Tyler Lukes v Kent & Medway NHS & Social Care Partnership Trust

Hearing date: 18 October 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 15 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is a case arising out of a claim for personal injury sustained by the Claimant (C) (born 5 September 1999) on 19 August 2020 when he jumped from height onto railway tracks and sustained serious injuries. In the year or so before this incident, and especially in the days leading up to it, there had been concerns about C's mental health, and he had been detained twice in 2019 under the Mental Health Act 1983 (MHA 1983). He had also been arrested by D2's officers for assaulting members of his family. Nothing in this judgment is intended to minimise the loss and suffering of C, his family or friends. Whatever the position in law, everyone accepts that what happened to C was tragic.

C has sued the Defendants, namely the Kent and Medway NHS and Social Care Partnership Trust (D1), and the Chief Constable of Kent Police (D2), for negligence. He says they failed to discharge the duties of care which they owed him, and that had those breaches not happened, the events of 19 August 2020 would not have occurred. (I grant D2's application to correct his name on the Claim Form from ‘Kent Police’ to his proper title).

Pursuant to s 88 of the Police Act 1996, D2 is liable in respect of any unlawful conduct of constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment.

D1 has filed an Amended Defence denying negligence. D2 has not yet done so. Both Defendants have applied to strike out C's claim and/or for summary judgment pursuant to CPR r 3.4 and/or CPR r 24.(3)(a) respectively. D2's applications have been made in advance of him pleading a Defence because he argues that C's Particulars of Claim (PoC) do not contain a factual basis upon which C could reasonably prove a claim in negligence against him, and/or C's case does not have a realistic prospect of success.

This judgment uses the following acronyms:

Background to the claim

The essential issue on these applications is whether the facts pleaded by C against D1 and D2 disclose a sufficiently strong cause of action in negligence, capable of giving rise to an award of damages. There has not yet been an exchange of witness statements for trial. The factual background as it currently stands is, instead, derived primarily from the evidence contained within the records mainly (but not entirely) created by both Defendants, as summarised in the pleadings and exhibited to the witness statements made for these applications.

I am required to determine the Defendants' applications to strike out on the basis that these assumed facts are true: CXA v Surrey County Council [2024] 1 WLR 335, [5]; Tindall v Chief Constable of Thames Valley Police [2022] 4 WLR 104], [75]. That said, it must always be borne in mind that there have been no factual findings in these proceedings.

So far as the summary judgment applications are concerned, as noted in the White Book 2024, [3.4.2], whilst as I have said for the purposes of CPR r 3.4(2)(a) the applicant is generally bound to accept the accuracy of the facts pleaded, in contrast, under CPR r 24.2, where the court is considering whether the case has a realistic prospect of success, the court may be required, without conducting a mini-trial, to examine the evidence that is relied upon to prove the claim and consider the evidence that can reasonably be expected to be available at trial: MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) (Master Marsh).

The alleged facts as taken from the pleadings are as follows.

C's prior mental health history

C has a family history of mental disorder. His paternal uncle had schizophrenia and died by hanging when he was 21 years old. A maternal cousin took her life. A maternal aunt of C's had bipolar affective disorder.

C's mental health issues started to emerge in about 2017/8, when he was approximately 18/19, although he had not ‘been himself’ since he was about 14 years of age.

In 2017/18, C broke up with his girlfriend. He started abusing steroids, used cannabis and occasionally took cocaine and ecstasy. He increasingly suffered from episodes of delusional thoughts, irritability, labile mood, aggression and paranoia.

C first came to the attention of mental health services in January 2019. On 24 January 2019 he had to be coaxed from the wrong side of the railings on a bridge by a member of the public. The police attended, but he refused to engage, telling them that he should have jumped. He was found not to be intoxicated or drunk. He was detained under s 136 MHA 1983 (removal of a mentally disordered person to place of safety without a warrant).

He was assessed by Helen Quinn, an Approved Mental Health Professional. This is a statutory function created by s 18 Mental Health Act 2007. He told Ms Quinn that what he did was an impulsive act after an argument with his sister; that he regretted his actions; and that he did not need help as he was fine. She considered that he demonstrated good insight into his situation.

Following a discussion with the assessing doctors, it was determined that there were no grounds for C's detention, and that hospital admission was not indicated, but that C would benefit from primary care counselling services or relationship therapy. He was discharged home with advice to see his GP who could refer him to IAPT services. He was also given the Crisis team number.

On 7 September 2019, C was arrested for allegedly putting his hands around his grandfather's neck in an unprovoked attack, and causing criminal damage by kicking a gate. He was not then detained under the MHA 1983. C's mother took him to the Emergency Department at Darent Valley Hospital, Dartford, as she was concerned by his personality change. He was saying that he wanted to kill himself and was hearing voices in his head. She called the CRHT team and the police for assistance, but was told that they had to wait for the psychiatric liaison team to assess him in the morning. She reported that he was becoming more agitated in the waiting room and was shouting and screaming. He believed he was Jesus and that he had been reincarnated. They left at approximately 20.30 without being seen by the psychiatric team.

On returning home, C assaulted his mother and was arrested by the police. Following assessment in custody at North Kent Police Station, he was admitted to Littlebrook Hospital, Dartford, under s 2 MHA 1983 (admission for assessment). He was not treated with any antipsychotic medication. The records state that his mental state gradually improved and there was no evidence of any strange behaviour or psychotic symptoms. He was discharged home on 11 September 2019. Referral to the CRHT was rejected on the basis that there was no active risk documented or acute mental illness. Involvement of the SPOA was similarly declined.

C was subsequently assessed by the Dartford, Gravesend and Swanley Mental Health Team on 13 September 2019. It was decided that he would be discharged from their services and referred to the Early Intervention for Psychosis Service, who assessed him on 19 September 2019. It was found there was no evidence of psychosis, grandiosity or delusional beliefs and as he did not meet their criteria, he was discharged back into the care of his GP.

In early 2020, C stopped working for the property management company that employed him on the delusional basis that all those working there were part of a cult and had raped him.

Events in August 2020

On 11 August 2020, D2's officers were called to C's home. He was arrested at approximately 16.29 for assaulting his sister and father, criminal damage and assault on an emergency worker. PAVA spray had to be used during the arrest. C was detained in police custody at Medway Police Station from 17.25 onwards. He was described as being...