The case of Williams, although decided on its own facts, may be of interest to practitioners due to the judge’s decision on the importance of contextualising the use of electronic record systems against the industry standard at that time, and the judge’s analysis of factual causation.
The Claimant in this matter brought claims of her deceased husband, Mr. Williams, under the Law Reform Miscellaneous Provisions Act 1934 and the Fatal Accidents Act 1976 against the Defendant in this matter the University Local Health Board. The Claimant also brought an additional claim as a secondary victim having experienced psychiatric injury. Damages subject to the issue of liability were agreed at a global sum of £300,000.
The claim concerned the tragic suicide of the Claimant’s husband who had a long history of mental disorder. On the 9th of February 2014, the Claimant telephoned the Defendant’s Heddfan Psychiatric Unit located at Maelor Hospital to report a deterioration in her husband’s condition. The switchboard transferred her through to Nurse Freestone, a senior nurse within the unit. As the 9th fell on a Sunday only out of hours provision was available. Nurse Freestone signposted the option of taking Mr. Williams into A&E for psychiatric assessment and/or contacting the out of hours GP. Approximately 7 hours later Mr. Williams tragically took his own life.
It was the Claimant’s case that the handling of the telephone call was tantamount to breach of duty to Mr. Williams and/or that the Defendant’s out of hours provision fell below a reasonable standard.
Much of the background factual evidence in this matter was uncontroversial. The principal factual issues for determination concerned the provision of copies of the care and treatment plan, the telephone call to the hospital and the availability of hospital records and treatment plans.
Provision of copies of the care and treatment plan
The first factual issue concerned the extent to which the Claimant had access to a treatment plan and possessed the knowledge of whom to contact should she require assistance managing her husband’s condition. In determining the Claimant’s state of knowledge, the judge, HHJ Harrison noted the Claimant’s presence at meetings when crisis plans were formulated but also accepted that her husband’s reticence to permit the Claimant to retain any such plans and the Claimant’s own belief that should help be required that she could always telephone the hospital meant that there was “a great deal of force” in the Defendant’s submission that it was irrelevant whether a copy of the plan had been provided to the Claimant (para 17).
Consequently, HHJ Harrison found on the balance of probabilities that had the Claimant possessed a copy of a treatment plan it would not have made a material difference to the tragic outcome; the Claimant would have telephoned the switchboard and requested the Heddfan unit irrespectively.
The Telephone Call to Maelor Hospital on the 9th February 2014
The second issue concerned the contents of the telephone conversation with the Claimant, which related to the Claimant’s submission that the gravity of the conversation merited Nurse Freestone taking further action than she in fact did.
Whilst accepting that the conversation was one in which “she can look back and identify things that could have pointed to a problem”, the telephone conversation was not found to be as grave as the Claimant’s characterisation. HHJ Harrison noted that during the call the Claimant stated her husband’s intention to come directly into the unit and his reluctance to be assessed otherwise, alongside accepting that Nurse Freestone signposted avenues for help through visitation to A&E for assessment and/or contacting the out of hours GP, HHJ Harrison noted that the calmness of both parties finding that the Claimant’s reassurance that she “could probably cope overnight” helped to assuage any immediate concern (para 26, 29).
The availability of hospital records and treatment plans
The final issue concerned the availability of Mr. William’s Mental Health Team records. At the material time, a “rudimentary” electronic system was in place containing a few letters. The Claimant submitted that Mr. William’s Care and Treatment plan should have been available on the drive, and could, therefore, have been accessed by Nurse Freestone; failure to upload the plan was tantamount to breach.
The Defendant rejected this analysis, arguing that the pertinent question was whether the Defendant was in breach for operating a paper-only system of records in 2014. If this question was answered affirmatively then, as a corollary, the question should become whether it was unreasonable for those records to not be available out of hours because they were stored off-site and were, therefore, inaccessible. In summary, the thrust of the Defendant’s argument asserted the mere fact a rudimentary system was in operation should not place a higher duty upon the Defendant comparatively to having no system at all in operation.
The joint statement from the psychiatrists lent weight to the Defendant on this matter accepting that whilst access to notes within 24-36 hours was reasonable this really amounted to “good practice” rather than breach of duty (para 33).
In assessing the Claimant’s submission that Nurse Freestone acted in breach and should have followed an alternative course, both parties called experts in psychiatry and psychiatric nursing.
