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Cite as: [2016] ScotCS CSOH_168
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OUTER HOUSE, COURT OF SESSION
[2016] CSOH 168
A493/13
OPINION OF LADY STACEY
In the cause
LYNDA BRABENDER
Curator ad Litem for KW
Pursuer
against
FIFE HEALTH BOARD
Defenders
Pursuer: Smith QC, Sutherland; Drummond Miller LLP
Defenders: Stephenson QC, Galbraith; Central Legal Office NHS Scotland
6 December 2016
[1] The pursuer is the curator ad litem to KW, whose date of birth is 1 March 2007. KW is the third of six children of LW and PW. On 28 April 2008 a health visitor employed by the defenders, Mrs Rachel George, noticed what she described as “a very obvious squint” in KW’s left eye. He was referred to his GP who in turn referred him to hospital. The outcome of that referral was that KW was diagnosed with a retinoblastoma in both eyes. It was necessary to remove both of his eyes and he is now blind.
[2] Evidence was led by the pursuer from Mr Blaikie, consultant ophthalmologist at Fife Health Board and from Mr Reddy, consultant ophthalmologist at St Bart’s Hospital in London. There was no dispute about the evidence of either of them. Mr Blaikie had previously worked in both Tanzania and Australia in national centres in which he had seen several cases of retinoblastoma. In Fife, he would see a bilateral case perhaps once in two years. Mr Reddy practices in one of two centres in the UK which see all UK cases. I was able to accept each of them as experts knowledgeable in their field. From their evidence I was able to make findings about the condition, and about the way in which parents commonly report it.
[3] Retinoblastoma is a cancer which grows behind the pupil of the eye. If bilateral, one eye may be more severely affected than the other. It is a disease of babyhood, at its most common at the age of around 12 months. The course of the disease is that a tumour grows behind the pupil in which the cells multiply rapidly. The growth can be variable, some tumours growing more quickly than others. The effect of the growth of the tumour is to block light to the retina. That affects the vision in the eye and causes the patient to squint because he cannot focus with that eye. It also disrupts his daily rhythms which are dependent on light, causing difficulty in sleeping. Eventually if the tumour is left unattended the patient may die. Treatment by an oncologist may be possible, but if that does not succeed the necessary treatment is enucleation, that is surgical removal of the eyes. The result of that treatment is of course blindness.
[4] The detection of the condition is usually made when the parents notice something which seems strange to them in the appearance of the child’s eye. This can be difficult for parents to describe, but may be a “glazed” or “glassy” look to the eye. There may seem to be a white part in the pupil. The condition is sometimes noticed in a photograph. There may be a squint as the tumour prevents the child using the eye normally, and so it may “turn in”. Frequently parents are not able to be exact about the time at which they first noticed anything odd about the eye. Once a diagnosis is made, it is not unusual for parents to reflect and to think that there may have been something concerning them for some time before they sought advice.
[5] If the existence of the tumour is discovered at an early stage, then it may be possible to remove one eye only. In a case management discussion in 2014, parties agreed that the length of the proof would be reduced if they could narrow their respective positions as to differential outcome. They were able to do so, and entered into a joint minute on the question of causation. They agreed as follows:
1. Had KW been referred and seen promptly in October 2007 with a white reflex in the left pupil, it is highly likely that the right eye tumours would have been in a less advanced stage, and it is more probable than not that the tumours in that eye would have been treated successfully, that the right eye would not have required to be removed, and that KW would have retained good quality vision in the right eye. If KW had been referred in October 2007 with a squint, he would have been seen non‑urgently at some point after October 2007. It is likely there would have been further growth in the tumours in his right eye while awaiting the appointment. It is likely that the tumours would have been larger, but treatable and it is more probable than not that the right eye would have been treated successfully, that the right eye would not have been removed, and would have retained useful vision which would have been essentially normal.
2. If KW had been seen at hospital at any time prior to the end of February 2008, although he would have lost his left eye, he would have retained at least 50% of the vision in his right eye which would amount to material improvement in the outcome.
3. It is probable the left eye would have been lost due to the more aggressive nature of the disease and advanced stage had KW been referred for any reason during October 2007.
4. If KW had been referred on 8 April 2008, it would likely not have made any difference to the outcome.
[6] At the same case management discussion, parties accepted that the dispute between them might be determined by findings in fact as to what occurred between 10 October 2007 and 8 April 2008. Such findings would depend on the view taken by the court of credibility (and I would add reliability) of Mr and Mrs W and of Ms Christine Kidd, a health visitor employed by the defenders, for whom they are vicariously liable. It was noted that “contemporary accounts given by [the parents] to doctors treating KW as to the development of his condition and the advice they sought in connection with it are relevant to the consideration of their credibility.” I have made certain findings about what Mr and Mrs W said to doctors when KW’s condition was diagnosed, and have used those findings to assist me in my assessment of credibility and reliability.
[7] The pursuer argues that had the diagnosis been made earlier and treatment commenced earlier, the sight in one of KW’s eyes would have been saved. She argues that such earlier diagnosis should have been made in two sets of circumstances. Firstly, it is Mr and Mrs W’s position that they saw something odd in KW’s eye and asked the health visitor, Ms Kidd, for advice. They maintain that she took no action except to fob them off by saying that it would be all right, and they should not worry. They maintain she also said that she would arrange an appointment with the doctor but she never did so. They did not press to have an appointment because they accepted her assurance that it was nothing serious. The defence to that case was that Mr and Mrs W did not mention to Ms Kidd at any time that there was anything odd about KW’s eye, or ask for any advice about it. It was not disputed that if Mr and Mrs W had described KW’s eye to Ms Kidd as they claimed they did, she should have referred him to the orthoptist, which would have led to a referral to the doctor.
[8] The other case, referred to as the systems case, is that Ms Kidd was negligent in not seeing KW frequently enough for his circumstances. That led to her not seeing for herself signs of the condition, such as a white spot and/or a squint and therefore not referring KW for medical treatment. The defence was that Ms Kidd did see KW as frequently as his circumstances indicated was appropriate. She did not see him at any time when any signs of his condition should have been observed by her.
