Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS   Case Number: PD19/08
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   In the cause   MALCOLM MURRAY, SENIOR (AP) and YVONNE MURRAY (AP) Pursuers & Appellants   against   LOTHIAN HEALTH BOARD Defenders & Respondents     _______________________

 

 

 

Act: Doherty, Advocate Balfour & Manson for pursuers and appellants

Alt: Fitzpatrick, Advocate Central Legal Office National Services Scotland for defenders and respondents

 

 

 

 

EDINBURGH,  7 October 2011

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor dated 9 December 2010; certifies the cause as suitable for the employment of counsel and thereafter continues the cause on the question of expenses to a date to be afterwards fixed.

 

(signed) Mhairi M Stephen

NOTE:/

 

NOTE:

1. This is a reparation action by the pursuers who are the parents and joint guardians of their son Malcolm Murray. Malcolm is an adult and suffers from Prader Willi syndrome. They have raised the action against Lothian Health Board alleging negligence on the part of employees of Lothian Health Board in respect of their care of Malcolm whilst an in-patient at St John's Hospital in Livingston in June/July 2005. On 18 July 2005 Malcolm sustained significant burning injuries as a result of setting fire to himself with a lighter.

 

2. The pursuers plead a case of fault

(a) against Dr La Cock the Consultant Psychiatrist on duty when Malcolm was admitted as an emergency;

(b) against Martin Kane the nurse on duty when Malcolm was admitted as an emergency;

(c) against Lesley Mains the named nurse;

(d) against the nurse in charge of the ward on the day of the incident 18 July 2005;

(e) against Staff Nurse Alan Murray being the nurse who allegedly provided Malcolm Murray with a cigarette and lighter that day.

 

3. As the sheriff correctly observes in his judgment the averments of the pursuers are set out at some length. In particular the averments of fact in Articles of Condescendence 3 and 4 are rather difficult to follow. They certainly contain such averments of fact as are pled but they also stray into the area of foreseeability, causation and duty of care. Reference is made to Malcolm's admission to hospital on 21 June 2005 under emergency section in terms of the Mental Health (Scotland) Act 1985. Reference is then made to the conduct of the admitting locum psychiatrist and the various nurses with reference to the NMC Code (Nursing and Midwifery Council) and also CRAG's publication - "Observation of People with Acute Mental Health Problems - A Good Practice Statement (May 2002)". There is significant mention of the requirement to devise and prepare an initial management plan and reference is also made to the inadequacy of that plan and further care plans dated 28 June and 11 July which are also said by the pursuers to be inadequate.

 

4. At page 7 of the Record (Article 3 of Condescendence) it can be noted that certain admissions are made which are of some significance.

 

5. The sheriff's interlocutor excludes from probation the pursuers' averments in Articles 5, 6, 7 and 8 of Condescendence being in effect the averments of duty against the locum consultant psychiatrist; the admitting nurse; the named nurse and the nurse in charge of the ward as at 18 July 2005. Accordingly, the only case left on Record against the defenders related to the actings of the Staff Nurse Alan Murray who was on the ward at the time Malcolm Murray set fire to his tee-shirt causing the injuries described.

 

6. At the commencement of the appeal counsel for the appellants indicated that she accepted the sheriff's decision in respect of the case pled against the locum Consultant Psychiatrist Dr La Cock and did not propose to contest that part of the sheriff's judgment. The appeal therefore proceeded in respect of the sheriff's decision in so far as it related to the case pled against the admitting nurse; the named nurse and the nurse in charge of the ward on 18 July 2005.

 

APPELLANTS' SUBMISSION

7. Fundamentally the appellants' submission was that the sheriff erred in law by holding that there were insufficient factual averments to support the averments of duty pled by the pursuers against the defenders. Miss Doherty for the appellants explained that the case against the defenders was failing to comply with a code rather than departure from a practice or system of working which can commonly be a feature of this type of processional negligence action.

 

8. With regard to the case pled against Martin Kane, the admitting nurse I was referred to averments in Articles 3 and 4 of Condescendence and the duties set out in Article 6. Article 3 of Condescendence refers to the NMC Code and CRAG's publication. The pursuers go on to aver "Any nurse of ordinary competence working within the Mental Health Service and acting with ordinary skill and care would act in accordance with this publication. The nurses caring for Mr Murray at the relevant time were nurses working within a Mental Health Service". In relation to the assessment of risk, it provides that a person having identified the risk of dangerous behaviour has a responsibility to take action to reduce that risk and manage it effectively. Article 3 goes on to aver "Any nurse of ordinary competence acting with ordinary skill and care would act in accordance with this guidance. (The NMC Guidance) it provides that details should be recorded of assessments and reviews undertaken and arrangements made for future and ongoing care".

