Buck and Others v Nottinghamshire Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Carnwath,Lord Justice Maurice Kay |
| Judgment Date | 23 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1576 |
| Docket Number | Case No: B3/2006/0602 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2006 |
[2006] EWCA Civ 1576
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Nottingham County Court
His Honour Judge Inglis
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of The Court of Appeal, Civil Division
Lord Justice Carnwath and
Lord Justice Maurice Kay
Case No: B3/2006/0602
4LV11571
Barry Cotter QC and Jonathan Clarke (instructed by Lees Lloyd Whitley, Solicitors) for the Respondent
Douglas Herbert (instructed by Beachcroft Wansbroughs, Solicitors) for the Appellant
Introduction
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.
The facts
I can take the context in which the incident must be placed largely from the judge's judgment:-
"2. Rachel Agar was born on 10 October 1974. From her early teens she displayed grossly disturbed behaviour. She passed through a variety of residential settings. In 1995 and 1996 she committed a number of minor criminal offences, and on 28 October 1996 she came to Rampton hospital under section 35 of the Mental health Act 1983, having been sent there by the Justices for assessment. She remained there until after the events with which this case is concerned. Her Mental Health Act status changed from time to time, and from January 2000 she was detained as though admitted to hospital under a hospital order without restriction.
3. After her arrival she spent some months on the admission ward, creating, as Dr Travers (the consultant psychiatrist under whose care she came in early 2001) put it in his evidence, "mayhem". She was transferred to Anston Ward and there over time spent a number of periods, including long periods, in seclusion. She displayed a high level of self harm; of assaults on others; and made many false complaints against staff that she herself had been assaulted. She was manipulative and very stressful to look after. In 2000 she was moved back to an admission ward, Alford. In late 2000 it was proposed that she move to Chatsworth Ward. The move happened more suddenly than had been intended, because of the temporary closure of Alford Ward through staff shortages. She moved on 12 January 2001. Dr Travers took over as the consultant responsible for her care from Dr Hamilton about 4 weeks later. There were joint meetings about her condition and her care.
4. The history, over a number of years, was of very violent and unpredictable behaviour. She has a personality disorder, described sometimes in reports as a psychopathic disorder. There is some reluctance to use that description nowadays, but it is in fact the relevant category of mental illness under the Mental Health Act 1983. There had been debates about whether she should be in hospital at all, because the Mental Health Act criteria for hospital admission under court orders in the case of people with psychopathic disorders include a requirement that the court must be satisfied that treatment will alleviate or prevent deterioration in the condition. The question whether treatment at Rampton could have that effect remained a live issue. Miss Agar's violent behaviour at Rampton led to her being prosecuted for offences of violence committed by her on staff there. Summarising the position on 21 September 2000 Dr Hamilton said in a letter:
"in this hospital Miss Agar has been extremely violent to staff and has appeared in court on several occasions but has only been convicted of common assault, although some of her attacks were unquestionably murderous in nature. She had a very lengthy period in seclusion which was only terminated with great difficulty about eight months ago"
Between 1 April 1999 and 30 March 2001 there were 570 recorded incidents, including 283 of self harm, and 120 assaults or threatened assaults on staff. During 2000 at various times she had caused 21 staff on Anston Ward to be off sick (though some of these absences may, it seems to me, have been due to stress caused by the pressures of looking after her) . On her transfer to Chatsworth Ward on 12 January 2001 Dr Hamilton wrote in her notes:
Attack on staff could be of murderous severity. Risk indications are known and previously recorded:
e.g. - attempting to isolate staff
- complaining of feeling strange
- loss of eye contact
- 'glassy' stare to L or R of person talking to her. In the past moves of ward have resulted in a 'honeymoon' period. Indications above should be responded to as potentially serious and acted on by additional precautions.
Dr Hamilton remained Miss Agar's medical officer until 13 February, when Dr Travers took over."
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 Incident
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.
The issues
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