D v South Tyneside Health Care NHS Trust

In clinical negligence, support from a responsible body of professional opinion does not end the inquiry. The opinion must withstand logical analysis, including consideration of comparative risks and benefits where appropriate. If a properly conducted assessment leaves a range of defensible regimes, a defendant is not negligent merely because another expert would have chosen differently. Observation of a detained psychiatric patient requires a fact-sensitive balance between risks of absconding and harm, and the therapeutic consequences of intrusive supervision. A hospital policy may reasonably allow a patient an opportunity to return voluntarily rather than require immediate police notification. A concise judgment may provide adequate reasons where it sufficiently explains the evidence and the basis of the conclusions.

D was detained under section 3 of the Mental Health Act 1983 at the respondent hospital. On 2 September 1996 she absconded, went home and swallowed a large quantity of her mother’s medication, suffering severe brain damage.

His Honour Judge Faulks dismissed her clinical negligence claim on 19 April 2002. He held that hourly observations were reasonable and that, even with 15-minute observations and prompt police notification, the police would not have reached her in time. The appeal concerned the observation regime, the hospital’s absconsion policy, police notification, causation, the adequacy of the judge’s reasons and the burden of proof.

1. Appeal dismissed. Lord Phillips MR delivered the judgment. Lord Justice Simon Brown and Lord Justice Ward agreed. The appellant’s Legal Services Commission costs were ordered to be taxed.
2. The trial judge had compressed the relevant analysis. He should have considered whether the events between admission and absconding, particularly the violent episode on 30 August, required a fresh assessment. Applying the approach in Bolitho v City and Hackney Health Authority [1997] AC 232, the court must identify whether a responsible body of professional opinion supports the practice and then ask whether that opinion withstands logical analysis. Where appropriate, the professionals must have addressed comparative risks and benefits and reached a defensible conclusion.
3. If a proper assessment leaves a range of conclusions reasonably open to the clinician, the defendant is not negligent merely because the regime selected was not the one preferred by another expert. Dr Wood was competent to give evidence despite his predominantly forensic experience. His experience affected the weight of his evidence, not his competence.
4. Hourly observations were within the range of reasonable professional opinion. There was no acute depression or specific indication of suicide or violence requiring constant one-to-one observation. Fifteen-minute observations would not have prevented absconding and might have undermined the non-confrontational strategy intended to secure co-operation with medication. The risk of absconding and delayed return did not inevitably outweigh the therapeutic disadvantages of intrusive observation. The claimant’s experts expressed tenable views, but they did not make the Trust’s approach logically indefensible.
5. The hospital’s absconsion policy gave staff latitude and did not require immediate police notification in every case. Allowing an opportunity for voluntary return was sensible where police intervention might antagonise the patient and impair treatment. Even if 15-minute observations had been required, it was unlikely that the police would have apprehended D before the overdose.
6. The court expressed reservations about whether the circumstances transferred the burden of disproving negligence under Cassidy v The Ministry of Health [1951] QB 434, but the issue was immaterial because the evidence was sufficient. The judge’s concise reasons were adequate when read with his summary of the competing evidence and conclusions, consistently with English v Emery Reinhold & Stricht Ltd [2002] 1 WLR 2409.

• Court of Appeal (Civil Division) — On 11 June 2003, the appeal was dismissed: [2003] EWCA Civ 878.
• High Court, Newcastle upon Tyne District Registry — His Honour Judge Faulks dismissed the clinical negligence claim on 19 April 2002.