Friday, 20 July 2012

Selwood - NHS Liability for Injury Caused by Psychiatric Patients

In Claire Selwood-v-Durham CC and others [2012] EWCA Civ 979 the Claimant successfully appealed against the striking out of her claim for damages against two NHS Trusts. The Claimant worked as a senor social worker for Durham CC and was involved in a family proceedings case involving the daughter of a man, GP who was treated as a psychiatric patient by the two Trusts. He was a voluntary patient. Whilst in the Trusts' care he had made threats to kill the Claimant. He was allowed home leave, attended a case conference and attacked the Claimant causing her grave injuries. He subsequently pleaded guilty to attempted murder and was given a sentence of life imprisonment.

The Trusts and the Council were co-signatories to a policy document called "working together in the delivery of services to adults and children."

The Court considered authorities such as Palmer-v-Tees HA [1999] Lloyd's Law Rep Med 351 in relation to the requirement of proximity between the defendant and the claimant - the issue being whether there was a known risk to the specific individual rather than to the public at large - and Jain-v-Trent SHA [2009] 1 AC 583 in relation to whether the imposition of a duty of care would be fair and reasonable.

The Court decided that the claims should not have been struck out. It would be open to a trial judge to find that the Trusts had assumed responsibility to do what was reasonable in the circumstances to reduce or avoid any foreseeable risk of harm to which an employee of a co-signatory to the policy document was exposed. It might be fair, just and reasonable to impose a duty of care on the NHS Trusts in the circumstances of this case. It was also arguable that the Trusts were in a similar position to the police who may be under an article 2 operational obligation to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved - see Van Colle. The Claimant's case that there was such a risk was not a hopeless one.

It will be interesting to see whether this case does go to trial. However, the Court of Appeal's decision seems to me to be of significance not least because of the large number of partnership agreements in place across the country between NHS Trusts and local authorities, in particular in the fields of child protection, safeguarding vulnerable adults and mental health services.

Of course it would be wrong to suggest that there are large numbers of  psychiatric patients in the community who give rise to the sort of risks that GB presented. However, there will be incidents of harm to third parties and where such partnerships are in place the Court of Appeal has indicated that there may arise, in certain circumstances, an inference of a duty of care to employees of the partner authority who are at risk of harm from a patient being treated by an NHS Trust and an article 2 duty to other individuals who are known or ought to be known to be at a real and immediate risk from the patient.

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