Henderson v Dorset Healthcare University NHS Foundation Trust, Court of Appeal - Civil Division, August 03, 2018, [2018] EWCA Civ 1841

Resolution Date:August 03, 2018
Issuing Organization:Civil Division
Actores:Henderson v Dorset Healthcare University NHS Foundation Trust

Neutral Citation Number: [2018] EWCA Civ 1841

Case No: B3/2017/0199




Jay J

[2016] EWHC 3275 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/08/2018

Before :





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Between :

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Nicholas Bowen QC and Katie Scott (instructed by Russell-Cooke Solicitors) for the Appellant

Angus Moon QC, Cecily White and Judith Ayling (instructed by DAC Beachcroft LLP) for the Respondent

Hearing dates : 10 and 11 July 2018

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Sir Terence Etherton MR, Sir Ernest Ryder SPT and Lady Justice Macur :

  1. This is an appeal from the order dated 19 December 2016 of Jay J in which he held, on the trial of a preliminary issue, that claims in the common law tort of negligence brought by Ms Ecila Henderson (``Ms Henderson''), the appellant, against Dorset Healthcare University NHS Foundation Trust (``the Trust''), the respondent, were barred by the doctrine of illegality. This appeal concerns the correct interpretation of the authorities on the doctrine of illegality as it applies in the field of tort, as well as the impact on those authorities of the recent judgments of the Supreme Court in Patel v Mirza [2016] UKSC 42, [2017] AC 467.

    The factual background

  2. The parties agreed that the issue between them decided by Jay J should be determined on agreed facts. A full copy of the agreed statement of facts is appended to the end of this judgment. The following is an abridged summary of the facts.

  3. Ms Henderson 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 formal (pursuant to the Mental Health Act 1983 (``the MHA 1983'')) and informal hospital admissions. Her condition had recently worsened when, on 25 August 2010, whilst experiencing a serious psychotic episode, she stabbed her mother to death.

  4. At the time of the offence, Ms Henderson was under the care of the Southbourne community mental health team (``SCMHT''), which is managed and operated by the Trust. An independent investigation was commissioned by the NHS South West and the Bournemouth and Poole Adults Safeguarding Board. It found failings by the Trust in her care and treatment, ultimately concluding that, while the killing of Ms Henderson's mother could not have been predicted, a serious untoward incident of some kind was foreseeable based upon Ms Henderson's previous behaviour when experiencing a psychotic episode. The killing of Ms Henderson's mother was preventable and, had a rapid response been forthcoming, the tragic incident would probably not have occurred. It is, therefore, common ground between the parties that this tragic event would not have happened but for the Trust's breaches of duty in failing to respond in an appropriate way to Ms Henderson's mental collapse.

  5. Ms Henderson was charged with the murder of her mother. Having regard to the opinions of two consultant forensic psychiatrists, Dr Caroline Bradley and Dr Adrian Lord, the prosecution accepted a plea of manslaughter by reason of diminished responsibility. Foskett J, sitting at the Crown Court in Winchester on 8 July 2011, heard oral evidence from Dr Lord. Foskett J made a hospital order under section 37 of the MHA 1983 with a restriction order under section 41 of the MHA 1983. Ms Henderson has remained subject to detention pursuant to the MHA 1983 ever since. She is not expected to be released for some significant time.

  6. The sentencing remarks of Foskett J, so far as relevant, were as follows:

    ``On whatever analysis is made, this is a desperately sad and tragic case. In August last year, shortly after your 39th birthday, you repeatedly stabbed your 69-year-old mother, as a result of which she died.

    ``She had come to try to raise you in your flat when you had effectively locked yourself away for the previous few days. That she should die in these circumstances is the principal tragedy in this case, of course. What, however, is clear from all the evidence, expert and otherwise, is that when this awful event occurred you were in the midst of a serious psychotic episode, derived from the schizophrenia which has affected you for the best part of the last 15 years or so.

    ``For much of that time the condition has been kept under control with the assistance, including medication, that you have received from the local psychiatric teams with whom you have been in contact. Unfortunately the team was unable to get to you in time to prevent the terrible tragedy last year.

    ``There has, as Mr Grunwald has said, been a full review of the care being given to you at the time, and it is, I think, inappropriate for me to make any comment one way or the other about that, save to say that it is plain that lessons have been learned from it, as I understand, having read the report.

    ``The one thing that is clear, from the report, is a conclusion that there was little, if any, basis for believing that your mother would be a potential victim of any violence that you might display in a psychotic episode, and that conclusion and analysis seems to have been borne out by the two expert opinions that I have read in the context of this case.

    ``When you recovered from that psychotic episode, as you did, you appreciated fully what you had done, and you were distressed beyond measure.

    ``The very detailed and comprehensive reports I have seen from Dr Bradley and Dr Lord, to whom I express my appreciation, demonstrate clearly that your ability to act rationally and with self-control at the time of the incident was substantially and profoundly impaired, because of the psychotic episode to which I have referred, and to the extent that you had little, if any, true control over what you did.

    ``That means that the conviction for manslaughter by reason of diminished responsibility is obviously the appropriate verdict, and the prosecution has undoubtedly correctly accepted that is so.

    ``It is also that mental health background that informs and largely dictates how this case should be disposed of. It is quite plain that in your own interests, and in the interests of the public, if and when you are released, that the most important consideration is the successful treatment and/or management of your condition.

    ``I should say that there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did. Had there been any such suggestion I would have given serious consideration to making an order under section 45A of the Mental Health Act 1983 , however, on the material and evidence before me that issue does not arise.

    ``The joint recommendation of Drs Bradley and Lord is that you should be made the subject of a hospital order under section 37 of the Act, with an unlimited restriction order under section 41 of the Act.

    ``Dr Bradley says in her report that your illness is difficult to treat and monitor and that `A high degree of vigilance and scrutiny of mental state will be needed to ensure successful rehabilitation'.

    ``Dr Lord says in his report that the effect of such an order would be that you would be `detained in secure psychiatric services for a substantial period of time in order for such treatment and rehabilitation to be completed and to ensure the safety of the public'. The restrictions imposed by section 41, he says in his report and has repeated in what he has said to me, would be `invaluable in protecting the public from the risk of serious harm in the future'.

    ``Given those strong and firm recommendations from two experienced psychiatrists, who examined you and your psychiatric history with very considerable care, it seems to me that this is the order that I should make, and I will make it.''

    Legislative background

    The criminal law

  7. The offence of murder is committed when a person of sound mind unlawfully kills another, with the intention to kill or cause grievous bodily harm.

  8. If the mental illness of the defendant plays a part in the unlawful killing, two defences may arise.

  9. The first is the defence of insanity which requires the defendant to satisfy the M'Naghten rules. As formulated by Tindal CJ in M'Naghten's Case (1843) 10 Clark & Finnelly 200 at 209:

    ``... to establish a defence on the ground of insanity, it must be clearly provided that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong''.

  10. Provided that there is written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved, the jury may return a special verdict that the accused is not guilty by reason of insanity: section 2 of the Trial of Lunatics Act 1883 and section 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

  11. The second is the defence of diminished responsibility, which reduces what would otherwise be a conviction for murder to a conviction for manslaughter by reason of diminished responsibility. This is defined by section 2 of the Homicide Act 1957, as amended by section 52 of the Coroners and Justice Act 2009, as follows:

    ``(1) A person (``D'') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which--

    (a) arose from a recognised medical condition,

    (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

    (c) provides an explanation for D's...

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