Clinical Risk >
Volume 14, Number 6 >
Pp. 252-254
| ||||||||||||||||||||||||||||||||||||||||||||||||||||
Anthony Crowley was born on 6 November 1983. He began to develop schizophrenia in 2002 and was no longer capable of managing his affairs. However, this claim related to an earlier period in his life, i.e. 1987–1995. It was alleged on his behalf that various professionals, employed by the County Council and the NHS, failed to recognize his particular learning difficulties. It was also claimed that these bodies breached their own responsibilities towards him.
While it was accepted that the schizophrenia would probably have developed irrespective of Anthony's educational problems, it was maintained that, but for the alleged negligence, he would have been better able to cope with his psychiatric condition and would have been capable of leading a semi-independent life and of working in a sheltered environment.
Anthony's parents first identified that he was developing more slowly than he should have been at the age of 2.5 years. They took him to their GP, who in turn referred him to the paediatric department at Kingston Hospital, where it was noted that his language development was delayed and that he had poor articulation.
He was first seen by a speech therapist in April 1987. Tests suggested that he was seven months behind in terms of speech development. He was given speech therapy sessions at a local clinic.
By October 1987, a paediatrician noted that while Anthony's linguistic ability was improving, it was below the three-year level (he was by then almost 4 years old). He was now attending a small independent nursery school.
At this time, the local NHS was suffering from a dearth of qualified speech therapists, and a re-assessment which had been planned for January 1988 did not take place until September. However, in December 1987, the paediatrician reported that Anthony had made ‘quite considerable progress’ in both language and articulation.
In May 1988, the nursery school identified a ‘widening gap’ between Anthony and his peer group. He was sent to a different school in September that year, but an NHS speech therapist assessed his general linguistic ability as ‘improving’ on 27 September.
An educational psychologist, employed by the council, stated that Anthony ‘would benefit from extra help’ in November 1988, but that sourcing would require further consideration. In Anthony's school report for Autumn term 1988, the class teacher had written ‘needs constant help’ in relation to language skills.
At the end of December 1988, the consultant paediatrician reported that ‘things are beginning to pick up now’, although limited attention span remained a problem. The district educational psychologist considered that Anthony needed extra help, possibly amounting to five hours per week, but that amount was neither promised nor provided. The contemporaneous documents suggested that Anthony was to be monitored by his class teacher until a concluded view could be reached.
In February 1989, further speech therapy sessions commenced. A test revealed functioning just below the average range for intelligence and within the range for mild global delay.
By May 1989, a speech therapist reported ‘slow but steady improvement over the past few months’ and that Anthony's receptive language was ‘now within normal limits’. His main difficulties arose from cause/effect and past/future issues. Various professionals agreed in June that he required extra help at school.
In September 1989, further tests revealed variable results: Anthony scored badly on visual memory and comprehension, but well on auditory memory and sound blending. His overall psycholinguistic skills were assessed as slightly below average, equivalent to someone aged 5 years and 3 months, compared with his actual age of 5 years and 10 months.
In September 1989, the parents requested that Anthony be statemented. There was no indication in the records of what the county's educational psychologist, Mr Adams, did in response. However, Mr Adams recorded at this time that ‘Anthony is progressing. His fine motor coordination is improving and his letter formation is markedly better.’
This view was echoed by the paediatrician who, in the autumn of 1989, noted that Anthony's language had ‘improved considerably’ and that he no longer had speech therapy.
In January 1990, tests revealed a verbal scale IQ of 85, performance scale IQ of 72 and full scale IQ of 77. The educational psychologist concluded: ‘Anthony's verbal skills are better developed than his non-verbal skills’, and that he still found tasks involving visual memory difficult.
Mr Adams, the educational psychologist, took the view in the light of the above facts that Anthony should not be ‘statemented’. His learning difficulties and under-functioning were not, in his opinion, sufficiently severe for such a step.
In May 1990, the consultant paediatrician noted that Anthony was ‘coming on well’ and gave an essentially optimistic report, concluding that he did not need to see him again for one year.
A school report in July 1990 noted improvements in maturity and fine motor skills, but concluded that Anthony's speech was ‘still rather immature’, and that he found pronunciation and the absorption of new information difficult.
In the autumn of 1990, Mr and Mrs Crowley considered finding a suitable independent school for their son. Although reports from the council school were generally favourable with indications of improvement, no further speech and language therapy was being provided during this period. Between January and July 1991, the parents organized some private speech therapy sessions because no NHS provision could be made.
On 28 June 1991, Anthony was seen by Mrs Read, head of paediatric speech and language therapy with the then Health Authority. The upshot was that she herself conducted some therapy sessions. Shortly afterwards, Anthony achieved level 1 at his Key Stage 1 SAT (Summary of Attainment) in English, maths and science, but failed in speaking and listening.