 

9. The pleadings then go on to set out four steps which should have been implemented in order to manage or reduce the risk presented by Mr Murray's history of setting fires. This would take account of the significant risk of him setting a fire when angry. The steps which, it is averred, an ordinarily competent nurse would have taken was to prepare an initial management plan which would provide that (1) Mr Murray was to be observed whilst smoking; (2) Mr Murray was not to have access to cigarettes or lighters apart from his permitted smoking time; (3) Mr Murray was to be observed when with others who were smoking; (4) when agitated Mr Murray required one to one constant observation. The same duty applies to Lesley Mains who is referred to as the key worker or named nurse. In effect the case against Mr Kane relates to the emergency admission and his failure to include these aspects in the 72 hour care plan following admission and there is furthermore an ongoing duty on the part of the named nurse or key worker in respect of Mr Murray's care plan.

 

10. In Miss Doherty's submission the detailed factual averments made by the pursuers give full notice of what they consider was required of the nurses.

 

11. These factual averments underpin the duties set out in Articles 6 and 7 of Condescendence. The requirement to devise and develop a nursing care plan including the four elements referred to are common to the pursuers' case against both Nurse Kane and Nurse Mains.

 

12. Turning to the pursuers' case against the nurse in charge. The duties said to be incumbent upon that nurse are set out in Article 8 of Condescendence. In essence the duties are similar however, it is appropriate to make specific reference to the duties incumbent on the nurse on the day in question. It is stated "It was said nurse's duty to review Mr Murray's level of observations and to increase observations. It was the said nurse's duty to require constant one to one observation of Mr Murray until he was in a settled condition. Given the events of that day, Mr Murray's agitation and his return to the ward and the fact that he was a known fire risk, said nurse knew or ought to have known that there was a risk of Mr Murray setting a fire. She knew or ought to have known that there was a risk of injury to Mr Murray as a consequence of setting a fire." In support of the duty I was reminded that the general averments relating to the NMC Code and good practice applied similarly to this nurse. There were specific averments relating to events on 18 July 2005 when Malcolm Murray had attended Eliburn Social Inclusion Centre. The staff knew or ought to have known of his agitation that day and on that basis observations ought to have been increased in order that he was observed constantly.

 

13. Miss Doherty criticised the sheriff's reasoning on this matter in particular that part of his note which suggests that the averments in support of the duty of care are inspecific. This is dealt with by the sheriff at page 24 of the note when he states: "I agree that the duty to increase observations lack specification and must be deleted. I also agree that there is no basis pled to support the stated duty "to require constant one to one observation of Mr Murray until he was in a settled condition" and accordingly this averment is deleted." The sheriff erred in forming this view. He failed to take account of averments in fact regarding action to be taken by the staff and he failed to take account of the risk which Malcolm Murray posed when angry. The defenders have been given fair notice of why increased observations are necessary and there is simply no need for the pursuers to aver any more.

 

14. Finally I was referred to various authorities on relevancy and specification. These authorities are Jamieson v Jamieson 1952 SC(HL) 44; Miller v SSEB 1958 SC(HL) 20 and McMenemy v James Dougall & Sons Ltd 1960 SLT (Notes) 84. I was also referred to Robb v Dundee District Council 1980 SLT (Notes) 91. These authorities consider how the court should approach the issue of pleadings from the stand point of both relevancy and specification. In McMenemy the court decided that it was proper to look at the pleadings in a broad light with a view to ascertaining whether the defenders had been given fair notice. And of course the well known case of Jamieson v Jamieson sets out the principle that "an action will not be dismissed as irrelevant unless it has necessarily failed even if all the pursuers' averments are proved".

 

15.              The appellants' counsel concluded by urging that there are sufficient averments in fact to allow the matter to proceed to probation and I was asked to allow the appeal and recall the interlocutor to the extent that it excludes the averments of fault in Articles 6, 7 and 8. I was asked to certify the cause as suitable for the employment of counsel.

