated as inadequate.    Figures obtained by the BBC found that between 2005-6 and 2020-21 there were 207 claims against the Trust’s maternity services, including 36 for cerebral palsy, 26 for stillbirths and 24 for brain damage. In excess of £110m in damages was awarded over that period.   In April 2022 a thematic report was published, commissioned by the local Clinical Commissioning Group (CQC) and NHS England. It was roundly criticised as being too narrow and not independent enough.   In May 2022 CQC inspectors returned to find some improvements, although stated that further improvements were needed to ensure that the Trust comprehensively manages risks to all people’s safety. Concerns were raised about triage services and an increase in stillbirths.   Donna Ockenden, who has previously led the investigations at Shrewsbury and Telford NHS Trust was appointed in May 2022 to lead the Nottingham investigation. By November 2022 over 700 families and 250 staff members had got in touch.   The Trust has now recognised that more than 1,000 families may have a relevant case for review. Those families have been contacted by the Trust, and others who may have a relevant case are urged to come forward. These are cited as cases from the last 5 years in the following 5 categories:   <ol type="1"><li>Still births;</li><li>Neonatal deaths from 24 weeks gestation that occur up to 28 days of life. The review will also consider neonatal serious incident reports and neonatal never events;</li><li>Babies diagnosed with Hypoxic Ischemic Encephalopathy (Grades 2 and 3) and other significant hypoxic injuries;</li><li>Maternal death up to 42 days postpartum; and</li><li>Severe maternal harm, to include all unexpected admissions to ITU requiring ventilation, major obstetric haemorrhage, peri-partum hysterectomy and other major surgical procedures arising from the maternity episode, eclampsia and clinically significant cases of pulmonary embolus requiring further treatment. </li></ol>   For some of these families, it is claimed that the letters from the Trust were the first time they had been notified that they may have received poor care.   The Trust has stated that it is committed to making necessary and sustainable changes to ensure the safety of women and babies going forward. It is hoped that the report will sit alongside the already published reports from other Trusts and contribute further evidence and recommendations to ensure safety within maternity services nationwide.   The Healthcare Safety Investigation Branch stated that 760 investigations took place in the year to March 2021 involving incidents at 125 NHS Trusts. Their findings highlighted concerns in respect of communication, poor clinical record keeping, a failure to ensure consultant oversight of care in high-risk cases and a vast quantity of guidance produced at a national and local level for midwives that was at times unclear and conflicting.   It is clear now that maternity services across the nation are under intensive scrutiny. Whether Nottingham is the last to undergo independent investigation remains to be seen. What is clear is that the guidance that will come out of the reports will be extremely important in ensuring future care for pregnant women and their babies is safe and consistent.   So, what does this mean for us as lawyers? Whilst the outcome of the enquiry is yet to be determined, it will make for essential reading for representatives for both claimant and defendant. It is hoped that this report will chime with those already published (Shrewsbury, Morcambe) and clearly articulate what the standard of care should have been and give examples of where care fell short. For claimant practitioners this will be invaluable. The analysis of guidance available for midwives and obstetric staff, particularly where this has been contradictory may give rise to further lines of enquiry when making a claim. For defendants this may be crucial to assist in assessing risk and identifying those cases in which early settlement may be appropriate.   The Ockenden report into maternity services in Nottingham University Hospitals NHS Trust is expected to be published in March 2024.   To contact the review team, email <a href="mailto:nottsreview@donnaockenden.com">nottsreview@donnaockenden.com</a> or telephone 01243 786 993.

£1.3 billion held by NHS for clinical negligence claims relating to Covid-19

The Covid-19 pandemic placed widely publicised unprecedented strains on the NHS and its resources.  For many covid and non-covid patients this meant their appointments and treatment being routinely cancelled or delayed. For those patients who were able to be seen by a doctor, appointments were often conducted remotely by telephone or video. There is now a huge backlog of patients, with a reported 7.1 million people in the queue as of September 2022.    The feeling has always been that these sorts of issues would eventually have a meaningful impact on clinical negligence claims. However, the full impact is yet to be seen and is not entirely clear. A lot of individuals are perhaps only just becoming aware of the consequences for them now.       It was therefore interesting to see recent news articles confirm that for 2021/22 the NHS (which already pays out about £2.2 billion each year in compensation and legal fees each year) has set aside a further £1.3 billion in funding in anticipation of a flood of Covid-19 related claims. This is more than double the £500 million that was set aside in 2020/21.    According to the reports £470 million has been held for claims relating directly to the treatment of Covid, £610 million has been held for indirectly related claims such as delayed and missed diagnosis cases (often relating to patients with cancer), and the remaining £220 million has been held for claims relating to the administration of vaccines and other matters.     The obvious conclusion to draw is that the NHS and NHS Resolution are now expecting to see a surge in these types of cases over the coming months.

