Nadia Whittaker instructed by DAC Beachcroft LLP successfully defends a fatal accident claim in respect of suicide of a patient admitted to the Northumbria Specialist Emergency Care Hospital after an overdose
Appearing via a remote connection before His Honour Judge Freedman, Nadia Whittaker instructed by Rachel Thompson (DAC Beachcroft LLP), successfully defends on liability a claim by a widow and seven dependent children arising from Mr Walsh’s death at the age of 36 years.
This was a tragic case. On 4 February 2017, having absconded from the Defendant’s hospital where he was treated for an overdose, Mr Walsh took his own life by running onto the A189 Spine Road in Northumberland, into the path of oncoming traffic. Prior to his absconsion leading to suicide, Mr Walsh informed those who were looking after him at the hospital that he intended to kill himself and had already absconded once, although was persuaded by two security guards to return to the hospital and did so voluntarily.
It was agreed between the parties that notwithstanding Mr Walsh’s stated intention to kill himself, at the material time, he could not be detained under the Mental Health Act 1983. However, following the first absconsion, the two security guards remained by Mr Walsh’s side as he returned to the hospital and it was not contested that they were ‘keeping an eye’ on him with the aim of preventing him from absconding from the hospital.
When Mr Walsh returned to his room, the security guards stationed themselves at each of the two doors leading to it. A few minutes after he had voluntarily returned to the hospital and his room, Mr Walsh asked one of the security guards to top up his water cup from a nearby cooler. As the security guard stepped away from the door, Mr Walsh ran away again and this time, tragically, the security guards were unable to catch up with him.
Although initially the case was pleaded more widely, following the pre-trial review, the issues for the determination of the Court were agreed between the parties as follows:
- After the deceased voluntarily returned to A&E at 15.39 hrs, what did the security guards do?
- Did the security guards take reasonable care of the deceased in the circumstances, in particular, was it a breach of duty of care on the part of Mr Simmonds [one of the security guards] to start to fetch the deceased a glass of water when asked for one?
- But for any breaches of duty, if established, would the deceased still have left A&E (with the same consequences) at or around the same time in any event?
The Court heard no live evidence due to one of the security guards being deceased and the other one being on long-term sick leave. The hearing proceeded exclusively on the basis of oral submissions. Accordingly, the factual issue of what happened was not controversial.
The question of breach of duty was determinative, although the Court also concluded that causation would not have been satisfied even if breach of duty had been established.
Breach of duty
The judgment deals with both standard of duty and breach in respect of non-clinical staff at the hospital where Mr Walsh was receiving medical treatment.
The Judge made the following observations at  that were key to his decision:
- For the reasons identified by Mr Young, it is plain that, in general terms, there was a risk of the deceased absconding from the hospital.
- Similarly, in general terms, there was a risk that the deceased would, in some way or another, attempt to commit suicide.
- The role of the security guards was to keep watch over the deceased, with a view to keeping him safe within the hospital environment.
- The purpose of each guard standing outside the two doors to the interview room (as was recognised by the security guards themselves) was to ensure, as far as was reasonably practicable, that he did not leave the building.
- The function of the security guards was not, however, to guard or detain him in the conventional sense: it was to take reasonable steps to prevent him from leaving the hospital.
- In the short period immediately prior to the deceased running out of the hospital, there was nothing in his demeanour to suggest that he was contemplating an escape. To the contrary, the evidence suggests that he was calm and cooperative.
- It was both reasonable and appropriate for Mr Simmonds to respond to his request for a refill of water.
- Mr Simmonds had to make a spur of the moment decision as to whether to absent himself from the door for a few moments in order to go to the water cooler.
Ultimately, the Judge focused at  on “whether it can properly be found that Mr Simmonds should have reasonably foreseen that his absence from the door would have been used by the deceased as an opportunity to re-abscond” and held as follows:
- … Of course, there was a risk that, at any given moment when the deceased was not being observed, he might seize upon the opportunity to make good his escape. But that is not the same as saying that there was a foreseeable risk that he would abscond if any opportunity, however brief, presented itself.
- I remind myself that in a case such as this, context is everything. I also remind myself that there is a real risk of importing a degree of artificiality, if a court focuses on a brief moment of time rather than looking at the whole picture. In my judgment, it is too easy to conclude, that with the benefit of hindsight, there were practicable measures which could have been taken to have avoided the deceased being left (partially) unattended for a few moments. I am inclined to agree with Ms Whittaker that what is contended for on behalf of the claimant is a counsel of perfection, informed by the benefit of hindsight. To adopt the words of Green J in Mulholland v Medway NHS Foundation Trust  EWHC 268 (QB) at , the standard of care “must be calibrated in a manner reflecting reality”. (That case was, of course, on very different facts, but the principle is of universal application).
- It can properly be inferred from the actions of Mr Simmonds that he did not consider that there was any or any appreciable risk that the deceased would seek to abscond in the few moments it would take to go to the water cooler and return to the interview room. It is, as I say, easy, retrospectively, to challenge that decision, given how events unfolded. But the critical question is whether, at the particular moment when Mr Simmonds decided to respond to the deceased’s request for a cup of water, he was acting negligently. To come to such a conclusion would, in my view, be to impose an intolerably high burden on a security guard carrying out a difficult task in a hospital setting. Even if it were to be said that it was an error of judgment on the part of Mr Simmonds, that goes nowhere near to amounting to a breach of duty of care.
The Judge’s analysis serves as a reminder of the importance of the issue of forseeability, the proper context in which any individual act or omission are being considered and the fallacy of relying on the benefit of hindsight, which could result in imposition of a standard that would amount to an intolerable burden.
The Judge also rejected the Claimant’s case on causation, holding obiter:
- There is, inevitably, a degree of speculation in addressing the issue of causation. On balance, however, given the deceased’s actions at the time when Mr Simmonds went to the water cooler, there is a legitimate basis for concluding that he was intent upon leaving the hospital, at the first opportunity and taking his own life. Accordingly, and since, as it seems to me, it was highly likely that other opportunities would have arisen for him to leave the hospital during the course of the afternoon of 4 February 2017, before such time as he received medical treatment, question 3 falls to be answered in the affirmative.
Please see here for a copy of the judgment.