CLUNIS v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Christopher Clunis, is a British national, born in 1963 and living in London. He is represented before the Court by Mr Martin Taube, a lawyer practising in London. The respondent Government are represented by their Agent, Ms S. McCrory of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has a long history of serious psychiatric illness. According to the applicant, he was treated as an in-patient at the Bellevue Hospital in Jamaica in 1986 where he was diagnosed as a paranoid schizophrenic. There would appear to be no records of the periods of the applicant’s hospitalisation and the diagnosis. The applicant returned to England sometime in 1987. Between 1987 and 1992 he received psychiatric treatment at a large number of hospitals in the London area. He was detained and treated on a number of occasions under the provisions of the Mental Health Act 1983 (“the 1983 Act”). The applicant was first diagnosed in England as a paranoid schizophrenic on 12 July 1988 during his detention in Brixton Prison. On the night of 4-5 May 1992 the applicant attacked a fellow resident at the Lancelot Andrewes House Resettlement Unit in London. He was remanded to Belmarsh Prison and then transferred to a secure unit at Kneesworth House Hospital under sections 48 and 49 of the 1983 Act. Following assessment and treatment at Kneesworth House, he was transferred under section 3 of the 1983 Act to Guy’s Hospital (“Guy’s”) in August 1992. On 24 September 1992 the order under section 3 of the 1983 Act detaining the applicant was rescinded and he was discharged from Guy’s. Dr Gupta, a psychiatrist at Guy’s, sought to make arrangements for the applicant to be seen as an out-patient by the general as well as the forensic psychiatric services at Friern Hospital (“Friern”), a hospital now closed but then under the management and control of the Camden and Islington Health Authority (“Camden”). Dr Gupta telephoned Dr Sergeant, an Associate Specialist at Friern, and fixed an out-patient appointment. Dr Gupta then telephoned Dr de Taranto, a forensic psychiatrist at Friern, and told her that an appointment had been made for an out-patient appointment for the applicant with Dr Sergeant and that he also wished to make a referral to the forensic psychiatric services. Following discussion with a senior colleague, Dr de Taranto the next day telephoned Dr Gupta and said that the applicant should attend Dr Sergeant’s out-patient appointment and that he would be referred to the forensic team if necessary. At the time of making the appointment Dr Sergeant did not know that she had been or was to be appointed as the applicant’s “key worker”. An appointment was made for the applicant to be seen by Dr Sergeant on 9 October 1992. He did not attend the appointment on 9 October. He was sent another appointment for 6 November, which was later changed to 13 November 1992. The applicant failed to attend the appointment on 13 November. Sometime at the beginning of October 1992, Friern received two section 117 forms which stated that the applicant was supposed to have after-care arrangements made under section 117 of the 1983 Act and that Dr Sergeant was to be the “key worker”. No such arrangement had been agreed with Dr Sergeant or with Friern. The out-patient appointment for 9 October had not been made by Friern in pursuance of any responsibilities under section 117 of the 1983 Act. After the applicant failed to attend his out-patient appointment on 13 November 1992, Dr Sergeant telephoned the applicant’s General Practitioner, Dr Patel, who told her that the applicant had been removed from his list of patients because of his aggressive and threatening behaviour. She then telephoned Guy’s and spoke to Dr Gupta who advised her that the police should accompany her on any mental health assessment visit and added that the applicant had not been in touch with Guy’s since his discharge. After that conversation Dr Sergeant contacted Haringey Social Services and requested that a mental health assessment visit be arranged on a planned non-urgent basis and that this should be attended by the police. It was arranged that this should take place at the applicant’s address on 30 November 1992 at 3 p.m. It appears that the applicant was not informed of this arrangement. On 27 November 1992 Haringey Social Services informed Dr Sergeant that the applicant had been off medication for some weeks and that his behaviour was threatening. She was reminded that the applicant had stabbed someone in the past. The start of the mental health assessment visit on 30 November 1992 was slightly delayed. The applicant left the premises without being recognised by anyone in the assessment team and without being approached to ascertain if he was Christopher Clunis. No arrangements were made for a further assessment and Dr Sergeant said that she would try to see the applicant informally in order to gain his goodwill. On 1 December 1992 the applicant went to the offices of Haringey Social Services and a member of their staff contacted Dr Sergeant who arranged an appointment to see the applicant on 10 December 1992. She asked that a duty social worker attend the meeting but said that there was no need for an approved social worker (as defined in the 1983 Act) to attend. The applicant did not attend his out-patient appointment on 10 