England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Strand London WC2A 2LL
		19th October 2007

MRS JUSTICE SWIFT

The Claim

1. This is a claim for damages for personal injuries and financial losses alleged to have been suffered by the Claimant as a result of negligent medical care given to her by the Defendant during the course of her stay as an in-patient at the Northwick Park Hospital, Harrow, for which hospital the Defendant was responsible.
2. On 18 February 2001, whilst a patient in the Mental Health Unit ("the Unit") at the hospital, the Claimant left the hospital grounds, travelled to Baker Street Tube Station and got on to the line in front of a train, part of which passed over her before coming to a halt. Fortunately, she had rolled into a pit between the rails and escaped death or really severe injury. She suffered orthopaedic injuries which have, she says, had lasting physical and psychological effects upon her.
3. At the time of the incident, the Claimant was permitted by medical staff to have periods of unaccompanied or unescorted "leave" from the Unit, provided that she remained on the hospital premises. On the day in question, she walked out of the hospital grounds and caught a train from the nearby Northwick Park Tube Station to Baker Street. It is alleged on her behalf that, given her unstable and unpredictable mental state at the time, her history of suicide attempts and suicidal ideation and the risk that she might try to take her own life, the Defendant's decision to permit her to leave the ward unaccompanied was negligent. The Defendant denies negligence.

The Claimant

4. The Claimant was born on 7 January 1953 and is now 54 years old. She is married with three children. In February 2001, all three children were of school age, the youngest being 10 years old. Those who know the Claimant describe her as a gentle, kind, somewhat passive, person, who is a loving mother and a good friend.
5. No-one who has heard and read the evidence in this case could fail to feel great sympathy for the Claimant and for the condition she was in during the early part of 2001. Nothing that I say, when describing her conduct during her illness, should be taken as implying any criticism of the Claimant. I am merely recounting the events that are recorded as having taken place and which form the backdrop to this action.

The Claimant's Previous Medical History.

6. The Claimant left school at the age of 17 and immediately went to work in a secretarial capacity for ICI. She left that job after nine or ten years and took up another post. During 1980, when she was in her late 20s, the Claimant had what appears to have been a depressive episode in response to stresses within her marital relationship and at work. Her condition necessitated her admission to hospital as a voluntary patient on three occasions that year for periods of about two to three weeks each. She had a range of symptoms including tearfulness, mental confusion, bizarre and histrionic behaviour and paranoia. She displayed suicidal tendencies during this period. She was diagnosed in the first instance as suffering from an acute stress reaction with the possibility of an underlying psychosis. At a later admission, the diagnosis was a hysterical personality with dependency needs. She was discharged from in-patient treatment in October 1980 and continued to attend a day hospital regularly until her final discharge in early January 1981. At about this time, she undertook an Access to Higher Education course and embarked upon a degree in History at the University of Hertfordshire. She had hopes of becoming a teacher.
7. Following that episode, she appeared to recover well. She was in regular work as a P.A./Secretary for Levi Strauss and went on to have her three children, working part-time as and when she could.
8. In June 1996, a GP note indicates that the Claimant was suffering from anxiety and depression. Her mother had died shortly before and her husband's business was in financial difficulties. She was treated with various types of anti-depressant medication. No hospital admission was necessary on this occasion and treatment was stopped in May 1997.
9. After that, she worked for a year in a firm of accountants and, in September 1998, began to work as a P.A. to a solicitor sole practitioner. The pressure of work was considerable and she was exposed to considerable stress. Matters became worse when her employer and her employer's husband became involved in a political controversy into which she herself was also drawn. Meanwhile, her husband's business was once again in financial difficulties, putting the family at risk of losing their home.
10. As a result of these stresses, from about December 1999, the Claimant's mental condition began to deteriorate once more. She was treated by her GP for depression and anxiety. In early July 2000, her condition deteriorated and she was referred as an out-patient to the Northwick Park Hospital. There, she was assessed and offered treatment in the Acute Day Treatment Unit (ADTU). However, her condition continued to deteriorate and, on 26 July 2000, she was admitted to the Northwick Park Hospital as an in-patient. At that time, she was diagnosed as having a severe reactive depressive disorder.
11. Throughout her various admissions to hospital between July 2000 and February 2001, the Claimant was under the care of Dr Mary Green, Consultant in Charge of the Mental Health Unit. Dr Green's practice was to review her patients at a twice-weekly Ward Round, attended by junior doctors, members of the nursing staff and other members of the psychiatric team. Day-to-day care on the ward was given by the junior doctors and by the nursing staff.
12. During her stay in hospital, the Claimant was anxious and, at times, agitated. She persistently expressed ideas about ending her life in various ways. On one occasion, she bought paracetamol for this purpose and, in late October, she was said to have taken a "minor overdose". The leave arrangements varied during this time. It is clear that, at some times, the Claimant was having unescorted leave in the hospital grounds, as well as leave with her husband and friends. She observes in her witness statement that her periods of unescorted leave went without incident. However, she says that her condition was not as bad during this period as it was in early 2001. She was eventually discharged from hospital on 6 November 2000.
13. After her discharge, she attended the ADTU for anxiety management and sessions of psychology. She also received support from a Community Psychiatric Nurse, Ms Nicky Little, and from the Children and Families Unit.

The Mental Health Act 1983.

14. Before dealing with the events which followed, I should mention the relevant provisions of the Mental Health Act 1983.
15. Section 3 of the Act provides for the compulsory admission to, and detention in, hospital of persons suffering from a mental disorder where, inter alia, such admission and detention is necessary for the health or safety of a patient or for the protection of others and where the relevant treatment cannot be provided unless the patient is detained.
16. If a patient agrees to being admitted to hospital, and to comply with the treatment given, detention under Section 3 will not usually be necessary and the patient can be admitted as an informal patient.
17. Patients who are detained under Section 3 of the Act are not free to leave the hospital unit at will. Leave from the Unit, when granted, is subject to a framework of regulations. Informal patients, however, are in law free to come and go as they please and must be told that this is the case. However, in circumstances where it is considered to be in a patient's interests to remain on the ward without having any leave, the patient's agreement to that restriction will be sought. If the patient is capable of giving informed consent and does so, then no problem arises and - subject to the patient's continuing co-operation - leave will be withheld until it is considered appropriate for it to be taken.
18. If an informal patient declines to accept any restriction on his/her movements and insists on leaving the ward, she/he can be compulsorily detained under Section 5 of the 1983 Act. Under Section 5(2), the doctor in charge of the patient's treatment may detain him/her for 72 hours in order for the patient to be assessed with a view to detention under Section 3 of the Act. Under Section 5(4), a nurse may detain a patient for six hours in order to permit an assessment to be conducted by a doctor in circumstances where the nurse considers that the patient should be immediately restrained from leaving hospital for his/her own safety or for the safety of others.
19. Before her suicide attempt in February 2001 the Claimant had never been detained under Section 3 of the Act. There were, as I shall relate, occasions when she was temporarily detained under Section 5(2) or 5(4). For most of the time, however, she was an informal patient.

The Issue of Leave

20. The question of whether a patient should be permitted leave is the responsibility of the Consultant in Charge who is responsible for establishing a management plan for each patient covering such matters as medication, the appropriate level of observations and leave. In the Claimant's case, the responsibility lay with Dr Green. All the witnesses agreed, however, that arrangements for leave set out in a management plan should not be followed slavishly by the nurses on duty at the time the period of leave is to take place. It is the responsibility of the nurses to assess whether a patient is well enough to have leave at that time and, if not, to seek to persuade the patient of that fact, to get advice from a doctor or, if necessary, to restrain the patient from leaving using their Section 5(4) powers.
21. I was told that dealings with informal patients can be somewhat delicate. It is important that patients do not feel coerced into agreeing to restrictions on leave because of the threat that, if they do not comply, they may be compulsorily detained. That would raise questions as to whether their agreement amounted to informed consent. Patients with previous experience of the system may be well aware of the dangers of non-compliance. I accept that discussions with informal patients about leave arrangements must be handled with care and that restrictions on the movement of an informal patient should be as few as possible, consistent with his or her proper management and treatment.

Leave at the Northwick Park Hospital.

22. Leave at the Northwick Park Hospital was described as "unescorted" when it was intended that a patient should be allowed out without a companion of any sort. Such unescorted leave, when granted, was (in the Claimant's case at least) confined to the hospital grounds. This would enable her to leave the Unit in order to use the telephone or to visit the hospital canteen. There is an area of grass within the hospital premises. This is not particularly attractive, but gives an opportunity to get some fresh air. The hospital is surrounded by a perimeter road and has no fences or gates to restrain patients. A path from the hospital grounds leads directly to the Northwick Park Tube Station, seven to ten minutes' walk away. In the other direction is Harrow. There are busy roads in the vicinity.

The Events of December 2000

23. I shall now continue with my summary of the events which occurred from December 2000. In early December 2000, there was an incident at the Claimant's house when she became agitated, struck herself in the chest with the blade of a kitchen knife and took a minor overdose of her medication with a quantity of whisky. She was taken to hospital, seen by a doctor and sent home.
24. A week after that, a care programme approach meeting took place. This was attended by, amongst others, Dr Green and Ms Little. The Claimant was said to appear reasonably well. She was looking for a job. She described the incident the previous week as "a cry for help and attention". She said that she now felt very ashamed and silly as a result of her behaviour. Dr Green wrote to the Claimant's GP, relating the results of the meeting. In that letter, she observed:

"We explained to Rita that she had a lot of support at present and that it was her responsibility to refrain from further suicidal acts and that there was little the psychiatric services could do in terms of preventions of future attempts at self harm. Rita agreed that this was the case and that she would have to take responsibility for her actions."

