England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 March 2015

David Pittaway QC :

Introduction

1. This action arises out of the tragic suicide of Philip Baker sometime on the night of 27 October 2010 or the early morning of 28 October at the age of 51. The claim is brought on behalf of his widow, Pauline Baker under the Fatal Accidents Acts 1976, and on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934. There are also claims made by her son, Andrew Baker and daughter, Rebecca Piercy for psychiatric injury as a consequence of seeing Mr Baker's body shortly after it was discovered. Mr Baker had been referred by Dr Gee, his general practitioner, to the local mental health services, Cambridge and Peterborough NHS Foundation Trust in September 2010. Mr Baker was seen by Dr Kabacs, a speciality doctor in psychiatry on two occasions, 29 September and 26 October 2010, before she discharged him back to the care of Dr Gee. It is alleged that the treatment plan provided by Dr Kabacs on 29 September was inadequate and her decision on 26 October 2010 to discharge Mr Baker to the care of his general practitioner, caused him to take his own life.

Law

2. The standard of care to be applied is that of a reasonably competent psychiatrist exercising reasonable care and skill at the time. The test of whether a doctor is in breach of duty was set out by McNair J in his direction to the jury in Bolam v Friern Hospital Management [1957] 2 All ER 118, at pages 121-122, which was approved in the House of Lords in Maynard v West Midlands Regional Health Authority [1985] 1 All ER 63.