December. Although the applicant states that Dr Sergeant took no positive step in the face of this failure to attend, the Government observe, with reference to the findings contained in an official report (“the Ritchie Report”) drawn up following a public inquiry into the handling of the applicant’s treatment (“the Clunis Inquiry”), that the social worker who had attended for the appointment with the applicant “discussed the way forward with Dr Sergeant” after the applicant failed to appear. Dr Sergeant appears to have said that the alternatives were another Mental Health Assessment visit or an attempt to persuade the applicant to visit the social services department again and then to give him another outpatient appointment. The applicant was eventually invited by letter to attend an appointment on 24 December 1992. When told of the date, Dr Sergeant apparently expressed her dissatisfaction that it was so far in advance. According to the Ritchie Report, it would seem that attempts were made to contact the applicant between 10 and 16 December 1992, but without success. On 15 December 1992 Dr Sergeant spoke to an official in the Housing Emergency Group and expressed concern that the applicant had been discharged so quickly from Guy’s in view of his violent past. The official’s colleague made enquiries as to the availability of space in a residential hostel for the applicant. The residential hostel indicated that it would get in touch with the applicant with a view to assessing his suitability for a place and then decide whether to offer him one. On 17 December 1992 Haringey Social Services telephoned Dr Sergeant but was unable to speak to her. When she returned their call she was told that there had been a message from the local police that the applicant was “waving screwdrivers and knives and talking about devils”. Dr Sergeant advised that the Mental Health Assessment Team should assess the applicant as soon as possible but that she first wished to check which social services authority was responsible for the applicant. Later that day at about 1.30 p.m. Dr Sergeant questioned Ursula Robins, the duty approved social worker, as to which social services authority was responsible for the applicant and whether Friern or Chase Farm Hospital should be dealing with the applicant. By about 4.30 p.m. she had persuaded Chase Farm Hospital to accept responsibility for the applicant in place of Friern. However, following further discussions with Ms Robins, Dr Sergeant reversed that position and agreed that Friern would continue with the applicant’s care. Ms Robins visited the applicant’s flat but there was no reply. At about 7 p.m. she returned with a letter asking him to call her the next day. At about 3.45 p.m. on 17 December 1992 the applicant killed Jonathan Zito, who was a complete stranger to him, in an unprovoked attack at Finsbury Park Tube Station in North London. The applicant seems to have believed without any justification whatsoever that Mr Zito was about to attack him. On 18 December 1992 Ms Robins waited at the applicant’s address for the applicant to return. She was informed later that day that he had been arrested for murder. On 28 June 1993 the applicant pleaded guilty to Jonathan Zito’s manslaughter on the basis of diminished responsibility. The plea was accepted by the Crown. The trial judge, Mr Justice Blofeld, ordered that the applicant be detained pursuant to sections 37 (hospital order) and 41 (restriction order whereby discharge from hospital requires the consent of the Home Secretary) of the 1983 Act. The restriction order was expressed to be without limit of time. On 27 July 1993 the North East and South East Thames Regional Health Authorities instituted an inquiry into the treatment and care of the applicant which was chaired by Miss Jean Ritchie QC. The Inquiry received evidence from one hundred and forty three witnesses over a five-month period and extended its investigation back to 1986. The Inquiry reported in February 1994 and in its report concluded, inter alia: (a) There were significant deficiencies in the care given to the applicant. “As will have been clear from our comments throughout the narrative we are of the view on the evidence we have heard, that Christopher Clunis’ care and treatment was a catalogue of failure and missed opportunity ... In our view the problem was cumulative; it was one failure or missed opportunity on top of another” (pp. 105-7). (b) The Mental Health Assessment Team should have been arranged more quickly, and Dr Sergeant should have ensured that an earlier date was fixed (p. 80). (c) The gap between the first request for a Mental Health Assessment on 13 November 1992 and the visit that was arranged for 30 November 1992 was far too long. There was plenty of time to prepare preliminary information about Christopher Clunis so that alternative responses following his assessment could be planned (p. 86). (d) “Indecision and procrastination is the hall mark of the failure of Haringey Social Services to have any responsible person making decisions and monitoring decisions that had been made.” Equally Dr Sergeant left too much to the Social Services department when she should have been taking an active role. She did not involve her consultant, Dr Taylor, in managing this difficult case. As the person named as key worker under the section 117 Mental Health Act 1983 