[9] The pursuer argues that KW’s parents told Ms Kidd that they were worried about KW’s eye by October 2007 at the latest, but she did nothing about it. Mr and Mrs W stated that they told Ms Kidd about the odd appearance of the eye at the latest on 10 October 2007 and also on other occasions after that. They maintained that Mrs W took KW to the baby clinic on several occasions after that date and reminded Ms Kidd of their concerns, and did so also on an occasion when she visited the family at home. Therefore the pursuer maintained that Ms Kidd was on notice that the parents were concerned about KW’s eye, and she had a number of opportunities to see him, but she did nothing and gave no advice that he should see a doctor; or that she did say he needed to see a doctor, and said she was making an appointment for him to do so, but she failed to do that.
[10] The parties agreed in a joint minute that during 2007 and 2008, drop in sessions were held by health visitors for families with babies on Wednesday afternoons. They helpfully agreed from the medical records the dates of attendances, failed attendances, places of attendances and the identity of persons seeing KW all as set out in the table below. The pursuer reserved the right to maintain that other attendances, not documented, had taken place.
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The defenders argued that no health visitor saw KW between 22 August 2007 and 24 April 2008, that Mr and Mrs W did not at any time report any concerns about KW’s eye.
[11] The systems case depended on the evidence of Mrs Mary El-Rayes for the pursuer and Mrs Mary Scott for the defenders. The regime in force at the time was based on a document entitled “Health for All Children”, fourth edition, edited by David Hall and David Elliman, and known as “Hall 4”. The scheme was implemented by the Scottish government, and each local area also had an implementation scheme. It is a UK wide system of health care, although there are local differences. The executive summary of Hall 4 states:
“6. Every child and parent should have access to a universal or core programme of preventive pre-school care. The content of this is based on three considerations: the delivery of agreed screening procedures, the evidence in favour of some health promotion procedures, and the need to establish which families have more complex needs…
13. The core programme includes antenatal care, newborn examination, agreed screening procedures, support as needed in the first weeks with particular regard to breastfeeding, review at 6-8 weeks, provision of health promotion advice either in writing (where appropriate) or by face to face contact, the national immunization programme, weighing when the baby attends for immunization, and reviews at 8 or 12 months, 24 months and between 3 and 4 years. However it is expected that staff will take a flexible approach to the latter three reviews according to the family’s needs and wishes, and face to face contact may not be needed for all families.”
[12] The case for the pursuer was that KW and his family had been put on the core programme. Mrs El-Rayes said that it should have been obvious to any health visitor that this family needed more than the core programme. She based that opinion on the fact that Mrs W was only 22, and had three children. KW was born in March 2007 and by September of that year she was expecting her fourth child. She might have morning sickness and she would be tired. Mrs W’s own mother had died of cancer in 2004, although Mrs El-Rayes was not clear on the date and seemed to think it had been later. In any event, Mrs W was bereaved, and would also miss the practical help her mother had given with her other children. Mrs El-Rayes noted from the records that Mrs W’s mother had taken the two elder children for some of their appointments. She noted from the records that Mrs W had told Ms Kidd that she was sick and tired of taking KW to the doctor when he had a cold. She also noted that Ms Kidd expressed concern that Mrs W had not had a smear test, which was especially important in light of her family history. She had not attended the dentist, nor taken the children to the dentist. KW had missed an immunisation appointment. Ms Kidd had noted that “[LW] tends to put things off”. From these indicators, Mrs El–Rayes found this to be a vulnerable family who needed more help from the health visitor than was provided by the core programme. She was vague about what that help would consist of, suggesting that in England, where she practised, there were voluntary organisations that could help young mothers if they were finding it difficult to get out to clinics with their children. Mrs El-Rayes thought that the health visitor should have taken “aggressive steps” such as phoning Mrs W and asking how she was.
[13] Ms Kidd accepted that she had made the entries discussed above but disagreed that the picture was one of a vulnerable family unsuitable for the core programme. She said that missing an immunisation appointment was not unusual, and could be because the child had a cold. She had found Mr and Mrs W to be coping with their young family. She knew that they had been very young, (Mrs W being 16 and Mr W 15 when their first child was born), and had lived separately, each with their own family for some time. However they had got married and obtained a council house of their own before KW was born. She thought that Mrs W missed her mother, but was coping with the bereavement which had happened in June 2004, more than two years before Ms Kidd came to know the family. Ms Kidd was concerned that Mrs W put off going for a smear test, as her family history was poor and also her early sexual activity was possibly a risk factor. She found that Mrs W was not very talkative or forthcoming, but she was prepared to allow Ms Kidd into the house, and Ms Kidd saw nothing to indicate that Mrs W failed to care for her children. She remembered Mr W as more chatty. She had met him at home and had assumed he was unemployed and so available to help with the children. Ms Kidd did not know what help could be provided from a voluntary organisation or anyone else to assist Mrs W. She did not think she needed a home help, even if there had been resources to provide her with one. Ms Kidd noted in the records that “[LW] tends to put things off”. She thought that she had been referring to Mrs W’s failure to go for a smear test and to attend the dentist. She thought that the home was well enough furnished. She noted that the W’s neither smoked nor drank and seemed able to cope financially. They had a television, an Xbox and mobile phones. She regarded them as a normal young family.
[14] Ms Kidd accepted that she had not made entries in the records about her view the W’s were a normal young family who coped. She accepted that if Mr W had been working at the time she must have assumed he was unemployed because he was at home during the day. She accepted she could have discussed that more fully. She did not find it necessary to make such an entry for a family who were suitable for the core programme; it was implicit in putting them on that programme. She accepted that she had not told the W’s in terms that they were on the core programme. She saw no need to do so. She said that indicators that a family needed more than the core regime would include a mother who seemed unduly anxious, or who phoned the health visitor frequently, or who tried to breastfeed but did not succeed and became upset about it, or who seemed to be depressed. She would look out for such indicators when she saw a family and when she read records if someone else had dealt with them in the past. She saw no such indicators with the W family. She did not believe that failure to appear for immunisation was unusual, nor was it very serious, so long as the mother brought the child in fairly soon.
