26.11Clunis v Camden and Islington Health Authority (1997–8) 1 CCLR 215, QBD
Health and social services authorities do not owe a duty of care to patients, to discharge their duty to provide after-care services in a reasonably careful manner and, in any event, a patient who killed a man knowing that was wrong, would not be permitted to sueex turpi causa principle
Facts: Mr Clunis relapsed and killed a man not long after being discharged from psychiatric detention and was convicted of manslaughter on the grounds of diminished responsibility. Mr Clunis sued for damages, on the basis that the health authority had negligently failed to provide him with adequate after-care services under the Mental Health Act 1983, in particular so as to monitor his mental state. His claim was struck out and his appeal dismissed.
Judgment: the Court of Appeal (Beldam and Potter LJJ, Bracewell J) held that:
(1) the maxim ex turpi causa non oritur action applied, given that Mr Clunis had known that his actions were wrong, so as to attract criminal responsibility:
In the present case we consider the defendant has made out its plea that the plaintiff’s claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff’s own criminal act and we would therefore allow the appeal on this ground,
(2) section 117(2) of the Mental Health Act 1983 did not give rise to a common law duty of care in negligence:
After care services are not defined in the Act. They would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities. No doubt an assessment of the patient’s needs would in the first instance be made by the hospital which discharged him. It was for that purpose in this case that the defendant authority sought to arrange appointments with the plaintiff. In that respect, its actions through Dr Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community. Bearing in mind the ambit of the obligations under section 117 of the Act and that they affect a wide spectrum of health and social services, including voluntary services, we do not think that Parliament intended so widespread a liability as that asserted by Mr Irwin. The question of whether a common law duty exists in parallel with the authority’s statutory obligations is profoundly influenced by the surrounding statutory framework. See per Lord Browne-Wilkinson in X v Bedfordshire CC at page 739C, and per Lord Hoffmann in Stovin v Wise [1996] AC 923 at 952F–953A. So, too, in this case, the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged. The duties of care are, it seems to us, different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of such treatment the local health authority may be liable.
Nor do we think that Dr Sergeant should be held liable for a failure to arrange for a mental health assessment more speedily. The suggestion that because local police had reported that the plaintiff was waving screwdrivers and knives about and talking about devils illustrates to our mind the difficulty of holding her responsible in this case. Under section 136 of the Mental Health Act a constable finding a person in a public place who appears to be suffering from a mental disorder and to be in immediate need of care or control may:
‘… if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety …’
We doubt if even this language, though specifically requiring the constable to act in the interests of a mentally disordered person, creates a duty to take care which gives rise to a claim for damages at the suit of the disordered person. Moreover as Lord Browne-Wilkinson pointed out in X v Bedfordshire CC (supra), the question whether a doctor owes a duty of care to a patient in certifying that a patient is fit to be detained under the Mental Health Acts was left undecided in Everett v Griffiths [1920] 3 KB 163; [1921] 1 AC 361 and still remains open for decision in an appropriate case. We have no doubt that it would not be right to hold Dr Sergeant or the defendant health authority liable to the plaintiff in damages for failure to arrange the plaintiff’s assessment for the purposes of section 117 more speedily than she did.
For these reasons we do not think the plaintiff can establish a cause of action arising from a failure by the defendant health authority or Dr Sergeant to carry out their functions under section 117 of the Mental Health Act. Nor do we think that it would be fair or reasonable to hold the defendant responsible for the consequences of the plaintiff’s criminal act.
Comment: Section 117(1) and (2) remain materially the same; consequently the Court of Appeal’s description of the nature of after-care services and the absence of any common law duty of care still apply.