NEIL CUMMING AGAINST TAYSIDE HEALTH BOARD
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 58
A101/15
OPINION OF SHERIFF J BECKETT, QC
(Sitting as a Temporary Judge)
In the cause
NEIL CUMMING
Pursuer;
against
TAYSIDE HEALTH BOARD
Respondent:
Pursuer: Davidson; Thorntons Law LLP
Respondent: Pugh; NHS Scotland Central Legal Office
21 April 2016
Introduction
[1] In this action the pursuer sues the defenders for reparation in unusual circumstances. He is detained in the state hospital having been acquitted, by reason of insanity, of the murder of his wife. After killing his wife on 15 July 2011, the pursuer attempted to commit suicide by driving his car into another vehicle causing injury to other road users and to himself as a result of which both he and the defenders have been sued by those other road users in Perth Sheriff Court.
[2] The pursuer’s claim is that a psychiatrist employed by the defenders, Dr Lyn McLaren, was negligent in failing to advise the pursuer of the availability of a bed at Murray Royal Hospital, Perth and in failing to arrange his admission there when he attended with her on 14 July 2011 at Ninewells Hospital, Dundee. He claims that, but for the negligence alleged, he would not have killed his wife the next day and would not have attempted to commit suicide. Accordingly he seeks solatium in respect of the loss of his wife and claims under various other heads of damages. Whilst the defenders plead “ex turpi causa non oritur actio” Mr Davidson explained that the pursuer will seek to persuade the court that the principle is not applicable where the pursuer was insane when he killed his wife.
[3] The case called before me on the pursuer’s partly opposed motion, first to amend by the inclusion of a further head of damages and, secondly to grant commission and diligence. In the course of the hearing on 3 March 2016, I allowed the amendment of consent and permitted time for the defenders to answer. I granted commission and diligence in respect of calls 1, 2 and 3 of the specification of documents to which there was no objection. However the defenders continued to resist call 4 of the specification and I heard parties in that regard before making avizandum.
[4] In the course of the hearing, in light of submissions made, Mr Davidson proposed various amendments to his specification, but consensus was never reached between the parties as to the extent of the material which could legitimately be recovered.
Call 4 of the specification
[5] I set out below the terms of call 4 and 5. The italicized, bold text represents amendments made by Mr Davidson in the course of the hearing.
“4. All documents prepared by Dr McLaren at or about the time of events on 14 and 15 July 2011 available to and relied upon by the defenders’ Significant Clinical Event Analysis Review (as described in article IV.4 of condescendence) and in the hands of the defenders or anyone on their behalf (except insofar as compiled in contemplation of litigation) relative to
(i) the care and treatment provided to the pursuer in the period prior to and including 15 July 2011;
(ii) the circumstances surrounding the pursuer’s road traffic accident of 15 July 2011; and
(iii) the circumstances surrounding the death of the late Mrs Barbara Jane Cumming on 15 July 2011.
so that excerpts can be taken therefrom at the sight of the commissioner of all entries therein showing or tending to show the contents of the following documents described in section 2.3 of the said review’s final report dated 24 August 2012:
(a) the Incident Report Form raised on 15 July 2011 relative to the care and treatment of the pursuer;
(b) the medical/nursing case notes of the pursuer; and
(c) the documentation/statements from the defenders staff, with regard to the care and treatment provided to the pursuer on 14 July 2011.”
5. Failing principals, copies, duplicates or drafts of any or all of the above.”
In the course of the hearing it became apparent that the pursuer has all of his medical records and, as I go on to explain in paragraph [15] below, a document which was produced by the defender and given to the pursuer in the hearing appears to me to be the incident report form referred to in 4(a).
Background
[6] It is not disputed between the parties that the pursuer has a lengthy history of serious mental disorder and that following a worsening of his symptoms whilst on holiday with his wife (the deceased) in July 2011 he was examined on 14 July 2011 at Ninewells Hospital, Dundee by Dr Lyn McLaren who concluded that the pursuer should be re‑admitted to a psychiatric hospital for in-patient care. Dr McLaren advised the pursuer and the deceased that no bed was available for him at the Carseview Centre within Ninewells Hospital on 14 July. A bed was available in another hospital run by the defenders, the Murray Royal Hospital in Perth.
[7] A sharp dispute then arises between the position of the pursuer and the defenders. The pursuer avers that Dr McLaren did not tell him or the deceased of the availability of a bed in the Murray Royal in Perth. He avers that had he been told, he would have accepted the place and travelled to Perth to be admitted.
