X-v-GP and Mental Health Trust

X sought assistance from her General Practitioner following bereavement. In 1989, Mental Health Services were unable to offer support, because of lack of resources, and so a regime was agreed whereby the patient would be offered informal counselling by the General Practitioner, supposedly under the supervision of a Psychotherapist from the Mental Healthcare Trust.

Because the General Practitioner had had no formal training, nor experience of counselling, he carried out no adequate initial assessment, and embarked upon a wide-ranging and damaging treatment regime, under the fond impression that he was providing a useful service until formal psychotherapy could be put in place by the Mental Healthcare Trust.

In fact, due to incompetence and a failure to keep the supervising Psychotherapist properly informed of the progress of the counselling, the patient’s mental health deteriorated over a 10 year period until, during the Summer of 1999, both the patient and the General Practitioner suffered a mental collapse.

The patient had no recollection at all for a 4 month period. Her enquiries revealed that the General Practitioner had treated her at home and, during the home treatment, inter-alia, he thought he should investigate abnormal vaginal bleeding without a chaperone.

When the patient began to wonder what had happened, the General Practitioner was absent from work through stress, and wrote to the patient informing her that he could no longer be her GP.

The patient therefore transferred to another surgery, where investigations were put in train that tended to suggest that the cause of the patient’s extreme illness, culminating in the collapse in the Summer of 1999, was a combination of the General Practitioner’s incompetent counselling technique and irresponsible prescription of Benzodiazepine and painkilling medication. It was recommended that the patient should seek independent advice, as another Clinical Psychologist to whom she was referred by the Mental Healthcare Trust, advised that she would need to seek out-of-area treatment, because of inadvertent professional abuse.

During this time, the patient was extremely mentally disturbed, because of what had happened to her. Unfortunately, because of the very short time limits for complying with various complaints procedures, she sought advice from various agencies at a time when, objectively, she was in no fit state to put forward a complaint in a way that would be readily comprehensible to the investigating bodies.

Because she expressed concern about the fact that she had no recollection of giving informed consent to an intimate examination, a well-meaning friend involved the Police.

This had the serious effect of the Police interviewing a woman who, with hindsight, was still seriously mentally ill due to the negligent treatment she had received. However, the Police did not recognise the extent of her incapacity, nor did they arrange for any sort of medical assessment.

Instead, they arrested the General Practitioner and the General Practitioner offered an explanation to the Police, as to why he was treating the patient at home, which was extremely bizarre. However, the Police assumed that the history given by the General Practitioner was accurate. They thought the patient had made up a scenario, because she was infatuated with the General Practitioner, and now wanted to punish him, because he had discontinued her treatment due to his mental breakdown.

Perhaps unsurprisingly, the General Practitioner always believed that he was a thoroughly competent and caring clinician, and he unequivocally blamed the patient for misleading him, and he was encouraged in his belief by the supervising Psychotherapist, who was easily convinced that the patient had been misleading the General Practitioner about her medical history.

Accordingly, the Police sought the advice of the Crown Prosecution Service, who advised them that there was no chance of securing a conviction, and therefore no criminal proceedings were justified. However, they then went one step further and threatened the patient with a prosecution for wasting police time if she repeated any allegations of assault.

In the meantime, the Chief Officer of the Community Health Council helped the patient to compose a number of complaints: one to the General Practitioner’s Surgery under the NHS Complaints Procedure, and on the advice of the Health Authority another to the General Medical Council.

However, when the Police investigation collapsed for want of independent evidence, this persuaded the Independent Review Panel convened under the NHS Complaints Procedure that the patient was demented and that the General Practitioner had been doing his best under extraordinarily difficult circumstances. They therefore dismissed the patient’s complaint and the only criticism they made of the General Practitioner, and the supervising Psychotherapist, was that they had failed to keep proper notes of the counselling.

Sadly, because the General Practitioner Assessors involved in the complaint had no experience of psychotherapy or counselling, and were bending over backwards to make allowances for the treating General Practitioner, they accepted the evidence of the General Practitioner and the supervising Psychotherapist about the propriety of the treatment afforded to the patient, and the appropriateness of the drug regime.

