It is widely acknowledged that medical negligence cases can often be challenging to pursue, due to the requirement to prove to the Court not only that the patient has been failed in the duty of care owed to them, but also that the - often - tragic outcome could have been avoided if only they had received the care they were entitled to.
Background of Case
These questions are of particular relevance to the decision which has recently been issued by the Court of Session Outer House, in the case of Paterson & Others v Lanarkshire Health Board. The background to this case is the tragic death of Mrs Lynette Giblen on 10 October 2016. Mrs Giblen had a history of mental health difficulties, including previous suicide attempts and other instances of self-harm, over a prolonged period. She also had a diagnosis of emotionally unstable personality disorder.
Her admission to Hairmyres Hospital in September 2016 was the culmination of a number of admissions to psychiatric treatment centres over the months prior, including consultation with her GP, in-patient treatment over a number of days and assistance from the Community Mental Health Team, while living with her mother. Her final admission for psychiatric care in September 2016 was made under a short term detention certificate and she required constant observation. The ward staff also considered admission to a psychiatric intensive care unit, but the decision was ultimately taken to allow her to remain on the general psychiatric care ward at that time.
Her discharge on 19 September 2016 resulted in an allocation of her case to a Community Psychiatric Nurse. Evidence was provided to the Court that she had a series of interactions with this nurse and additionally her own GP and other telephone support services for psychiatric issues following discharge. On 21 September 2016 she had an in-person appointment with her GP at Glebe Medical Practice in Lesmahagow and it was recorded at that time that she was upset and agitated. She was advised to stay on her medication, though she indicated to him that she did not agree with her diagnosis of EUPD. She had a further consultation in-person with the GP, Dr Kerr, on 28 September 2016. It was noted that he had been trained in mental health, but not in relation to risk of self-harm. The GP sent a referral letter to the Clydesdale Resource Network on 29 September 2016 which was received on 3 October 2016. This referral indicated that there was indeed a risk of self-harm or suicide. Dr Kerr however later gave evidence to the effect that he considered her more at risk of self-harm than suicide and had she been at risk of the latter he would have sent her to hospital immediately rather than arranging a referral in the way that he did.
On 3 October 2016 she attended a final GP appointment with another practitioner at the GP surgery. This GP confirmed that he had no specialist training in mental health. This GP later advised that there were no specific signs at the consultation, such as suicidal ideations, which would have caused him to refer her to a specialist. He did acknowledge however, as part of the evidence in the case, that he did not ask her explicitly about this. On 5 October 2016 Mrs Giblen left a message with the Community Mental Health Team, but received no response. On 9 October 2016 she attempted to take her own life by hanging and ultimately died on 10 October 2016 in the intensive care unit of the Queen Elizabeth University Hospital in Glasgow.
Evidence and Decision
Expert evidence was led about the mental state of Mrs Giblen and the care plan that was put in place for her following her final discharge from hospital in September 2016. The evidence established that Mrs Giblen had clearly struggled following that final discharge and that the care plan in many respects had been lacking. In his judgement, Lord Arthurson opined that the care she had received following discharge had been "not good enough" and criticised in particular that Mrs Giblen had been expected to wait 24 days before her care plan would begin following discharge. Expert Consultant Psychiatrist Dr Charles Musters provided evidence to the Court to the effect that intensive consistent support was required in order to mitigate the risk of self-harm and suicide and this was not only not provided, but it did not appear to have even been sufficiently considered by the defenders.
The Consultant Psychiatrist employed by the defenders ultimately accepted, when giving evidence, that the plan he had put in place simply did not reflect the need for Mrs Giblen to have care at the higher end given her particular background and the severity of her psychiatric issues. He also accepted that he had made no record of a discussion with the Community Practice Nurse during the time after which Mrs Giblen had been discharged from the hospital and was being supported in the community. He accepted, when pressed, that there was no clinical rationale for failing to organise a review appointment earlier and indeed for the significant error in not intervening more swiftly following information passed on from the Community Practice Nurse about the situation of Mrs Giblen and how she was progressing in the community.
In this case, the Court awarded the sum of £100,000 to the mother of Mrs Giblen and £70,000 to the two children of Mrs Giblen and to her siblings awards of £5,000 each was made.
Conclusions and Lessons Learned
This case illustrates the importance of being able to establish, through clear evidence, the requirement for a link to be made between the alleged sub-standard care and the ultimate outcome in any case. It is accepted and acknowledged that some patients will become so acutely unwell in circumstances so unknown to those treating them that their suicide or self-harm will simply be unavoidable. However, in circumstances where the risks are known, the patient has been monitored and their health is deteriorating, the lack of any intervention at that stage must be justified and based on appropriate clinical protocols and guidance. In the absence of that, a Court would be entitled to uphold the case on breach of duty and also agree that the link between those breaches and the tragic outcome in the case has been established.
The lesson for any pursuer when reading the decision in this case is to be both clear and specific about the nature of the allegations being made and how each step (or indeed misstep) by those entrusted with caring for patients contributed or directly led to an adverse outcome for them. For defenders, the onus must simply be on ensuring that both clinical protocols are followed and also that a common sense practical approach is taken to situations in which patients under the care of doctors and other medical professionals are exhibiting signs of deterioration and being conscious of what that deterioration may ultimately lead to.
The Court afforded particular reference to the importance of Mrs Giblen to her loved ones and to the person that she was far beyond any psychiatric illness she endured for much of her life. She was a "beautiful singer, a gifted photographer, a loving mother and a most affectionate and dutiful daughter to her beloved mother". Far beyond the obligation of those representing pursuers to establish the specific faults or negligence which led to the death of any patient, it can never be forgotten that behind the evidence and beyond the legal tests applied by any Court, there is profound suffering and loss for the family and friends of the deceased. A civil action such as this can go some way towards addressing the future financial security of those left behind following these tragic circumstances, but it will never come close to mitigating or accounting for the enormous loss at the heart of the case and the Court, particularly so on this occasion, was clear in addressing that reality.
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