Thu 25 Apr 2019

Medical Negligence - mental health treatment and the duty of care

In considering a claim against a healthcare provider for negligent treatment, the most common examples that spring to mind may include surgical error, prescription of inappropriate medication or a straightforward misdiagnosis. 

Just as often, cases can arise from circumstances where the correct intervention or course of treatment is clearly identified, but the delivery of that treatment is delayed. If that delay has a clear and measurable impact on the health of the patient, a claim for medical negligence can be investigated and pursued where there are grounds to do so.

Cases which arise from a delay in diagnosis or a delay in the delivery of treatment require the involvement of an independent expert. This is a key element of the investigations in progressing any claim. The appointed expert will comment on the difference that earlier treatment is likely to have had. Often, that difference can be stark and the impact of a delay is identified as the cause of a significantly worsened outcome for the patient than would otherwise have been the case.

In the context of treatment for mental health conditions, the duty of care placed on healthcare professionals extends to the consideration of risk that a patient may pose to themselves and to others. That consideration should include an assessment of whether urgent treatment is required. In some circumstances, a decision can be taken to detain a patient even if it is against their will, in accordance with the terms of the Mental Health Act 1983. 

In recent weeks, a focus has been placed by the media on cases where it is claimed that there has been a "missed opportunity" in the assessment and treatment of those living with mental health conditions. The deaths of Thomas and Katherine Kemp in Ipswich, and of Amy El-Keria at The Priory Healthcare Group in Sussex, are both cases where allegations have been made that the deaths would have been preventable had adequate medical intervention been delivered promptly. 

In circumstances such as these, it is argued that failure by medical staff to identify the nature of the condition has caused in a delay in implementing an effective care plan, resulting in the most serious of consequences. In other cases, the outcome may not be so drastic but nevertheless, the patient has suffered harm as a result of the delay in the delivery of appropriate treatment.

The provision and quality of mental health services face increased scrutiny, as waiting lists and demand for access to services continue to grow. The Scottish Government draft budget for 2019/20 includes an increase in the budget for mental health services by a total of £27 million, taking overall funding for mental health in Scotland to £1.1 billion. There is a growing recognition that healthcare professionals working across all fields of medicine should have an awareness of how mental health conditions can present in a patient, and when referral for specialist treatment can and should be made.

Morton Fraser regularly acts on behalf of individuals and families in pursuing claims relating to failures in mental health treatment. There are a number of circumstances which may give rise to a claim for negligence in the delivery of psychiatric care. Examples of these cases include:

  • Delay by a GP or other healthcare professional in making a referral to a specialist mental health service for further assessment.
  • Delay between referral and appointment with an appropriate specialist, where harm has been suffered by the patient in the intervening period.
  • An accident having occurred whilst in the care of a mental health facility, causing injury or death.
  • Failure to identify risk to a patient following assessment, resulting in inadequate care and intervention taking place.
  • Release of a patient from a mental health facility before it was appropriate to do so, resulting in injury either to the patient themselves or to others.

There will be a number of other circumstances in which it may be reasonable to pursue a claim for negligence in respect of psychiatric care. Each case has unique circumstances and we will provide advice on the necessary investigations we require to undertake in progressing a case on your behalf. A successful claim may result in compensation being recovered in respect of losses suffered.  This can include a financial settlement to recognise the pain and suffering caused to the patient, and/or the family, as a result of the negligent treatment. It may also include compensation to recognise the significant costs associated with future care. Perhaps most importantly, a successful claim has the potential to impact and influence the future delivery of services in mental health care, at a time when the provision of psychiatric services remain high on the political agenda in Scotland.

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