Webley v St George's Hospital NHS Trust & Anor [2014] EWHC 299 (QB)

[2014] EWHC 299 (QB)

Case No HQ12X01616

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/02/2014

Before

MR JUSTICE BEAN

Between

MARK WEBLEYClaimant

[A Protected Party who sues throughClaimant

his Son and Litigation FriendClaimant

KARL WEBLEY]Claimant

(1) ST GEORGE’S HOSPITAL NHS TRUSTFirst Defendant

(2) THE METROPOLITAN POLICESecond Defendant

Charles Cory-Wright QC and Jonathan Richards (instructed by Fentons Solicitors part of Slater and Gordon) for Claimant

Angus McCullough QC (instructed by Bevan Brittan LLP) for First Defendant

Stephen Miller QC and Matthew Flinn (instructed by Directorate of Legal Services, Metropolitan Police) for Second Defendant

Hearing Hearing dates: 27-31 January, 3 and 5 February 2014

Judgment

Mr Justice Bean :

[1]The Claimant is a protected party for the purposes of this litigation, acting through his son and litigation friend, Karl Webley. He brings a claim for damages for the very serious head injuries sustained by him as a result of the alleged negligence of the Defendants, St George’s Hospital NHS Trust (“the Trust”) and the Metropolitan Police (“the police”).

[2]The case came before me for a trial of liability only, pursuant to the Order of Master Roberts dated 7th December 2012.

[3]The Claimant sustained his head injuries outside the Accident and Emergency (“A&E”) Department at St George’s just before 16:30 on 15 April 2010. He had been taken there while en route from Wimbledon police station to Springfield University Hospital, pursuant to being “sectioned” under section 2 of the Mental Health Act 1983 (“the MHA”) as a result of a severe psychiatric disturbance – for which purpose he was, initially at least (until handed over to the Trust at A&E), under escort by the police.

[4]Mr Webley had a pre-existing history of infrequent episodes of highly disturbed behaviour due to, as is now clear, untreated Bipolar Affective Disorder. Between these episodes he was largely symptom-free. In early April 2010 he suffered a deterioration in his mental state.

The events of 14-15 April 2010

[5]On 14th April 2010 the Claimant was involved in a disturbance at his flat. His state of agitation and distress were such that his daughter, Samantha Dean, called the police. What happened next is usefully summarised in part 3 of an investigation report by Acting Detective Inspector Kirstie Masters, compiled in January 2011 for the Metropolitan Police Service Directorate of Professional Standards:

“3.1 On Wednesday 14th April 2010 at 8.45 pm police were called to Flat 2, 27 London Road, Tooting, London, SW17 after a disturbance was reported by Samantha Dean. Ms Dean stated that her father who suffers from mental health issues was having a heated argument with her younger brother Karl Webley. 3.2 PC 110VW Spells and Special Police Constable 5763VW Geary were the first officers to arrive on scene. They arrived at 8.52pm. 3.3 An LAS [London Ambulance Service] crew was initially requested when officers first attended the scene. However, there were no free units able to attend London Road at the time. 3.4 Upon arrival PC Spells and SPC Geary were met by Karl Webley who explained that his father had recently been released from Springfield University Hospital and that he was suffering from mental health issues. The sound of shouting and screaming were heard by officers coming from within the property at London Road. 3.5 PC Spells and SPC Geary entered the communal hallway and saw Mr Webley pacing up and down on the stairs, shouting. As the officers approached, he picked up a wooden chair and lunged at them. 3.6 PC Spells told Mr Webley to put the chair down on a number of occasions. Mr Webley eventually did as he was told and the chair was taken away from him and placed outside the address. 3.7 At 8.57pm PC Spells requested further assistance from colleagues. She also noted what appeared to be blood on Mr Webley’s arms and left toe. 3.8 PC Spells requested a further update as to the expected arrival time of the LAS. 3.9 At approximately 09:05 PC 799VW Way and PC 187VW Meade arrived on scene at London Road, followed by PC 113VW Burgess, SPC 5764VW Manning and PC 251VW Nicolaou who arrived at 09:10. 3.10 Flat 2, 27 London Road occupies the 2nd and 3rd floor of a residential building and there is an estimated 20-30 foot drop from Mark’s bedroom window to the ground floor. 3.11 Karl Webley wished to collect his property from the flat so that he could spend the night elsewhere and requested police assistance. PC Burgess, PC Nicolaou and PC Way escorted him to Flat 2, so as to prevent any further disturbance between himself and his father. 3.12 Once inside the flat officers noted that Mr Webley was extremely agitated and pacing up and down. At one stage he has shouted to Karl “You owe me fucking rent”

. This was followed by Mr Webley removing his right shoe which he held above his head in a threatening manner. 3.13 PC Burgess then removed his handcuffs and asked Mr Webley to calm down or he may face arrest. 3.14 Mr Webley calmed down and retreated to his bedroom and shut the door. A short time later shouting was heard coming from his bedroom. Officers both inside and outside the venue noted that Mr Webley was shouting down into the street whilst stood on the window ledge with the window fully open. 3.15 Officers entered the bedroom and Mr Webley was pulled away from the window ledge by PC Burgess and restrained. 3.16 PC Burgess took hold of Mr Webley’s right arm, PC Way his left arm and SPC Manning assisted by taking hold of his legs to prevent Mr Webley from kicking out. 3.17 Mr Webley continued to struggle and hold his arms behind his legs preventing officers from applying handcuffs. He told officers “if you put those cuffs on me I will become more violent”. 3.18 PC Burgess agreed not to handcuff Mr Webley if he remained calm and compliant. He agreed to this and sat on the floor of his bedroom with officers.”

