Michelle Sarah Senfuka Delargy v Oxleas NHS Foundation Trust

Allegations of clinical or other professional negligence ordinarily require written support from a suitably qualified expert. The exception for cases where negligence is obvious applies only in genuinely clear cases, such as the negligent amputation of the wrong limb. A claimant alleging that a consultant psychiatrist administered inappropriate medication, knowing that it would cause harm, must identify supportive expert evidence from a consultant psychiatrist. Medical records showing injury, without an expert opinion addressing breach and the professional’s knowledge, are insufficient. Where the claim presently lacks that support, the court may maintain a stay to allow a limited opportunity to obtain it and may strike out the claim if supportive evidence is unavailable.

The claimant sought permission to proceed with a clinical negligence claim against the defendant NHS trust. She alleged that medication administered during compulsory detention under sections 2 and 3 of the Mental Health Act 1983 caused harm, including hyperprolactinaemia, and that the treating consultant knew the medication was inappropriate.

The proceedings had been issued after a stay granted to enable compliance with the clinical disputes pre-action protocol. The Master had also referred to the need for permission under section 139 of the Act. The court considered that section 139(4) excluded proceedings against an NHS trust from that requirement. The central issue was whether the claimant’s allegations had sufficient support from relevant expert medical evidence to justify continuation of the claim.

1. Permission under the Mental Health Act. The claimant was not required to obtain permission from a High Court judge under section 139 of the Mental Health Act 1983. Section 139(2) concerned civil proceedings in respect of acts purportedly done under the Act, but section 139(4) expressly excluded proceedings against the Secretary of State, a health authority, a special health authority or an NHS trust established under the National Health Service Community Care Act 1990. The defendant was an NHS foundation trust.
2. Expert evidence. The court applied the approach in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC): professional negligence allegations should ordinarily be supported in writing by a relevant professional with the necessary expertise. The present allegations were not a clear or obvious “never” case. They involved the appropriateness of an antipsychotic medication regime and the alleged knowledge of the treating consultant that it would cause harm.
3. The claimant’s reliance on medical records and a report recording earlier hyperprolactinaemia did not establish that the medication administered in 2018 was inappropriate or that the consultant could be taken to have known that it was inappropriate. Supportive expert medical evidence from a consultant psychiatrist was therefore required.
4. The court continued the stay for an initial period of three months, giving the claimant an opportunity to obtain and confirm the existence of supportive expert evidence. The evidence did not need to be disclosed at that stage. The matter was remitted to Master Thornett for review and further directions. If supportive evidence was unavailable, the appropriate course would be to strike out the claim.