Factual Evidence

3. Mr Baker had suffered from bipolar affective disorder since he was a teenager which, for the most part, he tolerated without medical intervention. He had lived with Mrs Baker since 1987 and they had been married since 1990. Mrs Baker had two daughters by another relationship, whom Mr Baker treated as his own children. Together they had one son, Andrew, who was born in 1993. Mr Baker had succeeded in running his own plumbing and heating business and providing for his family. He owned his own house.
4. Mrs Baker and their children were used to her husband's fluctuations in mood from high to low in approximately six week cycles with occasional periods of normality in between. He had taken an overdose in 1993 at a time of marital difficulties but did not receive any medical treatment. He had sought assistance from the mental health services in 2007 when he was seen by Dr Obinwa, a staff grade psychiatrist, on two occasions. Dr Obinwa considered he was suffering from cyclothymia, a mild form of bipolar affective disorder, and recommended sodium valproate. Mr Baker did not attend a follow-up appointment or take the medication.
5. Mr Baker had been brought up in an unconventional family of eight children who lived with their parents in a converted Nissen hut in Harston, Cambridgeshire. His parents were, by all accounts, early eco-warriors, interested in anti-nuclear demonstrations, organic food and other environmental issues, taking their children with them on demonstrations. From his parents Mr Baker developed a circumspect view of medicine, avoiding doctors and medications where possible.
6. Mrs Baker also suffered from depression, which led to periodic self-harming and alcohol abuse. Sadly Andrew Baker also suffered from depression, exacerbated by bullying at school and, to a lesser extent, Rebecca Piercy also did too. Nevertheless the family loved their father and enjoyed particularly the times when he was on a high, when they described him as being great fun to be with, however, when he was low he would become uncommunicative, withdraw into himself and sometimes lie on the sofa with a cushion over his head, humming. Although Mr Baker suffered from bipolar affective disorder he was always able to work and provide for his family.
7. The pattern of fluctuations in high and low mood altered in May 2010 after Mr Baker had attended his niece's wedding in Cornwall. He came back ebullient in mood, which did not remit after six weeks, as usually happened, but continued at a level that became unacceptable to Mrs Baker. Her husband's mood, unfortunately, coincided with Mrs Baker suffering from a prolonged episode of depression and a period of self-harming. The atmosphere at home was clearly volatile. Mr Baker was drinking heavily and spending time in the village public house, on occasions behaving in a disinhibited fashion. After an incident in August 2010 where Mr Baker failed to collect his wife to take her to the local public house, she locked him out of the house. There had been a previous occasion or occasions when Mrs Baker had locked him out of the house. Mr Baker moved into his parents' house in the same village, which was being lived in by one of his brothers. His mother was living in a residential care home. Mrs Baker explained that she remained in contact with her husband most days, either seeing him, telephoning or texting him. He continued to keep his possessions, including his clothes, at the family home. Mrs Baker was unable to cope with him living at home in his exuberant state when she was herself unwell.
8. The level of concern that Mr and Mrs Baker continued to show to each other can be judged from the fact that Mr Baker contacted the family general practitioner, Dr Gee, about his wife's depression in August 2010, after he had been locked out of the house. Mrs Baker arranged to see Dr Gee on the pretext of her own health but brought Mr Baker with her in the hope that Dr Gee could persuade him to see a consultant psychiatrist. He agreed to do so and attended Dr Gee with his wife on 17 September 2010. Dr Gee sent a referral letter by fax to the local mental health services requesting "prompt advice" about Mr Baker. He also prescribed Olanzapine, 2.5 mg per day. It is not clear why an appointment was not arranged within the expected period of 5 days but on 23 September 2010 Dr Gee saw Mr Baker again and sent a further letter requesting an urgent appointment. The second letter referred to the fact that Mr Baker had told him that he was "wondering" about suicide. He had looked for rat poison but had not found it. Dr Gee wrote that Mr Baker was suffering from "intermittent suicidal thoughts chiefly when his cyclical moods are on an acutely downward trajectory". In the same letter Dr Gee queried what mental health services were available.
9. Mr Baker, accompanied by his wife, was seen by Dr Kabacs on 29 September 2010. Dr Kabacs trained as a doctor in Hungary before moving to the United Kingdom. At the time she saw Mr Baker, her post was that of a speciality doctor in psychiatry. She has subsequently become a locum consultant psychiatrist. In her post, as a speciality doctor, she was supervised by a consultant psychiatrist, Dr Hymas. Dr Kabacs had access to some of Mr Baker's medical history. She was aware that Mr Baker had attended Dr Obinwa in September 2007. Dr Kabacs had available three letters written by Dr Obinwa, two detailed letters following the first two consultations, and a third letter relating to his discharge in March 2008. Dr Kabacs said that she would have read Dr Gee's second referral letter and Dr Obinwa's three letters before she saw Mr Baker. She believes that she saw Mr Baker for a one hour appointment, possibly over lunchtime.
10. Mrs Baker is critical of the fact that she was not given an opportunity to speak as frequently as she would have liked to have done. The consultation with Dr Kabacs was with Mr Baker and there was only a limited investigation into Mrs Baker's own illness that could be undertaken. It is clear to me that Dr Kabacs was aware of Mrs Baker's illness which was why she initiated a Carer's Assessment. The assessment was designed to look at specifically Mrs Baker's ability to support her husband. This was of particular relevance where Mrs Baker was herself unwell.
