What Duty Of Care Does The NHS Owe To Individuals Injured By Untreated Or Undertreated Psychiatric Patients?

Last week, the BBC reported on the very tragic story of death of Jacob Billington, 23, who was killed in Birmingham on 6 September 2020. As well as Jacob’s untimely death, seven others were hurt in five separate incidents carried out in a violent 90 minutes across the city centre. The man convicted of the murder and assaults has been sentenced to 21 years in prison. He will be detained at Ashworth hospital for “as long as necessary” (in the words of the judge) and will then serve a prison sentence.

The court was also told that the assailant had refused a psychiatric appointment in the days before his fatal attacks. Prior to that, he had been out of contact with health services after being released from prison in April 2020, despite a history of refusing to take his medication and hearing voices telling him to kill and stab people. The mother of the convicted offender told the BBC that there were “unanswered questions” about various state agencies’ prior treatment and monitoring of McLeod, and believes “mistakes were made”.

Questions may well be asked by the victim’s families as to whether a claim could be made against the various state bodies and mental health Trust who stand accused of not doing enough to have stopped the offending.

Sadly for the victims, the common law is very much not on their side at present. Whilst statutory claims can be made to the Criminal Injuries Compensation Authority (CICA) any negligence claims against the NHS or other state bodies are highly unlikely to succeed. The proximity required for a duty of care as between a hospital and the victim of a patient only arises if the victim is a member of an identifiable at risk group.

The law on this area is very clear cut and has been for over 20 years. The leading cases in this area of law are Palmer v Tees Health Authority [1999] EWCA Civ 1533 and Caparo Industries plc v Dickman [1990] 2 AC 605.

In Palmer -v- Tees Health Authority the Claimant, Mrs Palmer brought proceedings for damages on behalf of herself and the Estate of her young daughter, Rosie, who was abducted, sexually abused and murdered by a Shaun Armstrong in 1994. Mrs Palmer and her daughter did not know their attacker and he had made no threats against them specifically. Tragically the only connection they had was that he lived nearby.

Mrs Palmer’s case was simply that Armstrong lived reasonably close to the child’s family and that had Armstrong not been discharged from hospital , or had he received better treatment , then her daughter would not have been killed. She argued that the fact Armstrong lived nearby to her home was sufficient to provide the necessary proximity between the Claimant and the Defendant Authority to establish a duty of care.

Mr Armstrong had been an in-patient in a psychiatric hospital June 1993, thereafter remaining under the care of the hospital as an out-patient. It was alleged that the Health Authority who had had responsibility for the care of Mr Armstrong had never provided him with appropriate treatment that would have substantially reduced or possibly eliminated the risk of his committing such offences and/or would have ensured that he was detained during such periods of risk. The Claimant suffered post-traumatic stress disorder which was of course attributable to the abduction and murder of her daughter.

The NHS Defendant applied to strike out the Statement of Claim as disclosing no cause of action. They contended that they owed no duty of care either to Rosie or the Claimant; and that even if they owed a duty of care to Rosie on the pleaded facts, the Claimant could not bring herself within the limits of secondary victim suffering psychiatric injury which the law regards as compensatable. The judge acceded to both these submissions.

It was not disputed that the injuries to Rosie and the Claimant were arguably foreseeable; but the judge held that there was no sufficient proximity between the Defendants and Rosie or the Claimant, and that it was not fair, just and reasonable to impose a duty of care upon the Defendants. The fact that Armstrong lived nearby to Rosie and Mrs Palmer was not sufficient. He had made no threats against them specifically. Accordingly the second and third requirements for the existence of a duty laid down in Caparo were not satisfied. The court therefore rejected the Claimant’s claim both on her own behalf and for her daughter.

The court ruled that there was insufficient proximity between the Claimant and the Defendant Authority to establish a duty of care. The court stated that in order for cases such as this to succeed , it must be shown that the victim fell within a “special or exceptional or distinctive category of risk”. It was not sufficient to be a member of the general public who was attacked by a dangerously untreated or undertreated psychiatric patient who was at large in her community.

The Court held that a situation in which such a “special risk” might arise is where the hospital is aware of a patient making threats against a particular individual.

1. It is accepted that the three key questions in Caparo are whether;-

• a) harm was reasonably foreseeable as a result of the defendant’s conduct
• b) the parties were in a relationship of proximity, and
• c) whether it was fair, just and reasonable to impose liability

The details of the Birmingham victims are not known to me but the news report indicates that sentencing Judge, Mr Justice Pepperall said that the attacker had gone on a “murderous rampage” during the 90 minutes and left behind an “appalling catalogue of offending of the utmost gravity”. He went on to say that “Your victims were variously enjoying a night out or returning home from work,” the judge said. “They gave you no offence and they were chosen at random. Wherever possible you aimed your knives at your victims’ necks.”

On the basis that he victims were not known to the Defendant, and the Defendant had given no indication that he would attack these specified individuals then the appeal court case of Palmer means that the victims have no redress against any state bodies who may have made errors in this case. Claims can be made to the CICA but these are limited to a tariff scheme and subject to a fixed damages cap of £500,000. If a serious injury is sustained in an attack such as this then those victims will lose out – a serious injury that means a total loss of earnings or the need for substantial care will often be worth more than the £500,000 cap that the government imposed on CICA claims in 1996. Prior to this date, there was no cap on damages.

To my mind, those individuals are being let down by the current state of the law. Either, the CICA maximum award cap needs to be lifted or Palmer -v- Tees Health Authority needs to be reconsidered by the courts. The current CICA cap of £500,000 was introduced in 1996. If the damages cap was index linked to inflation then it would be £1,000,000 now.

As ever with such government schemes, the maximum figure is never adjusted once set and very few MPs ever raise this issue in parliament. To raise the cap would require very little effort from the Home Office and presumably would not be opposed by the Opposition given that all political parties would presumably support helping the victims of crime.

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