Sophie Lennox: Assault without harm or intent?
Practitioners and medical professionals alike will be interested to note the recent judgment of the Sheriff Appeal Court in McCallum v Morrison, 2023 in which the pursuer’s appeal against the dismissal of a psychiatric injury claim following a dentist’s failure to follow adequate infection control procedures was refused, writes Sophie Lennox.
The case of McCallum v Morrison, 2023 can be found here.
The appellant had been treated by the respondent, a dentist based in East Ayrshire, at one of his practices on two occasions in February 2013. The respondent’s dental practices were later closed by the local health board in September 2013 following concerns around his failure to adhere to adequate infection control measures between 16 November 2012 and 18 September 2013. It is relevant to note that in February 2016, the respondent was removed from the Dentists’ Register after the allegations around failure to adhere to adequate infection control measures were found proved.
In October 2013, the respondent’s former patients received a letter from the health board advising them of a low risk of potential exposure to blood-borne viruses (BBVs). Neither the respondent nor the appellant received this letter. It was not until March 2014 that the appellant received a letter from the health board advising him of the risk of exposure. He was offered a precautionary blood test which he undertook in April 2014. He tested negative for BBVs.
As a result of receiving the letter from the health board, the appellant became very distressed at the thought he may have contacted a BBV and unknowingly passed this on to others. He was ultimately diagnosed with an acute stress disorder albeit the disorder resolved following receipt of his negative test results.
The appellant raised a civil action for psychiatric injury. However, the court found that the respondent was not responsible for the acute stress disorder suffered by the appellant.
The appellant appealed the original decision on three grounds, namely breach of duty, breach of an implied term under contract and assault. The appeal was based on the application of the law to the already established facts and in reaching its decision, the Sheriff Appeal Court considered it was bound by the decision of Rothwell v Chemical Insultation Co Ltd & Anr  1 AC 281.
Breach of duty
The appellant submitted that the Sheriff had erred in regarding him as a secondary victim and applying the test of whether the psychiatric injury was reasonably foreseeable. In any event, it was submitted that there had been immediate proximity in that the treatment in February 2013 and the letter in March 2014 formed part of the same incident and therefore the same chain of causation. The respondent maintained that the Sheriff was correct in considering whether the injury was reasonably foreseeable and whether there was close proximity to the relevant event/its immediate aftermath. There had been no harm (the appellant was not exposed to any BBV) and there had been a delay of around 12 months between the treatment and the psychiatric injury suggesting there was no immediate proximity.
The Sheriff Appeal Court found that the appellant was a primary victim in that he had suffered the original defective treatment but that the trigger for the psychiatric harm was the letter sent in March 2014. The letter itself was not a wrongful act nor a harmful event and, although the respondent had breached his duties by failing to exercise appropriate infection control during treatment, the appellant was not aware of it. Additionally, whilst the appellant had been exposed to the risk of infection, he was not ultimately harmed. The first ground of appeal was therefore refused.
Breach of implied term
The court had originally found that there was no contract in place between the appellant and the respondent and that their relationship was instead governed by section 25(1) of the National Health Service (Scotland) Act 1978, as amended, and the National Health Service (General Dental Services) (Scotland) Regulations 2010. The appellant submitted that it was possible for there to be a contract between a patient and a medical practitioner at the same time as there being a relationship under the statutory scheme. He argued that it was an implied term of the contract between the parties that the respondent would treat the appellant in accordance with the standards of treatment required by the General Dental Council and that the respondent would exercise the usual skill and care. By failing to do so, the respondent was in breach. The respondent maintained that the relationship was governed by the statutory scheme.
The Sheriff Appeal Court found that no evidence was led which supported the existence of a contract. The second ground of appeal was refused.
The appellant argued that a patient could only consent to the potential of injury in medical treatment on the condition that a medical practitioner follows appropriate practice and that the respondent’s failure to adequately sterilise equipment was sufficient to establish that the appellant had been assaulted. The respondent submitted that civil assault is defined as an overt physical act intended to affront another, and committed without lawful justification or excuse. Additionally, for threatened harm to constitute an assault, the appellant had to prove there was an intention to harm on the part of the respondent and of a reasonable apprehension of harm on the part of the appellant.
The Sheriff Appeal Court confirmed the definition of assault in civil law is an “overt physical act intended to insult another and committed without lawful justification or excuse”. The Sheriff Appeal Court held there was no assault in the present case because consent was given, there was no bodily harm, and at the time of the act the appellant could have had no apprehension of harm.
Further, the appellant’s case was not based on an overt act but rather a failure to observe professional standards, and there was no reason to find that the respondent actively intended to harm his patients. Indeed, it was observed that the purpose of his actions was to remain undetected in the course of saving money by re-using disposable items.
The judgment confirms that in order to establish causation in respect of a psychiatric injury to a primary victim, the pursuer requires to demonstrate that there was in fact a wrongful act or harmful event which caused the psychiatric injury. Additionally, the Sheriff Appeal Court helpfully clarified the definition of assault in civil law and confirmed that, in order for this ground to be successful, the pursuer requires to show the defender’s intention to harm them. Nonetheless, it should be noted that the appellant is currently seeking leave to appeal this decision so there may yet be a final round to go in this case.
In any event, this case serves as a reminder of the differences between civil and regulatory hearings. Whilst the dentist had been struck off the Dentists’ Register following a finding by his regulator that he had failed to adhere to adequate infection control measures, the patient’s civil claim for compensation failed.
BTO is often instructed for practitioners facing civil claims for compensation who in parallel, face referrals to their regulator for the same incident. The purposes of these actions are very different, as are the legal tests to be applied. It is therefore important that practitioners take legal advice in respect of each of these matters.
Sophie Lennox is a solicitor at BTO LLP