Clunis: the wider failures: Nigel Eastman, psychiatrist for the defence in the Clunis case, adds his voice to calls for a full inquiry

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The Independent Online
THE INTERNAL National Health Service inquiry that has been announced into how Christopher Clunis, a schizophrenic with several violent incidents behind him, came to kill a complete stranger at Finsbury Park station, is a totally inadequate response to what happened.

Clunis had passed through several police, hospital and social services departments and any investigation must involve more than the two health service regions between which he was latterly shuttled. It should also consider the wider aspects of psychiatric provision and the legislative background to this disturbing case.

If any failure of the public services is to be considered, the investigation must include the possibility of failure by the Crown Prosecution Service or the police. An internal NHS inquiry will be unable to address such aspects fully. It also holds the risk that doctors or social workers could be made into scapegoats for want of a broader inquiry.

For the Government to insist on an internal NHS inquiry is also inconsistent with the spirit of its own policy on the care of mentally disordered offenders, which emphasises the importance of a multi-agency approach, including close relationships with the police and the CPS.

A narrow health service inquiry is also unlikely to tackle the wider questions relating to current general psychiatric and social services practice. It goes without saying that community services must be adequate, but the problem with difficult or violent patients is often not that the patient refuses treatment, but that the doctor refuses to give it.

The closure of large hospitals and locked wards has reinforced a tendency among general psychiatrists to 'avoid' violent patients. Therefore the sub-speciality of 'forensic psychiatry' is increasingly requested to deal with patients who ought to be managed by the general psychiatric services.

In attempting to satisfy the needs of the great majority of - non-violent - patients for community care, the psychiatric services are tending to disadvantage the violent patient who needs a locked ward or highly staffed psychiatric care in hospital. There is a risk that a type of care which is sensible for the majority of patients may become a 'dogma' that excludes a minority of patients whose needs are different, to their detriment and to the detriment of victims like the man killed by Clunis.

A recent major government inquiry identified nationally only 700 medium secure hospital beds (one step down from maximum secure special hospitals) and estimated that the need was 1,500. The inadequacy of such beds apparently affected the care of Clunis after an earlier incident in which he is alleged to have attacked someone with a knife. It was reported in open court, for instance, that he was sent to a private psychiatric hospital because an NHS medium secure bed was not available.

It is clear that the services are not adequately funded. For example, the Government's original intention to offer pounds 4m for schemes to divert mentally disordered defendants from the courts and into the National Health Service was reduced to pounds 0.5m. Although the Government has allocated a substantial amount of capital to build medium secure beds, it has offered no money to regional health authorities to service those beds.

The separation of the functions of provider and purchaser that is happening under the NHS reforms could also encourage the district health authorities, as purchasers, to reduce provision of specialist forensic services under pressure from more 'popular' health needs.

It is crucial that any inquiry into the Clunis case should also address the way in which legal powers were used. There is much evidence that the powers available to doctors under the 1983 Mental Health Act are not fully used or perhaps even understood.

Patients do not have to be a danger to themselves or to others in order to be detained but they may be so detained 'in the interests of their own health'. For some reason this provision is little used. If it were to be used, combined with a (perhaps strengthened) 'Guardianship Order', additional powers through the use of a 'community supervision order' might be unnecessary in many cases.

Calls for such an order may in fact be a political smokescreen for the lack of forensic and general psychiatric resourcing. You cannot 'force' community supervision on patients if there are not enough community supervisors.

The trial judge in the Clunis case seemed to acknowledge that psychiatric and community care was generally inadequate. He asked the following question: 'Since I am most concerned about protection of the public, surely it would be safer if I passed a life sentence on this defendant, even though he is seriously mentally ill and his offence derived directly from that illness' (my paraphrase). His concern probably arose from the fact that a dangerous mentally ill patient was loose on the streets.

To use a legal turn of phrase, res ipsa loquitur, roughly 'the facts speak for themselves'. He was clearly implying that if community care was adequate, this type of killing would be unlikely to occur, or at least would be much less likely to occur.

It is very unusual for a judge to raise the possibility of a life sentence for a seriously ill defendant and in so doing, he appeared to be displaying a concern about psychiatric services generally - a concern that he refused to voice specifically in relation to Clunis.

Further, the judge's understandable concern for public safety caused him to ask a question which implied punishment of a man who clearly required treatment. The fact that, once sentenced, the prisoner could be transferred under the Mental Health Act to hospital is irrelevant to the point that he, and others, would view him as being punished. Also his treatment would inevitably be complicated and confused by the background of a life sentence. The one thing that is agreed in this case by every commentator is that Clunis was, and is, seriously ill. It must surely be wrong to punish a seriously ill man, particularly if the reason for that punishment is that other services are perceived to be inadequate.

It is possible that civil litigation in negligence might succeed in relation to the case of Christopher Clunis and other similar cases. If it is foreseeable that a doctor's patient might inflict damage on a third party, that knowledge might be sufficient to expose the doctor and his hospital to the risk of litigation. Similar arguments might apply in relation to social services.

There is a well-known American case, that of Tarasoff, that is instructive. A patient of a psychotherapist was infatuated with a (reluctant) Tatiana Tarasoff and said he had thoughts of killing her. When he did so, the psychotherapist was successfully sued for negligence by Ms Tarasoff's parents.

It may be that, with some modification, the same principle would be applicable in English law. I am personally aware of a case somewhat similar to that of Clunis where litigation on behalf of victims is in process.

It is also possible that Clunis himself might be in a position to launch an action against a hospital or an individual doctor for lack of care. Perverse though it may seem, were he to be successful, his damages would probably be more than any awarded to the victim's family. This is because the courts usually award lesser damages for death than for disadvantage during life.

One desirable aspect of negligence liability from the point of view of social policy is that it should encourage those whose actions can affect others to show due care. If victims were able to sue, this might help to ensure that district health authorities purchased adequate in-patient and community psychiatric services.

Because it would cost money, this might well be more effective than pressure from patients and their lobby groups. However, such cases are so rare that health and local authorities might take the cynical view, 'it's cheaper to pay for the odd case'.

It would be no 'defence' to a negligence action for the authorities to say: 'We applied a 'community supervision order' ' (if in future such a legal instrument existed) if it were then demonstrated that there were inadequate resources to effect such an order. The fact that the 'community supervision order' had been made might actually worsen the legal position of the authority, since it would provide evidence that it had accepted the patient's 'level of need'.

The Clunis case raises general issues far beyond what should be investigated by an internal health service inquiry.

The author is head of the Academic Section of Forensic Psychiatry, St George's Hospital Medical School, University of London.

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