To what extent should a medical practitioner allow his or her religious views to intrude into interactions with patients? And to what extent is a medical practice vicariously liable for tortious conduct by a locum practitioner? Those were the questions before the Court in Brayshaw v The Partners of Apsley Surgery & Anor  EWHC 3286 (QB).
It was an undisputed fact that Mrs Brayshaw had suffered psychiatric harm as a result of religious practices and religious doctrines imposed on her “through and at the behest of” the second defendant, Dr O’Brien, who had been engaged as a locum by Apsley Surgery – and Dr O’Brien had subsequently been struck been off by a GMC Fitness to Practise panel. The issue before the Court, however, was whether or not Dr O’Brien and Apsley Surgery were liable in tort for the harm done to Mrs Brayshaw.
In brief, Mrs Brayshaw had suffered from “a multitude of health problems, both physical and mental” over the years . In addition, she had also had a series of family problems: her father was a violent alcoholic with gambling problems, she had been cared for – and abused – in a children’s home attached to a Roman Catholic convent, she had been abused by her mother and one of her sisters had died as a result of a heroin overdose .
When she rang the surgery in August 2012, wanting to speak to a doctor, she ended up talking to Dr O’Brien. She subsequently became involved with Dr O’Brien and his wife in what might be described as a “psycho-religious” relationship. A handwritten letter from Mrs Brayshaw
“… confirms that Dr O’Brien had stated, and the Claimant understood, that what was to happen was to be a religious process and that Dr O’Brien would be giving of his own time “as a Christian and not as my GP”. It confirmed that the Claimant had wanted to reconcile with God and her faith for some time and that Dr O’Brien and his wife would be working together to help Mrs O’Brien ‘to get on the right path to regain her faith’. I have no doubt that the Claimant was aware that the course which was being suggested to her and which she, at that time, was willing to embrace was not a course of medical treatment but a form of ‘religious treatment’, perhaps ‘healing through faith’.” .
Dr O’Brien told her that she should start going to a Pentecostal church  and she “spent many hours with Dr O’Brien and his wife as they inculcated her into their faith, their church and their Christian practices” . The relationship began to go wrong between Mrs Brayshaw and Dr and Mrs O’Brien as a result of the events surrounding a “testimony” on 12 January 2013  and included a story involving witch doctor, an owl and a grave – which, Mrs Brayshaw said, had left her “terrified of owls” – a phobia confirmed by psychiatrists  In January 2013, she had an appointment with Dr Jorsh, her consultant psychiatrist, in which she revealed to Dr Jorsh what had been going on with Dr and Mrs O’Brien ; as a consequence of the consultation, Dr Jorsh contacted the GMC and later made a formal complaint to the GMC about Dr O’Brien .
The judgment in respect of Dr O’Brien
Mrs Brayshaw argued that Dr O’Brien was liable in tort on three grounds:
- intentionally exposing her to a foreseeable risk of injury or severe distress which did result in injury;
- harassment; and
- negligently exposing her to a foreseeable risk of injury and deterioration in her pre-existing mental health problems which, in fact, materialised.
Martin Spencer J concluded  that the tort of inflicting intentional harm had not been made out: it was “very unlikely that Dr O’Brien had the requisite intention to cause harm … All the evidence suggests that the intention of the Second Defendant, misguided as it may have been, was the Claimant’s well-being and the improvement of her spiritual (and therefore mental) health. In my judgment, this case is a long way from the type of conduct which this tort is intended to catch” . He also rejected the claim of harassment .
As to the claim of negligence, however, he concluded that the claim succeeded. Given Dr O’Brien’s knowledge of Mrs Brayshaw:
“… he owed her a duty of care not to subject her to the unreasonable and avoidable risk of harm, and that duty of care should have included and encompassed the risk that the Claimant would fail to follow through her commitment to the doctrine of Christianity which he and his wife were espousing, with the consequences of the potential breakdown of their relationship. Effectively, the Claimant was left without a safety net in circumstances where the doctors at the Surgery and, in particular, Dr Jorsh, were not aware of what was going on and therefore how the Claimant could be supported medically, and particularly psychiatrically … [I]t was negligent of Dr O’Brien to expose the Claimant to the meeting of 12 January 2013 when, given the Claimant’s psychological and psychiatric make-up, together with all her physical problems, it was foreseeable that she might react adversely in the way that she did. 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: emphasis added].
The issue of vicarious liability
As to the vicarious liability claim against Apsley Surgery, Martin Spencer J concluded that it failed, for reasons that are worth setting out at some length:
“67. In Cox v Ministry of Justice  AC 660 the Supreme Court held that vicarious liability in tort is imposed upon the defendant in respect of the act or omission of another “because of his relationship with the tortfeasor and the connection between that relationship and the act or omission in question”. The Supreme Court confirmed that a relationship could give rise to vicarious liability even in the absence of a contract of employment. In that particular case the essential factors were that the tort had been committed as a result of activity being undertaken by the tortfeasor on behalf of the defendant, that that activity was integral to the defendant’s business activities and that the defendant, by employing [perhaps engaging would be better] the tortfeasor to carry out the activity had created the risk of the tort being committed by the tortfeasor. Those criteria had been designed to ensure that liability was imposed where it was ‘fair, just and reasonable’ to do so. In the course of his judgment, Lord Reed, with whom the other members of the Supreme Court agreed, said:
‘The scope of vicarious liability depends on the answers to two questions. First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant?’
I would add that the answer to these questions must always involve looking carefully at the particular activity which has been the cause of the damage in question and examine that activity in the context of the relationship between the tortfeasor and the defendant.
67. Further helpful guidance arises from the decision of the Supreme Court in Various Claimants v Catholic Child Welfare Society  2 AC 1 where, at paragraph 35, five reasons were set out as to why it is usually fair, just and reasonable to impose vicarious liability:
i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
ii) The tort will have been committed as a result of an activity being taken by the employee on behalf of the employer;
iii) The employee’s activities are likely to be part of the business activity of the employer;
iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort being committed by the employee;
v) The employee will, to a greater or lesser degree, have been under the control of the employer.”
However: Dr O’Brien was not Apsley’s employee but merely a locum whose services were engaged at certain times for certain defined purposes. Mrs Brayshaw had met him through his work for Apsley’s, “but that was as far as it went and this is insufficient”. Further contact occurred elsewhere than at the Surgery. The activity that harmed Mrs Brayshaw was the promotion of a particular brand of Christianity and it was difficult to see how Dr O’Brien that could have been doing that on behalf Apsley’s, nor was it any part of Apsley’s business activity.
[With thanks to Beatrice Brandon for drawing the case to my attention – I’d never have come across it otherwise.]