Isaac Hogarth of 12 King’s Bench Walk, instructed by Alisha Puri of Irwin Mitchell successfully represented the claimant (‘C’) in his claim against Essex Partnership University NHS Foundation Trust (‘D’), weeks before the start of a trial on causation and quantum. The settlement of £600,000 was subsequently approved by Deputy High Court Judge Clare Padley.
The facts
C had a long-standing history of schizophrenia. This prevented him from working, but he was able to live independently, albeit with some support from his sister (who acted as his litigation friend in the proceedings). His schizophrenia was well controlled with clozapine.
In March 2016, he became unwell with what was ultimately found to be interstitial nephritis. As a result, and to prevent potential kidney damage, his clozapine was discontinued temporarily, which led to an exacerbation in his pre-existing schizophrenia.
He recovered, and his clozapine was restarted after approximately two weeks. He suffered an infection several days later, which was accompanied by psychosis, agitation and delirium, and again required his clozapine to be discontinued for a period of two weeks before then being restarted.
In April 2016, while still an inpatient at a hospital owned and operated by D, he suffered a scald to his foot. A GP trainee who was working in a psychiatry placement negligently diagnosed foot cellulitis and query urinary tract infection, and prescribed an antibiotic, flucloxacillin.
Several weeks later, C developed loose stools and backache, and was unwell with a soft, distended abdomen. The laboratory confirmed the presence of c.difficile antigen and toxin. A CT showed severe colitis and possible toxic megacolon, a life-threatening complication where the colon expands, stops working, and may rupture.
C underwent colectomy to avoid perforation, and an end ileostomy was constructed.
C had a slow post-operative recovery, and required a lengthy hospital admission, during which time he was unable to take his clozapine for a period of approximately 10 months.
While an in-patient on a psychiatric ward (operated by D), C was assaulted by another patient, and suffered a fracture to his hip, which required hemi-arthroplasty. He had long-term hip pain, and mobility issues, and would require further hip surgery.
He suffered a severe deterioration in his previously stable psychiatric condition, and was eventually discharged to a residential care home. His condition will not improve, and there is a substantial risk of a future deterioration. In particular, in the event of an episode of severe dehydration (which given his high output stoma was a substantial risk), his clozapine would have to be stopped for a prolonged period, which would risk another serious deterioration.
He was assessed as lacking capacity to litigate due to reduced levels of motivation, reduced levels of attention and concentration.
Causation
It was agreed between the parties that the negligent prescription of flucloxacillin materially contributed to C developing c.difficile colitis, toxic megacolon and the need for total colectomy and permanent ileostomy.
There was significant disagreement, however, over causation of the deterioration in his psychiatric condition and the hip fracture.
D argued that the deterioration had already taken place due to the two short periods off clozapine prior to the index events, whereas C’s case was that but for the subsequent negligence, his condition would have stabilised and he would have returned to independent living.
D argued that the hip fracture was a novus actus interveniens and was unrelated to its negligence. C argued that an assault is the reasonably foreseeable consequence of admission to a psychiatric ward which was required as a result of D’s negligence.
Quantum arguments
In addition to the above arguments on causation, D argued that C should not be entitled to claim for future care, case management or accommodation costs given that he received funding under section 117 of the Mental Health Act 1983 and Continuing Healthcare (CHC) funding. Further, C was happy where he was, and there was no suggestion that based on his current condition, his placement was unsuitable for his needs.
C’s case was that although he was happy with his present placement, that he was at significant risk of a future deterioration and that it was likely within five years that he would struggle to maintain his own stoma, at which point he would require additional nursing care. Even though he had some assistance in stoma care in his current care home, the CQC status of that home was “care home without nursing”, and as such, there was no regulatory requirement for it to provide nursing, such that with any physical or psychiatric deterioration, C would probably need to be rehoused.
His case was further that:
- Even if he is eligible for section 117 MHA funding, that does prevent him, where the statutory provision does not meet (or would not in the future meet) his reasonable needs, or given him sufficient flexibility from claiming privately (Tinsley v Sarkar [2005] EWHC 192)
- Per the CA in Crofton v NHS Litigation Authority [2007] EWCA Civ 71: “[i]t is by no means far-fetched to suggest that, at some time in the future, the ministerial policy of ring-fencing personal injury damages and/or the council’s approach to that policy will change”, which would put C at risk in relation to any means-tested statutory provision.
- Per the CA in Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145, a claimant is entitled as of right to pursue a claim against a tortfeasor rather than to rely on the statutory obligations of a public authority to provide them with care and accommodation, and it is reasonable for a claimant to prefer self-funding to provision at public expense, subject to the need to avoid double recovery
- Where the care regime under section 117 is inadequate, the possibility that a claimant will continue to take advantage of that provision is not a basis for refusing to make an award for privately funded care or accommodation (Martin v Salford Royal NHS Foundation Trust [2021] EWHC 3058 (QB))
All future care and accommodation claims were made on the basis of percentage chance of a deterioration, based on estimates provided by the experts in gastroenterology, psychiatry and care. It was also necessary to discount for uncertain, but significantly reduced, life expectancy.
There was also an argument about the recoverability of Court of Protection costs given that C would have lacked capacity to manage a large sum of money in any event. The argument made on C’s behalf was that but for the index event, he would not have had a large sum of money to invest and manage, and as such, the costs flowed from the negligence.
Settlement
In recognition of litigation risk on both sides on issues of causation and quantum, a commercial settlement of £600,000 was reached at a video JSM.
This was subsequently approved by Deputy High Court Judge Clare Padley, weeks before the trial was due to take place.
11th April 2022.
Isaac Hogarth
Clinical Negligence Law 