[15] Counsel for the pursuer asked Ms Kidd about her work under the Hall 4 regime, and Ms Kidd explained that her work had changed over the years. There was now more child protection work than previously. Some families had problems with drugs, and there were non accidental injuries. Cases of that sort required a lot of work and attendance at case conferences. The core programme entailed seeing ordinary families less often than had previously been the case. The purpose was to focus help where it was most needed. At times it appeared that counsel asked questions about the system in order to point out faults in the system. That led Ms Kidd to say that if we lived in a perfect world she would spend more time with each family; but as things were in 2007, she did not have as much time as she would have liked to deal with families. Ms Kidd thought that child protection work was intensive and took up a lot of time. She did not think, however, that Mr and Mrs W should have been on anything other than the core programme.
[16] The expert health visitor for the respondent, Mrs Mary Scott was a teacher of health visitors at Glasgow Caledonian University, and was familiar with Hall 4 and its implementation in Scotland. She was a qualified nurse and health visitor, having a first degree and a post graduate degree. She had experience of working as a health visitor in Glasgow prior to taking up her position in 2007 in Glasgow Caledonian University which involved both drawing up and delivering programmes for education of health visitors. She regarded the W family as suitable for the core programme. She noted that while Mrs W had started her family young, she was 22 by the time of KW’s birth. She knew that the death of Mrs W’s mother had occurred more than two years before KW was born. Mrs Scott expected that Mrs W grieved for her mother, but she found no evidence in the records that the grief prevented her coping with her new baby, an event that all agreed was welcome in the Ws’ family life.
[17] Mrs Scott agreed with an assertion put to her by counsel for the pursuer that record keeping might have been fuller; thus Ms Kidd could and should have found out if Mr W was working or not, and should not have assumed from his presence in the house during the day that he was unemployed. If she had found out, as was the case, that he was working shifts in a warehouse, then she would have known he was not always available to help with the children. Mrs Scott did not regard Mr W’s employment as a reason to place the family on the additional programme. She said that without a doubt they were correctly placed on the core programme, as there was nothing in the records to indicate any need for any additional support. She did not know of any voluntary organisation which could have assisted Mrs W.
[18] Counsel spent some time asking about communication between a health visitor and the family. Mrs Scott said that the family should be told what the programme they were on would entail, even if they were not told in terms what programme they were on. Ms Kidd had not done so. But apart from that, there was no evidence other than the dispute about what was or was not said about KW’s eye, that Ms Kidd failed to communicate with the W family. Mrs Scott noted that she had urged Mrs W to get a smear test; she was particularly concerned because Mrs W’s mother had died, in her forties, of cancer. She had spoken to her about the dentist, and given advice about a person who could see the children for dental care. These were all matters she would have expected to be covered. Mrs Scott saw no signs from the records of a lack of engagement between Mrs W and Ms Kidd.
[19] Mrs Scott explained that under Hall 4, the health visitor had to evaluate each family for whom she had responsibility, making a holistic assessment. In order to do so the health visitor should ask pertinent questions and establish in discussion with the family what needs they have, deciding by means of both discussion and observation. If a family did not engage with the health visitor or had a history of failure to do so, then the health visitor would be expected to intensify her efforts to see the child. A family cannot be compelled to see a health visitor except for one statutory visit. Generally, if health visitors had concerns, they would try to persuade the family to engage, and if they failed to do so then they would notify social services of their concerns.
[20] Mrs El-Rayes was an experienced health visitor, now retired. She had prepared many court reports. She was a qualified nurse before qualifying as a health visitor in 1984. She had worked in various areas both urban and rural in England and had been a matron overseas. Her work had included public service as a member of the Nursing Midwifery and Health Visitors Council for five years, a member of the committee of the Health Visitors’ and Community Practitioners Association, a member of a committee representing health visitors in the trade union now known as Unite, and as a member of a Parliamentary Food & Health Committee for four years. In order to report in this case, and to give evidence, she was provided with the medical and health visitor records and with statements. She found that “[KW] was being brought up in a challenging environment” because she thought the records showed that Mrs W not able to cope with the task of bringing up her children. Mrs El-Rayes based that opinion on the failures that Ms Kidd had found in respect of attendance for the smear test and attendance at the dentist; by Ms Kidd’s coming to the view that “[LW] tends to put things off”; by Mrs W saying she was fed up taking the baby to the doctors, and by her missing appointments for immunisations. She found that Mrs W’s mother’s death was relevant, as Mrs W would be missing her mother’s company and her practical help. Thus Mrs El-Rayes did not think that Mrs W was amongst those mothers who competently engage with the system of health visiting, but rather was amongst those who needed more help.
[21] There was a dispute between Mrs W and Ms Kidd about what happened on 8 April 2008. Ms Kidd was making an ante natal visit, as Mrs W was expecting her fourth child. According to Ms Kidd she went to see Mrs W at home, by arrangement. When she arrived Mrs W invited her in, but said she had forgotten she was coming, and had been asleep. She said that her husband was still in bed, and the children were at their grandmother’s house. Mrs W said that Ms Kidd did call, and she was in bed having forgotten that Ms Kidd was coming. She said that KW was asleep, in bed with her husband. She said she told Ms Kidd that, and Ms Kidd said she need not wake the baby. The entry in the records so far as relevant to KW is as follows:
“A/N 34 weeks pregnant. [LW] feeling very tired, woke her up at 11.00am. Children all staying with [PW’s] mum….. Has a dentist but does not attend, too frightened to go – discussed seeing dentist at practice at Lynebank. To see Tanya at clinic re getting children seen. To see midwife at the end of April. Getting lots of kicks. All three children have been normal deliveries. Does not wish to breast feed. Maternity grant has been signed by midwife. Getting all benefits.”
[22] Mrs El-Rayes found Ms Kidd’s work unsatisfactory on either version of events. She said if she was told that KW was asleep she should have insisted on his being wakened so that she could see him. If she was told that all of the children were at their grandmother’s home, she should either have gone there to see them or should have asked that KW was brought to see her in the next few days. Mrs El-Rayes view was based on her opinion that this was a family failing to cope.
