Catherine Watson Against Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judge | J. Gordon Reid, Q.C. |
| Neutral Citation | [2016] CSOH 93 |
| Court | Court of Session |
| Published date | 05 July 2016 |
| Date | 05 July 2016 |
| Docket Number | A341/15 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 93
A341/15
OPINION OF JUDGE J GORDON REID QC
In the cause
CATHERINE WATSON
(as executor of the late Alan Watson)
Pursuer;
against
GREATER GLASGOW HEALTH BOARD
Defender:
Pursuer: Nicholson; Drummond Miller LLP
Defender: Doherty; NHS Scotland Central Legal Office
5 July 2016
Introduction
[1] This opinion, following a procedure roll discussion, considers the question whether the pursuer’s averments in her action for damages for personal injuries arising out of the death of her husband, Alan Watson (Mr Watson), should be dismissed as irrelevant for lack of specification.
[2] After sundry procedure under chapter 43 of the Rules of Court, the action was withdrawn from that procedure and appointed to proceed as an ordinary action under chapter 42A. A debate on the defender’s (the health board) first plea-in-law (the usual general plea to relevancy) was fixed. The pleadings are lengthy and, in one sense at least, detailed, contrary to the current rules and practice relating to personal injury actions. The Record extends to over 30 pages in the usual font and type size.
The pursuer’s case
[3] In essence, the pursuer’s case is that Mr Watson was a long term resident in a care home owned and operated by the health board. The pursuer avers that Mr Watson had a history of unexplained falls culminating in about January/February 2012 in which he fell at the home while under the care of the Health Board and suffered rib fractures. This led to him developing pneumonia from which he subsequently died on 16 February 2012. His death is said to be attributable to what might broadly be described as the defender’s failure properly to look after him. The failure, breach of duty, and any consequences are all strongly denied by the Health Board, although there is some common ground about some of the background facts and general duties of care. I make no comment on the truth or soundness of the pursuer’s averments. In accordance with the court’s practice, her averments are assumed to be true for the purposes of this part of the proceedings.
[4] The pursuer sets forth at some length a wide array of duties said to be owed by the Health Board and/or its staff. These include averments that there was a systemic failure of care, absence of adequate training and no adequate care plan, which should have stipulated that Mr Watson be on constant observations in certain circumstances. This would have meant that when he was walking within the care home he would have been closely monitored to such an extent that, had he stumbled, he would have been prevented from falling, and had he deviated towards some object such as a shelf he would have been prevented from colliding with it and injuring himself.
[5] Most of these averments seem to be designed to create a background of inadequate care leading up to what counsel for the defender contended was the crux of the pursuer’s case, where the pursuer avers at page 18D-E of article 3 of the Condescendence that:
“A care plan would have provided for the deceased to have been placed on constant observations. The deceased ought to have been placed on constant observations. Esto, the deceased ought not to have been placed on constant observations all the time (which is denied) he ought to have been placed on constant observations whilst mobile and walking around the home. This would have enabled the staff to closely observe him while he was walking and intervene if necessary.”
And, at 19C-21A (article 3 of the Condescendence), that:
“Had the deceased been placed on constant observations staff would have been able to intervene to prevent the deceased from walking or falling into objects including shelves. Staff could have prevented him from wandering and directed him away from objects such as shelves. They would have been able to assess what his mobility was like and if his mobility was less good on a particular day they could take such steps as walking beside him, taking his arm and limiting his periods of walking around. The deceased’s bruising, abrasions and fractured ribs were caused by his walking or falling into a sharp cornered object such as shelves ‘the object’. It is likely that the deceased’s mobility on the day he walked or fell into the object was poorer (or less good) than usual. It is likely that he was wandering. It is likely that he deviated from his path. Staff would have noticed this. (20A) Esto they would not have noticed it, they should have. Staff would have taken steps to reduce the risk to the deceased by walking beside him, taking his arm and limiting his periods of walking. They would have directed him away from objects such as shelves. Esto they would not have taken these steps, they ought to have done so. Had the deceased been on constant observations it is likely that staff would and should have prevented him from walking or falling into the object which caused his injuries…….(20D) Esto he would not have been placed on constant observations all the time (which is denied) he would have been placed on constant observations whilst mobile and walking around the home. As hereinbefore condescended upon, staff would have then been able to intervene to prevent the deceased from walking into objects such as shelves and it is likely the fall would have been averted. No ordinary nursing staff exercising ordinary skill and care would have failed to do so (21A).”
