In this post Ted Cunningham of 12KBW examines the recent High Court decision in NILUJAN RAJATHEEPAN v BARKING, HAVERING AND REDBRIDGE NHS FOUNDATION TRUST [2018] EWHC 716 (QB). The case highlights the importance of proper and effective communication between medical professionals and patients who do not have a good grasp of English. In circumstances where medical professionals believe that they have communicated effectively, that belief must be objectively reasonable.
The facts
This unfortunate case concerns the neonatal care provided to the Claimant and his mother, a 21-year-old Sri Lankan refugee who, at the time of the alleged negligence, spoke only a few words of English. On the evening of 16 July 2009, 9 days after his due date, the Claimant was delivered via emergency caesarean section. He appeared to be in a good condition following birth, and there were no concerns raised at the time.
The following day, 17 July 2009, the Claimant was discharged by the neonatal team to the maternity ward. On 18 July 2009, it was accepted by the Court that he started to cry, and continued to do so throughout the day. His mother gave clear evidence that she was concerned about this, and that she used a buzzer to contact midwives on two separate occasions, yet none showed up.
The Claimant and his mother were seen by a Midwife Oriakhi. A discharge interview was conducted that afternoon and the Claimant was finally discharged at 10pm on 18 July (the earliest time his father could collect his young family). Upon the Claimant’s father arriving, he communicated to the midwives his wife’s concern about the Claimant’s continued crying and asked that he remain in hospital for a further day. This request was denied, and the father was informed that it was normal for new-born children to cry.
On the following day, the Claimant and his mother were visited by a community midwife at approximately 1pm. The Claimant was found to be lethargic. It was quickly established that he had not been fed since 9pm the previous evening, and he was taken back to the hospital. Upon return to hospital, the Claimant was described as unresponsive and floppy with reported seizures. He was in a hypoglycaemic state, which tragically caused catastrophic brain injuries resulting in cerebral palsy with severely impaired physical and cognitive function.
The parties’ experts agreed the following:
1) The Claimant’s injuries were caused by poor feeding;
2) Had the Claimant not been discharged on 18 July 2009, his injuries would likely have been avoided;
3) If the Claimant’s mother and the midwives were not able to communicate effectively with each other, that would amount to a breach of the Defendant’s duty of care.
The Defendant trust maintained that the Claimant’s post-natal care before he left the hospital was routine, appropriate and that no breach of duty occurred.
The issues for the Court were, effectively, as follows:
1) Was the Claimant’s poor feeding attributable to the Defendant’s failure effectively to advise his mother on proper feeding techniques, and what to do if there was poor feeding, given her very limited understanding of English?
2) Was it wrong to discharge the Claimant on 18th July 2009?
His Honour Judge McKenna, sitting as Deputy High Court Judge, effectively answered both of the above questions in the affirmative.
During the trial, the Defendant relied upon the written and oral evidence of the many midwives, nurses and doctors involved. Given the passage of time, the Defendant’s witnesses had little or no memory of the events in question, and relied heavily on the contemporaneous records. However, there was a near uniform explanation from each individual involved that they reasonably believed that Mrs Rajatheepan understood the advice she was being given, despite the admitted complexity of that information. Where difficulties arose, it was suggested that the midwives used hand gestures and the like to convey the relevant instruction. Crucially, at least in the eyes of the Defendant, Mrs Rajatheepan never explicitly said that she did not understand what was being told.
The decision
The Judge was not persuaded by this circular argument. Rather, he found that the reason why the Claimant’s mother did not say that she did not understand the advice was because she was unable to communicate her inability to understand. In contrast to the repeated references to language difficulties within the Claimant’s mother’s ante and neonatal records, none of the attending midwives raised any concerns regarding Mrs Rajatheepan’s understanding of English.
The Learned Judge concluded as follows [at 108]:
The reality is no one had ever in fact given Mrs Rajatheepan a clear and understandable explanation of the importance of feeding still less as to how she should respond if she had concerns. Because of the language barrier, Mrs Rajatheepan had been unable to communicate her concerns to hospital staff and when those concerns were communicated on the parent’s behalf by [a friend of the family] they were not acted upon. Given the time at which this review should have taken place, on the balance of probabilities, I conclude that if it had taken place as it should have done the Claimant and his mother would have been kept in hospital overnight and the difficulties with feeding would have become apparent and the injuries in fact suffered would have been avoided.
Judgment was therefore given in favour of the Claimant, with damages to be assessed.
Comment
Clearly, communicating often complex concepts in a multi-cultural, multi-language setting without the assistance of permanent on-hand translators will sometimes be a difficult task. Indeed, it might be argued that this case creates a further considerable practical burden on an already overstretched NHS workforce. However, this case rightly underlines the fundamental principle that all medical advice must be effectively communicated to patients. Moreover, it confirms that a medical practitioner’s belief that they have communicated properly must be reasonable.
In the instant case, there existed a ‘language line’ on every ward in the hospital. This device was a phone into which a relevant code could be entered for the required language, thereby enabling a three-way conversation between staff, patient and interpreter. This language line was not used by the staff in this case. At para 106, the Learned Judge made specific reference to the availability of this language line and the fact that it should have been used as an alternative to an interpreter when there was no friend on hand to translate the necessary information. In circumstances where such services are available, using them is likely to be considered good practice when language issues arise. In any event, relying on hand gestures to explain complex medical information should serve as a red-flag when objectively assessing the effectiveness of such communication.
Clinical Negligence Law 