[8] The defenders aver that Dr McLaren agreed with the pursuer that he should be re‑admitted to hospital for review and for planned medication change under inpatient supervision. Having ascertained that there was no bed available at the Carseview Centre, Dr McLaren learned that a bed was available at the Murray Royal and offered it to the pursuer who declined as he preferred to wait for a bed to become available at the Carseview Centre. Dr McLaren had known the pursuer for years and was familiar with his history which did not include violence or aggression. Having carried out a full clinical risk assessment, Dr McLaren concluded that the pursuer did not meet the criteria for compulsory admission to hospital.
[9] The pursuer maintains that on his averments, Dr McLaren acted in a manner in which no ordinarily competent doctor in her position could have done.
[10] It is not in dispute that the pursuer repeatedly struck his wife with a knife in the family home on 15 July causing her death and that he then attempted to commit suicide by driving.
[11] It is not in dispute that the defenders carried out a “Significant Clinical Event Analysis Review” into the events of 14 July 2011. The conclusion of the Final Report dated 24 August 2012 was that Dr McLaren had on 14 July 2011 offered the pursuer a bed at Murray Royal Hospital and that he had been offered appropriate care in July 2011.
[12] Pursuant to health board policies, a copy of that report has been disclosed to the pursuer who maintains that he is entitled to recover the documents on which the conclusions in the report were based. A copy of the report is lodged for the pursuer as 6/1 of process which is entitled “Significant Clinical Event Analysis Review – Final Report” which is marked “Highly Confidential”.
The report, no. 6/1 of process
[13] It is stated that the Significant Clinical Event Analysis was held on 14 May 2012. At section 2.1, under the heading “Terms of Reference” it is stated:
“The aims of a significant clinical event review are:
- To establish the background and sequence of events that led up to the incident.
- To identify underlying contributing factors in management and organisational systems.
- To identify lessons learned and develop a list of recommendations that would prevent similar incidents occurring in the future.
- To communicate any findings and recommendations across the organization to those individuals directly affected or involved.
It is important to note that whilst acknowledging the professional responsibility and accountability of all staff and departments involved in this incident, it is NOT the purpose of this report to apportion blame.
The report has been prepared based on information obtained during the SCEA review and extracts from the clinical record.
This report remains confidential and is not retained as part of the medical notes of the person involved.
Whilst family members are involved in the SCEA process, the panel will address and explore the issues on the family’s behalf, finding the answers to their questions and informing them of the outcome of the review. In addition the family will be advised of actions that will be taken as a result of the review.
…
The Medical Director informed the attendees that outcomes of SCEAs are often requested by the Procurator Fiscal and whilst no request has been received as yet, a full report is given to the Procurator Fiscal if requested.”
[14] At section 2.3, under the heading “Methodology” it is stated:
“The Incident Report Form raised on 15 July 2011 and pertinent Medical/Nursing case notes, documentation and statements from staff in relation to NC’s care were circulated to the Review Group members prior to the SCEA Review being held.”
[15] In the course of the hearing, counsel for the defenders produced to the court and to the pursuer a copy of a document which appears to me to be the Incident Report Form raised on 15 July 2011. It narrates that the pursuer was referred by Dr McLaren on 14 July 2011 to the Acute Mental Health Response Team (“AMHRT”) via the Community Mental Health Team and that AMHRT was to offer additional support to the pursuer which included a nurse speaking to the pursuer on 15 July and making an appointment to visit him at home at 3pm. In the event, the staff member was unable to access the pursuer’s home because of police activity which he came to understand related to the pursuer. It narrates that police officers came to take statements from staff at the Carseview Centre later that day.
[16] Counsel for the defenders also produced a copy of the NHS Tayside Risk Management Significant Event Management Policy (“SEM”) dated January 2012 which had been in force when the review was conducted. At para 6.1 under the heading Significant Clinical Event Analysis there is a list of 14 situations in which such an analysis must be held, none of which would have prompted the review which was held following the events of 14 and 15 July 2011. It goes on to state:
“Local teams can also request a SCEA in the following circumstances:
- Where the incident is likely to result in highly damaging adverse publicity/defamation.
- Where the incident is likely to result in a claim being pursued against the organisation.
- Where the incident could result in any of our hospitals being incapable of operating normally and whereby ‘shut down’ is imminent.”
[17] The version of NHS Tayside’s SEM updated in August 2012 was also produced. At paragraph 7.3, it states:
“Release of Incident Report Forms/Significant Event Analysis Reports
Individuals who are the subject of incident
Copies of Incident Report Forms and Significant Event Analysis Reports will be provided as part of a Data Protection Subject Access request. However, the data subject will be provided with personal information relating to them only. All other personal information relating to other individuals (ie verifiers, witnesses etc) within the documentation must and will be removed.”