11. Dr Kabacs took a detailed history from Mr Baker and performed a mental state examination, before reaching a diagnosis. She subsequently prepared a detailed letter for the general practitioner, which made no specific reference to the incident referred to in Dr Gee's referral letter of 23 September 2010 or to suicidal ideation. She described Mr Baker as "slightly unkempt, wearing dirty clothes and his hand was unwashed". His mood was noted to be normal subjectively and objectively; there was no psychotic symptomatology and he seemed to be insightful. She diagnosed him as suffering from bipolar affective disorder stating "currently his mood is normal, he has just recovered from his hypomanic mood". In her witness statement Dr Kabacs states that she considered that Mr Baker's risk of suicide was low as he denied suicidal thoughts, intent or plan. Mr Baker was advised by Dr Kabacs to continue taking Olanzapine at a dose of 2.5 mg per day, which he should continue to take for at least 12 months. She advised him that he should contact Relate for Marriage Guidance Counselling. She offered a Care Assessment for Mrs Baker. Dr Kabacs arranged a follow-up consultation for the following month.
12. Dr Kabacs did not keep any handwritten notes from the consultation but dictated the letter to the general practitioner either the same evening or following morning. It seems to me that the level of detail in the letter could only have been prepared from a handwritten note taken during the course of the consultation. I am informed that at that stage a file would not have been opened on Mr Baker into which the handwritten notes could have been placed. It is noteworthy that when Dr Kabacs' letter to Dr Gee was eventually typed on 19 October 2010, Dr Kabacs wrote across the top "green file - please".
13. Dr Kabacs said that she would have taken Mr Baker's case to the weekly Multi-Disciplinary Team Meeting ("MDT"), where all new patients would have been discussed. The minutes of the meeting are, unfortunately, not available. Dr Kabacs said that she discussed Mr Baker's case with her supervising consultant, Dr Hymas. She also said that as a result of the MDT she expected that a Carer's Assessment would have been organised. Nevertheless something prompted Dr Kabacs on 19 October 2010 to send an email regarding the arrangement of a Carer's Assessment. The content of the email does not disclose that it was a follow-up to a previous request. I think it is likely that Dr Kabacs discovered that request had not been made following the MDT, which prompted the request on 19 October 210. The Carer's Assessment was subsequently arranged to take place on 29 October 2010.
14. Mr Baker attended Dr Kabacs again on 26 October 2010 on this occasion on his own. He had seen Mrs Baker before the appointment when she had emphasised to him the importance of explaining to Dr Kabacs that he was feeling hopeless. He assured Mrs Baker that he would do so.
15. Once again there are no handwritten notes of the consultation available, however, Dr Kabacs says that she would have dictated the letter to the general practitioner the same evening or following morning. In the letter she said " ... that since we last met his mood had deteriorated and he has been feeling depressed and anxious". He was still working but finding it difficult to talk to customers and make decisions. He said that he had less energy and motivation than before. He had stopped daily drinking. He said that he had not been taking his prescription of Olanzapine for three weeks. He reported that his mood had started to improve and "he denies having any suicidal thoughts but tends to feel hopeless about the future". He was noted to be "... Wearing dirty clothes and was unkempt; he kept good eye contact; he appeared to have difficulties with his hearing but talked readily about himself; he described his mood as low and he appeared mildly depressed; he has some thoughts of hopelessness but denies suicidal thoughts; no perceptual abnormalities were elicited; his cognition was grossly intact; he has insight into his state". She stated that her impression was of "bipolar affective disorder, currently mild to moderate depressive symptoms". She recommended to him that he restarted Olanzapine but recorded that he preferred to stay off medication. She noted "we talked about the first signs and symptoms of mood deterioration, especially symptom of hypomania and mania. In that case I strongly suggest that he restart on Olanzapine which he agreed with." She said "I haven't offered him another outpatient appointment but will be happy to see him again if you have concerns and re-refer his case".
16. There was a discussion about Mr Baker's marital situation. Dr Kabacs formed the view that his primary concern related to resolving his marital difficulties, on which she was unable to provide counselling on the NHS. Having discussed matters with him, she advised that he should see a marriage counsellor together with his wife. She discharged Mr Baker back to the care of his general practitioner. The letter does not refer specifically to the Carer's Assessment but Dr Kabacs said that she believed that it would have gone ahead. She says that Mr Baker accepted the plan she had put forward. Mrs Wilkinson, a team administrator, in a witness statement recollected Mr Baker laughing and joking with the administrative staff as he left the premises.
17. Mr Baker visited his wife after the appointment. Mrs Baker said that he was very upset, tearful and distraught at being discharged. She says that he said he did not know what he was going to do and described his own situation as "hopeless". In her witness statement she says that he said to her that Dr Kabacs had told him that if he needed to see her again, he should go through his general practitioner. He asked his wife whether he could return to live with her at the marital home but she told him that the time was not right because of her own illness. Mrs Baker said that he was cross with her response. He collected some clothes from their bedroom and went to work to complete a contract.
18. The following day he saw his son, Andrew Baker, in the evening and worked with him on a motor car that they were both restoring. Andrew Baker recollects that his father was quieter than usual and at the end of their work he uncharacteristically hugged him and told him that he loved him.
19. On 28 October 2010 members of the family were unable to establish Mr Baker's whereabouts and reported him missing to the police. Andrew Baker attended with the police at his grandparents' house and on searching the outbuildings found his father dead with a plastic bag tied over his head. Mrs Baker was contacted, as well as her daughter, Rebecca Piercy, who drove from her home 45 minutes away to Mr Baker's parents' house. She insisted on seeing her stepfather and saw his body in the outbuilding. Mrs Baker also saw him in the mortuary, when she identified his body.

