England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(HIS HONOUR JUDGE FAULKS)

		The Law Courts Quayside Newcastle upon Tyne, NE1 3LA
		Wednesday 11 June 2003

1. LORD PHILLIPS, MR: This is an appeal from His Honour Judge Faulks, dated 19 April 2002, by which he dismissed Miss D's claim for clinical negligence. The claim arises out of a tragic incident on 2 September 1996. Miss D was then detained by the respondent ("the Trust") at the South Tyneside District Hospital ("the hospital") under section 3 of the Mental Health Act 1983 ("MHA"). She absconded, went home to the house where she lived with her parents and swallowed a large quantity of her mother's anti-asthma tablets. These caused her severe and irremediable brain damage.
2. Miss D's case can be simply stated. The hospital should have placed her under an observation regime that required her to be observed at intervals of not more than 15 minutes. Had they done so, her absence would have been noted within 15 minutes. On discovering that she had absconded, the hospital should have asked the police to find her and bring her back. Had they done so, she would have been apprehended before the moment at which she swallowed her mother's medication. In fact the hospital had her under observation at only hourly intervals. In consequence, it was the best part of an hour before her absence was noted. The hospital then failed to contact the police, but, in any event, it would have been too late for the police to apprehend her before she had swallowed the medication.
3. The judge held that the hospital was not at fault for having placed and retained Miss D on observation at hourly intervals. He further held that, even if she had been observed at 15 minute intervals and the police been notified as soon as her absence was noted, she would have swallowed the medication before the police would have reached her. On this appeal both of these conclusions are attacked.
4. Permission to appeal was given by Auld LJ for reasons which included the following:

This was a difficult case that called for a close analysis of the factual and expert evidence and the relationship between them, particularly the Bolitho test. It is not apparent, from the Judge's brief statement of preference for the defence expert evidence and his equally brief consideration of just one of the factual issues at pages 12 and 13 respectively of his judgment, that he has undertaken that analysis or properly applied the Bolitho test to the facts as he found them."

5. Before ruling on the application for permission to appeal, Auld LJ had afforded the judge an opportunity to amplify his reasons if he wished to do so. The judge had indicated that he considered that his reasons were adequate. For Miss D, Mr Wilby QC has pointed out that, after a five day trial, the judgment runs to no more than 14 pages. He has submitted that these do not contain adequate reasons to either explain or justify the conclusions that the judge reached. He has invited us to carry out the analysis, which he says is missing from the judgment, and to conclude that the judge's finding on each issue should be reversed and judgment entered for Miss D.

Relevant Provisions of the Mental Health Act 1983.

6. Before turning to the facts, it may be helpful to set out those relevant provisions of the Mental Health Act 1983 ("MHA"), which provide the powers under which Miss D received compulsory treatment:
"PART II

COMPULSORY ADMISSION TO HOSPITAL AND GUARDIANSHIP

Procedure for hospital admission

Admission for assessment

(1) A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application.... made in accordance with subsections (2) and (3) below.

(2) An application for admission for assessment may be made in respect of a patient on the grounds that-

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

....

3 Admission for treatment

(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that-

(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.

....

17 Leave of absence from hospital

(1) The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that officer considers necessary in the interests of the patient or for the protection of other persons.

(2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient.

....

18 Return and readmission of patients absent without leave.

(1) Where a patient who is for the time being liable to be detained under this Part of this Act in a hospital-

(a) absents himself from the hospital without leave granted under section 17 above; or

(b) fails to return to the hospital on any occasion on which, or at the expiration of any period for which, leave of absence was granted to him under that section, or upon being recalled under that section; or

(c) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section,

he may, subject to the provisions of this section, be taken into custody and returned to the hospital or place by any approved social worker, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the managers of the hospital."

The Absconsion Policy

7. The Trust had a "Policy for Dealing with Patients who are Absent Without Leave". The following provisions of this are material:

"Procedures to be initiated immediately

.....

Patients will be identified as absent without leave when they cannot be accounted for by ward staff and/or at the time of prescribed observation checks.

The nurse in charge of the ward must be informed immediately of patient's absence.

The nurse in charge will be responsible for implementing the following procedures:

• deploying staff to conduct a search of:

• the ward

• the entire unit, including courtyards

• the immediate vicinity of the grounds surrounding Bede.

If patient is not located the nurse in charge of the ward will inform:

• nurse manager or designated deputy, who will offer advice and deploy additional staff, as appropriate. Out of hours the nurse co-ordinator for mental health directorate will be advised, who should ensure that the nurse manager is advised as soon as possible. Where the absconding patient is considered to be at significant risk the nurse manager on call should be informed and additional advice sought on action to be taken.

• Nearest relative/carer informed immediately, advising them to contact staff if patient returns home if they have any relevant information regarding the patient's whereabouts. Where the patient remains absent daily contact should be maintained with the relatives and support/information provided where appropriate.

• The Responsible Medical Officer (RMO) and seek advice on further management of situation.

• Security via Ingham reception (Out of hours the hospital alert should be initiated).

• The patient's general practitioner.

• The key worker.

Consideration should be given to:

• The current risk assessment/management plan for the patient.

