Celine Martin (formerly known as Vicky Kathleen Higgins a protected party by her father and litigation friend Kevin Finbarr Higgins) v Salford Royal NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 3058 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D90MA092 |
[2021] EWHC 3058 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Sitting at Vernon Street,
Liverpool and at the Civil Just Centre Manchester
His Honour Judge Bird sitting as a Judge of this Court
Case No: D90MA092
Mary Ruck (instructed by Slater and Gordon UK Limited) for the Claimant
Charles Feeny (instructed by Hill Dickinson) for the Defendant
Hearing dates: 10 th, 11 th, 12 th, 13 th, 14 th & 17 th May 2021 27 th October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Before His Honour Judge
Introduction
This judgment deals with the assessment of damages payable to Celine Martin by way of compensation for loss and damage arising from the Defendant's negligence in 2010. Liability was established followed trial before Mrs Justice Andrews (as she then was) in June 2018 (the decision is reported at [2018] EWHC 1824). Before me, the claimant was represented by Miss Ruck of counsel and the Defendant by Mr Feeny of counsel. Miss Ruck did not appear at the liability trial, Mr Feeny did. I am grateful to both for the sensible and collaborative manner in which they conducted the case.
Before the defendant's negligence
Miss Martin is 47 years old. She was born and grew up in Cork in Ireland. She has a large family. The evidence suggests that she attended university in Dublin and played Gaelic Football for the national team. She travelled extensively in America and South Africa. After graduating she ran a hostel for a number of years and moved to Manchester in 2001. In 2004 she worked for a short period as a hotel receptionist.
She has an extensive psychiatric history which began before the defendant's negligence. She lives with Emotionally Unstable Personality Disorder (“EUPD”) and paranoid schizophrenia and has a history of substance abuse. She has in the past attempted suicide and has been detained at mental health facilities for long periods. The schizophrenia remains under control for as long as Miss Martin takes appropriate medication. EUPD leads to a propensity to become involved in intense and unstable relationships with emotional crises, excessive efforts to avoid abandonment and suicidal threats.
From 2002 Miss Martin was regularly admitted to hospital for mental health assessments under section 2 of the Mental Health Act 1983 (“the Act”). Treatment orders were made under section 3 of the Act in 2003, 2004, 2005 and 2006. There were further section 2 assessments in 2007 and 2008 and a further treatment order in 2009.
In June 2009 an order was made under section 38 of the Act detaining Miss Martin following conviction for arson pending sentence. In February 2010 a section 37 hospital order was made with section 41 conditions attached. That order has now been discharged. Miss Martin suffered the injuries described below (as a result of the defendant's negligence) whilst detained under section 37.
Since the defendant's negligence (a summary)
As a result of the Defendant's negligence in 2010 Miss Martin is dependent on others for all aspects of her daily life. She uses an electric wheelchair to get around and relies on carers. She requires hoisting to move from her chair. Her left leg is shortened, and she has footdrop. She has restricted movement in all limbs and has very poor sitting balance. Miss Martin also suffered a brain injury which has resulted in severe neurological impairment. I deal with the brain injury below under the separate heading of capacity.
Miss Martin's mental and general health since 2010 (a summary)
In January 2013 the claimant was discharged from the section 37 hospital order by direction of the Mental Health Tribunal. She remained subject to section 41 conditions. If the conditions were breached Miss Martin would be liable to a recall. She was permitted to live at Agricola House a unit comprising specialist accommodation for adults with acquired brain injuries near Bury. She moved in in April 2013.
