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Mental Health Misdiagnosis Claims*

We place our trust in the hands of mental health professionals like psychiatrists to diagnose and treat psychiatric illness and disease.

The mental healthcare system is designed to ensure that patients are referred to psychiatric specialists who are best placed to assess patients who have presenting symptoms which may warrant close attention.  And it is the role of those with the necessary skills to complete all of the required tests and examinations to make a properly informed diagnosis.

Recent related news

February 4th, 2022: HSE Report on long waiting lists at CAMHS across the country

According to figures released by the HSE, in the first 11 months of 2021, 21,317 referrals were made to the Child and Adolescent Mental Health Service (CAMHS), of which only 14,271 were accepted.

The area with the highest rate if referrals not accepted was Dublin North, North Central and North West with an acceptance rate of 55.8%. Other areas with an acceptance rate of less than 60% were Cork and Kerry, North Tipperary, Carlow/Kilkenny and the counties of Waterford and Wexford.

Separate HSE figures show that over 9,500 children are waiting on primary psychology services which is an early-stage treatment for Children with mild mental health conditions.

The College of Psychiatrists has said that CAMHS is “limping along” with just 72 teams when 130 are required. Dr. Maeve Doyle of the College of Psychiatrists has said that the existing CAMHS facilities have only half of the staff required.

Reform plans for CAMHS were laid out as far back as 2006 but these plans were never implemented. Dr. Doyle said that it was recommended that 100 child and adolescent mental health teams be provide for a population of 3.6 million but in 2022 we only have 72 teams.

The above comments from Dr. Doyle come in the wake of a shocking report into the CAMHS facilities  in South Kerry which was released last week.

January 27th, 2022: CAMHS Report in South Kerry prompts “full audit nationwide”

On Wednesday 26th January, the Health Service Executive published a report into the care of over 1,300 children who attended the South Kerry Child and Adolescent Mental Health Services (CAMHS).

Taoiseach Micheál Martin has described a review into mental health services in south Kerry as shocking, very serious and unacceptable.

The report was originally commissioned by the Health Service Executive (HSE) following concerns raised about the treatment of a number of children and adolescents attending the facilities. The report was prepared by a team led by Dr Sean Maskey, Consultant Child & Adolescent Psychiatrist.

The report found that no extreme or catastrophic harm had occurred in the 1,332 considered. However, there were 227 children where the diagnosis and/or treatment exposed them to the risk of significant harm by way of one or more of the following: sedation, emotional and cognitive blunting, growth disturbance and serious weight changes, metabolic and endocrine disturbance, and psychological distress.

The report also found that 13 other children were found to have been unnecessarily exposed to a risk of harm under the care of other doctors in the service. 46 children were found to have suffered significant harm to include galactorrhoea, considerable weight gain, sedation during the day, and elevated blood pressure. The report went on to specify that the figure of 46 will change once new information becomes available following meetings with the families affected.

The report suggests that the diagnoses of ADHD, particularly for secondary-school children, was frequently made without adequate evaluation and/or without the required level of information in relation to their presentation in school from their teachers. Feedback from teachers was not requested as part of the management of treatment response for ADHD.

There was evidence of inconsistent and inadequate monitoring of adverse effects of medications on children and this included:

  • Children started on stimulants did not routinely have a baseline pulse, blood pressure, height or weight measured and charted, to establish pre-treatment values
  • Children started on antipsychotics did not routinely have a baseline blood test to establish pre-treatment values.
  • There was no expectation of checking pulse and blood pressure seven days after starting stimulant or increasing the dose.
  • Repeated height, weight, pulse and blood pressure measurements were erratic and not plotted on developmental charts.
  • The patient’s GP was asked to do the blood tests in some but not all instances when children were started on antipsychotics. There were no results of this on file in the majority of cases. The tests were not routinely repeated at regular intervals.

Dr Maskey and his team made a total of 35 recommendations which cover areas such as re-establishing trust in the CAMHS service, governance, delivery of clinical services, improved clinical practice and the use of information and communication technology.