• Any recent incidents/occurrences/

relationship problems which may be relevant.

• Any known haunts frequented by patient.

• Diagnosis (higher incidence of risk in patients with a predominant diagnosis of schizophrenia/affective disorder).

• Gender.

• Age.

....

Legally detained patients

Section 18 Mental Health Act 1983 provides powers for the return of patients who are absent from leave.

A patient who is liable to be detained in hospital may be taken into custody and returned to hospital by the following (section 18(2))

any Approved Social Worker

any officer on the staff of the hospital

any constable

any person authorised in writing by the hospital managers.

Otherwise the responsibility for the safe return of the patient rests with the detaining hospital.

....

Police Involvement.

Calls on the police should be kept to a minimum, but police should always be informed at once of the escape or absence without leave of a patient who is considered dangerous or who is subject to restriction on discharge under part III of the Mental Health Act.

Police constables are among the people authorised to retake patients who are absent without leave from the hospital where they are liable to be detained, from the place where they are required under guardianship to reside (section MHA), who escape while being conveyed from one place to another or who escape from a place of safety or custody under the act (section 138).

There may be cases where police assistance is required in the retaking of patients who are considered to be at risk of harming themselves or others."

The Background Facts

8. The following background facts are largely based on contemporary records.
9. Miss D was born on 12 June 1970. She has a lengthy history of mental health problems, which date back to at least May 1992 when, aged 21, she gave birth to a son, Jamie. On 6 June 1993 she was admitted to the hospital for the first time under section 3 of the MHA, under a Form 11 signed by Dr Ahmed, which stated:

"She has increased agitation and hostile over the recent weeks. She has been argumentative as well as violent to people. She has been expressing paranoid ideas. She lacks insight. She refuses to accept medication and enter hospital informally. She is at risk to herself and to others by her disturbed behaviour."

10. On 12 August 1993 Miss D was discharged on four weekly Piportil injections with care from a community psychiatric nurse. On 16 June 1994 she was taken, unconscious, to the Accident and Emergency Department of the hospital having taken an overdose of 30 to 50 Procylidine tablets after an argument with her boyfriend. She subsequently denied taking these with suicidal intent. She was discharged on 23 June 1994 under continuing out-patient psychiatric care, which she continued to receive over the next year. Her attendances at the clinic were erratic.
11. On 25 June 1995 she was again admitted to the hospital under section 3 of the MHA "in the interests of her own health and safety and with a view to protection of other persons". This followed a violent incident at home in which she attacked her father and damaged a television set. Her behaviour was so volatile, including assaults on various nursing staff when she was refused permission to go home that, on two occasions, she was transferred to the Intensive Care Unit at Fieldhouse, Cherry Knowle Hospital where she came under the care of Dr S C Roy, a locum Consultant Psychiatrist. She appealed to the Mental Health Review Tribunal.
12. On 27 July 1995 Dr Roy prepared a report in which he expressed the opinion that Miss D was suffering from paranoid schizophrenia. He suggested that she should be treated with a combination of depot neuroleptic and a mood stabiliser. The Tribunal allowed Miss D's appeal on 4 September 1995 and she was registered on the Care Programme Approach and discharged.
13. On 22 March 1996 Miss D was admitted to the hospital for a fourth time. She was discharged under out-patient care four days later. At this point she was diagnosed as suffering from a bi-polar affective disorder.
14. On 27 July 1996 she was brought to the hospital by the police, having assaulted her parents, scratching her father and bruising her mother's arm. She was allowed to leave the hospital, but was compulsorily admitted on 29 July, this time under section 2 of the MHA. Dr Akhtar filled in the Form 11, stating that detention was justified in the interests of her own health and safety and with a view to protecting other persons. He added:

"At present she is extremely agitated, aggressive, has pressure of speech, expresses paranoia. Lacks full insight in her condition and shows unpredictable behaviour. In view of her present history and present mental state she needs assessment in hospital."

