10
Feb
22
Articles, Medical Law
High Court Judgment in Traylor and Traylor v Kent and Medway NHS Social Care Partnership Trust

The High Court has this morning handed down judgment in Traylor and Traylor v Kent and Medway NHS Social Care Partnership Trust ([2022] EWHC 260 (QB)). The two claims arose from the terrible events of 9 February 2015 when Claimant Marc Traylor (“MT”) stabbed his daughter Claimant Kitanna Traylor (“KT”) and was in turn shot by police officers, some months after MT’s antipsychotic medication was changed from long-acting depot injections to oral medication. Both suffered serious injuries. MT was subsequently charged with the attempted murder of KT but was found not guilty by reason of insanity.

MT brought a claim against the Defendant NHS Trust (the “Trust”) alleging negligent treatment of his mental illness which, he argued, resulted in him suffering the psychotic episode and stabbing KT. Around eight months before, whilst a community patient under a community treatment order (“CTO”), he had been assigned to a new psychiatrist, Dr Pisaca, and it had been agreed at their first meeting, at MT’s request, that he would transition from taking long-acting depot injections of paliperidone to taking oral tablets of risperidone.  A few weeks later Dr Pisaca determined that MT no longer satisfied the essential conditions of the CTO and therefore discharged it.  In fact MT never took the oral tablets, but lied about this repeatedly to his family and to the Defendant’s staff.

By the trial MT pursued only one allegation of negligence against the Trust: that Dr Pisaca at the appointment described above failed to advise him to remain on the depot injections.  It was contended that had this advice been given MT would have agreed to remain on the depot injections and his psychotic episode would have been avoided.

The Trust denied that Dr Pisaca had failed to give this advice, or that the advice would have affected MT’s decision.  Alternatively it relied on the legal defences of ex turpi, volenti, and effective cause.

KT brought a claim against the Trust under the Human Rights Act 1998 (the “HRA”) on the basis of its alleged failure to take positive steps to protect her article 2 and 3 ECHR rights when (it was contended) she was at real and immediate risk of death or serious injury from MT.  KT claimed that Dr Pisaca failed to advise MT to remain on depot injections and that the CTO ought not to have been discharged.

The Trust denied that articles 2 and 3 were engaged, (alternatively) that she was at real and immediate risk from MT, and (in the further alternative) that the Trust had failed to take measures which might have been expected to avoid that risk.

Following a 5-day trial during which the Judge heard evidence from lay witnesses and two expert consultant psychiatrists, Mr Justice Johnson found as a fact that Dr Pisaca had advised MT to remain on depot medication, despite this not having been explicitly recorded in his contemporaneous note.  He also found, accepting the evidence of Dr Iankov, the Trust’s expert psychiatrist, that Dr Pisaca was right to discharge the CTO as one of the essential conditions for its continuance was no longer met.  Both claims were therefore dismissed.

Mr Justice Johnson indicated that he would have rejected the Trust’s legal defences to MT’s claim of ex turpi, volenti, and effective cause, had it been necessary for him to consider them.  In KT’s claim he found that articles 2 and 3 were engaged (notwithstanding the clinical setting) and that there was a real and immediate risk to KT’s life and physical safety from MT.

An article addressing the legal issues will follow.

Edward Bishop QC and Susanna Bennett were instructed by Julie Charlton and Victoria Robinson at Bevan Brittan LLP for the successful Defendant.

Read the full judgment here.

Written by or involving: Edward Bishop QC, Susanna Bennett

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