[6]It seems to have been recognised from the outset by the officers involved that Mr Webley was mentally ill, but as he was not in a public place it was not within the police’s powers to take him into custody pursuant to Section 136 of the MHA. Seven police officers were involved in arresting him on suspicion of affray and restraining him. It is accepted that this was a well-intentioned pretext to ensure his safety and no point is taken by Charles Cory-Wright QC for the Claimant as to the lawfulness of the Claimant’s arrest or of his subsequent detention at Wimbledon Police Station.

[7]Whilst being detained at the police station the Claimant was kept on constant watch. His behaviour was described as obviously disturbed and he made several attempts to leave his cell.

[8]The duty Mental Health Assessment Team [‘the MH Team’] saw Mr Webley at around 13:00 on 15th April 2010. The specialist doctors involved recorded their joint medical opinion in the following terms:

“At interview he is markedly disturbed. He is agitated and regressed in behaviour, throwing himself at our feet, sucking his little finger in a child like manner, distracted, covering his eyes, hyperactive, pressured in speech with flight of ideas and difficult to interpret. He appears markedly distressed and admits to such as well as poor sleep. He is clearly mentally disordered, unstable and unpredictable with bizarre and risky behaviour. There is no safe alternative to hospital inpatient care but he cannot demonstrate capacity to consent to voluntary admission at present.”

[9]The MH Team considered the Claimant to be a risk to himself and possibly others and in need of compulsory hospital admission. He was made subject to section 2 of the MHA for the purpose of admission to Jupiter Ward at Springfield University Hospital (‘Springfield’), which was the designated hospital in that area of South London for psychiatric admissions under section 2.

[10]The Approved Mental Health Practitioner [‘AMHP’] involved, Ms Theresia Goodger, was unable to escort the Claimant to Springfield due to other professional commitments; she told me that it would have been quite normal for her to have done so. She delegated this responsibility to the police. An ambulance was summoned to take Mr Webley to Springfield. PCs Thoms and Collinson were assigned the task of escorting him.

[11]At 13:25 Mr Webley was escorted from the custody suite towards an ambulance waiting in the rear yard. He was not handcuffed. On leaving the building he ran away from his escort and covered about 20 yards before being detained. He was then handcuffed and placed in the ambulance.

[12]When the ambulance arrived outside Springfield Mr Webley suffered a fit. After PC Thoms had consulted with staff on Jupiter Ward in person and with PS Day by radio, the Claimant was taken to A&E at St George’s.

[13]The ambulance arrived at A&E at around 14.30 hours. Initial triage was performed by Sister Banting, the senior nurse on clinical duties within the ‘Majors’ section of A&E. Her notes written at 1439 record:

“Arrested by police yesterday, sectioned today. On route to Springfield, tonic/clonic seizure. Not post-ictal. Alert and orientated.”

Mr Webley was given a triage category of ‘4 Green’ in accordance with his physical status; this meant that he should be assessed by a doctor within one to two hours. A later note by Sister Banting, probably written at or shortly before the time of the Claimant’s accident, includes the phrase “High risk patient, likely to abscond.”

[14]Mr Webley was then placed in Cubicle 9 within the ‘Majors’ section of A&E. Cubicle 9 was the room designated by the Trust for accommodating potentially disturbed or dangerous patients within A&E and had two doors. One (“the main door”) gave access to the nursing station and opened outwards. The other (“the side door”) gave access to a corridor and opened inwards. Neither door was capable of being locked. At the relevant time there appears to have been a sofa and three chairs within Cubicle 9.

[15]The narrative so far is essentially uncontroversial. My task in finding facts in relation to the two hours leading up to the Claimant’s accident is made somewhat easier, and the interests of justice have certainly been assisted, by the discovery just before the trial of CCTV footage of some of the relevant events in the A&E Department. They demonstrate vividly a phenomenon well known in personal injury litigation: that after an unexpected accident even honest witnesses often have inaccurate recollections of what took place before the moment of the disaster.

The CCTV footage

[16]The CCTV footage begins at 14:30 showing Sister Banting on duty at the nursing station in the middle of A&E. The main door of Cubicle 9 can be seen at the far end of the nursing station. At 14:40 LAS staff who had brought Mr Webley to St George’s apparently begin a handover process with Sister Banting and a few minutes later PC Collinson can be seen in front of Sister Banting’s desk. Just after 14:45 the Claimant is escorted by the two police officers along the right side of the nursing station with PC Collinson in front of him and PC Thoms behind him. The three of them enter Cubicle 9 with the door left ajar. During the next few minutes first PC Thoms leaves Cubicle 9 briefly with PC Collinson remaining with the patient, then the other way around. A psychiatric nurse (Emily Cooper, who did not give evidence in this case) enters Cubicle 9, then leaves A&E seven minutes later. The CCTV camera is not trained on Cubicle 9 continuously. At 14:59 both police officers leave A&E through the double doors at the main exit. At 15:01 the camera zooms up to the window of Cubicle 9 where the light has been turned off. A security guard then called Donovan Taylor, who since 2010 has changed his name to Lloyd Murcott (“Mr Murcott”), is seen outside the room and sits down facing the main door into it at 15:03.