[23] Ms Kidd saw no reason why she should have gone to the grandmother’s home or insisted on seeing KW within a few days. While she did not accept that she had been told that KW was present but asleep, she did not think that had she been told that, she should have insisted on his being woken up. Ms Kidd based her view on her assessment of the family as a normal young family coping with the children. Mrs Scott agreed that Ms Kidd’s view was reasonable.
[24] Mrs El-Rayes found the defenders version of events, that KW had not been seen by a health visitor between 22 August 2007 and 24 April 2008, showed a gap which was unacceptable, in light of the Ws’ family circumstances. A more intensive programme should have been followed for KW, in which he would have been seen at least every six weeks. The family should not have been on the core programme. Mrs El-Rayes thought the lack of engagement which she perceived from the records should have been brought to the attention of the GP.
[25] I preferred Mrs Scott’s evidence to Mrs El-Rayes’ evidence. Mrs El-Rayes regarded the records as showing that Mrs W was not coping. Mrs W disagreed, as did Ms Kidd. Mrs Scott, on the basis of the records, also disagreed. While it must be for a health visitor to make an assessment rather than for the family to decide, there was no indication in this case that Mrs W was failing to cope. I accepted evidence from Mrs Scott and from Ms Kidd that missing an immunisation appointment was not unusual, and was not particularly concerning. I understood Ms Kidd’s position to be that Mrs W was not unusual, except perhaps for her reluctance to attend to her own health. Ms Kidd certainly was concerned that Mrs W kept putting off a smear test despite a family history of cancer. She was also concerned about her reluctance to go to a dentist, or to take the children. Such matters were not all that unusual in her experience. They did not give her cause to think that Mrs W was not coping with looking after her children.
[26] I do not accept that Ms Kidd had failed to carry out a holistic assessment, or that she had made the wrong decision in placing the W family on the core programme. I prefer Mrs Scott’s view that the family were correctly placed on the core programme. Therefore I do not accept that the family should have been seen every six weeks. I accept Ms Kidd’s note of the events of 8 April as accurate. I find that Mrs W did tell her that all her children were at their grandparents. I do so because the note was made close to the event by Ms Kidd. I can see no reason why she would have made a false note. In any event, I do not accept Mrs El-Rayes opinion that the family needed to be seen more frequently than was the case. I note that in light of the joint minute, even if Ms Kidd had discovered the symptoms of the disease on 8 April 2008, it cannot be said that the medical outcome would have been different.
[27] The pursuer’s main case was that KW’s blindness was caused or materially contributed to by negligence on the part of Ms Kidd. The pursuer alleges that both Mr and Mrs W pointed out to Ms Kidd that there was either or both of a white spot in the pupil of KW’s left eye, or a squint in that eye. Ms Kidd is alleged to have said that she did not know what it was, but that KW would grow out of it and that Mr and Mrs W need not worry. In contrast, she is also alleged to have said that she would make an appointment for the GP, but to have failed to do so. As I have found that the systems case fails, the defenders will be liable for negligence if and only if Ms Kidd was aware of concerns about KW’s eye, or should have been so aware, and did not advise his parents to get medical advice. It is therefore important to decide what is proved about when Ms Kidd saw KW, and what if anything was said about his eye when she did so. There is agreement as narrated above about certain days on which KW was seen by Ms Kidd, or by other health visitors, Mrs George and Ms Graham, or by the doctor. There was no agreement about KW being seen on other days and there was no agreement about what was said on various occasions.
[28] Ms Kidd was the nominated health visitor when KW was born. She knew that the family already had two children. She attended on 13 March 2007 at Mrs W’s home. The system for filing of records at that time was the matter of some controversy but it was agreed between the parties that there existed health records in Mrs W’s maiden name, and records in the name of KW. Mr and Mrs W had been married in 2006, when they had two children, but before KW was born. The health visitor records for Mrs W’s first two children were in her maiden name. As each successive child was born the system was that the mother’s health visiting records went with the new child’s records. Thus when KW’s records were recovered for the purposes of litigation they included health visiting records for KW together with health visiting records for his mother.
[29] Health visitors gave parents a book, referred to as the red book, for each child. KW’s book was produced. In it are tables in which the weight of the baby may be written; various pages of advice, and useful addresses. The purpose of the book is to give the parents advice and space for a record they can keep themselves for their child, but on some occasions health visitors make entries. Parents were asked to bring the book with them if the baby was brought to a clinic, but the evidence both from the health visitors and the parents was that sometimes parents forgot the book and so it was not brought in. In KW’s book there were entries for his weight on four dates, 21/03/07, 04/04/07, 18/04/07, 16/05/07 and 10/10/07. In the first four entries the weight is given in kilograms and in pounds and ounces, and his age is given in weeks. The first three entries are signed by Ms Kidd and the fourth by Mrs George. Therefore I conclude that on those dates KW was taken to the clinic and that Ms Kidd and Mrs George were there on the dates on which they signed the book. Each of them may also have been there on the date or dates on which the other signed the book.
[30] All of the witnesses agreed that an assistant, a woman named Susan at the relevant time, weighed babies at the clinic and health visitors were present and spoke to parents. If required they could speak privately but often health visitors spoke to parents in a large room with others present. The clinic did not give appointments; rather it was a “drop in clinic”. Parents could take their babies as often or as infrequently as they liked. Some mothers used it as a social facility to meet other mothers. Some mothers, usually those who had more than one child, did not attend often. It was not very clear why the entries were signed by health visitors if they had not weighed the baby; it was said that sometimes they did weigh them.
[31] There was conflicting evidence about the way in which attendance at the clinic was recorded. Ms Kidd said that a clinic attendance sheet would be filled out for each baby each time he or she was brought to the clinic. This was a temporary document, used by management to get information about numbers attending. The information on it would be name, age and date of attendance. The document would be sent to a central office by the administrative assistant. The system was that the attendance would be noted by the health visitor in the child’s records, but Ms Kidd thought that did not always happen. The baby would be weighed at the clinic and the weight entered in the red book if the parent had brought it, and in the baby’s records.
