Counsel:  Barry Cotter QC, Jonathan Clarke

 

Practice areas:  Personal Injury; Health and Safety

 

Court:  Court of Appeal

 

Judges:  Waller LJ (Vice President of the Court of Appeal, Civil Division), Carnwath LJ and Maurice Kay LJ

 

Citation:  [2006] EWCA Civ 1576

 

Date:  23 November 2006

 

 

Summary: The 6 Claimants were employed by the Defendant's predecessor as psychiatric nurses at Rampton Hospital, one of three high security hospitals (aka special hospitals) for persons liable to be detained under the Mental Health Act 1983. On 12 March 2001, the Claimants were all working the night shift. Four of them were working in a ward containing 14 patients, one of whom had a prolonged history of extreme violence. Normally there would be 5 staff on duty on that ward but only 4 were available that night. The Claimants' request for another member of staff was refused. During the course of the night, the patient approached the staff and seriously assaulted one of them. The other 5 Claimants were each assaulted by the patient as they tried to restrain her.

 

Following the publication in February 2000 of Sir Richard Tilt's report on security at the high security hospitals (which followed the Fallon Inquiry into events at Ashworth High Security Hospital), the Secretary of State for Health (in exercise of his powers under sections 16D, 17 and 126(4) of the National Health Service Act 1977, and section 4(5) of the Regulation of Investigatory Powers Act 2000) issued the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000 to the three high security hospitals. These Directions came into force (so far as relevant) on 30 November 2000. They required that each patient be assessed as to whether he or she posed a security risk (including a risk of assault) and that a risk management plan be devised for each patient. Each hospital was also to have a policy on the circumstances in which a patient considered to be a high security risk could be locked into his or her room at night. In breach of the Directions, Rampton Hospital (along with Ashworth and Broadmoor hospitals) failed to devise and implement such a policy until some time after being required to (and in any event after the Claimants were assaulted in March 2001).

 

The Claimants sued for damages, alleging insufficient staff numbers and a failure to have confined the patient to her room at night. As the Defendant blamed one of the Claimants for the assaults, the Claimants were separately represented. Barry Cotter represented the Claimant whom the Defendant blamed and Jonathan Clarke represented the other five. Liability was tried as a preliminary issue before HHJ Inglis in Nottingham County Court on 21 February 2006. The Judge found that an extra member of staff would not have prevented the assaults and so the claim based upon insufficient staff could not succeed. He found that the patient presented a plain and obvious risk of assault and ought to have been confined to her room at night in line with the policy which the Directions had required be implemented. The failure to have confined her was negligent.

 

The Defendant appealed on the grounds that (1) there was no evidence that the risks posed by the patient were greater at night, in fact they were less and (2) the duty owed to the Claimants had to be balanced against the duty owed to the patient which was governed by Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 and, accordingly, the hospital could not be negligent unless it could be shown that no responsible body of clinicians would have failed to confine the patient. The Claimants were each represented by Barry Cotter QC and Jonathan Clarke at the appeal.

 

The Court of Appeal dismissed the Defendant's appeal. (1) Although the evidence did indeed suggest that the risk posed by the patient at night was less than during the day it was still unacceptably high and confinement was merited. (2) What the employer's duty of care requires must take into account the sometimes competing duty of care owed to the patient, but is not subject to it. Just because it might not have been a breach of the duty of care owed to the patient to confine her or not to confine her at night, this did not mean that it was not a breach of the duty owed to the employees not to confine her. "If the [employers] can take precautions so as not to expose their employees to needless risks and still not be in breach of their duty to a patient, then it seems to me that they may well be in breach of duty if they fail to take those precautions. The question whether they were in breach of duty will be tested by reference to the principles applicable as between employer and employee, not as between a doctor and his patient." – per Waller LJ at para 10.

 

 

The transcript is available here courtesy of BAILII

 

Instructing solicitors:  Lees Lloyd Whitley, Birkenhead