 

RESPONDENTS' SUBMISSIONS

16.              Mr Fitzpatrick for the Health Board accepted that the case against Alan Murray in respect of events on 18 July 2005, was sufficiently relevant that it should proceed if necessary to proof. It was noted that the appellants no longer wished to insist on the case insofar as directed towards the admitting Consultant Psychiatrist Dr La Cock and accordingly concentrated his submissions on the appellants' case as directed against the remaining three Health Board employees named namely, Nurse Kane; Nurse Mains and the nurse in charge of the ward when Mr Murray returned to the ward on 18 July 2005. With regard to the case of negligence set out against these three nurses it was the contention of the Health Board that there was no foundation in the averments of fact which would inform and support the averments of fault. Further the averments failed to give fair notice of the case of fault against these nurses and the facts and the averments of fault were inadequately specified.

 

17.              Mr Fitzpatrick observed, in effect that the pursuers had decided to examine the conduct of all relevant staff members who had dealings with Malcolm and subject their conduct to critical comment without there being any basis in fact or law for so doing. Central to the case against the three members of staff is the pursuers' assertion that it was the duty of all three nurses to institute a care plan having carried out a full risk assessment and that that care plan ought to have been developed with regard to the NMC Code and the CRAG's publication. Had they done so the care plan would have contained the four step approach set out in the pursuers' pleadings relating to Malcolm Murray's smoking; access to cigarettes or lighters; proximity to others who were smoking and finally when he became agitated he was to be constantly observed on a one to one basis. In the absence of clear and obvious fault it is necessary to plead properly and fully facts and circumstances which would support the duty which is stated in certain or mandatory terms in the pleadings. There are no facts or rather insufficient facts pled which would support the duties desiderated on behalf of the pursuers. There is no mention of the use of clinical judgment in the pleadings although reference had been made to clinical judgment in the appellants' submissions.

 

18.              Mr Fitzpatrick was critical of the specification or lack of it. The pleadings do not give fair notice of what might be good practice based upon expert opinion. The pleadings as presently before the court do not specify the part or parts of the code or the textbooks or hospital policy or instructions that would require the nurses to behave in the manner which is suggested. The pleadings fall considerably short of the notice and specification which any opponent but in particular a Health Board might expect when dealing with clinical practice and judgment by health professionals. The sheriff has properly dealt with these deficiencies and the parts of his judgment which highlight these are noted from page 20 onwards of the sheriff's judgment.

 

19.              I was referred to Article 3 of Condescendence and in particular the averments relating to the development of a nursing care plan which can be found on page 6. From page 7 on to the top of page 8 can be found the admissions. In particular that there was a multidisciplinary meeting the day following Mr Murray's admission; that Mr Murray's care plan was reviewed on 28 June; further multidisciplinary meeting took place on 30 June 2005 and 6 July 2005; that a further review of the care plan was carried out on 11 July 2005 whereby it was updated. Against that background there was a complete failure to state in what way the failures on the part of admitting Nurse Kane and named Nurse Mains caused the episode of self-harm and therefore the loss.

 

20.              Finally, with regard to the case against the Nurse in charge of the ward. The duties can be read in Article 8 of Condescendence at pages 21 and 22 of the Record. Mr Fitzpatrick urged me to adhere to the sheriff's reasoning on the duties sought to be imposed upon the nurse in charge. The sheriff's reasoning can be found at pages 24 and 25 of his judgment. The sheriff agreed that the factual basis for the duties desiderated in Article 8 of Condescendence were simply lacking in specification or absent. No case was developed from the NMC guidelines or the CRAG publication. No specification is given as to the basis upon which the pursuers' expert support the duties and if the case against the nurse in charge was allowed to proceed to probation then the defenders would be prejudiced should the appellants produce this information and developed it at proof.

 

21.              I was urged to uphold the sheriff's decision and refuse the appeal. To allow the pleadings to go forward to proof as they stand would mean inspecific and therefore irrelevant averments would be admitted to probation. The pleadings before the court do not state clearly the facts from which the duties are developed.

 

DECISION

22.              It is incumbent on the appellants to plead a relevant case of fault against the defenders' employees. They require to set out what duties were incumbent on these employees who are all nursing professionals and that by breaching these duties harm was thereby caused to the pursuers' son Malcolm.

