Selwood v Durham CC [2012] EWCA Civ 979

A senior social worker was seriously injured when a mentally ill father, known to NHS mental health teams, attacked her after making specific threats. The Court of Appeal held it was arguable that collaborating NHS trusts owed her a common law and Article 2 duty, and reinstated her claims.

Facts

The appellant, Claire Selwood, was a senior social worker employed by Durham County Council in the Children in Need Team. She was the designated social worker for the daughter of GB, a mentally disturbed man involved in family proceedings concerning his children.

The second defendant, Tees, Esk and Wear Valleys NHS Foundation Trust, operated various mental health teams, including a Child and Adolescent Mental Health Service (CAMHS), a Community Mental Health Team (CMHT) and a Crisis Resolution Team (CRT). The CMHT was an integrated health and social care team comprising staff from the trust and social workers employed by the council. GB became a patient of the CMHT and CRT.

The third defendant, Northumberland, Tyne and Wear NHS Foundation Trust, operated an acute mental health admissions ward at Cherry Knowle Hospital. GB was admitted there as a voluntary in-patient under the care of Dr Gupta, a consultant psychiatrist employed by the third defendant, who also had responsibilities in relation to the second defendant’s CMHT.

The three defendants had entered into a detailed protocol, “Working together in the delivery of services to adults and children”, governing multi-agency working and recognising potential risks to professionals, including circumstances justifying disclosure of confidential information to protect the health and safety of other professionals.

GB had a known history of violence and was recorded as posing a risk of harm to others. While an in-patient, he expressed hostility to an unnamed social worker involved in the court case, describing her as “the nastiest one”. It was alleged that the second and third defendants knew or ought to have known this was a reference to the claimant, yet did not warn her or her employer.

After discharge, GB was treated as an outpatient. Assessments by the CRT and CMHT recorded increased anger, paranoia and violent thoughts about particular individuals involved in his and his family’s care. On 31 August he said there was someone involved in the court case “who I dislike and wish to harm but I am trying to avoid her”. Internal communications within the NHS teams indicated that some staff expected this information to be passed to those involved in the family proceedings.

GB was readmitted as a voluntary in-patient on 13 October 2006. On 16 October a fax concerning GB harming another person, addressed to his care coordinator, arrived at the shared fax machine used by the CMHT and the council’s social workers. The appellant read it and discussed with the care coordinator whether it might refer to her, offering to attend a review meeting fixed for 18 October.

At the 18 October review, attended by Dr Gupta and staff of the third defendant, GB refused permission for the claimant to be present and said that he would “kill her on the spot” if he saw her. According to the SHA investigation report, a staff nurse told GB’s care coordinator (an employee of the second defendant) that GB had threatened to kill the social worker, now identified as the claimant, although the coordinator denied receiving that information. GB had previously given Dr Gupta permission to speak to the claimant about his prognosis and treatment.

At the end of the review Dr Gupta agreed that GB should go home on a week’s leave. No warning was given to the claimant or the council that GB had made specific threats against her or that he had left hospital. A case conference was convened for 20 October. No special security arrangements were made. GB attended and immediately attacked the claimant with a long-bladed knife, causing grave and lasting injuries. He later pleaded guilty to attempted murder and was sentenced to life imprisonment.

The claimant sued all three defendants. The council accepted that it owed her the usual employer’s duty of care but denied breach and blamed her for not doing more to protect herself. The second and third defendants applied to strike out the claims against them, arguing that they owed no duty of care in respect of the criminal acts of GB, a third party, and denying any breach of Article 2 ECHR. HHJ Walton acceded to that application and struck out the claims against the NHS trusts.

Issues

Common law duty of care

The central issues were:

• Whether it was reasonably arguable that the second and third defendant NHS trusts owed the claimant a common law duty of care to warn or otherwise take reasonable steps to protect her from GB’s criminal attack, in light of their knowledge of his specific threats and the close, protocol-based, multi-agency working arrangements.
• Whether such a duty required proof that the NHS trusts had assumed responsibility for the claimant’s safety (or at least to warn her), or whether the broader tripartite test in Caparo Industries plc v Dickman (foreseeability, proximity, and whether it is fair, just and reasonable) could be met without a formal assumption of responsibility.
• Whether public policy considerations, particularly those arising from cases such as Palmer v Tees Health Authority, Smith v Chief Constable of Sussex Police, Van Colle v Chief Constable of Hertfordshire Police, Mitchell v Glasgow City Council and Jain v Trent Strategic Health Authority, rendered it unfair, unjust or unreasonable to impose a duty on NHS trusts to protect an identified professional from a mentally ill patient’s criminal act.

