Friday, 13 May 2016

The Judicial Power Project - A Problematic Case

A case in which I was heavily involved, Rabone v Pennine [2012] UKSC 2 has appeared in a list of 50 "problematic" cases produced by the Judicial Power Project. It happens also to be No 17 in the list of 50 human rights cases that transformed Britain published by Rights Info. Of course it might be transformative and problematic but I would like to address a couple of issues that underlie its inclusion in the JPP list.

The Supreme Court

The list is designed to illustrate the perceived problem of judicial overreach. It is said of Rabone that

"The claimant’s daughter committed suicide whilst on home leave from hospital where she stayed as a voluntary patient. The Supreme Court found that the Trust had failed in its duty to protect life under Art 2 in allowing home leave where there was a real and immediate risk of suicide. In this way the Court went beyond Strasbourg jurisprudence and invoked Art 2 to create liability for failure to prevent suicide. The decision has been roundly criticized in medical journals and risks further juridifying health services."

Creating Liability for Suicide

In fact there were two claimants, Melanie Rabone's parents. The Trust admitted that the decision to allow Melanie home had been negligent. It was foreseeable that the negligent decision could result in her injury or death. The Supreme Court did not "create liability for failure to prevent suicide". That liability already existed. It existed in common law, after all the Trust had admitted liability at common law. It existed already for detained mental health patients (case of Savage) and for prisoners.

The problem for Mr and Mrs Rabone was that the common law did not recognise their position as parents of an adult child. The Human Rights Act was invoked to give such recognition and to do so in the case of the death of a voluntary psychiatric patient.

Duty to Detain

The extract above also refers to the judgment being criticised in medical journals. That is fair comment: there were two or three articles and letters from psychiatrists. In "Hindsight Bias and the Overestimation of Suicide Risk in Expert Testimony" by Large et al criticism was made not of the judgment but of the expert evidence, including that relied upon by the Trust as to the extent of the risk of suicide. Surprisingly the authors used evidence of the risk of in-patient suicide to question the assessment of risk on allowing Melanie home. The relevant risk was not that which she had been at as an in-patient on 15 minute observations, but that on her being out of hospital with no plan in place to monitor or protect her safety. Nor was she an "average" she was a particular patient. The authors clearly did not have access, as did the expert psychiatrists in the case, to all the evidence. In any event the test the Supreme Court applied was whether there was a "real" and "immediate" risk, not whether it was over a certain percentage. The whole piece was misguided.

A subsequent paper, "From Rabone to Reality" by Salter begins, "Large et al draw valuable attention to the flawed information on which the Supreme Court based its decision". So, the new accepted wisdom was that the information was flawed. The author went on to misunderstand the judgment when he wrote, "The present judgment will, in all likelihood, lead to an increase in the detention of individuals with depression against their wishes". In fact there had been a clear finding that Melanie would have complied with any decision that she should remain an in-patient. There was not finding that she ought to have been detained against her wishes. So far as I am aware this prediction has not proved to be correct in any event. I am unaware of any evidence that there has been increased use of detention since Rabone, a decision made over 4 years ago.

The author also referred to the "unfortunate doctor" who let Melanie go home, forgetting that his own employer had accepted that no reasonable psychiatrist would have made that decision and that its consequences were fatal. The author may not have read the original trial judgment.


And so these ill-informed comments become part of an established narrative that leads to the judgment being regarded as a problematic example of judicial interference.  What's more in Reynolds v UK the ECtHR supported the decision of the Supreme Court in Rabone. Hence, even if Rabone had never happened, the Human Rights law would have been changed following Reynolds.

I think I know what "juridifying" means, but I don't believe that Rabone lead to juridification of the healthcare sphere. It has, fair to say, encouraged more scrutiny of suicides by psychiatric patients in Coroners' Inquests. Quite right - the only witness the Trust put before the Coroner in Melanie's Inquest was the negligent psychiatrist. Mr and Mrs Rabone were not represented and the Inquest was over in no time. The judgment has afforded redress to bereaved relatives who were not previously recognised as deserving a remedy at common law. There is no evidence I have seen that it has had negative effects in terms of overuse of detention.

Problematic? I don't believe so.

Monday, 9 May 2016

Incapacity, Illegality and Recoverability

  • A defendant may be liable for Court of Protection and Deputy costs even if its negligence did not cause the claimant's incapacity to manage his own affairs.

  • A claimant may "regain"capacity to manage his affairs once the initial, most difficult aspects of management of a large award are accomplished.

  • If a claimant's incapacity arises from illegality, then the defendant may not be liable for the costs consequent upon such incapacity.

These were three important aspects of a recent clinical negligence quantum judgment that also covered many other issues including the assessment of reduced life expectancy.