 

23.              Certain facts appear from the pleadings to be admitted. Malcolm Murray's personal circumstances and background are sufficiently admitted in that he suffers from episodes of psychiatric illness, intellectual impairment and that in particular he suffers from Prader Willi syndrome. It is common ground that he was admitted to St John's Hospital in Livingston under an emergency section on 21 June 2005 and in the assessment/admission notes was said to be a "fire risk". It is admitted that nurses generally seek to adhere to the NMC (Nursing and Midwifery Council) Code of Professional Conduct. Reference is made to CRAGS publication "observation of people with acute mental health problems - a good practice statement (May 2002)".

 

24.              The appeal scrutinised the pleadings relating to the appellant's case against the nurse who was involved in admitting Malcolm to hospital on 21 June 2005 (Martin Kane); with Martin's named nurse Lesley Mains and with the nurse in charge of the ward as at 18 July 2005. The facts pled on behalf of the appellants deal with the period between 21 June 2005 and 18 July 2005 when it is known that Malcolm set fire to his tee-shirt. He was in Ward 17 of St John's Hospital at the time.

 

25.              The appellants' case both in fact and in law as set out on record is exceedingly difficult to follow given that Articles 3 and 4 of Condescendence contain mixed averments of fact and duty of care.

 

26.              Thereafter Article 5 of Condescendence sets out the appellants' case against Dr La Cock, the Consultant Psychiatrist who was present when Malcolm was admitted on 21 June 2005. The sheriff took the view that the case as pled against Dr La cock was fundamentally irrelevant principally due to lack of specification. The appellants no longer seek to maintain the case against Dr La Cock and accordingly that part of the sheriff's judgment did not feature in this appeal.

 

27.              The case as pled against Nurse Kane and Nurse Mains can be found in Articles 6 and 7 of Condescendence and the grounds of fault are essentially identical namely, the failure to act in accordance with the NMC Code and CRAGs publication and put into practice a care plan which would state four essentials:

1.                  that Mr Murray was to be observed whilst smoking;

2.                  that Mr Murray was not to have access to cigarettes or lighters apart from his permitted smoking time;

3.                  that Mr Murray was to be observed when with others who were smoking; and

4.                  when agitated Mr Murray required one:one constant observation.

 

28.              The averments of fault go on to state that these nurses knew or ought to have known that there was a risk of Mr Murray setting a fire when agitated. They knew or ought to have known that it was necessary to manage the risk. They knew or ought to have known that there was a risk of injury to Mr Murray as a consequence of his setting a fire.

 

29.              The case pled against the nurse in charge of the ward on 18 July 2005 can be found in Article 8 of Condescendence. Again the nurse in charge was bound to act in accordance with the NMC Code which requires a nurse to identify and minimise any risk to patients. It is said "It was said nurse's duty to review Mr Murray's level of observations and to increase observation. It was said nurse's duty to require constant one:one observation of Mr Murray until he was in a settled condition".

 

30.              Article 9 of Condescendence pleads the case against Staff Nurse Alan Murray. The sheriff allowed the case against Staff Nurse Murray to proceed to probation and the respondents take no issue with that.

 

The case pled against Nurse Martin Kane, the admitting nurse, and Nurse Lesley Mains the named nurse

31.              The averments of fact can be found in Articles 3 and 4 of Condescendence. It is a basic and fundamental premise that these facts must specify properly and sufficiently the facts which would, if established, form the basis of his case of fault and negligence against the defenders and their employees. The pursuers must give fair notice of what the case against the defenders and their employees is and what he is seeking to prove or establish.

 

32.              It is averred that Martin Kane was the nurse who admitted Malcolm as an emergency admission having established a history. He noted in the nursing records that Malcolm was a fire risk but failed to follow principles of good record keeping in accordance with NMC guidelines and failed to note the fire risk in the initial management plan.

 

33.              In Article 3 of Condescendence it is stated "It is the usual and normal practice of qualified nursing staff to follow the principles of good record keeping in accordance with the NMC guidelines".

 

34.              Furthermore in the Third Article of Condescendence the pursuers go on to set out the duties which they state that an ordinarily competent nurse acting with ordinary skill and care would have done and that included preparing an initial management plan with the four stipulations which have been referred to.

 

35.              These requirements or duties are set out in Article 6 of Condescendence which is the Condescendence which sets out the duties incumbent upon Nurse Kane and which he failed to fulfil.

