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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sandford & Anor v London Borough of Waltham Forest [2008] EWHC 1106 (QB) (21 May 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/1106.html Cite as: (2008) 11 CCL Rep 480, [2008] BLGR 816, [2008] EWHC 1106 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
____________________
| GEOFFREY JAMES SANDFORD MAUREEN LYDIA SCHERER (Executors of the Estate of Lydia Ellen Rose Sandford, Deceased) |
Claimants |
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| - and - |
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| LONDON BOROUGH OF WALTHAM FOREST |
Defendant |
____________________
Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing dates: 14 and 15 May 2008
____________________
Crown Copyright ©
HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.:
Introduction
The law
"Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
"services which a local authority may provide or arrange to be provided under any of the following provisions –
(a) Part III of the National Assistance Act 1948;
(b) section 45 of the Health Services and Public Health Act 1968;
(c) section 21 of and Schedule 8 to the National Health Service Act 1977; and
(d) section 117 of the Mental Health Act 1983;"
"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
"(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely –
(a) the provision of practical assistance for that person in his home;
…
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
…
then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
"I would go further in this particular case. It seems to me that a statute such as this which is dealing with the distribution of benefits – or, to put it perhaps more accurately, comforts to the sick and disabled – does not in its very nature give rise to an action by the disappointed sick person. It seems to me quite extraordinary that if the local authority, as is alleged here, provided, for example, two hours less home help than the sick person considered herself entitled to that that can amount to a breach of statutory duty which will permit the sick person to claim a sum of monetary damages by way of breach of statutory duty."
"The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v. Wandsworth Stadium Ltd. [1949] AC 398; Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No.2) [1982] AC 173. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v. Wimborne (Lord) [1898] 2 QB 402.
Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general."
"The first is that the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits they should have done. This was the view forcibly expressed by Geoffrey Lane LJ in Wyatt v. Hillingdon London Borough Council (1978) 76 LGR 727, 733 when the plaintiff claimed damages from his local authority for failure to provide benefits under the Chronically Sick and Disabled Persons Act 1970:
[Lord Hoffmann then quoted the passage which I have set out]
This was an unreserved judgment and I think that on reflection Geoffrey Lane LJ would have been willing to substitute "was" for "considered herself". With that amendment, I would associate myself with these remarks. In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 731 – 732 Lord Browne-Wilkinson likewise said:
[I have already quoted the passage quoted by Lord Hoffmann]"
"With regard to the further suggestion that in some way an action in negligence can be established against a local authority quite apart from the breach of statutory duty, I confess that does not impress me. It seems to me that in this case the duty, such as it is, arises if at all from the statute and the statute only. It is not the sort of situation where the home help has acted negligently – for example, has dropped the plaintiff and injured her – or that the bed provided by the local authority has proved to be a defective bed which has collapsed and injured the plaintiff. It seems to me that this is a case where the duty starts and ends with the statute."
"In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be sleeping rough."
"My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the 1977 Act, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v. Proprietors of Bann Reservoir (1878) 3 App Cas 430."
"If the plaintiff's complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries Plc v. Dickman [1990] 2 AC 605, 617 – 618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate: Is it just and reasonable to impose a duty of care? See Rowling v. Takaro Properties Ltd. [1988] AC 473; Hill v. Chief Constable of West Yorkshire [1989] AC 53.
However the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. The position is directly analogous to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. In Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145 your Lordships held that A (the managing agent) who had contracted with B (the members' agent) to render certain services for C (the Names) came under a duty of care to C in the performance of those services. It is clear that any tortious duty of care owed to C in those circumstances could not be inconsistent with the duty owed in contract by A to B. Similarly, in my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties."
"19. … The criticism instead is that the Defendant authority then took too long to provide the welfare benefit she [Ms. Peach] advised was necessary. There is no independent common law duty to provide welfare benefits. The claim is inextricably wedded to the fact that the Defendant had statutory duties to provide welfare benefits.