25. The Claimant had a short holiday abroad in mid-December but was tense and anxious when she attended the ADTU on her return. Her sleep was poor. It was decided that she might benefit from a change of anti-depressant medication and this was effected.
26. On 3 January 2001, the Claimant's husband reported that she had had a fit of rage (described as a "behaviour-tantrum") in the car after leaving the ADTU. Her husband felt that it was unsafe to drive her and took her back to the ADTU for assessment. She was discharged after examination and was to attend the ADTU daily thereafter.

The Admission to Hospital on 4 January 2001

27. On 4 January 2001, the Claimant became anxious and agitated about the family's financial concerns and her inability to find a job. She had been drinking heavily and was voicing suicidal ideas. When taken out for a walk by a friend, she made an attempt to run out in front of a bus. Her husband took her to hospital and she was admitted. She remained in hospital for four days during which time she was given leave to visit her home on a daily basis. She was discharged on 8 January 2001.

The Admission to Hospital on 9 January 2001

28. It is necessary, for the purposes of my judgment, for me to summarise the events that occurred during this admission in some detail. It is these events that are the subject of this action. No criticism is made of the Claimant's management and treatment during her earlier admissions to hospital. It should be emphasised that, throughout the period of the Claimant's admission, which began on 9 January 2001, there were real and serious stresses in her life. There was a real risk that the family's home would be repossessed. Eventually, this was averted only by the intervention of friends who stepped in and raised a large sum of money on the family's behalf. Furthermore, the controversy involving her former employer deepened and, at various times throughout this period, the Claimant was being requested to provide statements for legal proceedings and to speak to the press.
29. On 9 January, the day after her previous discharge, the Claimant was re-admitted to hospital. It appears that she had been unable to cope at home and was threatening to kill herself. She had bought and taken paracetamol with alcohol. She may also have been drinking perfume. Immediately after her admission to the Unit, she attempted to run away and had to be restrained and detained under Section 5(4) of the 1983 Act. She calmed down, apologised and agreed to stay on the ward voluntarily. She explained that her actions had been designed to attract attention.
30. At the Ward Round on Thursday, 11 January, the Claimant was noted still to be making suicidal threats on the one hand, but wanting to go out with a friend on the other. Dr Green decided that, in view of her suicidal threats, she should be restricted to the Unit until the following Monday, when she would be reviewed once again. Meanwhile, she was to be under primary observations which meant, inter alia, that she was not to leave the Unit save when accompanied by a member of staff. The Claimant said in evidence that she felt much more restricted during this admission than during her previous admissions. She felt that she being treated in a different way from previously because she had failed to improve as expected.
31. On Friday, 12 January 2001, in the course of a detailed review by Dr Ghosh (a Senior House Officer (SHO)), the Claimant explained that, during the incident on 9 January, she had been attempting to get attention. She described how she had opened a window upstairs "to get them anxious". She agreed that she may have been using her mental illness as an excuse to behave in ways that she would not normally do. She said that she now realised the negative effect her behaviour was having on her family and her relations with her family. Dr Ghosh recorded that he had:

"Advised pt [patient] to stop expressing her distress in destructive behaviour and that she has to take responsibility for her actions and we cannot stop her from attempting to harm herself."

32. Later that day, the Claimant's husband sought permission to take her off the Unit to the hospital canteen with the children over the weekend. Dr Green refused that request because of the Claimant's previous disturbed behaviour, suicidal ideas and threats.
33. During the days that followed, the Claimant complained of problems with sleep. She took a number of walks outside the Unit escorted by staff. She was reported as demonstrating some fluctuations in mood and behaviour.
34. On Monday, 15 January, the Claimant was observed to be shouting and screaming in the morning. She later said that she had been contemplating putting a plastic bag on her head but could not do it. In the lengthy note of the discussions at the Ward Round later that day, it is recorded that Ms Little described the events which had taken place prior to the Claimant's admission to hospital. She stated her view that the Claimant's main problem now appeared to be that of a personality disorder. Reports were also given by the psychologist who had been treating the Claimant and by the Ward Staff.
35. When she was interviewed, the Claimant repeated that her actions prior to her admission had been in order to secure attention. She was upset that she was not allowed out of the Unit or to see her children. Her husband expressed the view that it was unsafe for the family for the Claimant to return home in her present state. He also spoke about suicidal thoughts which the Claimant had confided to him.
36. At the conclusion of the Ward Round, a decision was taken to increase the Claimant's anti-depressant medication and to maintain her on the current (primary) level of observations without any unaccompanied leave from the Unit. There was to be a meeting with Social Services with a view to discussing the possibility of her transfer to a rehabilitation unit.
37. In the days that followed, the Claimant reported anxiety and sleeplessness. Her mood fluctuated and, on 18 January 2001, Dr Green again decided that she should not be permitted to have any leave from the Unit, save for an occasional walk with a member of staff.
38. On the nights of 21 and 22 January 2001, the Claimant exhibited disinhibited behaviour. On 23 January 2001, she remarked that she felt she was getting progressively worse and was worried that she was going mad.

The Events of 24 January 2001

39. On the morning of 24 January, the Claimant ran out of the Unit, went to the Northwick Park Tube Station and caught a train to Baker Street Tube Station. There, it appears that she got onto the tracks but was persuaded by a member of the public to climb back onto the platform. Subsequently, she was brought back to the hospital by the police.
40. The information received by the hospital staff (presumably from the police) was to the effect that the Claimant had been leaning over the railway track as if to jump. In fact, the police report which I have seen suggests that she may actually have jumped onto the tracks and the Claimant says that that is what happened. She does not appear to have told hospital staff about this at the time. The Claimant criticises the staff for not seeking further information from the police which might have revealed that the incident was more serious than they thought. However, it seems to me that the hospital staff had no reason to believe that they did not already have the full story. In any event, it does not seem to me that anything turns on the point. By the time the Claimant was asked about the incident, she was showing remorse and said she no longer intended to self harm. She agreed to stay in the Unit as an informal patient.

The Events of 26 January 2001

41. Following the incident on 24 January, the Claimant appeared to staff to be more calm and settled. In evidence, however, she said that her condition worsened from this point and she began to keep her thoughts to herself. She felt that the nursing staff were "totally unsympathetic" to her. No significant change in her demeanour appears to have been evident to those who were caring for her. The medical notes suggest that, even after 24 January, there were times when she discussed her problems with members of staff.
42. On 26 January, a further incident occurred. A gift of flowers from her former employer was delivered to her in the afternoon. This enraged her and she became abusive and agitated. She was physically aggressive to two nurses and to a doctor who was called to assist. She attempted to leave the Unit and had to be restrained from doing so several times. Eventually, she was given an injection of drugs while under restraint and was detained under Section 5(2) of the 1983 Act. I shall refer to this incident at greater length in due course.
43. Later that evening, the Claimant was said to be calmer and apologetic. Over the next two days, she remained more settled. On 28 January, there are references in the nursing notes to the fact that she was missing her children. By this time, it was almost three weeks since she had been at home.

The Ward Round on 29 January

44. On Monday, 29 January, there was a Ward Round, at which the events of the previous week were discussed. In the light of the Claimant's absconsion the previous week and the fact that she had been detained under Section 5(2), Dr Green and a Social Worker approved for the purpose carried out a formal assessment with a view to the possibility of detaining the Claimant under Section 3 of the 1983 Act. The Claimant explained to them that, on 24 January, she had been getting very frustrated on the Unit and had decided to run. She said that she "felt cornered, time to call it a day, saw no future". She had felt humiliated and hopeless when she returned to the Unit, was missing her children and not sleeping well. On 26 January, she had been very angry with her former employer and this had led to her outburst. She expressed a wish for more freedom to enable her to prove herself gradually and become a good mother. She said that she felt in danger of losing her mind because she could not sleep or see her children. She wanted to go back to her family and, meanwhile, to come and go from the Unit as she pleased on an informal basis.
45. Dr Green explained to the Claimant that, although she wanted to go home, her behaviour made it difficult to allow her to do so. The Claimant said that she thought that her attitude had changed. She said that she knew that this was her "last chance".
46. Dr Green concluded that, given the Claimant's assurances of co-operation, it was not necessary to seek to detain her under Section 3. However, she explained to the Claimant that, if informal arrangements became unworkable, detention under Section 3 would have to be considered again. Meanwhile, she judged it appropriate for the Claimant to have two daily periods of about 30 minutes off the ward in the hospital grounds in the company of her husband. She reduced the level of observations from primary to general.
47. In the afternoon and evening of 29 January, the Claimant seemed unsettled. She had little sleep that night. Over the next two days, however, she was reported as having been more settled. She had periods off the ward with her husband and family and with a friend. There was no sign of anxiety and she was described as settled, even "bright" and "cheerful" on occasions.