 

36.              Inter alia that Article of Condescendence states "It was his duty to complete the 72 hours assessment or at least to ensure that it was completed by another nurse timeously, in accordance with the usual and normal practice. It was his duty to detail an initial management plan on set form having identified that the pursuer was a fire risk in accordance with usual and normal practice. Given Mr Murray's history it was his duty to state in such a plan that (1) Mr Murray was to be observed whilst smoking; (2) Mr Murray was not to have access to cigarettes or lighters apart from his permitted smoking time; (3) Mr Murray was to be observed when with others who were smoking; (4) When agitated Mr Murray required one:one constant observations".

 

37.              At no point does the pleader state what constitutes good record keeping. It is observed that the Condescendence of Fact states that the NMC guidance on record keeping provides that different methods may be used for keeping records. The pleadings do not disclose what an ordinary nurse using ordinary competence and skill would have done in the circumstances.

 

38.              The pleader goes on to state what Mr Kane ought to have done had he been acting with the ordinary skill and care and that is to set out a plan which stated specifically the four conditions or rules which the nursing staff ought to have followed whilst Malcolm was an in-patient in the ward. There are no averments of what the NMC guidance or CRAGS might have suggested or indeed what range of procedures might have been appropriate for a patient suffering from Prader Willi syndrome who was known to be a fire risk. The sheriff correctly observes in his judgment that there was no consideration of other methods of benign control such as sedation. The duty is stated in absolute terms without any averments of fact which would support the basis upon which the nursing care plan ought to have been in such prescriptive terms.

 

39.              There are no averments relating to reasonableness or practicability with regard to the duties. Of the four rules which the pursuers consider were desirable three relate to observation and one relates to restricting access to cigarettes and lighters. The three rules relating to observation are sufficiently broad to potentially mean constant observation. There is no averment as to the level of observation whether direct or indirect; close or remote.

 

40.              The averments relating to duty appear to require steps to be taken to eliminate risk rather than manage risk without stating in terms the basis upon which these steps would be steps which an ordinarily competent nurse acting with ordinary skill and care would have included in the initial management plan.

 

41.              There is no specification given as to what constitutes "usual and normal practice" where it appears in the Condescendences of fact and duty.

 

42.              The appellants argued that the case against these nurses was not based on departure from a normal or accepted practice. However, by virtue of the averments relating to "usual and normal practice" together with the NMC guidance and CRAGS publication, it appears that the pursuers' case against Nurse Kane is indeed based on a departure from a usual and normal practice. The pursuers would require to prove the three part test set out by Lord President Clyde in Hunter v Hanley 1955 SC 200. Firstly, that there was a usual and normal practice, secondly that the defenders had not adopted that practice or had departed from that practice and thirdly, that the course adopted was one which no nursing professional using ordinary skill would have taken if he had been acting with ordinary care.

 

43.              In my view, the pursuers must fall at the first hurdle as they have failed to set out the basis upon which they pled the case of there being a usual and normal practice and what that practice is. The averments relating to usual and normal practice are bald averments with reference to the NMC guidance and CRAGS publication but with no specification as to how that guidance or publication would apply given the facts of the present case. On that base alone the pursuers' case against Nurse Kane must fail and I consider that the sheriff correctly identified the difficulties which face the pursuer with regard to the case against Nurse Kane.

 

44.              Furthermore the appellants have admitted in their pleadings that the initial nursing or management plan prepared when Malcolm was admitted as an emergency was reviewed on a number of occasions prior to the episode of harm and injury. It is thus difficult to decern any nexus or link between the breach of duty as averred by the appellants and the harm suffered by Malcolm.

 

45.              It follows that I find the case pled against the defenders in respect of the acts and omissions of Nurse Kane to be fundamentally irrelevant and that the sheriff was correct to exclude the case of fault against Nurse Kane from probation.

 

46.              The case against the named nurse, Lesley Mains, is indeed similar to the case pled against Nurse Kane. In effect the duties which it is averred that Nurse Mains failed to implement included failure to carry out a risk assessment and develop a nursing care plan which it would have been usual and normal practice to do. It is said that it was her duty to develop a nursing care plan again with the requirements with regard to observation of Malcolm and restricting his access to cigarettes.