[32] Mrs George gave different evidence about the paperwork. She explained that the purpose of the drop in clinic was the get the babies weighed regularly, and to enable parents to discuss any concerns they had about their children. A member of the support staff usually performed the weighing. She said that each child had a “green sheet” on which the date and the weight were recorded. It was kept in the clinic room, and at the end of the clinic was there for the attention of the health visitor. These green sheets were in use in 2007, but were no longer in use and had not been used for several years. They gave way to “clinic attendance sheets”, which also contained the date and the weight. Any concerns that a parent had about a baby were not recorded in the green sheets, but rather in the baby’s records. Mrs George said that she would make a note in her diary and then put it into the records. If a parent brought the baby in to be weighed but forgot the red book, then the person who weighed the baby would give it to the parent on a piece of paper. In 2007, it should also be recorded on a green sheet.
[33] Thus there was a conflict between Ms Kidd and Mrs George about the use of green sheets. The importance of the evidence was that had a green sheet, or indeed a clinic attendance sheet, been recovered for 10 October 2007, there would have been documentary evidence that KW had been at the clinic that day. It would not, on the evidence of either witness, assist on the question of what was said about him other than his weight. There was no evidence of any search having been made for such sheets. Nor was there evidence of diaries or work rotas. Therefore there was no documentary evidence of KW’s attendance on that date, except the entry made in his red book by his mother at a later date of information which she said she got at the clinic. She entered his weight in pounds and ounces not kilograms, which accorded with evidence from the health visitors that most mothers preferred to have the information that way.
[34] It was also said by Mr and Mrs W that they attended the baby clinic on many other occasions. There was no documentary evidence of that. There were no entries in the records to show that was correct. I do not find it proved that any visits other than those in the records happened.
[35] Ms Kidd was upset when giving her evidence and indicated that she felt that had the claim been made and maintained differently, then searches for her diaries could and should have been made. She was told that the claim was abandoned but she understood it had been revived when different solicitors were instructed. She gave me the impression that she was angry that a claim had been made against her and she regretted that records were not available.
[36] While it would have been of interest to know if there was documentation showing KW’s attendance at the clinic on other days it would not have provided an answer to the question of what Mrs W or her husband said, if anything, to Ms Kidd about KW’s eye, nor what response she made. In determining this case I did not find the discrepancy between Ms Kidd and Mrs George on the existence of green sheets to be revealing. I know that many witnesses provide descriptions of paperwork routines differently from their colleagues when asked to do so after a number of years.
[37] There was conflicting evidence about what happened on 10/10/07. The entry for the last date in the red book, 10/10/07, is in pounds and ounces only, and is not signed or initialled by a health visitor. Mrs W stated that she and her husband took KW to the clinic on that date and she forgot to take the red book with her. She said that someone weighed KW and wrote the weight on a piece of paper for her. She entered the weight herself at home shortly after the visit. Mrs W said that she had mentioned the white spot in KW’s eye to Ms Kidd the first time she saw her after noticing it, when KW was about six months old. He would be six months old at the beginning of September 2007. When Mrs W was shown the entry in the red book for 10/10/07 she said that enabled her to “nail the date” because she had seen Ms Kidd that day at the clinic and mentioned it to her.
[38] Mr W’s evidence was different; he thought that KW’s eye condition had been brought up with Ms Kidd many times, and he believed that the white spot had been first mentioned at a home visit, and the squint had been mentioned at a clinic. Both Mr and Mrs W said that Ms Kidd did not know what the white spot was, but said that they should not worry, as KW would grow out of it. Mr W said that she also said that to give them peace of mind she would arrange a doctor’s appointment, but no appointment was ever made, although he said Ms Kidd had told him KW was on a waiting list for an appointment. In court Mr W said that if he had known how serious it was, he would have made sure something was done about KW’s eye.
[39] Ms Kidd’s evidence was that the W’s had never at any time raised any concerns about KW’s eye with her. She said that the visit on 10/10/07 as described by Mr and Mrs W did not happen. It was not possible due to lack of preservation of work rotas and diaries to show whether Ms Kidd had been working at the clinic that day. She was certain that if KW’s parents had told her on that occasion or any other that he had a white spot or a squint, she would have told them to take him to the doctor. As the surgery was very close to the clinic, had she been told at the clinic she would have asked the parents to go straight across to the surgery and ask for an appointment. Ms Kidd said that she would not make the appointment herself, but would tell the parents to do so. As a rule she did not make appointments for families, but advised the parents to do so. Ms Kidd did say that she might make a phone call for a mother who had no phone credit, or if a mother seemed to be having difficulty in getting an appointment. Mrs W was perfectly capable of arranging an appointment herself, Ms Kidd thought; according to Mrs W she had taken KW to the doctor several times concerning a cold and the after effects of chicken pox.
[40] Other members of the W family gave evidence of their knowledge of KW’s eye and of Mr and Mrs W’s circumstances. Mrs Cook, KW’s paternal grandmother, had become estranged from her son and his family in the two years or so prior to the proof, but she had previously been in quite close contact with them. She had helped to look after the elder two children to assist when Mrs W was caring for her own mother, who died in June 2004. Mrs Cook felt that Mrs W wanted to keep KW, born in March 2007, more to herself. When her first child was born she was very young and her mother had been involved in caring for the baby, and when her second child was born her mother was terminally ill. That led to Mrs Cook having involvement with both children as Mrs W nursed her mother. Mrs Cook felt that Mrs W was pleased to have a new baby she could take care of herself. Mrs W was grieving for her mother, but Mrs Cook thought that she coped with looking after three children. She was up some days and down other days.
