QB-2022-002447 - [2025] EWHC 2803 (KB)

The submission of D1 was, as set out above, to the effect that there was no assumption of responsibility, there was no promise, and no reliance. It was suggested by the Claimants that a service was being performed here, but that was not the case said Mr Weston - the AMHP was not providing services, she was not providing care. The assessment team were statutorily obliged in an assessment to consider the patient, but that did not give rise to a common law duty and this, it was submitted, was the same position as in HXA: the social worker was obliged to consider the interests of the child, but that did not create a duty. There was indeed said D1 a direct comparison to be made with the social worker in HXA. No duty was found in that case. This was not a clinical duties type of case - no one has assumed care of C3. The clinical duties began once a person was admitted and detained pursuant to the Act. Similarly there was no undertaking to protect here. Merely taking steps that will be of benefit to a person does not without more give rise to a duty to them- this was true of HXA and is, Mr Weston submitted true here.

Mr Bowen submitted that there was no policy reason, nor authority to suggest there could not be a parallel negligence duty with a statutory duty.

In the present case, accepting this was a case of asserted liability for an omission, he developed his submissions on the exceptions and assumption of responsibility by reference to the characterisation of the role of the AMHP. In answer to my question as to how HXA was to be distinguished, he submitted that the AMHP was “autonomous” and in a completely different position from the social worker in HXA. The former exercises their own judgement, here there is a therapeutic relationship. Although not a doctor, the AMHP performs a service he submitted of a medical and psychiatric nature. It is a sensitive and flexible area of the law he said and the position should be looked at globally - the whole transaction, as it were, constituted an assumption of responsibility. Looking at the totality of the evidence including the history with the former views of other doctors you cannot say this was merely performing a statutory duty: this is a professional relationship. This is a Hedley Byrne situation: telling C1 to go to the police.

The Claimants submitted that here there was an assumption of responsibility of the type considered possible in para [106] of HXA – thus

“106 We agree with Baker LJ that it is plainly incorrect to say that there can never be an assumption of responsibility by a local authority, in respect of social work functions, to protect a child from harm. The obvious example is where the local authority has obtained a care order and has thereby taken on parental responsibility for a child: see para 30 above. In that situation, therefore, the local authority has assumed responsibility to use reasonable care to protect the child from harm including harm from third parties”.

He also relied upon [108] and argued here there was reliance too as an example of what was described there:

“… for instance, in a case like YXA, where one has a vulnerable young child with learning difficulties, it would be inappropriate to insist on specific reliance by the child in order to and that there was an assumption of responsibility triggering a duty of care during the respite period.”

I disagree with this proposition. The AMHP is not, as submitted, taking on “a therapeutic and advisory role.” That is just not what the functions described entail in my judgement. It is not correct to describe what is happening as a “service” nor is it equivalent to a doctor/patient relationship. Responsibility was not assumed.

In paragraph [17] of HXA the following pleaded case was set out:

“Paragraph 14(l) alleges:

“In November 1994 there was a child protection investigation after the defendant received a referral alleging that [HXA’s] mother had assaulted [HXA]. The defendant’s social worker decided to seek legal advice with a view to initiating care proceedings. The defendant resolved to undertake a full assessment, but did not do so.

Para 14(vv) alleges:

On 27 January 2000, a child protection conference was held. It was noted that [HXA] had reported that [Mr A] had touched her breast. The defendant resolved not to investigate this due to fear of how [Mr A] would react and because it was wrongly thought that there had been no previous similar concerns. It was resolved to do keeping safe work with [HXA], although this was never done”.

On that basis, in paragraph [93] of HXA the Supreme Court said

“In relation to HXA’s claim we have set out the particulars in paras 14(l) and 14(vv) at para 17 above. HXA alleges that an assumption of responsibility flows from the facts in those paragraphs.…However, the nature of the statutory function relied on does not itself entail the local authority assuming responsibility towards HXA to perform the investigation with reasonable care. Furthermore, it is clear from para 81 of [Poole] … that a local authority investigating HXA’s position does not involve the provision of a service to HXA. Rather, the investigation is to enable the local authority to decide whether to bring care proceedings, which investigation would have involved determining the ability of HXA’s mother and her partner (Mr A) to keep HXA safe, the level of risk to HXA and whether the section 31 threshold was met. In addition, no facts are alleged in the particulars from which it could be inferred that HXA had entrusted her safety to the local authority or that the local authority had accepted that responsibility…”.