aftercare plan, Dr Sergeant knew that if she did not do so, no one else would (p. 88). The Inquiry made a total of 14 recommendations designed to ensure that the duties under section 117 of the 1983 Act were properly fulfilled (Section V of the Report). Further recommendations were made in respect of matters such as key workers, monitoring, the assessment of dangerous and mental illness and offending. On 14 December 1995 the applicant issued a writ claiming damages for injury, loss and damage sustained by him as a consequence of Camden’s negligence. On 12 July 1996 Camden issued a summons in the High Court seeking to strike out the applicant’s Statement of Claim on the sole ground that it disclosed no reasonable cause of action in that the principle of ex turpi causa non oritur actio or an analogous principle of public policy prevented the applicant from recovering damages. Although Camden expressly conceded for the purposes of the summons that it owed the applicant a common law duty of care at the material time and that the Statement of Claim disclosed breaches of that duty, it argued that to establish the injury and loss asserted the applicant had to rely on his own criminal act and public policy prevented this. On 12 December 1996 Mr Richard Mawbrey QC, sitting as a deputy High Court judge, dismissed Camden’s summons on the basis that: (a) the absolute rule of ex turpi causa non oritur actio set out in Tinsley v. Milligan [1994] I AC 340 had no application in tort cases but that there was a rule of public policy analogous to the ex turpi causa rule in contract law that a court can exclude a tortuous claim by a person who, in order to assert it, has to rely on a crime committed by him; (b) in applying the public policy rule the court had to make a judgment on a pragmatic basis as to whether it would be offensive to the public conscience for the claimant to base his claim on his own criminal activity or more offensive for him to be deprived of what would otherwise be his normal remedy; (c) where a claimant brings a negligence claim based on an allegation that the defendant either caused or failed properly to treat severe mental disorder, he can in principle recover as a head of claim damages for personal injury (including mental deterioration) resulting from self-inflicted harm. If this harm itself results from harming others in a criminal manner, public policy does not preclude him from recovering damages for the harm to him even though he is guilty of crime; (d) it would not offend the public conscience for the applicant’s claim to proceed. On 9 January 1997 Camden appealed on the grounds that the judge was wrong in law in holding that the applicant was not precluded from recovering damages consequent on his criminal act, and that the judge ought to have held that the applicant was precluded from recovering such damages on grounds of public policy. When the appeal was heard, the applicant and Camden were invited at the commencement of the hearing to address the Court on the question of whether a duty of care was owed by Camden to the applicant. On the second day of the hearing Camden advanced an argument wholly inconsistent with its concession at first instance that whilst a duty of care was owed to the applicant, such a duty could only be owed pursuant to section 117 of the Act and that breach of that duty was not actionable in private law. In delivering the judgment of the Court of Appeal, Lord Justice Beldam stated with respect to the applicant’s argument that Camden owed him a duty of care at common law that the public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act is not confined to particular causes of action. Whether a claim is founded in contract or tort, public policy only required the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. Lord Justice Beldam did not accept the applicant’s contention that the test to be applied should be aimed at ascertaining whether the result in a particular case would be acceptable to “the public conscience”. He cited with approval the decision of the House of Lords in Tinsley v. Milligan ([1994]) 1 A.C. 340) as authority for the proposition that, in so far as the maxim ex turpi causa non oritur actio is directed at deterrence, the force of the deterrent effect was in the existence of the known rule and its stern application. He continued: “In the present case we consider that [Camden] has made out its plea that the [applicant’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 [applicant’s] own criminal act and we would therefore allow the appeal on that ground.” Lord Justice Beldam subsequently considered whether Camden owed a duty to the applicant under section 117 of the 1983 Act and, in the affirmative, whether a breach of that duty could give rise to a claim for damages. With reference to the wording of that provision and to the terms of section 124 of the same Act, Lord Justice Beldam found that the primary method of enforcement of the after-care obligations under section 117 was by complaint to the Secretary of State. He continued: “The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council ([1995] 2 A.C. 633, 747) as requiring: ‘exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’ In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute.” Lord Justice Beldam then addressed the applicant’s argument that the relationship of doctor