15. A Care Plan was prepared which recorded that she was "likely to abscond and in danger of harming herself through poor judgment". The goal was "to remain safe in the ward environment". The level of observance was specified. This was "Care Level III", requiring "a nursing or other responsible person's presence on a continuous basis".
16. On 31 July her Care level was dropped to II with observations at every 5 minutes. Later that day this was reduced to observations every 15 minutes.
17. On 1 August Miss D absconded without leave at about 20.30. She went home, but returned of her own accord at 22.00. On 2 August she again absconded at around 18.00 and returned of her own accord at 22.00. On 3 August she received a visit from her mother and went home with her, without permission, when she left. At 22.00, when she had not returned, the police were contacted and asked to bring her back. This they did, exercising the power conferred on them under section 18 of the MHA, bringing her back at about midnight.
18. On 4 August she again absconded without permission. At 16.10 the hospital recorded implementing the absconsion policy which led to the police being asked to bring Miss D back. The police recorded receipt of a report at 17.13 and brought her back to the hospital at 18.15. She was then placed on constant observation under Care Level III. This was subsequently reduced to Level II, with 5 minute observations.
19. Between 6 and 13 August, Miss D was granted leave and returned home. Her family then telephoned to say that she refused to return. At about 16.50 the police were telephoned and asked if they would assist in bringing her back. They arrived at the hospital at 19.00 to express their dissatisfaction with this request. They were, however, persuaded to bring her back and did so at 19.40.
20. At 23.00 on 14 August Miss D was found to be missing. The police were called and returned with her half an hour after midnight.
21. On 15 August Miss D was noted to be absent from the ward at 14.00. Dr Roy was contacted. He advised that she should be allowed time to return of her own accord. Her mother, who did not have a telephone in her house, asked a neighbour to telephone to say that Miss D claimed to have been attacked and scratched by another patient and did not wish to return to the hospital. Dr Roy decided that she could stay at home overnight if her mother agreed. This message was relayed to her mother who sent a message back that she was not happy with this. The police were then notified at 19.00 and brought her back. The time at which she was returned was not recorded.
22. On 16 August Miss D had a discussion with Dr Roy in the afternoon. In the course of this she became hostile and walked out of the room. She was reported as missing from her ward at 15.30. Dr Roy had, however, signed permission for her to have overnight leave provided that her mother agreed. At 18.40 her sister, Donna, telephoned to say that her mother could not cope and wanted Miss D brought back to the hospital by the police. The situation was discussed with the duty RMO and the duty nurse manager, who felt that it would not be appropriate to involve the police. Miss D returned of her own accord at 20.30.
23. On 17 August Miss D was given overnight leave until "tea-time" on the following day. She returned at 18.30 on the 18th and reported that her leave had gone well.
24. On 19 August Miss D left the hospital without permission, apparently under the impression that the period of her detention under section 2 of the MHA was about to expire. She returned at 22.15 on the following day. The records of the following few days are missing, but it is reasonable to infer that a further period, or periods, of leave were granted to Miss D pursuant to section 17 of the MHA.
25. Miss D's detention under section 2 was not due to expire until 25 August, but on the 23rd Dr Roy reassessed her position with her mother present. Miss D appeared calm and rational and her mother indicated that she had not had any difficulty with her. Dr Roy concluded that there was no justification for her continued detention and she was discharged home under arrangements for out-patient treatment. These included taking Chlorpromazine, to which Miss D agreed. This was in contrast to her attitude during her detention when she had frequently refused to take her medication.

Events after Miss D's final admission

26. Miss D was readmitted under section 3 of the MHA on Thursday 29 August. In the six days that she was at home she failed to take her medication. Her condition led her mother to call Miss D's social worker, Chris May, on the 29th. Miss May formed the view that Miss D was "very ill" and requested that she be reassessed. Dr Roy and Miss D's GP attended the Dunns' home for this purpose. Dr Roy completed the Form 11, expressing the opinion that Miss D's detention was necessary for her health or safety. He described her clinical condition as follows:

"Extremely agitated paranoid -- talking about mother trying to melt her brain. Episodes of shouting for no reason. Mother is very concerned as her mood is very labile as she is laughing at times inappropriately and talking to herself."

27. Dr Roy set out the following reasons why Miss D should be detained for treatment:

"She has consistently refused to co-operate with treatment plan. Recently had been in hospital for a period of observation but because of lack of cooperation -- and partly because she settled a little -- treatment was not forced onto her. But she is obviously deteriorating -- so needs treatment."

28. Miss D refused to return voluntarily to the hospital, so a police escort was obtained in case there were difficulties. However, none were experienced. After arriving at the hospital, she was placed on the Bede wing, which was supposed to be heavily staffed as it contained seriously ill patients. It was recorded that Miss D appeared to be demonstrating some insight into her mental condition and accepted a dose of Chlorpromazine. Miss Hindmarch, the staff nurse on duty, drew up a care plan. This provided as follows:

"PROBLEM -- D. has been admitted to hospital under sec 3 MHA, there is a possibility that she may abscond.

GOAL -- For Dawn to remain safe in the ward environment.

INTERVENTIONS

(1) D. states at present time has decided to remain on the unit therefore nominal observation only.

(2) All staff to observe D.'s mood and behaviour and document changes.

(3) Staff to encourage D. to accept prescribed medication.

(4) Named associate nurse to explain rights under sec 3 MHA."

