Buck & Ors v Nottinghamshire Healthcare NHS Trust

An employer of staff in a high-security psychiatric hospital owes the ordinary employer’s duty to take reasonable care for their safety. The dangerous nature of the work and the employer’s duties towards patients do not make avoidable risks acceptable. The duty is assessed by employer–employee principles, not simply by asking whether clinicians complied with the standard applicable to treatment of the patient.

Mandatory safety directions and failure to implement them may inform the content of the common-law duty, even where they create no private action for breach of statutory duty. They do not require automatic night confinement. They require risk assessment, a suitable policy, and consideration of medical grounds and effective alternatives.

Six nursing staff at Rampton Hospital were injured when a patient with a long history of severe and unpredictable violence attacked them at night. Before His Honour Judge Inglis, the claim alleged negligence in failing to confine the patient to her room at night and in providing inadequate staffing. The judge found the staffing failure causally immaterial, but found liability concerning night confinement.

The hospital had not implemented the The Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000, which required risk assessment and a policy concerning night confinement of high-risk patients. The appeal concerned whether those Directions informed the employer’s duty to its staff and whether the failure to confine the patient constituted negligence.

Waller LJ delivered the judgment, with Carnwath LJ and Maurice Kay LJ agreeing. The appeal was dismissed.

1. Duty to employees. An employer owes its employees the ordinary duty to take reasonable care to provide safe equipment and a safe system of work. Staff working in an inherently dangerous public-service environment accept inherent risks, but not risks which reasonable care could avoid. The principles stated in King v Sussex Ambulance Trust [2002] ICR 1413 and Cook v Bradford Community Health NHS [2002] EWCA Civ 1616 supported that approach.
2. Patient care and professional judgment. The hospital’s duty to the patient was relevant, but the duty to employees could not be tested simply by asking whether there had been a breach of the duty owed to the patient. Precautions might protect employees without breaching the patient’s rights. The Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 approach relied on by the hospital, together with Phelps v Hillingdon LBC [2001] 2 AC 619 and Carty v Croydon LBC [2005] 1 WLR 2312, did not provide the applicable test for this employer–employee claim.
3. Effect of the Directions. The Directions, made under the National Health Service Act 1977, were mandatory. They did not impose an absolute duty to confine patients at night, nor prescribe one precise policy. They required risk assessment and a policy governing the circumstances in which a high-risk patient might be confined, with consideration of medical grounds and effective alternatives. Although no claim for breach of statutory duty was brought, breach of the Directions could be evidence and could inform the content of the common-law duty. Spencer v Boots the Chemists [2002] EWCA Civ 1691 supported that evidential use.
4. Application. The evidence justified treating the patient as exceptional and presenting an exceptional risk of serious harm to others. Her self-harm risk had to be balanced against the risk to staff and other patients. There was no evidence that her high risk was reduced at night. A rigorous assessment and an appropriate policy would have led to night confinement, and confinement would have prevented the assault. The judge’s finding of negligence could not be criticised. The separate finding concerning inadequate staffing was not appealed.

• Court of Appeal (Civil Division): [2006] EWCA Civ 1576 — appeal dismissed.
• Nottingham County Court: His Honour Judge Inglis determined a preliminary issue on liability and causation and gave judgment for the respondents on 21 February 2006.