This was an appeal by the Nottingham Healthcare NHS Trust (the Trust) against a finding by the High Court that it was liable for injuries caused to six nurses employed by the Trust at a high security hospital. The nurses claimed that they had suffered injuries as a consequence of negligence by the Trust. The injuries were inflicted by a patient, RA, during a violent assault at night. RA was detained at the hospital at the time of the assault under a hospital order without restriction. RA had a personality disorder and had displayed a high level of self harm and violence towards patients and staff and made false complaints against staff that she herself had been assaulted. She was manipulative and very stressful to look after. Risk indicators which preceded an assault by RA on others were recorded in her medical notes. RA had threatened to kill members of staff and on one occasion she attempted to strangle a staff nurse and assaulted numerous other members of staff who intervened. Following incidents such as this RA was placed in seclusion which meant being placed in a specially prepared room where she was supervised by a member of staff. There was ongoing discussion about how best to manage RA’s behaviour.
The incident relevant to the appeal proceedings occurred during the evening when there were four staff members on duty. RA was in an agitated state but was taken to bed in accordance with her care plan at 10.30pm. Shortly afterwards she returned to the office requesting painkillers for self-inflicted wounds and waited outside the office. Without warning she launched an unprovoked violent attack on the fifth respondent and the other respondents had gone to assist. During the struggle the respondents suffered injuries to various degrees of seriousness with long-term consequences for some of them.
The court of first instance found that the Trust had been negligent in that it should have confined RA to her room at night, in line with the Tilt Recommendations. These are recommendations brought into effect by Directions issued under the National Health Service Act 1977. They recommend that each patient has a risk assessment carried out by his or her clinical team to determine whether the patient presents a high risk of harming others, committing suicide or self-harm, being assaulted escaping or subverting security and safety. Although not mandatory, the Secretary of State’s guidance on the Directions requires hospitals to record written reasons should it decide to deviate. The guidance suggests protocols should be followed in order to identify high levels of risk in certain specific areas which includes locking patients in their rooms at night. The guidance on protocols gives prescriptive advice on how and when locking patients in their rooms should occur.
At the time of the relevant incident, the Trust had not implemented the Tilt Recommendations nor did it have a procedure for confining patients to their rooms at night, even if they were regarded as high risk. According to Dr D, a jointly instructed expert, confining RA to her room at night may have reduced the likelihood of the relevant assault and it would have been appropriate for the clinical team to have discussed this option. There was powerful evidence before the court that if the Tilt recommendations had been complied with, there would have been a risk assessment which would have assessed RA as an exceptionally high risk to others and it would not have been unreasonable to take the view that she should have been confined to her room.
The Court of Appeal considered that the Trust owed its employees a duty to take reasonable care to provide safe equipment and a safe system of work which included assessing the tasks to be undertaken, training in how to perform the tasks as safely as possible and supervision in performing them. It should not expose its employees to unacceptable risks. The court referred to King v Sussex Ambulance Trust .
The question of whether the Trust was in breach of its duty was to be tested by reference to the principles applicable between employer and employee. It was clear that the Directions and Tilt recommendations did not impose an absolute duty on any hospital to confine certain patients at night nor did they lay down the precise policy which any hospital was bound to have. However, the failure by the Trust to implement the Directions was relevant to whether or not it was liable for a breach of duty to its employees. If they had been implemented there would have been methods whereby the Trust could have protected patients and staff from needless risks where high risk patients were concerned, without being in breach of any duty to the patient. The existence of the Directions and the failure by the Trust to implement them was relevant to the duty owed to the respondents. The Court of Appeal held that there should have been a rigorous risk assessment as contemplated by the Tilt recommendations and that the Trust should have had a policy contemplating the confinement of RA in her room at night. The trial judge had imposed the appropriate standard of care on the Trust in relation to its employees (the Tilt Recommendations), and his decision could not be criticised.