The Events of 1 February 2001

48. At the Ward Round held on Thursday, 1 February, it appears that the picture was generally positive. The Claimant's husband confirmed that she had been quite settled during her short periods of leave with him. She had been spending time playing games with other patients. Her concentration appeared good. Dr Green indicated that she was prepared to allow the Claimant a few hours' leave at home over the coming weekend. The note made on this occasion states:

"Explained that [the Claimant] remains unpredictable and because of her past history of suicidal behaviour there is obviously a risk of this occurring in the future, but this is to be balanced against [the Claimant's] need for time off the Ward and furthermore keeping [the Claimant] in hospital does not necessarily lessen the risk."

49. The note records that the Claimant's husband "accepts" this. It was agreed that the Claimant should go home for periods of up to three hours at the weekend. Dr Green also indicated that the Claimant could be allowed unescorted (i.e unaccompanied) leave around the hospital grounds.
50. In evidence, the Claimant's husband said that, by this time, he was in a state of desperation. He felt that he had no option but to accept the advice of the professionals. He said that, given the events of 24 January, he was "not happy" about the Claimant having unescorted leave in the hospital grounds, but accepted the professional view about this. He said that he could not remember whether he had voiced his concerns. Dr Green told me that the Claimant's husband was encouraged to give his views and on occasions did so. She did not remember him expressing any concern about the proposal for unescorted leave. Certainly none is recorded in the medical records which contain quite an extensive account of the discussion with him. Later, in his oral evidence, he told me that he could not remember actually being aware that his wife was having unescorted leave at this period.
51. The hospital records record that the Claimant seemed very settled for the remainder of 1 February and the following morning. However, on the night of 2 February, she got little sleep and, on 3 February, she was complaining of anxiety. In the afternoon or early evening, she had a long talk with Staff Nurse Paula King. The Claimant reported to her that she was distressed because of lack of sleep. She told Staff Nurse King that, on the previous Thursday (which would have been 1 February), she had felt so stressed that she went to Northwick Park Tube Station, bought a ticket and thought about "doing something stupid" before running away. Staff Nurse King attempted to persuade the Claimant to look at the incident in a positive light, by considering that she had successfully used coping mechanisms to enable her to resist the urge to self harm. Staff Nurse King recorded what she had been told in the nursing notes and it was brought to Dr Green's attention at the Ward Round the following Monday.
52. On the intervening Sunday, the Claimant appeared more stable in mood. She had hoped to go home for lunch that day and was disappointed when this proved impossible to arrange.

The Ward Round on 5 February 2001

53. On Monday, 5 February, there was a further Ward Round. There is a note documenting discussions with the Claimant and her husband. The Claimant reported that she was not sleeping well, although her sleep had been better the previous two nights. She was anxious about the family's financial problems and about being discharged from hospital. The incident the previous Thursday, 1 February, was discussed and she attributed her feelings then to poor sleep and low mood. She did not tell Dr Green that she had actually gone onto the railway track, as she now claims was the case. She told Dr Green that she had been talking to a fellow patient about carbon monoxide poisoning that morning, but had no thoughts of suicide at the time of the Ward Round. During a discussion between Dr Green and the Claimant's husband, he observed that the Claimant was worried that she had become "institutionalised" whilst in hospital.
54. It appears that Dr Green decided that leave should continue as before. I say "appears" because the medical note made by a junior doctor records "Conti [continue] c [with] the plan of going home accompanied by husband", i.e. it does not mention unescorted leave in the hospital grounds. However, a nursing note made by Staff Nurse King states, "Leave to be allowed c/o [care of] husband. Hospital ground leave" and this is what happened thereafter.
55. The Claimant was due to visit her home later on 5 February. During the morning, she confided to a member of staff that she was thinking of drinking week killer whilst at home. Her husband was informed. The visit went ahead nevertheless, but the Claimant was tearful on her return, saying that she could not cope with being at home and that "everything in the house looked different". She asked to go out for a walk in the early evening of that day, but because of her state of mind, the nursing staff advised her to stay on the Unit. She had a sleepless night and was anxious and agitated the following morning. Her mood settled after a visit from her husband.
56. On 6 February, the Claimant slept well with medication and, the following day, she seemed more relaxed and had a successful visit home during which she cooked dinner for the family. However, she had another sleepless night, worrying about the family's financial problems.

The Ward Round of 8 February 2001

57. At the Ward Round on Thursday, 8 February, Dr Green noted that the Claimant was having difficulty sleeping. Otherwise, no major change was reported. Dr Green decided that the current regime should be continued.
58. On Friday, 9 February, the Claimant was reviewed by Dr Bhatti, SHO. She was anxious about the family's financial problems and worried about not having a job. She was unable to sleep, except with medication. Dr Bhatti recorded that she was anxious and depressed. She told him that she had no plans to commit suicide but thought it was a difficult time for her. She felt she needed help in sorting out her problems. Dr Bhatti concluded that treatment should be continued as before and noted that she was due to visit a psychotherapist on 12 February.
59. Over the next weekend, the Claimant appeared to be reasonably settled during the day. She went off the Unit to make telephone calls, to visit the canteen and for walks. Her home visit was reported to have been successful. At night, however, she became anxious and unable to get off to sleep without a sedative which was administered as required.

The Ward Round of 12 February 2001

60. At a Ward Round on Monday, 12 February, the Claimant was said to have had a good weekend. Her difficulty in sleeping was discussed. The view of the nursing staff was that she slept more than she believed and it was decided that a sleep chart should be instituted to see if this was the case. It was reported to Dr Green that the Claimant had felt suicidal on Saturday, 10 February, and had contemplated "going to Beachy Head". The Claimant's husband told me that, on 11 February, he had learned that, the previous day, the Claimant had gone into Harrow, withdrawn money from her bank and bought a map of the district around Beachy Head. She had told some friends what she had done and he and they persuaded her to hand over the map and the money. He said that he told Dr Green about this at the Ward Round on 12 February. Dr Green could not remember what level of detail she had been given on that occasion, but recalled that she had been told about some suicidal ideation involving Beachy Head.
61. Dr Green increased the dosage of anti-depressant medication and added a sedative, to be given at night. The medical record of the Ward Round states "Conti [continue] with the current leave planned". The nursing notes state "leave with husband". It is clear from what happened afterwards that, in fact, the nursing staff were aware that Dr Green had intended that the Claimant should still have unescorted leave within the hospital grounds.
62. The Claimant's husband told me that, at the Ward Round, there was a discussion about leave arrangements for the following week. He said that he expressed anxiety about the Claimant having unescorted leave, in view of her poor sleeping and her general demeanour. He said that his understanding after the Ward Round was that the Claimant was to be permitted leave only in his company. He said that he felt reassured by that.
63. I am unable to accept the evidence of the Claimant's husband that he expressed concern about the possibility of unescorted leave at this Ward Round. First, as I have already said, he told me that he was not really aware that the Claimant had been having unescorted leave. This seems very unlikely to have been the case at the time and his uncertainty about this point suggests to me that his recollections of this period are understandably somewhat hazy. Certainly, a lack of knowledge that she was having unescorted leave appears at odds with the suggestion that he was expressing concern about it. Furthermore, if he had expressed any concerns, I would have expected them to have been carefully considered and a clear conclusion reached and documented. This was not done. Also, it is clear from Dr Green's evidence (to which I shall turn in due course) that she would have been unwilling to contemplate a position whereby the Claimant was having home leave, but was not judged suitable for unescorted leave, and this would no doubt have been discussed also.
64. In declining to accept his evidence on this point, I am not suggesting that the Claimant's husband has intentionally sought to mislead me. I have no doubt that he genuinely believes that he expressed concerns at the time. He must have gone through these events in his mind many times over the years and no doubt wished that he had acted differently on occasions. In this and one other respect, I believe that his memory is at fault.

The Consultation with Dr Bacelle

65. In January 2001, the Claimant was referred to Dr Lorenzo Bacelle, a psychotherapist. He assessed her for the first time on 12 February. He described her as "depressed, anxious and potentially suicidal". She expressed concern to him at the prospect of her husband's business going bankrupt and at the possibility that the family might become homeless. She expressed anger at her ex-employer for precipitating her depression and making her unable to work, at her husband for not providing financial security for the family and at herself for her own inability to work and to earn money. Dr Bacelle recorded:

"She has suicidal thoughts but she has no plans, although she has threatened people with suicidal gestures in the past. Killing herself is viewed as a means to express her anger and punish her ex-employer, husband and herself, as well as the means to avoid the pain associated with the total loss which she anticipates will happen."

66. He reported that the Claimant had "expressed an interest in coming back" to him and that he had arranged an appointment a fortnight hence.
67. Over the next two days, the Claimant's mood fluctuated. At times she was described as "calm", "bright" and "cheerful". At others, she was said to be "agitated", "tense" and "angry". On 13 February, she was asking a health care assistant about the number of patients from the Unit who had committed suicide. On 14 February, she told staff that she had kicked the lift door several times in frustration. She continued to complain of getting little sleep.

