Henderson (a protected party by her Litigation Friend the Official Solicitor) v Dorset Healthcare University NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Hodge,Lady Black,Lord Lloyd-Jones,Lady Arden,Lord Kitchin,Lord Hamblen |
| Judgment Date | 30 October 2020 |
| Neutral Citation | [2020] UKSC 43 |
| Court | Supreme Court |
Neutral Citation: [2020] UKSC 43
Judges: Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin, Lord Hamblen
Court: Supreme Court
Facts: In 2010, EH, who had paranoid schizophrenia or schizoaffective disorder and had been detained under s3 Mental Health Act 1983 and released into supported accommodation on a Community Treatment Order with a care plan suggesting that the test for recall should be low, killed her mother. After arrest and charge, she was detained under s2 and then s3 of the 1983 Act; after being remanded into custody, she was held in hospital under ss48/49 of the 1983 Act. EH admitted manslaughter on the grounds of diminished responsibility, which the prosecution accepted, and in July 2011 was made subject to orders under ss37/41 of the 1983 Act, the sentencing judge expressly rejecting the option of a custodial sentence combined with an order under s45A of the 1983 Act, noting that there was no suggestion that she bore a significant degree of responsibility for her actions. An independent investigation into EH's care identified errors and found that a serious incident was predictable, such that the death of EH's mother was preventable. Under the Forfeiture Act 1982, EH was granted relief from the rule against forfeiture (which prevents those who kill others from benefitting from the death) to the extent of 50% in relation to some £120,000 she received under her mother's will. In 2013, EH brought proceedings against the Trust under various grounds, the central claim being negligent failure to recognise that her condition was deteriorating. The Trust admitted liability, accepting that it should have returned her to hospital and that her mother would not have died had that happened. Damages were claimed for (i) personal injury in the form of a depressive disorder and post-traumatic stress disorder from the killing, (ii) loss of liberty from the detention under ss37/41 of the 1983 Act, (iii) loss of amenity consequent on the killing, (iv) loss of 50% of her inheritance, (v) the cost of future psychotherapy and (vi) the cost of a future support worker. The Trust argued that each head of damage was excluded as from the time of the killing because either (i) it flowed from the sentence imposed by the court or (ii) as EH killed her mother, the ex turpi causa non oritur actio rule applied. The High Court ruled against EH and her appeal to the Court of Appeal was dismissed ([2019] MHLR 426). On a further appeal to the Supreme Court, the issues were:
(i) whether the decision of the House of Lords in Gray v Thames Trains Ltd[2009] UKHL 33, [2009] AC 1339, [2009] MHLR 73, in which it was found that similar heads of damage were irrecoverable, could be distinguished;
(ii) if not, whether Gray should be departed from and Clunis v Camden and Islington Health Authority[1998] QB 978, which involved a claim for damages for detention in similar circumstances, overruled;
(iii) if not, the recoverability of each head of damage.
The central argument for EH was that the Supreme Court decision in Patel v Mirza[2016] UKSC 42, [2017] AC 467 was inconsistent with Gray and the test applied in Patel did not preclude recovery; and that Gray should not apply to a claimant with no significant personal responsibility, the sentence imposed not having a penal element and it being appropriate to have a different approach to personal responsibility in tort and criminal law and inconsistent to punish in tort law by denying a claim when the criminal law had determined that a punitive response was not needed.
Appearances: N Bowen QC, K Scott and D Fairgrieve (instructed by Russell-Cooke Solicitors) for EH; A Moon QC, C White, J Ayling and J Goudkamp (instructed by DAC Beachcroft LLP) for the Trust.
Lord Hamblen (with whom Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden and Lord Kitchin agree):
1. The appellant, Ms Ecila Henderson, suffers from paranoid schizophrenia or schizoaffective disorder. On 25 August 2010 she stabbed her mother to death whilst experiencing a serious psychotic episode. She was charged with her mother's murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. That plea was accepted by the court and on 8 July 2011 Foskett J sentenced the appellant to a hospital order under s37 of the Mental Health Act 1983 (“the 1983 Act”) and an unlimited restriction order under s41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since and she is not expected to be released for some significant time.