In AB v Royal Devon and Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) Irwin J heard the case of an ill-fated claimant who had suffered serious neurological injury from a spinal abscess. He alleged that there had been delay in diagnosing and treating the abscess. Liability was compromised for 60% of damages to be assessed.

The claimant had a long history of drug taking and criminality. His drug abuse, personality and difficulty personal history combined with other, less significant factors, contributed to serious psychological problems.

He was found to lack capacity to manage his own affairs for the first year after an award. That period would involve difficult decision-making concerning the setting up arrangements for the future, the purchase of equipment and transport and re-fitting accommodation. After one year the decision-making would become less complex and the claimant would have capacity to manage his affairs going forward unless he reverted to abusing illegal drugs. If he did so then the defendant should not be liable for such future incapacity and the associated costs. Hence future costs of the Court of Protection were allowed for a period of one year only.

That finding might be thought to have wider ramifications. If capacity is "borderline" in respect of the management of affairs post settlement/judgment, then might capacity be "regained" once the initial set up work is completed. Certainly that is something that experts should be asked to address.

Irwin J applied dicta of Lord Hoffman in Gray v Thames Trains  where he referred to the wider rule of ex turpi, namely "you cannot recover for damage which is the consequence of your own criminal act.

The claimant's pre-trial lack of capacity was held to be attributable to his abuse of illegal drugs. The defendant raised arguments concerned with causation and lack of foreseeability, but Irwin J seems to have preferred application of the wider ex turpi rule:

Friday, 6 May 2016

Let's Be Honest: Inquests often are Adversarial

I, and many readers of this blog, will have been involved in Coroners' Inquests arising out of the death of an individual who has died whilst in the care of a prison, a care home, the police, a hospital or some other institution.

Public funding for legal representation for bereaved families at Inquests is only very rarely granted yet it is exceptional for a public body or other "interested party" not to appear by a lawyer. No problem, says the government, Inquests are inquisitorial not adversarial and Coroners will ask all the questions the families need to be answered.

In the course of writing this post I noticed that the formidable Obiter J had beaten me to it in his excellent post The Coroners Court - a system that cannot remain unreformed. There is no need to cover the same ground but I do want to add to the debate my own experience of representing interested parties at Inquests.

Different Ideas of The Truth 

If we are honest, such Inquests are rarely regarded by the interested parties and their lawyers as anything other than adversarial. They are not neutral participants. Very often the bereaved family and the institution that cared for the deceased will have strongly opposing views as to the findings and verdicts the Coroner should reach. They will have their own agendas. It is not, you have to believe, that they want to do anything other than help the Coroner to get to the truth, it is just that they will have different ideas of what the truth is.


In the aftermath of the Hillsborough Inquest verdicts Andy Burnham MP told the House of Commons, "Millions of pounds of public money were spent re-telling discredited lies. Lawyers for retired officers threw disgusting slurs; those for today's force tried to establish that others were responsible for the opening of the gate. If the police had chosen to maintain its apology, this Inquest would have been much shorter. But they didn't and they put the families through hell once again.It pains me to say that the NHS, through the Yorkshire Ambulance Service, was guilty of the same."

David Conn criticised the Coronial process in this challenging article in The Guardian.

I make no judgment about whether Messrs Burnham and Conn were right or wrong to criticise lawyers with briefs to represent interested parties at the Inquest, but I do recognise the description of a legal process that was adversarial in all but name. 

Interests to Pursue and to Protect

Parties at Inquests have interests to pursue and to protect. The way civil claims are funded, by no win no fee agreements, means that families will often only get legal representation at an Inquest if a lawyer thinks there may be a (successful) civil claim in the offing. Hence the family's lawyer wants to ensure that evidence emerges and findings are made that might support a subsequent civil claim. The family often want a particular body or person to be held responsible for the death. Whilst a Coroner may not make such a finding, he or she can make findings and reach conclusions that will go some way towards a later admission or finding of liability. 

Hospital Trusts, care homes and prisons have the interests of their employees as well as reputations and finances to protect. They participate in an Inquest aware of the impact of adverse publicity and possible future litigation.

Coroners do their best to avoid Inquests becoming too adversarial, but it is almost unavoidable in many cases. 

We need a legal process properly to investigate unexpected deaths, to answer questions for families and the community as a whole, to hold institutions and individuals to account and to ensure that lessons are learned to avoid repeated, fatal errors. The Coronial system may have the potential to deliver those goals. Perhaps they can be achieved through a more purely inquisitorial system, properly resourced. Perhaps a more openly adversarial system would better do so. But as it stands the Coronial system lacks focus. Partly because of its relationship to the wider civil justice system, its claims to be inquisitorial do not ring true. 

Let's be honest and admit that when it comes to Inquests involving public bodies or other institutions, the present Coronial system is in effect adversarial. As such families are wholly disadvantaged by the restrictions on public funding for representation.