The Ward Round of 15 February

68. At the Ward Round on Thursday, 15 February, the Claimant complained that she was getting only one to two hours' sleep a night. This was corroborated by staff reports, presumably based on the sleep chart. She had been preoccupied by discussions about suicide with staff and other patients. Her mood was described as "labile". The possibility of electro-convulsant treatment (ECT) was discussed, but rejected. Dr Green prescribed an additional drug to treat the Claimant's anxiety. No alteration was made to the regime of leave.
69. On the night of 15 February, the Claimant was unable to sleep and was requesting more medication which was refused. The following day, she went for a walk in the morning and out with her husband for three hours later in the day. When she returned, she told staff that she had had an argument with him and felt that he did not want her back. She did not sleep that night.
70. On 17 February, she discussed her financial problems with the staff and chatted with other patients although she was described as "quite reserved". According to her husband's evidence, a visit home that day was not successful. (It may be that this was in fact the visit of the previous day to which I have already referred.) She is recorded as having slept reasonably for a few hours that night and thereafter only patchily. The Staff Nurse in charge of the ward overnight described her as "anxious" and "restless".

The Events of 18 February 2001

71. At about 8.30 a.m. on Sunday, 18 February, the Claimant spoke briefly to her husband by telephone. She told him that she was looking forward to going home for lunch that day. Some time after that, she approached Staff Nurse King and her named nurse (the nurse with primary responsibility for her), Emma Kennedy. She discussed with them her family problems, including her financial problems. She did not express any suicidal ideas at the time. Some time later - probably shortly before 10.00 a.m. - she asked if she could go for a walk to get some air. The nursing staff allowed her to do so. Later in the morning, they noticed that she had not returned. However, before they had considered what they should do, they received a message informing them of the Claimant's suicide attempt.

The Admission to St Mary's Hospital

72. Later on 18 February, the Claimant was admitted to St Mary's Hospital, where she was treated for her orthopaedic injuries and kept under constant observation because of the continuing risk of suicide. It is plain from her medical notes that her mood fluctuated constantly during her period at St Mary's. She expressed persistent suicidal ideas and was kept under close observation.

The Admission to the Cygnet Hospital

73. Although the original plan had been that the Claimant should return to Northwick Park Hospital, her husband refused to allow this and, through his M.P., managed to arrange for the Claimant to be transferred to a private psychiatric hospital, the Cygnet Hospital, at the expense of the local NHS Trust. It appears that the Claimant herself was ambivalent about the proposed transfer, at times voicing a wish to return to Northwick Park. However, on 7 March 2001, she was transferred to the Cygnet Hospital under the care of Dr Anthony Warren.
74. Whilst in the Cygnet Hospital, the Claimant continued to be subject to fluctuations of mood and instances of suicidal ideation. At first, she was an informal patient but, at the end of May 2001, she was detained under Section 3 of the 1983 Act after she had attempted to purchase paracetamol and, shortly afterwards, tried to rig up a makeshift noose in the bathroom.
75. At this point, consideration was given to transferring the Claimant to another Unit, possibly the Challenging Behaviours Unit at the Maudsley Hospital. Dr Warren commented in the medical notes that he and his staff were "struggling" with the Claimant. On 8 June 2001, in a Clinical Update Report, he observed that it was very difficult to assess the Claimant at that time because "at times when she appears well she has a tendency to panic and 'act out'". Dr Warren noted that he had warned her husband and her on 8 June that: "should things not work out and there be any backtracking or suicidal gestures then we would have to admit that we have reached the end of the road and we would have to hand her over to another Unit". He expressed the hope that the response to this warning would be further progress forward, but commented "we will just have to see."
76. A week later, Dr Warren reported that the Claimant had begun to improve once she was detained under Section 3, and once it was "made clear that she had basically absorbed all that we could deliver for her. Once we began to discuss the optional referral unless she declined and denied any suicidality". He stated that:

"She appears to have made a miraculous change in the past few days, mainly because she was confronted with real issues about where she was to be treated. How robust that change is remains to be proven."

77. At that point, Dr Warren decided that the Claimant was fit to go out accompanied by her husband provided that he was happy with this. From that time onwards, she had periods of leave from the Unit accompanied by her husband.
78. Within a fortnight, the Claimant was becoming anxious as a result of requests that she provide a statement about the activities of her former employer. She handed to a nurse a collection of plastic bags which she had been accumulating with a view to self harm. She told him that she was beginning to get thoughts of not wanting to live but did not want to act on them. She continued to go on leave accompanied by her husband or friends although she was not permitted to stay at home overnight.
79. The Claimant's condition deteriorated again in August 2001, when her husband's business went into voluntary liquidation and she learned that he was taking steps to initiate this action against Northwick Park Hospital. At that time, she was also suffering from an abscess on her leg and was admitted for treatment to St Mary's Hospital and later, to the Charing Cross Hospital.
80. Thereafter, her mental condition improved and she left hospital on indefinite leave on 3 October, after which she continued to attend regularly for assessment. Her leave continued until suitable follow-up arrangements could be made and she was eventually discharged on 10 January 2002.

The Incident on 10 February 2002

81. On 8 February 2002, there was considerable publicity about the activities of her former employer and husband. The Claimant was upset about the press reports, which had mentioned her name. Both she and her husband were in telephone contact with Dr Warren.
82. On 10 February 2002, the Claimant and her husband were due to go to a family party. She had had a sleepless night and did not want to go to the party and mix with people but was persuaded that she should do so. Dr Warren had further contact with the Claimant's husband in the afternoon and became concerned that the Claimant might require re-admission to the Cygnet Hospital. He made arrangements for a bed to be available just in case.
83. In the early evening, the Claimant's husband rang Dr Warren. He told Dr Warren that, while he had been driving back from the party at 75m.p.h on the motorway, the Claimant had tried to throw herself from the car. According to Dr Warren's note, the Claimant's husband told him that he had managed to stop the car, but had then had to hold the Claimant down and stop her from going off onto the motorway and killing herself. He had suggested to Dr Warren that he might need police assistance or an ambulance. Dr Warren spoke to the Claimant and calmed her down while her husband drove to the hospital. Dr Warren recorded that the Claimant's husband had "managed to get her to behave herself" and go quietly to the hospital.
84. In oral evidence, the Claimant's husband and Dr Warren tended to "down play" this episode and to suggest that they had overreacted. The Claimant's husband said that he was not sure that the Claimant had even got her hand on the car door handle. He denied that he had had to hold her down in order to prevent her from running onto the motorway. Dr Warren's contemporaneous notes are, however, clear and, in his witness statement, he described the Claimant as being in a state of "almost psychotic anxiety" and how she "attempted to throw herself in front of a moving car". Moreover, a note made at the Cygnet Hospital the following day refers to a conversation in which the Claimant's husband had told her that she had "nearly killed him on Sunday night while he was driving". I do not accept that this was an instance of overreaction to a minor occurrence. I believe that this was a serious and potentially life threatening incident.
85. Following her admission to the hospital, the Claimant did not make an immediate recovery. Her mood fluctuated and she was at times anxious and of low mood. From time to time, she had suicidal ideas. She was released from hospital on leave on 20 February, and continued to return regularly until her discharge on 25 February.
86. So far as I am aware, she has had no further recurrence of her mental health problems since this time. She has now managed to get back to full-time secretarial work, although not with the same degree of responsibility that she enjoyed previously.

The Law

87. I have been referred to the well-known authorities of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and Bolitho v City and Hackney Health Authority [1998] AC 232, from which can be distilled the following principles.
88. In order to succeed in establishing negligence against a doctor in a clinical negligence claim, a claimant must prove that the doctor failed to exercise the ordinary skill of a reasonably competent practitioner in his/her field, holding the position that he/she held and applying the standards prevailing at the time of the treatment. The issue of negligence cannot be approached with hindsight. The fact that a decision taken by a doctor led to a bad outcome does not necessarily mean that the original decision was negligent. The court must look at the information available to the doctor at the time the decision was taken. Only if that decision was such that no reasonable, well-informed and competent member of the profession could have taken will negligence be established.
89. A doctor will not be held negligent if he/she acted in accordance with a practice that is accepted as proper by a responsible body of practitioners skilled in the relevant field. The mere fact that a judge prefers one body of medical opinion to another is not sufficient to establish negligence. In Bolitho at page 243, Lord Brown-Wilkinson set out the position thus:

" ... in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence ... In my judgment that is because, in some cases it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relevant risks and benefits of adopting a particular practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence ... it would be wrong to allow assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."