and patient which existed between the district health authority and the applicant while he was in hospital continued after discharge, so that a common law duty of care was owed by the defendant to continue the applicant’s treatment. In the opinion of Lord Justice Beldam, it was difficult to conclude that it was in the circumstances just and reasonable to superimpose such a common law duty in relation to the performance of its statutory duties to provide after-care. He considered, bearing in mind the ambit of the obligations under section 117 of the 1983 Act and their repercussions on a wide spectrum of health and social services, including voluntary services, that Parliament could not have intended so wide-spread a liability as that canvassed by the applicant. Lord Justice Beldam found that Camden’s actions through Dr Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community. He concluded: “... 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 treatment the local health authority may be liable. .... We have no doubt that it would not be right to hold Dr Sergeant or [Camden] liable to the [applicant] for failure to arrange the [applicant’s] assessment for the purposes of section 117 more speedily than she did. ... For these reasons we do not think that the [applicant] can establish a cause of action from a failure by [Camden] or Dr Sergeant to carry out their functions under section 117 of the Mental Health Act 1983. Nor do we think that it would be fair or reasonable to hold [Camden] responsible for the consequences of the [applicant’s] criminal act.” The applicant was refused leave to appeal to the House of Lords by the Court of Appeal. The applicant’s petition for leave to appeal to the House of Lords was refused by the Judicial Committee on 8 June 1998. A statutory duty on public authorities to provide for the care of the mentally ill after discharge from hospital was first provided for in section 28 of the National Health Service Act 1946. The Mental Health Act 1959 expanded the after-care function to include the provision of residential accommodation and the appointment of mental welfare officers. Following further enactments, the Mental Health Care Act 1983 was eventually passed. Section 3 of the 1983 Act provides: “1. A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section. 2. An application for admission for treatment may be made in respect of a patient on the grounds that - (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.” Section 117 of the 1983 Act provides: “1. This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a transfer direction made under section 47 or 48 above, and then cease to be detained and leave hospital. 2. It shall be the duty of the district health authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies after-care services for any person to whom this section applies until such time as the district health authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.” The section places a duty to consider the after-care needs of each individual to whom the section applies and is therefore quite distinct from other statutory duties to provide for the after-care of the generality of mentally disordered persons. The Mental Health Act 1983 – Code of Practice, issued by the Secretary of State under the provisions of section 118 of the 1983 Act, explains that the purpose of after-care is “to enable a patient to return to his home or accommodation other than a hospital or nursing home, and to minimise the chances of him needing any further in-patient hospital care.” The Code of Practice requires that a key worker be appointed from either the district health authority or social services authorities to be responsible for the discharged patient. The key worker is responsible for monitoring the implementation of the patient’s care plan and liasing and co-ordinating where necessary between the individuals and agencies involved in the care plan. After-care services are not defined in the Act but could include social work support, the provision of domicilary services, the use of residential or day centre facilities. An essential component is continuing psychiatric treatment and care if the declared objective of minimising the chances of the patient returning to hospital is to be achieved. The Government in the instant case have highlighted the various measures that have been adopted to ensure improvements in the care of the mentally ill following the recommendations made in the Ritchie Report. There are several means by which individuals or their representatives can have complaints regarding their discharge by a local authority of its duties under section 117 of the 1983 Act investigated: a complaint to the Health Service Commissioner, a complaint to the Mental Health Act Commission or a complaint to the Commissioner for Local Administration. According to the applicant, his relationship with Camden was one governed by both common law principles and by statute. A common law duty of care was owed to him inasmuch as a doctor-patient relationship existed between Dr Sergeant (for whose acts or omissions Camden are vicariously liable) and the applicant. Once Dr Sergeant had accepted that she and/or Friern would provide him with out-patient treatment, a duty of care arose (see Jones v. Manchester Corporation [1952] 2 All E.R. 121 per Denning LJ). The applicant states that a