I post on behalf of Mark Wilde:

 

Dear all

A very interesting QBD decision with some bizarre facts but which raises a number of textbook tort issues: Brayshaw v the Partners of Apsley Surgery and Thomas O'Brien. 

The claimant, Mrs Brayshaw, sought a consultation with the defendant GP who was a locum at the local medical practice. She presented with a number of mental health and physical symptoms but it seems she was primarily concerned about her mental well being on this particular occasion. She initially had a telephone conversation with the doctor who was a Pentecostal Christian. When issues of faith came out in the conversation the doctor suggested a 'different way' to 'heal' her and arranged to see her at her home. There then followed s series of consultations purporting to offer 'spiritual guidance' and healing. 

During the course of this 'healing' process (which involved private consultations and participation in religious services at a church) it was suggested that the claimant was possessed by demons which were commanded to come out of her body. At one event she attended a preacher spoke about sacrificing an owl, although not in relation to the claimant's treatment. This left her with a fear of owls. (not surprisingly this 'owl phobia' is the feature that attracted the attention of the BBC in its Coverage of the case). 

As a result of her experiences the claimant suffered psychiatric harm for which she sought damages against the doctor (O'Brien) and the medical practice under vicarious liability. 

Mr Justice Spencer delivered a judgment which raises a number of interesting points of law.

In a rare outing for Wilkinson v Downton [1897] 2 QB 57 he held that the principle could not apply here because there was no intent on the doctor's part to cause severe distress or illness; moreover recklessness would not suffice in this respect.

As regards a claim under the Harassment Act 1997 the judge was of the opinion that there was no 'course of conduct' of the type envisaged by the legislation. 

However the claim for psychiatric injury under negligence succeed on the grounds that the doctor had allowed his professional judgement to collide with his spiritual beliefs in a manner which was to the detriment of the patient: 'By reason of his zealous promotion of the religious aspects, he became blind to the medical aspects and thereby caused or contributed to the deterioration in the Claimant’s mental health.' [66].  

 

The claim in vicarious liability against the medical practice failed on the grounds that as a locum he could not be regarded as an employee of the practice. And secondly, that in offering spiritual counselling of this nature he had stepped outside the scope of his employment. Applying Lister v Hesley Hall the judge held:-

 

'I cannot see that religious proselytization can fairly be regarded as a reasonably incidental risk to the business of carrying on a doctors’ surgery.  I am fortified in this view by the fact that, as I have found, the Claimant herself knew that Dr O’Brien was not acting in his capacity as a GP but as a friend and Christian: she said so herself in her letter written soon after they met.'

 

Regards

 

Mark 

 

Dr. Mark Wilde
Associate Professor in Law
School of Law
University of Reading
Foxhill House, Room G53
Whiteknights Road, Earley
Reading RG6 7BA
United Kingdom

Phone: +44 (0) 118 378-5674
Fax: +44 (0) 118 378-4543
Email: m.l.wilde@reading.ac.uk
Web: www.reading.ac.uk/law
Railways and Law blog: http://blogs.reading.ac.uk/railways-and-law/

 

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)