This failed complaint, in turn, led to the refusal by the Health Service Ombudsman to intervene, and the rejection of the GMC complaint by a lay-screener, without referring the facts of the case to a higher authority.

Thus, by early 2002, the patient was receiving no ongoing support from Mental Health Services, although her new General Practitioner had immediately recognised (in contrast to the General Practitioner Assessors) that the Benzodiazepine regime was grossly excessive, and had been carried on for many years in ignorance of the 1984 advice from the Committee on Safety of Medicines. The new General Practitioner therefore took steps to gradually taper off the patient’s medication and put in train appropriate referrals to investigate orthopaedic problems that were preventing the patient returning to work.

During the 10 year period of counselling, the General Practitioner had formed the view that the patient was permanently incapable of work, and had therefore agreed with the County Occupational Physician in a telephone conversation that she should be permanently medically retired. The Occupational Health Physician took no steps to independently assess the patient, but was seemingly happy to rely upon the assurance of the impaired General Practitioner.

Thus, by mid 2001, the patient had been systematically stigmatised by the General Practitioner and supervising Psychotherapist, and all the independent investigating bodies had decided that there was no case to answer and all the patient’s problems flowed from her pre-morbid condition. The Chief Officer of the Community Health Council was extremely concerned about what had taken place, and the lack of rigour in the investigative procedures. Therefore, public funding was obtained to enable a full investigation to be carried out, with the benefit of appropriate independent medical experts.

When requests for records were sent to the Defence Society of the General Practitioner and the Solicitors for the Mental Healthcare Trust, the Claimant was accused of pursuing ‘a malicious vendetta’ and was once again subject to abuse from the NHS bodies concerned. The Claimant was told that she would be put to strict proof of her entire social and employment and medical history, and therefore exhaustive enquiries had to be undertaken to ensure objective third party corroboration of the patient’s history.

During the course of this investigation, it soon became clear that the bizarre history related by the General Practitioner to all the investigating bodies, had come from him and not from the patient. On the balance of probabilities, it appeared that the General Practitioner was at all material times mentally ill as a result of events in his own childhood, and occupational stress.

The Claimant’s medical records contained huge gaps, and neither the GP nor the Psychotherapist had undertaken a proper assessment at the outset, nor arrived at a sensible diagnosis, and had devised no treatment plan. The counselling, as evidenced in the records, was aimless and involved numerous inadvertent and abusive boundary violations by the inexperienced Counsellor.

There was a strong suspicion that in fact the Psychotherapist had exercised no control over the arrangement at all and because she ill-advisedly trusted the General Practitioner’s judgement, she simply allowed him to counsel the vulnerable patient as he saw fit.

The Claimant’s General Practitioner expert was at first minded to follow the line adopted by the Independent Review Panel, but then when he had mastered the documentation and recognised that none of the General Practitioner’s evidence to the Panel stood up to rational analysis, he advised that there had been numerous breaches of duty, poor prescribing practice, and he expressed the view that the General Practitioner should be reported to the General Medical Council, because he clearly had no insight into the depths of his own incompetence.

In the same way, the independent Consultant Psychiatrist/Psychotherapist who was instructed to examine the details of the counselling arrangement, advised that it was not in accordance with any respectable school of psychotherapy, and this accounted for why it had been so damaging. Enquiries were made about the qualifications of the supervising Psychotherapist, as it was strongly suspected that she had no formal psychotherapy qualifications.

The view of the independent Consultant Psychiatrist was that the boundary violations by the untrained Counsellor, coupled with excessive use of Benzodiazepine and painkilling medication, had led to the deterioration in the patient and ultimately an acute episode of depersonalisation and psychosis during the Summer of 1999.

The independent expert Psychotherapist’s strong suspicion was that the General Practitioner himself was undergoing a psychotic episode during the Summer of 1999 as a result of the failure of his idiosyncratic treatment of the patient, and this brought about a scenario where a “folie á deux” took place.

The Psychiatrist/Psychotherapist’s opinion was bolstered by an independent expert Psychopharmacologist/Psychiatrist who agreed that the Claimant’s acute mental breakdown in the Summer of 1999 had been precipitated by the ill-advised abrupt withdrawal of high levels of Benzodiazepine medication. This led to an entirely predictable Benzodiazepine withdrawal syndrome involving physical side-effects and psychosis, depersonalisation and hysterical conversion.

