Misa Zgonec-Rozej & Ors v Dr Stephen Pereira & Ors

A psychiatrist may adopt a defensible working diagnosis without breaching the duty of care, even if another diagnosis is later preferred. The clinician must nevertheless keep the diagnosis under review and respond reasonably to developing evidence. Proper handover and adequate records are required when responsibility for psychiatric care is transferred. Where individual psychotherapy is an important part of the treatment plan and group therapy is plainly unsuitable, the process of arranging appropriate therapy must be pursued promptly. Failures in duty do not establish liability without proof on the balance of probabilities that they caused the loss. Suicide may amount to contributory negligence where the claimant retained a degree of personal autonomy, although the reduction must reflect the extent to which mental illness overbore that autonomy.

The claimants brought proceedings under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 following the death of John Jones, who died after leaving a private psychiatric hospital. The claim against the admitting consultant psychiatrist proceeded to trial; claims against the other defendants had been settled without admissions.

The principal issues were whether the psychiatrist’s diagnosis, admission arrangements, handover, treatment planning, risk assessment and therapeutic engagement were negligent; whether any breach caused the death; and, if liability were established, the effect of contributory negligence and the valuation of dependency losses.

1. Duty and diagnosis. The applicable standard was that in Bolam, subject to the court’s assessment of whether the relied-on practice was logically defensible under Bolitho. The preferred diagnosis was a depressive reaction to past and present stress, but the psychiatrist’s working diagnosis of bipolar affective disorder was defensible and did not itself constitute negligence. A working diagnosis must, however, remain open to review as evidence develops.
2. Breach. The failure to tell the patient that the admitting psychiatrist would be absent for three weeks was a breach, although it caused no measurable harm. The psychiatrist also failed to provide a sufficient handover to the replacement consultant. The absence of an adequate record was itself a departure from reasonable standards.
3. The medication reinstated on admission was not shown to be negligent. Nor were the alleged failures to explain admission, assess the patient before admission, conduct risk assessment by reference to high, medium or low categories, or undertake formal multidisciplinary meetings. Risk-stratification tools were not useful predictors of suicide, but the nursing staff had continually assessed risk.
4. The only further breach concerned the delay in arranging individual psychotherapy. By 11 April it was clear that the patient would not engage with group therapy, and a reasonable psychiatrist would have promptly initiated the hospital’s process for assessing and arranging suitable individual therapy.
5. Causation. Applying the ordinary balance-of-probabilities test, the failures to warn of leave and to hand over properly caused no measurable loss. It was uncertain whether psychotherapy would have begun before death, whether one session would have generated hope, and whether that would have prevented the suicide. The claim therefore failed. The alternative material-contribution approach in Bailey did not apply to these facts.
6. Contributory negligence. If liability had been established, the court would have reduced damages by 25%. The deceased was seriously unwell but retained sufficient autonomy and understanding for his suicidal act to attract a reduction, applying the approach discussed in Corr and applied in PPX v Aulakh.

The claim was dismissed. The court assessed hypothetical damages at £1,776,122, subject to deductions for settlements with the other defendants.