Friday, 24 March 2017

Mayday! Mayday!

Mr Darnley attended the Mayday Hospital A&E with a head injury following an assault. He was with a friend.  It was a busy Monday evening. He was greeted, as was the system in place, by a receptionist without medical or nursing qualifications. She clerked him in and asked him to wait. She told him that it would be up to 4 to 5 hours before he was seen. He told her that he felt he was going to collapse. She told him that if he did he would be treated as an emergency.

NICE Guidelines state that a head injured patient should be seen within 15 minutes. It was not disputed that in this case Mr Darnley would have been seen within 30 minutes. The information given by the receptionist had been misleading. Mr Darnley was not seen in 30 minutes because after 19 minutes of waiting, he and his friend left. He went home. Very unfortunately his condition rapidly deteriorated and he was rushed back to hospital where it was found he had an extradural haematoma. It was too late to save him from having permanent, serious neurological injuries.

The majority in the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, held:

(i) The circumstances had not been such as to place the Claimant in a special category of patients requiring priority triage.

(ii) The receptionist had not assumed a duty of care or responsibility to the Claimant when giving advice about the likely waiting time. It would not be fair, just and reasonable to impose a duty of care on the receptionist not to give misleading information about waiting times (Caparao v Dickman [1990] 2 AC 605, applied). The Court was concerned, in this case, about the ramifications of finding otherwise when 450,000 people per week present to A&E and many hospitals operate a system similar to the Mayday Hospital. Research shows that as many as 3-8% of patients leave A&E without being seen. How many have potentially serious injuries?

(iii) In any event, either the prevention of the injury was outside the scope of the duty of care or there was no causal link between any breach and the injury: the Claimant, a capacitous adult, chose to walk out of A&E. 

McCombe LJ gave a dissenting judgment. He pointed to the trial Judge's findings about the complaint of possible collapse and the receptionist's response, referred to above. He also observed that the duty of care was on the hospital. He said at [71]:

"The duty of the hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact."

He would have allowed the appeal and imposed liability on the Defendant Trust.

Mr Darnley chose to forego treatment. He did so at least partly on the basis of incorrect advice that he might have to wait up to 4 to 5 hours to be seen by a clinician. He had to balance that information with other considerations such as that he did not know how serious his head injury might be. Arguably therefore he made a treatment decision on the basis of incorrect advice from the hospital staff. This brings to mind the principles in Montgomery. Did the hospital provide the Claimant with relevant, accurate information on which he could exercise proper autonomy?

Suppose the Trust had employed a nurse on reception who had given the same information to the Claimant as the receptionist had given? Would a nurse have been under a duty to advise Mr Darnley to wait to be seen because it cannot be known without proper examination how serious his head injury might be? Would the Trust have been liable because a nurse owes a higher standard of care than a "civilian"? It must be implicit in the majority judgments in Darnley that it is acceptable to organise an A&E department so that the first point of contact - and the only contact for perhaps half an hour in a head injury case - is with a "civilian". Also, it appears that there was no written information given to Mr Darnley. Head injury leaflets are common-place. Was he not given a leaflet to read telling him of the importance of being checked out? 

Some might thing that there is a danger that this judgment will encourage greater use of "civilian" staff so as to help the NHS and other healthcare providers to avoid liability? Why employ a trained nurse when you can use a "civilian" at less cost and with a lower risk of being found liable if something goes wrong?

On the other hand, as I have previously observed on this blog, if there is an greater emphasis on patient autonomy following Montgomery, then that has consequences not only for providers of medical care but also for patients. Adults with capacity to make rational decisions have responsibility for the consequences of those decisions. Mr Darnley removed himself from the hospital without having been seen by a nurse or doctor. He did so without receiving any nursing or medical advice. By doing so he knowingly took the risk that his head injury might be a serious one and he might deteriorate at a time when he was out of the immediate reach of medical attention. He fully, but unwisely, exercised autonomy. 

For some time clinical negligence defendants have been seeking to defend cases (in whole or in part) by contending that patients have broken the chain of causation or have been contributorily negligent by missing appointments or not complying fully with advice etc. Will this judgment encourage more of those sorts of defences?

This is a fascinating decision with potential ramifications for the way hospitals should be organised, and for the responsibilities patients have for their own decisions. 

Tuesday, 21 March 2017

The Discount Rate and Misreporting Compensation Payments

How do we counter misleading legal stories in the press? I am well aware that the number who will read this blog is a tiny fraction of those who will have read the story below, and that fewer still will read this blog to the end. This blog post may be true, but it is boring, technical stuff. Nevertheless, here it is:

The Guardian has led the way in reporting a remarkable increase in a compensation award to a claimant in a clinical negligence claim:

NHS trust triples injury payout to £9.3m under controversial new rules
Compensation for 10-year-old girl left with cerebral palsy will cause shockwaves in health service and insurance companies

The headline and story are completely inaccurate. The "payout" (horrible term) was not £9.3m nor did it triple under new rules. 

The "controversial new rules" are a change in the discount rate announced by the Lord Chancellor, taking effect on 20 March 2017. The discount rate is, or should be, set to reflect the real rate of return a risk-adverse investor could get for their money in the current market. It is assumed that they would rely on index-linked government stock. The average real yields for that stock over the last three years has been -0.75% (to the nearest one quarter of one per cent). That is the new discount rate set by the Lord Chancellor. Previously, and since 2001, it has been 2.5%. So it is a big change, all the bigger because there has been no change to reflect the changing market for 16 years. Most significantly, it has gone from a positive to a negative rate. What consequences does that have?