The government have announced that there will be an audit conducted into the compliance of each of the CAMHS teams nationally.

Following the publication of the report, the Health Service has issued an apology to the families involved.

February 2nd, 2022: Government committed to ‘non-adversarial scheme’ in compensating those affected by CAMHS Report in South Kerry

The government have announced that a review of all CAMHS facilities will be carried out across the county following the report on the south Kerry Child and Adolescent Mental Health Service published last week.

The Mental Health Commission confirmed that the Inspector of mental health services Dr. Susan Finnerty will conduct the review.

The report which prompted the review found that 227 children whose cases were managed by a junior doctor, were exposed to a serious risk of harm by way of sedation, emotional and cognitive blunting, growth disturbance and serious weight changes. The report also found “clear evidence” of significant harm being caused to 46 children.

Minister for Mental Health, Mary Butler has committed to a “non-adversarial scheme” for compensation for the families affected by the report. Mary Butler went on to say that the details of the scheme will be confirmed without delay.

In the meantime, journalists continue to speak to parents and children who detail what they consider the failings of the CAMHS service in areas like Wexford and Dublin.

What is classified as a psychiatric illness?

A psyschiatric illness, also often called a psychiatric disorder, mental illness or mental disorder is diagnosed by a mental health professional. Disorders and illnesses classified as psychiatric include, but are not limited to:

  • Autism
  • ADHD (attention deficit-hyperactivity disorder)
  • Bilpolar disorder
  • Major depressive disorder
  • Schizophrenia.

Of course, this is not an exhaustive list and addictions, anxiety disorders, dementia-related illnesses are also included as well as many more.

What is meant by psychiatric misdiagnosis?

There are three broad types of medical misdiagnosis, and these apply to psychiatric misdiagnosis too. They areas follows:

Failure to diagnose – Misdiagnosis may have occurred if a psychiatric professional fails to spot signs of illness, meaning your condition is completely undiagnosed.  If illness goes undiagnosed, the patient’s mental health may decline as a result, and in some cases may suffer long-term consequences.

Delayed diagnosis – Depending on the nature of the condition, any delay in diagnosis can result in permanent or persistent psychiatric and/or psychological damage.

Incorrect diagnosis – If a mental health professional has provided an incorrect diagnosis, you may be given treatment which not only do you not require, it may cause your condition to remain untreated.  In some cases, the treatment provided may cause unnecessary side-effects, health complications, or even damage.

What is a differential diagnosis?

It is the role of healthcare professionals to make the correct diagnosis, even when the evidence and presenting signs and symptoms suggest a range of possible conditions.  The process of deducing which is the correct diagnosis from more than one is referred to as making a ‘differential diagnosis’.  It may be important to understand what this term means in the context of any claim for medical negligence due to misdiagnosis.

Can I bring a claim for psychiatric misdiagnosis for myself or my child?

To bring a claim for psychiatric misdiagnosis, it will be necessary to provide evidence that:

  • The care you received was below a satisfactory standard (i.e. that another  mental health professional of the same level would have made a correct diagnosis), and;
  • This negligence caused you damage.

To prove your case, we will compile evidence, including medical records, and seek expert medical opinion.

What may a psychiatric misdiagnosis claim cover?

Claims following medical misdiagnosis which leads to injury or disease may cover two areas of loss:

  • Pain and suffering due to the injury; and
  • Specific costs resulting from the injury caused.  This may cover costs already incurred, such as transport, accommodation, and medical treatment, and expected future expenses, such as physical therapy and care costs.  The costs you receive will be based on the precise injuries suffered and the circumstances of the case.

How medical negligence claims related to psychiatric misdiagnosis work?

Establishing that psychiatric care was negligent

Before anyone can make a claim for medical negligence, they must first obtain a report from an appropriate qualified medical expert to confirm that the medical care you received fell below acceptable standards. For a valid claim, it will need to be shown that two conditions have been met:

A breach of duty of care

It must be shown that the clinical staff providing treatment owed the patient a duty of care and that they breached that duty of care by making mistakes that no other health professional would have made under the same circumstances.