20. If it is necessary to go on and consider the principles of tortious liability in Caparo v. Dickman (it is submitted it is not in the light of the above authorities) then:
a. The Defendant itself (as opposed to Ms. Peach) did not enter into a relationship of proximity with the Claimants/the Deceased;
b. Imposition of a duty would be inconsistent with the fact that Parliament has not created a right of action in damages for breach of the statutes;
c. Imposition of a duty would not be fair just or reasonable as it would cut across the statutory social welfare scheme, giving common law rights to welfare benefits;
d. It would open the floodgates. Claims could be brought by anyone who suffered on-going pain or discomfort where there had been a delay in providing aids and services;
e. It would also cut across the law of contract. What is alleged in this case is a promise to supply goods. Such promises are a matter for the law of contract, where consideration is required. The deceased could not have enforced a promise by a private individual to supply the cot sides in contract, let alone tort, absent consideration. Why should she be able to do so against the Defendant?
f. The Deceased's remedies against the Defendant for a failure to provide what had been assessed as necessary lay in public law enforcement of the Defendant's statutory duties.
BREACH
21. The Defendant has accepted that there was a delay in the provision of the cot-sides. In public law terms, this might be characterized as maladministration. But it is not accepted it amounts to negligence. If there is a common law duty, it is not clear how breach of it could be assessed. There is no specific time-scale set out in the statutes for the provision of assessed needs, although judicial review would no doubt be granted if there was an unreasonable delay. However, there is no evidence that as a matter of the general practice of local authorities the time taken to supply these cot sides was outside the bands of what was reasonable. The assessment by Ms. Peach was on 26th February 2003. The accident was on 21st April 2003. The cot sides were provided on 24th April 2003."
"10. As regards the defendant's particularised observations on Caparo:
a. Ms. Peach was the defendant's employee or agent, and therefore to be identified with D for these purposes; it is misleading and absurd to suggest that there was no proximity because of this artificial distinction.
b. There would be no inconsistency in holding that there is a duty of care in circumstances such as these, and if there was such an inconsistency, that would not be a proper or sufficient ground for denying the existence of a duty of care.
c. It is hard to see how the imposition of a duty would cut across the statutory welfare scheme. That phrase is usually deployed in education cases or the like where the imposition of a duty to parents might conceivably cut across the primary statutory duty to children. It is hard to see how it would have any application here. To enforce a duty of care in circumstances like these would be to encourage local authorities to do that which they have already determined that they should do. It is not clear where the purported clash of interests lies.
d. The claim would not open any floodgates. It is already established law that the negligent execution of a task by a public authority (rather than negligent failure to make a given decision) can readily found a claim in negligence …
e. The defendant could have avoided this claim either by providing the cot-sides within a reasonable period of time, or by informing LS' family that it was having difficulty supplying the item in question, in which case the family could and would have gone about obtaining the cot-sides themselves. C does not seek to enforce the delivery of these items in tort, it seeks to recover damages to compensate it for the wholly predictable outcome of D's failure to provide them within a reasonable timeframe, notwithstanding D's representation that it would do so.
f. The remedy which D recommends (public law enforcement of C's rights) would, of course, be of no use whatsoever to LS, or to C, in the circumstances of this case. It is, with respect, hard to see how that is a factor which militates against the imposition of a common law duty of care (the existence of duty being one thing which would actually provide some form of remedy).
11. D suggests that there is no evidence that the delay in the provision of the cot-sides was unreasonable (or that it amounted to negligence). That ignores somewhat D's own written admission that the delay was 'unacceptable' … It also ignores the classification of the cot-sides as urgently required, and the fact that all of the other equipment was delivered over a month before the cot-sides, which had clearly been overlooked. Again, in circumstances such as this, where the cot-sides were the very items which LS' family were trying to obtain … and the items which were required most urgently, then C would suggest that the court is perfectly entitled to find that there was a negligent delay in failing to provide the cot-sides and/or failing to notify LS' family of the likely extent of the delay so that they would know not to rely on D, and to make alternative provision for LS."
"Slade LJ used the shorthand of referring to 999 calls. However, it would amount to a misunderstanding of his approach to attach any magic to the fact that the response is to a 999 call. It is the nature of and the circumstances in which the assistance is provided and required which is important. The issue which can be important is whether it is an urgent call made by phone or otherwise for the assistance of the police involving conflicting priorities or difficult decisions as to the best way to protect the public against crime, or whether it is a routine task which involves no policy or resource issues. In the latter situation a duty can readily be inferred. In the former situation it is unlikely it will exist. In between there are a spectrum of different situations which will have to be judged on their facts. "
"An important feature of this case is that there is no question of an ambulance not being available or of a conflict in priorities. Again I recognise that where what is being attacked is the allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or attendants, different considerations could apply. There then could be issues which are not suited for resolution by the courts. However, once there are available, both in the form of an ambulance and in the form of manpower, the resources to provide an ambulance on which there are no alternative demands, the ambulance service would be acting perversely "in circumstances such as arose in this case", if it did not make those resources available. Having decided to provide an ambulance an explanation is required to justify a failure to attend within reasonable time."
