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The Court of Appeal dismissed a set of claims for psychiatric injury on the basis of prior binding authority, but indicated that the issue is suitable for consideration by the Supreme Court.
Background
The judgment concerns three linked appeals regarding the circumstances in which relative(s) of somebody injured or killed by alleged clinical negligence (the secondary victim(s)) can claim damages in respect of a psychiatric disorder caused by having witnessed the death or suffering of their loved one (the primary victim).
For a defendant to be liable for a secondary victim’s psychiatric illness, the claimant needs to show the necessary legal proximity between themselves and the defendant. In Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, Lord Oliver identified five elements which form the essential requirements of such a relationship:
the secondary victim is in a marital/parental relationship with the primary victim;
the psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system;
the secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
the psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
there was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.
These elements were applied in Crystal Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194. The secondary victim claim of a daughter who witnessed her mother’s death three weeks after an accident at work in which negligently stacked racking boards fell on her failed despite her death having been caused by the accident. The Court of Appeal held that as she was not present at the accident, she lacked the necessary legal proximity.
SF, Re [2015] EWCOP 68 (26 October 2015) – read judgment
This Court of Protection case has, unusually, made the papers, and when you read the details you won’t be surprised. What the judge described as a “callous and calculating” son charged his widowed mother, who suffered from dementia, more than £117 000 for “out of pocket expenses” visiting her in her nursing home. He had been in charge of her expenses since 2004 when Sheila (the mother) had been admitted to hospital under the Mental Health Act 1983. But alarm bells only went off after her unpaid nursing bills reached nearly £30 000. The Public Guardian launched an enquiry that led to this hearing of an application for the court to revoke the son’s (Martin’s) Enduring Power of Attorney (‘EPA’) and to direct him to cancel its registration. The Public Guardian also applied to freeze Sheila’s bank account. Continue reading →
Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment
This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.
Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.
You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.
You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.
The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?
This week’s Round-up is brought to you by Alex Wessely.
In the news: Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
A NHS Foundation Trust v Ms X (By her litigation friend, the Official Solicitor), 8 October 2014 [2014] EWCOP 35 – read judgment
The issues that arose before the Court of Protection in this case encapsulate the difficulties involved in applying legal tools to the organic swamp of human pathology. Everything that one may envisage, for example, in planning a “living will” (or, more precisely, an Advance Decision under the Mental Capacity Act), may have no application at the critical time because the human body – or rather the way it falls apart – does not fit in to neat legal categories. In such a situation it is often the right to autonomy that is most at risk, since what you plan for your own medical and physiological future may not square with what the authorities you decide you were capable of planning. Cobb J’s sensitive and humane judgement in this sad case is a very encouraging sign that courts are beginning to resist the tyrannous claims of Article 2 and the obligation to preserve life at all costs.
Factual and legal background
Ms X, a young woman who lives alone in a private rented bed-sit, has suffered from anorexia nervosa for the last 14 years. She also suffers an alcohol dependence syndrome which has caused chronic and, by the time of this hearing, “end-stage” and irreversible liver disease, cirrhosis; this followed many years of abuse of alcohol. The combination of anorexia nervosa and alcohol dependence syndrome is unusual, and has always been medically acutely difficult to manage. This is a vicious cycle of self destructiveness and treatment, and as Cobb J observed,
The causes of her distress are multi-factorial but include the treatment for her anorexia itself and the removal of her personal autonomy when treated
So damaging had been the previous admissions for compulsory feeding, her doctors regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to cause her to be readmitted; their experience revealed that on each recent admission, she had been more and more unwell (as a result of her anxiety to reverse the weight gained in hospital during the previous visit, combined with renewed alcohol abuse). In fact Ms X had been on an ‘end of life pathway’ twice in recent months and it was said that her physical condition “is now so fragile that her life is in imminent danger.” Continue reading →
Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified. Continue reading →
R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 read judgment
Jeremy Hyam of 1 Crown Office Row was for the Trust. He was not involved in the writing of this post.
