Opinion

Parents of unmarried children over 18 can now win compensation for clinical negligence

The out-of-court settlement arrived at last month between a mother and an NHS trust following the death of her paranoid schizophrenic son while he was under the trust’s care will make it easier for victims to recover damages in similar cases. The case also has wide implications for the care of vulnerable adult patients in state-owned institutions such as hospitals and psychiatric units.

The settlement will pave the way for other parents of unmarried adult children who have died while in the care of the state to sue for damages using the Human Rights Act (HRA).

Under the Fatal Accidents Act, claims can be made following a person’s death due to negligence. However, it is not possible to recover any form of compensation if the deceased was unmarried and over 18. It can be devastating for relatives to learn that, when a relation has been killed due to negligent treatment, there can be no claim for compensation.

As a result of the HRA, it is now possible for the relatives of an adult child to bring a claim for their bereavement, even when the child is unmarried. This development in the law is likely to be particularly relevant to relatives of patients suffering a mental illness in the care of the state, as they are more likely to be over 18 and unmarried at the time of death, especially where there has been a systems error.

In October 2001, Jamie Comer, who was a paranoid schizophrenic, absconded from the Highcroft Hospital in Birmingham. He was later found dead on a nearby railway line, having been hit by a train. He had been admitted to the hospital, which is managed by Northern Birmingham Mental Health NHS Trust, in July 2000 under the Mental Health Act 1983.

In the days before his death, Comer absconded from an open ward and had to be brought back by the police, having told them he wished to jump off the Palisades shopping arcade. He had told his mother the day before he died that he wished to leave the hospital ward as he was unhappy and wanted to move to a hospital nearer to her. He also complained that his medication was making him worse. At the time of his death, he had been placed under close observation on a secure unit.

In March 2002 there was an inquest, which returned an open verdict. However, Comer’s mother was left questioning how her son could have kicked open a magnetically locked door while wearing training shoes.

A legal investigation followed in relation to the state’s duty to carry out a proper investigation into the death under Article 2 of the European Convention on Human Rights. This was completed in February 2004 when the hospital’s internal inquiry report was obtained.

The report revealed that concerns about the locks on the ward had appeared some 18 months before Comer died and that no risk assessment had been carried out; that the door had been in a poor condition; and that the magnetic locks had not been maintained properly. There followed an admission of negligence by the NHS trust.

However, even though negligence had been admitted, any damages would be limited under the Fatal Accidents Act to the negligible costs of the funeral, because Comer was unmarried and over 18.

Under the HRA, however, Comer’s mother was able to argue successfully that his right to life had been violated due to a systems error and the trust consequently agreed to make a payment of £10,000 (which is equivalent to the statutory bereavement damages).