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Articles | Wed 3rd Apr, 2019
Suicide is a topic that many of us find difficult to discuss. Attempts on one’s own life, particularly if unsuccessful, are not commonly spoken about, let alone raised in personal injury proceedings. However, can a defendant raise that a claimant should be contributorily negligent for an unsuccessful suicide attempt? This issue was briefly explored by Mrs Justice Whipple in the recent case of PPX v Aulakh [2019] EWHC 717 (QB).
Factual background
The Claimant, PPX, a gentleman aged 51, brought a claim for damages for clinical negligence against the Defendant, Dr Aulakh (the Claimant’s GP). The Claimant acted through his brother, who was his litigation friend, as sadly, he suffered a serious neurological injury as a consequence of an attempted suicide by hanging in May 2012. The Claimant’s claim alleged negligent treatment by the Defendant at a consultation on the 25th April 2012 (“the April Consultation”). It was said that if the treatment provided to the Claimant by the Defendant during the April Consultation had been of a proper standard, the Claimant would have been urgently referred to his local NHS mental health services, and consequently would not have tried to commit suicide and would have avoided his injuries.
The matter proceeded by way of a split trial, with Mrs Justice Whipple solely dealing with breach of duty and causation. The Defendant raised the issue as to whether the Claimant had contributed to his own damage by his intentional suicide attempt, which Mrs Justice Whipple acknowledged she would need to consider if liability was made out.
Rather unusually, neither the Claimant, nor the Defendant, gave evidence at trial. The Claimant lacked capacity as a result of his neurological injury. The Defendant, on the other hand, had intended to give evidence at trial, however she later became unfit to give her evidence and a hearsay notice was filed.
The trial largely concerned the April Consultation, during which the Defendant had written a note that she relied upon. The Court heard evidence from GP, psychiatry and community psychiatric nursing experts.
The Court heard that the Claimant and his family had been patients of the Defendant for a long period of time, since approximately 2003. The first note in relation to the Claimant experiencing suicidal thoughts was not until June 2008, and it was recorded that the Claimant was having marital issues. The Claimant was prescribed anti-depressants and made several visits to the Defendant throughout 2008. In February 2009, the Claimant was reported by the Defendant as thinking of “ending it again“. By May 2009, the Claimant was doing much better. The Claimant was then reported as being low in mood once more in December 2009 and was referred for counselling. Further consultations occurred between the Claimant and the Defendant in 2010 until May 2011, which did not indicate that the Claimant was suicidal. However, by June 2011, the Claimant disclosed to the Defendant that he was having suicidal thoughts. By July 2011, the Claimant considered that he was happier.
No further consultations took place until March 2012, where the Claimant spoke to the Defendant of marital problems. The Claimant next attended on the day of the April Consultation. The Defendant’s note recorded the following:
“E: Divorce
S: has had suicidal thoughts, found out wife communicating with best friends of 25yrs. living alone in flat, sees daughter. ‘nothing to live for’ considered hanging, stabbing with knife – increased venlafaxine – mood improved. divorce nisi coming through. would still go back to ex.
Rx: Venlafaxine Tablets 75mg
P: rev sos. 1/12 adv samaritans”
The next entry in the Claimant’s GP records concerned his suicide attempt in May 2012.
Breach of duty
The Claimant argued that it should have been obvious to the Defendant at the April consultation that there had been a marked deterioration in the Claimant’s mental health. As such, the Defendant should have made an urgent referral to the Community Mental Health Recovery Service (“CMHRS”) within 24 hours, and should have followed up the Claimant sooner.
At trial, the Claimant advanced that the Claimant was experiencing current suicidal ideation and planning at the time of the April Consultation, which of itself was sufficient to mandate an urgent referral. The Claimant further advanced that even if the Defendant considered that the Claimant did not have current suicidal ideation and planning at the April Consultation, there were a number of psychosocial issues at play that mandated an urgent referral.
The Defendant rejected this, submitting that the Claimant’s mental health had waxed and waned as his relationship with his ex-wife had fluctuated. They further advanced that the Defendant’s professional judgment at the April Consultation was that the Claimant was not at any imminent risk of self-harm and the reported thoughts of suicidal ideation and planning were not ongoing.
Both the GP experts agreed that if there were concerns about the Claimant’s current suicidal ideation and planning, this would have mandated an urgent referral. They further agreed that if the Claimant’s suicidal ideation and planning was in the past, urgent referral was not required.
Mrs Justice Whipple accepted that the Defendant’s note of the April Consultation was capable of bearing both meanings as to current and past suicidal ideation and planning. However, as the note had said “has had suicidal thoughts...”, and was written in part in the past tense, this suggested that the Claimant’s thoughts were in the past. In addition, the Defendant’s witness statement stated that she did not consider the Claimant’s suicidal thoughts to be current, nor did she consider he would act on them.
The Claimant’s witnesses had given evidence which suggested that the Claimant’s suicide was a totally unexpected event. He did not mention to his family members that he was having suicidal thoughts.
Mrs Justice Whipple considered that there was nothing in any of the evidence to suggest that the Claimant was in crisis on the date of the April Consultation. There was evidence, however, that suggested that the Claimant was not in crisis on that date. As such, breach of duty was not made out. Mrs Justice Whipple did not therefore need to consider causation, yet she noted that the Claimant’s causation case rested on “shaky foundations“.
Contributory negligence
Mrs Justice Whipple did not need to consider contributory negligence on the basis of her findings, however did proceed to discuss briefly whether the Claimant should be responsible in part for his own damage.
She referred to both Reeves v Commissioner of Police of the Metropolis [1999] and Corr v IBC Vehicles Limited [2008]. In accordance with the guidance in Corr, Mrs Justice Whipple considered the extent to which the Claimant’s personal autonomy was overborne by the impairment of his mind, and considered that the Claimant fell between the two extremes identified in Corr (the first being where the individual’s autonomy has not been overborne at all by the impairment of his/her mind; the second being where the individual’s autonomy has been effectively wholly overborne by the impairment of his/her mind). She considered that the Claimant’s autonomy had been overborne to an extent by his mental health condition. However, his attempt to commit suicide was an autonomous act, designed to occur when his ex-wife was outside of his unit. Had liability and causation been established, Mrs Justice Whipple would have assessed the Claimant’s own contribution at 25%.
Conclusion
This is an interesting decision, particularly as the obiter in this case importantly raises that individuals may be considered to have contributed to their own damage after a failed suicide attempt. It remains to be seen whether this point is litigated in the future. However, it does not seem as though this is the end of this matter being explored by the Courts.