Article 2 ECHR

The Article 2 issues were:

• Whether, in principle, an NHS trust can owe a substantive operational duty under Article 2 to take reasonable steps to protect the life of a person (such as the claimant) at real and immediate risk from a voluntary psychiatric patient.
• Whether, on the assumed facts, there was an arguable case that the claimant faced a “real and immediate” risk to her life from GB at the relevant time.

Procedural issue

An additional overarching issue was whether the claim was so clearly untenable that it should be struck out or whether, given the developing nature of the law on liability for third-party criminal acts, it should go to trial on full findings of fact.

Judgment

Approach to assumption of responsibility

Dame Janet Smith DBE held that the judge below had not, in strict terms, committed an error of law by treating assumption of responsibility as a legal prerequisite for a duty of care in respect of third-party acts. He had, however, erred in his approach to the facts and to the broader question of fairness, justice and reasonableness.

The Court of Appeal accepted that, since Caparo, it is not necessary for a claimant to locate their case within a pre-existing category, nor is a formal assumption of responsibility invariably required. The question is whether, in all the circumstances, the tripartite test is satisfied.

Nonetheless, assumption of responsibility remains an important route to establishing a duty in cases involving harm by third parties. The court emphasised that such an assumption may be inferred from the circumstances and need not depend on an express promise. The South African case of Silva’s Fishing Corpn (Pty) v Maweza, discussed and approved in Mitchell, illustrated that a court may treat a defendant as having assumed responsibility where the parties are engaged in a joint enterprise and the facts justify that inference.

Dame Janet Smith considered that Judge Walton had effectively confined assumption of responsibility to cases where something positive had been said or clearly done to indicate such an assumption. He did not consider whether the protocol and the working arrangements could themselves support an inference of assumed responsibility towards the claimant as a co-operating professional.

Having examined the protocol and the pleaded facts, the Court of Appeal held that it was open to a trial judge to infer that the second and third defendants had assumed responsibility, at least to do what was reasonable in the circumstances to reduce or avoid foreseeable risks of harm to employees of a co-signatory engaged in joint operations.

Caparo test and public policy

Foreseeability of harm and a measure of proximity were accepted; the key dispute was whether it was fair, just and reasonable to impose a duty. The court distinguished between duties asserted in favour of the public at large and duties owed to a limited, closely connected group.

In Mitchell, Lord Hope had stressed general public policy reasons against imposing duties on public authorities to warn potential victims of third-party criminal acts, including the impact on resources and defensive practices. He said:

“As in the case of the police it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from the alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities? There are other considerations too. Defensive measures against the risk of legal proceedings would be likely to create a practice of giving warnings as a matter of routine. Many of them would be for no good purpose, while others would risk causing undue alarm or reveal the taking of steps that would best be kept confidential.”

Lord Hope also observed that an assumption of responsibility could justify a duty to warn within a particular relationship:

“It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship.”

He concluded, as a general rule, that:

“I would conclude therefore that it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps they were taking ?.. I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has, by his words or conduct assumed responsibility for the safety of the person who is at risk.”

The Court of Appeal recognised that these policy considerations, and those summarised by Lord Scott in Jain, limit the imposition of duties owed by public authorities to persons outside the core class their statutory functions are designed to benefit. As Lord Scott had said:

“The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and potentially be adverse to the interests of the class of persons the powers were designed to benefit or protect thereby putting at risk the achievement of their statutory purpose.”

However, Dame Janet Smith emphasised that such constraints are not absolute. Public authorities undoubtedly owe common law duties to their own employees, even where potential conflicts exist between employee safety and the interests of service users. Moreover, previous decisions had recognised the possibility of “special circumstances” justifying a duty towards an individual even in the context of police functions.