In May 2016 Miss Martin left Agricola House and went to live at Wellington Road in Whalley Range. She remained subject to section 41 conditions. On 27 November 2018, because her mental health had deteriorated, she was recalled to hospital. The facilities and support available to her in hospital did not allow her to shower, so that she had to return to her flat on a regular basis to wash. On 25 March 2020, Miss Martin was discharged back to her flat at Wellington Road. Conditions remained in place. They are set out in Dr Ramzan's report of 24 June 2020. Miss Martin was to:
a. Reside at Flat 28b, Wellington Road, Whalley Range, Manchester, M16 8EX.
b. Allow access to the accommodation, as reasonably required by the Responsible Clinician and Social Supervisor.
c. Comply with all elements of her care plan, agreed as necessary by her inpatient and community mental health teams prior to her discharge.
d. Comply with prescribed medication for her mental disorder, as directed by the Responsible Clinician and Social Supervisor.
e. Engage with and meet the clinical team, as directed by the Responsible Clinician and Social Supervisor.
f. Abstain from illicit drugs.
g. Submit to random urine and alcohol testing as directed by the Responsible Clinician and Social Supervisor.
h. Not smoke any cigarette or ignitable substance within her flat (she can smoke in the designated area in her outside courtyard)
There was a brief further voluntary admission to hospital in August 2020 after a further deterioration in her mental health.
Since the trial of this action and before a draft judgment was circulated the section 37 and Section 41 orders were discharged. Miss Martin is therefore no longer subject to conditions and is no longer at risk of recall to hospital.
The care the claimant has received since 2010
Miss Martin enjoyed her time at Agricola House but had no mental health support there. As Miss Laverty, the jointly instructed neurological physiotherapy expert notes, she received physiotherapy at Agricola house which concentrated on her trunk alignment and stability in sitting. She received some community physiotherapy when she first moved to Wellington Road. The absence of mental health support motivated her move to the Wellington Road which is managed by “Creative Support” a mental health charity. Initially Creative Support provided night care to her if she needed it on a “call for help” basis, but she had no entitlement to 24-hour care. Creative Support also provided a support worker to drive (but see below at paragraph 30 — Creative support were unable to provide a driver as often as she would like) and take her shopping as well as provide her meals. Here daytime physical care needs were met by an independent care agency “iCare Solutions”.
When first at Wellington Road (before her recall to hospital in 2018) Miss Martin had 4 care visits per day at 9am, 1pm, 5pm and 8pm (these are described in Miss Laverty's 2017 report).
She told me that when she was recalled to hospital her care package was stopped. When Miss Martin moved back to Wellington Road in March 2020 Creative Support ceased to provide any night care. She had applied for funding for night care but that was refused on 25 February 2020. Instead, the claimant was offered “assistive technology” in case she needed night-time help with a monitoring and response line in place with a seizure alarm.
Her present package of care providing mental health support (through Creative Support) and physical care (through iCare solutions) represents “after-care services” funded under the statutory duty set out at section 117 of the Act.
Miss Martin has had a care co-ordinator since March 2020. In fact, she has had 3: Helen Davies who did the job for a matter of months and left at short notice, Natalie Vassiliou who also left at short notice and Michelle Ahmed. The job of a care co-ordinator is to co-ordinate mental health support. She has no neurological case manager whose job would be to coordinate her physical needs arising out of her neurological condition.
I heard very little evidence about the mental health support provided to Miss Martin. She is content with that support and wishes for it to continue as section 117 aftercare. She told me that she has a positive relationship with Michelle Ahmed and feels that her mental health has been quite good over the past few months. The fact that she has been discharged from the section 37 and section 41 orders supports this view.
Detail of the physical care provided to accommodate Miss Martin's neurological deficit and physical difficulties caused by the Defendant's negligence is set out in an updated care plan dated 18 July 2020. The plan caters for personal care, domestic support, companion duties, laundry and meal preparation. There is no physiotherapy. Five daily visits over 7 days per week are planned out. On each day there will be 4 or 5 visits covering 4 hours. The package is to all intents and purposes inflexible. The time carers can give Miss Martin is limited to the programmed visits (now at approximately, 7.30am, 1.30pm, 4.30pm and 9pm each for 30 minutes and 9.30am for 2 hours). These visits are an improvement on the 2017 regime described above when the last visit was at 8pm.
There is still no night cover. In February 2021 Miss Martin reviewed the totality of her care plan with Miss Ahmed. The absence of overnight care was discussed. A note of the review records that Miss Martin has said that she did not need a carer to stay with her overnight and was...
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