Parklane Plowden Chambers is the winner of the ‘Diversity and Inclusion Award’ at the Personal Injury Awards 2022

We are delighted to announce that our Personal Injury and Clinical Negligence team has won the "Diversity and Inclusion Award".   The Personal Injury Awards provide a unique opportunity to highlight and celebrate excellence of both individuals and organisations in the personal injury sector. The awards encompass all professionals and key service providers working in personal injury.   The aim of the awards is to identify high standards of practice and to inspire others to emulate the achievements demonstrated by those who have been shortlisted.   To find out more about Parklane Plowden awards history visit this <a href="https://www.parklaneplowden.co.uk/awards/">page</a>.

Can the new Practice Direction 1A be used to justify a split trial?

A brief summary of the decision in Mr AXX (A protected party) v Zajac [2022] EWHC 2463 (KB)   Background   In 2016 the Claimant was knocked off his bike by the Defendant. It was said that he had suffered a traumatic brain injury and continued to suffer from neuropsychiatric symptoms including psychosis, paranoia, and delusion. The Claimant was refusing to take antipsychotic medication and could not be forced to do so without being sectioned, which wasn’t deemed appropriate in the circumstances. The Claimant’s difficulties also meant that he would not fully engage in medical examinations.   The Claimant had partially engaged with his Neuropsychiatrist whilst other experts found it very difficult or were turned away. Without taking his antipsychotics, his prognosis could only be assessed as guarded. The Defendant denied causation of the psychiatric condition in part because of a history of substance abuse. The Claimant’s representatives argued that a case manager and access to independent medical professionals would assist in helping the Claimant to engage with treatment. With causation disputed, interim payments were not forthcoming.   The Issue   The main issue before the court was whether the new vulnerability provisions in Practice Direction 1A could be used to justify ordering a split trial to deal with causation first.     The Claimant argued that a split trial would provide the best prospects of getting the Claimant’s evidence before the court.   The Law   CPR 1.1(2) (a) requires the court to ensure, so far as is practicable, that the parties are on an equal footing and can participate fully in proceedings, and that the parties and witnesses can give their best evidence.   Paragraph 5 of Practice Direction 1A states that when considering whether a factor may adversely affect the ability of a party to participate in proceedings and/or give their best evidence, the court should consider their ability to:     <ol type="a"><li>Understand the proceedings and their role in them.</li><li>Express themselves throughout the proceedings.</li><li>Put their evidence before the court.</li><li>Respond to or comply with any request of the court or do in a timely manner.</li><li>Instruct their representative/s (if any) before, during and after the hearings; and</li><li>Attend any hearing.</li></ol>   Decision   The Judge concluded:   <ul type="a"><li>The vulnerability appeared to impede the Claimant’s participation in proceedings and as such considered PD 1A (5).</li></ul>   <ul><li>The Claimant’s medical condition and refusal to take his medication made understanding proceedings a real obstacle.</li></ul>   <ul><li>At the time of the hearing, the Claimant was too unwell to attend any trial meaning there was no proportionate modification to ensure attendance at any hearing.</li></ul>   <ul><li>The most prominent issues were about putting his evidence before the court and responding to any request of the court at all or in a timely manner.</li></ul>   <ul><li>The judge agreed that to put the evidence before the court included indirectly so, by way of cooperating with experts for the purpose of expert reports.</li></ul>   The judge concluded that “a split trial on causation, leaving possible quantum of damages for later, was a measure which would be proportionate …..because to enable causation to be resolved would stand a real prospect of enabling the Claimant to place his evidence before the court, by making it more likely he could engage with the experts at quantum stage and by also enabling prognosis to be clearer if and when he is able to be medicated….. That in turn was affected by the potential to obtain an interim payment once liability for substantial damages is established (if it is) at a split trial.”   The judge therefore ordered a split trial.   Conclusion   This case is a good illustration of the interplay between the new Practice Direction 1A and the overriding objective.   It serves as a useful reminder for practitioners to identify vulnerable parties at the earliest possible stage.   The case is also one of the first examples of how the new Practice Direction 1A can be used in practice when considering very practical case management decisions.    <a href="https://www.parklaneplowden.co.uk/our-barristers/oliver-bailey/">Oliver Bailey</a> is beginning his specialist civil law pupillage under supervision <a href="https://www.parklaneplowden.co.uk/our-barristers/hylton-armstrong/">Hylton Armstrong</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/">Bronia Hartley. </a>