Submissions for the pursuer
[18] For the pursuer, Mr Davidson explained that the crucial issue for the pursuer was to be able to prove that he was not offered a bed by Dr McLaren. The detailed medical notes of her examination of the pursuer on 14 July did not contain any record that a bed was free in the Murray Royal or that it was offered by Dr McLaren to the pursuer. The whole case would turn on what happened at that meeting.
[19] Counsel submitted that whilst there was reference to a fishing diligence in the opposition to the pursuer’s motion, he apprehended that the real issue related to whether the report and the documents on which it was based fell within the post litem motem rule such that it was not susceptible to recovery by the pursuer. The court should find an analogy with the circumstances encountered by Lord Uist at first instance in Komori v Tayside Health Board 2010 SLT 387, a decision to which both sides made extensive reference.
[20] Whilst what was recorded at paragraph 11 in Komori was counsel’s submission which was not dealt with by Lord Uist, the proposition that disclosure of the report necessarily waived any confidentiality under the post litem motam rule which might otherwise be attached to the underlying documents was a sound one. Since the defenders’ statement of proposals for further procedure under RCS 42A.3.(3), indicated that the medical director of NHS Tayside would be called as a witness to speak to the contents of the Significant Clinical Event Analysis Review, it was only fair that the pursuer should have the material on which his conclusions were based. That material ought to be available to the pursuer when he called Dr McLaren as a hostile witness in order that her evidence might be tested by reference to contemporaneous material. The decision in Komori was entirely in point and the specification ought to be granted in full.
[21] In response to the defender’s submissions, counsel made the amendments to his specification shown at paragraph [5] above.
Submissions for the defenders
[22] For the defenders, Mr Pugh explained that it was the advent of freedom of information and data protection legislation which led to the development of policies such that the review report would be released as a matter of course to certain persons and it should not be understood as a waiver of privilege in respect of the underlying information used to compile the report.
[23] Counsel then challenged the relevance of the conclusion reached in the report to the issues in the case. It was inadmissible opinion evidence of the issue before the court and he would not be calling the medical director to speak to the report. That possibility had only been adverted to in the defenders’ proposals because the pursuer’s averments had suggested that the case may rest on several bases. Counsel for the pursuer, in his note of proposals for further procedure, had now confirmed that the allegation of clinical negligence turned on the answer to a single question:
“At any time during her consultation with the pursuer and the deceased of 14 July 2011, did Dr Lyn McLaren…mention that there was an available bed at the Murray Royal Hospital, Perth and offer it to the pursuer?”
Mr Davidson having again confirmed that position in his submissions, Mr Pugh stated that he will not call the medical director to speak to the conclusions of the review report.
So far as call (b) was concerned, since the pursuer already has all of these medical records, the only purpose of the call could be to ascertain what medical records were before the review.
[24] Counsel commended Lord Uist’s opinion in Komori as a sound and accurate review of the law, but submitted that the case was plainly different on the facts and did not support the pursuer’s application.
[25] Counsel drew attention to the passage from Young v National Coal Board 19657 SC 101, quoted in Komori at paragraph 14 and submitted that what he termed the “accident book exception” was well described there. This passage gave rise to the standard call in a specification where material within the accident book exception was sought.
“The principle that after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident free from the risk of having to reveal his information to the other side suffers at least one exception … That exception … relates to reports by employees present at the time of the accident and made to their employers at or about that time. It appears to be an arbitrary exception, incapable of being extended to cover other reports.”
[26] If the pursuer chose to reframe his specification in that way, then the defenders would welcome the opportunity to take instructions on making voluntary disclosure of any such material. However, as framed the calls were far too wide and did not fall within the recognised exception and had the flavour of a fishing expedition for material to use in the examination of Dr McLaren. A litigant seeking to recover statements of witnesses who were not parties to the cause for the purposes of cross-examination would not ordinarily succeed. The defenders’ policy in carrying out review investigations is that witness statements will not be produced and they are concerned that being forced to depart from that policy would hinder the kind of investigations which the defenders have to undertake. The contents of those documents referred to at paragraphs [16] and [17] above, tended to confirm that the report and underlying information was subject to the post litem motam rule.
Decision
[27] I was not addressed on any of the cases which examine the question of waiver in the context of a claim for confidentiality. Whilst Mr Davidson referred to waiver, he did so in the context of a contention that natural justice and fairness required that if the author of the report was to be called by the defender to speak to its conclusions, then the validity of those conclusions ought to be capable of being tested by reference to the material on which he relied in reaching them. Once Mr Pugh had made the concession that the medical director would not be called, the issue was not revisited by the pursuer.
[28] Mr Davidson’s principal argument was that, by analogy with Komori, the material in the specification ought to be viewed as falling outwith the post litem motam rule.
