Buck & Ors v Nottinghamshire Healthcare NHS Trust

On 12^th March 2001 the respondents, who were six nursing staff employed by the appellants at Rampton Hospital, were assaulted by a patient, Miss Rachel Agar. They brought proceedings in respect of their injuries. His Honour Judge Inglis tried a preliminary issue dealing with liability and causation. He gave judgment in the respondents’ favour by a judgment dated 21^st February 2006. This is an appeal from that judgment.

I can take the context in which the incident must be placed largely from the judge’s judgment:-

In paragraph 5 of the judgment the judge summarised the incidents which occurred between the beginning of 2000 and the incident which occurred on 12^th March 2001. I will not set out the detail of those incidents. It is sufficient to say that during 2000 Miss Agar assaulted staff on a number of occasions. In the first months of 2001 she also carried out assaults on staff and threatened to kill staff or made threats to harm fellow patients and staff. Most significantly on 25^th February 2001 she attempted to strangle a staff nurse and then assaulted numerous members of staff. It was in the context of that assault that Dr Travers, who was her RMO, and to whose evidence I shall return in a moment, opined in notes in relation to that day that Miss Agar was “Tilt-positive”. The relevance of that assessment will become apparent hereafter.

The same notes indicated that when members of staff sought to interview Miss Agar they feared for their safety (see p 729 of the bundle). Miss Agar was placed “in seclusion”. This must not be confused with “confinement to her room”, the point with which this appeal is concerned. Seclusion involved Miss Agar being placed in a specially prepared room where a member of staff stayed on duty with her. Her period in seclusion lasted until the morning of 28^th February 2001.

On 1^st March 2001 various discussions took place as to the way in which Miss Agar should be dealt with. The notes of those discussions and a report of Debbie Anne Ford in connection with those discussions recognised the danger that Miss Agar was to herself, patients and members of staff. The note from Debbie Anne Ford included a recommendation that “at no time was Rachel to be escorted outwith the main ward area with less than two staff.” Further notes were “All incidents were documented and staff involved informed of risk of being a potential for future assaults victim.” “To minimise risk of self-injury or injury to others Rachel was supervised by a minimum of two staff when using tools or pens.” “Rachel was to retire to bed at 22.30 each night to reduce risk to self/others when staffing levels reduced.”

It was recognised by the staff that one objective of Miss Agar was, if possible, to get herself sent to prison. It is recorded in a note of Dr Travers that the view was taken at this time that it was in Miss Agar’s interest that she should be supported in her intention to get herself sent to prison. (See note of 2^nd March 2001, p 737).

On 7^th March 2001 Miss Agar again attacked a staff nurse and had to be secluded at 4.30 that evening (see p 737). Later that evening she was apparently settled in her bed and became calm and talkative (see p 737).

It was then on 12^th March 2001 that the incident with which this case is concerned occurred.

The details are set out in the judgment of the judge and I need only refer to certain features. Nurses, including the respondents, took over from the afternoon shift at about 9.40 pm. The normal complement for the Chatsworth Ward, on which Miss Agar was, was five night staff, but on this particular day only four were rostered since one was away attending an ill patient at another hospital. During the afternoon shift Miss Agar had been unsettled. By the time the nightshift came on Miss Agar was angry about certain antibiotics that she had been prescribed for a self-inflicted wound. Miss Agar was in an agitated state and at the trial there was a dispute as to whether there was one or two telephone calls calling for further staff. The judge found there was one call and that the call was not as urgent as certain of the witnesses would have indicated. Miss Agar was taken to bed in accordance with her care plan at 10.30pm. Shortly after that she came to the office asking for painkillers for a self-inflicted wound in her arm. She was offered paracetamol but she said that they made her sick and went back to her room. Within a minute or two she returned, saying she would have paracetamol and it was agreed to mix it with juice for her to have, and she sat down on a chair outside the office window. She sat in an armchair, apparently calm, to be given her juice. Suddenly she launched a violent attack on the fifth respondent. The other five nurse respondents went to her aid and a violent struggle ensued. Further details are unnecessary for this judgment. During the episode Miss Agar shouted words to the effect “do I have to kill someone to be sent back to prison?” All six respondents were injured in the incident in various degrees of seriousness and with long-term consequences for some of them.

By the conclusion of the hearing before Judge Inglis the allegations of negligence were limited to two specific allegations; the first allegation was that Miss Agar should, before the incident and because of her history including what had happened in February/March 2001, have been confined to her room at night, and the second was that the appellants had failed to provide adequate staff numbers. As to the second allegation, the judge found that the appellants had failed to provide adequate staff, but he found that it would not have made any difference if there had been more staff, having regard to the savagery of Miss Agar’s assault on that evening. There is no appeal against that aspect of the judge’s judgment. His finding of negligence in relation to the first allegation is what gives rise to the issue on this appeal.

To the second allegation there is some important background. Sir Richard Tilt carried out a review of security at high security hospitals following the Fallon Inquiry at Ashworth Hospital in 1998. He reported in February 2000. He made a number of recommendations, one of which was that the feasibility of locking “high-risk” patients in their rooms at night should be examined. The Tilt Recommendations were carried into effect by regulations entitled ‘The Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000’. These were Directions made by the Secretary of State for Health under the National Health Service Act 1977, which so far as material came into force on 30^th November 2000.

Paragraph 4 provided:-

The important directions for the purposes of this case are paragraphs 30 and 31, which provide, so far as material, as follows:-

Concurrently the Secretary of State published guidance. As is apparent the directions were mandatory but the guidance was not, though where hospitals deviated from the guidance they were required to maintain a written record with the reasons for so doing. The guidance relating to paragraphs 30 and 31 provided:-

The protocol provided by its introduction as follows:-

The protocol indicated the four main categories of risk, in accordance with the 2000 Directions, “Risk of harm to self (suicide or self injury), risk of harm to others, risk of escape, risk of being assaulted (i.e. high vulnerability).” By paragraph 7 it was provided that:-

The attachment contained a decision tree for risk management of high-risk patient group. Following that tree the indications were that if the high risk was of suicide or self harm “the patients should normally not be locked in their rooms”, but the tree provided for consideration of other boxes, including “high risk of immediate harm to others”, where if the answer was there was a high risk the tree indicated that “these patients should be locked in their rooms at night unless deployment of other measures reduces risk”. This box recommended consideration of management strategies in box 4. Consideration of box 4 “high risk of immediate harm to others” indicated that locking into room should apply “until judged safe to end such locking in – in accordance with seclusion policy”, and also indicated that locking into room could occur “for identified high risk periods only, (e.g. night time)”.

The directions were published in June 2000 and provided that the directions should come into force on “30^th November 2000” except for a paragraph which is not of relevance in this case. Thus by 30^th November 2000 the appellants should have had a policy on the circumstances in which a patient, considered to be at high risk, might be locked up in their room at night. None of the three hospital authorities, Ashworth, Broadmoor or Rampton, introduced a policy in accordance with the Tilt recommendations by 30^th November 2000, and indeed Rampton did not produce such a policy until the year 2002. Mr Herbert before us accepted that by so failing the hospital authorities were in breach of the Directions but he stressed there was no claim, nor could there be, for breach of statutory duty by the six nurses.

Dr Davenport, who was a joint expert who gave evidence at the trial, explained the position at paragraph 3.26 of her first report in the following terms:-

Dr Davenport, in her first report, commented on the circumstances of these assaults in the following terms:-

At paragraph 8.6 she also expressed the view:-

In the addendum report produced just before the trial on 20^th January 2006, Dr Davenport said as follows:-