Expert Evidence

20. Both Dr Mayer and Dr Maganty are well qualified to give expert evidence on these matters. Dr Mayer, who retired from the NHS in 2011, practised in adult community psychiatry in Bury St Edmunds, and is familiar with the services offered by the community mental health teams. Dr Maganty is a consultant psychiatrist at the Raeside Clinic, Birmingham, a medium secure unit, who has experience of the community mental health teams for patients discharged from the clinic. He has a particular interest in the arrangements for discharge. Counsel on behalf of the Claimants sought to characterise his experience as being appropriate only to those patients who had been detained in medium secure units. I reject that criticism. I was impressed with the care with which both experts gave their evidence.
21. Following the joint meeting of experts, Dr Mayer for the claimants, and Dr Maganty for the defendants, there are essentially two issues remaining. First, should Dr Kabacs have taken action, following the consultation on 29 September 2010, over and beyond the action she took to involve the community mental health services, which probably would have included a home visit. Second, should Dr Kabacs have not discharged Mr Baker on 26 October 2010 and, again, organised further involvement with the community mental health services. On these two issues the experts have maintained opposing views, Dr Mayer maintaining that continued involvement with the community mental health services on both occasions was required. Dr Mangaty taking a contrary position.
22. Dr Mayer and Dr Maganty are agreed that Mr Baker's diagnosis was bipolar affective disorder. They disagree as to his presentation when he saw Dr Kabacs. Dr Mayer believes it was of a moderate depressive episode. Dr Maganty believes that it was a mild (later changed in oral evidence to mild to moderate) depressive episode. They are both agreed that Dr Kabacs assessment on 29 September 2010 was of a good standard. They disagree as to whether she should have involved the community mental health services after that consultation. Dr Mayer believes that a further appointment should have been made to assess his mental state and determine whether medication should be prescribed. Dr Maganty does not consider that this was reasonable within the time frame before Mr Baker's death. They are agreed that Dr Kabacs' s engagement with Mrs Baker was reasonable in the circumstances.
23. Dr Mayer believes that Dr Kabacs decision to discharge Mr Baker on 26 October 2010 was premature given his fluctuating mental state, including low mood, alcohol abuse and feelings of hopelessness about the future. He believes that the description he gave of his mood on 26 October represented risk factors for self-harm or suicide. They disagree as to what is described as a predictable fluctuation within a deteriorating mental state between the two assessments. Dr Maganty believes that Mr Baker could have been managed within a primary care setting as long as he did not suffer from mania or severe depression. They agree that he did not do so. Dr Maganty does not consider that it was possible for Dr Kabacs to anticipate Mr Baker's death in circumstances where she had formed the view that he did not have thoughts of self-harm. He also draws attention to the fact that Dr Kabacs was unaware of the nature or extent of Mrs Baker's own mental health problems. They are, however, agreed that there is no evidence that Mr Baker presented with an immediate risk of self-harm or suicide when he was seen on 26 October 2010. They are agreed that an adequate risk assessment was performed. They agree that there was no reason to admit him to hospital or involve the Crisis Resolution and Home Treatment Team.
24. Dr Mayer believes that Mr Baker took his own life whilst suffering from a moderate depressive episode of bipolar affective disorder. Dr Maganty relies upon the breakdown in Mr Baker's relationship with his wife and her refusal to allow him to return home and to a lesser extent his underlying bipolar disorder and a negative reaction to Mrs Baker's own mental health problems. They are agreed that even if a further appointment had been made it does not, on balance, follow that Mr Baker would not have taken his own life. They disagree as to whether the discharge of Mr Baker by Dr Kabacs increased the risk of him taking his own life.