REPLAY: Consent to Treatment, 16 November 2022

<iframe width="560" height="315" src="https://www.youtube.com/embed/VrUwqCGK7eA" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>     Parklane Plowden 'Law with Lunch' webinars bring you the latest law updates.   Barrister and clinical negligence specialist, <a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/">Howard Elgot</a> discusses 'Consent to Treatment'   Click the video to watch the webinar recording.

Clinical Guidelines on the Test for Breach of Duty

This article will consider two recent cases that consider the impact of clinical guidelines on the test for breach of duty.   O’Brien (administratrix of the estate of John Berry (deceased) v Guy’s and St.Thomas’ NHS Trust, [2022] EWHC 2735 (KB)   The background   B died in 2019. There is no suggestion that his death was as a result of any negligent treatment.   B’s sister brought the claim, asserting that B’s treatment in March 2017 had been negligent. B was prescribed 400mg of the antibiotic gentamicin, which she claimed was a  negligently excessive dose due to B’s lack of effective renal function.    It was agreed that the gentamicin dose had caused B’s ‘ototoxicity’ side effects, leading to balance problems which had required care from the claimant. It was disputed that the drug had also caused B’s hearing loss.   Subject to liability, damages were agreed at £45,000.   The decision   The decision centred around whether the decision to prescribe 400mg of gentamicin had been Bolam negligent.   The claim was dismissed because the prescription of gentamicin (and it’s administration some hours later when the infection had become worse) had not been negligent despite causing B ototoxicity with balance problems and hearing loss.   The Court did not accept the argument that Dr M had simply ‘applied’ the ICU guidelines, nor that he had ‘overlooked B’s condition or extremely limited renal function.’   The Court noted that even if Dr M had applied the ICU guideline without adaptation, the specific circumstances were sufficiently nuanced for him to have done so.   Indeed, the Court concluded that even if the circumstances had been insufficiently nuanced, there were cogent reasons for taking a ‘one size fits all’ approach in ICU.   The Court noted that there were good, logical and indeed cogent reasons for ICU guidelines or practice to depart from national guidelines which turn on creatinine clearance rate/glomerular filtration rate levels.   Dr M departing from the NICE/BNF guideline for B had been justified by good, logical and cogent reasons. His decision to prescribe 400mg of gentamicin to B, despite his improvement in clinical presentation, and the planned step down to Stephen Ward if he had tolerated faster dialysis had been logical, reasonable and in accordance with a responsible body of clinical opinion.   The fact that Dr M had used a flawed guideline did not prove that his decision had been negligent. In adapting the guidelines which were poorly worded (as opposed to blindly applying them) Dr M had made a ‘Bolitho-logical’, Bolam-compliant clinical judgment in accordance with a sound body of practice confirmed by Dr D.   Causation was therefore not proven.   The law   A review of the authorities raised the following points for practitioners:   <ol type="1"><li>Even ‘national’ clinical guidelines were not a substitute for clinical judgment in an individual case.</li><li>It followed that even ‘national’ clinical guidelines were not a substitute for expert evidence about that impugned clinical judgment. However, they might inform expert evidence, e.g. as additional evidence of a Bolam compliant body of practice at a particular time, even if the guideline came later.</li><li>Departure from a national guideline was not necessarily prima facie evidence of negligence, but would be likely to require some explanation, with the nature and detail required being dependant upon the circumstances, including the ‘strength’ of the guideline’s steer. An incomplete or contradictory guideline may require less explanation.</li><li>Compliance with a national guideline might be prima facie inconsistent with negligence if the guideline constituted a Bolam compliant body of opinion. Even if the national guidelines were incomplete or unsatisfactory, compliance with them may still ‘militate against negligence’ depending upon the circumstances. However, the same cannot be said of in house guidelines as a defendant could not set their own Bolam standard of care.