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

Date
10th February 2022
Court
Key Issues
, ,
Judge

Introduction

The tragic facts of the case of Traylor were largely undisputed: on the 8th of February 2015, Marc Traylor (“MT”) experienced a psychotic episode.  Having armed himself with two knives, he went to his daughter, Kitanna Traylor’s room (“KT”) and threatened to stab her (para 1, 38).  KT’s sister went to find MT’s father, Peter Traylor (“PT”).  On arrival, he found armed police present. An officer placed his hand on PT’s shoulder, causing his son to “burst out saying don’t hurt my dad” (para 39), pick up the knives and stab his daughter, KT, causing serious injuries. In the following melée, MT was shot three times by police. MT was subsequently charged with attempted murder but found not guilty by reason of insanity.

Associated claims

MT brought a claim against the Defendant, Kent and Medway NHS Social Care Partnership Trust (“the Trust”), asserting that the Trust had been negligent in its treatment of his mental illness which, in turn, caused the events of the 9th of February 2015 and his resulting injuries. KT brought a separate claim against the Trust for a failure to take positive steps to protect her right to life and right not to be subjected to inhuman or degrading treatment, alleging these failings resulted in the events of the 9th of February 2015.

In response, the Trust accepted that a decision taken on the 3rd of December 2014 to discharge Marc from secondary psychiatric care “was not handled correctly” (para 2) but denied causation and additional allegations of negligence.

The Trust asserted that (para 2):

  • Any breach of duty did not cause what happened. The cause of those events was MT’s decision to stop taking his medication.
  • MT voluntarily accepted the risk that he might act as he did because he stopped taking his medication, against medical advice.
  • The events on 9 February 2015 resulted from his own criminal acts.
  • Alternatively, any damages should be reduced on account of Marc Traylor’s fault (“contributory negligence”) when he stopped taking his medication.

In response to KT’s claim, the Trust denied that it was required to take steps to protect KT’s Convention rights, and, in any event, it acted compatibly with those rights.  Alternatively, if it did act incompatibly with her rights, this was not the cause of the events. Consequently, any damages awarded should be limited to an award for non-pecuniary loss, reflecting a breach of her Convention rights.

Both claims were heard concurrently by Mr Justice Johnson in January 2022.

Expert Evidence

The experts agreed that from the 4th of June 2014 onwards MT had been exposed to the risk that he would not take his medication and consequently face a further psychotic episode as a consequence of oral medication being riskier than administered injections. The experts also opined that a contemporaneously made note of the 5th of July 2014 did not “represent a robust record of the risk assessment” (para 76) and that monthly monitoring arrangements should have been in place.

Both experts accepted MT had the capacity to consent to the administration of medication but diverged on the question of whether it was a breach of duty to discharge MT from the Community Treatment Order (“CTO”), with the Claimant’s expert (Dr. Ginn) further asserting the decision to stop depot injections and replace them with oral medication was a breach of duty (para 78).

Issue 1: Marc Traylor’s claim – breach of duty of care

Although the Trust admitted breach in 2014 concerning the decision to discharge MT from secondary healthcare, it was “common ground that this decision did not make a difference to the outcome” (para 82). Following the provision of expert evidence, counsel for the Claimant narrowed the allegations against the Defendant to two allegations:

  1. Pisaca, the clinician, did not undertake a sufficient assessment of the risk that MT would not take his medication.
  2. Hence, or otherwise, Dr. Pisaca did not advise MT that he should remain on his depot injections.

Johnson J found that the risk assessment was “linked to the second question [concerning depot injections]” (para 84).  Despite the contemporaneous notes not recording a risk assessment (due to the integral nature of risk assessment to psychiatry), the “obvious” nature of the risks flowing from the Claimant’s “aversion to medical treatment” and the indications in the short note that the Defendant was seeking to “assess, manage and mitigate the risks”, led the Judge to be satisfied that the Defendant had considered the risks (para 85).

Given the uncontroversial fact that anti-psychotic medication administered by depot is more efficacious, the Judge found that the “only rational reason for substituting oral medication [wa]s … the patient’s wish and informed decision” (para 86).

Johnson J found that given the consultation with the Defendant was lengthy with its focus being on the continuation of medication, the only tenable view was that it was MT’s wish to administer the medication orally.  He held that there was no reason to suggest that MT had not been given advice to remain on depot medication. MT, therefore, failed to establish either of the residual allegations of breach.

