NHS Trust Not Negligent In Psychiatric Care Case

The case of Traylor and Traylor v Kent and Medway NHS Social Care Partnership Trust ([2022] EWHC 260 (QB)

The case of Traylor and Traylor v Kent and Medway NHS Social Care Partnership Trust ( [2022] EWHC 260 (QB) involved a claim for negligence and failure to take positive steps to protect rights under art. 2 and art.3 of the European Convention on Human Rights (ECHR).

 

Background to the decision

On 8 February 2015, Marc Traylor (T) (the first Claimant) suffered a psychotic episode. He threatened to stab his daughter, Kitanna Traylor (K) (the second Claimant). In the early hours of 9 February, T stabbed K several times, causing serious injuries. T was shot three times by armed police officers. He was subsequently prosecuted for attempted murder. The jury found T not guilty by reason of insanity.

T brought a claim against Kent and Medway NHS Social Care Partnership Trust (the Trust). He argued that the Trust was negligent in its treatment of his mental illness, and this caused him to stab and injure K. The Trust accepted that a decision on 3 December 2014 to discharge T from secondary psychiatric care “was not handled correctly” but denied other allegations of negligence.

The Trust defended the claim on the following grounds:

  • Any breach of duty did not cause the stabbing and injuries. The cause of those events was T’s decision to stop taking his medication.
  • T voluntarily accepted the risk that he might act violently if he stopped taking his medication against medical advice.
  • T’s claim must fail because the events on 9 February 2015 resulted from his own criminal acts.
  • Alternatively, any damages should be reduced on account of contributory negligence caused by T ceasing his medication.

K made a separate claim against the Trust on the grounds that it failed to take positive steps to protect her right to life and her right not to be subject to inhuman or degrading treatment, and that these failings resulted in the stabbing and her injuries. The Trust argued that it was not required to take steps to protect K’s Convention rights, and that in any event it acted compatibly with those rights. The Trust also stated that even if it did act incompatibly with her rights, this was not the cause of the events of 9 February 2015. Accordingly, any damages should be limited to an award for nonpecuniary loss to reflect a breach of her Convention rights, rather than compensation for the injuries she sustained.

The expert evidence

The Claimants relied on the expert evidence of psychiatrists Dr Stephen Ginn (Dr G). The Trust instructed Dr Boris Iankov (Dr I).

In written reports and joint statements, both Dr G and Dr I agreed that there was a risk T would not take his medication when it was switched from being delivered by injection to taking it by mouth on 4 June 2014. They also agreed that this would increase the risk of a psychotic episode and result in T and his family members being put at risk of being harmed. If his medication had continued to be administered by injection, it is unlikely T would have relapsed.

The expert witnesses also agreed there was a lack of a written risk assessment relating to switching the delivery of T’s medication from injection to oral delivery and that there should have been monthly monitoring visits in place to check the medication was being taken.

Finally, both Dr G and Dr I agreed that T had capacity so there was no need to comment on whether a capacity assessment should have been conducted.

In his written evidence, Dr G stated that the decision to stop depot injections and replace them with oral medication was a breach of duty and as a minimum, this decision should have been deferred to allow an appropriate risk assessment plan to be formulated. However, Dr I considered that because T had capacity, he was entitled to decide how to take his medication and he was not prepared to continue with injections. What was required; therefore, was the agreement between clinician and patient of a mutually agreeable plan, and this is what happened. Dr I also stated, in disagreement with Dr G, that a reasonable body of psychiatrists would have discharged Marc Traylor from the CTO.

The judgment

All claims against the Trust were dismissed. Although there was no record of a risk assessment, on the balance of probabilities, one had been performed as risk assessment is integral to the practice of psychiatry and the consultant was well versed in the background, having had a handover meeting with MT’s previous consultant.  In addition, the risks of stopping injections (which were more effective than tablets) were obvious.

Turning to the issue of causation, even if T’s doctor had not advised T on the continuation of the depot injection it would have made no difference to the eventual outcome (the attack and injuries) because T would have refused to take his medication regardless.

“Even if Dr Pisaca had failed to advise Marc Traylor to remain on depot medication, it was not shown that this made a difference to the outcome. Despite what he says in his evidence, it is unlikely that Marc Traylor would have accepted such advice. The events show that he was determined to come off his medication. As soon as he had the opportunity to do that, he did. And he lied about it. It is common ground that Dr Pisaca had no power to compel Marc Traylor to remain on depot medication. Marc Traylor had fixed views about the (in)efficacy of medication. No amount of advice could change those views. It is likely that he was compliant with the depot medication before June 2014 only because he was under the (mis)apprehension that the Trust had the power to compel him to take the medication, and because he thought that compliance with the Trust in the shorter term would enable him to come off the CTO quicker. The history shows that he was capable of cynical manipulation of the system in this way.” Paragraph 99.

Regarding K’s claim that her ECHR rights were breached, the Court accepted that art.2 (right to life) was engaged but held that T’s doctor had adequately assessed the risks despite not having documented them. In addition, regular clinician visits and monitoring by T’s wife was put in place to manage the risks. Therefore, the Trust had taken positive steps to protect K’s ECHR rights.

Comment

One of the challenging aspects of this case was that the psychiatrist had not documented a risk assessment plan. However, the Court was able to deduce from the evidence provided by the expert witnesses and others that on the balance of probabilities, a risk assessment had been completed. Also, although K’s rights under art. 2 had been engaged, the expert evidence was able to assist the Court in deciding that K’s ECHR rights had not been breached.

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