29. On the morning of Friday 30 August Miss D was assessed by Dr Roy. She was settled, had slept well and her behaviour was appropriate. She agreed to continue to take Chlorpromazine and also Sodium Valproate, a mood stabiliser. She agreed that she would stay on the ward over the weekend. Dr Roy told her that he would re-assess her on the Monday and that, if all had gone well, she could have some leave on Tuesday 3 September. She remained on one hourly observations.
30. On the evening of 30 August Miss D initially made difficulties about taking her medication, but at 19.25 she requested it and appeared to take it. At 20.00 her mother came to visit her. Miss D responded with extreme verbal abuse, first of her mother and then of other patients. She was confrontational and threatening, expressing delusional ideas. The duty medical officer was consulted and injected a dose of Clopixol and Lorazepam. Miss D had to be restrained by a number of nursing staff while this was administered.
31. On Saturday 31 August Miss D was described by a duty nurse as "superficially pleasant and amenable" but it is not clear that she took all her medication. In the evening her mother arrived to see her with Miss D's son. She angrily refused to take her medication, slamming the door of her room. When her mother and son left, Miss D announced that she was going home with them and would return at 22.00. The ward staff did not consider that it was possible to prevent this, but made an assessment of risk. This led them to conclude that, as she was with her mother and her safety was not questioned, the hospital's policy for dealing with patients who are absent without leave would not be implemented. Miss D in fact returned at 22.15, appearing pleasant, smiling and chatting. She accepted a dose of Chlorpromazine, but refused Sodium Valproate. She retired to bed and slept through the night.
32. On Sunday 1 September Miss D remained in her bed most of the day. At 18.00 she refused to take her medication, saying that it made her feel worse. At 19.30 her mother came to visit her. She became aggressive and her mother had to leave. She declined to discuss with the ward staff why she had become upset.
33. On Monday 2 September Miss D took her Chlorpromazine but not her Sodium Valproate. She was pleasant and cooperative all morning. At lunch time she requested overnight leave and, when told that this could not be granted, became angry. She demanded to see Dr Roy, who was on the ward, but he had to leave to attend to the urgent needs of another patient. He said that he would try to return to see her later. The precise timing of the events that followed is a matter of controversy, but any dispute falls into a small compass. Broadly, what occurred was as follows.
34. Some time after 13.00, but before 13.20, Miss D left the hospital. She took a bus home where she found her mother and her sister, Donna, as well as her son and some neighbours. She said that Dr Roy had given her overnight leave, but she seemed to her mother to be in a dreadful state; confused, with her eyes glazed and apparently heavily sedated. She told her mother that she was "like a spaced out chicken" and "drugged up to the eyeballs". Her mother was about to set out for the market in South Shields to buy some clothes for Jamie. Miss D said that she would go with her.
35. Miss D, her mother, her son and Donna left the house and walked to the bus stop. She boarded the bus with her mother and her son. This was probably the 14.00 bus, but it may have been the 14.10. Donna then walked to a near-by phone box and phoned the hospital. She was told by Nurse Graham, who was on duty, that Miss D did not have leave of absence and should be asked to return to the hospital. She explained that Miss D had gone shopping. Nurse Graham recorded that she said that she "would have to implement the policy and call the police". Donna's evidence was, however, that she was told that the police would be called only if Miss D was not back in about an hour.
36. Meanwhile, Miss D had changed her mind about accompanying her mother and son on the shopping trip. She got off the bus at the next stop and walked home. There she was found by her brother, Darrell, when he came back from the pub at a time that he estimated to be about 14.30. She was crying and shouted to him to call an ambulance as she had swallowed a bottle of her mother's pills. He was sceptical as to whether she was telling the truth and walked to the nearest telephone box to phone his aunt. His aunt agreed to phone for an ambulance. Darrell walked back to his mother's house. The ambulance arrived before he got there. Miss D was then taken to casualty at the hospital. Her arrival there was recorded at 14.55.

The issues

37. The judge approached the burden of proof in this case as follows:

"There is no doubt that D. should have been in hospital, and had she been the chances of her injuring herself would have been much reduced. I therefore take the view that since the Defendants were responsible for the care of D., who was mentally ill and was supposed to be detained in the hospital, the fact that she was out doing injury to herself raises on the face of it, without other explanation, a case of negligence against the Defendants, and for that proposition I rely on the authority of Cassidy v The Ministry of Health [1951] QB 434. Put another way, the burden of disproving negligence in a case of this sort lies on the Defendants."

38. I have some reservation as to whether the facts of this case are such as to transfer the burden of proof, but this is of no moment. The facts necessary to resolve the issues that arise are well evidenced and nothing turns on the burden of proof.
39. Mr Wilby QC, for Miss D, strove to persuade the judge, as he did to persuade us, that it was negligent on the part of the hospital to permit Miss D to abscond at all. The evidence did not support this submission. On two of the previous occasions on which she absconded, Miss D was subject to observation at 15 minute intervals. All the evidence indicated that, in order to prevent her from absconding, it would have been necessary to have her under constant "one to one" observation, and that such a course could not be said to be necessary in the absence of immediate risk of committing suicide or causing harm to others. The experts were agreed that there were no grounds for believing that such heightened risk existed.
40. I have outlined the live issues at the outset of this judgment. I must now elaborate these, for the two issues to which I referred conceal a third, latent, issue.
41. The first issue to which I referred is whether Miss D should have been subject to observation at intervals of not more than 15 minutes. That is an issue that turns on expert evidence. The second issue to which I referred is whether, had Miss D been subject to observation at 15 minute intervals, and the Police notified as soon as her absence was noted, they would have reached her before she took an overdose of her mother's tablets. That is an issue of fact. The latent issue is whether the Police would, or should, have been notified of Miss D's absconsion as soon as it was noticed.