[17]At 15:08 another security guard, Eugene Cole, arrives and looks through the window of Cubicle 9. He sits down in the chair previously occupied by Mr Murcott and the two men are seen talking. A few seconds later the Claimant opens the door of Cubicle 9 and stands in the doorway, apparently unnoticed by Mr Murcott or Mr Cole, but does not attempt to leave. A nurse, together with the two security officers, persuades the Claimant to go back into Cubicle 9 and the door is closed. Mr Murcott goes to fetch a cup of water and takes it into Cubicle 9, which is still dark. Mr Murcott comes out of the room and rejoins Mr Cole who is sitting in his chair a few feet from the main door into Cubicle 9. The two men talk for a minute or so, then Mr Murcott leaves at 15:13.

[18]In the next 20 minutes Mr Cole moves around a little; from 15:28 he is sitting in his chair facing Cubicle 9 until 15:33 when the camera angle changes and for nearly an hour is not trained on Cubicle 9.

[19]At 16:24 the camera picks up Mr Cole and Mr Webley on the left side of the A&E department. Mr Webley is holding a cup of water and what seems to be a plastic bag containing personal belongings. Mr Murcott arrives at 16:25 and joins Mr Cole and Mr Webley at the water fountain. Mr Webley then walks towards the main exit from A&E. The two security guards go with him and at the exit Mr Cole moves to block the Claimant’s path. Following a discussion by the exit he is escorted back towards Cubicle 9 with Mr Murcott in front of him and Mr Cole behind him. As this procession moves towards Cubicle 9 Mr Murcott is seen to put on plastic gloves. There is a pause with apparent further discussion shortly before the men reach Cubicle 9: again Mr Cole blocks a possible move by Mr Webley back towards the main exit. The three men enter the room in the order Murcott/Webley/Cole and at 16:27:41 the main door into Cubicle 9 (which opens outwards into the nursing station) is closed behind them. At about 16.28:45 the Claimant leaves Cubicle 9 by the side door, turns right and runs through the A&E department with the two security staff in pursuit.

[20]There is no dispute about what happened after this, although it is not recorded on CCTV: the Claimant ran out through the ambulance doors and across the ambulance roadway to the top of a ramp before climbing over low railings onto a ledge, then falling down a drop of some 15 feet. In addition to various fractures and internal injuries he sustained a serious head injury. He has since required secure hospital accommodation and is presently subject to an order pursuant to Section 3 of the MHA.

[21]At the joint request of the parties I conducted a view of the A&E Department on the second morning of the trial, in particular of Cubicle 9, and the ramp outside with the ledge from which the Claimant fell.

The streamlined case put at the end of the evidence

[22]The allegations of negligence as originally pleaded were many and various but (as often happens) by the end of the trial they were reduced to a relatively compact list. The Claimant’s case against the police is that they failed to pass on to the Trust’s staff information about the Claimant’s volatile behaviour in the previous 24 hours, in particular (but not limited to) the fact that he had attempted to escape in the police station yard; and that this failure led to the A&E security staff being insufficiently alert to the risk of the claimant escaping from Cubicle 9. As against the Trust, Mr Cory-Wright summarises his case as follows a) “Policy and training as to the use of Cubicle 9; there was neither any policy, written or otherwise, nor any training or guidance for the Security Guards, written or otherwise, for the management of disturbed patients in cubicle 9. b) Risk assessment as to the use of Cubicle 9: No risk assessment had been made as to the management of disturbed patients in cubicle 9, either by D1 generally or by the clinical staff on duty in relation to C as an individual. c) The actions of the security staff: The security staff, having correctly and competently shepherded C back into cubicle 9, were either unaware or paid no heed to the (obvious, even without hindsight) danger inherent in then leaving C with unhindered access to the side door. As such they lost the advantages of having two security guards to do the supervision.”

[23]Neither Defendant has blamed the other on the pleadings nor made any claim for apportionment.

Statements taken before the CCTV footage came to light

[24]The first witness from whom a statement was taken was Mr Murcott, who was interviewed at 20:45 on the day of the accident, that is to say some four hours after it happened. He said:

“I was at work today at about 14:50 hours when I was contacted over my personal radio to come to the A and E department to relieve some Police Officers who had brought in a patient. I came to the department and I headed straight to cubicle 9 where we normally hold patients. The patient was laying down on the sofa there and was calm and placid. This was the first time I had seen this man. I would describing him as a white male approx 40 years old. He was about F5 9 tall and was wearing black plimsoll shoes, blue jeans and a blue t-shirt. I asked the officers to tell me a brief history of this male’s situation. They told me his name was Mark and that he had been sectioned and was on his way to Springfield Hospital, Tooting SW17 when he had a seizure so he was therefore brought here. Once they told me this they left the room with the patient and myself inside and that was the last that I saw them. I then turned to Mark and said “would you like me to turn out the light for you until the Doctor arrives?”