In my judgement that is a clear parallel with the present situation and no duty arises on the basis suggested by Mr Bowen. It is not possible as he submitted to “move forward by analogy” here so as to place a duty on the AMHP as urged.

Mr Weston submitted this was clearly not a control situation. In my view he is correct. It was very far from thespecial degree of control so as to create a duty of care to C3 as regards those he foreseeably injuredas in Dorset Yacht v Home Office [1970] AC 1004. In the present case C3 was not under any control on 23 December 2018, and when he attacked C1. On 14 August 2018, the only control he was subject to was police custody. The AMHP did not have control of, nor any power to control, C3. Furthermore, in any event, it is clear from Tindall as D1’s solicitor points out, that the power of control without any actual exercise of control is insufficient to found a duty (see para [85]).

It is sought to be said that there was in any event negligence in the time before the assessment, because certain information was not known or communicated to the team. Further, there were breaches of duty afterwards. Again, I do not agree that there are arguable breaches of duties owed by D1 arising from the matters pleaded here.

There is evidence of professional views formed in the course of the history amongst various professionals as to the state of affairs, and as to the correct approach at various different points in time, but there is no case pleaded that suggests there was negligence by D1, or that a duty lay on D1 whether through the AMHP or otherwise that was broken here. Furthermore, differences of professional opinion as regards a fluctuating mental health condition over a period of many months is not of itself evidence that one or more of those opinions was negligently held, or that steps not taken were negligently omitted to be taken. The presence of earlier difficulties shown in the notes could not point towards the assessment of 14 August being negligent; nor the failure to furnish the complete history of interactions with services. Such is not foreseen or necessary for the statutory task imposed by the relevant sections of the Act.

The Claimants also say that there exists already an established duty category into which the AMHP‘s actions fall. This is not a case where a policy consideration comes into play. Reliance was placed on the case of Darnley v Croydon Health Services NHS Trust (SC(E))[2019] AC 831 to support that proposition. Similarly on Tyler Lukes v Kent and Medway NHS Social Care Partnership Trust [2024] EWHC 753. 

I do not find Darnley of assistance. Darnley was a case in which the Supreme Court considered the position where a claimant arrived  at the accident and emergency department of the defendant’s hospital  explaining he had been assaulted by being struck over the back of the head and he thought that he had a head injury, that he was feeling very unwell and that his head was hurting. Both he and his companion said he needed urgent attention and was really unwell. He was told he would have to wait four or five hours before being seen by a medical person. He said he thought he could not, he thought he was about to collapse. The receptionist did not tell him as she should have done he would be seen by a triage nurse within 30 minutes. The claimant waited 19 minutes and then went home because he was feeling worse and was unwilling to wait for up to four to five hours. He deteriorated an hour later; an extradural haematoma caused permanent brain damage in the form of a severe and very disabling left hemiplegia.  The judge, although  finding that if  he had been told that he would be seen within 30 minutes he would have waited, and his later collapse would have occurred within a hospital setting, and he would have recovered,  held that it was not fair, just and reasonable in all the circumstances to impose liability.  

The Court of Appeal dismissed the appeal but it was allowed by the Supreme Court. They observed in that case that only where the Court went beyond established categories of duty did the fair just and reasonable policy assessment attach: here the case did not. The Court held it was in fact well established that there was a well-recognised duty to a person booked into a hospital system in this way, and thus placed in a relationship with the health care provider. That provider, the hospital, owed a duty not to act in such a way as foreseeably to cause a patient physical harm. There was no distinction between medical and non-medical in this situation - the defendant’s duty to take care not to provide misinformation to patients was not avoided by it having been provided by reception staff as opposed to medical staff. 

In Darnley the Court (Lord Lloyd-Jones with whom all agreed) reflected at para [15] that  

“it is, normally, only in cases where the court is asked to go beyond the established categories of duty of care that it will be necessary to consider whether it would be fair, just and reasonable to impose such a duty. The recent decision of the Supreme Court in James-Bowen v Comr. of Police of the Metropolis [2018] 1WLR 4021 was such a case and it was necessary for the court on that occasion to consider whether extension by analogy of established categories of duty was justified and the policy implications of such an extension. By contrast, Robinson itself involved no more than the application of a well-established category of duty of care and all that was required was the application to particular circumstances of established principles. 

It had been analysed in the Court of Appeal that it would “create a new head of liability for NHS health trusts”. But Lord Lloyd-Jones said: 

“To my mind, however, the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient: Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J, at pp 435—436.”