From September 1991, Anthony was placed at an independent school, which meant that the County Council had no obligation to assess him. Here, Anthony met with limited success and was almost always bottom of the class.
In June 1993, Anthony was assessed by Mr Adams as having a verbal IQ of 77, i.e. in the bottom 10% of the population. This did not, in Mr Adams' view, justify transfer to a special school. The score was only just within the lowest 10%.
In January 1994, an NHS speech therapist conducted a CELF (Clinical Evaluation of Language Fundamentals) test. The experts for both sides agreed that the results of this test should have brought about referral to a specialist multidisciplinary team, but this did not happen. Indeed, the County Council wrote to the parents in February 1994, based upon the views of their principal psychologist, stating that Anthony did not meet Surrey's criteria for formal assessment ‘and is in fact currently performing at the expected level, given his age and ability’.
The parents then consulted Mr Arno Rabinowitz, an independent chartered educational psychologist. He saw Anthony in June 1994 and concluded that he had a range of ‘severe and special educational needs that warranted a statement’.
By now, the family had moved to the area covered by the Kingston Local Education Authority (LEA). Kingston decided upon a full statutory assessment. Mrs Read, the NHS speech therapist, concluded that Anthony now had only one articulatory immaturity that needed a short course of therapy to eradicate. Otherwise, no speech and language therapy input was required, in her view.
The speech therapy experts considered that this was an inadequate assessment, chiefly because it lacked detail. However, a statement of educational needs, which was drafted by Kingston, did not adopt the views of Mrs Read.
An appeal was lodged by the parents and this resulted in an assessment by Mrs Burrows, another speech and language therapist. She conducted a series of tests on Anthony and concluded that his language development was delayed by 3 years and 9 months. She also identified ‘a severe receptive and expressive language disorder’.
Anthony was sent to a new school, St Dominic's near Goldalming, in June 1996 and made good progress there. However, he continued to have ‘problems word finding and his range of vocabulary remained limited’. There were no allegations relating to this period.
Foskett J noted that this claim needed to be assessed in the context of authorities such as DN v London Borough of Greenwich [2004] EWCA Civ 1659 and Clarke v Devon County Council [2005] EWCA Civ 266. He observed that any damages he might award would be modest and, given that the trial took 7.5 days, commented that ‘the cost–benefit analysis of such an exercise is inevitably a matter of some concern’.
He distinguished ‘decisions which are heavily influenced by policy’, which in the view of Dyson LJ in Carty v London Borough of Croydon [2005] I WLR 2312 were ‘close to being non-justiciable’, from ‘decisions involving pure professional judgment and expertise in relation to individual children’, where the Bolam test applied.
Held: Anthony was not seen as having a specific language disorder by the NHS speech and language therapists he saw, and indeed some of the tests undermined such a conclusion. Accordingly, it could not be said that he was deprived of the kind of educational support that someone who had such a disorder was reasonably entitled to receive at the time. He had been assessed, on reasonable grounds, as having no such disorder.
This was conclusive regarding the alleged inadequacies of communication between the education and health authorities. That there were some such inadequacies was true, but they had no causative effect.
For example, the failure following the January 1994 test to refer Anthony to a specialist multidisciplinary team, agreed to be a breach of duty by the experts, was not causative in the sense that such a referral would not, on the balance of probabilities, have identified a specific language disorder that would then have been treated effectively.
Likewise, the assessment by Mrs Read in January 1995 was inadequate, but it had no causative effect because it was not acted upon by Kingston LEA.
Even if Anthony had been sent to St Dominic's earlier, history did not suggest that it would have made any difference to the eventual outcome. A more thorough report in January 1995 would only have brought the statutory process forward by a relatively modest period, one far too short for it to have made any real difference.
Anthony was something of a diagnostic conundrum. If indeed he did have a specific language disorder, there was always a degree of improvement in his apparent ability between assessments. Against that background, no one conducting an assessment of him which accorded with reasonable practice at that time negligently ‘missed’ discovering a specific language disorder. The claim therefore failed against all Defendants.
Nicholas Bowen and Shu Shin Luh (instructed by Teacher Stern Selby) appeared for the Claimant. Andrew Warnock (instructed by Weightmans) appeared for Surrey County Council. Steven Ford (instructed by Browne Jacobson) appeared for the NHS bodies.
 | Comment |
|---|
 Top Comment |
|---|
The following comments and thoughts arise:
CiteULike 
Complore 
Connotea 
Del.icio.us 
Digg 
Reddit 
Technorati What's this?
| ||||||||||||||||||||||||||||||||||||||||||||||||||||
