Clunis v Camden and Islington Health Authority

A claimant cannot recover damages, whether in contract or tort, where the claim depends on the claimant’s own knowing criminal act and requires reliance on that act. A conviction for manslaughter on grounds of diminished responsibility does not remove criminal responsibility or permit the civil court to revisit the conviction. The rule is not displaced by a discretionary assessment of public conscience.

The after-care duty under section 117 of the Mental Health Act 1983 does not create a private right to damages. In the statutory setting, it is neither fair nor reasonable to superimpose a common law duty of care upon a health authority for alleged failures in providing community after-care services.

The claimant had been discharged from compulsory psychiatric detention. The defendant health authority was required to arrange after-care services under section 117 of the Mental Health Act 1983. He missed appointments and was not assessed before he killed Jonathan Zito.

He pleaded guilty to manslaughter on grounds of diminished responsibility and was detained under a hospital order with restrictions. He claimed that negligent failures in his after-care caused the killing and the longer detention and other loss which followed his conviction.

A deputy High Court judge dismissed the authority’s application to strike out the claim. The authority appealed. The central issues were whether the claim was barred by the claimant’s criminal act and whether section 117, or a parallel common law duty, gave him a claim in damages.

1. Appeal allowed. Lord Justice Beldam delivered the judgment of the court. The claim disclosed no sustainable cause of action on either ground advanced by the health authority. The order refusing to strike it out was set aside.

2. The public-policy rule ex turpi causa non oritur actio is not confined to contractual claims. It prevents a court from assisting a claimant who is implicated in illegality and must rely on the illegal act to establish the claim. This claim depended on proving that alleged breaches of duty caused the claimant to commit manslaughter, and the alleged loss arose from the resulting conviction and detention.

3. The claimant’s diminished responsibility did not avoid that bar. His plea accepted criminal liability, albeit with substantially impaired mental responsibility. As he had not been found not guilty by reason of insanity, he had to be taken to know the nature and quality of his act and that it was wrong. The court would not go behind the conviction. Nor was the established rule to be replaced by an uncertain public-conscience test.

4. Section 117 of the Mental Health Act 1983 imposed a statutory duty to provide after-care services, but its language did not create a private law action for damages. The statutory enforcement route included the Secretary of State’s default powers under section 124, and an authority’s decisions could be judicially reviewed.

5. No common law duty of care should be superimposed upon the authority’s statutory after-care functions. Those functions formed part of a broad community social-welfare scheme involving health, social and voluntary services. They were materially different from treatment by a doctor of a patient in hospital. The statutory framework therefore made it neither fair nor reasonable to hold the authority liable in damages for the alleged failures to arrange a more prompt assessment.

• Court of Appeal: Allowed the health authority’s appeal and set aside the order refusing to strike out the claim.

• High Court: On 12 December 1996, Mr Richard B. Mawrey QC, sitting as a deputy judge, dismissed the health authority’s application to strike out the claim.