Fundamental dishonesty and clinical negligence: a fraud on the taxpayer?

Here, Charlotte Reynolds discusses some recent clinical negligence cases involving allegations of fundamental dishonesty, and some key points that can be taken from these.

Section 57 of the Criminal Justice and Courts Act 2015 is now an established feature of personal injury litigation. But, until recently, the number of reported cases concerning allegations of dishonesty in a clinical negligence context were limited. The three recent cases of Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290, Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611, and Iddon v Warner [2021] 3 WLUK 432 have changed that.

Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290

Mrs Brint was 69 years old when she suffered an extravasation injury following a CT scan with contrast. Her case was that the treatment was negligent and that to proceed with the scan without her consent amounted to an assault. She alleged that as a result she had developed Complex Regional Pain Syndrome, Post Traumatic Stress Disorder and clinical depression causing her significant disability as a result of which she required assistance with many aspects of daily living and single storey accommodation.

Liability, causation, and quantum were all in dispute. In addition, the Trust alleged dishonesty on three broad grounds: 1) Her suggestion that she was fit, healthy and active before the incident was inconsistent with her extensive medical history and the fact that she had been in receipt of the highest rate of Disability Living Allowance since 1992; 2) Her evidence as to what happened at the hospital was in many respects at odds with the agreed expert evidence and in other respects was inherently improbable; and 3) Her description of the extent of her disability after the incident was exaggerated.

Having found Mrs Brint to be an unreliable witness, the claim failed on both breach of duty and causation. On the appropriate diagnosis the court said this: ‘This is a complex and difficult issue. On the totality of the evidence, I am persuaded that the claimant probably does suffer from a degree of CRPS but with significant psychological overlay which probably includes a somatic element…It is likely that there was an element of somatisation before December 2013 and it is likely in my judgment that that has become a component of her presentation after December 2013.’

The court then had to go on to consider the issue of dishonesty and found that ‘despite the overall unreliability of her evidence, she genuinely believes that the case she advances is true and I am not persuaded that she has been dishonest’. Paragraph 101 of the judgment provides detailed reasoning for that conclusion, summarised as follows:

1. The allegation came extremely late in the litigation and there was nothing to justify the change of approach.
2. None of the experts in the case and none of the claimant’s treating clinicians had accused her of being dishonest in her presentation, until the late raising of the possibility of factitious disorder.
3. She did not appear to be motivated by the prospect of financial gain.
4. She made prompt and consistent complaints about her treatment and it is highly unlikely that she invented those complaints within such a short period of time and remained so consistent about them thereafter if they were pure invention. She genuinely believes that what she says happened in fact happened.
5. She was unreliable in her evidence of her medical history but the court accepted that her description of herself as being ‘fit healthy and active’ accorded with her perception of the effect of the conditions on her within the limitations of her health.
6. Her failure to be fully frank from the outset about her receipt of Disability Living Allowance was of more concern but the court accepted her evidence that she thought it irrelevant because it related to her back problem about which she was not making a direct claim.
7. Failing to give a ‘satisfactory account’ of her benefits claim was very different to giving a false account.
8. Her evidence had to be viewed against the background of her psychological profile.
9. Overall, the impression of her as a witness was that she was not a dishonest person. She had a genuine and significant disability which she firmly believed has been caused by the index events.

Iddon v Warner [2021] 3 WLUK 432

The court reached a different conclusion on the facts of Iddon and found Mrs Iddon to be fundamentally dishonest in various respects.

The underlying claim was based upon a missed diagnosis of breast cancer as a result of which Mrs Iddon underwent an avoidable mastectomy and auxiliary dissection. Breach of duty was admitted.

The claim was advanced on the basis that as a result she suffered from chronic and debilitating pain and fatigue and was severely disabled and unable to participate in the sporting activities that she had previously.  Her account was contained within the pleadings, her witness statement, and had been asserted to the various medical experts.

The Defendant served evidence that Mrs Iddon had returned to participating in various sporting events and indeed the court ultimately found that she had trained for and performed in a number of endurance events during the relevant period and concealed this from the medical experts. Instead of coming clean, she served a supplemental witness statement in which she denied training or participating in three open water swims when in fact she had done so. She also recruited her husband and a friend to put forward a false account of her sporting activities.