The first issue

42. Miss D was put on observation at hourly intervals when she was re-admitted on 29 August. This was under the care plan prepared by Nurse Hindmarch. Dr Roy assessed her on 30 August and approved this regime. No subsequent assessment of Miss D was carried out by any doctor before her final absconsion. The judge proceeded on the premise that this was acceptable, and that the issue was whether the regime approved by Dr Roy on 30 August was appropriate as at 2 September. He did not expressly deal with Dr Roy's evidence as to why he considered that hourly observations were appropriate. The closest he came to this was in the following passage of his judgment:

"Dr Roy, the psychiatrist in charge of D.'s case, believed, as he put it, in negotiation not confrontation with patients such as D.. He took the view that if the patient is to be cured in the long term, or at least have their condition balanced, that that required the consent or the willingness of the patient to take his or her medication. Therefore he was against confronting such people, preferring to persuade them to take medication voluntarily."

43. The Judge summarised the evidence on this issue given by the experts called by each of the parties as follows:

"The claimant's case relies on the evidence of Dr Rix, a most distinguished psychiatrist, who has been a consultant forensic psychiatrist since 1997, and that of Peter McGuinness, a distinguished psychiatric nursing expert. Both those men conclude that, bearing in mind the history and presentation of D., she was subject to an observation regime which was inappropriately low. They believe that observations should have been at no more than fifteen minute intervals and that accordingly the hospital's care of D. was negligent.

The defence case was supported by Dr Wood, another distinguished psychiatrist, albeit that he has not worked in the National Health Service for ten years and before that worked as a forensic psychiatrist; also by David Duffy, another distinguished psychiatric nursing expert, whose speciality is in the nursing of patients with suicidal tendencies. Mr Duffy was about as qualified as a nursing expert could be, in as much as he not only works hands on for six months of the year with mentally ill patients but he also has a number of publications on the subject of mental health and nursing to his name as well as a chapter in the standard nursing text book.

Both those experts called by the Defence believe that there was nothing in D.'s history or presentation which necessitated any higher level of observation on September the 2nd 1996 than once an hour. So, those are the two rival contentions by the experts."

44. In evaluating the rival contentions, the judge first considered whether the risk that Miss D might attempt to commit suicide was such as to justify observation at 15 minute intervals. He rightly observed that the experts were agreed that, while Miss D suffered from a psychiatric condition which carried with it a raised risk of suicide, there was no specific risk at the material time such as would call for one to one nursing observation.
45. He then summarised the evidence of Miss D's experts as follows:

"Dr Rix and Mr McGuinness point out that D. was obviously extremely ill on August 29; that that is followed by the crisis on August 30 which led to her forcible injection; on the following day she walks out of hospital, having been told not to; then on September 1 she rows with her mother. The picture, they say, is of an unpredictable woman in the grip of an episode of schizoid disorder and a woman who is liable to be a danger to others as well as to herself. Accordingly, they say, she required close observation, among other reasons to prevent absconding. In the light of her past history of absconding, they say, that she would abscond at lunchtime on September 2, having been refused leave at that moment, was entirely predictable."

46. The judge contrasted the evidence given by the Trust's experts as follows:

"Dr Wood and Mr Duffy, on the other hand, take the view that in the four days following her admission on August 29 D. had made progress in taking at least some of her medication. They approve of Dr Roy's policy of negotiation rather than confrontation for the long-term good of the patient and her taking at least some medication was a considerable improvement on her previous admission when, as I have said, she took no medication.

On the morning of September 2, D. again did accept some of her medication. She was described as being pleasant and co-operative all morning, and so Dr Wood described her condition as being a mild hypomanic illness. There was no specific indication of suicide nor any specific indication that she might do harm to others. He and Mr Duffy both point out that in their view the only way to prevent D. absconding would have been by constant or one-to-one observation which was not justified by the risk D. presented, and in any event close observation had antagonised D. in the past and so would undermine the policy of getting D. to willingly take her medication and willingly stay in hospital. Another matter those experts say has to be factored into the risk assessment was that D. had been absent from the unit on no less than thirteen occasions between July 29 and September 2 and had come to no harm. Finally, Mr Duffy made the point that there is in fact no professional consensus about the length of intervals between observations to be used in different circumstances with mentally ill patients, and he said that in different hospitals many different approaches were used."

47. The judge then referred to the guidance given by the House of Lords in Bolitho v City and Hackney Health Authority [1997] AC 232. He deduced from this decision that his task was to consider (1) whether there was a body of professional opinion which supported the approach adopted by Dr Roy; and, if so, (2) whether the professionals in question had directed their minds, where appropriate, to the question of comparative risks and benefits and reached a defensible conclusion. Only if the professional opinion was capable of withstanding logical analysis could it be relied upon.
48. So far as the first issue was concerned, the judge had to deal with a submission by Mr Wilby that the professional status of each of the Trust's expert witnesses did not qualify them to give evidence on the issue. This submission, in so far as it relates to Dr Wood, has been repeated before us. I will deal with it in due course. Suffice it to say that, in relation to both witnesses, the submission was rejected by the judge.
49. So far as the second issue is concerned, the judge's conclusions appear from the following passages of his judgment:

"I listened to both those experts being cross-examined by Mr Wilby. Neither expert yielded in his view, and that was a view which seemed to me to be logically defensible.

....

I am therefore satisfied on the evidence of Dr Wood and Mr Duffy, that there is a responsible body of medical men who would have done as Dr Roy did, and in those circumstances I cannot find that the hospital were negligent."

