A man who is suing a health board over a hospital's failure to admit him for mental health treatment on the day before he killed his wife, has failed in an application to recover documents that he believed would support his case that a bed was available for him.

Neil Cumming, who is currently in the state hospital after being acquitted of murder by reason of insanity, and who is also being sued for injuries caused when he drove his car into another vehicle in an attempt to commit suicide after the killing, is claiming damages including for the loss of his wife from Tayside Health Board. He blames a psychiatrist employed by the board for negligently failing to advise him of the availability of a bed and to arrange his admission, alleging that but for this negligence he would not have killed his wife the next day and would not have attempted to commit suicide. It is part of his case that the principle preventing someone from founding on their own wrongdoing does not apply in cases of insanity.

Mr Cumming attempted to recover hospital documents prepared by the psychiatrist around the date in question related to his treatment and the subsequent incident report form. It was not disputed that the psychiatrist had concluded that he should be readmitted for care, that no bed was available at the Dundee hospital where the consultation took place, but that a bed was available at another hospital in Perth. Mr Cumming claimed that he was not told of the bed in Perth; the defenders that he was told but declined it, wanting to wait for a bed in Dundee, and their psychiatrist did not judge him as meeting the criteria for compulsory admission.

It was argued for Mr Cumming that it was crucial for him to be able to prove that he was not offered a bed. The report he particularly wanted to recover was of a review to establish the background and sequence of events and which specifically stated that it was not intended to apportion blame. It should not be regarded as falling within the rule protecting investigations condicted with a view to litigation.

Sheriff John Beckett QC, sitting as a temporary judge, said that the purpose of the defenders' review was much wider than argued by Mr Cumming. Society was just as litigious as when the general rule was laid down, and this recognised "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 thereby be identified.

"Those considerations would seem to apply in a hospital setting where a psychiatric patient was not admitted to hospital on seeing a psychiatrist before killing his wife the next day", he concluded.

If Mr Cumming had sought only "spontaneous reporting by employees to the defenders which falls within the recognised exception", his decision might have been different.

Click here to view the opinion.