It would also account for the mysterious breakthrough vaginal bleeding that prompted the General Practitioner to carry out an unchaperoned intimate examination in an attempt to obtain a biopsy.

Throughout the period of treatment, the Claimant’s pre-existing orthopaedic conditions were exacerbated by numerous falls and fractures caused, on the balance of probabilities according to the experts, by the excessive doses of Benzodiazepine medication and painkillers, repeat prescribed without review by the General Practitioner to the patient.

A pre-action protocol Letter of Claim was rejected by the Trust Solicitors. The GP’s Defence Society did not respond at all. A claim for damages was therefore commenced, and the claim was rejected by the General Practitioner’s Defence Society and by the Mental Healthcare Trust.

In the meantime, the Claimant’s Solicitors obtained the exhibits that had been removed from the Claimant’s home during the Police investigation, and it became clear that there were hundreds of tablets in unmarked bottles and left loose in drawers, together with enough bandages and other medical materials to fill a large container.

Nobody involved in any of the previous investigations had thought it at all unusual that all these medical supplies and drugs should be kept at the patient’s home, and the Defendants duly served Defences denying any breach of duty or causation of injury.

The court action went through the usual interlocutory stages until February 2004, when the Claimant’s Solicitors explained to the General Practitioner’s legal advisers that they required disclosure of the General Practitioner’s own medical records so that an independent Forensic Psychiatrist could examine them in conjunction with the Claimant’s medical records. At the same time, the Claimant’s Solicitors invited the Defendants to agree to mediation of the claim, following exchange of medical evidence.

The Defendants postponed the exchange of medical evidence and delayed disclosure of the General Practitioner’s own medical records for several months, and then, at the Case Management Conference in April 2004, there was a round table discussion between the Claimant’s Counsel and Solicitor and the Solicitors for the Defendants, at which acceptable terms for the settlement of the Claimant’s claim were agreed, and a Consent Order lodged with the Court.
General Damages for Pain, Suffering and Loss of Amenity

During the discussions between the parties, it seemed to be common ground that if what the Claimant’s medical experts said about the cause of the Claimant’s psychological injuries and physical injuries were accepted by the Court, General Damages in the order of £25,000.00 to £30,000.00 would be appropriate. However, in the context of a global settlement, there was no formal breakdown of the various heads of damage.
Special Damages

The claim included heads of damage in respect of loss of past and future earnings and/or a claim for disadvantage on the open labour market in accordance with the principles in Smith –v- Manchester Corporation. The Claimant would have to undergo out-of-area treatment involving distant travel and it was anticipated that provision would have to be made for what was effectively “deprogramming” psychotherapy from a specialist in professional abuse in London. This would involve travel and accommodation expenses, and a view was expressed by the Claimant’s psychotherapy expert that the programme of treatment would probably last in the order of 5 years.

However, at first the Defendants’ Solicitors were only authorised to put forward without prejudice a modest settlement offer representing General Damages for pain, suffering and loss of amenity, on the basis that a rehabilitation programme would be put in place for the Claimant with the aim of enabling her to re-enter the employment market as soon as reasonably possible.

Unfortunately, the experience of the NHSLA in achieving a settlement on a similar basis arising out of abuse of a patient by a therapist employed by the same Trust, meant that the uncontrolled costs of case managing such an arrangement, meant that the NHSLA were unwilling to enter into such an open-ended agreement again.

Given the Defendants’ strong resistance to the claims, and complete denial of breach of duty and causation, the claim had to be settled at a discount to represent the significant litigation risks in proceeding further. After all, the Defendants had managed to persuade the Police, the GMC, the Health Service Ombudsman and an Independent Review Panel, that their treatment was above reproach. There was no guarantee that, even after a proper standard of investigation, the Court would accept all the Claimant’s arguments and, due to pre-existing orthopaedic conditions, there was some doubt as to whether all the Claimant’s arguments over exacerbation of her physical problems would ultimately be successful.
CRU

The Compensation Recovery Unit issued a nil certificate, which was not disputed by the parties in the absence of an admission of any breach of duty or causation.
Comment

This case is an object lesson in what can go wrong with investigations unless they are properly resourced and proceed from the assumption that the patient is likely to be telling the truth.