 

47.              The deficiencies observed in the case pled against Nurse Kane apply equally to the case against the named nurse. Clearly the named nurse has ongoing responsibility for the patient. Nevertheless the lack of specification with regard to the usual and normal practice which ought to have been adopted and the provenance of the guidance which would have established that practice renders the case against the named nurse susceptible to the same criticism namely, that it is fundamentally irrelevant due to want of specification. This case also fails to give proper notice to the defenders of the facts and backgrounds which would support the duties averred. Therefore for the same reasons as I have found the case against Nurse Kane irrelevant I find the sheriff's reasoning with regard to the case against Nurse Mains equally compelling. I consider that the sheriff reached the correct view of the pleadings and he was entitled to dismiss the case against Nurse Mains for the lack of specification.

 

The case against the nurse in charge on the ward on 18 July 2005

48.              The duties asserted against the nurse in charge can be found in Article 8 of Condescendence. There is an assertion in bald terms that the nurse in charge had a duty to demonstrate the standard of care to be expected of an ordinarily competent nurse acting with ordinary skill and care. Again the averments of fact supporting Article 8 do not set out what an ordinarily competent nurse ought to have done and the basis for the assertion. The pleadings go on to state that it was the duty of the nurse in charge to "review Mr Murray's level of observations and to increase observations. It was said nurse's duty to require one:one observation of Mr Murray until he was in a settled condition. Given the events of that day, Mr Murray's agitation on his return to the ward and the fact that he was a known fire risk said nurse knew or ought to have known that there was a risk of Mr Murray starting a fire".

 

49.              The corresponding averments of fact which support these duties can be found in Article 4 of Condescendence. At page 12 of the Record it is stated "An ordinarily competent ward charge nurse acting with ordinary skill and care would have ordered increased observation. Mr Murray's observations should have been increased constant one:one observations. He should have been observed constantly and unobtrusively until he was in a settled condition so that he was calm and not presenting challenging behaviour". Thereafter there are averments of fact relating to the circumstances of how Malcolm set fire to his tee-shirt.

 

50.              The duty pled is in effect contradictory. Although the pleadings state that the nurse in charge ought to have increased observations in effect the duty is to have constant one:one observations which are to be conducted unobtrusively until the patient is in a settled condition. The averments of duty and the averments of fact are both confusing and potentially contradictory. It appears in the averments of fact that the purpose of the constant and unobtrusive observation is "So that he was calm and not presenting challenging behaviour". There is no basis in the pleadings for the assertion that the observation would result in the patient becoming calm or what indeed the nurse, would do and for how long the observation should last in the event of the patient continuing to be agitated.

 

51.              Further, as the sheriff observes in his judgment "There is no indication of the levels from which these observations require to be increased and no indication of the level to which they required to be increased." It would thus appear that there are two separate and distinct and potentially conflicting duties firstly to increase observations and secondly to require constant observations until he was in a settled condition.

 

52.              Again, the basis for this duty is not set out in the pleadings nor is it clear what is meant by constant observation. The factual averment which includes the word unobtrusively adds a completely different facet to the case against the named nurse. There is no sign of where in the guidance or any other opinion the nurses must have regard to the nature of the unobtrusive but constant observation and how this was to be achieved.

 

53.              The duty pled against the named nurse includes reference to the duration of the observations namely, until the patient "was in a settled condition". It is noted from the sheriff's judgment that this formed part of the attack on the appellants' pleadings at debate. This is discussed at pages 24 and 25. I would respectfully disagree with the learned sheriff that the term a settled condition is an adequate description of the human disposition. A settled condition in the context of medical treatment is a condition which can be determined by applying experience and diagnostic criteria either on the part of a medical practitioner or nursing professional. It is not stated on what basis a patient becomes in "a settled condition" and whether that is a matter for the nurse in charge or the matter for expert opinion from a consultant psychiatrist. The reference to a settled condition is a further variable which I consider the defenders are entitled to have properly specified.

 

54.              It follows that the case against the nurse in charge of the ward on 18 July 2005 to be fundamentally irrelevant due to lack of specification.

 

55.              Accordingly, for the reasons given I will refuse the appeal. The cause will be remitted to the sheriff at Livingston to proceed as accords with the case that remains against Staff Nurse Alan Murray. However, before the cause is remitted to Livingston the question of expenses still requires to be dealt with and I will continue this matter to a date to be afterwards fixed to deal with the expenses arising from the appeal.