Ecila Henderson v Dorset Healthcare University NHS Foundation Trust

The illegality doctrine bars a person convicted of manslaughter by reason of diminished responsibility from recovering damages caused by the conviction, sentence or intentional killing. This applies irrespective of the degree of personal responsibility or the absence of a penal element in a hospital order.

The policy-based approach to common law illegality requires consideration of the purpose of the prohibition, countervailing policies and disproportionality. Existing precedents remain authoritative where compatible with that approach. Consistency between the criminal and civil law, public confidence, the seriousness and centrality of the crime, and its causal relationship with the loss may justify denying recovery.

The appellant, who suffered from a serious psychotic disorder, killed her mother and pleaded guilty to manslaughter by reason of diminished responsibility. She received hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. The respondent NHS trust admitted that its negligent failure to return her to hospital caused the killing.

The appellant sought damages for psychiatric injury, loss of liberty and amenity, lost inheritance, psychotherapy and future care. The High Court rejected the claim in [2016] EWHC 3275 (QB). The Court of Appeal dismissed her appeal in [2018] EWCA Civ 1841.

The Supreme Court considered whether Gray v Thames Trains Ltd could be distinguished, whether it should be departed from following Patel v Mirza, whether Clunis should be overruled, and whether every claimed head of loss was irrecoverable.

1. Appeal dismissed unanimously. Lord Hamblen gave the judgment, with which Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden and Lord Kitchin agreed.

2. Gray v Thames Trains Ltd [2009] UKHL 33 could not be distinguished. Its narrow rule prevents recovery for damage caused by a lawful criminal sentence. Its wide rule prevents recovery for damage caused by the claimant’s intentional criminal act. The decisive consideration is that the claimant was found criminally responsible, rather than the degree of personal responsibility. A conviction for diminished-responsibility manslaughter necessarily leaves criminal responsibility and blame, even where sections 37 and 41 of the Mental Health Act 1983 produce a non-penal hospital disposal.

3. Gray should not be departed from, and Clunis should not be overruled. Patel v Mirza [2016] UKSC 42 did not make all earlier illegality authority obsolete. Existing decisions retain precedential value unless incompatible with Patel’s reasoning. Gray was based on public policy and was consistent with Patel’s concern for coherence and the integrity of the legal system.

4. Under Patel, the court considers: the policies supporting denial of the claim; countervailing policies that denial may impair; and whether denial would be disproportionate. The third consideration is a disproportionality check and need not always be reached. Relevant general policies are not confined to the specific purpose of the prohibition. They include consistency, public confidence and preventing profit from wrongdoing. The closeness of the causal connection between the illegality and the claim may be important.

5. The consistency and public-confidence principles strongly supported denial. The unlawful killing was serious, intentional and central to every claimed loss. Countervailing policies concerning competent NHS care and tort compensation did not outweigh the threat to legal coherence. Denial was proportionate despite the appellant’s impaired responsibility and the respondent’s admitted negligence.

6. Loss of liberty and loss of amenity during detention were barred by the narrow rule. Psychiatric injury, consequences of the killing, psychotherapy, future care and the lost inheritance were barred by the wide rule. Permitting recovery of the inheritance would also subvert the bespoke regime and order under the Forfeiture Act 1982. Losses arising before the killing were not within the conceded bar.

1. United Kingdom Supreme Court: Dismissed the appeal in [2020] UKSC 43 and affirmed the application of the illegality defence.
2. Court of Appeal: Dismissed the appellant’s appeal in [2018] EWCA Civ 1841, holding itself bound by Gray and Clunis.
3. High Court: In [2016] EWHC 3275 (QB), Jay J determined the preliminary issue for the respondent because Gray and Clunis were binding.