"Here what was being provided was a health service. In the case of health services under the Act the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors or nurses? In addition the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services' primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the Health Service. Its care functions include transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called."
"49. … Here there seem to be two questions. First, is there a duty of care in relation to the contents of the forms and reports which are made? Second, is there a duty of care in relation to the communication of the information which the agency has decided that the prospective adopters should have?
50. The second question is much easier than the first. We see no difficulty in a duty of care to communicate to the prospective adopters that information which the agency has decided that they should have. If an agency has decided that the prospective adopters should have the child's Form E and medical report, together with any specific item of information which the agency or the panel considers that they should have, and its staff fail to take reasonable steps to ensure that that information is in fact communicated, in circumstances where it is foreseeable that actionable harm will be caused if it is not, then there should be liability."
"51. The principal reason advanced by Mr. ter Haar to support the argument that the Secretary of State owes a duty of care on the grounds of an assumption of responsibility is that the person with care is not obliged to have recourse to the 1991 Act. A person with care may obtain maintenance from the absent parent by other means, e g by agreement. But that, in my view, is not a sufficient reason for holding that there is an assumption of responsibility by the Secretary of State whenever he performs his functions under the statutory scheme. The critical question is whether the Secretary of State voluntarily assumes responsibility and that does not depend on whether the parent chooses or is obliged to make an application for a maintenance assessment.
52. The assumption of responsibility test was considered by the House of Lords in Customs and Excise Comrs. v. Barclays Bank plc [2007] 1 AC 181. The Customs and Excise Commissioners obtained freezing injunctions in respect of assets of two companies including funds held to specified accounts in a bank. The injunctions were notified to the bank which subsequently failed to prevent payments out of the accounts in breach of the injunctions. The commissioners claimed damages for negligence against the bank. The House of Lords held that the bank owed no duty of care to the commissioners. It could not be understood as having voluntarily assumed responsibility for its actions so as to give rise to a duty of care to the commissioners. Lord Bingham said, at para 14:
"I do not think that the notion of assumption of responsibility, even on an objective approach, can aptly be applied to the situation which arose between the commissioners and the bank on notification to it of the orders. Of course it was bound by law to comply. But it had no choice. It did not assume any responsibility towards the commissioners …"
53. The same point was made by Lord Walker, at paras 73 and 74. The bank had not in any meaningful sense made a voluntary assumption of responsibility. By the freezing order it had responsibility thrust upon it. Lord Mance made observations to similar effect, at paras 93 and 94. He said that the concept of assumption of responsibility is particularly useful in the two categories of case identified by Lord Browne-Wilkinson in White v. Jones [1995] 2 AC 207, 274F-G. These are (i) where there is a fiduciary relationship and (ii) where the defendant has voluntarily answered a question or tenders advice or services in circumstances where he knows or ought to know that an identified person will rely on his answers or advice. The involuntary nature of the bank's involvement with the commissioners made it impossible to regard the situation as one "akin to contract".
54. When a person with care applies to the Secretary of State for a maintenance assessment to be made, he is obliged to make it. In making the assessment, he is not a volunteer in any sense. It is true that the 1991 Act also gives the Secretary of State certain discretionary powers, for example, the power to make an interim maintenance assessment, to collect maintenance and to seek liability orders for the purpose of enforcement. But in my judgment, if he decides not to exercise one of these statutory powers, he is not, in making that decision, assuming a voluntary responsibility towards those who are foreseeably affected by it. Likewise if he decides that he will exercise one of the powers, it is not apt to describe what he does when he exercises the power as a voluntary assumption of responsibility. He is not doing anything that is "akin to contract". In determining whether or not (and if so how) to exercise his statutory powers, the Secretary of State often has difficult and sensitive decisions to make: see further at para 82 below. These decisions are amenable to judicial review. They are far removed from a voluntary assumption of responsibility.
55. Nor do I accept the submission of Mr. de Mello that, in order to establish a voluntary assumption of responsibility, it is sufficient to show that the caseworkers of the CSA act as professional persons or in a way that is analogous to that of professional persons. Even if the tasks performed by caseworkers involve the exercise of skill and judgment, that does not of itself mean that, in performing those tasks, they are voluntarily assuming responsibility to those who are foreseeably affected by what they do. To focus on the elements of skill and judgment is to ignore the requirement that the assumption of responsibility be voluntary if it is to found a common law duty of care."
