Kennedy v Frankel

A clinician advising on medication must warn of material risks and reasonable alternatives. Whether a risk is material is for the court, applying the patient-focused approach in Montgomery v Lanarkshire Health Board [2015] AC 1430. Once impulse control disorder is identified in a patient taking a dopamine agonist, the clinician must investigate its extent and consider reducing or stopping that medication, commonly substituting levodopa. Withdrawal is not automatic where symptoms are minor and well controlled. Liability also requires causation: a failure to warn is insufficient unless proper advice would probably have changed treatment and avoided loss.

The claimant developed impulse control disorder and psychosis after receiving dopamine agonist medication from the defendant, a consultant neurologist. She alleged that he failed to warn her of the risk of impulse control disorder, failed to discuss alternative medication, and later failed to respond appropriately when symptoms emerged. The defendant denied breach and causation. A further argument concerning the scope of duty and Khan v MNX [2018] EWCA 2609 was deferred. The issues determined were breach of duty and causation.

1. Applicable standards. A specialist must exercise the ordinary skill of the relevant specialty: Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634. Advice was assessed under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, subject to the requirement in Bolitho v City and Hackney Health Authority [1998] AC 232 that the responsible professional opinion have a logical basis.
2. Warning and alternatives. Applying Montgomery v Lanarkshire Health Board [2015] AC 1430, as summarised in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, the defendant should have warned the claimant of the material risk of impulse control disorder when ropinirole was prescribed in April 2010. The breach was not causative at that stage because she would still have taken the medication.
3. Emerging symptoms. Once impulse control disorder was identified, the proper approach was to investigate the nature and severity of the symptoms. Medication should not automatically be withdrawn where symptoms were limited and motor symptoms were well controlled. In October 2011, however, the specialist nurse’s evidence showed significant and troubling symptoms, including compulsive buying, disturbed sleep and marital discord. The defendant should have recommended reducing or discontinuing the dopamine agonist and explained that levodopa was likely to abolish the disorder while controlling the underlying symptoms. Increasing the dose was unreasonable.
4. Causation and disposal. The claimant would have accepted a change to levodopa in October 2011. She would then have recovered from the disorder and would not have developed psychosis. The earlier breaches caused no loss. Judgment was therefore entered on the findings of breach and causation, with quantum adjourned for agreement or a further hearing.

not stated in the judgment.