[41] Mrs Cook remembered Mr and Mrs W asking her if she could see a squint in KW’s eye. She could not, but she could see a white bit in his eye, depending on the angle at which she looked. When she told them she could see a white bit, they said they did not see that. They said they were taking him to the health visitor about the squint and Mrs Cook said they should ask about the white bit when they did so. Mrs Cook said this happened some time before KW was one year old. Mrs W told her that she had spoken to the health visitor who said it was “mirror eye”, and that was something that happened with some children, and it would close. Mrs Cook went next door to ask her friend Ms Jane Smith about this, as she had never heard of “mirror eye”. Ms Smith had worked with children, but she did not know of such a condition. Mrs Cook noticed the white bit getting bigger. The next she knew Mrs W told her they had to see the doctor, and within a few days they were sent to London. After that, she knew Mr and Mrs W were angry that this had not been picked up by the health visitors. I noted that Mrs Cook referred in evidence to health visitors, plural, and not to any one health visitor by name. Mr and Mrs W told her that Dr Reddy had told them it should have been picked up earlier as the sight might have been saved. Mrs Cook was not able to be more precise about the date that any oddity was seen by her, nor the date that Mrs W told her that she had mentioned it to the health visitor. All she could say was that KW was not yet walking. Mr and Mrs W never told her that they were waiting for an appointment with the GP.
[42] Ms Smith, who was a retired nursery nurse employed for 35 years with the local authority, knew the family because she lived with an uncle of Mr W, and her house was close to Mrs Cook. Mr and Mrs W had lived close by at one time, but moved a few miles away; but Mrs Smith still saw them on occasion. She remembered holding KW when he was a new baby. Ms Smith said Mrs W told her she could see herself in KW’s eye and asked her if she had ever heard of a condition known as “mirror eye.” She thought this happened when KW was no more than six or seven months. Ms Smith told her she had never heard of it and asked Mrs W if she was taking KW to the doctor. Mrs W replied that the health visitor said it would be OK, and it was normal. Ms Smith commented in her evidence that Mrs W was not very talkative and kept herself to herself, as a rule. Mrs Smith then heard about the diagnosis and then looked at a photograph she had taken of KW when he was 10 or 11 months old. She could see on it that his eye looked as though it was “not working”.
[43] AW, Mr W’s brother, said he was aware that something was wrong with KW’s eye when he took photos of him. He said it was as though you could see through it, or there was a reflection from a flash, and it was “best described as a mirror.” At first he could see it only in photos but it progressed and could be seen in real life. He thought KW was only a few months old when he first saw it in a photograph he had taken. That photograph showed KW sitting up unaided. AW thought it might have been June or July of 2007 when KW was at most five months old. He said he showed Mrs W the photograph and they wondered if it might be caused by the camera. She thought it looked “pretty strange”. He had been asked to produce photographs for the court case, which he did, but he could not vouch the dates on which they were taken. He thought that KW was less than seven or eight months, although he was sitting up unaided.
[44] The descriptive name of “mirror eye” was not something that anyone claimed ownership of, but AW used the word “mirror” in evidence to describe what he saw. It was not a phrase that the doctors recognised as a frequently used description from their other patients. Mrs George did not accept that a baby of five months could sit up in the way KW was sitting in the photograph; he must have been older, probably about eight months, and so AW could not be right in his estimate of age. I accepted Mrs George’s evidence on that. Thus KW was at least eight months old when the photograph that AW remembered was taken.
[45] Mr and Mrs W told various doctors different things about the onset of KW’s symptoms. They also said different things about whether or not they had reported the matter in the past. On 24 April 2008 Mrs George noted that they were anxious about KW’s eye and wanted somebody to see it. Mr W said that the appearance had been present for some time, “most of his life” but was probably getting more obvious. He also felt that the squint was more obvious and present most of the time. Mr W said that he had been trying “for a while” to get it seen and that nobody had done anything about it.
[46] The GP records indicate that the parents said they had always been aware of the abnormality but felt that the squint was more obvious now. Dr Andrew Blaikie, consultant ophthalmologist with Fife NHS saw KW as an urgent referral on 29 April 2008. When KW was seen on 30 April 2008 at Queen Margaret Hospital by Dr Ramsay, he noted as follows “from the age of six months his mother noted his left pupil was white. For the past four months his left eye has been in-turning”. On the next day it was noted that the parents said that he had had a squint since he was two or three months old. At the Victoria Hospital, on 1 May 2008 the records are to this effect:
“This 14 month old boy who presented to us yesterday with a 10 month history of a left convergent squint and an absence red reflex for four months.”
[47] When KW was taken to London, it was noted on 8 May 2008 that his parents, at the age of four months, noticed an unusual reflex in his left eye and spoke to the health visitor. At the age of 10 months he was noted to have a squint.
[48] Mr W complained on or around 30 April 2008 to an office of the defenders which dealt with complaints. In evidence, Mr W had a vague recollection of having telephoned in order to complain.
The record is as follows:
“Caller, for some time, has been concerned that his baby son had a squint in his left eye. Parents have been asking the Health Visitor to do something, i.e. refer him to hospital but feel they have just been fobbed off always.
In the last few weeks the baby’s pupil has turned clear – parents had gone to see GP who referred baby to eye consultant urgently. Family have been informed today that baby has a tumour behind his eye – probably have to lose his eye – awaiting call from hospital re baby’s admission for surgery.
Family very upset – talking about complaining/going to see their solicitor – not sure at the moment what to do as so distressed.
After discussion agreed to wait till baby’s treatment was over and then decide what they wanted to do. Agreed to call CMP back when they had time to think things over.
CMP spoke to Liz Mitchell, lead nurse, Dunfermline & West Fife CHP to make her aware of situation.
NFA until we hear again from [Mr W].”
