Clunis v Camden and Islington Health Authority

JurisdictionEngland & Wales
JudgeLORD JUSTICE BELDAM
Judgment Date05 December 1997
Judgment citation (vLex)[1997] EWCA Civ J1205-7
Docket NumberQBENI 97/0044/E
CourtCourt of Appeal (Civil Division)
Date05 December 1997
Christopher Clunis

(by his next friend Christopher Prince)

Plaintiff/Respondent
and
Camden & Islington Health Authority
Defendant/Appellant

[1997] EWCA Civ J1205-7

Before:

Lord Justice Beldam

Lord Justice Potter

Mrs Justice Bracewell

QBENI 97/0044/E

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(MR RICHARD B MAWREY QC)

Royal Courts of Justice

Strand

London WC2

MR J GRACE QC with MR A GRUBB (Instructed by Messrs Beachcroft Stanleys, London EC4A 1BN) appeared on behalf of the Appellant

MR S IRWIN QC with MR J GLASSON (Instructed by Messrs Thanki Novy Taube, London WC1X 8QG) appeared on behalf of the Respondent

1

Friday, 5 December 1997

LORD JUSTICE BELDAM
2

This is the judgment of the court.

3

In these proceedings the defendant health authority applies to strike out the claim brought against it by the plaintiff, Christopher Clunis, as disclosing no cause of action. The defendant's application was dismissed by order of Mr R.B. Mawrey Q.C. sitting as a deputy judge of the High Court on 12th December 1996. The defendant now appeals to this court.

4

The Facts.

5

The plaintiff is a patient by reason of mental disorder. He was born on 18th May 1963 in Jamaica and in 1986 was treated as an in-patient at the Bellevue Hospital there. He appears to have come to the United Kingdom between 1986—1987, and from 1987 to 1992 he had received psychiatric treatment in several hospitals in the London area. In August 1992 he was detained as the result of an order under sec. 3 of the Mental Health Act 1983 at Guys Hospital, London S.E.1. On 24th September 1992 the responsible medical officer then in charge of his treatment decided he was fit to be discharged. Although no criteria are laid down under sec. 23 of the Act for the making of an order for discharge, it is reasonable to suppose that it was no longer considered necessary to detain him in the interests either of his own health or safety or with a view to the protection of other persons. It was, however, the district health authority's duty under sec. 117 of the Act to arrange in conjunction with the local social services authority to provide in co-operation with relevant voluntary agencies after-care services for the plaintiff until those authorities were satisfied that he no longer needed them. See sec. 117(2).

6

The plaintiff had expressed a desire to move to North London and into the area covered by the defendant health authority. Accordingly a doctor at Guy's Hospital contacted the defendant authority and arranged for the plaintiff to be seen at Friern Hospital on 9th October 1992. As a result of contact between the doctor at Guy's Hospital and the defendant authority, Dr. Sergeant, a psychiatrist employed by the defendant, was designated as the responsible medical officer as required by the Secretary of State's code of practice made under sec. 118 of the Act. The plaintiff failed to attend the appointment at Friern Hospital on 9th October. An appointment was then made for him to see Dr. Taylor, the consultant psychiatrist at the hospital on 13th November, but again he failed to attend. Dr. Sergeant telephoned the plaintiff's general practitioner, Dr. Patel, who said that the plaintiff had been removed from his list of patients because of aggressive and threatening behaviour. As a result, Dr. Sergeant telephoned Guys Hospital and then contacted Haringey Social Services asking them to arrange a mental health assessment visit. It was arranged that this assessment should take place at the plaintiff's address on 30th November at 3 p.m. On that day the plaintiff apparently left his address without being recognised by anyone in the assessment team; so the assessment did not take place.

7

Following a call from Haringey Social Services on 1st December, Dr. Sergeant arranged an appointment to see the plaintiff on 10th December. Dr. Sergeant asked the duty social worker to attend the meeting. It is contended on the plaintiff's behalf that, on the information she had, Dr. Sergeant's consideration of the plaintiff's needs "fell below minimum acceptable practice at that time". It was over two months since the plaintiff had been discharged from Guys Hospital and he had still to receive psychiatric care from the defendant authority. On 10th December the plaintiff again failed to attend his outpatient appointment and on 17th December Haringey Social Services advised Dr. Sergeant that local police had called them to say that the plaintiff was "waving screwdrivers and knives and talking about devils", but the constable had apparently not taken any action to remove him to a place of safety under sec. 136 of the Act.

