Image © Marbury
37-year-old Linda Metcalf received an immediate 6-month custodial sentence at the Leeds High Court on 11 February 2021 for her deliberate attempt to defraud the NHS and deceive the Court.
Ms Metcalf had pursued a clinical negligence claim against the Trust for an alleged delay in diagnosing cauda equina syndrome in June/July 2012. The Trust admitted liability for a 24-hour delay in diagnosing her spinal condition at the pre-action stage; a formal apology was made by the Trust and an early voluntary interim payment of £75,000 was agreed and paid.
Quantum investigations were undertaken. The Claimant alleged injury to her bladder and bowels, and severe limitations to her mobility, amongst other symptoms. Ms Metcalf reported that her standing and walking tolerance were severely limited even with walking aids (as little as 1-minute standing and 5 yards walking); she said that she was unable to drive, required assistance with transfers in/out of a vehicle, was unable to leave her home alone and her ability to take part in leisure and social events was severely restricted due to mobility difficulties and pain levels. A Schedule of Loss was served in January 2019 totalling £5,712,773.40.
Due to inconsistencies in the evidence, covert surveillance was obtained. Ms Metcalf was observed:
• Driving;
• Walking without apparent difficulty and
• without walking aids;
• Climbing stairs without holding a handrail; and
• Shopping independently (including supermarket shopping trips in which she pushed a trolley and carried what appeared to be a heavy shopping basket).
Ms Metcalf was observed transferring into a wheelchair to attend appointments with the Trust’s medical experts and using two walking sticks when attending physiotherapy appointments; she was not observed using walking aids when doing any activity unconnected to her claim.
It also became apparent from online sources that Ms Metcalf was travelling frequently within the UK and abroad (including South Africa, Thailand, Singapore, Fiji, New Zealand and Hong Kong) throughout the claim. The surveillance footage and internet search material was disclosed to Ms Metcalf’s Solicitors in February 2019 and the Trust’s Defence was amended to plead fundamental dishonesty.
Ms Metcalf initially denied fundamental dishonesty in her Reply to the Amended Defence and quantum investigations continued ahead of the Trial listed to take place from September 2019. Further witness statements and updated expert reports were obtained, putting both parties to additional cost. A round table meeting in June 2019 was unsuccessful but Ms Metcalf agreed to an Order that her claim be dismissed for fundamental dishonesty later that month. She also agreed to repay the £75,000 and, to her credit, has done so.
Hempsons applied for permission to bring committal proceedings on behalf of the Trust in March 2020. In an open letter from her solicitors, Ms Metcalf admitted contempt in April 2020 and confirmed that she would not contest the Application. Ms Metcalf subsequently formally accepted that she had interfered with the due administration of justice, misled the independent experts instructed in the claim and had made false statements in legal documents, verified by a statement of truth.
Permission was granted by consent in June and the committal Application was made in July. The matter came to a final hearing before Mr Justice Griffiths on 11 February 2021.
Ms Metcalf sought to avoid a custodial sentence and put forward the following points (amongst others) in mitigation:
• Ongoing health problems related to the index claim – including management of a catheter in prison;
• The impact on her 2-year-old daughter;
• Remorse and engagement with the process;
• The interim had been repaid in full;
• She had lost the ability to recover compensation
• for the genuine aspect of her claim (estimated
• to be around £350,000);
• Good character;
• The pandemic making conditions in prison
• worse; and
• She had been aware that she could go to
• prison since the surveillance evidence was disclosed in February 2019 and had had the matter “hanging over her”.
Mr Justice Griffiths considered that the length of deception (approximately 4 years) and the amount claimed from a public body, justified a custodial sentence of 18 months. However, taking into account points in mitigation, the sentence was reduced to 9 months. A further one third deduction was then applied as contempt had been admitted at the permission stage, prior to the Application for committal being made. As such, Ms Metcalf received an immediate custodial sentence of 6 months and an Order to pay the Trust’s costs of the proceedings (summarily assessed at £23,000).
This case highlights the very serious consequences of submitting a dishonest and exaggerated claim against the NHS. This is the third case that has come to a final hearing in which NHS Resolution and an NHS Trust has pursued and obtained a custodial sentence, but this is the longest sentence to date which is reflective of the length of deception and amount claimed, despite the mitigating factors and early admission.
Nevertheless, a sentence of 6 months in respect of an attempt to use the courts as a weapon to pull off a fraud valued at >£5 million still does not seem very high. It may be that in future cases the courts will impose heavier sentences, particularly in cases where the Defendant does not a have a young child who may be punished by the incarceration.
The Trust was represented by Laura Scott of Hempsons and Claire Toogood of Crown Office Chambers.
Published by: