Tyler Lukes v Kent & Medway NHS & Social Care Partnership Trust & Anor

he failed to pay any or any sufficient regard to C’s mental health history. In particular, determined that the C had no significant risk of self-harm historically save for a single prior detention under s 136 MHA 1983, when his past history was wholly consistent with a significant risk of self-harm to himself ‘or others’ (sic);

he determined incorrectly that he was unable to speak with C’s mother or write to his GP to find out more information about his mental health without the Claimant’s consent;

he failed to carry out any meaningful assessment or screening process to determine if C was or remained at a significant risk of self-harm to himself or others;

he failed to ensure that C underwent a competent and effective psychiatric assessment either voluntarily or under the MHA 1983.

she failed to undertake an appropriate or effective screening assessment;

she recorded that the C was not known to mental health services or other agencies, that there was no history of mental illness in the family and he had never attempted suicide; concluded that there was no psychosis present, notwithstanding the clear evidence of psychotic symptoms in the prior entry by Hazel Pinduke;

she discharged C from the SPOA on the basis that he reported he was absolutely fine and did not want any support, notwithstanding the known history of aggression by him to his family; the fact that he had been placed in a hotel for the family’s safety; he was paranoid and talking to himself; his father had concerns for his safety due to his unpredictability;

she failed to ensure urgent same day referral to and review by the CRHT Team.

On the balance of probabilities, had the First Defendant through Mr Parish carried out an appropriate and responsible assessment on 12th August 2020, he would or should have determined that the Claimant required an immediate psychiatric assessment by the CRHT that day who in turn would have involved the Approved Mental Health Professional Service (‘AMHPS’). In circumstances where the Claimant revealed florid thought disorder such as believing he was Jesus and presented significant risk to himself and his family, he would and should have been kept in custody until he was assessed by AMPHS. Upon assessment, he would have been admitted to hospital either as a voluntary patient or in the event of refusal, as a detained patient under Section 2 of the Mental Health Act. He would have been commenced on antipsychotic medication and kept under close review and assessment. The subsequent deterioration leading to his episode of self-harm on 19th August 2020 would have been avoided. He would have made a reasonable recovery with relative stability, but would have been at risk of further relapses in the future.

…

A similar management process and outcome would have followed to that above had the Claimant’s undergone an appropriate assessment on 15th August 2020. The Claimant would and should have been directly referred to AMHPS by Ms Hatful or to the CRHT. Upon same day assessment, he would have been admitted to hospital either as a voluntary patient or in the event of refusal, as a detained patient under Section 2 of the Mental Health Act. The outcome and long-term prognosis would have been the same as above.”

each of the clinicians, nursing and/or police staff employed by the Defendants owed the Claimant a duty of care in respect of the treatment, care or services provided by them and the Defendants are vicariously liable for any breach of duty by them.”

failed between 18.03 and 3.29 on 11/12 August 2020 to determine that C required an appropriate adult, was in need of medical attention (on account of his mental ill health) and was unfit to be interviewed;

having determined at 3.29 on 12th August 2020 that C required an appropriate adult, failed to ensure that C underwent an appropriate and effective mental health assessment by a Healthcare Professional to determine if he was fit to be interviewed in accordance with Code C of the Police and Criminal Evidence Act 1984 (PACE) and the College of Policing Authorised Professional Practice;

upon Mr Parish of the CJLDS failing or being unable to undertake any mental health assessment, failed in any event to ensure that C underwent an appropriate and effective psychiatric assessment by a Healthcare Professional in accordance with the requirements of Code C of PACE;

failed to carry out a competent pre-release risk assessment. In particular, recorded that C was at no heightened risk of suicide or self-harm following release; was not suffering from any mental health issues; was not a vulnerable adult; was at no risk to himself or others following release; and that there was no healthcare advice to be provided to him or his parents upon release.

A similar management process and outcome would have followed to that above had the Second Defendant ensure that the Claimant underwent an appropriate assessment by a Healthcare Professional on 12th August 2020 as it should have done.”

“Consideration was given whether there was underlying personality traits especially in context of past history. However, at present there is limited evidence of said traits impacting upon his health care needs. He is warm and engaging and is working well with the treating team at present. At present there is not acute thoughts of harm to self or others at present. Consideration was given whether this was a primary psychotic disorder. However, the rapid resolution of his symptoms without psychotropic treatment makes it less likely. Working diagnosis at present is either 1. Acute stress reaction in the context of recent break up 2. Unspecified mental and behavioural disorder secondary to psychoactive substances …”

“… in an impulsive [act] immediately following a phone call with his partner where she had ended the relationship. His previous episode of suicidality was precipitated by similar breakdowns in relationships.”

“Mr Lukes also displayed no symptoms of depression or suicidality during his admission, while he was at times upset and often tearful about his circumstances. This is understandable and a normal reaction of loss of function of one limb. He consistently reported he was keen for future therapy and rehabilitation and had plans for the future. Given his current presentation and previous behaviour, the possibility of either a psychotic relapse or an underlying emotionally unstable personality were considered. However, as ultimately the circumstances surrounding his admission were not ever made entirely clear and as Mr Lukes displayed no symptoms of psychiatric illness at all while admitted, we decided that his presentation was most likely due to the presence of an acute stress reaction to his relationship desolation. He was eventually repatriated to Darent Valley Hospital and his psychiatric care was handed over to the team there…’

“There was no evidence of any mood disorder or any formal thought disorder. He was not observed to be responding to any abnormal stimuli. He was orientated to time, place and person. Tyler demonstrated insight into the event and capacity for decision making.

Plan 1. No evidence of any mood disorder/psychosis at present, therefore psychotropic medication is not currently indicated. 2. No current need for DOL/Section 5(2) at present, no evidence of acute mental disorder. Ongoing liaison review to monitor mood and mental state. 4. Awaiting bed at Stoke Mandeville. 5. Update risk assessment ...”

Regarding the criticisms of Mr Parish, he was entirely accurate in describing C’s mental health history; he determined correctly that he could not speak to C’s mother or write to his GP without C’s consent; he could not carry out any meaningful assessment or screening process if C refused to cooperate, and there was no basis for compulsory detention under the MHA 1983.

Regarding the criticisms levelled against Ms Hatfull, D1 contends that Ms Hatfull could not undertake a appropriate or effective screening assessment if C refused any assistance; he was not psychotic in fact; she had no option but to respect his wishes to avoid further contact with SPOA; and there was no further basis for referral and referral by the CRHT.

It is denied that it was possible for Mr Parish to carry out any assessment beyond that which he did on 12 August 2020. If, contrary to that, it be held that Mr Parish should have assessed C differently, it is denied that any such assessment would have resulted in a determination that C required an immediate psychiatric assessment by CRHT and the AMHPS as alleged or at all.

If such a psychiatric assessment by CRHT/AMHPS had occurred, it is denied that C would have been admitted to hospital as a voluntary patient in view of his persistent and documented refusal to co-operate with the medical support offered at this time (including telling Mr Parish to ‘fuck off’ several times).

If a psychiatric assessment by CRHT/AMHPS had occurred, it is denied that the conclusion of any such assessment would have been the C’s compulsory detention pursuant to s 2 MHA 1983 as alleged or at all.

It is denied that at any material time between 12 August and 19 August 2020 the Claimant suffered from psychosis as alleged or at all.

Consequently it is denied that even if the Claimant had been admitted to hospital following assessment by Mr Parish, C would have been given anti-psychotic medication as alleged or at all.

Further, even if, contrary to the above, the C had been admitted to hospital (either voluntarily or under compulsion), he would have remained an in-patient for no more than a few days at most and then resumed his consumption of illicit substances. Further, he would have had a deteriorating relationship with his family and his girlfriend. For this reason, admission to hospital on or about August 12th 2020 would have done no more than postpone by a few days C’s fall from the bridge on August 19th in any event.

It is denied that it was possible for Ms Hatfull to carry out any assessment beyond that which she did on 15 August 2020. If, contrary to that, it be held that Ms Hatfull should have assessed C differently, it is denied that any such assessment would have resulted in a determination that C required an immediate psychiatric assessment by CRHT and/or the AMHPS as alleged or at all.

Had there been such a referral, it is denied that C would have been admitted to hospital as a voluntary patient in view of his persistent and documented refusal to co-operate with the medical support offered at this time. When Ms Hatfull spoke to the Claimant on 15 August 2020, he made it clear that he did not wish to accept the psychiatric support that SPOA offered. If a psychiatric assessment by CRHT/AMHPS had occurred, it is denied that the conclusion of any such assessment would have been C’s compulsory detention pursuant to s 2 MHA 1983 as alleged or at all.

It is denied that at any material time 12 and 19 August 2020 C suffered from psychosis as alleged or at all.

Consequently it is denied that even if C had been admitted to hospital following assessment by Ms Hatfull, he would have been given anti-psychotic medication as alleged or at all.

Further, even if, contrary to the above, C had been admitted to hospital (either voluntarily or under compulsion), he would have remained an in-patient for no more than a few days at most and then resumed his consumption of illicit substances. Further, he would have had a deteriorating relationship with his family and his girlfriend. For this reason, admission to hospital on or about August 15th 2020 would have done no more than postpone by a few days the Claimant’s fall from the bridge on August 19th in any event.

For the avoidance of doubt, if contrary to the pleading in [18(b)(ii)] of the Amended Defence, it be held that Ms Hatfull completed the form in breach of duty, it is denied that any such breach was causatively relevant.

The custody officer must make sure a detainee receives appropriate clinical attention as soon as reasonably practicable if the person:

appears to be suffering from physical illness; or

is injured; or

appears to be suffering from a mental disorder; or

appears to need clinical attention.

9.5A This applies even if the detainee makes no request for clinical attention and whether or not they have already received clinical attention elsewhere. If the need for attention appears urgent, e.g. when indicated as in Annex H, the nearest available healthcare professional or an ambulance must be called immediately.

…

If a detainee requests a clinical examination, an appropriate healthcare professional must be called as soon as practicable to assess the detainee's clinical needs. If a safe and appropriate care plan cannot be provided, the appropriate healthcare professional’s advice must be sought. The detainee may also be examined by a medical practitioner of their choice at their expense.”

“9A A ‘healthcare professional’ means a clinically qualified person working within the scope of practice as determined by their relevant statutory regulatory body. Whether a healthcare professional is ‘appropriate’ depends on the circumstances of the duties they carry out at the time..”

The custody officer must make sure a person receives appropriate clinical attention as soon as reasonably practicable if the person appears to be suffering from a mental disorder or in urgent cases immediately call the nearest appropriate healthcare professional or an ambulance. See Code C paragraphs 3.16, 9.5 and 9.6 which apply when a person is detained under the Mental Health Act 1983, sections 135 and 136, as amended by the Policing and Crime Act 2017.”

It is essential healthcare professionals who are consulted consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.”

“Condition of the detainee

Officers should seek advice from an appropriate HCP [healthcare professional] if they have concern that a detainee has an injury, medical condition or a mental illness, appears to be experiencing mental ill health or otherwise requires medical attention. This does not apply to minor injuries or ailments, but officers should still note those in the custody record. If unsure of the nature of a condition, officers should call an HCP. See PACE Code C paragraph 9.5 and Notes for Guidance, Note 9C.

…

Custody officers need to be aware of the enhanced risk of suicide and self-harm during periods ofdetention. Detainees who are deemed to be a high risk of suicide or self-harm must be seen by an HCP and kept under close proximity supervision. This allows officers and staff to engage with the detainee and intervene if required

… ”

Exclusion criteria

The following functions will not be pursued as part of the L&D service:

removal and detention of an individual in accordance with section 136 of the

Mental Health Act 1983

street triage services

fitness to detain, fitness to interview and pre-release risk assessments

mental Health Act assessments

custodial in-reach services or post release services.

However, it will be important for providers of L&D services to build interfaces with providers of the above functions. This service will also address the sharing of relevant flows of information with those providers, to ensure that any relevant diagnoses are made known for the purposes of access to appropriate health and social care

services.”

“… those were the contacts upon which he seeks to assert his claim against D1 … in circumstances where he has capacity, and plainly refused any kind of assistance, it is difficult to see how or why D1 and their employees should be landed with any finding of liability.”

An application should not be granted unless the court is certain that the claim is bound to fail: see eg, Hughes v Colin Richards [2004] EWCA Civ 266, [22]:

Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendments and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend: see eg, Soo Kim v Young [2011] EWHC 1781, [400].

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91, 92;

A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products Limited v Patel [2003] EWCA Civ 472 at [8]. In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain, [95]

This, however, does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550, [19];

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63, [18];

On the other hand it is not uncommon for an application under CPR Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because ‘something may turn up’ which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, [14].

Striking out is a ‘draconian step’ which is only to be taken as a last resort: see Biguzzi v Rank Leisure plc [1999] 1 WLR 1926, 1933.

In a strike-out application the proportionality of the sanction is very much in issue; see Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607.

If the Court is able to say that a case is ‘unwinnable’ such that continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides it may be struck out: see Harris v Bolt Burdon [2000] CP Rep 70, [27].

an application to strike out the claim should not be granted where there are significant disputes of fact between the parties going to the existence and scope of an alleged duty of care unless the court is 'certain' (emphasis in original) that the claim is bound to fail: see Hughes v Richards (t/a Colin Richards & Co) [2004] EWCA Civ 266, [22].

Where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or is in any way sensitive to the facts, an order to strike out should not be made': per Sir Thomas Bingham in E (a minor) v Dorset County Council [1994] 4 All ER 640f, [1995] 2 AC 633B.

It is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact: see Farah v British Airways [1999] All ER (D) 1381, (2000) Times, 26 January, CA at [42] referring to Barrett v Enfield London Borough Council [2001] 2 AC 550) and X (minors) v Bedfordshire County Council  [1995] 2 AC 633.

A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence: see Bridgeman v McAlpine-Brown (19 January 2000, unreported),[24].

The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.

So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that ‘something may turn up’.”

In seeking to overturn the judge's decision Mr. Pollock Q.C. for Allianz has drawn our attention to some of the many cases in which this court and others have warned against the dangers of disposing summarily of arguments that appear at first sight to be implausible or depend on establishing facts which, at the time of the application, seem very unlikely to have occurred. These warnings must be taken seriously because experience tells one that the picture that emerges at trial, when all the evidence has been examined, often differs markedly from that which presents itself at an earlier stage. For that reason the court on an application for summary judgment will normally accept the parties' evidence at face value, as the judge did in this case, and will refuse to be drawn into an attempt to resolve factual disputes of any kind. However, a party cannot complain if, accepting his evidence at face value, the court adopts a rigorous approach when considering what, if anything, that evidence amounts to.

In the present case Allianz criticised the judge for having failed to make allowance in its favour for the likelihood that additional evidence relating to various aspects of this defence would be available at trial to cast a more benevolent light on events, but in my view that criticism is unfounded. It is incumbent on a party responding to an application for summary judgment to put forward sufficient evidence to satisfy the court that it has a real prospect of succeeding at trial. If it wishes to rely on the likelihood that further evidence will be available at that stage, it must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source and its relevance to the issues before the court. The court may then be able to see that there is some substance in the point and that the party in question is not simply playing for time in the hope that something will turn up. It is not sufficient, therefore, for a party simply to say that further evidence will or may be available, especially when that evidence is, or can be expected to be, already within its possession, as is the case here. Allianz was quite entitled, if it so chose, to confine its evidence to the factual allegations in the defence, but having done so, and having failed to give any indication of what other evidence can be expected to be available at trial, it cannot complain that the court has not speculated about whether there might be any such evidence, and if so what its nature might be.”

I have been told that there has been no reported decision of a successful summary judgment application in a clinical negligence case. As a matter of principle there is no reason why clinical negligence cases are any different from any other case and an obviously weak case on liability or causation is vulnerable to such an application. That said, there will be few cases, in my view, where such an application could ordinarily be contemplated before the relevant experts’ reports have been exchanged and, in most cases, until after the experts have discussed the case and produced a joint statement. Experts do from time to time change their views in the light of discussions with their counterparts and, whilst it is not to be encouraged and is ordinarily unsuccessful, there are occasions when a party will make a credible application to substitute another expert at some stage. This means that the task of considering, on a summary judgment application, evidence “which can reasonably be expected to be available at trial and the lack of it” (see Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 550 at [19] and Tesco Stores Ltd v Mastercard Incorporated [2015] EWHC 1145 (Ch) at [9]-[10]) is one that needs to be undertaken with caution.”

“I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes D clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.”

“In this case (while not specifically pleaded) the Second Defendant accepts that there is a duty to take reasonable care of a person detained in a police station but does not accept the extent of the duty contended for or that there was a breach of that duty that caused the damage sustained by the Claimant.”

“The duty of those who are entrusted with [a prisoner's] custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self-mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remain free from harm until he is set at liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from the fact that he is being detained by them in custody and is known to be at risk of engaging in self-mutilation or of committing suicide.”

“… The position must, in my judgment, be different when one person is in the lawful custody of another, whether that be voluntarily, as is usually the case in a hospital or involuntarily, as when a person is detained by the police or by prison authorities. In such circumstances, there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible.”

“…an important development in this regard in that it contributes significantly to the erosion of the customary divide between the duty of care and breach elements of the action in negligence. The consequence of that erosion is that cases that would previously have been understood as being breach cases are increasingly being treated as – and only as – duty cases. In short, contrary to the conventional structure of the tort of negligence, the breach element of the action is gradually disappearing.”

“The claimant commenced proceedings for damages and the defendant NHS trust admitted that, had the claimant been treated promptly, he would have made a full recovery. Expert witnesses were unanimous in their opinion that the claimant should have been seen by the triage nurse within 30 minutes of arrival at the hospital. However, the trial judge held, amongst other things, that it was not fair, just and reasonable to impose a duty of care on the defendant's reception staff to give accurate information about waiting times, and the claimant's action consequently failed ([2015] EWHC 2301 (QB)). An appeal to the Court of Appeal was dismissed by a majority (Jackson and Sales LJJ; McCombe LJ dissenting). The majority reasons in Darnley similarly concentrated whether the defendant owed the claimant a duty. That focus was surprising given that it is, of course, trite law that hospitals owe a duty to their patients. The claimant was certainly a patient (or analogous to a patient) on account of his having presented himself at the hospital's accident and emergency department, and no member of the Court of Appeal seemed to suggest otherwise, with all of the Lords Justices referring repeatedly to the claimant as a ‘patient’. Accordingly, on traditional principles, Darnley is not, in fact, a duty of care case at all. Rather, properly understood, the issue was whether the defendant had breached its duty in giving, by its receptionist, inaccurate information to the claimant.

The mode of analysis in Darnley is far from atypical. Judges, by over-specifying the content of the duty of care element, routinely treat breach cases as though they were duty cases (another recent illustration is Southern v Adventure Forest Limited [2016] EWCA Civ 1178, at [31], in which the court held that an occupier did not owe an invitee a duty of care in respect of a particular danger on the premises). Judges who proceed in this way typically utter formulae such as: ‘no duty of care was owed by the defendant in the present case to do [X] because the reasonable person in the defendant's position would not have done [X]. However, the structure of that phrase reveals immediately that the duty of care element is not in play at all. The very fact that the court is discussing what the reasonable person in the defendant's position would have done indicates that the dispute is actually about the breach element, that being the only element of the action in negligence that is concerned with the satisfactoriness of the defendant's conduct …

Pursuant to established doctrine, Darnley should have been analysed as follows. Any suggestion that the defendant did not owe the claimant a duty of care should have been given short shrift. That is because Darnley was completely lacking in features that could possibly be thought to have given rise to any duty issue. The parties were within an established duty category. The damage complained of was personal injury rather than (for example) pure mental or economic harm. Neither was there any suggestion that Darnly involved a mere omission. It follows, and follows straightforwardly, that a duty of care was owed to the claimant. The only question in Darnley, relevantly, was whether the defendant breached its duty.”

I consider that the approach of the majority in the Court of Appeal to the issue of duty of care is flawed in a number of respects.

…

In the present case Jackson LJ observed (at para 53) that to hold the defendant responsible would create ‘a new head of liability for NHS health trusts’. To my mind, however, the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient: Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J, at pp 435–436. In the present case, as soon as the claimant had attended at the defendant’s A & E department seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been ‘booked in’, he was accepted into the system and entered into a relationship with the defendant of patient and health care provider. The damage complained of is physical injury and not economic loss. This is a distinct and recognisable situation in which the law imposes a duty of care. Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury …

Thirdly, I consider that the judgments of the majority in the Court of Appeal elide issues of the existence of a duty of care and negligent breach of duty. They place emphasis on what a reasonable person would have done 841and could reasonably be expected to have done in the context of a busy A & E department. Thus Jackson LJ draws attention to the difficult conditions in which staff at such departments often have to work, observing, at para 54, that A & E department waiting areas are not always havens of tranquillity. Similarly, Sales LJ considers, at paras 84–87, that if there is a duty to provide “precise and accurate information” about the length of time before a patient might be seen by a triage nurse, it is difficult to see why it does not extend to an obligation to correct such information as changing pressures on resources arise. He observes, at paras 85, 87, that it would not be fair, just or reasonable to impose “a duty of fine-grained perfection” regarding the information provided and that “it is not as a matter of legal duty incumbent on a receptionist and the employing NHS trust to provide minute-perfect or hour-perfect information about how long the wait might be”. These observations seem to me to be directed at false targets; it is not suggested that receptionists in an A & E department should act in this way. The question under consideration is whether the defendant owes a duty to take reasonable care when providing, by its receptionists, information as to the period of time within which medical attention is likely to be available. More fundamentally, however, these observations are really concerned not with the existence of a duty of care but with the question whether there has been a negligent breach of duty as a result of a failure to meet the standard reasonably expected.

..

Finally in this regard, I should record that in considering the issue of duty of care I have been greatly assisted by a case note on the decision of the Court of Appeal in the present case by Professor James Goudkamp [2017] CLJ 480. He considers that the parties were within an established duty category and that the only question, relevantly, was whether the defendant 842breached that duty. He observes that discussion as to what the reasonable person would have done in the circumstances in question indicates that the dispute is about the breach element, that being the only element of the cause of action in negligence that is concerned with the satisfactoriness of the defendant’s conduct. He concludes, at p 482:

I agree with his analysis. It is to that question of negligent breach of duty that I now turn.”

… The trial judge made the critical finding that it was reasonably foreseeable that a person who believes that it may be four or five hours before he will be seen by a doctor may decide to leave. In the light of that finding I have no doubt that the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent.”

Having determined at 3.29 on 12 August 2020 that the Claimant required an appropriate adult, failed to ensure that the Claimant underwent an appropriate and effective mental health assessment by a Healthcare Professional to determine if he was fit to be interviewed in accordance with Code C of the Police and Criminal Evidence Act 1984 (‘PACE’) and the College of Policing Authorised Professional Practice.

Upon Mr Parish of the CJLDS failing or being unable to undertake any mental health assessment, failed in any event to ensure that the Claimant underwent an appropriate and effective psychiatric assessment by a Healthcare Professional in accordance with the requirements of Code C of PACE.”

“Where an individual is referred to the service they must be offered a screening appointment to be conducted by an L&D practitioner. The service will screen for a wide range of conditions and vulnerabilities using a trauma informed approach …

…

Individuals will be offered a further assessment linked to needs identified through the screening process.

The service will liaise with any professionals working with the individual to discuss and agree onward referrals.”

Exclusion criteria

The following functions will not be pursued as part of the L&D service:

removal and detention of an individual in accordance with section 136 of the Mental Health Act 1983

street triage services

fitness to detain, fitness to interview and pre-release risk assessments

mental Health Act assessments

custodial in-reach services or post release services.

However, it will be important for providers of L&D services to build interfaces with providers of the above functions. This service will also address the sharing of relevant flows of information with those providers, to ensure that any relevant diagnoses are made known for the purposes of access to appropriate health and social care services.”

“In September 2019 he was in A+E seeking psychiatric assessment amid concerns of paranoia, delusions and low mood. He left the department after waiting for 8+ hrs and not being seen. At home there was an altercation over the preparation of a sandwich leading him to go to his grandfathers where he ended up assaulting him and causing criminal damage. In custody he saw my CJLDS colleague who referred him for a mental health act assessment. He was detained under section two and admitted to hospital. He was felt to be exhibiting symptoms of a drug induced psychosis and was discharged three days later. He was referred to community mental health services but was not felt to meet the criteria for any service so was subsequently discharged.”

Whenever the appropriate healthcare professional is called in accordance with this section to examine or treat a detainee, the custody officer shall ask for their opinion about:

• any risks or problems which police need to take into account when making decisions about the detainee’s continued detention;

• when to carry out an interview if applicable; and

• the need for safeguards.

When clinical directions are given by the appropriate healthcare professional, whether orally or in writing, and the custody officer has any doubts or is in any way uncertain about any aspect of the directions, the custody officer shall ask for clarification. It is particularly important that directions concerning the frequency of visits are clear, precise and capable of being implemented. See Note 9F.”

“The custody officer should always seek to clarify directions that the detainee requires constant observation or supervision and should ask the appropriate healthcare professional to explain precisely what action needs to be taken to implement such directions.”

“Officers should seek advice from an appropriate HCP [health care professional] if they have concern that a detainee has an injury, medical condition or a mental illness, appears to be experiencing mental ill health or otherwise requires medical attention. This does not apply to minor injuries or ailments, but officers should still note those in the custody record. If unsure of the nature of a condition, officers should call an HCP. See PACE Code C paragraph 9.5 and Notes for Guidance, Note 9C.”

“mood low mood for over 5 years, ‘he’s not felt right’, poor sleep and passive suicidal thoughts last year but tells me he is no longer having it.”

“March 2019 seen by CJLDS … No evidence of mental disorder (He refused assessment – KR) …December 2018

His mother reported that he first reported hearing voices. According to his mother he drove off with a hose pipe threatening suicide. His father found him and stopped him.”

“When assessed he was described as having grandiose delusions believing he had been reincarnated into Jesus and had also ran out of the house the night before saying he wanted to kill himself …

Risk of harm to self and others on discharge were low however risks are largely impacted on by illicit substance misuse and Tyler is aware of this and need to desist from illicit substance misuse. He has capacity to make decisions around his drug misuse

Diagnosis Mental and behavioural disorders due to multiple drug use and use of other psychoactive substances / Psychotic disorder”

“According to history subsequently given by the Claimant’s mother, the Claimant gradually deteriorated over time and demonstrated a number of bizarre behaviours, including talking to voices in an empty bathroom, screaming about people banging doors at home, talking about being God and Jesus and healing the world and thinking that people were coming to kill him. He developed a hatred of the colour red and anyone who wears it and has been witnessed to write pages of “gobbledgook” and fixate on seemingly random themes.”

“During the time at the address, the family have strongly and repeatedly stated that this is a MH episode. I have raised their concerns with Medway Custody and asked for them to update the custody record and that he is assessed by the CPN.

The family have stated that they have known this incident is coming for a few days. Yesterday Tyler spent several hours sat in front of a mirror growling at himself. He also continually states that he is Jesus and the messiah. Approximately a year ago Tyler became a HR MISPER. He was later found by the helicopter on a bridge over the A2 threatening to kill himself. He has made repeated threats of suicide and his family are concerned they are seeing the same signs that led up this incident last year. There is also a family history of paranoid schizophrenia. Tyler’s uncle and Marcus’ brother suffered from the same condition and hung himself some years ago. Therefore the family are very passionate about this subject and are adamant that they want him sectioned.

They have only plastic cups in the house and the knives have been hidden in an alleyway next to the house because they live in fear as a result of Tyler’s behaviour.”

An application for admission for assessment may be made in respect of a patient on the grounds that -

he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

“…Capacity Fully capacitous. Diagnosis Drug induced psychosis. Plan he needs antipsychotic medication. No indication for his prescribed citalopram. Not ready for section 17 leave yet prn medication.”