The judgment will be of particular interest to Trusts who find that their A&E departments are increasingly acting as a safety net for people attending with mental health problems.

Summary of the facts

On 4 February 2017, the deceased, Mr Walsh, attended A&E at Northumbria Specialist Emergency Care Hospital (NSECH) having taken an overdose of paracetamol. He did not have a history of mental illness and he was not known to services. Unfortunately the A&E department was exceptionally busy and Mr Walsh had a lengthy wait to be seen. He was assessed and commenced an infusion for treatment of his overdose, with an intended plan to be assessed by the on-site Psychiatric Liaison Team (PLT) once his medical treatment was complete.

Mr Walsh’s mental state rapidly deteriorated shortly after he commenced treatment and he left the hospital, running towards a nearby dual carriageway and expressing an intention to kill himself. He was pursued by Hospital security guards and persuaded to return. It was accepted that he was not-detainable under the Mental Health Act at that time.

The two security guards accompanied Mr Walsh back to the room where he was receiving treatment. The room had two doors and the security guards positioned themselves outside of each door. It was accepted that they were “keeping an eye” on Mr Walsh.

Within a few minutes of returning to the room, Mr Walsh requested one of the security guards to fill up his cup of water from a nearby cooler. The security guard acceded to Mr Walsh’s reasonable request but as soon as he took a few steps, Mr Walsh took to opportunity to run away again. On this occasion, tragically, Mr Walsh ran into the road and was hit by a car, sustaining fatal injuries.

The Judgment

The claim proceeded by way of a one-day remote Trial. As is often the case, the allegations pursued by the Claimant were significantly narrowed by the time this case reached Trial. The Claimant initially sought permission to rely on evidence from A&E experts, though ultimately the Trial Judge dispensed with the need for any expert evidence, noting that this was not a Bolam case. The issues to be determined fell outside the ambit of ‘expert opinion’ and the claim was framed in Common Law negligence. There was no live evidence from any witnesses.

The judgment deals with the scope and standard of duty of non-clinical staff (security guards) in the A&E department, though the same principles can inevitably be applied in a wider context.

In finding for the Defendant on the issues of both breach of duty and factual causation, the Judge observed that the role of the security guards was to take reasonable steps to keep the deceased safe, and specifically in this context, to take reasonable steps to prevent him from leaving A&E. Their function was not to “guard” in the conventional sense.

Of assistance to both clinical and non-clinical claims, the judgment reminds us that “…context is everything”.

His Honour Judge Freedman found that “there is a real risk of importing a degree of artificiality, if the court focuses on a brief moment of time rather than looking at the whole picture. 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. What is contended for by the claimant is a counsel of perfection, informed by the benefit of hindsight.”

Ultimately, HHJ Freedman held that “the security guard 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. It is too easy, retrospectively, to challenge that decision given how events unfolded. The critical question is whether, at that particular moment, the security guard was acting negligently. To come to such conclusion would be to impose an intolerably high burden on a security guard carrying out a difficult task in a busy hospital setting. Even if it were to be said it was an error of judgement, that goes nowhere near to amounting to a breach of duty of care.”

What lessons can be learned from this tragic case?

It is unarguable that A&E departments are playing a bigger role in the care of patients presenting with mental health problems (often coupled with drug and/or alcohol dependency issues).

In the current climate, with an increase in the population reporting mental health difficulties, waiting times rising and growing pressure on resources and funding, it can often be tricky for clinical and non-clinical staff to assess and manage risk in urgent and dynamic situations. A&E departments can be busy, noisy and crowded. Patients presenting to A&E with mental health issues present some of the most challenging and complex risk management dilemmas for staff tasked to care for them.

Some key considerations for Trusts might include:

• Consideration of the overlap between acute hospitals and local mental health trusts, to ensure effective and efficient co-management, assessment and treatment of complex patients
• Reminding nursing and medical staff of their duty to provide clear instruction to security staff (and/or other non-clinical staff) who they have requested respond to and assist with incidents.
• Reviewing policies and guidance relating to security staff and ensuring regular refresher training, to include reasonable working knowledge of the application of the Mental Capacity Act, Mental Health Act and risk assessments generally.
• Reporting and escalating ‘long-waits’ for mental health patients in A&E, to senior managers, commissioners and partner mental health trusts – to build a full picture of the problem and root cause.

A copy of the judgment can be read here.