The Claimant's Case

90. Central to the Claimant's case is the allegation that she should not have been permitted to leave the Unit unaccompanied on 18 February 2001. The decision that she should have short periods of unescorted leave within the hospital grounds was taken on 1 February. The Claimant contends that that decision was negligent.
91. The Claimant further contends that, even if that decision was not negligent, there were a number of factors which arose after 1 February and before 18 February which should have caused the decision to allow unescorted leave to be revoked. She contends that the failure to revoke the decision at any time during this period was negligent.
92. On behalf of the Claimant, criticism is also made of another aspect of her management while in hospital. It is alleged that she was managed as if she had a personality disorder, whereas in fact she had no such disorder and all her symptoms resulted from her depression. It is said that such management was negligent. The Claimant contends that this management had the effect of making her condition worse. In addition, it is alleged that the mistaken and unjustified belief of the hospital staff that the Claimant had a personality disorder contributed to the decision to allow her unescorted leave.
93. In essence, the Claimant's criticisms are directed at Dr Green, the Consultant in Charge of the Unit. She was responsible for the Claimant's management and for making decisions about leave.
94. The expert evidence in this case came from Dr Mark Slater, on behalf of the Claimant, and Dr Adrianne Reveley for the Defendant.
95. Dr Slater trained in New Zealand and then in various London hospitals, including the Maudsley. Since 1994, he has been a Consultant in General and Community Psychiatry at the Hertfordshire Partnership NHS Trust. In that role, he has dealt with a broad range of psychiatric disorders. He has considerable experience of the day-to-day care of patients on a psychiatric unit comparable to that at Northwick Park Hospital. He has some teaching responsibilities. Since 1989, Dr Slater has undertaken a considerable amount of medico-legal work of various kinds. He told me that this was the first clinical negligence action in which he had been involved.
96. I found Dr Slater to be a straightforward, open witness, who was at all times doing his best to assist the court. I am sure that he is a highly competent doctor. It is true, as the Defendant points out, that his views on the adequacy of the anti-depressant medication prescribed by Dr Green for the Claimant have changed during the currency of the case. This was due to a lack of rigour in his initial researches into the issue. However, I do not believe that this lack of rigour resulted from any desire to mislead the court, but rather from a lack of experience in the field of clinical negligence and the demands it places on expert witnesses. Once he realised his error, he was frank and open about it and did not seek in his oral evidence to conceal or minimise his responsibility for it.
97. Dr Reveley has an extremely impressive CV. She trained in Ireland and held various teaching positions at the Institute of Psychiatry. She published widely in the 1970s and 1980s. From 1983 until mid-2003, she was Lead Consultant Psychiatrist at the Maudsley Hospital. There, she was in charge of three in-patient units, treating patients with a whole range of psychiatric disorders. She emphasised that, despite her academic achievements, she was primarily a clinician. She now works as a Consultant Psychiatrist in private practice. Dr Reveley was an impressive witness with an experience of psychiatric practice that was plainly extensive. Both Dr Slater and Dr Reveley were in relevant practices in 2001 and were therefore able to give evidence about the standards prevailing at that time.