Discussion

Breach of duty

25. It seems to me that the starting point in this case is the credibility of the evidence of Dr Kabacs, who is herself an experienced psychiatrist. She gave her evidence in fluent English and was able to explain clearly the steps she had taken after Mr Baker had been referred to her as a patient. It is unfortunate that handwritten notes of the consultations on 29 September and 26 October 2010 are not available, however, I am satisfied from the evidence that Dr Kabacs gave that she prepared handwritten notes of each consultation, which did not find their way into Mr Baker's file. Indeed, unless she dictated each of the two letters to his general practitioner during the course of the consultations, which nobody has suggested, it is difficult to see how the first, and to a lesser extent the second, letter, could have contained the level of detail which is set out. I accept Dr Kabacs' s evidence that she dictated each letter from her handwritten notes at the end of each clinic or at the latest the following morning. As such, the letters represent a near contemporaneous account of the consultation.
26. The content of the first letter is a detailed description of the history obtained from Mr Baker, and to a lesser extent from Mrs Baker, of his history of bipolar affective disorder. Although Dr Kabacs only had some material before her she did have the three letters written by Dr Obinwa to Mr Baker's general practitioner in 2007 and 2008 and Dr Gee's second referral letter. She accepted in evidence that she probably had not seen the first referral letter, albeit it was received by the defendant and was part of the documents disclosed. She carried out a full mental state examination of Mr Baker and concluded that he was suffering from bipolar affective disorder, which was a positive diagnosis of mental illness. Dr Obinwa had considered that Mr Baker was suffering from cyclothymia, which falls below that definition.
27. It was pointed out that the letter was deficient in two respects. First it does not refer specifically to that part of Dr Gee's referral letter where he said that Mr Baker had told him he was "wondering" about suicide and had searched unsuccessfully for rat poison. Second, Dr Kabacs does not express an opinion on the risk of suicide. In my view if Dr Kabacs had not considered with Mr Baker that part of Dr Gee's referral letter, the consultation would have fallen below an acceptable standard. Dr Kabacs said that she did discuss it with Mr Baker and was satisfied that he was at a low risk of suicide. She says that he denied suicidal thoughts, intent or plan. Whilst it is troubling that neither matter is referred to in the letter, I have to form a view as to whether Dr Kabacs conducted the consultation in a thorough and competent manner. Having heard her give evidence I have concluded that it is very unlikely that she would not have discussed with Mr Baker that part of Dr Gee's referral letter relating to suicide, which was the very reason she had been asked to see him urgently. I am satisfied that Dr Kabacs is a careful and competent psychiatrist, who did discuss with Mr Baker the information contained in Dr Gee's letter, and that she concluded that Mr Baker was at a low risk of suicide. Dr Mayer and Dr Maganty both agreed that Dr Kabacs had carried out a good standard of assessment.
28. It seems to me that, on the basis of the information that Dr Kabacs had available to her at the consultation on 29 September 2010, she was entitled to come to the conclusions that are set out in the first letter she wrote to Mr Baker's general practitioner. Mr Baker was suffering from bipolar affective disorder, as he had done for many years, but he was continuing to function satisfactorily carrying on his own business, which required technical skill and ability in its execution. He was engaging with his wife but continued to be troubled by the breakdown in their marital relationship. He was taking the medication prescribed by his GP, Olanzapine, which was beginning to stabilise his mood. I am satisfied that Dr Kabacs' conclusions that she should arrange a further consultation with Mr Baker the following month and a Carer's Assessment for Mrs Baker were to an acceptable standard on her part.
