Clinical law updates
On these pages I discuss the clinical law on which our nursing and medical staff rely when caring for our patients.
Mr Robert Wheeler, director, department of clinical law
Falling from hospital property
Hospitals have a duty to prevent incapacitated patients from hurting themselves. In 2011 James Spearman, a 47 year old man lacking capacity, was briefly left unattended in an emergency department. He wanted to leave. Passing though an unsecured door, he ascended five flights of stairs onto a flat roof. Piling up the outdoor furniture that he found there, he climbed over an incurving 1.4 metre barrier. Around 10.15 at night, in the darkness, James fell to the courtyard below.
He had developed type one diabetes at the age of 11, and then in 1987 suffered a traumatic brain injury in his early twenties. This injury required many months of rehabilitation, his family explaining that as a result ‘James detests hospitals’. The brain injury transformed him from an insurance broker to a person who lived a much-restricted life, but with a significant personality change. At times, he had very limited self-awareness and empathy with those surrounding him. This paradox of independence whilst lacking awareness is illustrated by the fact that by 1990 he was able to fly to a shooting trip in Scotland, but was arrested at Terminal 1 at Heathrow as he returned, since he chose to clean his shotgun whilst waiting to go through border control. This episode illustrates how Mr Spearman could fix upon an objective that he was trying to achieve whilst remaining oblivious to risks that this would entail.
On the night of his fall from the roof, James had been admitted with confusion after a hypoglycaemic episode. Following his fall into the courtyard, he can no longer live independently, needing assistance with all aspects of daily living.
Perhaps because of James’ new and permanent utter dependency, a claim against the hospital was made by his family. The court found that nowhere on the route that he had taken to the roof were there signs that access was unauthorised, and the doors were unlocked. The court found that the hospital should have provided direct nursing supervision of this confused patient, and restricted his movements by locking doors. The ‘lowest common denominator’ of the hospital’s duty was to take reasonable steps to provide for the safety of vulnerable patients with a mental disorder. Failure to control access to the flat roof was singled out by the judge as a reasonably foreseeable cause of an otherwise avoidable accident.
The defending hospital asked the court to consider whether Mr Spearman had contributed to the harm that he suffered by leaving the emergency department, and by failing to inform the staff that he was going to leave, or that he wanted to hurt himself. The judge made it crystal clear that he could not attribute blame to the patient on these grounds, any more than one would blame a young child from running out into the road. He found that neither this theoretical child nor the patient in question could appreciate the danger they put themselves into. ‘Otherwise, that would be to penalise a person for being ill or of unsound mind, and the law does not do that’.
This judgement suggests that our duty to ensure that vulnerable patients do not come to harm on hospital premises may extend to a need to control and supervise more generally the movement of patients in areas to which they have access. If the judge’s decision is followed by higher courts, this will have a significant effect on our practice. Either way, it can hardly be criticised on the grounds of common sense.
Department of clinical law, June 2018