Diagnosis and Management of the Claimant's Condition

98. It is now common ground between the parties that Dr Green had correctly diagnosed the Claimant as having a depressive illness and that she was being treated with appropriate anti-depressant medication. She was also treated at times for anxiety, agitation and poor sleep.
99. Until September 2006, it had been the Claimant's case - based on the evidence of Dr Slater - that there had been a negligent failure properly to treat the Claimant's depression. However, after discussion with Dr Reveley at the experts' joint meeting, Dr Slater indicated that he had changed his view about this and the allegations relating to inadequate treatment with medication were therefore abandoned.
100. It is also common ground that, in addition to the symptoms typically present in a case of depressive illness (such as low mood, poor sleep, early morning waking with ruminations, low self esteem), the Claimant was also exhibiting abnormal behavioural characteristics. Those characteristics included her frequent suicide threats and gestures, and episodes of histrionic behaviour, (e.g. her aggressive outburst on receipt of the gift from her former employer).
101. The Claimant's case is that these abnormal behavioural characteristics were wrongly attributed to a personality disorder and were treated as such. In support of this contention, the Claimant relies on two features in particular: first, a reference in the medical records to a diagnosis of personality disorder and a conversation between Dr Warren and Ms Little in which this diagnosis was mentioned: second, features of the Claimant's management which, it is said, were consistent with, and appropriate for, a case of personality disorder, but not for behaviour associated with depression.
102. I shall deal first with the references in the medical records. In the note of the Ward Round of 15 January, it was said that "the main problem now appears to be that of personality disorder". Prior to the trial, the Claimant's advisers had believed that the reference was to a formal diagnosis made by Dr Green. In fact, it is clear that the observation formed part of an account of the Claimant's problems before her admission to hospital, given by Ms Little. Ms Little took no part in the Claimant's treatment whist she was in hospital. Nevertheless, Mr Climie, on behalf of the Claimant, points out that the suggestion that the Claimant was or might be suffering from a personality disorder does not appear to have been contradicted by Dr Green or anyone else and some of the nursing staff may have been influenced by it.
103. It is clear that Ms Little did not change her views. In a conversation with Dr Warren around the time of the Claimant's admission to the Cygnet Hospital, she referred to the fact that the Claimant was suffering from a "considerable personality disorder" and that, at times, her behaviour was manipulative. Dr Warren did not agree that the Claimant had a personality disorder and, as he explained in his witness statement, never regarded her as manipulative. His view was that her behavioural problems were a function of her depressive illness.
104. The Claimant also relies on an After Care Summary completed on 6 March 2001 by a health care assistant, Mr Greg Patching, and countersigned by Dr Bhatti. In that document, the diagnosis was said to be "Personality Disorder/Depressive Illness". A discharge summary written by Dr Bhatti (which is undated but was probably completed at about the same time) records the diagnosis as "anxiety and depression". It contains no mention of personality disorder.
105. Turning to the issue of the Claimant's management, a recurrent theme in the Northwick Park medical records is the need for the Claimant to take responsibility for her actions. I have referred to the note of December 2000, where Dr Green gave this advice. Similar advice was given subsequently by a junior doctor on 12 January 2001 and by members of the nursing staff at various times. A Care Plan, drawn up by Nurse Kennedy on 11 January, centred around the need for the Claimant to take responsibility for her actions.
106. Dr Slater was extremely critical of this approach. He said that it was completely inappropriate to use it when dealing with a patient who was severely depressed. An exhortation to "take responsibility for your actions" sounds perjorative and was not one he would use to any patient. A depressed patient is likely to have low self esteem and that would be aggravated by a feeling that staff were critical of his/her behaviour. Dr Slater said that it appeared from the notes that there had been quite a critical attitude towards the Claimant who was sometimes treated like a "naughty child". Dr Slater said that an assumption was made by staff that the Claimant was able to co-operate and control her actions. He suggested that this approach was consistent with a belief among the staff that the Claimant was suffering from a personality disorder and that her suicide threats were a form of "acting out", behaviour often seen in patients with personality disorders.
107. Such a personality disorder would typically give rise to lifelong persisting behavioural problems that may be quiescent for periods but "flare up" at times. Patients with personality disorder may be able (to some extent at least) to control their behaviour and it is, therefore, appropriate to take a collaborative approach, whereby they are encouraged to play a part in effecting their recovery and discharge from hospital. Dr Slater said that the position was entirely different with a person - like the Claimant - whose behaviour was caused by impairment of judgment arising as a result of severe depression. Such a person would not be able to control his or her actions.
108. Dr Slater accepted that Dr Green was treating the Claimant for a depressive illness. However, he said that much of her information would have come from the nursing staff who had day-to-day contact with the Claimant. His assessment, having read the notes, was that many of the staff - and probably Dr Green also - believed that it was the Claimant's personality that was causing her abnormal behaviour, including the frequent suicidal threats and actions. His view was that some of the nursing staff thought that the diagnosis was personality disorder alone. Another factor that helped to persuade Dr Slater that those treating the Claimant believed that a personality disorder was playing a part in her illness was the fact that she was allowed unescorted leave at a time when she was expressing suicidal ideas and putting some of them (partially at least) into practice. I shall discuss this aspect of his views in due course.
109. I heard evidence about the incident on 26 January when, following delivery of the gift from her former employer, the Claimant became agitated and aggressive. Two longstanding friends of the Claimant, Miss Eileen Eggington and Mrs Margaret Parker, had come to visit her and described how she was wholly unlike herself - wild, irrational, making growling sounds and baring her teeth. They were so concerned at her condition that they summoned a nurse to assist. On seeing the nurse, the Claimant went as if to grab her throat. She was restrained by one of her friends. Seeing the Claimant's state, the nurse went to fetch Nurse Kennedy.
110. According to Miss Eggington, Nurse Kennedy lectured the Claimant and told her that she could control her own behaviour and should do so. Nurse Kennedy prevented Miss Eggington from restraining the Claimant and, Miss Eggington said, actively encouraged the Claimant to kick her. Miss Eggington said that she then told the Claimant that she was going to report the assault and that she had independent witnesses. She threatened to call in the police if the Claimant assaulted her again. Mrs Parker told me that it was as if the Claimant was being goaded to do what she did. Both witnesses told me that they were upset by what they had seen. Knowing the Claimant as they did, they believed that her behaviour was caused by her illness and was beyond her control.
111. Nurse Kennedy gave evidence. She told me that she understood that Dr Green and the team believed that the Claimant had moderate to severe depression. She and her colleagues were responsible for administering the Claimant's medication and were aware that its purpose was to treat her depression. She said that she had never heard any mention of "personality disorder" or "personality" in connection with the Claimant. Her discussions with her colleagues and with medical staff had revolved around how to manage the Claimant's difficult behaviour. Nurse Kennedy said that the Care Plan drawn up by her on 11 January had been prepared after discussion with the Claimant about her problems. She denied that she had at any time told the Claimant that she must "take responsibility" for her actions.
112. Nurse Kennedy described her part in the incident on 26 January. She said that the Claimant had placed her hands around her neck and kicked her. The Claimant's friends had tried to intervene, but she was concerned for their and the Claimant's safety and told them not to do so. She denied that she had told the Claimant that she could control her behaviour and should do so, or that she had actively encouraged the Claimant to kick her or mentioned reporting her to the police.
113. Nurse Kennedy said that she had gone on to seek the assistance of a doctor and, after consultation with the medical team, the Claimant had been detained under Section 5(2) of the 1983 Act. She was subsequently given an injection of a sedative whilst restrained. She said that, had she believed that the Claimant was just behaving badly, she would not have sought medical assistance or participated in the decision to detain her under the 1983 Act, or to administer an injection while she was under restraint.
114. Nurse Paula King also gave evidence. She was a careful and impressive witness. She said that she was aware of the diagnosis of depressive illness and did not understand that a diagnosis of personality disorder had been made.
115. Dr Green told me that she was treating the Claimant for a depressive illness and that nursing staff were well aware of that fact. She said that it may be that Ms Little had different views about the diagnosis to which she was, as a professional, entitled. However, she was not part of the hospital team and played no part in the Claimant's management at Northwick Park. Dr Green said that, in addition to the depressive illness, the Claimant was exhibiting abnormal behaviour which had to be managed on a day-to-day basis. She was adamant that at no time had she treated the Claimant for a personality disorder. She pointed out that it would be unusual to keep a patient in hospital for such a long period in a case of personality disorder. She had considered ECT which would have been inappropriate in a case of personality disorder. When she was considering an alternative placement for the Claimant, she was looking at the possibly of transferring her to a rehabilitative unit, not a personality disorder unit. She said that all these factors demonstrated that she was not treating the Claimant as a case of personality disorder. She said that she had been aware that, following her time as an in-patient in 1980, the Claimant had functioned for many years, apparently without serious problems. That would be inconsistent with a diagnosis of personality disorder.
116. Dr Green agreed with Counsel for the Claimant that, where a patient suffering from a personality disorder was exhibiting histrionics or threatening self harm, an exhortation to "take responsibility" for his or her actions might be appropriate. However, she said that there were other circumstances when the exhortation might also be appropriate. In the Claimant's case, this was the way in which the staff sought to deal with her abnormal behaviour. She pointed out that, on occasion, (e.g. in December 2000 and on 9 January 2001), the Claimant herself had admitted that she had behaved in a certain way in order to gain attention, and on one occasion, her husband had described a "behaviour-tantrum". She said that, in those circumstances, it was not unreasonable to respond to the Claimant's abnormal behaviour by encouraging her to control herself and to take responsibility for her actions. She did not agree that the Claimant's abnormal behaviour was caused by impairment of cognitive function resulting from her depression (the explanation favoured by Dr Warren and Dr Slater). She said that she had never noticed any such impairment. Her view was that there were certain facets of the Claimant's personality which became magnified when she was depressed. Whatever the cause of her behaviour, however, it had to be managed. She did not agree with Dr Slater's view that, once the Claimant's depressive illness had been brought under control, her behavioural problems would necessarily have settled entirely. Indeed, she suggested that the history of events during and after the Claimant's admission to the Cygnet Hospital suggested that this was not the case.
117. Dr Reveley told me that she could not say, without examining the Claimant, whether she had a personality disorder. In early 2001, she was exhibiting some signs consistent with a personality disorder. Certainly, she had behavioural traits which were not typical of depressive illness and which made her difficult to manage. She agreed with Dr Green that this behaviour may have resulted from personality traits which became magnified when she was depressed. Dr Reveley said that, in psychiatry, diagnosis is not an exact science and, in many cases, is not the important factor. It is not unusual for a patient's diagnosis to change in the course of treatment. In the Claimant's case, therefore, she did not regard the cause of her abnormal behaviour as of great importance. The behaviour had to be managed, whatever its cause. Dr Reveley did not criticise the hospital staff for encouraging the Claimant to take responsibility for her actions. She said that it was simplistic to assert that this approach was "right" for patients with personality disorder and "wrong" for those with depressive illness. It is necessary to manage the patient as an individual and to deal with incidents of behaviour as they arise. Dr Reveley pointed out that the same behaviour had been evident during the Claimant's stay at the Cygnet Hospital. Staff there had had difficulty in managing her, to the extent that admission to a Challenging Behaviour Unit was at one time under consideration. Even after she had been treated with aggressive drug treatment at the Cygnet Hospital over many months, the incident of 10 February 2002 occurred, which appeared to be independent of her depression.
118. I am quite satisfied that Dr Green did not believe that she was treating a case of personality disorder. Such a diagnosis does not appear in any contemporaneous communication from her. The note of her discussion with Dr Warren shortly after the Claimant's admission to the Cygnet Hospital makes no mention of a personality disorder, although abnormal facets of the Claimant's behaviour, (including histrionics and "acting out") are mentioned. The fact that she considered a transfer to a rehabilitation unit and treatment by ECT also support my view.
119. Dr Green was very conscious of the difficulties presented by the Claimant's abnormal behaviour. It seems clear that she believed that, to some extent at least, the Claimant was able to control it. That is in my view not surprising, given the Claimant's own admission that her behaviour on occasions had been designed to attract attention or to cause others to be anxious about her. Dr Green and her staff were faced with what seems to me to have been a confusing and difficult picture and were doing their best to manage the Claimant's behaviour on the basis of the information they had in their possession. The fact is that, as at mid-January 2001, the Claimant had made many suicidal threats and gestures, but had not made any serious attempt on her life. I note also that, even as late as 12 February 2001, Dr Bacelle reported that she had suicidal thoughts but she had no plans, although she had threatened people with suicidal gestures in the past.
120. I accept the evidence of Dr Green and Dr Reveley that it is unduly simplistic to categorise methods of managing patients into those suitable for patients with depressive illness and those appropriate for patients with personality disorders. The Claimant presented a mixed picture and, in the circumstances, I can understand why it was thought that, on occasion, encouragement to control herself and to take responsibility for her actions was an appropriate way of managing her very difficult behaviour.
121. Having said that, however, it appears to me from the hospital notes that some members of the nursing staff carried this approach to an extent which made them appear unsympathetic to the Claimant and which may on some occasions have caused her additional distress. In saying this, I have in mind in particular Nurse Kennedy, some of whose entries in the nursing notes (e.g. "started to make a fuss!!", "continues to push boundaries") do appear somewhat critical in tone. I do not accept her evidence that she did not tell the Claimant to take responsibility for her actions. That was an objective specifically identified in the Care Plan which she devised on 11 January. On another occasion, she recorded an intention to draw up a contract so that the Claimant could be "accountable for her actions". Furthermore, I am satisfied that, contrary to her own account, she sought to manage the Claimant's outburst on 26 January by telling her to control herself. I do not accept the suggestion made by the witnesses that Nurse Kennedy actively encouraged the Claimant to strike her. However, I do accept that, once she had been struck, she sought to impress upon the Claimant the seriousness of what she had done by mentioning that she would report the matter to the police if she repeated the behaviour. I can well understand that, knowing the Claimant as they did, her friends were distressed at Nurse Kennedy's apparently unsympathetic attitude.
122. I am sure that, in managing the Claimant as she did on this and other occasions, Nurse Kennedy was doing her best to address the Claimant's problems. Immediately after the incident, she took all necessary steps to get medical assistance for the Claimant and to ensure her safety. As I have already observed, the Claimant presented a mixed picture and it is not in the circumstances surprising that staff gained the impression that she had a greater ability to control her behaviour that may in fact have been the case.
123. As Dr Reveley has pointed out, the staff at the Cygnet Hospital faced similar problems in managing the Claimant. On 1 June 2001, the Claimant was detained under Section 3 of the 1983 Act after she had made a number of suicidal gestures. At that time, ECT (an extreme form of treatment for depression) was being considered. A week later, however, Dr Warren referred to her "tendency to panic and act out". He reported, as I have indicated, that he had seen the Claimant and her husband and warned them "should things not work out and there be any backtracking or suicidal gestures then we would have to admit that we have reached the end of the road and we would have to hand her over to another unit". He expressed the hope that "the response to this will be further progress forward". The clear implication from these remarks is that he believed that the Claimant had some control over her behaviour and should exercise it. This view is reinforced by an entry made a fortnight later which states:

"She appears to have made a miraculous change in the past few days, mainly because she was confronted with real issues about where she was to be treated" and had "declined and denied any suicidality."

