Monthly News Archives: November 2020

Mental health, clinical negligence and the illegality defence

3 November 2020 by Robert Kellar QC

In Ecila Henderson v. Dorset Healthcare University NHS Trust Foundation [2020] UKSC 43 the Supreme Court has revisited the defence of illegality (“ex turpi causa”) in the context of a claim for clinical negligence.

The claimant — a mental health patient — had committed a criminal offence as a result of the defendant health authority’s admitted negligence. Can a claimant, who would not have committed an offence but for the Defendant’s negligence, recover losses arising from their own criminality? Can they seek compensation for the pain, suffering and loss of earnings caused by a custodial sentence? Can they recover general damages for feelings of guilt and remorse? The Supreme Court answered these questions with a resounding “no”.

The Facts

Ms Henderson suffered from paranoid schizophrenia or schizoaffective disorder. Whilst under the care of the Defendant’s community mental health team she stabbed her mother to death. She did so whilst experiencing a serious psychotic episode. She was convicted of manslaughter by reason of diminished responsibility.

In sentencing her, the judge said that: “… there is no suggestion in your case that you should be seen as bearing a significant degree of responsibility for what you did”. The judge sentenced Ms Henderson to a hospital order under the Mental Health Act 1983.

Ms Henderson subsequently brought a civil claim against the Defendant Trust. The Trust admitted liability for its negligent failure to return her to hospital when her psychiatric condition deteriorated and accepted that, if it had done this, the tragic killing of Ms Henderson’s mother would not have taken place.

However, the Trust argued that Ms Henderson’s claim was barred for illegality (“ex turpi causa”), because the damages she claimed resulted from: (i) the sentence imposed on her by the criminal court; and/or (ii) her own criminal act of manslaughter.

Prosecution of trafficking victim not an abuse of process

2 November 2020 by Samuel March

R v A [2020] EWCA Crim 1408

On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.

The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.