Cook v Bradford Community Health NHS

An employer responsible for staff working near a known violent and unpredictable patient must take reasonable steps to avoid exposing an employee to a needless foreseeable risk of assault. The standard requires consideration of the employee’s actual function at the time. A trained employee’s knowledge of the patient and ability to undertake care duties do not justify leaving that employee in close proximity to the patient when the employee is not then needed for observation, care or restraint and can readily be removed from danger.

The claimant, a health care assistant, was assaulted by a psychiatric patient who had a history of unpredictable violence. She had entered the seclusion suite to provide refreshments to the two assistants observing the patient. While she remained in the observation area, the patient was permitted to leave his room to use the toilet and punched her.

The recorder held that the NHS employer had breached its duty by allowing the patient out before ensuring that the claimant had left the suite. The employer appealed, contending that the conclusion imposed an impracticable duty on health care providers. The central issue was whether the safe system of work required the claimant to be removed before the patient was allowed out of seclusion.

1. Appeal dismissed unanimously. Lord Justice Schiemann held, with Lord Justice Scott Baker and Mr Justice Pumfrey agreeing, that the recorder had adopted the correct approach to the employer’s duty of care.

2. The patient’s history made violence towards persons near him foreseeable. Staff necessarily engaged in observing, minding or caring for him might have to accept and manage an unavoidable occupational risk. That did not make it reasonable to expose another employee to the same proximity where her work did not require it.

3. The claimant was present to provide refreshments, not to observe or escort the patient. Once permission was to be given for him to leave his room, her continued presence in the suite was unnecessary. It would have been simple to require her to leave and to secure the door before the patient emerged. Allowing her to remain therefore needlessly and significantly increased the foreseeable risk of assault.

4. Her training, knowledge of the patient and capacity on other occasions to perform observation duties did not alter the analysis. Nor did the decision require resolution of the different hypothetical case of an additional carer performing supervisory functions. The recorder was entitled to find that the usual practice, if it permitted this exposure, was a negligent system of work.

5. The appeal was dismissed, with costs to be assessed by a Costs Judge if not agreed.

• Court of Appeal (Civil Division): The employer’s appeal was dismissed.

• High Court, Queen’s Bench Division, Leeds District Registry: Mr Recorder Burrell QC, sitting as a deputy High Court judge, found the employer liable in negligence for failing to ensure that the claimant left the seclusion suite before the patient was allowed out of his room.