[29] I consider that Komori is a case which very much turns on its own facts and that Lord Uist did not conceive himself to be innovating on the principles established in case law. He carefully explained the particular context in paragraph 31 of his opinion, identifying the precise circumstances and the purpose for which the documents in question were created. Those circumstances involved a patient complaint which could only be investigated if it was not something about which the complainant was taking legal action. Accordingly, since when the complaint was made an investigation was carried out, it followed that legal action was not under contemplation. In paragraph 32, Lord Uist observed that the documents were created at the instigation of the pursuer for her benefit and there would have been no investigation in the absence of her complaint. The pursuer could be viewed as trying to find out if there had been some form of accident and it could not be said that the defenders were pursuing their own investigations of the accident.
[30] I am not persuaded that the situation in the present case is comparable. It appears to me that the purpose of the review was very much wider. I do not agree with the submission that its terms of reference take the underlying material outwith the post litem motam rule.
[31] Contemporary Scottish society is no less litigious than it was in 1983 when the Lord President refused to order recovery of photographs of the locus taken shortly after an accident at work by the employer’s safety officer in More v Brown and Root Wimpey Highland Fabricators Ltd 1983 SLT 669, referred to in Komori at paragraph 23.
“The general rule has always been understood to apply to reports and records prepared by or on behalf of one side or the other after a real likelihood of a claim and a disputed question of liability has emerged. The particular formulation of the rule which has existed since 1957 has simply reflected recognition by the courts that in modern conditions there are few, if any, accidents, and especially industrial accidents, which do not give rise to a real likelihood of a dispute about liability, and that in the interests of certainty it must now be recognised that confidentiality ought to attach to all records and reports of investigations made after an accident has occurred.”
The reference to 1957 is a reference to Young v National Coal Board 1957 SC 99, quoted in Komori at paragraphs 14-17. In Young, whilst the decision of the Lord Walker at first instance was overturned on appeal, part of his opinion (at page 101) was approved on appeal as it has been in subsequent cases. He explained that subject to the exception of spontaneous reports made by employees at the time of an accident:
“The principle [is] that after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident, free from the risk of having to reveal his information to the other side…”
On appeal, the Lord Justice Clerk stated, at page 105:
“The Court has inherent power to compel the parties to a cause to produce documents which may have a bearing on the issues between them. The Court will not, however, in the ordinary run of things, order production of documents which have been prepared in anticipation or in development of a party's case. Once the parties are at arm's length, or are obviously going to be at arm's length, the details of their preparation of weapons and ammunition are protected as confidential. Just when the parties come to be at arm's length may often be a difficult question, especially as some potential defenders prepare well in advance against the contingency of accidents, and indeed, under modern conditions, few accidents, and particularly few industrial accidents, can happen without its occurring to one or other party at an early stage that questions of disputed liability may arise.
However that may be, there is a long series of cases where reports made immediately after the occurrence of an accident by a responsible person to his employers, to inform them of what has happened, have been allowed to be recovered. The underlying theory is that, if such a report is made as part of routine duty, and as a record of the reporter's immediate reaction before he has had the time, opportunity or temptation to indulge in too much reflection, it may well contain an unvarnished account of what happened and consequently be of value in the subsequent proceedings as a touchstone of truth. The same theory underlies the reception in our criminal law of de recenti statements in support of credibility, and the preliminary act in Admiralty causes.
This doctrine is of limited scope, both as to the authorship and character of the reports sought to be recovered and as to the time at which they are made. If the scope of the doctrine were extended, it would be apt to handicap the legitimate investigations of defenders, paralyse their remedial measures, and indeed rob the reports of that spontaneity which may be their virtue.”
[32] These dicta suggest that a strong policy consideration underlies the general rule, namely that an organisation should not be inhibited from carrying out legitimate investigations and it would be undesirable to paralyse the taking of remedial measures which might thereby be identified. Those considerations would seem to apply in a hospital setting where a psychiatric patient was not admitted to hospital on seeing a psychiatrist before killing his wife the next day.
[33] Accordingly, I have not been persuaded that commission and diligence should be granted for those parts of the specification which remain in contention. I might well have reached a different conclusion if counsel for the pursuer had amended his specification so as to include only the kind of spontaneous reporting by employees to the defenders which falls within the recognised exception. Since he did not do so, and since it would only be fair in the absence of that amendment that the defenders should have an opportunity to consider whether voluntary disclosure should be made, the pursuer’s motion for commission and diligence in respect of call 4, and call 5 insofar as it relates to call 4, is refused.
Expenses
[34] I reserve in the meantime all questions of expenses.