The issue of illegality as a defence in clinical negligence actions is controversial. It typically arises in a rare category of cases in which alleged failures of medical care results in a patient (the Claimant) suffering a psychotic episode. As a result of the psychotic episode, the Claimant then commits a criminal act. This leads to a prosecution and conviction, and potentially pecuniary and non-pecuniary losses. Should a Claimant be permitted to sue the negligent clinician who failed to treat the underlying condition?
The Court of Appeal recently considered and reviewed this tricky area of law in Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841.
The facts in Henderson were that the Claimant, who had been diagnosed with paranoid schizophrenia stabbed and murdered her mother during a relapse. It was admitted by the Defendant that it was in breach of duty, and that but for that breach the relapse (and murder) would not have taken place. The Claimant was prosecuted and convicted of manslaughter by reason of diminished responsibility. Damages were claimed by the Claimant for resulting losses.
Angus Moon QC and Cecily White acted for the Defendant Trust, and argued that the status quo (i.e. that an individual cannot recover damages for losses arising out of a criminal act) should continue. The Court of Appeal agreed. It also affirmed the distinctions within this rule and the reasons why the rule exists.
The legal background
There are three cases that took centre stage in the Court of Appeal’s reasoning.
Clunis and the “narrow rule”
The case of Clunis v Camden and Islington HA [1998] Q.B. 978 provides binding authority for the proposition that the defence of illegality bars a claim for damages relating to a loss of liberty, a fine or other punishment lawfully imposed upon a person for the criminal act committed (the “narrow rule”). This includes damages such as loss of earnings whilst detained and general damages for loss of liberty.
The principle of consistency is the reason that an individual cannot claim damages in this regard: as explained by Lord Hoffman in Gray, the narrow rule is based upon the inconsistency of requiring someone to be compensated for a sentence imposed because of his own personal responsibility for a criminal act (Gray at [44] as cited in Henderson at [54]). In other words it is the law, as a matter of penal policy, which causes the damage and it would be inconsistent for the law to require compensation for that damage (Henderson at [64]).
Clunis was approved in Gray.
Gray and the “wider rule”
Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 A.C. 1339 is authority for the “wider rule” which holds that compensation for loss which one has suffered in consequence of one’s own criminal act cannot be recovered. This includes damages such as: general damages for personal injury (including post-traumatic stress disorder); indemnities against claims brought by relatives of any persons injured by the criminal act; and future losses such as the cost of psychiatric treatment.
Lord Hoffman considered the rule on two grounds:
- It is offensive to public notions of the fair distribution of resources that a Claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct (Gray at [51], as cited in Henderson at [56]).
- Claims for damages arising out of criminal acts raise issues of causation.
The “wider” rule was summarised in Henderson as a combination of these two concepts:
“If the tortious conduct of the defendant merely provided the occasion or opportunity for the killing, but (in causation terms), the immediate cause of the damage was the criminal act of the claimant, it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for such damage” (at [64], per curiam).
In short, where a public body provides the opportunity for the commission of a criminal act, the public body should not be held responsible, as it is not the public body actually committing the act. Rather, the person who commits the act and therefore causes the harm is the one who should bear the responsibility for any loss or damage arising from that act. Any other outcome would be contrary to public policy.
The “discretionary approach” in Patel
The decision in Patel v Mirza [2016] UKSC 42, [2017] A.C. 467 was made in the context of illegality arising out of a contractual agreement.
Lord Toulson, with whom Baroness Hale, Lord Kerr, Lord Wilson and Lord Hodge agreed, explained in Patel that the doctrine of illegality is founded upon the essential rationale that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed, he identified three necessary considerations:
- The underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim;
- Any other relevant public policy on which the denial of the claim may have an impact; and
- Whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts (at [120]).
Further, Lord Toulson clarified:
“…it would be a mistake to suggest the court is free to decide cases in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate” (at [120]).
The majority decided that where the ordinary requirements of a claim for unjust enrichment were satisfied, a claim should not be debarred from enforcement by reason only of the fact that the money the Claimant seeks to recover was paid for an unlawful purpose (at [121]).
The appeal in Henderson
The Claimant sought to appeal the judgment of Hamblen LJ on the basis that: (a) the majority in Gray limited the ratio of Gray to those who had significant responsibility for the offences committed; and (b) he was not bound by Clunis on the basis that its reasoning was wholly inconsistent with the approach subsequently taken by the majority of the Supreme Court in Patel (at [34], [36]).
The reasoning in Henderson
The crux of the appeal came from obiter comments made by Lord Phillips in Gray. Lord Phillips considered the approach to be taken if, in sentencing a person for manslaughter with diminished responsibility, the court made it clear that the person’s offending behaviour played no (or an insignificant) part in the decision to impose a hospital order.
Would the hospital order be considered a consequence of the individual’s mental condition and, in that event, make the public policy defence inapplicable? If so, the offending Claimant could then claim for losses arising from their time in hospital (as per the narrow rule). Lord Phillips ultimately reserved judgment as to whether ex turpi causa would apply in either situation.
These comments, relied upon by the Appellant were rejected in Henderson as being both obiter and inconclusive (at [70] – [75]).
Henderson held that the ratio in Gray and Clunis is still binding following the decision in Patel. Despite the “discretionary” approach identified in Patel, all of the judges who gave substantive reasoned arguments in Patel did not suggest that Gray or Clunis had been wrongly decided.
Put simply, the ratio that binds the court is that a person cannot recover damages arising out of their illegal act (either from loss of liberty following a hospital order (the “narrow” rule) or from loss suffered in consequence of one’s own criminal act (the “wider” rule).
On this basis, the Court of Appeal decided that the Claimant in Henderson was barred from recovery of damages arising out of her criminal act.
The per curiam judgment of the Court of Appeal therefore made it quite clear that the rules outlined above would apply where an individual was found guilty of, or pleaded to, manslaughter by reason of diminished responsibility.
Comment: What if the Claimant was found not guilty by reason of insanity?
Although Lord Hoffman admitted in Gray that a situation wherein an individual committed an act but was acquitted on the grounds of mental illness raised “an interesting question about the limits of the rule” (at [42]), this question has not yet been dealt with substantively by the courts.
The Court of Appeal in Henderson confined itself to considering a situation wherein an individual is convicted of a criminal act but the sentencing judge considers the person bore no or insignificant responsibility for the act; the applicability of the narrow or wider rules to a special verdict of “not guilty” by reason of insanity (i.e. guilty of the actus reus but not guilty of the mens rea of the crime) was not expressly considered.
Finally, there is an ill-defined but potential defence where an act is considered to be contrary to certain aspects of “public morality”. The boundaries of this have never been made entirely clear and they did not arise for consideration on any of the cases (see [85] of Henderson referencing [120] of Patel). It is probable that this element of the defence will remain ambiguous.
As the law stands, it is far more practical to lodge a defence on the basis of the reasoning set out in Henderson, even where the Claimant has been found not guilty by reason of insanity.
In doing so, however, Defendants would be well advised to be prepared for a challenge.