29. In my view there were insufficient risk factors present that would have mandated the involvement of the community mental health services at that time. I accept Dr Maganty's evidence that "there was nothing there" and accordingly reject Dr Mayer's evidence that Dr Kabacs should have involved the community mental health services. While it may well be the case that some psychiatrists may have done so at that stage, I am satisfied that a reasonably competent body of psychiatrists would not have done so. Dr Kabacs took the case to the MDT on the following Wednesday, which would have included a range of healthcare professionals. Whilst there is no minute available of the MDT meeting, I accept Dr Kabacs' evidence that she did discuss Mr Baker's case at the meeting after the first consultation and, following the discussion, no further recommendations for treatment were made. She also discussed Mr Baker's case with her supervising consultant, whom it does not appear suggested a different course of action.
30. There were two factors in Dr Kabacs' treatment plan, which suggest that she had properly identified the issues involved. First the reference to marriage counselling, which reflected the reality as described by Mrs Baker. Second, the reference to a Carer's Assessment, which reflected Mrs Baker's inability to support her husband because of her own depression.
31. It seems to me that Dr Kabacs's decision to discharge Mr Baker back to the care of his general practitioner at the second consultation on 26 October 2010 was also of an acceptable standard. Mr Baker told her that he had stopped taking Olanzapine three weeks before because it had been affecting his mood. There is an issue as to whether he had in fact done so in light of the prescription dated 19 October 2010 that Mrs Baker had obtained. At one stage it appeared that the issue might be settled when Rebecca Percy said that she had retained the packet containing Olanzapine after her step-father's death, which would have shown how many of those tablets he had taken. I asked that the packet be brought to court but was informed on the third day of the trial that Mr Piercy's recollection was that it had been destroyed.
32. Dr Kabacs recorded that there had been a deterioration in Mr Baker's mood since his consultation on 29 September 2010. I accept Dr Maganty's evidence that Mr Baker had followed a relapsing and remitting pattern for a number of years. Dr Maganty refers to the fact that Dr Kabacs' diagnosis of mild to moderate depression is routinely treated in primary care by general practitioners. Mr Baker had told her that he did not wish to take medication. Her plan envisaged referral by the general practitioner if there was a further deterioration in his mental health. Dr Kabacs considered that Mr Baker's principal concerns related to the issues in his marital relationship and again advised him to seek the services of a marriage counsellor. Although Dr Kabacs could have worded her letter more carefully, I have concluded that her references to "hopelessness about the future" and "some thoughts of hopelessness" were more likely to be in the context of the breakdown of his marital relationship than a more general hopelessness. Dr Kabacs advised Mr Baker to take his medication. Her recollection was that Mr Baker accepted the plan put forward including discharge back to the care of his general practitioner. The witness statement from Mrs Wilkinson is supportive of the fact that when left the premises he was laughing and joking with the administration staff.
33. Mrs Baker and her children, Andrew and Rebecca's, evidence about these events is particularly poignant. I am satisfied that they have done their best to explain to the court their recollection of the events surrounding Mr Baker's death. Mrs Baker's evidence is that her husband was distraught when he visited her the same day after his appointment with Dr Kabacs. She describes him as being in a distressed state, being tearful. He was disillusioned that he had been discharged by Dr Kabacs and told that there was nothing more that could be done for him. He asked Mrs Baker if he could return home but she told him that the time was not right whilst she was ill. She was not well enough to cope with him at home. At the end of their conversation he went upstairs to collect some clothes and went to complete a contract on which he was working. Mrs Baker did not see him alive again.
34. It is not suggested that at any time he saw Mrs Baker he discussed with her taking his own life, in particular he did not do so at their final meeting after he had seen Dr Kabacs. He appeared cross that Mrs Baker would not allow him to come home. In my view Mr Baker's main concerns at that meeting were to persuade his wife to let him come home, sadly, she was not sufficiently well to agree to his request. I am satisfied that he understood and agreed with the plan Dr Kabacs had proposed. He was aware that Dr Kabacs was prepared to see him again, through his general practitioner.

