England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE HUNT)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

Thursday, 17th May, 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against the decision of Hunt J. on 7th December 2000, permission having been refused on the documents by Henry L.J.
2. In his judgment, Hunt J. dismissed the claimant's claim in negligence against the Home Office in respect of the death by suicide of the claimant's husband, Navnit Zinzuwadia, in Leicester Prison on 16th June 1993. The deceased hanged himself in his cell at the prison. It is one, therefore, of a number of very tragic cases which have occurred over the years in Her Majesty's prisons.
3. The claim was based on the vicarious liability of the defendant for Dr. de Silva, the psychiatrist at the prison who had the care of the deceased. It was alleged that he had been negligent in coming to the conclusion that Mr. Zinzuwadia presented no risk or no substantial risk of suicide, negligent in the actions which he took in the light of that conclusion and negligent in the level of the medication which he prescribed.
4. The deceased had begun a two-and-a-half year prison sentence on 5th October 1992 for an offence of violence. He was for a time in prison at Ashwell but he was transferred to Leicester on 19th May 1993 because of fears that he might self harm. However, at Leicester at that time he showed no symptoms of depression, was not on medication and was involved in no incident. According to Dr. de Silva's evidence at trial, Mr. Zinzwadia's stay at Leicester on that occasion was uneventful. He went back to Ashwell on 25th May. Thus he had been at Leicester for about one week, leaving there approximately three weeks before his suicide.
5. However, back at Ashwell, on 15th June Mr. Zinzuwadia assaulted a prison officer. The police surgeon at Ashwell, Dr. Moore, thought that he could harm himself or take his own life or try to harm others, and so he was transferred back to Leicester Prison. Dr. Moore, according to her evidence, did not tell Dr. de Silva that she thought that the deceased might be suicidal but said that he was psychotic.
6. Mr. Zinzuwadia arrived at Leicester Prison on 15th June. On arrival he was kept in a cell under a regular 15-minute observation overnight. The following morning he was seen by Dr. de Silva for a 45-minute interview. Following that, he was again allocated to a single cell with observations of him every 15 minutes and at final lock up at 8.30 p.m. It was in that cell that he was later found hanging by officers at 7.10 p.m.
7. The pathologist found that Mr. Zinzuwadia died from vagal inhibition with death happening in seconds. Dr. de Silva's evidence about his 45-minute examination of the deceased on the morning of 16th June was that he arrived at an interim diagnosis of something paranoid but short of schizophrenia. Dr. de Silva said that he prescribed chlorpromazine, as well as the 15-minute observation. He said that he was concerned about the possibility of further assaults on staff and he considered the deceased to be at no significant risk of harming himself. He told the court that he had no serious concern because there was no serious disturbance of behaviour. Mr. Zinzuwadia could feed, could make telephone calls and communicate and was not chaotic in his thinking process. Mr. Zinzuwadia asked for a family visit for the next day and the doctor gave permission for a phone call to arrange it. Dr. de Silva said that he had a reasonable rapport with Mr. Zinzuwadia, who appeared to improve in front of his eyes. He saw the deceased on two occasions in the afternoon and he did not look distressed, although Dr. de Silva said that he did not talk further to Mr. Zinzuwadia. If Mr. Zinzuwadia had shown any deterioration after his initial interview, then, said Dr. de Silva, he would have transferred him. He gave instructions to staff to observe Mr. Zinzuwadia and said that he would assess him as an on-going process.
8. Expert psychiatric witnesses were called by both sides. For the claimant, Professor Weller described the deceased as being high risk and said that Dr. de Silva's assessment had been wrong. In his judgment, Mr. Zinzuwadia had a "full house of risk factors". Professor Weller said that the deceased should have been removed to a safe place within the NHS and prescribed higher doses of the drug than in fact were prescribed. He accepted that the risk of assault on another person was higher than the risk of suicide, and he agreed that it would not have been right to put Mr. Zinzuwadia in a shared cell.
9. For the defence, Dr. Carter expressed the view that the correct dosage of chlorpromazine had been prescribed because the dosage should be built up gradually. He said it was hard to know the severity of any depression; it was a matter of looking at it over days and weeks. His evidence was that a high percentage of patients with schizophrenia who die by suicide were seen by an apparently unsuspecting clinician within several days to a week prior to death. Adding together all the acknowledged risk factors in this case, he still held to the view that the approach taken by Dr. de Silva was a reasonable one and that he had properly diagnosed a mental illness and wanted first to observe its progress. In his view, speaking with hindsight, Dr. de Silva had made an error of judgment; but many people in the same position, acting reasonably, would have made the same error, intending to assess the situation again the next morning.
10. The judge spelt out the well-established legal test to be applied in cases of alleged professional negligence, citing Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582, and Bolitho v. City and Hackney Health Authority [1993] 4 M.L.R. 381. He noted that an error of judgment by itself was not enough to constitute negligence and that the claimant had to show, therefore, a failure to adhere to the standard of skill and care reasonably to be expected. He said that the defendant was not to be held negligent if he acted in accordance with a practice accepted as proper by a responsible body of practitioners skilled in his field.
11. The judge said that he had to decide whether, on the evidence, what Dr. de Silva did in deciding to put the deceased on 15-minute observations and to see how he progressed was negligent -- that is to say, something which no ordinarily competent psychiatrist would have done. He then went on to note the conflict between the two expert psychiatrists. The judge stated that Professor Weller's view was that what was done was inadequate and negligent and that only one-to-one supervision would do. Dr. Carter, he said, supported Dr. de Silva and said that many, including himself, would have done what he did. The judge then said:

"I do not find that the views of Dr. Carter and the course adopted are what might be termed 'maverick' or outside the mainstream of opinion. I do not find the course followed extraordinary or any other than might well have been followed in a psychiatric hospital as Dr. Carter said. I find that it was a logical course with the reasons set out above behind it. Even if there had been 5 to 10 minute observations such as Dr. Carter suggested they could not have saved Mr. Zinzuwadia who died in seconds from his own hand."