The circumstances in which Mrs. Sandford fell on 21 April 2003
"Patient fell while getting out of bed fell on ® leg son pick her up off floor."
"13. On Monday 21st April 2003 at about 6.50am my mother fell out of her bed. She did not fall getting out of bed as has been suggested. If the bed had had cot sides, she would not have fallen. I was looking after my mother at this time, and had been into her room to check on her, as, because she had had a good night I had not heard any sounds coming from her room. When I went in, she was sound asleep. Moments after I had got back to my room, and had just got back into bed, I heard her moving on the baby monitor that we used, but before I could get to her room I heard a thump and she had fallen from her bed. I should add that my wife and I were looking after my mother at this time and staying at her house.
14. The reason I say that my mother was not trying to get out of bed is that we as a family, had a set routine agreed with my mother, that if she wanted to get out of bed to use the toilet, or for any reason, she would call us, hence the baby monitor.
15. At this time, because of the infection my mother had, possibly a water infection, which meant that she was very itchy down below and very agitated in her sleep as a result, meaning that she tended to thrash about, she was at her most vulnerable, at night and this was made clear to Ms. Peach at the assessment, (in fact Ms. Peach, made a point of sniffing to see if there was a smell of urine, to see if she was bed wetting, which she was not), and she agreed that the cot sides were urgently needed.
16. This is why if we heard any movement from her whichever of us staying with her would get to her quickly and stay until she was settled and comfortable, usually by her applying Aqueous Cream to her private area, or helping her use the commode if that was what she wanted.
17. When I went into my mother's bedroom, after I heard the thump, I saw her lying on the floor next to her bed. I believe she had been fast asleep but the fall had woken her up. She was obviously in pain.
18. I called an ambulance and my mother was taken to Whipps Cross Hospital where she underwent x-ray and was told that she had suffered a fracture to her right femur."
"She was able to feed herself, with food cooked by the family and wash herself, she was able to get in and out of bed, dress and undress herself, although one of us would always be present. The main reasons for the 24-hour care that we gave her, was only because we did not want her to cook due to her poor eyesight, and the possibility of another TIA/mini stroke. "
Thus there was no suggestion in Mr. Sandford's witness statement that his mother was incapable of getting out of bed – quite the reverse. However, in re-examination he told me that his mother was barely able to sit up in bed.
"Difficult to get on and off from the toilet. Toilet seat is too low and requesting for it to be raised. There is the possibility of Lydia falling over when using the toilet. Difficulties with toilet transfer."
Whether Mrs. Sandford would in any event have required accommodation in a nursing home, and, if so, when?
"3. On the balance of probabilities, given the state of the Claimant's vision in November 2003, do you consider that in the absence of orthopaedic symptoms the Claimant would have been admitted to a nursing home prior to November 2003 in any event? If not by November 2003, when?
As noted in my letter of 2007, there is no neurological reason why Mrs. Sandford could not have returned home. It is clear that the family felt that they could no longer care for her (my report 16.11.2006, paragraph 5.36). It is inevitable, however, that with the progressive loss of vision, it would have been necessary for her to be cared for in residential accommodation. I would, however, defer to the views of an Ophthalmologist in that regard."
"In stating that with progressive deterioration in her eyesight LS would have to have gone into a home at some point Dr. Cummings [sic] strays considerably outside his field of expertise (and indeed into the realms of findings of fact). Further, he does not venture a guess as to at what point that might have occurred. Finally, he ignores the evidence of LS' family that her increasing blindness was of little significance within her own home (her family were already cooking her meals before the accident occurred, because they did not consider her eyesight up to the task …; and she knew the layout of her home so well that it was of little significance to her in terms of her mobility … "
"This is to confirm my opinion that, on the balance of probabilities, in the absence of the index incident it is unlikely that Mrs. Sandford would have had to go into a nursing home at the time she did. I see no reason why she would not have been able to continue in her own home under the care of her family and Social Services as had been the case for some time prior to her accident."
"Prior to her hospital admission, she had had a previous history of hypertension, transient cerebral ischaemic episodes and a degree of cognitive impairment. The latter had been further complicated by visual and hearing difficulties. She had also suffered recurrent urinary tract infections which sometimes would further exacerbate her cognitive problems, manifesting as night time agitation. She had been receiving excellent family support at home – her children operated a rota to provide support. She also received social services support.
