Traylor v Kent and Medway NHS Social Care Partnership Trust  EWHC 260 (QB)
The WLR Daily case summaries
Queen’s Bench Division
Traylor and another v Kent and Medway NHS Social Care Partnership Trust
2022 Jan 18–24; Feb 10
Human rights— Life— Breach— Patient of NHS trust relapsing after failing to take medication— Patient suffering psychotic episode and seriously injuring daughter— Patient himself injured when shot by police— Whether trust liable to patient and daughter— Whether failing to take reasonable steps to protect daughter against known risk to life— Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 2, 3
Having ceased to take the medication prescribed to him for his mental illness, the first claimant suffered a psychotic episode during which he stabbed his daughter, the second claimant, several times causing her serious physical and psychiatric injuries. The first claimant was shot three times by armed police officers and sustained life-changing injuries. The first claimant was subsequently prosecuted for attempted murder but the jury found him not guilty by reason of insanity. Each of the claimants brought a claim against the defendant NHS trust, with the first claimant alleging that the stabbing incident and the injuries he sustained were the result of the trust’s negligent treatment of his mental illness, and the second claimant alleging that the trust had breached its obligations under articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms by failing to take reasonable steps to avert a real and immediate risk to her life or physical safety which it knew or ought to have known existed. With regard to the first claimant’s claim, the trust sought to rely on the defence of illegality on the basis that the relevant events had resulted from the first claimant’s own criminal acts, notwithstanding that he had been found not guilty by reason of insanity.
On the claims—
Held, claims dismissed. (1) Although there was an admitted breach of duty on the part of the NHS trust in respect of a decision to discharge the first claimant from secondary health care, it was common ground that that decision had made no difference to the outcome as the first claimant would still not have taken his medication even if he had not been discharged. As the evidence did not establish that the consultant psychiatrist who reviewed the first claimant’s case had failed to undertake a sufficient assessment of the risk that he would not take his medication, or failed to advise him that he ought to continue with slow-release injections rather than moving to oral medication, no further breach of duty was made out and the first claimant’s claim in negligence failed accordingly (paras 82, 85, 96, 97, 150).
(2) As a public authority, the NHS trust was required by section 6 of the Human Rights Act 1998 to act compatibly with rights under the Human Rights Convention including articles 2 and 3. In that context, two different aspects of the state’s obligations might be relevant. The first was the “systems” duty to ensure that hospitals adopted appropriate measures for the protection of lives. So long as that was done, acts of medical negligence would not, in themselves, ordinarily amount to a breach of article 2 or 3. Secondly, however, the state was also under a positive duty to provide protection against a known risk to life, which duty was not limited to a duty to protecting patients against a risk of suicide but could extend to protecting against a real and immediate risk to the life of a third party posed by a patient. The two duties could coexist and it was not necessary to choose between two alternative competing options. The second duty could in principle arise in a context such as the present and, for that purpose, an immediate risk might be one that was present and continuing even though the risk was not likely to materialise for some time. Where there had been a clear, known risk that the first claimant would not take his oral medication and would suffer a relapse, which risk had been created as soon as the decision was made to move him to oral medication rather than slow-release injections, and where his history showed that he could then resort to violence, there had been a real and immediate risk to his daughter’s life notwithstanding that the risk was not likely to materialise for at least a period of weeks or more. It followed that the trust had been under a duty to take reasonable measures to avert the risk to the second claimant. However, on the facts of the case the trust had taken such reasonable steps, including by explaining the risks to both the first claimant and his wife, formulating a careful “relapse plan”, providing appropriate medication and arranging regular check-up visits. Accordingly, the trust had not acted incompatibly with the second claimant’s Convention rights and her claim failed (paras 123, 125, 126, 128, 129, 132, 134–138, 144–146, 149, 150).
Osman v United KingdomB, ECtHR (GC), In re Officer L B, HL(NI), Rabone v Pennine Care NHS Trust B, SC(E), Griffiths v Chief Constable of Suffolk Police  Med LR 1 and Lopes de Sousa Fernandes v Portugal (2017) 66 EHRR 28, ECtHR (GC) considered.
Per curiam. The common law background and legislative history shows that those who satisfy the criminal test of insanity are not regarded in law as having committed the act or having any responsibility for the act. The special verdict is not treated, as a matter of the general law, as a conviction and a person found not guilty by reason of insanity is not regarded as having committed a criminal act. Application of the illegality defence to a claim in tort where the claimant had satisfied the criminal definition of insanity would not be in keeping with the line of authorities which had found the illegality defence only applies where the claimant knew he was acting unlawfully, or with authority that emphasised the desirability of maintaining consistency between the criminal and civil law. While there are understandable policy reasons why the criminal injuries compensation scheme enables compensation to be recovered by victims of what would, but for the special verdict, be a crime of violence, that does not mean that such people are to be regarded, for the purposes of the law of tort, as if they had committed a criminal offence (paras 110–114).
Adamson v Jarvis (1827) 4 Bing 66, James v British General Insurance Co Ltd  2 KB 311, Beresford v Royal Insurance Co Ltd  2 KB 197, CA, Hardy v Motor Insurers’ Bureau  2 QB 745, CA, Grey v Barr  2 QB 554, CA, Pitts v Hunt  1 QB 24, CA, Clunis v Camden and Islington Health AuthorityB, CA and Henderson v Dorset Healthcare University NHS Foundation Trust B, SC(E) considered.
Sebastian Naughton and Rachael Gourley (instructed by Hodge Jones & Allen) for the first claimant.
Alison Gerry (instructed by Hodge Jones & Allen) for the second claimant.
Edward Bishop QC and Susanna Bennett (instructed by Bevan Brittan LLP) for the NHS trust.
Jo Moore, Barrister
Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 2, 3