At paragraph 2.14 she repeated her view adding this:-

Dr Davenport gave oral evidence before the judge. She was asked her view as to what would have been the position if the Tilt protocol had been in force at the time just before the assaults, the subject of this action. She was not always consistent in her answers. She, for example, at one stage said that she thought it would have been a reasonable decision not to confine Miss Agar in her room (see p 637 lines 15-16). Ultimately, however, she was pressed by Mr Cotter to clarify her position and she did that over a series of answers. What Mr Cotter was seeking to do was to feed in the notes of the nursing staff, particularly the note suggesting that Miss Agar should be put into bed by 10.30 to reduce the risk to the reduced number of staff on at night. Dr Davenport then, when pressed by him, gave evidence that “it would have been a reasonable decision, hypothetically, to confine her to her room at night.” At that stage the judge intervened to explain that the case was concerned with an action being brought by people assaulted by Miss Agar and not by Miss Agar. He stated that “the actual question would then be, would it have been unreasonable not to do so,” to which Dr Davenport answered “I agree it would have been unreasonable not to confine her to her room at night if the protocol had been in existence and if adequate weight had been given to the views of the nursing staff around the risk of assault at night.”

It is fair to say that Dr Travers, in his written statement at para 13, p 297, said:-

However, when he came to give evidence under cross-examination by Mr Cotter, in answer to Mr Cotter’s question “As at 27^th February you were aware that because she was Tilt-positive, high risk, that if you were following the guidance and the protocol you should have confined her at night. You understood that as at 27^th February?” To which Dr Travers answered:- “If appropriate alternative ways of managing her weren’t in place.”

Thus it was that there was powerful evidence before the court to the effect that if the Tilt directions had been complied with by the appellants, there would have been a risk assessment, assessing Miss Agar as an exceptionally high risk of posing serious injury to others and that it would have been unreasonable not to take the view that she should be confined in her room at night.

Mr Herbert before us sought to argue that the evidence showed that it would have been reasonable not to confine her at night. He took two points. First he suggested that the evidence of Miss Agar being high risk to herself would have been an indicator against confining her. Secondly, he suggested that the evidence did not show her to be a high risk at night as opposed to generally and that would have been a contra-indication to confining her at night.

Following the decision tree, it is possible to see that a balance has to be struck where a patient is at high risk of harming him or herself. But, where there is a very serious risk to third parties of serious injury, the decision tree would indicate that confinement at night was required and there is no reason to think that Dr Davenport did not have Miss Agar’s potential for harming herself in mind in giving the answers that she did.

So far as night time is concerned, the judge dealt with that in his conclusion that albeit there was no indication that the high risk which Miss Agar posed was enhanced at night, there was equally no evidence that the high risk she posed was reduced at night. Again, there is no reason to think that Dr Davenport, and indeed Dr Travers, in giving the answers they did, did not have the history of Miss Agar and her actions at night or in the day in mind.

If, therefore, the content of the Safety and Security Directions 2000 informed the content of the duty of care owed by the appellants, the case against the appellants, on the evidence, was a very powerful one. Indeed, my understanding of the judge’s judgment is that it was his view that the Directions did inform as to the standard of care, and it was on that basis and that basis alone that he found the appellants liable.

In King v Sussex Ambulance Trust [2002] ICR 1413 at 1419, Hale LJ (as she then was) said this:-

Later at 1420 she said this:-

In the Court of Appeal decision in Cook v Bradford Community Health NHS [2002] EWCA Civ 1616, Lord Justice Schiemann put the matter in a rather similar way in a case concerned with an employee in a psychiatric hospital being injured by a dangerous patient. The patient in that case was in a “seclusion suite”, (a method of holding patients to which reference has been made in the instant appeal). Miss Cook was injured when a decision was taken by two health care assistants to allow a patient to come out of seclusion while Miss Cook was still standing in the observation area. Schiemann LJ said this at paragraph 17:-

Mr Herbert in this appeal submitted on behalf of the appellants as follows:-

It is this latter submission which seems to me to be looking at matters from the wrong angle. Clearly the duty that the appellants owed to Miss Agar is of relevance in considering the duty that the appellants owed to their employees, but it does not follow that the duty owed to employees can be tested simply by the question whether what occurred amounted to or did not amount to a breach of duty to the patient, which is what the Bolam test is concerned with. If the appellants 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.