If I am unable to work and I need care for the remainder of my life because you have negligently injured me, I claim from you, say, £100,000 per year. Suppose I am likely to suffer that loss for 30 years. If you gave me £100,000 x 30, I would have £3m. If you gave me £3m now I would invest it. Since I need the money to pay for my care I will invest it in low risk investments. When the discount rate was 2.5% it was assumed that I would get a positive return for my money. Hence I did not need £3m to compensate me for payments of £100,000 per year for 30 years, even allowing for inflation. Instead I needed roughly £2.1m. I could invest that sum and draw down from it so that I would have £100,000 available to buy the care I need for 30 years. Then I would have no more money.

In fact, as set out above, for some time the real rate of return on risk free investments has been negative, and so, belatedly, the discount rate has been changed to minus 0.75% I don't need £2.1m to allow me to pay £100,000 a year for 30 years, I need £3.4m. The figure that the annual sum is multiplied by is called the multiplier. The lower the discount rate, the higher the multiplier. That's mathematics (and economics).

The impact of the change in the discount rate is very considerable on increasing the value of future awards for young adults and children where they are assessed as a single lump sum using a multiplier. Multipliers for some teenagers do indeed triple.

However, there is a problem with assessing future awards using a multiplier. Such assessments assume that we know how long the claimant is going to live. We don't. So after 30 years the money runs out, even if I live for 40 or 50 years. On the other hand, if I am run over by a bus after five years, I still have about £3m left and my beneficiaries receive that remaining sum under my will. That wasn't the aim of the compensation but it is the result of receiving all the compensation as a lump sum.

Periodical Payments

To avoid these unwanted consequences, many claims for substantial future losses in made against the NHS are resolved by an agreement that the NHSLA will pay, say, £100,000 per annum to the Claimant, index linked so that in keeps pace with increased costs of buying care, for so long as the Claimant lives. If the Claimant lives five years, the payments stop then - they don't need to buy care anymore. If they live to 100, the payments continue to then and they can be assured that they will always have the money they need to buy care, but no more than they need.

Whatever other consequences the Lord Chancellor's announcement has had, it will not change how long we all live. 

The Claimant referred to in the Guardian story received some of her compensation as a lump sum and some as a periodical payment order - an agreement to pay a certain amount every year for so long as she lives. The change in the discount rate did not increase that amount nor for how long the NHSLA will have to pay it. I have it on very good authority that the Discount Rate change did indeed lead to an increase in the lump sum from £1.32m to £2.12m - an increase of £800,000. Not insubstantial but not the £6m claimed by the Guardian. The PPOs remained the same as previously agreed. So the NHSLA's liability increased from £1.32m and (I believe) about £200,000 per year for so long as the Claimant shall live, to £2.12m and £200,000 per year for so long as the Claimant shall live. That is not a tripling of the award.

Shockwaves? If any, they are much further down the Richter scale than the media has reported.

Monday, 6 March 2017

Patient Autonomy and National Screening Policy

Is there a conflict between the courts'defence of patient autonomy in Montgomery v Lanarkshire and decision-making about national screening policy?

There has been much recent news coverage about a campaign to introduce a screening programme for Group B Streptococcus in later pregnancy. The campaigners' argument is that over 500 babies were made ill as a result of Group B Strep in the year to April 2015, 27 died, and more suffered severe disabilities. A simple and cheap test for Group B Strep infection in late pregnancy would, it is argued, have resulted in the administration of antibiotics for those mothers found to be infected, thus preventing this level of suffering and death.

The BBC reports that the National Screening Committee opposes introducing screening for Group B Strep in late pregnancy. Its director of programmes, Dr Anne Mackie said, 

"The UK independent expert screening committee's last review of screening for group B strep carriage found testing in late pregnancy unreliable.

"This is because the test cannot distinguish between women whose babies will be affected by early onset group B strep and those who would not. This could lead to a high number of mothers and babies being exposed to unnecessary antibiotic use."

What has this to do with Montgomery?

In Montgomery the Supreme Court emphasised the importance of patient autonomy:

"An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it."

The Court approved Lord Woolf's approach to consent in the case of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P 53, in which a mother had not been warned of the risks to her unborn child of allowing her pregnancy to go "over term" rather than electing to have an earlier, elective Caesarean section. Lord Woolf held:

"In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt."

I make no judgment as to the merits or otherwise of introducing a screening programme for Group B Strep. But I wonder whether there is there a potential conflict between the individual patient's right of autonomy and policy decision-making about screening programmes. For the individual mother, the balance of costs, risks and benefits may seem to point only one way. Of course many will choose to have a simple test for infection in late pregnancy, and to take antibiotics if the test is positive, rather than taking the risk of leaving their baby unprotected from a potentially devastating infection. But at a national, policy level, the balance of risks and benefits includes many wider considerations.

Could judge-made law, which is developed by consideration of the claims by individuals, have consequences for national screening policy? Are midwives and obstetricians obliged to warn expectant mothers of the availability of a test for GBS in late pregnancy, and the risks and benefits of testing, notwithstanding a national policy not to have screening?