Introduction
In medical negligence, fatal claims arising from the suicide of a loved one are, for the most part, among the most difficult to succeed in for a pursuer. However, the recent decision of Paterson & Ors v Lanarkshire Health Board has bucked this trend with the help of Elizabeth Rose, Founder of L&M Medilaw.
Facts & Circumstances
On 10th October 2016, Mrs Lynette Giblen died by suicide. She had an extensive history of mental health difficulties over the previous 10 years with a diagnosis of emotionally unstable personality disorder (“EUPD”). In March 2016, Lynette’s condition fluctuated significantly and required inpatient admission to hospital on four occasions over the summer of 2016. On 16th September 2016, Lynette was reviewed by Dr Vusikala during an inpatient ward review. He discharged Lynette with a follow-up appointment to be arranged, which was later set for 11th October 2016, but without support or care until then. Thereafter, her condition deteriorated, and she contacted numerous GPs and other professionals expressing delusional beliefs. By 9th October 2016, Lynette’s deterioration culminated in her attempting to take her own life. Despite attempts to resuscitate her, Lynette died the next day.
Evidence and Submissions
The core of the case concerned the actions of Dr Vusikala on 16th September 2016. Dr Vusikala accepted that he had full responsibility for Lynette’s discharge. He had anticipated that there would be a CPN follow-up in the community within one or two weeks. The case had been passed to CPN Hume who, following consultation with Dr Vusikala, arranged an appointment with Lynette for 11th October 2016. This date was set due to “caseload pressure”. Dr Vusikala could not explain why he did not advise CPN Hume to bring the appointment forward given Lynette’s condition, extensive illness history, and the knowledge that she was discharged without support. He accepted that in the circumstances, a follow-up 24 days post-discharge was not usual practice. Further evidence showed that the discharge letter to Lynette’s GP was not typed until 4th October 2016. Therefore, the GPs she had contacted after discharge had no knowledge of her care situation at the time. Dr Vusikala admitted that he did not take any further steps to ensure Lynette had follow-up in the community post-discharge.
Expert Evidence
The pursuers led Dr Charles Musters, Consultant Psychiatrist. He confirmed that suicidality was a common symptom in EUPD and that treatment involves short-term safety planning and long-term psychological therapy. He considered that Lynette was as sick as anyone could be and it was not reasonable to suppose that any improvement would last. The 24-day wait to attend the CPN appointment was “wildly out of keeping” with usual practice in the circumstances. The treating doctors had been faced with a pattern of repeated crises admissions and then an abrupt deterioration. It was also likely she would stop taking her medication having previously questioned her diagnosis. A follow-up within 7 days was appropriate in this case and was recommended in the NICE Guidelines at the time. He considered that Lynette’s condition had deteriorated within 7 days, and so had she been seen, a more intensive care plan would have been assembled. Her suicide was associated with her relapse and so appropriate care would likely have stopped this especially given her previous history of responding to treatment with periods of stability.
The defenders led Dr Nabila Muzaffar, Consultant Psychiatrist. In her view, there was no negligence in Lynette’s case. She considered that the correct procedures were followed by Dr Vusikala (e.g. Multi-disciplinary Team meeting; referral to CPN). She agreed that suicidality was a symptom of EUPD; that there was an elevated risk of suicide in this case; and that deterioration was foreseeable but contended that it could not be predicted when the patient would commit suicide. Lynette’s condition deteriorated, she would have come to the attention of services, albeit this was not a substitute for a comprehensive care plan. However, she emphasised that the patient has a responsibility for her own safety and wellbeing.
Decision
Lord Arthurson considered Dr Vusikala’s discharge plan to be “simply not good enough”. Dr Vusikala plainly knew that Lynette was being discharged into the community without support or care until 11th October 2016. She was foreseeably at risk of deterioration, and this had not been accounted for upon discharge. Lynette had several admissions and discharges since March 2016 and it was uncontroversial that there was an elevated risk of suicide in a case as severe as hers. He accepted Dr Musters’ evidence that a follow-up within seven days was the required standard in the circumstances. The pursuers had therefore established negligence.
On the evidence, he held that Lyentte’s condition had significantly deteriorated after discharge on 16th September 2016 with “obvious signs of delusional beliefs”. Since suicidality was a predictable outcome of this deterioration, had Lynette’s improvement prior to discharge been maintained with appropriate psychiatric input and support (which had previously worked in restoring and maintaining stability), her relapse would on balance have been evaded. He considered that a straightforward, common-sense approach to causation was appropriate here and concluded, with reference to Andrews v Greater Glasgow Health Board 2019 SLT 727 (a case where Elizabeth Rose represented the pursuer), that Lynette’s suicide was a “direct consequence” of the deterioration of her psychiatric condition after discharge. Causation was therefore also established.
With respect to damages, his Lordship awarded the first pursuer £100,000, considering that she had suffered significant anxiety about her daughter’s condition prior to death and whose grief, distress and sorrow had manifested in an “extreme physical way”. Lynette’s two siblings had a distant relationship with her and so were awarded £5,000 each. Lastly, Lynette’s two children were awarded £70,000 each.
Comments
The unpredictable nature of mental health means that demonstrating whether negligence caused a particular psychiatric harm or suicide is fraught with complications. The argument is usually that there is no way to know, let alone control, how or when a patient may suffer worsening symptoms or attempt suicide due to negligent treatment. How should the law address this question? Should it assess the role of negligence in these outcomes in cold and clinical detail? Or is a common-sense approach merited? Normally, the determination of the cause of an injury or death in medical negligence claims often lead agents down the meandering paths of complex investigation which inevitably lead to parties splitting hairs. But sometimes, as per the Law of Parsimony (not an actual legal doctrine …), the simplest explanation is usually the best one; and so was the case in Paterson & Ors v Lanarkshire Health Board.
Lord Arthurson’s decision could well be significant with respect to claims for suicide. Defenders will almost always argue that the suicide could not be prevented because of its inherent unpredictability. While that is true for many cases, what Paterson confirms is that if suicide is a foreseeable outcome of the patient’s condition if not treated appropriately, then causation can be met. To be clear, this does not mean that all cases of suicide now have increased prospects of success, but it puts it on par with physical injuries which are often more predictable.
What must be commended, regardless of whether you are a pursuer or defender, is Lord Arthurson’s humane approach to the case. Mental health, particularly suicidality, remains a somewhat taboo subject in society, although fortunately it seems to be improving. It is refreshing to see the judiciary handle such a tragic case in this manner and it will no doubt allow pursuers to feel emboldened to make a claim without shame or resignation that an “out-of-touch” judge will simply chuck it out. It is worth remembering that not long ago in Hughes & Ors v Turning Point Scotland [2019] CSOH 42 the court held that the deceased, who was addicted to alcohol and died of cardiac arrest due to withdrawal, had contributed to his death through his continued consumption of alcohol knowing what harm it caused and would continue to cause. This was despite the deceased having attended the defenders’ premises for help to reduce withdrawal symptoms. A similar argument could easily have been made with respect to suicide in Paterson. Luckily, it was not, and it is hoped that the Scottish judiciary will uphold this position in the future and challenge societal taboos over important issues by taking a pragmatic, but empathetic approach.