The Court of Appeal held that Judge Walton had effectively applied public policy arguments as if the claimant were one of the general public, rather than recognising her as part of a small, identifiable class of professionals working in close, multi-disciplinary co-operation with the NHS trusts, in shared premises, under a joint protocol that expressly contemplated the need to disclose information to protect such professionals. That special position significantly reduced the force of objections based on floodgates and resource diversion.

Thorpe LJ, whose views Dame Janet Smith endorsed, stressed the importance of multi-disciplinary working in child protection and public law family proceedings, and the need to protect social workers undertaking inherently risky tasks. That consideration itself was relevant to what is fair, just and reasonable.

The Court concluded that it was at least arguable that, in the circumstances of this case, the Caparo test could be satisfied so as to impose on the NHS trusts a duty to take reasonable steps, including warning the claimant or her employer, in light of specific knowledge of GB’s threats and his release.

Decision on common law claim

The Court of Appeal held that the judge had been wrong to strike out the common law negligence claim against the second and third defendants. There was a real prospect that a trial judge, after hearing evidence on the protocol, working arrangements and the sequence of events, could find:

• that the NHS trusts had assumed responsibility, inferred from their joint working and protocol, towards the claimant as a collaborating professional; and
• that, in light of that relationship and the specific knowledge of GB’s threats to kill the claimant if he saw her, it was fair, just and reasonable to impose a duty to warn or otherwise seek to protect her.

The appeal was therefore allowed on the common law duty of care issue and the claim was restored for trial against all three defendants.

Article 2 ECHR

On the Article 2 claim, the judge below had relied on the Court of Appeal decision in Rabone v Pennine Care NHS Trust to conclude that there could be no Article 2 operational duty in respect of a voluntary psychiatric in-patient and that, in any event, there was no “real and immediate” risk to the claimant’s life.

Dame Janet Smith found that approach erroneous. Rabone in the Court of Appeal was primarily concerned with the hospital’s obligations towards a suicidal voluntary patient, not with duties towards third parties at risk from such a patient. Moreover, the Supreme Court had since reversed the Court of Appeal in Rabone, underlining the existence, in some circumstances, of an operational Article 2 duty towards voluntary patients at real and immediate risk of suicide.

The Court held that it was at least arguable that an NHS trust might be in an analogous position to the police, who may owe an operational duty to take reasonable steps to protect an individual whom they know faces a real and immediate risk to life from another person with whom they are dealing.

On immediacy, the judge had placed weight on GB’s earlier statement, on 24 August, that he was trying to avoid the claimant. Dame Janet Smith noted that this pre-dated the 18 October review, at which GB, following a period of disturbing symptoms including hearing voices and “seeing faces”, said he would kill the claimant if he saw her, and was then allowed home on leave. In those circumstances, it could not be said that the claimant had no real prospect of showing that there was a real and immediate risk to her life.

The Court of Appeal therefore held that the Article 2 claim was also arguable and should not have been struck out.

Implications

This decision confirms that:

• In negligence claims for harm caused by third-party criminals, assumption of responsibility can be inferred from joint working arrangements and protocols, not just from express undertakings.
• Public policy limits on duties owed by public authorities to protect individuals from third-party acts do not necessarily exclude duties owed to a narrow, closely connected class of professionals, such as social workers collaborating with NHS staff in multi-disciplinary teams.
• Where the law on liability for third-party criminal acts is developing, and the facts are complex, it is often inappropriate to dispose of such claims summarily by strike-out; they should ordinarily proceed to trial.
• Article 2 ECHR may, in principle, impose an operational duty on NHS bodies to take reasonable steps to protect the life of identifiable individuals at real and immediate risk from a voluntary psychiatric patient, depending on the factual nexus.

The case is significant for social workers and other professionals engaged in multi-agency safeguarding work with mental health services, as it recognises the potential for public law bodies to owe them protective duties when they are exposed to known risks from service users in joint operations.

Verdict: The Court of Appeal allowed the appeal, set aside the order striking out the claims against the second and third defendant NHS trusts, and remitted the case for trial on both the common law negligence and Article 2 ECHR claims against all three defendants.

Source: Selwood v Durham CC [2012] EWCA Civ 979