Clinical Negligence Made Clear

Psychiatric Care
does not prove that the management of risk was inadequate. The claimant
will have to prove that there were negligent acts or omissions in their management
that caused the harm to occur. An important part of management
of an in-patient assessed as being at risk of self-harm or suicide is observation.
Typically, hospitals and units operate different levels of observation
from perhaps hourly to constant and within arm’s length. If observations
are, say, every 15 minutes, then there ought to be a record on which staff
enter their initials every 15 minutes to show that they have observed the patient
and that they are safe and well. This record might include some other
details such as where the patient was, whether they were asleep or awake,
interacting with others, watching television etc.
Whilst it might be thought to increase patient safety to observe every 15
minutes, the very routine of regular observations gives a patient who is intent
on self-harming or taking their life a predictable gap between observations
when they know they are not going to be observed. That is not to say
that the only safe regime of observation is constant, one to one observation.
But the use of regular, intermittent observations has to be seen for what it
is. The observation regime should be re-evaluated in the light of any material
incidents, disclosures by the patient or changes in their condition and
behaviour, and in any event every 24 hours or so.
One of the measures that mental health teams can take in appropriate circumstances
is to detain a patient under the Mental Health Act 1983. It is difficult
to envisage many circumstances in which it would be considered to be
negligent not to have detained a patient but it could happen. The statutory
provisions regarding detention form a set of powers rather than obligations.
In S v South West London and St George’s Mental Health Trust [2011] EWHC
1325 (QB) the claimant claimed damages for personal injury for detention
after an alleged misdiagnosis of bi-polar disorder but the court found that
there had been no negligence. In one case in which I was involved, Rabone v
Pennine Care NHS Trust [2012] UKSC 2, the Trust had admitted that it had
negligently allowed their patient, Melanie Rabone, to go home on “leave”
having been an in-patient for a week. She was not being detained under the
Act but was a so-called “voluntary” patient. As such she was technically
free to leave at any time, but the Trust accepted that had she tried to leave
against advice, then she would probably have been detained under the Act.
She only left to go home because it had been negligently advised that she
should do so.
Where the alleged breaches of duty involve failures to protect someone who
is clearly suffering an acute mental health crisis, it may be easier to establish
that, but for the negligent failures to observe, to remove sharp objects from
333