</li><li>What ultimately matters are whether the conduct fell within a Bolam compliant practice in the usual way. Clinical guidelines are relevant, and should be considered, but were no substitute (or shortcut) for clinical judgment and expert evidence.</li></ol>   Thorley (by his litigation friend) v Sandwell and West Birmingham NHS Trust [2021] EWHC 2604 (QB)   The background   In February 2002 Graham Thorley was diagnosed with atrial fibrillation and prescribed a daily 3.5mg dose of warfarin.   In March 2005 Mr Thorley suffered chest pain and a coronary angiogram was arranged. On advice, Mr Thorley stopped his daily dose of warfarin for a 6 day period (4 days prior to, and one day post procedure).   The angiogram was uneventful and Mr Thorley was discharged home. He asked about the warfarin dose and it was agreed that he would not restart it until he attended the follow up clinic post procedure. At the clinic, Mr Thorley was advised to restart the drug on a reduced dose of 3mg.   3 days after the angiogram, Mr Thorley suffered an ischaemic stroke resulting in permanent and severe physical and cognitive disability.   Mr Thorley asserted that the Trust was in negligent breach of duty in that the cessation of warfarin should have been limited to the three days prior to the angiogram, and should have been restarted the same day as the procedure at the usual dose of 3.5mg, as set out in the 2004 guidance (Anticoagulation and Surgery (Sandwell)). These breaches caused or materially contributed to the occurrence of the stroke.   The Trust denied the breach, save as to admit that warfarin should have been restarted by no later than the day after the angiogram at the usual dose of 3.5mg. As to causation, the Trust asserted that Mr Thorley would have suffered the stroke in any event.   The decision   The Court rejected the case that those treating the claimant should have applied the provisions within the 2004 document. The existence of the 2004 guidance did not mean that it had been ‘illogical’ to have applied an alternative and responsible practice of a body of competent practitioners. The expert evidence provided no basis to conclude that a three day period of omission of warfarin would have constituted ‘better’ practice when compared to four or five days.   In respect of the decision to wait until the day after the procedure to restart the warfarin, there was a body of competent and responsible practitioners, including Dr C who gave expert evidence on behalf of the Trust, who would have deferred the restart of warfarin until the day after the practice.   In light of these findings, the ‘but for’ case on causation was academic.   The law   It was reiterated that the principle test remained that a doctor was not negligent if he had acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art (as per Bolam).  Further, the Court had to be satisfied that the exponents of the body of opinion relied upon could demonstrate that such an opinion had a logical base (Bolitho).   The Court affirmed that any Judge determining such a case would need to be satisfied that the experts had directed their minds to the comparative risks and benefits, and had reached a defensible conclusion.    Points to take away from both cases   The headline point is clear – the law as set out in Bolam and Bolitho stands.   Whilst clinical guidelines are important and may provide evidence of ‘a reasonable body of medical men’ to satisfy the Bolam test, they are not necessarily determinative. A failure to follow guidelines does not automatically mean that a practitioner has been negligent provided that they are able to evidence that they have relied upon or considered alternative reputable expert advice. In any case, the individual circumstances need to be considered and the risks and benefits carefully weighed up.   In short – following guidelines may amount to a defence (provided that they are considered and not simply applied without any consideration). Not following guidelines will likely require explanation but does not automatically equate to negligence.