I asked him this as he was laying on the sofa and I wanted to make him more comfortable. He said “yes please” and I turned the lights off and stood outside the room. As I waited outside of the room for the Doctor my colleague Mr Eugene Cole came to see me as he knew I was there. I explained to Mr Cole all that I knew about the situation and left him there to replace me so I could get some food. I was gone for about 30-40 minutes and was on my way back when I got a call on my radio from Mr Cole. He was calling me to take over from him as he had things to do. When I arrived back at cubicle 9 I spoke with Mr Cole for about 10 minutes. As were talking Mark had got up from the sofa and come to the door. He asked to leave. He was getting a little bit worked up. I told him to sit back down and managed to convince him to do so. Moments later, probably 10 seconds or so, Mark springs up from the sofa. I could see him through the glass in the door. He started to move quickly towards the door where we were standing but then he seemed to change his mind and he headed towards the other door to that room. He grabs that door and opens it inwards and starts to leave the room. The door that we were stood by opens outwards onto the ward. I opened it and started to enter the room but, by this point Mark was pretty much out of the room via the other door. I then stepped backwards and tried to go round to cut him off but he was so fast that he had already run down half of the A and E corridor. Mark continued to run away from me. He ran to the end of the desk and turned right towards the doors. As I ran after him I called his name several times but he ignored me. He then left at the first set of double doors and kicked them open with both feet. This caused him to fall onto his back on the floor. Before I could reach him he leapt up and ran to the next set of double doors which opened automatically as did the third set. Once outside of the building he turned towards his right and ran down to the ramp which lead[s] to the base of the Atkinson Morley wing.” [emphasis added]

[25]I observe at this stage that this statement makes no reference to the Claimant’s walk to the main exit door at 16:25, only three minutes before he absconded; and that it is incorrect in saying that the security officers were outside Cubicle 9 watching the Claimant through a glass door or window when he escaped from the room. Mr Murcott was interviewed by police at 00:20: the interview does not take the matter further. Mr Cole, unfortunately, was apparently not interviewed and first made a statement to a Trust internal investigation nearly two months later.

[26]PCs Thoms and Collinson could not, of course, give any assistance on events at St George’s after their departure at 3 pm; but the next day each of them was asked to make a written statement as to what had happened earlier. On the important topic of what was said by the officers to A&E or security staff PC Thoms wrote:

“Hospital staff were informed that myself and PC Collinson would be leaving once security had been arranged. At roughly 1500 hours a member of hospital security arrived and introduced himself to Mr Webley. Myself and PC Collinson informed the security staff that Mr Webley was under section and had previously attempted to escape. The member of security was informed that Mr Webley was now under the care of the hospital.”

[27]PC Collinson wrote that after he and PC Thoms had taken Mr Webley to a cubicle where they sat with him for about 15 minutes “a security guard appeared. I then briefed [him] and told him why he was brought to hospital and the events leading up to it.”

[28]Sister Banting, in a written statement also made the day after the accident, wrote:

“I was coordinating majors when Mr Webley came into the department escorted by two police officers and two LAS crew. It was explained to me that he had been arrested last night and spent the night in the police station; he had then been sectioned whilst he was in police custody and an ambulance had been called to escort him to Springfield. On arrival to Springfield he was witnessed to have a tonic clonic seizure. So the ambulance had been diverted to St George’s A&E so Mr Webley could be medically cleared before being transferred back to Springfield as an in patient. The police informed me that Mr Webley was no longer under arrest so it was not required for them to remain present. I explained that this was a busy A&E department and this patient was high risk and under section. They said that they had already contacted security and they would not leave Mr Webley until they had handed over to security. They handed over to security and security were present in the department. Mr Webley was [in] room 9 of the Majors area. I went into Mr Webley whilst one of the nurses was performing a set of observations and spoke with him briefly. Has I came out I reiterated to the security men that he needed to be closely watched. I then went on the 15:30 pm ward round with Dr Hempling and Dr Chalkley and I spoke about Mr Webley and asked if a Dr could possibly see him sooner rather than later so we could medically clear him and transfer him back to Springfield hospital. I pulled out his notes and we established that he was on a section 2. I then sat at the majors desk and continued to coordinate majors. Just after 16 pm [sic] Mr Webley came running past the desk and ran out of the ambulance doors, closely flanked by two security men. A few minutes later Acting Matron Kirsty Vince came in and asked for me to tannoy for an A&E Consultant immediately which I did, then Dr Chalkley and Kirsty Vince went out to the ambulance bay.”

[29]The Trust carried out a Serious Untoward Incident (SUI) investigation. One of those who made a statement for the purposes of that investigation was Mr Cole, who did so on 9 June 2010. He wrote:

“I Eugene Cole work as a security at St George’s Hospital. I have been work for 7 yrs. On Thursday 15/4/10 I was asked by control to give S/O Taylor a break from A&E on my arrival. S/O Taylor brief me that necessary information of the patient in room 9, Mr Mark Webley. I assess the situation of the patient who was very stable and calm. He came to the door and ask me if I could get him some water, which I did. He finish drinking the water, sat back down on sofa calm for a very long time before S/O Taylor arrive to assist. At this point the patient started asking when he going to be seen by a doctor. I ask one of the nurse that took his BP. She told me she has forward his notes. I pass on the message to Mr Mark Webley who was still calm and cooperative up till this point. Mr Mark Webley started asking again when are the doctors going to see him, then got up calmly, sat down, got up, sat down again, then eventually run out of the side door of room 9 to the open space, and run outside the main door very very fast. We went after him to prevent him leaving and also hurting himself. He run so fast towards the ramp next to A+E and jumped over the rail. We then ask the nurse who run out the department to put a crash, the crash team arrived alone with paramedic who attend to Mr Mark Webley, then taken to resus for further investigation. At the time of incident there were adequate staffing and reasonable amount of patient during the time every thing occur.”