Her several stroke risk factors were managed – she was started on a statin and her dose of Aspirin was increased to 150 mg daily. Her hypertension became controlled on Bendrofluazide.
Despite the intensive approach adopted by the rehabilitation multidisciplinary team, we were unable to secure a level of independence that would enable Mrs. Sandford to return to her own home, even with maximum support. Although at times she was able to stand up from a chair and to walk using a frame, this degree of independence was not secure or reliable enough. Sadly, it was not reliable enough for placement in a residential home but it was felt that her needs would best be met within a nursing home.
It is clear that this lady was experiencing difficulties at home prior to her admission. She had many risk factors for stroke as outlined above. The stroke occurred some weeks after her successful hip repair. There is no doubt that the morbidity of hip fracture is very serious for someone in their 90s. One cannot say with confidence that there was a causative link with her fracture and her stroke. It is equally very difficult for me to gauge the effect of her fracture on her level of independence prior to her hospital admission and that as assessed by us after her stroke."
"2. SUMMARY OF CONCLUSIONS
Mrs. Sandford was considerably disabled prior to the material incident. The exact details of her condition are difficult to ascertain but considerable input was required both from Social Services and her family in order for her to remain in her own home.
The fracture of her femur was a significant event and perhaps the main event in her losing this limited independence. Other important factors are her severely impaired vision and cerebrovascular disease.
…
4. PRESENT CONDITION
She is now more or less blind, or at least her vision is very poor. She says that she can see shadows and people moving in front of her. Her lack of vision makes it difficult for her to feed herself. Prior to losing her vision watching television was one of her main enjoyments and this she is no longer able to do.
It seems that the hip fracture is well healed and she says it causes her no pain. However, she is no longer able to walk more than two or three yards using a Zimmer frame and a good deal of help. She has possibly suffered some urinary incontinence recently.
…
5. SOCIAL HISTORY
Prior to her accident she would enjoy knitting and watching television, neither of which activity she is now able to do. She is more or less totally dependent on others and uses a wheelchair for mobility. Her family feel that there is no reason to suppose that had she not had the fall they would not have been able to continue to look after her.
6. ON EXAMINATION
Throughout the interview she sat in her wheelchair. She seemed to be well-orientated. She would respond appropriately to questions when they were put to her. It was apparent that her vision was extremely poor. With the help of a Zimmer frame and one other person she was able to get up but she could manage to walk for only a couple of yards before requesting to sit down again.
…
9. OPINION AND PROGNOSIS
This lady sustained a fracture of the proximal end of her right femur as the result of falling out of bed. The injury would be consistent with such an incident. The fracture was treated in the conventional manner and appears to have done well. On clinical grounds the fracture is soundly united and Mrs. Sandford retains a good range of movement in the hip joint.
It is a common type of injury in the elderly. The outcome after it varies considerably. Some patients make a full recovery and return to their pre-injury state. In many patients however and especially those living on the border line of independence it is, as it were, the final straw. Although the fracture per se may do well the incident overall has serious ill-effects in as much as robbing patients of their mobility and independence, and in my view this injury has considerable importance in the loss of this lady's limited independence. Prior to the incident she was able to walk independently in her own home although her condition required a good deal of carer input. The other main factor in her present situation is the loss of vision. There is evidence from the records that her vision was poor at least a year prior to the material incident. Certainly when I saw her, her vision appeared to be extremely poor although as this is not really my field of expertise I did no specific tests of her eyesight.
The hospital records suggest that perhaps she suffered a number of transient ischaemic attacks rather than a single cerebrovascular episode, though a CT scan appears to have demonstrated a cerebral infarct. Again this is not within my field of expertise but it seems to me unlikely that the cerebrovascular episodes have any relation to her deteriorating eyesight. Whether these episodes can be regarded as a complication of her fracture I am not really able to answer. It is known that she has suffered cerebrovascular disease for at least four or five years and it seems that she was at risk of such an episode occurring, but this is an area outside my field of expertise and I would recommend that you seek a report from a consultant in geriatric medicine.
Had the accident not occurred it seems reasonable to suppose that Mrs. Sandford could have continued under the care of her family etc. in her own home at least for some further period of time. Maybe the cerebrovascular episodes that happened in May 2003 would have happened in any case but this on its own may not have made it necessary for her to be admitted to a nursing home. Again the opinion of a consultant geriatrician would be helpful on this point.
In summary therefore I think that the fracture of her femur has played a considerable part in the development of her present situation, possibly the major part, but it is not the only factor involved."
Conclusion