50. I turn first to the issue of whether Dr Wood was qualified to give expert evidence in this case. Dr Wood served initially in the Royal Army Medical Corps. After a brief period as a Registrar at the Leeds General Infirmary, he undertook specialist training in forensic psychiatry and drug dependency, becoming a consultant forensic psychiatrist in 1982. He worked as such in Bradford hospitals until 1992, when he became a fully independent forensic psychiatrist. Mr Wilby robustly put to Dr Wood that he had not been involved in mainstream psychiatry involving patients such as Miss D for over 20 years. Dr Wood responded, equally robustly, that he had had ample experience of such patients.
51. Such personal experience of the NHS as Dr Wood had ended approximately four years before the period with which this appeal is particularly concerned. I do not consider that in the context of this appeal this is significant. This appeal is not concerned with the cutting edge of psychiatric knowledge. It is concerned with questions of practice which are based more on common sense than science. Nor is there any hint that the approach to these questions has varied significantly between 1992 and 1996.
52. As to the nature of Dr Wood's NHS experience up to November 1992, this was largely in his capacity as a forensic psychiatrist, concerned with those who had come to the attention of the criminal courts. But, as he explained, this did not mean that he did not encounter patients who suffered from a similar illness to that of Miss D. Furthermore, he shared a consultancy rota with his general colleagues. He did on-call duty and went out at night and sectioned people in the community. He also went into the hospital at week-ends and reviewed the patients who were detained, whether they were detained under his care or that of others.
53. My conclusion is that the judge was right to rule that Dr Wood was competent to give expert evidence in this case. As he himself admitted, his relevant experience does not compare with that of Dr Rix. This is a factor to be borne in mind when considering any issue between them. It does not, however, disqualify Dr Wood from giving evidence in this case.
54. It is appropriate at this point to say a word about the other expert witnesses. Mr Duffy became a registered mental nurse in 1985. He has a plethora of distinguished qualifications in this field and has written widely on suicide and self harm, including contributing the chapter on this topic in Lyttle's Mental Health Nursing. He is unquestionably highly qualified to give evidence in this case, as the judge found. The experts acting for Miss D are also highly qualified. Dr Rix was senior lecturer and consultant psychiatrist at St James' Hospital, Leeds, between 1983 and 1990. In 1997 he was appointed consultant forensic psychiatrist in the Leeds Community and Mental Health Services Teaching NHS Trust.
55. Mr McGinnis is Director of Nursing and Workforce Development at the same Trust. He is a registered mental nurse who has worked in the field of mental health for over 30 years.
56. I turn to the issue of the frequency of observations to which Miss D should have been subject. This does not require a choice to be made between the evidence given by Dr Rix and Mr McGinnis for Miss D and that given by Dr Wood and Mr Duffy for the Trust. The issue is whether the opinion expressed by the latter, that observation at hourly intervals was appropriate in the situation prevailing on 2 September, is one that can be sustained as a reasonable body of professional opinion.
57. As to this issue, Mr Wilby's submissions can be summarised as follows. It was manifestly unacceptable that no assessment was carried out on Miss D between the morning of 30 August and the afternoon of 2 September. The explanation may have been that the hospital was short staffed over what was a bank holiday week-end, but that is no excuse. The violent episode on the evening of 30 August, when she had to be restrained while she was given an injection, was without precedent in her case, and unquestionably called for a fresh appraisal. This episode was symptomatic of the fact that Miss D's condition had significantly worsened by 29 August. It was this worsening that had led to her being sectioned under section 3 of the MHA. Her condition called for a regime of observations at intervals of not more than 15 minutes to be continued until she improved. She could not be expected to show the beneficial effect of the drugs that she was taking for many days. Her behaviour on the morning of 2 September was not symptomatic of any improvement in her health, but of the fact that she was capable of masking her symptoms. It was unfortunate and blameworthy that the written records available to Nurse Graham, the duty nurse on 2 September, who was new to Bede Ward, left her unaware of this and of Miss D's history of absconsion. She could and should have appreciated a heightened danger that Miss D would abscond once she had been told that she would not be granted leave on the 2nd.
58. In respect of all of these submissions Mr Wilby was able to point to passages in the evidence of Dr Rix and Mr McGinnis for support. Dr Rix accepted that there was a lot of discussion in forensic circles as to the utility of 15 minute observations and a wide spectrum of opinion about this, but adhered firmly to the fact that he was a "15 minute man" himself. The furthest that he was prepared to go by way of concession appears in the following passage of his cross-examination:

Q. "Are you saying that come Monday morning, that is 72 plus hours afterwards, she should still have had a nurse visiting, she spent Monday morning most of the time in her room, nurses should have been coming visiting every 15 minutes?

A. Yes because otherwise they are not going to know where she is, they're not going to know whether she is in the room.

Q. You see I suggest that it was not..., that sort of level of observation was not indicated but even if the view you express is sustainable you would concede that others would say well that is intrusive and probably unhelpful?

A. It is a case of making balances to what the ultimate good is.

Q. Exactly. And I wanted you to use the word balance because that is what this is all about isn't it. It is a balance between on the one hand therapeutic care and on the other a restrictive regime keeping her on the ward?