124. In this instance, the encouragement to the Claimant to assume some responsibility for her treatment appeared to have a positive effect.
125. In all the circumstances, I do not accept that the Defendant's management of the Claimant was negligent in the respects alleged. In my judgment, the approach adopted to her difficult behaviour was reasonable, given the picture as it then presented itself. Insofar as her treatment by any member of staff crossed the threshold into criticism and lack of sympathy, I would not characterise this as negligence. In any event, it could only have had a peripheral and temporary effect. There were other reasons for the Claimant's continuing distress and it is noteworthy that it had persisted for several months before - and did so for many months after - the events with which I am concerned. In my judgment, any overemphasis of the need for the Claimant to take responsibility for her own actions had no overall lasting effect on the course of her depressive illness.
126. I shall turn now to consider the issue of the granting of leave.
127. It is common ground between the parties that the granting of leave away from the ward or Unit where a patient is being treated is, in most cases, an integral part of the process of rehabilitating the patient, so that she or he can resume life in the community. The usual approach, once the patient is judged to be well enough, is to allow him/her a gradually increasing amount of leave until he or she has recovered sufficiently to be discharged altogether.
128. Dr Slater accepted that, in principle, it would have been desirable for the Claimant to have some time off the Unit and to see her children. However, these factors had to be weighed against the potential risks associated with granting her leave. At the time when the decision to allow leave was first made, on 29 January, the events of 24 January (when she had absconded to Baker Street) and of 26 January (when she became agitated and depressed after she had received the gift from her former employer) had occurred only days before. Her mood and behaviour were still fluctuating, unpredictable and unreliable and exposed her to a considerable risk.
129. Despite these factors, Dr Slater did not criticise the decision made on 29 January to permit the Claimant to have short periods off the Unit with her husband. However, he pointed to the note of 29 January, which recorded that Dr Green had explained to the Claimant's husband that she could not be kept in hospital indefinitely to prevent suicide. He said that this approach showed that Dr Green was viewing the Claimant as a patient with personality disorder, who would have a lifelong baseline risk of suicide. Such a patient may well be at risk of suicide at all times, whether he or she is in or out of hospital. The usual approach to treatment would be to contain the immediate behaviour, offer support, help and encouragement to the patient to get back on his/her feet and into the community, even if that gave rise to a continuing risk of self harm. Dr Slater said that that was not the position in the Claimant's case. In his opinion, the Claimant had a severe depressive illness which was affecting her judgment and making her liable to act impulsively. Once the Claimant's depression was effectively treated, the risk of suicide would recede and disappear.
130. Three days later, on 1 February, the Claimant's leave was extended to include a period of up to three hours at home at weekends. Again, Dr Slater did not criticise that decision. He considered that the risks associated with home leave were adequately met by the presence of her husband and other members of her family.
131. Also on 1 February, the decision to allow the Claimant short periods of unescorted leave in the hospital grounds was made. Dr Slater was highly critical of that decision. He regarded it as negligent. He said that unescorted leave presented a significantly greater degree of risk than leave accompanied by members of the Claimant's family.
132. Dr Slater said that the Claimant's depressive illness had not been brought under control by 1 February. Her mood was very changeable, her sleep was variable and her behaviour was a cause for concern. Dr Green's note described her as "unpredictable". All those factors led him to the conclusion that her depression had not resolved. Moreover, it was only a week since the incident on 24 January. It was, therefore, he said, too early to be confident that there was any real improvement in her condition.
133. Dr Slater believed that to give the Claimant leave without the presence of any other person placed her at unacceptable risk. He told me that no reasonably competent practitioner, who had believed that the only diagnosis was severe depressive illness and who knew the circumstances and had made a proper assessment of risk, would have granted unescorted leave at that time. He said that the Claimant should not have been permitted unescorted leave until her depressive illness had been brought under control and she had not expressed any suicidal ideas for a longer period. At that time, the risk would be low enough to be acceptable. This was, he said, the way in which leave had been approached when the Claimant was at the Cygnet Hospital.
134. Dr Slater was even more critical of the decision made by Dr Green at the Ward Round on 5 February to continue with unescorted leave. He emphasised that, by that time, it was known that the Claimant had failed to comply with her unescorted leave arrangements on 1 February and had left the hospital grounds and visited the Northwick Park Tube Station. Moreover, he pointed out that she had not admitted what she had done immediately. He agreed with Counsel for the Defendant that the fact that the Claimant had resisted her urge to self harm on that occasion and had reported what she had done (albeit two days later) were positive factors. However, the incident had occurred on her first period of unescorted leave and only a week after the incident at Baker Street Tube Station. These factors, he said, gave rise to a degree of risk which should have caused Dr Green to withhold unescorted leave. He said that there should have been a discussion about the Claimant's motivation for doing what she did and an investigation into whether she had acted on impulse or had been acting in accordance with a predetermined plan. Either would be worrying. He suggested that it might have been appropriate to stop all leave at that time - that option should, he said, have been considered. If the Claimant had not agreed with any restrictions on leave that Dr Green thought appropriate, she should have been detained under section 5(2) and a full assessment carried out once again.
135. Dr Slater agreed that leave may have had some therapeutic effects but said that these were outweighed by the risks. He agreed also that there appeared to be some improvement in the Claimant's mood during the early part of February. However, he considered that there was evidence of some deterioration in the days leading up to 18 February. The Claimant had been expressing suicidal ideas and had been sleeping little. Her mood was changeable; at times she appeared more settled and at others distressed and agitated. The deterioration and, in particular, the lack of sleep (which is a risk factor for suicide) should, Dr Slater said, have led to a withdrawal of unescorted leave.
136. Dr Green explained the circumstance of her initial decision to grant leave to the Claimant on 29 January. The Claimant had been assessed on that day with a view to detention under Section 3 of the 1983 Act, following her absconsion and attempted absconsions of the previous week. She had made a clear commitment to stay on the Unit voluntarily. She told Dr Green that her attitude had changed and Dr Green said that she was trying to harness that change in a positive way and to proceed by co-operation and negotiation. The Claimant said that she wanted time away from the Unit. She was missing her children. Dr Green said that patients can become despondent if they are restricted to the Unit for long periods. The Claimant had concerns about becoming institutionalised. Dr Green wanted to give her more freedom on a gradual basis. She said that she was trying to balance the Claimant's wants and needs with the risks that were inevitably associated with granting her leave. Dr Green told me that, in taking a decision such as this, it was necessary to take into account all relevant factors, including the patient's past history, her own observations, her assessment of the patient's mental state and physical appearance, the observations of other members of the multi-disciplinary team, together with what the patient and his or her relatives told her. In the end, it was a matter of individual judgment for the doctor. There was particular difficulty in this case because of the Claimant's behaviour, in particular her "acting out" and threats of suicide. Dr Green said that she had always recognised the risks inherent in the Claimant's condition and, indeed, there is a reference to them in the notes of the Ward Rounds on 29 January and 1 February. Nevertheless, she took the view that it was in the Claimant's best interests for some leave to be granted.
137. Dr Green said that, by 1 February, the short periods of leave appeared to be going well and she therefore felt it appropriate to extend the leave to allow the Claimant to go home for a few hours at the weekend. At the same time, she allowed her to have short periods of unescorted leave in the hospital grounds. Dr Green said that she would not consider it appropriate to permit a patient to have home leave if she/he could not be trusted to have short periods of unescorted leave in the hospital grounds.
138. Dr Green told me that decisions about leave are always difficult. A balance has to be struck and, in the Claimant's case, this was particularly difficult. On the one hand, she was displaying behavioural abnormalities and suicidal gestures; on the other she was wanting to go home. Her mood fluctuated. It was difficult to know how to take things forward. She felt that the balance was in favour of extending the amount of leave allowed to the Claimant.
139. Dr Green said that, at the Ward Round of 5 February, she was aware of the Claimant's visit to the Northwick Park Tube Station the previous week. However, her assessment was that, overall, leave was proving beneficial to the Claimant. She said that she had in mind the need for the Claimant to see her family, her desire for greater freedom and her fears of institutionalisation. Sleep disturbance was one factor which she would have taken into account. After discussing the matter with the Claimant and assessing her, she decided that leave should continue. She said that she wanted to give her freedom and hope. She regarded the fact that the Claimant had resisted her suicidal impulses and had reported her visit to Northwick Park as examples of her "managing" her own conduct. She considered that it might have been counter-productive to withdraw leave at that point.
140. Dr Green said that, at the Ward Round on 12 February, she was told that the Claimant had had ideas about going to Beachy Head. She did not remember any extensive discussion about these ideas or about the obtaining of maps and money. She said that the Claimant was not suicidal at the time of the Ward Round. She had had a good day with her family the previous day. Because of her complaints of lack of sleep, Dr Green added a sedative to her medication regime and increased the prescribed dose of anti-depressants. She said that she saw no reason to change the leave arrangements. On 15 February, she added further medication for agitation and, once again, left the leave arrangements unchanged.
141. Dr Green confirmed that it was always open to nursing staff to advise a patient against going out on leave at a particular time; indeed, the nursing staff had done so in the Claimant's case on 5 February. If they were uncertain about the patient's fitness to have leave, they could seek medical advice.
142. Dr Green told me that she believed she had acted with appropriate caution, in full awareness of the risks associated with giving leave to the Claimant. Given the difficult situation which she faced in managing and treating the Claimant, she did not believe that her decisions could be characterised as negligent.
143. Dr Reveley said that, when considering questions of leave, a doctor had to exercise his/her judgment using every bit of available knowledge about the patient. The risk of self-harm would be an important factor in the judgment. Dr Reveley said that the doctor has to bear in mind the risks associated with being over-restrictive in the approach to leave which, she said, can be as dangerous for a patient as an over-permissive approach. The opportunity for a patient to have leave home was very important.
144. Dr Reveley said that, like Dr Green, she would not usually allow a patient to go off the ward with a member of his/her family or a friend if she did not consider the patient fit to go out on his or her own. She would not think it appropriate for a relative or friend to assume responsibility for the patient in those circumstances. She expressed surprise that Dr Slater should have regarded it as acceptable for the Claimant to be allowed home in the care of her husband, but unacceptable for her to have unescorted leave in the hospital grounds. She said that the only circumstance in which she would take that view would be if the patient was confused or disorientated and would have difficulty finding his/her her own way around. She conceded that a companion would offer some safeguard in that he/she might be able to control any situation which arose. This would, however, depend upon the patient's co-operation as he/she could not be forcibly restrained. A companion would at least be able to inform the hospital what had occurred. However, she said that the essential decision to be made by the doctor lay between leave and no leave.
145. Dr Reveley told me that, having examined the medical records, she considered that the assessment of the Claimant on 29 January was a good one. She accepted that the Claimant's depressive illness and behaviour had not at that time been brought under control. Nevertheless, she considered that the decisions not to invoke Section 3 of the 1983 Act and to allow the Claimant short periods of leave with her husband were appropriate in the circumstances. She said that, by 29 January, the Claimant had been in hospital for almost three weeks and clearly wanted to go home. Since a decision not to invoke Section 3 had been taken (correctly in her view), Dr Green was obliged to give consideration to the Claimant's request. It would, Dr Reveley said, have been unethical not to do so. It was appropriate to negotiate with the Claimant and to start to allow her some leave.
146. Dr Reveley said that, by 1 February, the Claimant's depressive illness was still not under control and there were obvious risk factors. She said that, nevertheless, she regarded the extension of leave to include unescorted leave in the hospital grounds as reasonable. Indeed, she said that she would probably have made the same decision herself.
147. When asked by Counsel for the Claimant about the particular dangers associated with the setting of the hospital, she said that all surroundings can be potentially lethal. It is impossible to guard against every danger. She said that her experience was that, if a patient had an interest in killing himself or herself in one way and was thwarted, he/she would find another way to achieve his/her purpose. She said that it would be important to know where the patient might be and what they might be doing.
148. By 5 February, it was known that the Claimant had contravened the terms of her leave on 1 February by going to Northwick Park Tube Station. Dr Reveley said that it would have been open to Dr Green to withdraw leave at that point. Such a withdrawal, if made, should have been of all leave, not just unescorted leave. However, such action could have appeared punitive. The Claimant had confided what she had done to a member of staff and, if that had resulted in loss of leave, she might have been discouraged from making any similar confidences in the future. Dr Reveley said that Dr Green also had to take into account that leave was valuable to a patient and that psychiatric wards can become claustrophobic for patients who are confined there without leave for long periods. She said that the correct approach was for the doctor to discuss the previous non-compliance with the patient and reach a view about the level of risk. If the view had been that leave should be withdrawn, consideration would have had to have been given to detaining the patient under Section 3. Dr Reveley said that, having regard to the various factors to be taken into account, she did not agree that there should necessarily have been a withdrawal of leave at this stage or indeed at any stage between then and 18 February.