duty of care was also owed to him pursuant to the duties owed under section 117 of the 1983 Act. The Court of Appeal in his case characterised these duties as being closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire CC ([1995] 2 AC 633 at 747) as requiring “exceptionally clear statutory language” to indicate a parliamentary intention that the breach of such duties would give rise to an actionable claim for damages. It determined that the wording of section 117 of the 1983 Act was not apposite to create a private law cause of action for failure to carry out the duties under the Act. It also rejected the argument that a common law duty of care should be superimposed in relation to the performance of its statutory duties to provide after-care, on the basis that the duty of providing after-care services was different in nature from that owed by a doctor to a patient whom he is treating. The court held that it would not be just and reasonable to superimpose a common law duty of care on Camden in relation to the performance of its statutory duties to provide after-care. Prior to the Court of Appeal’s determination, the rule of public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act was confined to particular causes of action. It has its origins in contractual claims. The principle was modified in relation to tortuous claims by the application of “the public conscience test”. This was applied in a line of cases in the Court of Appeal between 1986 and 1994 where it was held to be right “to adopt a pragmatic approach to these problems seeking where possible to see that genuine wrongs are righted so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn.” (Saunders v. Edwards [1987] 1 WLR 1116 per Bingham LJ). In Reeves v. Commissioner of Police for the Metropolis ([1998] 2 WLR 401), the Court of Appeal applied the “public conscience test” to determine whether ex turpi causa, or an analogous rule of public policy, would prevent the estate of a detainee who had committed suicide whilst in custody from recovering damages. In doing so the court was aware that the test had been disapproved by the House of Lords in Tinsley v. Milligan which was, however, a contractual claim, being the locus classicus for the application of the maxim. In Meah v. McCreamer (No. 1) ([1985] 1 All ER 367) substantial damages were awarded to a plaintiff who had suffered head injuries in a road accident and who claimed that, but for the consequent personality change, he would not have committed the offences of sexually assaulting and maliciously wounding two women and raping and maliciously wounding a third woman for which he was sentenced to life imprisonment. In Meah (No. 2) ([1986] 1 All ER 943) the plaintiff’s action to recover damages, which had been awarded against him to two of the victims of his crimes, was dismissed on the grounds that the damages awarded to the victims were too remote to be recoverable and that such an award would be contrary to public policy. Woolf J rejected the contention that such an argument would have affected the award of damages he had made in Meah (No. 1). The offence of manslaughter is a crime which varies infinitely in its seriousness and the underlying intentionality of the act. Public policy must reflect the variety in degree of culpability. Such a principle was endorsed by the Court of Appeal in Gray v. Barr ([1971] 2 QB 554) when it considered the application of the forfeiture rule in relation to the rights of inheritance, and by the Divisional Court in R. v. Chief National Insurance Commissioner ex parte Connor ([1981] QB 758). In the case of forfeiture Parliament intervened by passing the Forfeiture Act 1982 to prohibit the inflexible application of public policy. In Dunbar v. Plant, Phillips LJ observed that: “the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day... Furthermore, it seems to me that the only way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.” Under the rules set out in M’Naghten’s Case ([1843]10 Cl. & F. 200). (“the M’Naghten” rules), the accused must prove on the balance of probabilities (or to counter his claim of diminished responsibility the prosecution may prove, but beyond reasonable doubt) that at the time of the act he was “labouring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know it was wrong”. The sentence for manslaughter by reason of diminished responsibility is at large unlike murder where the penalty is fixed by statute as being a life sentence. Section 2 of the Homicide Act 1957 provides that the accused must be suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind, or any inherent cause, or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing. According to the applicant, the distinction between conviction of guilty of manslaughter by reason of diminished responsibility and acquittal of murder by reason of insanity can, in practice, be artificial. The applicant observes that, until recently, the consequences of a verdict of insanity were so unattractive that an accused would very rarely accede to such a verdict or enter such a plea. In the applicant’s view, this was because, until the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, a court would be required to admit such an individual to a hospital subject to a restriction order without limit of time and with no flexibility or discretion given to the sentencing judge.