[30]The Trust’s SUI investigation resulted in an internal report. This contains a number of recommendations which have not been implemented on issues which are no longer pursued as allegations of negligence: by way of example, the writer recommended that high fencing or netting should be installed at the location where Mr Webley suffered his fall. There is also a suggestion that both doors of Cubicle 9 should be made lockable from the outside and in cases of significant risk of absconding the side door should be locked. By the end of the trial neither of these formed part of the Claimant’s case as to what should have been done before the accident.

[31]I was, however, struck by the following passage in the SUI Report:- “Staff (security guards and others) charged with watching patients to prevent them absconding need to maintain a high level of vigilance, avoid distractions, and remain physically near the patient at all times. Formal training of Trust security staff in safe restraint should be considered. While in the A&E Dept, the security staff need to be aware that they are answerable to the senior nurses and doctors within the department and the nursing and medical staff need to ensure that they give clear direction to security staff about what level of vigilance is appropriate, and that lapses in vigilance are not accepted or ignored. The strategy of managing psychiatric patients at risk of absconding by observing them and only intervening once an attempt to abscond is underway appears to have an intrinsic risk of failure, even with a high level of vigilance.”

Evidence of fact given at the trial

[32]For the most part the witness statements taken for the purposes of this trial were made in early 2013, nearly three years after the accident, although some contemporaneous statements were exhibited, particularly from the police witnesses. Mr Murcott, in a statement signed on 27th February 2013, describes how he left Mr Cole observing the Claimant and went for a lunch break. He was on his way back when he got a call on his radio from Mr Cole asking Mr Murcott to return and take over. His witness statement continued:- “I spoke to Mr Cole for about 10-15 minutes and as we were talking, the Claimant got up from the sofa and came to the door and asked to leave. He was getting a bit worked up. We were blocking the main door with our bodies and spoke very softly to the Claimant. I told him to sit back down on the sofa and I managed to convince him to do so. We attempted to calm him by saying “no no no, you want to stay … the doctor is going to see you shortly, everything will be alright” and similar things, by which time I noted he was starting to get slightly more agitated, but not aggressive. He went and sat on the sofa a few steps away from where we were. Moments later, at about 4.25pm, the Claimant sprung up from the sofa. We were standing near the doorway of the room. He started to move quickly towards the door where we were standing but then he seemed to change his mind and he headed towards the other door to that room. He grabbed the door and opened it inwards and started to leave the room. The door that we were stood by opens outwards onto the ward and it was partially ajar. I opened it more fully and started to enter the room. I was in two minds as to whether to go after him through the room, follow him through the door but I thought no, I should head him off and so I stepped backwards and tried to go round to cut him off but he was so fast that he had already run down half of the A&E corridor.”

[33]After viewing the CCTV footage Mr Murcott made a further witness statement accepting firstly that all his previous statements omit the walk to the exit doors at 16:25; and that what happened at 16:27 is that all three men went into Cubicle 9, whereupon he stood inside the main door with Mr Cole on his right.

[34]In cross-examination by Stephen Miller QC for the police Mr Murcott accepted, on reflection, that he probably was told about the Claimant’s repeated attempts to escape. As to Mr Webley’s behaviour in the crucial minute after the return to Cubicle 9, he said:

“Mr Webley went towards the sofa, sat down, then stood up and asked ‘when will I be seen?’ Mr Cole said ‘it shouldn’t be long now’. Two or three times he sat down and got up again. The third time he got up, made as if to come towards us, turned, opened the side door and went out, all in a split second. I hadn’t expected that.”

[35]In cross-examination by Mr Cory-Wright he said that “the Cubicle 9 situation is always potentially volatile – you never know which way it’s going to go”.

[36]Mr Cole gave evidence that he had not been told at all that Mr Webley was unpredictable in his behaviour. If he had been told about the escape attempt he would have asked the hospital control centre to request the police to stay, or to return if they had already left. He said that he had done that several times before with difficult patients brought in by the police and in those circumstances the police do comply with the request. At the end of his cross-examination he said:- “It did not occur to me that he would try to go out of the side door. If it had occurred to me that he might try to go out of the side door, I would have blocked it within the room. Definitely.”

Expert evidence

[37]Each of the three parties called one psychiatrist and one current or former A&E consultant to give evidence. This was appropriate when the pleaded allegations of negligence were put very widely and included, for example, an allegation that the triage categorisation of the Claimant was inappropriate. But with the Claimant’s case as streamlined as it was by the end of the trial. I derived only limited assistance from the six experts’ evidence.

[38]Dr Campbell-Hewson, instructed by the Trust’s solicitors, wrote this of the allegation that the security staff failed to take proper steps to cover the side door of Cubicle 9:- “The security staff were apparently within a few feet of Mr Webley when he started his attempt to escape. This appears a reasonable position to adopt. The precise technique would be most appropriately addressed by a expert in security process and training. This is not a matter than an Emergency Department practitioner would usually offer an opinion on as noted in the Emergency Medicine joint statement. We agreed that the positioning and proximity was a matter of judgment for the security personnel facing the individual patient.”

