Tue, 13 Apr 2021
Neil Shastri-Hurst recently successfully represented an NHS Trust in a Multi-Track claim, in which the Claimant’s case was dismissed following half-time submissions that there was no case to answer.
The Claimant had been employed as a healthcare assistant on an inpatient psychiatric unit. One of the inpatients, A, had been placed into seclusion after a period of violent and aggressive behaviour. Following a time of observation, A had largely settled and seclusion was ended. An hour after the cessation of A’s seclusion, he entered the communal area of the ward and proceeded to attack a member of the nursing staff. In the process of restraining A, the Claimant sustained an injury to her knee.
The Claimant subsequently brought a claim against the Defendant Trust, alleging that the Defendant, and its employees, had failed to carry out a proper risk assessment before ending A’s seclusion. Furthermore, the Claimant sought to allege the Defendant’s employee had failed to give proper instructions during the restraint of Patient A.
Under cross-examination, the Claimant’s case unravelled. She conceded that she had no knowledge or expertise in the risk assessment of mentally unwell patients. Furthermore, her role had never required her to be part of a multi-disciplinary meeting determining the issue of managing patients in seclusion. Notably, the Claimant was unable to identify where the Defendant had been negligent in terms of the risk assessment and no supportive expert evidence had been put before the Court. With respect to the allegation pertaining to the restraint, the Claimant, perhaps somewhat unexpectedly, conceded that she did not consider the Defendant to be negligent
Following the closure of the Claimant’s case, Neil made the unusual and rare application to dismiss the claim at half-time, with the Defendant being put to election.
Judgment was entered in the Trust’s favour, with the claim being dismissed.
The Judge noted that it “cannot be the Claimant’s case that ‘I saw nothing’ in terms of the risk assessment. That ‘I was not involved in the process’. That ‘I know nothing about the risk assessment’. It is not for the Defendant to prove that the risk assessment was correct. It is for the Claimant to prove the risk assessment was not correct. On the Claimant’s evidence there is no chance that the Claimant can prove the risk assessments were negligent. There was a clear decision to nurse [Patient A] in a private room. There was a clear plan in the notes. There has been no expert evidence from a psychiatrist that this was a wrong decision to make. The Claimant cannot prove the claim…there is not a shred of evidence that there was a risk of harm to the Claimant.”
Neil Shastri-Hurst is a barrister at No5 Barristers' Chambers and was instructed by Julie Byrne of Weightmans on behalf of the Defendant Trust.