Issue 2: causation and voluntary assumption of risk

Although MT failed to establish breach of duty, the Judge went on to consider causation in any event.

He found that, if the Defendant had failed to advise MT on depot medication it would not have materially affected the outcome. Despite MT’s assertions that he would have accepted this advice, the “events show that he was determined to come off his medication” due to “fixed views about the (in)efficiency of medication” (para 99). Consequently, MT had not proved that any breach caused the damage for which he claimed.

However, if MT had established factual causation, then he would not have accepted the Trust’s argument that the breach was not a legal cause of MT’s relapse.   The Judge relied upon the statement of principle in the well-known authority of Gray v Thames Trains Ltd [2009] UKHL 33, in which Lord Hoffman held that “in general a defendant will not be liable for damage of which the immediate cause was the deliberate act of the claimant or a third party, that principle does not ordinarily apply when the claimant or third party’s act was itself a consequence of the defendant’s breach of duty” (para 102).

Accordingly, he did not accept the Trust’s argument that an otherwise viable claim would have been defeated because MT had voluntarily accepted the risk created.

Issue 3: MT’s claim – illegality

Although the defence of illegality did not arise because breach was not established, it was common ground that “if [MT] had not been insane within the meaning of the McNaughten rules, then his claim would be defeated by the defence of illegality” (para 107). The question of whether the defence was available where the Claimant was deemed insane (as was accepted here) within the McNaughten rules was a novel question.  However. by reference to s2 Bail Act 1976 and established authorities, the Judge did not “accept the submission that [MT] [wa]s to be treated as having committed a criminal act”.

Issue 4: MT’s claim – contributory fault

Johnson J further concluded that by not taking his medication and lying to the mental health care team, MT did not take reasonable care for his own wellbeing amounting to fault within the meaning of s5 Law Reform (Contributory Negligence) Act 1945.  As such “if the claim had otherwise succeeded it would [have been] just and equitable to reduce damages recoverable by three quarters” (para 122).

Issue 5: KT’s claim – Articles 2 and 4 ECHR

As a public authority, the Defendant Trust was bound to act compatibly with Article 2 and 3 convention rights.  Johnson J held that the application of the duty established in Osman v United Kingdom (1998) 29 EHRR 245 (in Fernandes de Oliveira v Portugal (2019) 69 EHRR 209) and that such a duty did not distinguish between “the duty to protect against suicide or the duty to protect against a risk of violence to a third party”.  Accordingly, he accepted that the Osman duty “may, in principle, arise in the present type of context” (para 129).

Although the Osman test set a high bar, the Court noted that the duty did not “require that the precise victim is identified in advance” finding that the risk that MT would suffer a relapse would “pose a risk to [NT’s] life” (para 137). Consequently, there was a clear risk that KT may be “caught up in such violence” and the “Osman duty [was] engaged” (paras 137, 138).

Johnson J did, however, find the Trust took reasonable steps to avert the risk. Accepting that MT had capacity and that as a corollary “his wishes had an overriding effect on Dr Pisaca’s options”, Johnson J was satisfied that MT was advised to remain on depot injections, that a relapse plan had been formulated and, consequently that the Trust took “reasonable steps to avert the risk” (paras 141, 142, 144). As such, the Trust did not act incompatibly with KT’s Convention rights.

Held:

The Court held that the Trust was not liable in negligence to MT, nor was it liable to KT under the HRA 1998.

Our Comment:

James Counsell, a barrister in our Clinical Negligence team commented on the case as follows:

Johnson J’s judgment is well worth reading for all those involved in these difficult cases involving clinical negligence where the claimant (here, the assailant) was suffering from serious mental illness.

Although many of the findings were fact-specific and both claimants (the assailant and the victim) ultimately lost their claims, there is some useful, albeit obiter, material here on the following key legal issues:

  • When a defendant cannot rely upon a defence that the immediate causes of damage was the deliberate act of the claimant or a third party;
  • Whether a defendant can rely upon the defence of illegality when the claimant was, himself insane, at the time of the events which caused the damage;
  • The circumstances in which Articles 2 and 3 of a person’s Convention rights apply where that person, the victim of violence, could not be identified in advance.

Read the Judgment

Read the full judgment here.


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