[39]Turning to the consultant psychiatrists, Dr Nora Turjanski, called on behalf of the Trust, noted that:- “When patients with mental illness and agitated behaviour are received in A&E it is often difficult to strike the right balance between restricting the patient’s freedom of movement, which may increase distress and violence, and supervising in a less restrictive manner whilst using verbal and body language techniques to de-escalate potential crisis. The emphasis should be on de-escalation as much as possible, as the length of time patients are required to remain in A&E is often unpredictable. Physical restraint can only be used for a short period of time to protect patients and staff. … There may be a range of opinions regarding how the security should have been positioned after the Claimant appeared more restless…..[I]f two security officers would have been placed, one on each door of Cubicle 9, [he] would have been less likely to abscond. However, a security officer standing at each door could potentially escalate agitated behaviour.”

[40]She wrote that “within arm’s length observation is very intrusive and can be distressing to patients and stressful for staff. This level of observation is generally used when a patient is assessed as being an immediate danger to himself/herself or others.”

The law

[41]The law in this case is uncomplicated and uncontroversial. For the police Mr Miller accepts that his clients owed a common law duty of care to the Claimant. This involved a duty to take reasonable steps to ensure that he did not come to physical harm while in their custody; a duty to take reasonable care only to release him into a safe environment; and a duty to provide relevant information to those into whose care he was transferred.

[42]On behalf of the Trust, Mr McCullough submitted that any allegations against medical or nursing staff in respect of their treatment of the Claimant must be subjected to the well known test in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 582

, approved by the House of Lords in Sidaway v Governors of Bethlem Hospital

[1985] AC 871

, that:- “A doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctor adopt a different practice.” Mr McCullough accepts that the Bolam test is inapplicable to the specific acts of the hospital’s security personnel. He submits, however, that it does apply to decisions about the training of such personnel and policy decisions made by the hospital authorities. Mr Cory-Wright disagrees. I regard it as unnecessary to resolve this interesting point since in my view the case turns on what was said to and done by Mr Murcott and Mr Cole on the day, rather than on what training they had received previously. Issue of fact: information about the Claimant’s escape attempt and other volatile behaviour on 14-15 April 2010

[43]The first issue which I have to decide is what information was given by the police to staff at A&E about the Claimant’s volatile behaviour over the previous 24 hours, in particular the escape attempt in the police station yard; to whom it was given; and whether it reached(a) Mr Murcott

(b) Mr Cole.

[44]I find that the police (or the LAS crew who had come with them) told Sister Banting that the Claimant was a high risk patient who was likely to abscond and they would not leave him until they had handed him over to security staff. Both these observations are to be found in contemporaneous documents: the first in Sister Banting’s nursing notes made that afternoon and the second in her statement made the next day. I am not satisfied on the balance of probabilities that she was told specifically that Mr Webley had tried to escape from the police yard: she made no note of such a remark and it is more likely to have been a factor they would wish to discuss with the security staff. There is no evidence that Sister Banting was told about the incident at Mr Webley’s home the previous day.

[45]I find that PC Collinson in the presence of PC Thoms, told Mr Murcott that the Claimant had previously tried to escape while in police custody. This is clearly stated in PC Thoms’ written statement made the day after the accident. I am not satisfied that they also said that he had made repeated attempts to leave his cell, but I do not regard that as a material omission given that they did say he had tried to escape. Again, there is no evidence that they told Mr Murcott anything about the incident at the Claimant’s home.

[46]It is not suggested that police spoke to Mr Cole, since he arrived on the scene a few minutes after they left, nor that he was briefed about the previous escape attempt or events at Mr Webley’s home whether by Mr Murcott, Sister Banting or anyone else.

Liability of the police

[47]In closing Mr Cory-Wright accepted that his case against the police turns on whether full and proper information about Mr Webley’s behaviour, in so far as relevant to the risk of absconding, was given to the staff in A&E. In my judgment the critical points were that he had been sectioned, that he had tried to escape while in police custody, and that there was a high risk of him absconding. The police did pass on this information, and accordingly I dismiss the claim against the Second Defendants.

The actions of the two security guards

[48]Mr Murcott had been given the information about the previous escape attempt and the high risk of absconding but its significance does not seem to have sunk in, since he was content to go for his lunch break at 15:15 leaving Mr Cole to cope on his own for over an hour. In the early period when the CCTV shows the scene outside Cubicle 9 Mr Cole is shown as being far from alert and vigilant: at times he is not even facing Cubicle 9. He was asked how he would have known if Mr Webley had slipped out of the side door during this period, and said that since Cubicle 9 was dark he would have noticed the light in the corridor beyond the door as it was opened. If he had been told that this was a high risk patient who was likely to abscond if given the chance and who had already earlier that day tried to escape from the police, one hopes he would not – and certainly should not - have been so relaxed.

[49]It is useful to consider the information about Mr Webley available to the two security guards when they entered Cubicle 9 with the Claimant at 16:27. Both Mr Murcott and Mr Cole knew that Mr Webley was a patient who had been brought in by the police and had been placed in Cubicle 9 because of his mental illness. Both of them had just been involved in the brief episode when the Claimant walked towards the main exit door and had to be shepherded back to Cubicle 9 by the two of them. Mr Murcott knew that the Claimant had made an attempt to escape from the custody of the police; and also knew that there might be trouble ahead, as demonstrated by the fact that he had just put his plastic gloves on.

[50]Turning to Mr Cole, I accept his evidence that when he followed Mr Murcott and Mr Webley into Cubicle 9 at 16:27 and stood next to Mr Murcott with his back to the main door it did not occur to him that the Claimant might bolt through the side door. The reason why it did not occur to him is that he had not been properly briefed by Mr Murcott, who failed to pass on what he had just been told by the police.

