Rhodes-Hampton v Worthing & Southlands Hospital NHS Trust

An employer responsible for a hospital recovery system must take reasonable steps to protect staff as well as patients where post-anaesthetic confusion may foreseeably expose staff to injury. A requirement of good practice is relevant, but its breach is not automatically negligence. Cot sides may be kept nearby only if enough staff can safely supervise the patient while they are fetched and fitted; otherwise they should be ready for immediate use. Where an anaesthetist remains responsible for managing the patient, the anaesthetist must respond to a first episode of confusion and violence by making precautionary arrangements, including summoning staff and arranging cot sides where appropriate. An inexperienced midwife was not contributorily negligent for failing to make those decisions. The failure was causative because the precautions would probably have prevented the injury.

The appellant was a midwife employed by the respondent NHS trust. She was injured while attempting to prevent a patient recovering from a general anaesthetic from falling from a bed during a second episode of confusion and violence.

She alleged that the trust had failed to provide a safe system of work, sufficient trained staff and suitable cot sides, and that the anaesthetist had failed to respond appropriately after the first episode. Brighton County Court, HH Judge Simpkiss, rejected the claim on the basis that the accident was unforeseen and unavoidable and that the appellant was responsible for deciding whether to call for assistance or cot sides. The appeal concerned staffing, cot sides, the anaesthetist’s responsibility, causation and contributory negligence.

Lady Justice Smith gave the judgment of the court. Lady Justice Arden and Lord Justice Ward agreed. The appeal was allowed, and the respondent was held liable to compensate the appellant, with the case to be listed before a district judge for directions concerning quantum.

1. Staffing and foreseeable risk. The requirement of good practice for at least two recovery-trained staff was designed primarily for patient safety, but not solely for that purpose. Where post-anaesthetic confusion and violence were foreseeable, it was also foreseeable that staff might be injured while preventing the patient from falling or being harmed. The employer therefore required a system of work reducing that risk to employees to a reasonable level. Trained recovery staff were likely to appreciate and manage the risk better than staff without that training.
2. Effect of good practice. Failure to comply with a requirement of good practice did not necessarily amount to negligence. Considered in isolation, staffing by two members of staff could be acceptable if additional staff were immediately available. The staffing issue, however, had to be assessed together with the availability of cot sides and the anaesthetist’s responsibility for managing the patient.
3. Cot sides. Good practice would ordinarily require cot sides to be fitted and ready to be raised. Keeping them in an adjacent room could nevertheless be acceptable if sufficient staff were present to supervise and control the patient while one person fetched and fitted them. The evidence contemplated approximately four staff at the bedside during an episode of post-anaesthetic confusion.
4. Anaesthetist’s responsibility. The judge had erred by treating the appellant as responsible for deciding whether further staff should be summoned or cot sides fitted. Overall responsibility for managing the patient lay with the anaesthetist. After seeing the first episode of confusion and violence, the anaesthetist should have recognised the risk of recurrence and made precautionary arrangements. That required summoning more staff and arranging for the cot sides to be fetched and fitted. Four to five minutes remained before the second incident.
5. Contributory negligence and causation. The appellant lacked training and experience in recovery from general anaesthesia and was not contributorily negligent. The failure to arrange additional staff and cot sides was causative: those precautions would probably have removed the need for her to protect the patient single-handedly and would probably have avoided her injury.

• Court of Appeal (Civil Division), [2007] EWCA Civ 1202: appeal allowed. The respondent NHS trust was held liable, and the case was listed for directions on the assessment of damages.
• Brighton County Court, HH Judge Simpkiss, 15 November 2006: the appellant’s claim for damages was rejected.