Rajatheepan v Barking, Havering And Redbridge NHS Foundation Trust

In a clinical negligence claim involving communication difficulties, a responsible professional practice must be assessed by the Bolam and Bolitho standards. The court must consider whether the relied-on professional opinion has a logical and defensible basis. Effective communication requires information to be conveyed in a form the patient can reasonably understand. Where a patient has a serious language barrier, a discharge discussion involving substantial or complex information should use an appropriate interpreter, language service, or suitably capable intermediary. Reported concerns about a newborn’s condition must be investigated and, where necessary, prompt review arranged. A failure to do so may constitute breach where the court finds that proper investigation would have avoided the injury.

The claimant suffered catastrophic brain injury after neonatal hypoglycaemia caused by prolonged poor feeding following discharge from hospital. His mother, who had very limited English, alleged that the defendant’s midwives failed to provide understandable feeding advice, failed to recognise her concerns, and discharged mother and baby without adequate review. The defendant relied on contemporaneous records indicating satisfactory feeding and appropriate care.

The court determined liability and causation only. The central issues were whether communication was effective, whether the claimant’s feeding and reported distress required further investigation before discharge, and whether appropriate action would probably have avoided the injury.

1. Applicable standard. The court applied the professional-negligence test in Bollam v Frieren Hospital Management Committee [1957] 1 WLR 582, as qualified by Bolitho v City of Hackney Health Authority [1998] AC 332. A professional practice must be supported by a responsible body of opinion and must withstand logical analysis, including proper consideration of comparative risks and benefits.
2. Communication. The court considered the emphasis on dialogue and comprehensible information in Montgomery v Lanarkshire Health Board [2015] UK SC 11 and Thefaut v Johnstone [2017] EWHC 497. This was not a treatment-choice or informed-consent case. Nevertheless, the communication had to be adequate for the mother to understand the information given. Her very limited English meant that hand gestures alone could convey only the simplest instructions. The discharge discussion should not have taken place without her husband, an appropriate interpreter, or the language line.
3. Factual findings and breach. The court accepted that the mother had not received clear advice on breastfeeding, the importance of feeding, or what to do if feeding failed. Her attempts to raise concerns about the baby’s persistent crying were not properly addressed. The concerns communicated by her husband and his friend on the evening of discharge should have led to a further clinical review. Reassurance that newborn babies commonly cry, without investigation, was false reassurance in the circumstances.
4. Causation and disposal. Had the baby been reviewed when he should have been, the court found on the balance of probabilities that mother and child would have been kept in hospital overnight, the feeding difficulty would have become apparent, and the injury would have been avoided. The court entered judgment for the claimant, with damages to be assessed.
5. The court also considered the need to avoid hindsight when judging professional conduct, as explained in Eckersley v Binnie [1988] 18 Con. L.R. 1, and the importance of contemporaneous documentation and independent evidence when assessing credibility, discussed in Wetton v Ahmed and others (2011) EWCA Civ 610. On the facts, the claimant’s oral evidence was accepted notwithstanding the contemporaneous records.

First-instance determination of liability and causation. Judgment was entered for the claimant, with damages to be assessed.