[6] Around these averments are various averments of fact and references to a number of documents. In summary, these assert that Mr Watson was a vulnerable gentleman (born 7 December 1950). He had a history of falls and a high risk of doing so due to his condition while at the care home where he had resided for several years before his death. He had hallucinations. He was a dementia sufferer and susceptible to petit mal seizures. Various risk factors are identified in the pursuer’s pleadings. Had they been taken account of as they should have (according to the pursuer), a standard care plan would have been prepared to reduce risk to a minimum. Such a care plan would have provided for the deceased to have been placed on constant observations at least while walking around the home. It is averred that this
“would have enabled the staff to closely observe him while he was walking and intervene if necessary. (19B).”
[7] The pursuer then sets out the responsibilities of the care home manager for ensuring that the residents received the requisite standard of care, essentially reviewing/ auditing and updating risk assessments and suitable care plans, ensuring that Mr Watson was placed under the correct level of observation and the actions to be taken to minimise the risk of a fall during those observations while he was mobile and walking around the home (21A-C). All this was said to constitute standard practice to which the care home manager and senior charge nurse failed to adhere (page 22 A-D of article 4 of the Condescendence). These duties are said to have been breached by the care home manager who is averred to have had overall responsibility for patient care as manager of the home (page 21E).
[8] At page 21C, the pursuer avers that the care home manager had a duty to ensure that staff cared for the deceased by having
“had adequate training in how to care for his particular needs, including dementia and variable mobility, which training required to be refreshed at least once a year.”
[9] The duty of training is also referred to in article 4 of the Condescendence, page 28C.
[10] At page 22E (article 4 of the Condescendence), the pursuer avers that:-
“There was a systemic failure in the defenders’ management system: adequate procedures were not in place to ensure that the risk assessments, care plan and treatment plan dated 14.3.11 were reviewed, reassessed and updated in accordance with standard practice following a fall especially an unexplained fall against a background of increased falling incidents.”
These averments are elaborated upon at page 25B-27B of article 4 Condescendence.
[11] At page 23D (article 4), the pursuer avers that the various measures in the treatment plan were necessary to keep Mr Watson safe and to protect him from injury. Certain aspects of the treatment plan were not followed. If they had been, staff would have been aware of his mobility on any particular day and would have been ready to intervene to prevent a fall. Had the treatment plan been followed, Mr Watson would have been observed constantly while walking and that would likely have prevented the fall which led to his death (24D). The defender is said to be responsible for all these staff failures (25A-D).
[12] The remaining articles of Condescendence (5 and 6) relate to damages and I do not need to consider them.
The defender’s criticisms
[13] Counsel for the defender, Ms Doherty, supplemented her detailed Note of Argument, which largely highlighted alleged deficiencies said to be so extensive that it rendered the whole case irrelevant for want of specification. She advanced five propositions.
[14] In summary, Ms Doherty submitted first, that the crux of the pursuer’s case is that but for the defender’s breach of duty, Mr Watson would have been placed on constant observations.
[15] Secondly, the pursuer’s averments as to the need for constant observations lack specification and are therefore irrelevant. Thirdly, the pursuer does not adequately aver a causal link between the lack of constant observations and injury.
[16] Fourthly, the pursuer’s averments of duty of care said to be owed by the care home manager and the senior charge nurse and the alleged systems failures lacked specification, and were all irrelevant. Fifthly the averments relating to the breach of duty relating to the recording of the alleged fall are irrelevant, there being no causal link to the death.
[17] Ms Doherty addressed what she said was the crux of the pursuer’s case (referred to above)...
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