* Witness Statements

The Claimant’s Solicitor obtained a number of Witness Statements of Fact from neighbours and a CAB worker who had been concerned about the General Practitioner’s demeanour. Another Statement from the former Chief Officer of the Community Health Council was strongly critical of the interference by the Health Authority in curtailing the evidence that could be led by the Complainant to the Independent Review Panel. If informal correspondence passing between doctor and patient, including inappropriate expressions of affection had been disclosed to the Panel, it seems reasonably likely that the Assessors would have looked much harder at the evidence of the General Practitioner.

* Full and accurate clinical notes

The case demonstrates only too clearly how important it is that doctors and Psychotherapists keep accurate, properly timed, notes of all their encounters with patients and of the advice given, and the treatment rationale, diagnosis, and treatment plan. In this case, the Defendants seemingly deliberately took the decision not to make notes of numerous encounters with the Claimant nor their supervision interviews. The reasons for this can only be guessed.

The Defendants both alleged that the Claimant had never complained about the counselling, yet even within those records that they had maintained, there were clinical notes and correspondence which showed that the Claimant was writing, expressing her unhappiness at the lack of progress being made, and asking that the counselling be discontinued, but these requests were ignored by both clinicians.

* Psychological sequelae of iatrogenic injury

The case also demonstrates that in addition to the serious psychological injuries that can be caused by inappropriate and poorly structured counselling, and irresponsible prescribing, further significant psychological sequelae can be caused by the lack of insight of treating clinicians into the consequences of their incompetence. Indeed, in this case, a further layer of damage was inflicted by the open disbelief expressed to Complainants under the NHS Complaints Procedure by the Convenor, lay Chair and Clinical Assessors, and Police Officers.

Embarrassment of colleagues of the negligent clinicians then compounds the problem, because they do not want to get involved in offering support to the damaged patient that might be interpreted as validating her complaints, and there is very little resource available for open-ended psychotherapy to undo the effects of deliberate or inadvertent professional abuse.

Despite the fact that both the First and Second Defendants argued that there were parallel discrete factors that would themselves cause psychological difficulties for the patient sooner or later, it is believed there was sufficient evidence in the records and in the Claimant’s Witness Statements to enable the Defendants’ medical experts to relate a significant part of her pathology to the acts and omissions of the Defendant clinicians, and that enabled the parties’ representatives to negotiate a sensible sum in settlement at the end of the day.

* Costs

The Defendants’ apparent determination not to negotiate at any stage for more than 4 years, meant that the Claimant’s legal costs alone were nearly three times the damages. The overall cost of the action to the NHSLA and the General Practitioner’s Defence Society, also includes the Defendants’ legal costs. Once again, this must be a matter of regret for all concerned, and is a feature that is caused by a refusal by investigating bodies to robustly question doctors where there is clear evidence that their records and treatment procedures do not stand up to objective analysis.

* Experts

Claimant’s experts were:

1. Dr James Hampton – General Practitioner
2. Dr Ray Brown – Consultant Psychiatrist/Psychotherapist
3. Professor Malcolm Lader – Consultant Psychopharmacologist/Psychiatrist
4. Dr Alan Hayward – Consultant Psychotherapist
5. Mr Peter Morrison – Consultant Orthopaedic Surgeon

Defendants’ experts were:

1. General Practitioner expert not known
2. Dr Barlow - First Defendant’s Psychiatrist
3. Dr Gallwey – Second Defendant’s Psychiatrist

* Counsel/Solicitors

For the Claimant:

Counsel - Sally Hatfield of Doughty Street Chambers succeeded by Deirdre Goodwin of 13 King’s Bench Walk, when Ms Hatfield declared a conflict.

Solicitor - Gerry Ferguson of Withy King

For the Defendant:

Counsel - First Defendant – Dr Richard Partridge, 3 Serjeants Inn, London
Second Defendant – Dr Bridet Dolan, 3 Serjeants Inn, London

Solicitors - Jane Lang of Radcliffes Le Brasseur, Cardiff for the First Defendant
Simon Lindsay of Bevan Ashford, Bristol for the Second Defendant