A. Yes.

Q. And if those who were treating her and those who were looking after her felt that 15 minute observations were going to have an adverse effect, it was not unreasonable of them was it for them to elect for hourly observations?

A. Well, I would have wanted to be there to discuss that. A decision like that would in a case like this where you are so concerned about the unpredictability, a discussion with the doctors and the nurses together. I wouldn't have expected that decision to be made by the nurses on their own."

59. Mr McGinnis was also adamant that he would have placed Miss D under a regime of observations at intervals of not more than 15 minutes. He also conceded, however, that this was an area where it was difficult to be categoric:

Q. "It comes to this, Mr McGinnis, that what this inconsistency reinforces is that there is no right or wrong answer as to what is the correct level of observation, is there?

A. There is no national consensus about how observations should be used or how they should not, I know from hospital enquiries that I have been asked to carry out that there has been very different approaches to observation. There is a stronger view about using when constant is used, and when maybe intermittent, there is less about the lower range.

.... the issue is that there is not a national consensus, there is not a national standard set, there is just a national standard in terms of well patients should be observed and engaged, but there is nothing saying well these are the conditions in which 15 minute observations should occur. It isn't that, it is down to individual trusts who decide."

60. Mr Duffy accepted some of the criticisms that Miss D's experts made of the treatment of Miss D. He considered that, after her admission on 29 August, risk assessments should have been fuller. He also accepted that, after the violent episode on the evening of 30 August, observation levels should have been increased to Care Level III (continuous observation), albeit reduced as soon as reasonably possible to Care Level II and, finally, to Care Level I after she had gone to bed.
61. Dr Roy explained his approach to the treatment of Miss D in the following passage of his evidence:

"Confrontation will first of all lead to mistrust, she will not trust, she will become angry, and compliance will be even worse. On the other hand, negotiation and discussion will help to ensure that she will get some medication, and she is likely to continue with it if you do it with negotiation, rather than challenging all the time. It is a matter of building the trust."

62. This approach received support from the Trust's experts. Dr Wood commented:

"It strikes me as a perfectly reasonable approach, in that the long-term goal is very much to engage the patient in her own treatment in a cooperative fashion for her own welfare, and a policy of pure confrontation would overcome the immediate acute symptoms but not achieve the sort of drug treatment plan that you would be looking for."

63. As to the impact of this policy on the level of observations, Dr Wood said, when being cross-examined by Mr Wilby:

"First of all, I don't think leaving the observations where they were is unreasonable. I think a reasonable body of opinion would have left them at that level. And secondly, I don't think instituting 15 minute observations would have prevented D.D. from absconding, the choice was clearly that of one-to-one nursing, or removal to a secure environment, which was likely to undermine any benefit of the softly-softly negotiated approach that Dr Roy was trying to achieve."

64. Mr Duffy expressed the firm view that, having regard to Miss D's history, a regime of 15 minute observations would have been a mistake. Thus he commented:

"As we have heard from the nursing staff and others, the way to try to achieve compliance in the case of this patient, was to negotiate with her and was to try to build a therapeutic relationship with her to persuade her to take her medication, and all I can imagine is regular 15 minute checks around the clock for several days would have had the exact opposite effect, and intended to make her less willing to comply."

He later added:

"The priority for this patient was to get her to comply with medication. I will come back to that point. I mean something happened that has cast a long shadow of hindsight over things, I appreciate that, but the priority was getting this patient to take some medication, and to be imaginative in trying to find ways of getting her to do so."

Conclusions

65. Mr De Navarro QC, for the Trust, was, I think, prepared to concede that the approach of the judge telescoped that which the facts of this case required. That is certainly my conclusion. He should have considered whether Miss D's behaviour between 29 August and 2 September called for fresh assessment. Had he done so he should have concluded that it did, at least after the violent episode on the evening of 30 August. In accordance with the approach in Bolitho (see, in particular, p 239) he should have asked: had Dr Roy carried out an assessment on the morning of 2 September, what conclusion should he properly have come to as to the frequency of observations? If a range of conclusions would properly have been open to him, then the Trust cannot be at fault if the regime actually followed fell within that range.
66. Dr Roy gave evidence that he considered that one hourly observations were appropriate, having regard to the condition of Miss D on her admission on 29 August and to his policy of avoiding confrontation. Dr Roy was asked at the end of his examination in chief whether he would have opted for a different regime had he known of events on the Saturday and Sunday and re-assessed Miss D. He answered that he would not.
67. At the end of the day, the question is whether a regime of hourly observations was one which, on 2 September, could be supported by a reasonable body of professional opinion. The judge simply observed that he had listened to the experts being cross-examined and that the view of the defence experts seemed to be logically defensible. As he had already summarised their reasoning, I am not persuaded that dealing with the issue in this way offended against the requirement to give adequate reasons, as laid down by this Court in English v Emery Reinhold & Stricht Ltd [2002] 1 WLR 2409. I shall, however, in a little more detail, give my own reasons for concurring in the conclusion reached by the judge.
68. I do not consider that Miss D's condition, when she was admitted on 29 August, was so radically different from that which she had demonstrated in the past as to render her past history irrelevant when deciding how to treat her. The nature of her illness, unhappily not uncommon, was described by Dr Wood in the following passage of his evidence:

"The natural history of bipolar affective disorder is of severe mood disturbance, sometimes depression, sometimes hypomania or mania, with the type of depression associated carries a particular raised risk of suicide, and often when a patient is profoundly depressed they preempt contact with doctors by completing suicide. Because it is a lifelong condition, and it continues to recur in many cases, despite treatment, the risk of suicide continues over many years. Which is why the end result for this percentage of patients, and it used to be said about 10 per cent, but I accept 5 to 10 per cent occurs, where that is the end result, despite all our treatment."

