Marlene Simpson & Faye Anne Campbell v Dumfries & Galloway Health Board

Ampersand’s Scott Clair acted as sole counsel for the defender and respondent health board in this appeal (having also appeared at first instance), in relation to whether a fatal claim for clinical negligence was time-barred due to the operation of the Prescription and Limitation (Scotland) Act 1973, and, in the event the claims were found to be time-barred, whether the court ought to exercise its equitable discretion to allow the pursuers and appellants to bring their claims albeit late.

The case was tragic and involved the suicide of a young man. The pursuers argued that nurses employed by the defender and respondent had negligently assessed the deceased earlier on the day that he died, which led to his death. They went on to make a formal complaint to the defender and respondent shortly after the deceased’s death and, where that was not upheld, to the Scottish Public Services Ombudsman (‘SPSO’). The SPSO did not produce its decision until more than three years following the date of the deceased’s death. The pursuers argued that, whilst they were ‘suspicious’ of negligence on the part of the nurses, the three-year limitation period did not commence until the date on which they received the SPSO decision.

The defender and respondent were successful at first instance before Sheriff Fife. He found that the pursuers’ claims were time-barred as they knew all they required to know for the three year period to commence at the time they made a formal complaint to the health board, and, that in the circumstances it was not equitable to allow them to bring their claims late. The pursuers appealed both parts of that decision and the Sheriff Appeal Court have now dismissed the appeal in its entirety.

The judgment of the Sheriff Appeal Court can be found here.

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David Downie v Fife Health Board

Ampersand’s Scott Clair acted as junior counsel to Craig Allardice for the pursuer, and James McConnell KC acted for the defenders, in this case which went to proof on allegations of negligence by a psychiatrist. The case has some procedural history, having been to the Sheriff Appeal Court on relevancy questions before finally coming to proof.

The pursuer is a former professional golfer who, on 14 January 2016, was made the subject of compulsory detention for mental health reasons. After four days of detention a psychiatrist reviewed him, concluded that he no longer met the criteria for detention, and revoked the Short-Term Detention Certificate under which he had been detained. The pursuer thereafter discharged himself against medical advice.

The pursuer contended that the psychiatrist’s decision to revoke the STDC was a negligent one, and said that as a result of that revocation he experienced a period of untreated illness. The defenders argued that the decision to revoke the discharge certificate was the correct one, and that in any event no relevant causal consequences flowed from the revocation.

The case came to proof before Sheriff Campbell KC. He preferred the evidence of the defenders’ expert psychiatrist, and found that the treating psychiatrist had not breached his duty and granted decree of absolvitor.

The Judgment of Sheriff Campbell can be found here.

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