Sheriff Appeal Court rejects appeal against interlocutor by man seeking damages for premature hospital discharge

About this case:

• Citation:
  [2022] SAC (Civ) 27
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Holligan

DD, the pursuer in an action against NHS Fife Health Board, sought to establish that a doctor in the defenders’ employ had erroneously discharged him from hospital after revoking a short-term detention certificate made against him.

The appeal was heard by Sheriff Principal Marysia Lewis, sitting with Appeal Sheriffs Alasdair MacFadyen and William Holligan. Khurana KC and Crawford, advocate, appeared for the pursuer and McConnell, advocate, for the defenders.

Responsible for his actions

It was averred by the pursuer that he had a long-standing diagnosis of Bipolar Affective Disorder. On 23 November 2015 he was diagnosed by a Dr M as being manic. However, on a later review by another doctor, Dr N, he was described as “not as manic as previous presentation” and discharged from hospital on 7 December. He was later readmitted following an appearance in Dundee Sheriff Court that led to him being detained on a short-term detention certificate.

On 15 January 2016. Dr N diagnosed the pursuer with a personality disorder but found no evidence of major mental illness. The pursuer avers that he displayed manic behaviour and that Dr N did not carry out a mental state examination. The pursuer was later charged and convicted of behaving in a racially aggravated manner towards Dr N, who revoked the STDC and discharged him from hospital with a further 23 days left to run on the order. In discharging him, Dr N commented that his behaviour was due to his personality, and he was responsible for his actions.

In his articles of condescendence, the pursuer averred that as a consequence of the revoking of the order he suffered the symptoms of prolonged, untreated illness without fixed abode, and was repeatedly arrested until eventually being made subject to a Compulsory Treatment Order in April 2016. The sheriff proceeded to exclude passages in the record relating to certain of the pursuer’s criminal activities following his discharge from hospital, as public policy prevented him from pursuing claims for damages relating to that activity.

It was submitted for the pursuer that the sheriff ought to have allowed a proof before answer on all matters and not excluded averments of loss in relation to the application of the ex turpi causa non oritur actio rule. For the defenders it was argued that the sheriff was correct in that approach but had erred in relation to the application of the scope of duty case and ought to have dismissed the action.

No countervailing factors

Delivering the opinion of the court, Appeal Sheriff Holligan observed: “Both parties to the appeal proceeded upon the basis that the decision to revoke the STDC can properly be the subject of an allegation of negligence. We regard this point as being of fundamental importance to the resolution of the scope of duty issue. Exactly how, in the circumstances of this case and this legislation, what appears to be the exercise of a statutory function may give rise to a finding of negligence was not explored. In its absence we are not inclined to base our decision on that issue.”

He continued: “We can see the argument that the pursuer seeks to make the defenders the insurer of the pursuer for all which happened to him post revocation. However, it seems to us that deciding conclusively what is/not recoverable may only be capable of proper resolution after evidence has been led as to the particular medical condition and the particular heads of claim advanced by him. We do not consider it would be appropriate to reach a conclusion solely upon the pursuer’s averments.”

Examining the ex turpi causa argument, Appeal Sheriff Holligan said: “It seems to us that the major public policy issues [here] involve inconsistency between judgements of the criminal courts and the civil courts. As has been pointed out in a number of the authorities the criminal in such a case as this becomes a pursuer. Having pled guilty before a criminal court the pursuer now seeks to recover damages from another party for conduct for which he has accepted responsibility before a criminal court. It involves opening up matters which have already been decided.”

He concluded: “That does result in an undermining of confidence in the law. The sheriff also took into account the effect on resources involving the NHS and we consider he was entitled to do so. The sheriff held there were no countervailing factors to consider in the balance. We would not go that far but, taking the ones relied upon by the pursuer into consideration, we do not consider that they outweigh the factors relied upon by the defenders. Therefore, we would have reached the same conclusion as the sheriff.”

The appeal was therefore refused, and the case remitted to the sheriff to proceed as accords.