[49] According to Mr and Mrs W they told Mrs George that they had spoken to Ms Kidd about KW’s eye and she had said it would be all right. They maintained that Mrs George had been looking through records as they spoke and said she could see something about this in them. In contrast Mrs George noted in the records that they were vague about who they had told. Mrs George made two long entries about discussions with Mr and Mrs W, dated 24 April 2008 and 30 May 2008. The first entry reads:
“…..Very obvious squint of left eye, present most of the time, occasionally righted itself. Pupil area also looked abnormal, pupil seemed dilated with ‘glassy ‘centre. Dad said that this appearance had been present for some time, ‘most of his life’ but was probably getting more obvious. He also felt that the squint was more obvious now and present more of the time. I informed parents that I would refer to GP and orthoptist as a matter of urgency. Dad said that they had been trying for a while to ‘get it seen’ and that nobody had done anything about it. Looking briefly back through the notes I couldn’t see any mention of it having been observed or mentioned by the parents. Parents vague about who they had asked in the past. …”
The second entry under deletion of part which refers to Mrs W’s medical condition following the birth of her fourth child, reads as follows:
“[LW] says that she is well. …….Feels stressed at times when a lot of demands are made on her, but finds that she can relax again when house is quieter. Found being in hospital with [KW] very stressful as she did not like the unfamiliar surroundings. Excellent support from [PW’s] family. His parents and aunt have had [KW’s siblings] staying overnight on different nights recently. [LW] very happy with care received in Royal London Hospital and at RHSC Edinburgh. [LW] stated that [KW’s] eye problem ‘should have been picked up sooner’ and said that if it had been then he may have not had to lose his eye. [LW] stated that she blamed Christine Kidd, HV, for this as she had asked her about it ‘loads of times’ when she was up at the clinic. She said that Christine had said that she would get her a doctor’s appointment. [LW] stated that she had been asking for around six months. I said to [LW] that in my opinion Christine was an extremely caring Health Visitor, who had tried very hard to recall being asked about [KW’s] eye, but could not recall this. [PW] then arrived home with a male friend. He immediately expressed his dissatisfaction with Christine’s performance, and described her as useless. He said that she was responsible for [KW’s] eye tumour having got as bad as it was and that she should have acted sooner. I did not respond to this.”
[50] Mr and Mrs W had to take KW to London for treatment. The cost of doing so was borne by NHS; but Mr and Mrs W claimed fraudulently for money in respect of travel when tickets had been bought for them. They were prosecuted for fraud and each pled guilty.
[51] Mrs W gave an interview to a newspaper about KW. The resulting article stated that “the nightmare started after his first birthday when LW spotted a white dot shimmering in his left pupil”. Mrs W said in evidence that the newspaper report was wrong, and she had not said that in interview. She maintained that she had seen the abnormality in KW’s eye well before his first birthday.
[52] I have to determine if Ms Kidd was told about a problem with KW’s eye, however described, and if so, when she was told. I have to decide if Ms Kidd was told, what, if anything she did about it. Each health visitor who gave evidence, as well as the doctors, both eye specialists and GPs, knew of the potential problems which a squint might herald. They all said that parents tended to think it might mean that their child might need glasses, whereas health professionals all knew that it might be a sign of serious illness. They also knew that a white spot, or a lack of red eye in a photograph, might indicate serious illness. It is a matter drawn to attention by the red book though it does not state what the consequence might be.
[53] I find it is inherently unlikely that a health visitor who was given such information by a parent would do nothing. It is likely that she would tell the mother to make an appointment with the doctor. It is odd in this case that the parents say that when they told the health visitor about it “lots of times”, they did not press for advice. According to Mrs W, Ms Kidd did not know what it was, but said it was not serious. However Mrs W said she kept telling Ms Kidd about it, which suggests that Mrs W was concerned about it. Mr W said that Ms Kidd said she would make an appointment with the doctor. When he was asked why he did not ask what had happened about the appointment, he replied that that he thought that KW was on a waiting list. He claimed that he had experience of having to wait to get a GP appointment. Evidence was led from the GPs in the practice that an adult might have to wait for several weeks if he wanted to see a particular doctor, but that generally appointments were available in a short timescale. While there was no protocol giving babies priority they would usually be seen quite quickly even if the situation was not an emergency. It seems to me to be unlikely that Mr and Mrs W would allow themselves to be fobbed off for so long if they had asked frequently, as they claimed; if Mr W was correct in saying he was told that a GP appointment was to be arranged by Ms Kidd, then I would have expected him to ask what had happened to it. If Ms Kidd was told of KW’s symptoms, then she would know the situation could be serious. I see no reason why she would not tell Mr and Mrs W to make an appointment.
[54] Mr and Mrs W were contradictory of each other. Mrs W did not say that they were told that an appointment had been requested and KW was on a waiting list. Mrs W said that Ms Kidd was told at a clinic whereas Mr W said she was told when on a home visit. The W’s have given a number of different versions of how they first noticed the squint or the white part in the eye. I accept that apparent differences taken from what different doctors noted may not be real differences. The notes are difficult to read, and the focus of the doctors was no doubt on KW’s presentation. It is however of relevance to a doctor to know when any symptom was noticed, and I do not dismiss the evidence as unimportant. I regard the differing information given to various doctors as not fatal to Mr and Mrs W’s position, but not helpful to it.
[55] On the other hand the telephone call noted from Mr W shows that he said that he had been trying to get help for some time. Why in the face of the distress he must then have been suffering would he go to the trouble of making that up? I did not find it very persuasive when it was suggested that he and later his wife did so because they knew that they might be in trouble if it transpired that they had known of KW’s problem but had done nothing. They did not at that stage know what the final sad outcome was going to be.
[56] I also considered the evidence of Ms George. She was a reliable and straightforward witness with no personal interest in the outcome of the case. When she saw KW on 24 April 2008 KW’s records show that the purpose was immunisation, an appointment having been missed earlier that month.
[57] Mrs George saw Mr and Mrs W and KW on 24 April. Mr W’s evidence was that Mrs George had looked through the files and said that she saw something about it being mentioned in the past. Mrs George was adamant in her evidence that she had not said that. I prefer Mrs George’s evidence to Mr W’s. She made the entries shortly after the appointments. It is factually accurate to say that there is no mention in the records of KW’s symptoms having been mentioned. I believe Mrs George that she looked briefly through the notes and found nothing. I do not believe Mr W when he says that Mrs George said she had found some mention of it. I believe her when she wrote and said in evidence that the parents were vague about who they had asked in the past.
