The Standard of Care and Health Visitors

XM (By His Father and Litigation Friend FM) v Leicestershire Partnership NHS Trust [2020] EWHC 3102 (QB)

XM (By His Father and Litigation Friend FM) v Leicestershire Partnership NHS Trust [2020] EWHC 3102 (QB)

This article focuses on one interesting aspect of this detailed decision – its consideration of the standard of care to be expected from health visitors.

There were a range of allegations but much of the judgment focused, (and the Claimant ultimately succeeded) on the allegation that at the 6 week check on 8 August 2012 the health visitor, Mrs Furmage, failed to appreciate that the growth of the Claimant’s head from the 25^th centile at age 2 weeks to the 50^th centile at age 6 weeks was abnormal.

It was agreed that had referral been made on 8 August 2012, the outcome would have been remeasurement, diagnosis and successful treatment. Unfortunately, the Claimant did not receive treatment for his rare benign tumour, the growth of which caused an overproduction and accumulation of cerebrospinal fluid which led to permanent catastrophic brain damage.

Relevant authorities

From [27] Stewart J set out the legal framework. He set out a number of well-known authorities relevant to clinical negligence claims generally. At [34] he noted:

“The parties did not take me to any case specifically on the standard of care of health visitors/nursery nurses. In this context:

Mr Todd QC cited this passage from Clerk & Lindsell 23rd edn. at 9-98:

“…Liability of other medical and quasi-medical professionals

Nursing staff, as well as medical practitioners, owe a duty of care to the patients in their care, though there are few decided cases on the matter. Nevertheless, the principle relating to the liability of doctors applies equally to nurses. The nurse must thus attain the standard of competence and skill to be expected from a person holding their post. The more skilled the job undertaken by the nurse, the higher the standard of care expected.”

Miss Gollop QC cited passages from two authorities:

In Wilsher v Essex AHA [1987] QB 730 @ 751, Mustill LJ said:

“For my part, I prefer the third of the propositions which have been canvassed. This relates the duty of care not to the individual, but to the post which he occupies. I would differentiate “post” from “rank” or “status.” In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated”

In Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, Baroness Hale said:

“25.  The particular role performed by the individual concerned will be likely to have an important bearing on the question of breach of the duty of care. As Mustill LJ explained in Wilsher v Essex Area Health Authority [1987] QB 730 , 750–751, the legitimate expectation of the patient is that he will receive from each person concerned with his care a degree of skill appropriate to the task which he or she undertakes. A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

He then went on to consider a number of documents relevant to the 6 week check, including the Department of Health’s Healthy Child Programme (HCP), the UK-World Health Organisation 0-4 years growth charts, the Defendant’s Standard Operating Procedure (SOP), the ‘Red Book’, and the standard textbook of Hall & Elliman: Health For All Children [35] to [49].

There was also a range of expert evidence before the court, from experts in nursing and health visitors and experts in general practice.

Standard of care – health visitors

At [354] Stewart J considered the standard of care for a health visitor. He stated that he took into account the various documents set out above (the HCP, the WHO document, the SOP and the NIPE), as well as the evidence of the experts in nursing and health visitors, the experts in general practice, and the evidence of the factual health visitor witnesses.

The NIPE described standards for clinical care and professional competences required for health care professionals who undertake physical examination of newborn babies and the 6-8 week infant examination. It stated that all health care professionals should ensure that if they do not have the appropriate competency for a particular aspect of care, they make an appropriate referral. It also stated that regardless of the healthcare professional’s qualifications, background and experience, the standard, quality and content of the examination should be consistent throughout the UK.

The Standard Operating Procedure said that the 6 week check may only be delegated between the health visitor and the GP. This led to Stewart J’s finding at [358] to [360] that:

“It is clear from the SOP that the health visitor was required, in the context of this case, to obtain a head circumference measurement at the initial contact and at the 6 week contact. Further, she was required to plot the head circumference on the centile chart, to interpret the head circumference size so as to ensure that its growth was along expected centile lines, considering future growth potential and earlier growth measurements and, if she was concerned about rapid head growth, to consider hydrocephalus and urgently refer to the GP.

I accept that one must be aware of the different level of qualification, training and experience between a health visitor and a GP. Some of the allegations made against the Defendant are matters exclusively within the domain of health visitor expertise. However, Mrs Furmage, when doing the initial contact and the 6 week check, had to perform her tasks to the standard of the competent health care professional charged with those duties. She was not required to make a diagnosis. She was required to be aware of, follow, and competently interpret the guidance which is crystallised in the textbook and the SOP.

Page 18 of the SOP requires urgent liaison with the GP if there are concerns about hydrocephalus. After that point, i.e. considering potential diagnosis and referring to a specialist, the expertise becomes that of the general practitioner. Up to that point the same standard is required of whichever health care professional measures the head and does the initial interpretation of the results. All this flows from the fact that the documentation provides for: (i) one standard of care to that point, (ii) the possibility that it is not just general practitioners who will carry out those elements and (iii) in this case, the Defendant’s SOP envisaged those material parts of the general physical examination being carried out by the health visitor and to be her responsibility.” [emphasis added]

He therefore concluded at [363] that: “I therefore accept Miss Gollop QC’s submissions that there is one standard of care, regardless of the qualification or post held by the health professional responsible for the task. It follows that on this particular point the evidence of both the health visitors/nurses and the general practitioners is material as to whether or not there was a breach of duty.”

Comment

This judgment of Stewart J as to the standard of care of health visitors is useful as it demonstrates a practical application of the principles established in Wilsher and Darnley, namely that the role carried out by a professional is the important consideration, and not the qualifications of the individual in question. This explains why, in assessing the standard of care, Stewart J took into account the expert evidence of 4 experts – the 2 experts in nursing and health visitors, but also the 2 experts in general practice. This was notwithstanding the fact that the directions limited the GP evidence to causation only. At trial, the evidence of both GP experts as to breach of duty was explored and Stewart J considered it appropriate to take it into account (see [363]). This is a useful practice point for those who may be unsure how to approach expert evidence in a similar case in future.