2. The respondent, Dorset Healthcare University NHS Foundation Trust, has admitted liability in negligence in failing to return the appellant to hospital on the basis of her manifest psychotic state. The tragic killing of her mother would not have occurred had this been done.
3. The appellant advances various heads of damages against the respondent as a result of its admitted negligence. Liability for these heads of damages is denied on the grounds that the damages claimed by the appellant are the consequence of:
(i) the sentence imposed on her by the criminal court; and/or
(ii) her criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio/illegality.
Similar claims for damages to those made by the appellant were held to be irrecoverable by the House of Lords in Gray v Thames Trains Ltd[2009] UKHL 33, [2009] AC 1339, [2009] MHLR 73 (“Gray”), also a case of manslaughter on the grounds of diminished responsibility. The appeal raises the question of whether Gray can be distinguished and, if not, whether it should be departed from, in particular in the light of the Supreme Court decision concerning illegality in Patel v Mirza[2016] UKSC 42, [2017] AC 467 (“Patel”).
5. This is set out in detail in the agreed statement of facts appended to the judgments below.
6. In outline, the appellant was born on 10 August 1971. She has been diagnosed at different times as suffering from paranoid schizophrenia or schizoaffective disorder. She began experiencing problems with her mental health in 1995. From about 2003, she had various admissions to hospital, including formal admissions under the 1983 Act. Between April 2006 and June 2008, she was detained in hospital under s3 of the 1983 Act. She was then granted leave from hospital pursuant to s17 of the 1983 Act to enable her to live in the community. She was subsequently discharged from detention and placed on a Community Treatment Order (“CTO”) made under s17A of the 1983 Act (as inserted by s32(2) of the Mental Health Act 2007) on 14 January 2009. Her care plan stated that there should be a low threshold for recall to hospital pursuant to s17E(1) of the 1983 Act.
7. In August 2010 the appellant was living in supported accommodation, Queensland Lodge, pursuant to the CTO. She had resided there since November 2009. During this period, she was under the care of the Southbourne community mental health team (“SCMHT”), managed and operated by the respondent.
8. On or around 13 August 2010, the appellant began to experience a relapse of her psychiatric condition. She missed various appointments and, on 23 August 2010, when visited by a housing support worker, Ms Loynes, she appeared agitated and either would not make eye contact or would stare intensely. Concerns were expressed to SCMHT who decided to wait until 25 August 2010 to carry out an assessment, when the appellant's previous care co-ordinator would be available.
9. On 25 August 2010, the appellant's mother arrived outside her flat, having tried to get hold of her for several days without success. She knocked on the door demanding to be let in and then went down the garden to make a phone call to Ms Loynes to express her concern about the appellant's mental health and to ask if she could be let into the flat. Whilst she was in the garden the appellant approached her with a kitchen knife and stabbed her 22 times.
10. The appellant then walked out of the garden into an alleyway and onto the street. She was seen by several people, covered in blood and carrying the knife. She was described by witnesses as walking in an odd way with a detached crazy look. When she was approached by the police, she would not put the knife down. The police used an incapacitant spray on her and she was then taken into custody at Bournemouth police station, where she was charged with the murder of her mother.
11. On the same day, the appellant was admitted to a high security mental health unit. On 28 August 2010 she was transferred to a medium secure unit. She was detained pursuant to s2 and subsequently s3 of the 1983 Act. After the first court hearing the appellant was detained pursuant to ss48/49 of the 1983 Act.
12. Medical evidence in the criminal proceedings was obtained from 2 consultant forensic psychiatrists, Dr Caroline Bradley and Dr Adrian Lord.
13. Dr Bradley was asked her opinion as to whether the grounds for the defence of insanity had been established. She expressed the view that the appellant, albeit floridly psychotic and under the influence of auditory hallucinations and delusions about her mother, nevertheless knew what she was doing was wrong in terms of the act of stabbing her mother and she knew that this was legally wrong. Dr Bradley also considered whether there was sufficient psychiatric evidence to establish the defence of diminished responsibility...
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