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Mental Health Negligence

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Medical or clinical negligence can affect mental as well as physical health.

According to the mental health charity Mind, one in four people in England will suffer a mental health problem each year.

Mental health problems are therefore common, and some involve complex conditions and diagnoses which change over a person’s lifetime.

Only around one in eight adults with a mental health problem receive treatment for it, but, as with other forms of medical treatment, sometimes this goes wrong.

Where this occurs, the individual who has received treatment may be eligible to claim for mental health negligence.

Therefore, it is important to understand what mental health negligence is, and what happens if you make a claim for compensation because of it.

What is Mental Health Negligence?

Where you suffer an injury due to the actions of a healthcare provider this can be medical negligence.

This injury can be psychological as well as physical. Where it is psychological, then it may then be mental health negligence.

Mental health negligence can take place in the NHS, but it can also apply in the private sector, in hospitals, nursing homes, residential homes or community care organisations.

Individuals responsible for mental health negligence can be consultants, nurses, therapists and counsellors.

This negligence occurs when you experience care or treatment that falls below the professional standards you should expect, and this results in damage to your health.

If this damage would not have happened otherwise, then this is negligence.

Mental health negligence can cause various types of injury, including:

• Suicide or attempted suicide
• Serious self-harm
• Restraint
• Violence to others
• Absconding or attempting to do so
• Accidental injury due to vulnerability.

Other incidents and situations can occur during the course of mental health treatment, for which you can claim for negligence.

Examples include:

• Incorrect application of drugs
• Incorrect application of physical or environmental restraints
• Failure to adequately monitor a client’s adherence to their medication
• Failure to adequately observe a client as per their care plan
• Failure to take into account a client’s complexity of problems, or misdiagnosis of condition.

Who Can Make a Claim?

You can claim for medical negligence if you have had treatment that has fallen below a minimum professional standard of competence, and you suffer an injury as a result.

Next of kin can also claim for someone who has died of negligent care, or who cannot represent themselves. Reasons for this can range from age to disability.

Remember, the injury you receive due to medical negligence does not need to be physical. It can be psychological.

How Do You Prove Mental Health Negligence?

As the claimant, you have to prove that negligence has occurred and this involves two things:

• You must prove that a healthcare professional has broken their duty of care towards you, and

• You must prove that you have suffered injury as a result, which would not have occurred otherwise.

You need proof of mental health negligence to make a claim. If your treatment is unsuccessful, or the results are not what you expected, this is not enough on its own to support a claim of negligence.

Under this kind of negligence claim, you must be able to establish causation and
establishing causation can be complex, which is one of the reasons why it is best to seek good professional legal advice when making any kind of medical negligence claim.

When Must You Make a Claim?

The Limitation Act 1980 lays out the time limits within which you must make a negligence claim.

The act states that you should make a claim within three years from the date of incident or treatment. However, the start of this three year period will also depend on the nature of your claim.

If, for example, you suffer an injury but are unaware of the loss or injury you have suffered as a result until much later, then your three-year limit begins from the date you are aware of the loss of injury this is three years from your date of knowledge.

But this can become more complicated if the person injured lacks capacity due to mental illness or brain damage (see below).

They may regain capacity, which is when the limitation period would run from, but if they never recover capacity then effectively no limitation applies and they can bring a claim at anytime. There can also be situations where a claimant retains capacity for a short period, but then lose it again.

For children wanting to bring a mental negligence claim the three year limitation starts on their 18th birthday and expires on their 21st birthday.

What is Mental Capacity?

Having mental capacity is when you have the ability to make your own decisions. The Mental Capacity Act 2005 covers mental capacity issues.

In certain situations, a lack of capacity may arise from a mental health problem. This may further complicate making a mental health negligence claim.

Examples where a claimant may lack capacity include:

• Having a mental health disorder, such as PTSD, bi-polar disorder or schizophrenia
• Intoxication through alcohol or drugs
• Dementia
• A learning disability
• Brain or head injury
• Where they are unconscious.

If there is any doubt about capacity, a solicitor acting on the claimant’s behalf may wish to assess them for this.

How Do You Make a Mental Health Negligence Claim?

To make a mental health negligence claim, your injury must be recognised as a specific psychiatric injury, such as:

• Post-traumatic stress disorder (PTSD)
• Depression
• Anxiety.

Where you have required treatment for this injury, you may be able to make a compensation claim.

You should first talk to an expert in clinical negligence claims, who will be able to assess your case.

You may be able to make your claim on a no win no fee basis, which means it will not cost you anything upfront, or if your claim is unsuccessful.

For more information, please call, or complete our online contact form and we will be in touch as soon as possible.

Louise Tyler

Posted:

Louise Tyler

Partner

Louise is the Head of the Medical Negligence Team working in this area of law for 25 years. She is a member of the Law Society Clinical Negligence Panel, the AvMA (Action for Victims of Medical Accidents) Panel and been appointed to the Executive Committee…