Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43

Ms Henderson, who suffers from paranoid schizophrenia, killed her mother during a psychotic episode and was convicted of manslaughter by diminished responsibility. She sued the NHS Trust for negligently failing to return her to hospital. The Supreme Court held her claim was barred by illegality.

Facts

The appellant, Ms Ecila Henderson, suffers from paranoid schizophrenia or schizoaffective disorder. On 25 August 2010, while experiencing a serious psychotic episode, she stabbed her mother 22 times and killed her. She was charged with murder but pleaded guilty to manslaughter by reason of diminished responsibility. Foskett J sentenced her to a hospital order under section 37 of the Mental Health Act 1983 with an unlimited restriction order under section 41.

The respondent NHS Trust admitted negligence in failing to return the appellant to hospital on the basis of her manifest psychotic state; the killing would not have occurred had this been done. The appellant claimed damages under six heads, including general damages for personal injury (depressive disorder and PTSD), loss of liberty through her detention, loss of amenity, a share of her mother’s estate forfeited under the Forfeiture Act 1982, and future costs of psychotherapy and a care manager.

At sentencing, Foskett J observed that there was “no suggestion” that the appellant should be seen as bearing “a significant degree of responsibility” for her actions, and therefore did not consider an order under section 45A (which would have added a penal element).

Issues

The Supreme Court had to determine:

1. Whether the House of Lords’ decision in Gray v Thames Trains Ltd [2009] UKHL 33 could be distinguished.
2. If not, whether Gray should be departed from and Clunis v Camden and Islington Health Authority [1998] QB 978 overruled, particularly in light of Patel v Mirza [2016] UKSC 42.
3. Whether all heads of loss claimed were irrecoverable.

Arguments

Appellant

The appellant argued that Gray could be distinguished because the sentencing judge had expressly found she bore no significant personal responsibility and no penal element was imposed. She submitted that the reasoning in Gray could not stand with the flexible policy-based approach in Patel, that Gray should not apply where there is no significant personal responsibility or penal element, and that applying the trio of considerations in Patel should lead to a different outcome. It was argued there was no inconsistency between criminal and civil law in such cases, and that several countervailing public policies supported allowing the claim.

Respondent

The respondent contended that the damages claimed were the consequence of the sentence imposed and/or the appellant’s criminal act of manslaughter and were therefore irrecoverable under the illegality doctrine, as held in Gray and Clunis.

Judgment

Lord Hamblen, with whom the other six Justices agreed, dismissed the appeal.

Gray cannot be distinguished

The Court held that Lord Phillips’ second reservation in Gray (relating to cases without significant personal responsibility) did not reflect a majority view. The crucial consideration for the majority in Gray was that the claimant had been found criminally responsible, not the degree of personal responsibility. Gray involved the same offence, the same sentence, and its reasoning applies regardless of the degree of personal responsibility.

Gray should not be departed from

The essential reasoning in Gray is consistent with Patel. Gray did not apply the reliance-based approach; rather, it applied a policy-based approach grounded in the consistency principle (avoiding inconsistency so as to maintain the integrity of the legal system) and the public confidence principle. Gray was cited with apparent approval in Patel.

The Court rejected the argument that lack of significant personal responsibility removes the inconsistency. A conviction for manslaughter by diminished responsibility still involves blame, as the defendant would otherwise have been convicted of murder and the mental prerequisites of criminal responsibility for murder (intent to kill or cause grievous bodily harm) are accepted. Allowing civil recovery would mean “the criminal under the criminal law becomes the victim under tort law.” The appellant’s proposed capacity-based test would create uncertainty and risk being “tantamount to judicial legislation.”

Application of the Patel trio of considerations

Applying the trio of considerations, the Court held:

• Stage (a): The consistency principle and public confidence principle were engaged. The gravity of the wrongdoing and the allocation of NHS resources heightened these considerations. The underlying purposes of deterring unlawful killing and protecting the right to life supported denial of the claim.
• Stage (b): The appellant’s four suggested countervailing policies (encouraging NHS bodies to care competently, compensating victims not significantly responsible, ensuring public bodies compensate those they injure, and ensuring proportionate sentences) did not outweigh the considerations supporting denial.
• Stage (c): Denial was proportionate: the conduct was extremely serious (culpable homicide with murderous intent), central to all heads of loss, intentional, and the appellant knew what she was doing was legally and morally wrong.

Heads of loss

All heads of loss were irrecoverable. Damages for loss of liberty and loss of amenity during detention were barred by the narrower rule; the remaining heads, including the Forfeiture Act claim, were barred by the wider rule. It would be inappropriate to subvert the bespoke Forfeiture Act regime by permitting recovery from the respondent of what the appellant could not recover under that Act.

Implications

The judgment affirms that Gray remains good law and is “Patel compliant” — it represents how Patel‘s policy-based approach plays out in cases involving serious criminal offending. The illegality defence applies in tort claims arising from manslaughter by diminished responsibility regardless of the degree of personal responsibility or whether the sentence includes a penal element, provided the claimant has been found criminally responsible.

The decision clarifies the operation of the Patel trio of considerations: stage (a) is not confined to the specific purpose of the transgressed prohibition but encompasses broader policy considerations including consistency and integrity of the legal system; the weighing of policies occurs between stages (a) and (b); stage (c) operates as a “disproportionality check rather than a proportionality requirement.” Relevant case-law precedents retain their value and are not displaced by Patel unless inconsistent with its reasoning.

The decision matters particularly to NHS bodies and mental health practitioners, to claimants with mental illness who commit serious criminal acts, and to personal injury practitioners dealing with the illegality defence. It confirms that even where negligence by a mental health provider is admitted, damages consequent upon the criminal act itself or its sentence are not recoverable where the claimant has been convicted of a serious criminal offence such as manslaughter.

The Court expressly reserved its position on the “trivial offence” scenario referenced by Lord Rodger in Gray, and noted that some criminal acts (such as strict liability offences where the claimant is not privy to the facts making the act unlawful) may not engage the defence. Manslaughter by reason of diminished responsibility, however, does not come close to such an exception.

Verdict: The appeal was dismissed. The Supreme Court held that Gray v Thames Trains Ltd could not be distinguished and should not be departed from; Clunis should not be overruled. All heads of loss claimed by the appellant were irrecoverable on grounds of illegality (ex turpi causa).

Source: Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43