[58] The next relevant part of Mrs George’s evidence was her record of her visit to the family at home on 30 May 2008. In the entry in Mrs W’s records her recent delivery of her fourth child is documented. The entry so far as relevant is set out in paragraph 49 above. Mrs George confirmed the accuracy of her note. While counsel for the pursuer did not argue about its accuracy, he did ask about why and when Ms Kidd had been asked to think about whether the parents had asked her about the eye. Mrs George was not able to give details of that, and the defenders produced no paperwork to vouch it. Ms Kidd said that she was told by her line manager (Nurse Liz Mitchell) after the complaint was made that she was no longer to attend to the family, hence Mrs George saw KW on 24 April 2008. The complaint, the record of which is quoted above, tends to confirm that evidence. Ms Kidd was the designated health visitor, and while the complaint did not mention her name, the line manager Nurse Mitchell would be able to discover that Ms Kidd had been so designated. Mr W said in evidence that he was not proud of all he had said, explaining that he was upset by what had happened to his son. He accepted that Ms Kidd was a “nice woman” but he felt that she had not done her job properly.
[59] I have considered both entries in case Mr and Mrs W are confused about the date on which they said they spoke to Mrs George. I find from Mrs George’s evidence discussed above that Mr and Mrs W were vague, when speaking to Mrs George on 24 April 2008, about who they had asked in past; that there is no mention in any of the records of them having spoken to anyone; that Mrs George did not say she could see a mention of them speaking to anyone; that when Mr W made his complaint on 30 April 2008 he did not name Ms Kidd; and that by 30 May 2008 Mr and Mrs W were both saying that they had told Ms Kidd about it before 24 April 2008.
[60] Counsel for the defenders relied in part on the fact that Mr and Mrs W had pled guilty to charges of fraud relating to expenses claimed for taking KW to London. Both of them admitted that, but said that the money had been paid and then they were asked to claim for it. I do not find that episode to be of much assistance to me. While I accept it shows Mr and Mrs W in a poor light and shows them to be dishonest, it does seem to me to be a different matter from concocting a case against Ms Kidd. I do not find that their being prepared to defraud the NHS shows that they are necessarily prepared to invent a story about Ms Kidd.
[61] Counsel for the pursuer also argued that Ms Kidd was a health visitor who was prepared to bend the rules. He referred to an instruction contained in the records that if a baby’s weight recorded at the clinic fell by 2 centiles then action should be taken, but noted that although KW’s weight had fallen by 2 centiles nothing was done. He argued that she was therefore likely to have done nothing when the eye was drawn to her attention. I accepted Ms Kidd’s explanation that weight was a useful check of a baby’s health, but a decrease in weight of sort shown was not particularly worrying. It did not suggest to me that Ms Kidd would ignore concerns about a baby’s eye. While I accept that the records do state that such a weight loss should be referred, I find that weight loss in a baby is a matter on which a health visitor would routinely decide if the weight loss was of importance. A complaint about an eye either to the effect that it looked white or otherwise unusual, or that there was a squint, was not a matter which a health visitor would regard herself as competent to deal with. She would refer such a child to an orthoptist or a GP. There was no reason why Ms Kidd should fail to do so. Thus I did not find Mr Smith’s submission that an analogy could be drawn between the two very different situations to be helpful.
[62] Counsel for the pursuer submitted that Ms Kidd was an unsatisfactory witness; she lacked focus when being asked questions on behalf of the pursuer, and she took every opportunity to be disparaging about the W family, for example commenting that “you can lead a horse to water….” in the context of the W’s not taking advice about contraception. She said that the W’s were profuse liars. Counsel argued that Ms Kidd had a dismissive approach to her work with a family such as the W’s. He submitted that while Ms Kidd would naturally be upset at being blamed for a baby losing his sight, her manner in the witness box was such as to indicate her professional attitude to them was not satisfactory.
[63] I do not accept that submission. It is true to say that Ms Kidd did appear to be disparaging of Mrs W as a young woman who had her first baby when she was 16, and who had never worked. She did make a disapproving reference to people who left school, had babies, and got council houses. I had the impression that Ms Kidd was angry that she had been blamed for KW’s fate. She was disappointed that the case had continued having been told in error that it had been abandoned. She was angry that the records were incomplete and her diary had not been preserved. Ms Kidd was in the witness box for a long time and was nervous. Some of her remarks about the W family were in the context of the systems case. She did not agree with Mrs El-Rayes' evidence. I do not find, however, that Ms Kidd let any personal views she may hold (and have held in 2007) about very young mothers influence the care she offered to the W family. I accepted Ms Kidd’s evidence that Mrs W was not unusual, and that she did her best to care for her and her family. It would be a grave dereliction of duty for a health visitor to fob off a mother who was concerned about a squint or a white area in a baby’s eye. I heard nothing in Ms Kidd’s evidence to suggest that she would do such a thing due either to personal disapproval or any other reason. Nor did I find that she was a careless person who would fail to take note of such a complaint. There was nothing in either the oral evidence or the documents which led me to think that Ms Kidd was careless or that she did not attend faithfully to her duties.
[64] In making my decisions on credibility and reliability I am prepared to make allowances for the difficult situation in which Mr and Mrs W found themselves when their baby was diagnosed with cancer. KW is a much loved son and the diagnosis and treatment which followed must have been a devastating blow for the whole family. According to the GP Mr and Mrs W have done very well in looking after all of their children including KW since KW’s loss of sight. That reflects well on them. It is understandable that they have thought about all that happened before diagnosis, and it is correct that the pursuer acts in KW’s best interests in having this matter investigated and brought before the court. The evidence about Mr and Mrs W’s actions was contradictory, between themselves, and in comparison to the records. It is clear from the evidence of their family members that there had been some discussion within the family about KW’s eye before Mrs George saw it and made the referral. Thus Mr and Mrs W knew before that date that there could be something wrong, although they had no idea how serious it might be. It may be that they had thought about taking KW to the health visitor and asking for advice, but I find no acceptable evidence that they did so. I was not able to find, from the evidence given by the family and Ms Smith, that either Mr or Mrs W had told Ms Kidd of the appearance of KW’s eye.
[65] I find that neither case for the pursuer is made out. I therefore repel the pursuer’s pleas in law. I uphold the defenders’ second and third pleas in law and assoilzie the defenders. I will hear parties on any motion for expenses that may be enrolled.