Liability of the Trust

[51]In his closing submissions Mr McCullough wrote:

“in the absence of any evidence to the contrary, it is accepted that it is likely that both guards were probably inside cubicle 9, both standing just inside the ‘main’ door. The key issue is whether to position themselves in that way, during the period of a minute between entering the room and C’s run, constituted a failure to take reasonable care for C’s safety. Without the benefit of hindsight, should the guards have anticipated that he might bolt for the ‘side’ door and one of them taken steps to block it?”

[52]I agree with this formulation of the critical issue and question, including the emphasis on looking at the issue without the benefit of hindsight.

[53]In answer Mr McCullough listed 14 points, which he described as the range of matters to be taken into account in dealing with the Claimant in such circumstances. I set them out below (occasionally abbreviated) in italics followed by my observations in ordinary type.(1) Insecure environment: A&E is an insecure environment. Unlike a police station or secure mental facility, its doors cannot be secured. Restraint of patients minded to leave has to depend on security staff operating in an inherently insecure environment. I accept this: but it means that security staff dealing with patients likely to abscond have to be especially vigilant.

(2) Principle of minimal restraint: In dealing with C (or any disturbed patient) both the law and their training requires security staff to adopt the minimum restraint necessary. Necessarily there is a tension between this imperative, and the requirement to prevent the patient from leaving. As already indicated, I agree. But the requirement to prevent the patient from leaving is the more important of the two.

(3) Extended supervision of uncertain duration: In practice the security staff had already been supervising C for nearly 1½ hours (about 3pm to nearly 4.30pm) at the point at which he had run. During most of that period he had essentially been passive and docile. Nevertheless, there was the prospect of having to manage him for a period of several further hours, which had to be borne in mind in dealing with the restlessness that had become apparent by about 16:24. Any short-term steps that could agitate C, pursuant to an aim of preventing any possibility of escape, would have to be balanced against the compromise of the longer term safe supervision of C with minimal restraint. I accept Mr Murcott’s evidence that the Claimant had got up and sat down again twice before bolting for the door. That being the case, he was already visibly agitated. I do not accept that for one of the two security guards to have sat down in the chair nearest the side door of Cubicle 9, or alternatively to have stood outside the side door, would have been likely to “agitate” the Claimant to a greater extent than having two of them standing side by side looming over him just inside the main door, or any more than he was already.

(4) Initial response to change: There is no indication of C becoming restless until the period when the CCTV re-starts at 16:24. At that point, EC takes appropriate measures by calling for assistance: LM arrives promptly thereafter. There is no record of when Mr Cole made his phone call to Mr Murcott: it must have been before 16:24, though probably not much before. But it is a reconstruction long after the event to say that the purpose of the phone call was to ask for reinforcement. Mr Murcott, in his statement at 20:45 on the day of the accident, wrote that Mr Cole had phoned to ask him to return to “take over as he (Cole) had things to do”. In any event the short time Mr Murcott took to arrive in response to the phone call is not the subject of criticism.

(5) Skilled response to restlessness: The restless period that started at about 16:24 was managed by the security officers with skill and sensitivity. The CCTV footage shows unimpeachable techniques in handling C, demonstrating both minimal restraint, active calming engagement, as well as effective confinement in response to inclination to leave, all in line with the training they had received. It is submitted that of itself this tends to indicate, unless shown to the contrary, that their subsequent management would have been reasonable. I agree with Mr McCullough’s description of the two guards’ handling of the Claimant’s walk to the exit doors as unimpeachable. But it does not follow from this that what they did on their return to Cubicle 9 was unimpeachable. The walk to the exit, added to what Mr Murcott had been told about the attempted escape at the police station, should have put them on high alert.

(6) Anticipatory steps: Furthermore, the CCTV shows preparation for a potential escalation, with LM putting on his gloves in anticipation of the possibility of more active intervention being required. I agree; but this is not in my view a point in the Trust’s favour in judging what happened next.

(7) C’s expressed concern: The consistent evidence is that C’s expressed concern in the final minutes before he bolted was as to when he was going to be seen by a doctor. That shows understandable impatience, but not of itself a desire to leave. The officers were entitled to have that in mind (and LM indicated he expressly did so) in assessing the risk and approach to his further management. I cannot accept Mr Murcott’s evidence, given for the first time nearly four years after the accident, that he had in mind that the Claimant’s wish was to see a doctor rather than to leave without seeing one. Indeed, as noted above, his first statement described the Claimant getting up from the sofa and asking to leave.

(8) Confined environment: In the minute that the three men were in the room, together with the furnishings (a sofa and 3 armchairs), none can have been very far from the other……[B]oth security officers would necessarily have been very close to C (“arm’s length” as Dr Caplan described it in oral evidence) and the side door. Positioned as they were, Mr Murcott and Mr Cole were at more than arm’s length from the Claimant, and did not react quickly enough to catch him when he escaped. Mr Murcott’s answers to Mr Miller in cross-examination suggest that Mr Webley stood up and sat down twice before standing up a third time and bolting from the room.