R (On the application of Jessica Morahan) v His Majesty’s Assistant coroner for West London and others [2022] EWCA Civ 1410

Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-copnall/">Richard Copnall</a>   The background   Tanya Morahan was 34 years old. Her first contact with mental health services was 10 years earlier, when she was diagnosed with drug induced psychosis. She was later diagnosed with schizophrenia and was treated as an inpatient on several occasions, including a number of detentions under the MHA. She was repeatedly assessed as posing a “high risk” to herself from drug use. At the time of her death, she no longer satisfied the criteria for detention under the MHA and was a voluntary in-patient at a psychiatric unit operated by an NHS trust (“the Trust”). She had a history of illicit drug use but had been abstinent for many months. As a result of her abstinence, her tolerance to drugs had been significantly reduced. She failed to return to the ward as expected, following a visit to her flat. Some (unsuccessful) attempts were made to contact her and the police were alerted. Her body was found 6 days later in her flat. She had died a few days earlier from cocaine and morphine toxicity.   The family invited the coroner to undertake an enquiry that would comply with the Art2 investigatory obligation. The coroner refused and the family sought a judicial review.   In June of last year, the Divisional Court (Popplewell LJ, Garnham J and HHJ Teague KC (the Chief Coroner)), [2021] EWHC 1603 (Admin) found that there was not, even arguably, a substantive Article 2 duty owed and therefore no Art2 investigatory duty arose. The family appealed.   The decision   Following a hearing in early July this year, the Court of Appeal has now handed down its judgment. Lord Burnett, Lord Chief Justice, Nicola Davies and Baker LLJ unanimously upheld the decision of the Divisional Court. Although the result may not come as a great surprise to many practitioners on its facts, the judgment includes some interesting, and perhaps problematic, dicta. It is essential reading for anyone practicing in the coroner’s court.   The law   The court set out the following principles:   <ol type="a"><li>Some categories of death, without more, trigger the investigative duty because the death necessarily gives rise the possibility of a substantive breach. An example of this is the death of a person in state detention.</li><li>The mere fact that the deceased was a voluntary psychiatric in-patient, does not place the death within that automatic category.</li><li>The existence of, and the defendant’s actual or constructive knowledge of, a “real and immediate” risk to life is a pre-requisite to the operational duty arising at all, (rather than being relevant to breach).</li><li>If an operational duty arises, it is to protect against particular risks to life, not all risks.  </li></ol>   The reasoning   The court found: “44 [Evidence that the deceased had lost her tolerance to drugs as a result of abstinence] …does not support the proposition that at the time [she] failed to return to hospital she was at a real and immediate risk of death…as a long-term drug user, she was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs. “Real and immediate risk” as a Strasbourg term of art is much more specific.” (Emphasis added)   In other words: the defendant did not know (and could not reasonably have known) that the deceased was at a “real and immediate risk” of death from recreational drug use. Accordingly, there was no Art2 operational duty to protect the deceased from her cause of death and no (parasitic) Art2 investigatory duty.   The finding that the Trust did not have knowledge of a “real and immediate risk” disposed of the appeal.   A missed opportunity   Having decided the case on its facts (no knowledge of risk) the court chose not to offer any new guidance on how to identify the existence of an Art2 operational duty. The passage above expressly deals with the point in time at which she did not return to the ward. However, was there, for example, a “real and immediate risk” when the deceased took the drugs, or later still when she became unconscious? If a member of the Trust’s staff had been present at that time (and therefore had knowledge), would there have been an Art2 duty to intervene? Unhelpfully, the judgment does not ask or answer this question.   Delay and cost – a shot across the bows?   The court noted that:   <ol type="a"><li>The application (or not) of the Article 2 procedural obligation will not affect the scope of the investigation or the breadth of the inquest;</li><li>Arguments about whether Art2 applies often causes undesirable delay;</li><li>The underlying reason for this is that Legal Aid is generally not available unless Art2 applies;</li><li>“7. An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in Article 2 cases is sometimes overlooked. This has led to lengthy delays in the hearing of inquests, a substantial increase in their length with associated escalation in the cost of involvement in coronial proceedings. These features are undesirable unless necessary to comply with the statutory scheme.”</li></ol>   Although obiter, this is, perhaps, the most important passage in the judgment and may herald a change in coronial and judicial direction? For busy coroners struggling to balance their budgets whilst attempting to clear the Covid backlog, it will surely be seized on as justification for shorter (and cheaper) inquests, culminating in more limited conclusions. Possibly good news for public authorities (and the public purse), but maybe not for the families of the deceased?   Conclusion   Practitioners might take away the following key points:   <ol type="a"><li>The death of a voluntary psychiatric in-patient does not, automatically give rise to an arguable breach of Art2. Whether there is an arguable breach will depend on the particular facts. On the facts of Rabone (where the voluntary patient would have been detained if she had tried to leave), there was an arguable breach, in the present case, there was not.</li><li>Where an operational duty arises, it does so in relation to a specific risk or risks of death, not all risks of death.</li><li>Actual, or constructive knowledge of a “real and immediate risk” of death is a pre-requisite to the duty arising (rather than an issue relating to breach).</li><li>In the present case, there was no actual or constructive knowledge of that risk, so no duty arose.</li><li>The judgment offers no new guidance on how to identify an Art2 operational duty in general, or specifically in relation to a voluntary psychiatric patient.</li><li>The court was critical of the cost and delay of arguments over Art2 inquests and of the increase in length and cost of inquests in response to the requirements of Art2. This may herald a move to shorter and cheaper inquests?</li></ol>

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