A bid by killer Neil Cumming to sue Tayside Health Board over claims he would not have stabbed his wife to death but for the negligence of a psychiatrist in failing to get him admitted to hospital the day before the fatal attack has returned to court.
Cumming alleges that the medical professional failed to tell him of the availability of a bed for him at Murray Royal Hospital in Perth in the contested action.
A judge said Cumming was suing the health authority for compensation “in unusual circumstances”.
John Beckett QC said: “The pursuer’ claim is that a psychiatrist employed by the defenders, Dr Lyn McLaren, was negligent in failing to advise the pursuer of the availability of a bed at Murray Royal Hospital, Perth and in failing to arrange his admission there when he attended with her on July 14 2011 at Ninewells Hospital, Dundee.”
“He claims that, but for the negligence alleged, he would not have killed his wife the next day and would not have attempted to commit suicide,” said the judge.
Cumming was ordered to be detained in the high-security State Hospital at Carstairs as a 46-year-old in 2012 as he was acquitted of murdering his wife, Barbara Jane, in a frenzied attack, on the grounds that he was insane at the time.
He was suffering a persistent delusional disorder and thought he was being spied on by work colleagues at a tyre factory in Dundee.
His 40-year-old wife suffered 36 major stab wounds to her body, arms and hands in the fatal attack at the family home in Mary Findlay Drive, Longforgan, Perthshire, on July 15 in 2011.
After the killing Cumming tried to commit suicide, driving at speeds in excess of 100 mph on the A90 Perth to Dundee road before crashing into the back of a lorry.
Other road users were injured in the incident and Cumming and the health board have been sued by them at Perth Sheriff Court.
Cumming raised his action against the health authority at the Court of Session in Edinburgh claiming damages for pain and suffering over the loss of his wife and other matters.
In the case brought by him the health authority entered a plea that he should be unable to pursue such a legal remedy as it stemmed from his own illegal action.
Mr Beckett was told that he would seek to persuade the court that the principle was not applicable where he was insane when he killed his wife.
The judge said it was not disputed that Cumming had a lengthy record of serious mental disorder and that after his symptoms worsened while on holiday with his wife he was seen by Dr McLaren who decided he should be re-admitted to a psychiatric hospital for in-patient care.
She told him and his wife that no bed was available for him at the Carseview Centre at Ninewells Hospital. A bed was available at the Perth hospital.
But in his action he claims that the psychiatrist did not tell or his wife of the availability of the bed at Murray Royal. He maintains that if he had been told that he would have accepted and travelled to Perth to be admitted.
The health authority maintains that a bed at the Perth hospital was offered by Cumming declined it as he preferred to wait for a bed to become available at the Carseview Centre.
The psychiatrist, who had known Cumming for years and was familiar with his history which did not include violence or aggression, carried out a full clinical risk assessment and concluded that he did not meet the criteria for compulsory admission to hospital.
The health authority carried out a review into events and its conclusion was that Dr McLaren had offered Cumming a bed at Murray Royal and that he had been offered appropriate care.
The case came before the judge for amendment and recovery of documentation, part of which was in dispute.
Lawyers acting for Cumming sought documents prepared by the psychiatrist at or about the time of the events and relied on by the review.
The judge was told that the “crucial issue” for Cumming was to be able to prove he was not offered a bed by Dr Mclaren and that the whole case would turn on what happened at the meeting. The health board argued that what was sought was too wide.
Mr Beckett refused to grant the move over the material in contention. He said there was a strong policy consideration that an organisation should not be inhibited from carrying out legitimate investigations and it would be undesirable to paralyse the taking of remedial measures which might be identified from it.
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