Mental health claims
What are the common themes in suicide claims?
Mental Health Claims – What are the common these in suicide claims?
Most claims against mental health providers involving suicide fall into the following categories.
- Failure to assess
- Failure to keep safe
We will deal with each type of claim in turn, setting out the common complaints and providing suggestions where institutions could have done things differently, the aim being to ensure families and institutions are both clear on what occurred and what needs to be done to swiftly resolve disputes.
Where a death has occurred, institutions should engage in efficient sharing of information between the claim and Inquest teams to ensure continuity. The information produced in the course of an Inquest investigation will be beneficial as factual evidence in any future claim.
Assessment
Assessments should be prompt, thorough and well documented. Common complaints in this area surround the triage and process to assess, diagnose and admit patients, getting them access to the appropriate treatment.
The mantra - if you didn’t write it down it didn’t happen - is especially true in the context of mental health patients. Contemporaneous notes recording the patient’s state of mind at assessment are the only factual evidence on which an expert can comment – there is no opportunity to re-review and debate blood tests or scans. It is also often the case that the patient will be unable to provide witness evidence either because they will have died or their mental state during the index event prevents the Claimant from giving a clear recollection. The clinician’s rationale for their intended treatment plan, should be noted, explained and discussed with the patient and their family.
If proforma documents are used e.g. in risk assessing or triage, staff must be properly trained and there should be a universal approach to the completion of these documents. Especially when it comes to assessing someone as ‘low/medium/high risk’ – every member of staff should be able to quantify exactly what that means in the relevant context. If a patient is assessed as low risk and is discharged without treatment, clear safety netting advice and the rationale for not admitting/escalating their care should be discussed and detailed in the notes. The patient should be signposted to community services and charities such as Samaritans.
Failure to keep safe
One of the most common and serious complaints is the allegation that the mental health provider failed in their duty of care to ensure the safety of a patient and that failure caused the harm suffered. Moments within the treatment process which pose a high risk of suicide and absconding are admission, leave and discharge. The duty of the clinicians to protect must be balanced with approaching treatment by the least restrictive option (s4 of the Mental Capacity Act 2005) - overly restrictive measures are not a silver bullet to prevent suicide claims.
Examples of safe and defensible discharge planning will include; thorough risk assessments, which clearly demonstrate the need to progress the patient to discharge/leave. The proper utilisation of community mental health services, emergency services, substance abuse service with whom there should be clear channels of communication an information sharing between the services, so any early warning signs can trigger an alert with the mental health provider that the patient may be at risk. Finally, engagement with the patient and their family - sometimes referred to as ‘obtaining collateral information’ is necessary to ensure the patient’s family are familiar with the treatment plan and what safeguards are available to help keep their loved one safe when they are out in the community. Ultimately, claims are far more likely where the family are not supportive of the discharge treatment plan.
Defence Strategy
A meaningful apology – even where liability is in dispute – should be the first step taken by a Defendant and goes a long way to acknowledge the immensely challenging period in which the Claimant and their family will have found themselves. Similarly, early admissions – if appropriate – can help to set a tone which assists a compassionate and sensitive approach to dispute resolution and can often help the parties reach settlement more smoothly.
Contributory negligence is a partial defence to negligence where it can be shown that the Claimant was guilty of negligence which contributed to their injury, if this is proven, it reduces the Claimant’s entitlement to damages. When deciding whether to employ contributory negligence defendants should carry out a finely balanced consideration of the potential financial benefit and the reputational risk in pleading it in such a highly sensitive context.
Where a death has occurred, institutions should ensure that the outcomes identified by an internal review or Inquest investigation are effectively implemented. Any failings identified should be viewed as an opportunity to fill gaps in care and mitigate the risks of future incidents and associated claims.
Hill Dickinson offers specialist litigation and Inquest expertise within the mental health sector. Please contact Janet McWhinney, Kate Fawell-Comley and Katy Parkinson who will be able to advise you further in this regard.
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