The Parties' Position

149. The Defendant's case is that, faced with the difficulty in managing the Claimant, Dr Green's decisions about leave were entirely reasonable. In the event of course, her assessment of the risks associated with such leave proved to be in error. Nevertheless, it is said, on the information available at that time, the decisions were such as might have been taken by many other reasonably competent consultant psychiatrists faced with a similar problem. Dr Reveley supports that view; indeed, having considered the medical notes, she observed that she would probably have made the same decisions herself.
150. On behalf of the Claimant, it is contended that the approach to leave taken by Dr Green, and supported by Dr Reveley, had no logical basis. The Claimant's case was a difficult one. A number of risk factors (i.e. fluctuating mood and behaviour, poor sleep pattern amounting towards the end to sleep deprivation, suicidal ideation with some concealment of such ideation and abnormal behaviour) were present. Her depressive illness and behaviour had not been brought under control. In those circumstances, it is argued that there was an obvious risk of self harm.
151. It is said that, knowing the risks, it was illogical and unreasonable to permit the Claimant to have unescorted leave. She should not have been allowed to go out on her own without a companion to stop her from acting in a way dangerous to herself. Moreover, the Defendant should have been aware that the hospital grounds offered easy access to the Northwick Park Tube Station and that, having regard to the Claimant's history of contemplating suicide on a railway track, that presented an additional risk. This risk was increased once her visit to Northwick Park on 1 February was known about and after her suicidal thoughts and preparatory actions on 10 February had been reported. The decision to permit leave to continue cannot be supported by logic and was therefore negligent, so it is alleged. These arguments are of course supported by Dr Slater.

Conclusions

152. Psychiatry - perhaps more than any other branch of medicine - is not an exact science. A doctor practising in this field has to make difficult decisions about the management and treatment of patients suffering from a range of mental illnesses and distress. Many of these decisions inevitably involve the assessment of risk, together with the balancing of any risk which may be present against the benefits of making progress with the patient's rehabilitation. The Claimant's was such a case.
153. From the medical records I have seen and from the way in which she gave her evidence, I have formed the impression that Dr Green is a capable, conscientious and careful doctor. It is clear from the records that she carried out regular reviews of the Claimant's condition and that those reviews included discussions (often quite lengthy discussions) with the Claimant and her husband, as well as with other members of her team. Her reviews were supplemented by reviews made at other times by junior doctors. During the period of the Claimant's admission, Dr Green made a number of adjustments to her medication in response to problems that were reported to her. These adjustments continued to be made right up to the time of the Ward Round immediately preceding the Claimant's suicide attempt. She was, in my judgment, making every effort to respond to the Claimant's needs throughout the period of her admission.
154. During the early part of the Claimant's admission, Dr Green did not wish her to have leave off the Unit and it seems that the Claimant was prepared to accept this. On 29 January, it appears to me that Dr Green was faced with a difficult dilemma. The previous week had seen the Claimant abscond on one occasion and attempt to abscond on two other occasions. This was against the background of the mixed picture of depression and behavioural problems which she presented. The Claimant was separated from her three young children and was naturally anxious to go home and see them. She was wanting more freedom. She was indicating a preparedness to co-operate and an apparent change of attitude. In the circumstances, Dr Green did not consider it appropriate to seek to detain the Claimant under Section 3 of the 1983 Act. It is not alleged on behalf of the Claimant that she should have done so. Given that the Claimant was to revert to being an informal patient, the situation was delicate, as Dr Reveley has explained.
155. There is no doubt that Dr Green had the risks associated with leave in mind and that she discussed them with the Claimant and her husband. The medical records of both 29 January and 1 February make this clear. I accept her evidence that she was seeking to balance those risks against the benefits to the Claimant that a greater degree of freedom would bring.
156. Dr Green took the view that short periods of unescorted leave confined to the hospital grounds should go hand in hand with home leave. Dr Reveley shared that view as a matter of principle and Dr Slater acknowledged that he was aware that some consultants would share Dr Green's view about that. I accept that her approach was reasonable. Given that fact, the decision she had to make was between a combination of unescorted and home leave and no leave at all. That did not make her task of deciding any easier.
157. I do not accept that the decision about unescorted leave taken by Dr Green on 1 February - or indeed, on subsequent occasions - was illogical or unreasonable as alleged on behalf of the Claimant. In my view, that analysis ignores the potential benefits of leave and the potential risks associated with the denial of leave. One interpretation of the Claimant's behaviour the previous week could have been that she was reacting to her confinement to the Unit. She herself described how, on 24 January, she had been getting very frustrated on the Unit and "felt cornered". She said that she had felt worse since being in hospital. She was plainly wanting a greater degree of freedom and a move towards rehabilitation. These were matters which Dr Green had to take into account. Moreover, by 5 February and 12 February, the entries in the medical records suggest that the Claimant was deriving some benefit from her leave, including the periods of unescorted leave.
158. I bear in mind also the fact that, up to 18 February, the Claimant had made no serious attempt to end her life, despite the many occasions when she had threatened to do so and/or had made suicidal gestures. I do not consider that Dr Green believed that she was dealing with a patient with personality disorder, but the uncertainty as to the cause of the Claimant's abnormal behaviour inevitably contributed to the difficulty of the decision that she had to make.
159. I am satisfied, therefore, that the course taken by Dr Green was not illogical or unreasonable and, indeed, was one that other reasonable consultant psychiatrists faced with the same problem might well have taken. I accept the evidence of Dr Reveley that this is the case and that, indeed, she herself may well have taken the same course.
160. In reaching that conclusion, I intend no disrespect to the views of Dr Slater. I accept that, faced with the same situation he - and others of his colleagues - may have assessed the risks differently. However, in my view, he underestimated the difficulties faced by Dr Green in evaluating and managing the Claimant, given the information then at her disposal. It seemed to me that he had been influenced to some extent by his knowledge of what had happened on 18 February 2001. Certain aspects of his evidence did seem to over-simplify the difficulties presented by the Claimant. For example, he was adamant that, once the Claimant's depressive illness had been brought under control, her behavioural problems (and therefore the risk of suicidal and impulsive behaviour) would have settled also. This view does not appear to me to be borne out by the incident which occurred on 10 February, 2002, following the Claimant's discharge from the Cygnet Hospital. It is clear from that incident that she was still liable to act impulsively and without thought for the safety of herself and others, even after her depressive illness had largely settled. As her husband observed at the time, that incident too could have had a tragic outcome. I accept the evidence of Dr Reveley that the picture was more complicated than that painted by Dr Slater.
161. I have the greatest sympathy for the Claimant's distress during 2000 and 2001 and, in particular, as a result of the events of 18 February. Nevertheless, it follows from what I have said that the Claimant's case on liability must fail. The parties have not invited me to make findings in relation to quantum and I do not do so.