W. v Egdell

This appeal raises in an unusually stark form the question of the nature and quality of the duty of confidence owed to a patient detained in a special hospital pursuant to a hospital order coupled with a restriction order by an independent consultant psychiatrist engaged on behalf of the patient to report on the state of his mental health in connection with a forthcoming application to a Mental Health Review Tribunal for his discharge.

The plaintiff, W, appeals to this court against the dismissal by Mr. Justice Scott of his claim for damages and other relief against Dr. Egdell for alleged breach of confidence. The circumstances which led to his conviction and the making of the hospital order are summarised in the judgment of Mr. Justice Scott which is reported in [1989] 2 W.L.R. 689.At page 693 the judge described the circumstances:

"About ten years ago W shot the four members of a neighbouring family. He shot another neighbour who had come to investigate the shooting. He then drove off in his car, throwing hand-made bombs as he did so. Later the same day he shot two more people, not neighbours, but strangers to him. Five of his victims died of their injuries. The other two needed major surgery for serious bullet wounds. W was diagnosed as suffering from paranoid schizophrenia. It was believed by the doctors who examined him that he had been suffering from this illness for about two years before the offences. The illness involved delusions that he was being persecuted by his neighbours. In the circumstances W's plea of guilty to manslaughter on the grounds of diminished responsibility was accepted by the Crown and he was convicted accordingly. Orders were made under sections 60 and 65 of the Mental Health Act 1959, now sections 37 and 41 of the Mental Health Act 1983, providing for his detention without limit of time. He was at first detained at Broadmoor Hospital. In 1981 he was transferred, in accordance with a transfer direction given by the Home Secretary, to a secure hospital in the North of England. Reference hereafter in this judgment to 'the Hospital' will be references to this hospital where W is still detained."

In 1984 a Mental Health Review Tribunal recommended W's transfer to a regional secure unit. This was intended to be a first stage in a rehabilitation programme leading to discharge into the community. The Secretary of State, however, refused to approve the transfer. The plaintiff's responsible medical officer, Dr. Chandra Ghosh, however, recommended to the Secretary of State that W should be transferred to a regional secure unit. The Secretary of State refused to consent to a transfer by a letter of the 20th May, 1987 in which he set out his reasons. Shortly before that date W had consulted solicitors with a view to making an application to a Mental Health Review Tribunal for his conditional discharge. He was granted legal aid for the purpose of his application and the certificate included an authorisation to obtain an independent psychiatric report. On the 19th May, 1987 Dr. Ghosh as the responsible medical officer for W made a statement pursuant to the Mental Health Review Tribunal Rules 1983 for the purposes of the forthcoming tribunal hearing. Her report under the heading "Present Mental State" stated:

[W] has been diagnosed as suffering from Schizophrenia. His mental illness is now controlled by medication and he has been stable for the past 2 years. He has considerable insight into his mental state and accepts the need for continuing on medication. He also realises that he requires close and careful monitoring of his mental state.

It is my opinion that [W] requires to move gradually through graded security with maximum and immediate supervision being available in the early stages. [W] was recommended for transfer on 20 March 1985. He has been accepted by Doctor R Cope for…Regional Secure Unit at…Hospital on 20 June 1986, his previous Mental Health Review Tribunal supported a recommendation of transfer to a Regional Secure Unit.

We are still awaiting Home Office permission for such a move."

A copy of that statement was sent to W's advisers. A statement by the Secretary of State for consideration by the tribunal followed in June 1987. That statement which is to be found at pages 168 and 169 of the bundle before the court set out the circumstances of the offences leading to W's admission to hospital and concluded with the Secretary of State's observations on the patient's suitability for discharge. It stated:

"The Home Secretary has noted Dr Ghosh's report of 19 May but, having given the most careful consideration to all the circumstances of the case, he is unable to consent to her recommendation to move [W] to the [Regional Secure] Unit at this time. He feels that there is a need for the utmost caution to be exercised in this case and he would expect [W] to show a very long period of stable behaviour before commencing on a programme of rehabilitation, bearing in mind his indiscriminate violence towards his victims in the index offence. Furthermore, he would feel more confident towards [W's] removal from conditions of maximum security when his interest in weapons has been more fully explored and explained and he would be prepared to consider the case for [W] to move to a secure unit in perhaps 18 months' time in the light of these findings. He will in all probability wish to refer any future proposals to the Advisory Board on Restricted Patients."

In late 1985 and early 1986 at the instance of Dr. Ghosh, W underwent an assessment of his personality by a clinical psychologist, Mr. Tulloch. In his report of the 18th April, 1986 Mr. Tulloch said:

"It is not possible to shed much light on [W's] pre-morbid personality from this assessment."

Further:

"It should also be borne in mind that [W] is not an 'immediate' danger. He was clearly mentally ill at the time of his offences, this process having built up over a prolonged period. Given that he is now stabilised on medication his dangerousness is significantly reduced. A [regional secure unit] would, therefore, seem to be an appropriate placement. Exploration of his personality at a more detailed level would be useful in terms of preparation for future community survival and this can probably be achieved more readily within an RSU context."

It concluded with a " Summary":

"This brief assessment of [W's] personality does not reveal any significant disturbance. Two main areas of dynamic tension, emotional dependence and self-concept, were noted although it is not possible to do more than speculate on their pre-morbid significance. Exploratory psychotherapy may be more helpful in this situation and it is suggested that this would be more appropriate in an RSU setting."

On the 2nd July, 1987 solicitors acting on behalf of the plaintiff instructed Dr. Egdell to report on W's mental state. Dr. Egdell is a distinguished consultant psychiatrist. He is also a clinical lecturer at a university and a member of a Mental Health Review Tribunal. His instructions were "to attend upon our client and complete a report for use at his forthcoming Mental Health Review Tribunal." Dr. Egdell submitted a report on the 29th July, 1987. It is a detailed psychiatric report. Under the heading "Interest in Fireworks", Dr. Egdell said:

"At the age of about ten or twelve he began to make fireworks to let them off in the back yard. As an adult he continued to make them regularly over a number of years. He would buy the ingredients from 'any chemist' and 'make them in the garage' 'for something to do'. He says that about once a month he would go off into the country to let them off and said he would perhaps explode a couple at a time. They would consist of a steel piping packed with chemicals and a fuse which he lit. He reports that on at least one occasion he let them off in a canal bank near home. He reports that he 'always' carried some made up explosives in his car. When asked if there was a potential danger he confidently replied 'there was no danger if you threw them far enough away'.

[W] told me that immediately after the first shooting in the index offence he threw, he thinks, two or three of them out of the car and thinks two of them went off. When questioned further about this [W] became very tense and said: 'I can't remember any more of that' and was unwilling to discuss this further. One opinion recorded in the report of the index offence was that the home made bombs were 'sophisticated'".

Dr. Egdell then gave his "Psychiatric Opinion and Recommendation". Under the heading "Illness" he said:

"I was not convinced that he really had insight into his illness. He verbally stated that he accepted medication but this appeared to be to avoid being labelled as a 'psychopath' and secondly the illness was used as an excuse to avoid considering the motivation behind the killings. He may not even have faced up to this himself."

Under the heading "Personality at page 60 Dr. Edgell said:

"There was striking lack of remorse even at a simple verbal level. For example the wife at the garage 'made a fuss' so she was shot. He showed no...