Law Report: Patient could not claim against health authority

Law Report: 9 DECEMBER 1997
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A patient to whom a district health authority owed a duty under section 117 of the Mental Health Act 1983 to provide after-care services following his discharge from detention under section 3 of the Act had no private law claim against the health authority for damages for negligence or breach of duty, and in any event public policy precluded him from making a claim which was based upon his own illegal act.

Clunis v Camden and Islington Health Authority; Court of Appeal (Lord Justice Beldam, Lord Justice Potter and Mrs Justice Bracewell) 5 December 1997

The Court of Appeal allowed the appeal of Camden and Islington Health Authority against the refusal of their application to strike out a claim for negligence and breach of duty brought against them by Christopher Clunis.

The plaintiff, who suffered from a mental disorder, was discharged from hospital on 24 September 1992 after having been detained under section 3 of the Mental Health Act 1983. He moved into the area of a different health authority, and failed to attend two hospital appointments which had been made for him. The psychiatrist who had been designated as the responsible medical officer under section 118 of the 1983 Act arranged a mental-health assessment visit at the plaintiff's address, but he left before the visit.

He failed to attend a further appointment, and on 17 December 1992 local social services told the psychiatrist that the police had called them to say that the plaintiff was "waving screwdrivers and knives and talking about devils", although the police appeared to have taken no action to remove him to a place of safety under section 136 of the 1983 Act. Later that day, in a sudden and unprovoked attack, the plaintiff stabbed and killed Jonathan Zito. He was charged with murder, and his plea of guilty to manslaughter on grounds of diminished responsibility was accepted. He was ordered to be detained in Rampton Hospital, subject to the special restriction in section 41 of the Act.

Stephen Irwin QC and Jonathan Glasson (Thanki Novi Taube) for the plaintiff; John Grace QC and Andrew Grubb (Beachcroft Stanleys) for the health authority.

Lord Justice Beldam, giving the judgment of the court, said that the plaintiff claimed that he had suffered injury, loss and damage because the health authority had been negligent and responsible for breach of a duty of care at common law to treat him with reasonable professional care and skill. Had he been assessed before 17 December he would either have been detained or would have consented to become a patient, and would not have committed manslaughter.

The court would be precluded from entertaining the plaintiff's claim by the public policy that it would not lend its aid to a litigant who relied on his own criminal or immoral act, unless it could be said that he did not know the nature and quality of his act or that what he was doing was wrong. A plea of diminished responsibility accepted that the accused's mental responsibility was substantially impaired but it did not remove liability for his criminal act. Since the plaintiff's case was essentially based on his illegal act of manslaughter, the appeal would be allowed on the ground of public policy.

The duty to provide after-care arose under section 117 of the Mental Health Act 1983. The character of that duty seemed closely analogous to those described in X (Minors) v Bedfordshire County Council [1955] 2 AC 633 as requiring exceptionally clear statutory language to show a parliamentary intention to create a private law cause of action for failure to carry them out. The wording of section 117 was not apposite to create such a cause of action.

The plaintiff had submitted that, in effect, the relationship of doctor and patient which had existed between himself and the health authority while he was in hospital had continued after discharge, so that a common law duty of care was owed to continue his treatment. The question whether a common law duty existed in parallel with the authority's statutory obligations was profoundly influenced by the surrounding statutory framework. The statutory duty to provide after-care was different in nature from that of a doctor and a patient whom he was treating. The appeal would be allowed on that ground also.