L, aged 26, was in a medium security hospital for his serious mental health problems. Concerns about his animus towards another patient arose, and the Admissions Panel of Broadmoor (a high security hospital) agreed to his transfer. It did so without allowing his solicitor to attend and without giving him the gist of why his transfer was to be made.
So far, so unfair, you might think, as a breach of the common law duty to come up with a fair procedure.
But the next bit is the difficult bit. How does a court fashion a fair procedure without it becoming like a mini-court case, which may be entirely unsuitable for the issue at hand? This is the tricky job facing the Court of Appeal. And I can strongly recommend Beatson LJ’s thoughtful grappling with the problem, and his rejection of the “elaborate, detailed and rather prescriptive list of twelve requirements” devised by the judge, Stadlen J.
Note, though L eventually lost, the CA considered that proceedings were justified because of their wider public interest. Something for Parliament to deliberate upon when it debates Grayling’s proposed reforms for judicial review: see my recent post.
The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:
This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems. This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.
Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Lane v Kensington & Chelsea Royal London Borough Council (19 April 2013) – extempore judgement by Sir Raymond Jack QBD
In Italo Calvino’s charming short story “The Baron in the Trees” the twelve year old son of an aristocratic family escapes the stultifications of home decorum by climbing up a tree, never to come down again. He literally makes his home in the treetops of his vast family estate.
So perhaps we shouldn’t quarrel with the inclusion of a tree as part of the concept of home life for the purposes of Article 8. The further twist is that the felling of this particular tree took place on a property where the appellant lived without a tenancy. Nevertheless, this event still amounted to a potential interference with his right to a home under Article 8. Continue reading →
R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – read judgment
1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case. He is not the writer of this post.
The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.
The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events. The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence. The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?
In a ruling revealing stark differences between the UK courts and the Strasbourg court’s approach to the threshold for Article 3 treatment, Strasbourg has ruled that the detention of a mentally ill man in police custody for more than three days breached his rights under that provision
The Court held in particular that the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity, although there had been no intentional neglect on the part of the police.
The following details are taken from the Strasbourg Court’s press release:
The applicant was arrested in Birmingham in the early morning of 6 December 2004, after the police had been called to deal with him because, highly agitated, he was sitting in a car sounding its horn continuously. His detention at a police station was authorised under the 1983 Mental Health Act, which allows the detention of a person suffering from a mental disorder for up to 72 hours for the purpose of being examined by a doctor and receiving treatment. The police subsequently found the applicant’s aunt at his address, seriously injured by him. Continue reading →
R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment
The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.
Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.
DL v A Local Authority & Others [2012] EWCA Civ 253 – Read judgment
Where adults have capacity under the Mental Capacity Act 2005 (MCA 2005), does the “great safety net” of the High Court’s inherent jurisdiction still exist to guard them from the effect on their decision making of undue influence, coercion, duress etc? In its judgment handed down on 28 March 2012, the Court of Appeal confirmed that it does.
DL proceeded in the High Court and the Court of Appeal on assumed (as opposed to agreed) facts, many if not all of which were contested by the appellant. For the court’s purposes however, it was assumed that DL, a man in his 50s who lived with his mother and father (90 and 85 respectively), had behaved aggressively towards his parents, physically and verbally, controlling access to visitors and seeking to coerce his father into transferring ownership of the house into DL’s name, whilst pressuring his mother into moving into a care home against her wishes. The Court of Appeal’s judgment uses the term “elder abuse” for such a situation.
The Government of the Republic of South Africa v Shrien Dewani-Read decision
The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.
The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after. However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.
In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1. Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;
2. His mental health and risk of suicide were such that his should not be extradited. Continue reading →
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R (L) v West London Mental Health Trust; (2) Partnership in Care (3) Secretary of State for Health [2014] EWCA Civ 47 
R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) – 
Eleven Winterbourne View staff have 
DL v A Local Authority & Others [2012] EWCA Civ 253 – 
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