When confronted with her false account, she also advanced the excuse that she had previously lied because she was anxious about being prosecuted for possession of cannabis oil, when, as the court found, she had never possessed cannabis oil. She also falsely claimed that it was only by using hemp oil and cannabis oil that she was able to participate in the sporting activities in question. She continued to advance her account that she was in chronic and debilitating pain when she was in the witness box. The court found that the apology that she had offered late in the day was only because she had been caught out in dishonesty and was not as a result of genuine remorse.

Mrs Iddon had verified with a statement of truth a schedule of loss in which, by reason of her alleged chronic pain, she sought damages exceeding £900,000. The court found that she did not suffer from chronic pain and fatigue of any significance and concluded that the genuine element of the claim amounted to just over £70,000. The court went on to find her fundamentally dishonest and dismissed the claim.

Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611

The case of Metcalf is significant not only for its clinical negligence context but also because of the value of the claim advanced. The underlying claim involved a delayed diagnosis of cauda equina syndrome. Breach of duty was admitted and the claim was pleaded at £5.7 million.

It was claimed that Mrs Metcalf could not walk unaided, was unable to drive, and, among other things, now took relatively few holidays as a result of her functional impairment. Investigations on behalf of the Trust discovered that in a 7 month period she had taken trips to Fuerteventura, France, Spain, Tenerife and Thailand without any apparent mobility difficulties. Although she initially persisted in her dishonesty, Mrs Metcalf subsequently admitted to exaggerating her physical disabilities and infirmities and agreed to the dismissal of the claim and repayment of an interim payment of £75,000. It was noted that she had lied to a total of 13 different experts on 19 different occasions and the true value of the claim was agreed to be around £350,000.

The matter came before Mr Justice Griffiths for committal for contempt of court. He found that Mrs Metcalf had acted not only deliberately but systematically. For example, she had used a wheelchair and walking stick when in or near the premises of experts. He highlighted that this was not a temporary loss of judgment but a course of conduct sustained relentlessly over a period of years. He specifically highlighted that ‘her dishonesty, had it not been discovered, would have extracted millions of pounds from the Trust and, through them, from the funding of the National Health Service.’ Having made various reductions to reflect her personal circumstances and early admissions, Mrs Metcalf was sentenced to a 6 month custodial term.

Discussion

Cases involving allegations of fundamental dishonesty continue to be fact-sensitive. However, taken together, a number of general points can be drawn from the cases of Brint, Iddon and Metcalf:

1. Fundamental dishonesty is now well and truly as much a feature of clinical negligence practice as it is of personal injury litigation more generally;
2. The fact that the defendant in a clinical negligence claim will usually be an NHS Trust appears to be an aggravating factor, and fundamental dishonesty in this context risks being viewed as a fraud on the taxpayer;
3. The threshold for proving exaggeration amounting to fundamental dishonesty remains high and will require strong evidence (usually surveillance and/or social media) demonstrating a level of function that is clearly inconsistent with the level of functional impairment asserted to the experts and/or in a signed witness statement or statement of case;
4. It is not dishonest for a Claimant with a significant disability to believe that the index events have caused that disability, even if that belief is found to be incorrect and the claim thereby has the appearance of being substantially inflated;
5. The psychological profile of a Claimant (and in particular the possible presence of somatisation) will be relevant in distinguishing those cases in which a Claimant knowingly exaggerates the presentation of the claim and those in which a mistaken attribution is part of a somatic disorder;
6. As such, it is important that the medical evidence deals properly with this aspect, whether on behalf of a claimant with a view to explaining what appears to be exaggeration or amplification of symptoms, or on behalf of a defendant with a view to excluding somatisation as a potential explanation;
7. When presented with what appears to be clear evidence of exaggeration, claimants, and those advising them, ought to think carefully as to how to respond. Claimants that double down on their version of events are more likely to be found to be have acted knowingly if that version of events is later found to be an exaggeration.