12. That judgment is now attacked by Mr. Metzer on a number of grounds on behalf of the applicant for permission to appeal. It is said that the judge's findings were contrary to the evidence. Mr. Metzer contends that there was overwhelming evidence that there had been a breach of duty of care by Dr. de Silva. Professor Weller emphasised the large number of risk factors present, including his history of unemployment and of drug and alcohol abuse, plus a number of other matters. He particularly relies on Professor Weller's use of the phrase "a full house of risk factors". Reference was also made by Professor Weller to a large body of literature. Consequently it is said that the judge's findings simply could not be supported on that evidence.
13. I have to bear in mind that the learned judge heard the evidence in question and had to make an assessment of it. In particular, he had before him not only the evidence of Professor Weller but also the evidence of Dr. Carter about the risk factors to which I have already referred, and in particular the conclusion that, even bearing in mind all the risk factors, Dr. Carter's view was that the approach taken by Dr. de Silva was a reasonable one. Moreover, Dr. de Silva had to take into account the fact that the deceased had been at Leicester Prison quite recently for about a week and under observation, and had shown no signs of mental disturbance or suicidal tendencies on that occasion.
14. I simply cannot see that there is any basis here for arguing that there was no proper evidence for the findings at which the judge arrived. He was entitled in my view to reach the conclusion on the evidence which he did.
15. It is next contended that there were a number of irregularities at trial, such as, for example, the judge "protecting" Dr. de Silva against cross-examination and dealing with a number of procedural matters in ways which it is said were unfair. There is a basic problem about this contention, namely that there is no evidence to support the allegation. Perhaps for understandable reasons there is no transcript of the proceedings before the court. But there is not even a solicitor's affidavit or witness statement exhibiting the solicitor's notes of the relevant part of the proceedings, nor even what there should be at the very least, that is to say a witness statement from the solicitor attending the trial to put forward in his own words an account of what happened. It is simply is not good enough to make allegations without any supporting evidence. There is, therefore, no evidential basis for this purported ground of appeal.
16. It is contended then on behalf of the appellant that the judge failed to make any proper reference in his judgment to the amount of literature adduced at trial in support of the claimant's case. Mr. Metzer emphasises that the literature included statistical evidence showing an increased suicide risk in cases where certain factors were present. He contends, therefore, that the judge failed to take account of this evidence.
17. That seems to me to be a contention which simply cannot stand up. There is no obligation on a trial judge to refer in his judgment to all the evidence which has been put before him. It is not to be assumed that the absence of any such express reference means that the judge has ignored it or failed to take it into account. I can see no basis upon which an appeal could succeed on that ground.
18. Then it is argued that it is unclear on what basis the trial judge preferred the evidence of Dr. Carter to that of Professor Weller. There is nothing, it is said, in the judgment which indicates how that rejection of Professor Weller's evidence was arrived at. This seems to me to be a misanalysis of the judgment of the trial judge. It is not the case that he preferred the evidence of Dr. Carter as such to that of Professor Weller but rather that the judge accepted that Dr. Carter's views on what should have been done were not a maverick opinion but were representative of an approach which a reasonable body of practitioners would have adopted. In short, he was concluding that, while some medical practitioners would have chosen to follow Professor Weller's route, others, in the light of the evidence, would have acted along the lines adopted by Dr. de Silva. That was the evidence given by Dr. Carter.
19. That is an entirely proper approach for a court to take, and I can see no basis for challenging successfully the trial judge's conclusions on that footing.
20. Finally reference is made to the fact that there is no mention in the course of the judgment, and no ruling in that judgment, on certain submissions based upon the European Convention of Human Rights in relation to this case, and submissions made on behalf of the claimant, particularly in relation to article 2, the right to life. This is not put at the forefront of Mr. Metzer's contentions, but nonetheless he argues that the learned judge should have dealt with it.
21. It seems to me that the judge must have taken a view that the contentions based upon the European Convention added nothing to the common law claim in negligence. In my view that was a perfectly proper conclusion for him to adopt. If the claim in negligence on normal common law principles were to fail, as the judge found that it did, that amounted to a conclusion that the defendant (including Dr. de Silva) had behaved reasonably and had not failed to take reasonable care for the deceased.
22. In those circumstances, I see little that would be added by any reference to article 2 of the European Convention and certainly no basis upon which an appeal could successfully be advanced.
23. Cases of this kind are always sad ones. Hindsight gives one 20/20 vision, and in retrospect it was tragic that further steps were not taken which might have saved this man's life. But if one considers the actions of Dr. de Silva after the interview through the eyes of those possessed of the same degree of knowledge which he had at the time, it is difficult to see that his actions amounted to negligence. He put this man on a 15-minute watch; it could have been five or ten minutes, but it is most unlikely that that would have prevented the death, given the evidence of the swiftness of death when caused in this fashion. Dr. de Silva left him in a single cell, but that is not criticised. It is understandable, given his violence towards others. He prescribed an appropriate drug in a dosage supported by the defence expert.
24. In the circumstance it seems to me that the judge was entitled to conclude that Dr. de Silva had not been negligent. In those circumstances Henry L.J. was right in the conclusions which he reached on the papers that this appeal has no real prospect of success and it follows that this renewed application must be dismissed.
ORDER: Application dismissed.