Francis Hughes and Others v Turning Point Scotland (2019) CSOH 42

03.06.19

Background

The defenders are a homelessness charity offering support and accommodation for those experiencing crisis as a result of alcohol addiction.

On 1 July 2013 the deceased was assessed by the defender’s employee and was offered and accepted a place in the defender’s Crisis Residential Unit (CRU). The deceased wanted the defender’s support in withdrawing from alcohol. During the initial assessment, it was determined that the deceased required alcohol detoxification medication. The defenders did not stock medication and had no doctors on site. Medical support was provided by visiting medical officers (VMOs) who prescribed medication to service users as required.

The deceased was shown to his room in the CRU at around 3.30pm and told the defender’s employee that he was tired and wanted to “get his head down”. He was placed on hourly observations and a staff member noted the deceased to be sleeping at 4.30pm and 5.30pm. At 5.30pm the detox medication was ready for collection at a local pharmacy. At 6.30pm the deceased was checked by a member of staff, found to be unresponsive and pronounced dead shortly thereafter. He had not been given any medication prior to his death.

The relatives of Francis Hughes claimed that the defender had a general duty of care to not assess or admit a person such as the deceased. If that was incorrect, then there was a duty to provide a safe system for the admission and treatment of him. Finally, they claimed the defenders were vicariously liable for the failures of their employee whom, they said, ought to have obtained detox medication immediately, and, if that was not possible, to call an ambulance.

Judgement

Lord Clark found in favour of the defenders. He stated that the assessment of whether a duty of care exists in a novel situation such as this one involves a consideration of what is fair, just and reasonable in the circumstances. The court has to weigh up the reasons for and against imposing liability. In such a decision policy considerations have to be taken into account.

In determining the scope of the duty the judge opined that this is best dealt with by applying the principles of assumption of responsibility. He concluded that it was simply not “just, fair and reasonable” to hold the defenders out as having a general duty to have a safe system. He had regard to the fact that the defender is a homelessness charity which assists with alcohol detox but had limited staff and other resources. There was no evidence to the effect that the imposition of a duty to have a “safe system” would still allow the defender to continue to deliver its service. In fact there was evidence to the contrary.

Assumption of responsibility - systems case

The judge concluded that the defender had assumed responsibility to provide the deceased with a bed, to request medication and finally administer that medication in the event that it was prescribed. The defender had not however assumed responsibility for the welfare of the deceased as a generality.

He rejected the claimants’ argument that the defender had assumed responsibility for providing a safe detox. Indeed the defender’s contractual documentation had an aim of providing safe alcohol intervention and of stabilising the mental health of vulnerable service users. The judge distinguished the aims and objectives as distinct from an express undertaking/guarantee or promised outcome. noted that it would have been “extremely difficult if not impossible” for the defender to achieve such tasks when dealing with “highly vulnerable and marginalised service users, many of whom were in crisis”. The defender had not accepted responsibility for the deceased in the same way as a hospital would and there was no evidence for suggesting that the deceased thought they were doing so. The systems case therefore failed.

Vicarious Liability

The alleged failures by the employee were not supported by any comparator evidence. The judge stated “there was simply no evidence from any practitioner or support worker who carried on similar activities. I therefore concluded that there was no evidence of an appropriate comparator either in relation to the wider grounds of the pursuer’s case (the system case) and the more general approach to assumption of responsibility or in relation to the case against [the employee]. On that ground alone, the pursuer’s case on breach of duty must fail.”

Although the employee conceded with hindsight that there was maybe more he could have done for the deceased, the judge concluded that he was not accepting that he had done anything wrong:

“I was left in no doubt from his manner, his experience and his obviously high level of empathy that he was a valuable worker in a facility which offered care and support to vulnerable people. His honesty was such that he was prepared to accept, albeit with the benefit of hindsight, that he had perhaps failed. However, these were really expressions of regret. Viewed overall, he was not in his evidence admitting any breach of duty.”

The judge accepted in its entirety the evidence of the employee who admitted the deceased to the defender’s unit when he said that, as an experienced alcohol worker, he saw nothing in the deceased’s presentation that gave him cause for concern or necessitated calling an ambulance. A withdrawal symptom scoring tool used by the employee to score the deceased’s level of withdrawal symptoms was used as an adjunct to the clinical assessment by the employee, and was not as suggested by the claimants, the only indicator of the deceased’s symptoms.

The judge also noted from the various expert witnesses there was no universal approach to the provision of alcohol withdrawal medication in either NHS or private facilities and the realities of practice often fell below the best practice standards set by the organisations. Therefore the claimants’ suggestion that medication ought to have been given immediately or that an ambulance ought to have been called were unfounded.

Causation

Lord Clark also found that on the balance of probabilities the deceased died from cardiac arrhythmia and not an alcohol withdrawal seizure as suggested by the claimants. The absence of any factual evidence of a seizure suggested that death was probably due to Sudden Death in Alcohol Misuse (SUDAM) and most probably cardiac arrhythmia. In any event, if the judge was wrong in that he commented that the claimants failed to lead any evidence to prove that the deceased would not have died if he had been given medication, had not been admitted to the defender’s facility or had gone to the nearest A&E department.

Expert evidence

The judge found that whilst the claimants’ experts were impressive, there were fundamental problems with their evidence. They were medical experts speaking to high standards of care based on their experience within the NHS or similar facilities. Their evidence was of limited relevance and value to the circumstances of this case.

Additionally the judge commented that whilst none of the claimants’ experts “breached the principles for the giving of expert evidence, they did not display the same balanced, authoritative and reality-driven approach shown in the evidence of the defender’s expert Dr William Morrison”.

The defender’s experts were resoundingly preferred over the claimants. Lord Clark commented that Dr Morrison (one of three experts led by the defenders) was “extremely impressive in relation to his reasoning and opinions. Even more compelling was the transparently honest manner of his testimony. I was in no doubt that his evidence was being given purely to assist the court”. The two other experts for the defender were accepted in full. The pathologist who carried out the post mortem on the deceased was confirmed by the court to be a factual witness only. She did not consider all evidence at the same time to come to an objective conclusion to assist the court in the same way the defender’s expert pathologist did.

Comment

Lord Clark has provided a clear analysis of how a court should approach the application of duties of care in novel situations. The decision should be useful reading for anyone dealing with a case unusual duty of care cases.

The defender’s insurer (Zurich) fully supported its policyholder in defending this action.