Killer not able to bring clinical negligence claim in her own right: Ecila Henderson v. Dorset healthcare university NHS foundation trust (Supreme Court,30 October 2020)

Introduction

Ms. Henderson (EH) killed her mother whilst experiencing a serious psychotic episode. The trust admitted negligence in respect of her psychiatric care. The issue to be determined was whether EH could recover damages, in her own right, for losses she claimed to have suffered.

Facts

EH was born in 1971 and began experiencing mental health problems in 1995. She was admitted to hospital on several occasions subsequently and, at different times, diagnosed as suffering from paranoid schizophrenia or schizoaffective disorder. Between April 2006 and June 2008 she was detained in hospital under section 3 of the Mental Health Act, 1983. She was then granted leave of absence to live in the community, but her care plan stated that there should be a low threshold for recall to hospital.

In August 2010 EH suffered a relapse of her psychiatric condition. Her mother arrived at her flat, not having been able to contact her for several days. Whilst she was in the garden EH approached her with a kitchen knife and stabbed her 22 times. EH was taken into custody and immediately transferred to a high security mental health unit.

In the criminal proceedings, medical evidence was given by two independent consultant clinical psychiatrists. Both concluded that EH knew what she was doing and that this was wrong. On the other hand, both considered that at the relevant time EH’s responsibility was substantially impaired. The trial judge accepted a plea of guilty to manslaughter by reason of diminished responsibility.

The trust admitted that it had breached its duty towards EH by failing to return her to hospital before the killing, despite her manifest psychotic state. If that had occurred, the killing would not have taken place.

The criminal law

In English law, insanity is a defence to murder. To establish this the defendant’s lawyers must demonstrate that the accused was so mentally unwell as not to know the nature and quality of the act she was doing, or, if she did know it, that she did not know what she was doing was wrong (M’Naghten’s case (1843) 10 Cl & F 200). If this defence is established, a verdict of not guilty by reason of insanity is returned.

Diminished responsibility is a partial defence to murder and may apply where the defendant suffers from a recognised mental health condition which substantially impairs their ability to understand the nature of their conduct and/or to form a rational judgment and/or to exercise self-control.

The damages claim

Damages were sought by the Official Solicitor, acting on behalf of EH, in respect of a number of heads of loss including:

Personal injury (a depressive disorder and post-traumatic stress disorder) consequent upon EH killing her mother;

Both at first instance and in the Court of Appeal, the damages claim was struck out as being inadmissible in law. The Official Solicitor therefore appealed to the Supreme Court.

Legal issues

The court analysed a number of rulings of the higher courts in similar cases, including Gray v. Thames Trains Ltd. (House of Lords) [2009] AC 1339, in which someone who was involved in a major railway accident developed mental health problems and killed a man. He, like EH, pleaded guilty to manslaughter by reason of diminished responsibility. The House held that he could not recover damages either for his feelings of guilt and remorse consequent upon the killing or by way of an indemnity in relation to claims which might be brought against him by relatives of his victim. Lord Hoffmann in that case stated that “It is offensive to public notions of fair distribution of resources that a claimant should be compensated …. for the consequences of his own criminal conduct.”

A subsequent ruling of the Supreme Court, upon which the claimant’s lawyers placed much emphasis, was Patel v. Mirza [2017] AC 467. This was not a clinical negligence case but a claim for unjust enrichment. Mr. Patel had paid Mr. Mirza the sum of £620,000 for the purpose of investing in certain shares using anticipated “insider” information. In the event no such information was provided by the Defendant so the claimant sought return of his money, but Mr. Mirza refused to hand it back. Although there had been a conspiracy to commit the offence of insider dealing, the claim did not fail owing to illegality and Mr. Patel therefore succeeded.

Decision

All seven Justices held that EH’s claim should fail. It was indistinguishable, in law, from that of Gray v. Thames Trains. It involved the same offence, sentence and reasoning. The ruling in Gray had not been superseded by that in Patel. Consistency in the law was extremely important. For the civil law to enable a person to profit from behaviour which another branch of the law treats as being criminal “would tend to produce inconsistency and disharmony in the law, and so cause damage to the integrity of the legal system”. This was a central and very weighty public policy consideration.

The gravity of wrongdoing in the present case heightened the significance of public policy considerations, as did the proper allocation of resources. “NHS funding is an issue of significant public interest and importance and, if recovery is permitted, funds will be taken from the NHS budget to compensate the appellant for the consequences of her criminal conviction for unlawful killing.”

There was a very close connection between the claim and the illegality, which emphasised that there would be inconsistencies in the law were the claim to succeed. There was a “public interest in the public condemnation of unlawful killing and the punishment of those who behave in this way”. This was a very serious offence – EH knew what she was doing and that it was both legally and morally wrong. Denial of the claim would therefore be a proportionate response to the illegality.

Nicholas Bowen QC, Katie Scott and Duncan Fairgrieve (instructed by Russell-Cooke) appeared for EH. Angus Moon QC, Cecily White, Judith Ayling and James Goudkamp (instructed by DAC Beachcroft) appeared for the trust.

Comment

This was truly a tragic case. The trust had admitted negligence in failing to bring EH back to hospital when her mental condition deteriorated, and if that step had been taken, a life would not have been lost. Those features ostensibly point towards recoverability of damages.

However, there were powerful arguments to the contrary. In her criminal trial EH pleaded guilty to manslaughter by reason of diminished responsibility. Diminished does not mean “no responsibility”, but rather amounted to an acceptance that even though her mind was disturbed, she realised what she was doing was wrong, as opined by the psychiatric experts appointed for the criminal trial. The Supreme Court concluded, understandably, that the law would be put into disrepute if one arm of it regarded EH as being partly responsible for killing her mother, whereas another arm awarded her compensation for precisely the same act.

The ruling provides welcome clarity for this type of case which, though fortunately rare, is highly emotionally charged and raises difficult ethical and legal issues. There was a rare judicial observation about the effect on NHS funding were this type of claim to be permitted to succeed. Normally courts do not take this factor into account, seeing it as their duty to apply the law as it stands, irrespective of the identity of the defendant.

Learning points

A person who commits a serious criminal act cannot be permitted to profit from it, even though the defendant’s negligence might have precipitated that act