Medical Negligence, Human Rights and the Duty to Protect

Traylor v Kent and Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB

In a recent decision of the High Court (Traylor v Kent and Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB)), it was held that an NHS Trust was not liable in negligence to a patient who had been diagnosed with paranoid schizophrenia and had stabbed his daughter several times and was shot by the police as a result. The case raises interesting issues, with respect to the law of negligence and human rights, and shows that the positive duty to protect life and to guard against inhumane and degrading treatment – usually imposed on police authorities – can also apply in a clinical context.

The claimant had been diagnosed with paranoid schizophrenia and morbid jealousy, and had a history of violence, particularly towards his wife. Antipsychotic medication was started in February 2013, and in June 2013 he was discharged on a Community Treatment Order on condition that he attended for the administration of psychiatric medication as directed by his treating consultant psychiatrist. He suffered a psychotic episode and on 9 February 2015, he stabbed his daughter several times, causing her significant physical and psychiatric injuries. He was shot three times by armed police officers and suffered a cardiac arrest and a hypoxic brain injury.

He maintained that the negligent treatment of his mental illness had caused the 9 February events. The Trust denied negligence in general and argued that although there had been a breach of duty in respect of a decision to discharge the claimant from secondary healthcare, that decision had not made a difference to the outcome, as the claimant would have continued not to take his medication even if he had not been discharged. The daughter brought a separate claim against the Trust for failing to take positive steps to protect her right to life (Art. 2 ECHR) and her right not to be subject to inhuman or degrading treatment (Art. 3).

With respect to the action in negligence, the court held that the Trust had not breached its duty of care towards the claimant. The Trust could not order the administration of the anti-psychotic medication through specific means, such as the depot injections that were being used up to 5^th June 2014, without the consent of the Claimant; to do so would exceed the limits of the Community Treatment Order that the Claimant was under. Consequently, the question of whether the Trust had breached its duty of care was limited to the following:

1. Did the Trust undertake a proper and adequate risk assessment in respect of whether the claimant would take his medication if permitted to self-administer orally? and
2. Did the Trust adequately advise the claimant that continuation of the depot injections would be the preferable method of drug administration?

After consideration of the evidence, the court concluded that the Trust had fulfilled their duty in both of these respects, following an application of the principle in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583.

Although no longer a matter in issue due to the absence of a breach of duty, the court also indicated that had there been a breach, any defence raised in respect of causation or volenti was unlikely to succeed. Following the case of Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, to find that the claimant’s own act would break the chain of causation would empty the duty of care of any meaningful content in the circumstances of this case.  Furthermore, any defence of illegality would be unsuccessful given the jury’s find that the claimant was not guilty of the attempted murder of his daughter, by reason of insanity under the McNaughten rules. The court did however indicate that a finding of contributory negligence would likely have limited the compensation awarded significantly, had the claim in negligence been successful.

The human rights claim of the daughter was also rejected. The Trust was a public authority required to act compatibly with ECHR rights, and there were circumstances where the Trust could be under an obligation to provide protection against a known risk to life (Osman v UK [1999] 1 FLR 193). However, the decision to stop the Treatment Order was not a breach of those duties. The Trust had taken reasonable steps to avert the risk, together with a careful relapse plan and arrangements to check up on him, which had taken place at regular intervals.

The extension of the positive duty to protect individuals’ ECHR rights from attack by other individuals is interesting, but seems to carry with it the same demanding standard of liability imposed in police cases: a real and immediate risk to life, and where the authority had failed to do all that was reasonably expected of them. Thus, most claims fail. With respect to the negligence claim, we can see that, as is often the case in clinical negligence cases, an application of the test in Bolam makes it very difficult to establish a breach of duty upon which an action can be based. This high threshold for establishing a breach of duty means that many cases are destined to fail and in circumstances where they can be, the defence of contributory negligence has the potential to significantly limit recovery.