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Case of note: EH v. Dorset Healthcare University NHS Foundation Trust (Supreme Court, 30 October 2020)

Date published:

EH suffered from paranoid schizophrenia and on 25 August 2010 stabbed her mother to death whilst experiencing a serious psychotic episode. She pleaded guilty to manslaughter by reason of diminished responsibility and was sentenced to a hospital order under the Mental Health Act, 1983. She remains subject to detention.

On her behalf, the Official Solicitor brought a claim for EH’s own losses. These included deprivation of liberty, the costs of psychotherapy and inability to inherit part of her mother’s estate owing to operation of the Forfeiture Act, 1982. The trust admitted negligence in relation to failing to return EH to hospital despite her psychotic state, but maintained that the entirety of EH’s claim was irrecoverable in law as a matter of public policy. That argument was upheld in both the High Court and Court of Appeal. The Official Solicitor therefore appealed to the Supreme Court.

Insanity is a defence to murder. This necessitates the killer not knowing the nature and quality of what they did; or if they were aware, not knowing that the act was wrong. In this case, independent consultant forensic psychiatrists instructed in relation to the criminal proceedings concluded that EH knew what she was doing, and that this was both morally and legally wrong. However, her psychiatric state meant that EH’s responsibility for the killing was substantially impaired. The High Court judge presiding over the criminal trial accepted that evidence.

Turning to the civil claim for damages, the Supreme Court reviewed relevant case-law including Gray v. Thames Trains (2009), in which the House of Lords had decided that an individual involved in a major railway accident, who developed serious psychiatric problems as a consequence and killed a member of the public, could not recover damages in his own right from the party responsible for the accident.

Giving a unanimous ruling, the Supreme Court held that the decision in Gray should be followed. Neither that judgment, nor the 1997 ruling of the Court of Appeal in Clunis v. Camden and Islington Health Authority, where a psychiatric patient had killed a random Underground passenger, were at odds with the Supreme Court’s 2016 decision in Patel v. Mirza, in which an individual who had entered into a prospective insider trading arrangement with another party, who then held onto his money, was allowed to recover his outlay despite the illegality of the contract.

The Justices concluded that there was a need for consistency between criminal and civil law. It would not be appropriate to treat a guilty party under the former as a victim under the latter, especially in a case as serious as manslaughter. Further, the court observed that “NHS funding is an issue of significant public interest and importance and, if recovery is permitted, funds will be taken from the NHS budget to compensate [EH] for the consequences of her criminal conviction for unlawful killing.” The trust’s position was therefore upheld and the claim dismissed.

Comment
This was truly a tragic case, where the trust had admitted negligence. However, both NHS Resolution and the trust considered that the claim breached established legal principles. The fact that EH pleaded guilty to manslaughter by reason of diminished responsibility meant that she had accepted partial responsibility for her actions. In our view it would be wholly wrong for an individual to recover damages in her own right in such a situation, and all seven of the Supreme Court Justices – including the President, Lord Reed – agreed with our position. It is very interesting and unusual that the court made reference to NHS funding in this context. Had the criminal court accepted a plea of insanity, the outcome of the civil claim might have been different – but that is a matter for speculation.