(9) Risk of escalation: Dr Turjanski, with whom Dr Caplan in oral evidence expressly agreed in this respect, has given important evidence of the considerations in practice of the management of disturbed patients…... - The difficulty of striking the balance between restricting the patient’s movement (with a risk of increasing distress and violence) and “supervising in a less restrictive manner whilst using verbal and body language techniques to de-escalate potential crisis” is highlighted. See (2) above. - The emphasis should be on de-escalation as much as possible, as the length of time patients are required to remain in A&E is often unpredictable”. See (3) above. - Physical restraint can only be used for a short period of time to protect patients and staff. I agree. - There may be a range of opinions as to how the security staff should have been positioned after C became more restless. Mr McCullough, as I have already noted, accepted that the Bolam test is inapplicable to the acts or omissions of the security guards at the critical moment. - While a security officer at each door would reduce the risk of absconding, it could potentially escalate agitated behaviour that at the time was successfully being managed by techniques of passive engagement. See (3), (5) and (8) above.

(10) No prior sudden move: In the 1½ hours that he had been under the security guards’ supervision, including since he became restless, C had not made any sudden movement or attempt to bolt. By contrast, in the previous minutes he had shown an inclination to leave by ‘testing’ that had been successfully managed using de-escalation techniques. Whilst of course there remained a risk of such a sudden move (with or without knowledge of what had happened in the police yard) his immediately prior behaviour was relevant to the management of any immediate risk as at the time that C was within the confines of cubicle 9 accompanied by two security officers. Again, see (3), (5) and (8) above.

(11) C’s dislike of confinement: It had emerged during the period in police custody that C had stated that he did not like confined spaces, which had led to his cell door being left open. This is a further indication that to have a man physically blocking both (closed) doors would have risked escalating his agitation, with difficulties for his longer term safe management in A&E. There is no evidence that either Mr Murcott or Mr Cole was informed of the Claimant’s expressed dislike of confined spaces.

(12) The range of risks: A sectioned patient presents a range of risks; potentially to himself (and as noted by LM, C had visible signs of self-harm); to others, including those supervising him; to property; and of absconding, Absconding was only one of those risks. Even if the risk of absconding materialised, providing C was not lost in the community, the likelihood would be that he could be caught and persuaded to return. The other risks could potentially result in more immediate harm. The security guards were entitled to manage C with regard to the range of these risks, even recognising (from his previous behaviour, whether or not they were given detail of his behaviour at the police station) that there was a particular risk of absconding. Generally, C was ‘high risk’, and absconding was only one of those risks…… If Mr Webley absconded there was an obvious risk that he would come to harm, either by self-harm or by accident (for example, by running in front of a vehicle), before he was apprehended. I do not agree that the countervailing risk of greater agitation resulting from oppressively close supervision had the potential for more immediate harm.

(13) The escape in the police yard: C had shown himself able to evade the police officers guarding him, when those officers had immediate experience of his inclinations to leave from having guarded him during his time in the cell. That this happened in an enclosed area meant that C did not get very far, but nonetheless, the difficulties of any captor anticipating and preventing a sudden rush are demonstrated, without implementing physical restraint (such as a locked room or handcuffing) – even when known from their immediate experience that he was at risk of absconding. Of course this is correct. But the duty of the Trust, acting through Mr Murcott and Mr Cole, was to take reasonable steps to prevent an escape.

(14) Sitting prevents rapid response In Dr Turjanski’s evidence, by cross-examination on behalf of C, it was suggested for the first time that the risk of escalating agitation by blocking the door opposite the sofa on which C was sitting could have been dealt with by the second guard sitting in the chair just beyond the side door. That was not put to either guard. It would seem common sense that a guard would be less able to respond rapidly to an unexpected event (which could have been any of a range of dangerous behaviours, not just absconding) if sitting. The suggestion that putting a leg out from that seated position could have prevented the escape is informed by hindsight, taking into account only the actual risk that materialised (bolting from the side door) rather than the range of other risks which C presented and the security officers required to have in mind. Given the Claimant’s state of agitation, the two security guards should have covered the two doors. The side door could have been covered by one of them standing outside that door, standing inside it or sitting in the chair just inside it. Any of these three alternatives would have been highly likely to have prevented an escape.

[54]Mr Cory-Wright did not suggest, and I do not find, that it was necessary for either or both of the security guards to take hold of the Claimant. I accept what Dr Turjanski told me about the desirability of allowing psychiatric patients not to feel crowded and of a policy of minimal restraint. But the desirability of minimal restraint had to be balanced against the risk of an escape. Mr Webley should have been guarded, and not simply observed, by two security guards both of whom had been properly briefed about the risks and both of whom were on the alert for a sudden move by the patient. Having both guards standing side by side inside the main door meant that one of them was in effect wasted.

[55]I regard it as significant that Mr Murcott in his first statement made four hours after the accident, reconstructed the events of the crucial minute so as to have himself and Mr Cole observing Mr Webley through the glass door or window at the moment when he got up and bolted through the side door of Cubicle 9. The CCTV shows that Mr Murcott was wrong about where he and Mr Cole were positioned, but his first statement reinforces the view that he and Mr Cole were observing Mr Webley rather than actively guarding him.

[56]For the reasons I have given in response to Mr McCullough’s list of points I find that the Trust, in the persons of Mr Murcott and Mr Cole, failed to take reasonable steps to ensure the safety of the Claimant; and that this failure caused him to suffer injury. It is rightly not suggested that there can be any question of contributory fault on his part. There must be judgment for the Claimant against the Trust for damages to be assessed.