X X Local Authority v Trimega 2013 (this one may make you shudder, as you think of all the cases where scientific results have played a part in the decision)
It is a County Court case and I am very grateful to have had the imminent publication of this brought to my attention.
I am going to be VERY VERY careful about what I write in this analysis, because there are large financial sums at stake hence significant commercial interests and I am aware that the institutions involved are prepared to litigate to protect those interests. For the same reason, I might have to edit comments on this one, so be a bit careful please. The judgment makes it plain that the company concerned have identified the problem and put in place safeguards to prevent it occurring again. (I think that’s enough back-covering and insurance against me being sued, I will now report the facts of the case)
There was a final hearing in care proceedings in July 2013 – the LA had been seeking a plan of adoption. The mother persuaded the Court and the parties that her problems with alcohol were behind her, and had some test result evidence to support this. The final hearing was adjourned for a few weeks, with a view to seeing whether a plan of rehabilitation could instead be achieved.
Shortly afterwards, a blood alcohol test was conducted by Trimega, this arriving on what would have been the first day of the adjourned final hearing.
Between 22 and 25 July 2013 a further blood alcohol test report on the mother was received from Trimega. It was dated 17 July 2013 and the result for the mother’s CDT level was 1.6% — just on the cut-off point between negative and positive results and an obvious increase on previous results. It was of great concern in that it indicated that the mother appeared to have been drinking when she was adamant that she had been abstinent from alcohol for many months. Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care. The local authority therefore no longer supported such a plan
One can see that having been persuaded that alcohol was no longer an issue, getting that sort of result would give a local authority pause for thought, and that the test result was a single tipping point factor in the decision the Court would make.
The Judge did not however, rush into things, and directed for further evidence to be obtained.
- On 25 July 2013 I gave directions, having found it was necessary to have further expert evidence in accordance with Part 25 Family Procedure Rules 2010, for further blood alcohol testing by a different expert and for Trimega to report in respect of the interpretation of mother’s alcohol testing results and for a new final hearing date. An updated opinion had been sought urgently from Dr Hallstrom who said he no longer felt able to support the rehabilitation plan. On 25 July 2013 by email he said that “the fact that [the CDT] result was low a few weeks ago and now raised, raises the strong suggestion that there has been heavy drinking in the last week or two….” It is right to say that if it had not been for this new test result of 1.6% a final order would have been made on 25 July 2013 and the child returned to her mother’s care.
- In Trimega’s report on the father of 7 December 2012 the interpretation section says that “CDT values below 1.6% cannot be used to distinguish between social drinking and abstinence but when the value is elevated above 1.6% this marker does reliably identify someone with excessive alcohol consumption”.
- In Trimega’s reports on the mother dated 18 June 2013 and 17 July 2013 it said that:
“The CDT screening test has been found to be one of the most accurate blood biomarkers for alcohol abuse because individuals with a daily intake of more than 60 grams of alcohol over more than two weeks have elevated levels of CDT. In regular drinkers their level of CDT continues to be elevated for between two to four weeks after abstaining, depending on the original increase in the level that existed for that individual. That means that for most people who are dependent their elevated CDT level will be detected even if they find themselves able to abstain for a short period before a test is performed.”
Get ready to shudder
- Trimega, in considering the significance of the raised CDT level as instructed after 25 July 2013, found that it had made a mistake and the CDT figure should have been 0.2% and not 1.6%. Trimega admitted the error and apologised then to the mother’s solicitors by email dated 9 August 2013. An interim hearing was listed and on 21 August 2013 the child was returned to her mother’s care under an interim supervision order in accordance with a new rehabilitation plan. The following orders were made, among others:
- The solicitor for the mother shall serve this order upon Trimega Labs inviting it to attend at 2pm on 3 September 2013 to explain the error made in the blood test result dated 17 July 2013 and to address the issue of wasted costs should any party make an application for a wasted costs order.
- Any application for wasted costs shall be filed and served on the parties and Trimega Labs by 4pm 28 August 2013.
The result of the blood alcohol test which made people think that the mother had been abusing alcohol had been wrong, and what appeared to be a failing or borderline test was actually a clear indication that she had not been drinking alcohol. A number which ought to have been written down as 0.2 had instead been written down as 1.6. It was a ‘clerical error’
I make it plain that the Judge, whilst making a costs order and deciding that there was a wider public interest in publishing this order, was not seeking to coruscate Trimega (though note my underlining)
- I do not say that the error made by Trimega amounted to a “flagrant reckless disregard” of its duties to the court and I accept it was a human error. I am reassured that the discovery of this error has lead Trimega to add a new procedure whereby a further specific check is made back to source material before a report is finalised and its staff understands the importance of the new measure. Trimega accepts that the mistake should not have occurred and is keen to make sure it does not happen again and it accepts that it was in breach of its duty to the court. Trimega accepts that the direct consequences were considerable upset and distress for the parents in this case, additional costs and not least a delay of four weeks for the child in being placed in her mother’s care. Trimega has made its apology.
- I have decided to publish this judgment because I consider that it is in the public interest to do so. The family courts should be as open and transparent as possible to improve public confidence and understanding. In this case expert evidence was relied upon and if the mistake had remained undiscovered it is probable, given the history in this case, that it would have led to the adoption of the child instead of rehabilitation to care of her parent. Close scrutiny of expert evidence is needed and all the surrounding circumstances have to be considered in a situation such as this where the interpretation of test results was so important and influential.
I should also again point out, for the purpose of fairness, that what had happened here was not an unreliability of the testing process or the interpretation or reliability of that interpretation, but a human error in transposing two numbers when the results were recorded.
It was, as can be seen from my underlining, a human error that could have had catastrophic consequences for this child and the family, and perhaps for future children as well.
Perhaps worth remembering that any process involving human beings involves the possibility that human beings, flawed and frail and wonderful as they are, do sometimes make mistakes. And that even an honest mistake can have huge consequences if not detected.
The mother was fortunate in this case to have tenacious representation and a Judge who was more concerned with getting the right decision than being rigid about delay and further expert evidence.
[If my past experience is anything to go by, expect to receive an email from this firm’s competitors soon, drawing this case to your attention. There’s not much love lost between the major players]