It was accepted by both sets of experts that although Nurse Freestone found herself in a difficult position she did not act negligently. Furthermore, Dr. Turner for the Claimant accepted under cross-examination that the recognised way to assess and admit a patient out of hours was through A&E. Dr. Scott for the defendant emphasised the need for assessment of the patient prior to admission adding that systematically she would not have anticipated an assessment being undergone in the community by a consultant.
Both sets of experts were unsurprised at the non-availability of electronic notes in 2014 and found it difficult to accurately predict what would have happened had Mr. Williams presented for assessment on the day in question.
The judge in this matter, HHJ Harrison, commenced his judgment by restating the well-established authorities of Bolam v Friern Hospital Management Committee 1957 1 WLR 582 and Bolitho v Hackney Health Authority (1998) AC 232 before turning an analytical focus to submissions made by the Claimant’s counsel.
The submissions were focused on two principal arguments: the first asserted that notwithstanding the views expressed by the experts concerning standard practices in 2014, these practices did not withstand the Bolitho logic, principally concerning the availability of electronic records. The second submission ran that considering the fact Nurse Freestone was conscious of several alarming facts about Mr. Williams wellbeing that a different dialogue should have occurred akin to the advisory nature of a doctor’s role exposited in the case of Montgomery v Lanarkshire Health Board (2015) 2 WLR 768.
Does the Claimant establish that Nurse Freestone acted in breach of her duty of care either in failing to refer Mr and Mrs Williams to the Psychiatric liaison Team or in failing to offer direct access and assessment at the Heddfan unit?
In response to the second “nuanced” submission, the judge deemed the following points as particularly relevant (para 53):
This triad in conjunction with a consensus amongst the experts that the information conveyed via telephone by Nurse Freestone represented both her understanding of how the out of hours should operate and consensus that assessment out of hours was common practice permitted HHJ Harrison to conclude that the Claimant was unable to establish breach by Nurse Freestone.
Does the Claimant establish that the Defendants were in breach of duty in failing to have the Care Treatment Plan available for access out of hours by Nurse Freestone?
Turning to the Bolitho illogical argument, the logic of the argument ran as follows:
(1) The Care Treatment Plan is an important document containing important information
(2) Important information should be included in any electronic system however rudimentary.
(3) The important information was not stored on the system.
(C) This is illogical.
In the view of HHJ Harrison, it was of importance to contextualise the system that was operational at that time. The expert evidence was unambiguous that electronic note recording was not widespread in 2014. Further, the electronic system in this instance was not being utilised as a paper alternative and was not relied upon, instead being trialled by the health board whilst they maintained an “underlying reliance on a reasonable paper system” (para 62).
Consequently, HHJ Harrison felt unable the Claimant also failed under this secondary submission to establish that the Defendant’s approach was illogical and/or that failure to provide electronic access to the notes the Defendant was breach of duty.
Although no longer strictly relevant, for the sake of completeness HHJ Harrison went on to consider: if the Claimant had been referred to the Psychiatric Liaison Team (PLT) would this have made a difference to the outcome. HHJ Harrison identified two hurdles to answering this question affirmatively, the first queried whether the PLT would have offered a significantly different approach to that offered by Nurse Freestone, with the second questioning what would have been the consequence of any hypothetical psychiatric assessment performed.
HHJ Harrison answered the first hurdle negatively, finding that in light of the established facts it would have “required something very unusual” for the PLT to have departed from the approach taken by Nurse Freestone, and would have wanted to assess Mr Williams at A&E. HHJ Harrison found answering the second hurdle less straightforward but concluded that as a consequence of the instructed experts being unable to predict that an assessment undertaken by the PLT would have avoided Mr William’s death; it would, therefore be unwise of the court to speculate. As such, the Claimant fell short of establishing her claim.
Accordingly, HHJ Harrison dismissed the Claimant’s claim.
Tom Gibson, a barrister in our Clinical Negligence team commented on the case as follows:
While this case decided on its own (very sad) facts, it does highlight two key points for practitioners.
First, the standard of care needs to be considered in light of the conditions at the time – and not some years later by the time of the litigation or trial. Here, the 8-year gap between 2014 (the alleged negligence) and 2022 (the trial) was important. Although the Defendant’s electronic notes system was “rudimentary” by 2022 standards, in 2014 it was “commonplace and not a breach of duty”.
Secondly, on causation, the factual consequences of any breach of duty needs careful thought (and proof). In this case, the judge held that even if the nurse had referred the deceased directly to the psychiatric liaison team (as argued for by the claimant), then they would have given similar advice to the nurse herself – such that the end result would not have been different.”