8

Dr. Sergeant advised Haringey Social Services that the mental health assessment team should assess the plaintiff as soon as possible but that she first had to check which social services authority was responsible for the plaintiff. Later that day at about 3.45 p.m. the plaintiff, who had armed himself with a knife, in a sudden and unprovoked attack killed Mr Jonathan Zito at Finsbury Park tube station in London. The plaintiff was charged with Mr Zito's murder and on 28th June 1993 at the Central Criminal Court the plaintiff proffered a plea of guilty to manslaughter on grounds of diminished responsibility. The plea was accepted. The trial judge, Mr Justice Blofeld, ordered the plaintiff to be admitted to, and detained in, Rampton Hospital on the grounds that he was suffering from a mental illness characterised as a schizoaffective disorder. The court also ordered that he should be subject to the special restriction set out in sec. 41 of the Act.

9

The Plaintiff's Claim.

10

In his statement of claim the plaintiff contends that he has suffered injury, loss and damage because the defendant health authority were negligent and responsible for breach of a duty of care at common law to treat him with reasonable professional care and skill. In particular it is alleged that Dr. Sergeant was:

"…responsible for monitoring the implementation of the plaintiff's care plan and liaising and co-ordinating where necessary between the individuals and agencies involved in it".

11

She was negligent in that she failed to arrange a mental health assessment of the plaintiff before 30th November 1992, failed to identify him on 30th November, failed to ensure that an urgent mental health assessment was carried out before 17th December 1992 and in effect failed in her responsibility as a key worker to liaise effectively with police, the social services authority and other agencies to ensure that the plaintiff was assessed before he committed manslaughter on 17th December. It is said that from information she possessed Dr. Sergeant ought to have realised that the plaintiff was in urgent need of treatment and was dangerous. It is further contended on the plaintiff's behalf that if he had been assessed before 17th December he would either have been detained or consented to become a patient and would not have committed manslaughter. In consequence of the defendant's breach of duty he will now be detained for longer than he otherwise would have been and is unlikely to regain his liberty for many years because of the considerable public interest and publicity which attended his conviction.

12

A medical report is exhibited to the statement of claim. It is from Dr. Shubsachs, one of the consultant psychiatrists whose reports were relied on to establish diminished responsibility. The report contains the following paragraph:

"Mr Clunis had a history of seriously violent behaviour before the homicide of Mr Zito, and any relapses of his illness are likely to be marked by paranoid interpretations of events and delusions, and there must be a strong likelihood, if he did relapse, that violent behaviour would result. Thus, even if he had not attacked Mr Zito, the management of his illness in the community would have required close monitoring.

Therefore, the "prognosis" for the management of Mr Clunis, if he had not committed his index offence, would have been that he would probably have lived in the community for the majority of the time subject to acute exacerbations of his illness, perhaps requiring short admissions to hospital. From time to time he would probably have defaulted from medication. His mental state would have worsened and again he would have required short admissions to hospital, assuming he would not have disappeared from contact with the psychiatric services."

13

The Defendant's Application

14

For the defendant, Mr Grace Q.C. contends that the plaintiff's claim should be dismissed on two grounds. Firstly that the claim is based substantially, if not entirely, upon his own illegal act which amounted to the crime of manslaughter. Ex turpi causa non oritur actio. Secondly the cause of action is alleged to arise out of the statutory obligations of the defendant to provide aftercare following the plaintiff's release from Guys Hospital. The defendant contends that those obligations do not give rise to a common law duty of care.

15

In answer, Mr Irwin Q.C. for the plaintiff contended that the maxim ex turpi causa non oritur actio did not apply to causes of action founded in tort. Even if it did, the court should look at the seriousness of the offence to determine whether it was contrary to public policy that the plaintiff should be allowed to maintain a cause of action. As to duty, the plaintiff was still a patient who was in the care of the defendant authority and its doctors and nurses. His relationship with the defendant was that of doctor and patient which clearly gives rise to a duty of care. Even if that was not the relationship between the plaintiff and the defendant...

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