Harm suffered due to that breach of duty of care

It must be shown that the harm a patient suffered was caused by the clinician’s errors i.e. on the balance of probability, the harm would have been avoided if the clinician had not made the errors that they did. The balance of probability means that it must be shown there is at least a 50% chance that the clinician was responsible for the harm a patient suffered.

Calculating compensation

How much compensation is available for a specific instance of medical negligence will be determined by the impact on the patient of the harm caused. This can include:

  • Any financial costs or losses caused by the patient’s injuries
  • Future financial losses or costs the patient expects to incur due to their injuries
  • The non-financial impact on the patient’s life such as:
    • Pain and suffering
    • Loss of amenity (not being able to carry out activities the claimant previously enjoyed)

Out-of-court settlements for medical negligence claims

In many cases, it is possible to settle medical negligence claims out of court through a voluntary settlement with the clinician or healthcare provider responsible for a claimant’s injuries. This can potentially make the claims process faster and involve lower legal fees.

Taking a medical negligence claim to court

Where a settlement cannot be negotiated, it may be necessary for a medical negligence claim to be pursued through the courts. In such cases, it is important for claimants to have effective representation to ensure their case is built and presented in the strongest possible way.

Interim payments for medical negligence

Often there is the need for immediate financial support to cover costs such as fees for medical treatment, rehabilitation care and other essential support. Where this is the case, it may be possible to secure interim payments while a claim is ongoing, allowing the claimant to access the support they need sooner.

Fatal medical negligence claims

Where someone has died due to medical negligence, an appointed personal representative of the deceased  may be able to make a claim under the terms of the Civil Liability Act, 1961, Part 4. They will have two years from the the date of death to do so. In the event that a personal representative is not appointed within six months of the date of death, anyone who was a dependant of the deceased at the time of their death can potentially pursue a claim within the time limit. Compensation for a fatal medical negligence can include damages for:

  • Psychological distress – capped at €35,000
  • Loss of dependency – covering the loss of financial and practical support from the deceased

Time limits for medical negligence claims

Patients normally have two years to claim compensation for medical negligence in most circumstances. However, there are some situations where patients may have more time to claim.

The date of knowledge for medical negligence claims

A key point is that the two-year time limit will be counted from the ‘date of knowledge’ i.e. the date when the claimant was first aware of the following key points:

  1. That they/their loved one has been injured.
  2. That the injury was significant.
  3. That the injury was caused by negligent medical treatment.
  4. The identity of the person responsible for the injury.

The date of knowledge could potentially be weeks, months or even years after the injuries occur, so this can have a significant impact on how long a person has to claim.

Time limits for medical negligence compensation for children

Where the claimant was under 18 at the time the negligence occurred, the standard two-year time limit will be counted from their 18th birthday. They and/or their parents or guardians will therefore have until the claimant turns 20 to make a claim.

Time limits for claimants who lack mental capacity

If the claimant is deemed to lack the mental capacity to pursue a claim themselves, there is normally no time limit for someone else to make a claim on their behalf. If the claimant later regains mental capacity (e.g. if they wake from a coma) then the two-year time limit will be counted from the date of knowledge as with a standard claim.

Time limits for fatal medical negligence claims

If someone has died as a result of medical negligence, then a representative of their estate will have two years to bring a claim from the date of death.

Our medical negligence claims pricing

The exact fees for pursuing a medical negligence compensation claim will depend on the circumstances. Factors that may affect these costs include whether the claim can be resolved with an out-of-court settlement or whether court proceedings are required. Our team will discuss costs and funding options during clients’ initial consultation. *In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with RE.8 of S.I. No. 229 of 2019.

For further information on making a claim following an injury due to medical misdiagnosis in Ireland, please contact Lavelle Partners in confidence on (01) 644 5800 or email Avril Scally at [email protected]

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