69. Had Miss D been in a condition of acute depression, one-to-one observation would have been appropriate to attempt to combat the suicide risk. That was not, however, the position. The object of her treatment was to persuade her to take appropriate medication so that the unpleasant symptoms that she experienced would be mitigated. Her history shows that she was on the border line that separates those for whom compulsory detention in hospital is justified from those for whom it is not. Her history had not demonstrated the need to detain her in a secure hospital. In practice it was not possible to prevent her from absconding from the hospital and history had demonstrated that absconding did not result in harm to herself or to others. Frequently it resulted in return of her own accord. When it did not, she could be found at home and brought back by the police.
70. The principle reason urged by Mr Wilby, and supported by Miss D's experts, for a regime of 15 minute observations, was that, while this would not prevent absconsions, it would reduce the risk of these and enable steps to be taken promptly to bring Miss D back to hospital when she absconded. As against this, had to be balanced the adverse impact on Miss D's willingness to cooperate under a regime which would involve a nurse intruding upon her in her room at 15 minute intervals. It seems to me perfectly reasonable for Dr Roy to have concluded that the balance weighed in favour of only hourly observations, although the views expressed by Miss D's experts could not be dismissed as untenable. The risks attendant on absconsion in the case of Miss D did not appear such as inevitably to outweigh the desirability of a non-confrontational regime. Nor was it obviously desirable that she should be brought back as soon as she absconded. This brings me to the latent issue.

The Absconsion Policy

71. At one point Mr Wilby submitted that the hospital's absconsion policy required the police to be notified as soon as the absence of a patient such as Miss D was discovered. He conceded, however, that this was not the case. The policy gave the hospital considerable latitude as to how to react to an absconsion. It is plain that in Miss D's case the hospital had adopted a policy, perhaps pragmatically, of communicating with her family and giving her a chance to return to the hospital of her own accord. It seems to me that this was a sensible policy. It avoided calling for police assistance when this was not necessary, and it avoided the risk that the exercise of section 18 powers would antagonise Miss D and impair her treatment.
72. When her absence was noted on 2 September, the police were not called. The evidence suggests that the usual course was being followed of giving her a chance to return under her own steam. Had her absence been noted earlier, it seems to me that the same course would almost certainly have been followed. The approach is one of which the Trust's experts approved and, in my judgment, there was good reason to approve it. Thus, even had I concluded that Miss D should have been on 15 minute observations, I would not have concluded that the police would, or should, have been notified of her absconsion in time to reach her before she took an overdose of her mother's drugs.

Would the police have got there in time?

73. In the light of my conclusions to date, it is academic to ask the question, whether, had Miss D been on 15 minute observations, and had the police been notified as soon as her absence was remarked, they would have reached her before she took the overdose. The judge held that they would not, on the premise that in the past their average response time had been two hours, and that this was not a situation where there would have been justification for telling them that this was an emergency. It will be apparent that I agree with the latter conclusion.
74. As to the average response time, the judge was, I believe, accepting a submission that had been made to him as to the effect of the evidence. I have sought to summarise that evidence at the start of this judgment. Records of timings are not very satisfactory, but they suggest that, while the police response time usually exceeded an hour, it was not, on average, as long as two hours.
75. Looking at the picture broadly, had a regime of 15 minute observations been in place, Miss D's absence would have been likely to have been discovered at 13.15. Had the police then been asked to assist, it is unlikely that they would have apprehended Miss D before she left with her mother to go shopping. Had they arrived after this moment to find the house empty, they would probably have left again. The issue is whether, on the balance of probability, they would have arrived during whatever short period elapsed between Miss D's return home and her taking her mother's tablets. My conclusion is that this would have been unlikely.
76. Statistics show, tragically, that about 5 per cent of those afflicted with the mental illness suffered by Miss D commit suicide. This reflects the risk, always present, of an impulsive reaction to an event against which it is impossible to guard. No-one will know what it was that led Miss D to swallow her mother's tablets. The evidence plainly shows that she immediately regretted having done so. Her action does not seem to reflect a deliberate decision to end her life. It has had the most tragic consequences to her health, but these are not consequences for which the Trust can be held responsible.
77. For the reasons that I have given, I would dismiss this appeal.
78. LORD JUSTICE SIMON BROWN: For all the reasons given by my Lord, the Master of the Rolls, I, too, would dismiss this appeal.
79. LORD JUSTICE WARD: I agree.

Order: Appeal dismissed. Taxation of appellant's Legal Services Commission costs