Causation

35. I am not satisfied that any alleged failure on the part of Dr Kabacs to involve the community mental health services in Mr Baker's case, following the consultation on 29 September 2010, was causative of Mr Baker's suicide. It is suggested by Dr Mayer that had community mental health services been involved, on the balance of probabilities, this would have averted the tragic consequences. Dr Mayer's opinion pre-supposes that community mental services could reasonably have been put in place in the period between the two appointments and, if it had been, the nature of the care provided would have made a difference. There is an absence of evidence as to what community mental health services would have been available within that period and what they would have been able to offer, beyond a home visit from a member of the team. I accept Dr Maganty's evidence on this issue that it is unlikely that a home visit could have been arranged before the second consultation. I am not satisfied that, on the balance of probabilities, had Dr Kabacs instigated further involvement from the community mental health services, Mr Baker would not have taken his own life about one month later.
36. The situation with the appointment on 26th October 2010 is more difficult in that it is alleged that but for Dr Kabacs decision to discharge Mr Baker to the care of his general practitioner he would not have taken his own life. I have given careful thought to this proposition and concluded that the case has not been made out. There was no indication of suicidal ideation on the part of Mr Baker at the time he saw Dr Kabacs or subsequently the same afternoon when he saw Mrs Baker. Whilst I fully accept that he was distressed when he visited his wife he did not give any indication to her that he was proposing to take his own life. On the contrary at the end of their conversation he collected clothes from his bedroom and went off to work on a contract he wished to complete. Mrs Baker's recollection is that he was cross that she had told him that she would not allow him to return home.
37. The following day Mr Baker appears to have gone to work and spent the evening working with his son, Andrew, on the repair of an old vehicle. Whilst Andrew Baker's recollection is that his father was quiet and hugged him telling him that he loved him, it would be too much to read into his actions that he had necessarily decided at that stage to take his own life or, if he had done so, his reasons for doing so.
38. In my view it would be a step too far for me to conclude that, but for Dr Kabacs' s decision to discharge him to the care of his general practitioner, Mr Baker would not have taken his own life, as opposed to any other reason at that time. There is evidence that the breakdown in his relationship with his wife was a significant stressor, Dr Maganty draws attention to the fact that his last incident of self-harm had been in the context of marital difficulties. Dr Maganty does not consider that the contact and interaction with Dr Kabacs would have caused such a profound and significant effect upon him as to take his own life. He draws attention to the fact that he broke down when went to see his wife and not when he was informed by Dr Kabacs that he was being discharged to his general practitioner. Dr Maganty believes that his decision to take his life was the breakdown of his relationship with his wife during a depressive episode, causing him to have a distorted thinking pattern, exacerbating the breakdown in his marriage. There is no evidence to indicate that had Dr Kabacs offered another outpatient appointment that would have prevented his death. I have reluctantly reached the same conclusion and prefer Dr Maganty's evidence to that of Dr Mayer on this and the other issues in the case.
39. There is one other matter which I should consider in the context of the case on causation. Counsel on behalf of the Claimants sought at a late stage to introduce the principles in Bailey v Ministry of Defence [2008] EWCA Civ 883 into this case. Dr Mayer's report failed to deal with the issue of causation, except for a paragraph stating the general proposition that bipolar affective disorder is a treatable condition. At a late stage Dr Mayer was asked to provide a letter stating that the alleged breaches of duty materially contributed to Mr Baker's decision to take his own life, which at the outset of the trial I admitted as evidence. Dr Mayer frankly admitted in evidence that the use of the words "material contribution" were not his own. When asked about it, Dr Mayer said that he was more comfortable with the application of the "but for" test on the facts of this case rather than "material contribution". It does not seem to me that the late formulation put forward by Counsel on behalf of the Claimants that Dr Kabacs' alleged breaches of duty materially contributed to his death adds anything in this case to the "but for" test. In my view this is not a case where medical science cannot establish the probability that "but for" an act of negligence the injury would not have happened and the "but for" test requires to be modified. As recognised by Dr Mayer, the issue is whether "but for" the alleged breaches of duty Mr Baker would have taken his own life. Each of the alleged breaches was a defining event without which Mr Baker either would or would not have taken his own life.
40. Turning to the individual claims made on behalf of Mrs Baker, her daughter and son, it would appear that the only remaining claim is that made by her daughter, Rebecca Piercy. Dr Mayer and Dr Maganty are agreed that Andrew Baker's grief would not amount to any separate psychiatric injury as a result of discovering his father's body. Mr Baker did not advance in his closing submissions claims on behalf of Mrs Baker or Andrew.
41. Rebecca Piercy attended the scene of her step-father's death approximately 45 minutes after she had been informed that he had died. She saw his body in the outhouse with a plastic bag over his head. Dr Mayer considers that she suffered from PTSD consequent upon witnessing her step father's body. Dr Maganty considers that there was mild depressive episode of a recurrent depressive disorder. The medical records disclose that Rebecca Piercy has a history of depression. The opinions in both psychiatric reports are that she made a good recovery from these tragic events. I am not satisfied that she suffered a separate psychiatric injury as a result of seeing her step-father's dead body. On balance I prefer Dr Maganty's evidence that she suffered from a mild depressive episode of a recurrent depressive disorder. The main issue, however, is whether as a matter of law she is entitled to make a claim as a secondary victim. I am reminded by Ms Power on behalf of the defendant that the circumstances in which such a claim can be made is closely defined by the "control measures" referred to in the authorities put before me. She submits that the discovery of Mr Baker's body was at a time too distant from Mr Baker's death to allow Rebecca Piercy to come within the category. If, it had been necessary for the purposes of this judgment, I had had to reach a decision on this issue I would have concluded that there was insufficient physical proximity in time and space to Mr Baker's death, Taylor v A Novo (UK) Ltd. [2013] EWCA Civ 194 applied.
42. In the circumstances judgment is entered in this case for the defendant.
43. At the conclusion of the trial I indicated that it was not necessary for counsel to attend the handing down of this judgment unless it was not possible for them to agree any consequential orders. If the parties are unable to agree an order, this matter should be relisted before me for further directions.
44. Finally, I am grateful for the assistance of counsel and their detailed submissions in this tragic case.