I turn next to the relevance of the Directions and the Tilt protocol. First it is right that the claimants have not sought to bring actions for breach of statutory duty. Second it is right to stress that the Directions did not impose any absolute duty on any other hospitals to confine patients at night or anything of that nature. Indeed the Directions did not lay down the precise policy which any hospital was bound to have. We were shown the policy that was ultimately introduced by Rampton, headed “Rampton Hospital Policy on Patients’ Confinement in their Rooms at Night”. The aim of the policy was said to be to provide “advice to clinical teams on the circumstances in which a patient assessed as high risk may be locked up in their room at night. It also outlines procedural guidelines that must be complied with where the decision is taken to implement the policy.” Mr Herbert referred us to certain paragraphs which, he would suggest, gave slightly less encouragement to confining patients to their room than the suggested Tilt protocol. For example, paragraph 4.1 emphasised “there are some patients for whom locking in a room would increase not reduce the risk they present. For this reason patients presenting a high risk of committing suicide; and/or presenting a high risk of self harming, must not be locked in their room at night under this policy unless the exception of 4.2 applies”. Paragraph 4.2 provided “Where there is a combination of risks, and on balance the other risks make locking in at night appropriate, patients who present a high risk of suicide and/or present a high risk of self harm may be locked in at night, providing consideration is given to the environment in a way which reduces these risks.”

He also placed emphasis on paragraph 5, where it is provided at 5.1 “locking patients in their rooms at night is a last resort and should only be considered where all other risk reduction strategies have been considered and no suitable alternative exists.”

Mr Herbert accepted that the appellants were in breach of the 2000 regulations by not having a policy as at the time of the incident with which the case is concerned. He would suggest that since the breach is not one for which the appellants could be liable to the claimants, the question whether the appellants were negligent or not must be viewed in the context of a hospital without such a policy. In particular, he would submit that the clinicians who took the decision in this case as at 12^th March 2002 were not negligent in the absence of any policy and that thus the appellants could not be vicariously liable for the decision taken.

I would accept that it may well be that the appellants were not liable in this case vicariously for any failure by the staff of the appellants. I do not however accept that the 2000 Directions, which by March 2002 had not been adhered to by the appellants, had no relevance to the question whether the appellants are liable or in breach of duty to their employees. A breach of regulations can be evidence which can assist the argument (see Spencer v Boots the Chemists [2002] EWCA Civ 1691 at para 13). I would suggest a breach can help to inform the content of a duty. What, as it seems to me, the 2000 Directions demonstrate is that, if they had been implemented, there were methods whereby the appellants could protect other patients and staff from needless risks where high risk patients were concerned without being in breach of any duty to the patient. That is as true of the policy ultimately brought in as it was of the protocol, the subject of the guidance. It is ultimately for the court to decide the content of the duty and whether there has been a breach, but it is in that sense, as it seems to me, that the existence of the Directions and the failure to implement the same can inform as to the content of the duty owed to the claimants.

The judge recognised the difficult and complicated area of patient care in a high security hospital. He recognised the background of therapeutic development of such care over the last fifteen or twenty years, but his conclusion was that Rachel Agar was an “exceptional patient” by the standards of high security hospitals and she posed an “exceptional risk”. If, therefore, there had been a policy related to confining patients in their rooms at night at the time of the incident on 12^th March 2002, if any patient was to be confined, Rachel Agar must have been that patient. If she had been confined then no-one challenges the judge’s conclusion that the attack on the fifth respondent would never have taken place and the incident which caused serious injury to the respondents generally would not have taken place.

In my view, in concluding that there should have been a rigorous risk assessment as the Tilt Directions contemplated, and in taking the view that following such an assessment the appellants should have had a policy contemplating the confinement of Miss Agar in her room at night, the judge was imposing the appropriate standard of care on the appellants in relation to their employees. In holding that there was not a rigorous assessment, which would have contemplated confining Miss Agar to her room at night and in finding that if there had been she would have been confined in her room at night, the judge’s decision cannot be criticised.

I would accordingly dismiss this appeal.