R (a child)-v-Bathe and West Wiltshire Mental Healthcare NHS Trust

The Claimant was born on the 18th October 1984, and appeared "different" from birth, failing to use eye contact, never naturally developing a smile, and seeming to have no need for two-way interaction. Between the ages of 2.5 and 3.5 years, paediatric assessment was carried out upon the Claimant. At this stage, he was described as constantly hyperactive, with unpredictable behaviour and tantrums, obsessions which caused him to scream, and developmental language problems. He was treated with "behaviour management" and speech therapy.

In July 1989, an Assessment Report was obtained to enable the Claimant's mother to apply for a Statement of Special Needs. By the age of 6, the Claimant's speech and communication problems remained, and he continued to be obsessional and hyperexcitable. In March 1991, the Claimant was referred by his GP to a Consultant Psychiatrist in the employment of the Defendants. a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) was made and medication was prescribed. The medication was Tofranil (Imipramine), an anti-depressant. In syrup form it caused extreme drowsiness, and in tablet form caused stomach upset. Soon the Claimant became withdrawn, with zombie-like "absences"; he also became increasingly bad-tempered, aggressive, depressed, and fearful of social events such as playgroup, and his infant school playground.

In August 1991, the treating Psychiatrist additionally prescribed the anti-convulsant Epilim. The Claimant became worse and so in November 1991 was prescribed Fluvoxamine. By this time, the Claimant's mother was unconvinced that the diagnosis of ADHD was correct, and she began to conduct her own research. She had suggested to the treating Consultant Psychiatrist at the outset that the Claimant might in fact be suffering from mild autism; as she learned more about the condition she asked if he was sure that it was not Asperger Syndrome, but her suggestions were dismissed.

In January 1992, Ritalin (Methylphenidate Hydrochloride) was prescribed, and shortly thereafter the Claimant began to develop very rapid eye movements accompanied by jerky head and shoulder movements, lasting for up to 2 hours at a time. the Claimant's mother eventually prevailed upon the treating Psychiatrist to reduce the medication, after which the eye movements and more extreme spasms stopped; the Claimant's behaviour, however, grew worse.

The Claimant was then referred to a Consultant Paediatrician, and subsequently to a Consultant Psychologist within the same Trust, the latter taking the view that the most likely diagnosis for the Claimant was indeed Asperger Syndrome, an autistic spectrum disorder. The treating Psychiatrist maintained his diagnosis of ADHD, however, and prescribed Pemoline (Volital). The Claimant began a new school in September 1992, rendering him hyper-excitable; as a consequence his dosage was increased. He began to develop strange physical movements again, including repetitive movements of hand to mouth, pouting like a fish and nodding his head to and fro, while his limbs would become rigid. The Claimant's mother drew attention to these symptoms, but the treating Psychiatrist's reaction was simply to increase the dosage.

In early 1993, the Claimant's mother was sufficiently concerned to obtain a formal second opinion from a Consultant in child and family psychiatry, who confirmed the probable diagnosis of Asperger Syndrome. Ultimately, the Claimant was weaned off Pemoline, becoming noticeably more alert as a consequence. He continued, however, to suffer from various bizarre physical movements; his arms and legs would shoot out without warning, he had finger-snapping movements and little finger rituals, he would tap the side of his face and emit strange noises, and he suffered from various muscular twitches. The Claimant continues to suffer to a lesser degree from such 'tics', none of which had been present before the prescription of Pemoline.

In May 1995, the Claimant's mother consulted solicitors with a view to investigating whether he might have a claim for medical negligence, on the basis that between the age of 5 and 10 he was diagnosed as suffering from ADHD when in fact he was suffering from the developmental disorder Asperger Syndrome. As a result of the misdiagnosis the Claimant was prescribed inappropriate drug therapy, leading him to become aggressive and to develop abnormal body and eye movements. In addition, the Claimant and his mother were deprived of the appropriate counselling and support which would have been offered had the true nature of his condition been diagnosed promptly, and the Claimant had developed a tic disorder probably attributable to the inappropriate drug therapy. (It was considered possible that the tic disorder was Tourette Syndrome – a condition that may become so severe that benzodiazepine or anti-psychotic drugs are needed to control it).

The full medical records were obtained, and, after much difficulty in identifying an expert willing and able to assist, the Claimant's Solicitors instructed an expert in child and adolescent psychiatry to prepare a report on the issues of liability and causation. The selected expert, Dr Jonathan Green, runs a specialist clinic for children with autism and related disorders, and has carried out a comparative study of children with Asperger Syndrome, autism and conduct disorder, and therefore had considerable insight into the diagnostic issues.

Dr Green's report was strongly critical of the Defendants' assessment of the Claimant and entirely supportive of the allegation that the misdiagnosis had caused the prescription of unnecessary, inappropriate, and very strong medication. Clearly, however, causation was likely to be a somewhat thornier issue.

While there was little doubt that the Claimant' short-term physical side-effects while he was on the offending medication were attributable to that medication, the issue of long-term effects would undoubtedly be clouded by the fact that many children suffering from Asperger Syndrome generally have "mannerisms" which may occur independently of medication, and indeed some develop Tourette Syndrome.

Following a cost/benefit analysis, the decision was taken not to embark on the attempt to conclusively prove the extent to which the Claimant's symptoms might be attributable to the prescribed medication by reference to extensive pharmacological and psychiatric evidence. Instead, after consultation with Counsel and the Claimant's mother and Next Friend, an offer to settle was put to the Defendant's Solicitors. Eventually, in March 1998, the Defendants agreed to settle on the basis of a payment of £8,500 representing damages for limited pain, suffering and loss of amenity in due course approved by the Court.
The Claimant's Experts were:

Dr J Green, Senior Lecturer in Child and Adolescent Psychiatry and Hon. Cons. At booth Hall Children's Hospital, Manchester

The Defendant's Experts were:
Not disclosed

For the Claimant:
Mr Oliver Thorold, Doughty Street Chambers, London/Gerry Ferguson of Withy King Solicitors

For the Defendant:
Wansbroughs Willey Hargrave