Traylor v Kent and Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB)
In Traylor v Kent and Medway NHS Social Care Partnership Trust [2022] EWHC 260 (QB) the High Court considered the liability of an NHS Trust when a patient stabbed his daughter during a psychotic episode allegedly resulting from negligent mental health treatment in the context of a clinical negligence and a Human Rights Act (“HRA”) claim.
The facts
Marc Traylor (“MT”) had a diagnosis of paranoid schizophrenia manifesting in morbid jealousy syndrome. The Defendant knew of his history of violence towards his wife and assessed the risk he posed to those around him. He was under a community treatment order (“CTO”).
In June 2014, MT met with a new psychiatrist and requested that he change his antipsychotic medication regime from long-acting injections to oral tablets. The psychiatrist agreed. In December 2014, the same psychiatrist discharged MT’s CTO. MT never took his antipsychotic tablets and lied about taking them to his family and the Defendant’s mental health care team during numerous home visits. He then suffered a relapse.
The following February, during a psychotic episode, MT held his daughter Kitanna Traylor (“KT”) hostage in her bedroom. Armed police were called to the scene and shot MT three times but were not able to prevent him from stabbing KT. Both survived the incident but were left with serious lifelong injuries. MT was charged with the attempted murder of KT but was found not guilty by reason of insanity.
MT’s claim
MT brought a personal injury claim arising from his gunshot injuries against the Defendant, alleging that he received negligent treatment for his schizophrenia which resulted in the psychotic episode.
Breach and causation
The Defendant accepted that the decision to discharge MT’s CTO was negligently handled but it was agreed that this decision did not make a difference to the outcome [82]. MT’s two remaining allegations were:
- The risk that MT would not take his medication was not sufficiently assessed
- MT was not advised that he should remain on his injections
Johnson J was satisfied, despite no contemporaneous notes of the relevant discussions had at the consultation, that MT’s psychiatrist did consider and appreciate the risk that MT might not take his oral medication and the consequential risks that flowed from that [85], and that it was likely that MT was advised to continue with injections [96].
Even though MT could not establish a breach of duty, Johnson J considered causation. He found that, in any event, no amount of advice would have changed MT’s “fixed views” about the (in)efficacy of antipsychotic medication, and so he failed to establish factual causation [99]. In terms of the strict legal cause of MT’s relapse, Johnson J indicated that MT’s free and informed decision to stop taking his medication would not have broken the chain of causation due to the nature of the duty of care that the Defendant owed to MT [101]. On that same basis, he also rejected the Defendant’s further argument that MT voluntarily accepted the risk created [103].
However, had MT’s claim otherwise succeeded, the Court considered that any award of damages would have been reduced by 75% to reflect the fact that MT bore primary responsibility for what transpired [122].
Illegality
The Court considered whether the illegality defence was available to the Defendant in circumstances where MT was ‘insane’ within the meaning of the McNaughten rules. This issue had not been settled in this jurisdiction, having been explicitly left open in Gray v Thames Trains Limited [2009] 1 AC 1339 per Lord Hoffman at [42].
The Defendant argued that although MT was found not guilty by reason of insanity, he was nevertheless guilty of a criminal act [108]. Johnson J held that MT was not to be treated as having committed a criminal act, as those who satisfy the test in the McNaughten rules “are not regarded in law as having committed the act or having any responsibility for the act” [110]. Johnson J determined that central to the availability of the illegality doctrine was the notion of culpability and an awareness on the part of the perpetrator that they were acting unlawfully [111 -115]. Therefore, the illegality defence was not open to the Defendant in this case.
KT’s claim
KT brought an HRA claim on the basis that the Defendant, as the Trust responsible for her father’s mental health treatment, knew or ought to have known of a real and immediate risk to her life and failed to take positive steps to protect her pursuant to articles 2 and 3 of the European Convention on Human Rights.
Johnson J held that, in principle, the Osman duty could apply in the context of requiring NHS Trusts to protect third parties against the risk of violence posed by one of its patients [126], in the same way the duty may protect against a risk of suicide (see [34] of Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2). In his analysis, Johnson J did not accept that a choice must be made between two alternative positive operational duties owed under article 2: a ‘systems’ duty owed by hospitals to protect lives primarily in a clinical setting and a duty to protect against suicide or criminal violence in a protective setting [127-128]. Rather, the two may co-exist.
In the context of KT’s claim, the Court found that the risk to KT’s life was a real and known risk that, once created, was present and continuing, even though the precise way it ultimately materialised could not be predicted [133-135]. The agreed evidence was that without medication MT’s risk of relapse was in the region of 80% [132], which was a known risk to his wife’s life. Johnson J held that KT did not need to be identified as a victim in advance; it was enough that there was a clear risk that she might be caught up in such violence [137].
However, the Court concluded that the Defendant took reasonable steps to avert the risk, such that KT’s HRA claim ultimately failed [144].
Comment
The judgment provides useful clarity on the parameters of the doctrine of illegality, and the principles underpinning it. The defence of illegality is not available when the claimant is not culpable for their acts (not guilty by reason of insanity) but is available in cases such as Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 (see Rob Kellar QC’s article here) where a claimant pleads guilty on the grounds of diminished responsibility.
This decision offers insightful comment on the application of the Osman operational duty in the context of clinical negligence claims. The Court took an expansive approach to the duty in a clinical setting, such that it can apply where an NHS Trust knows that a patient poses a real and immediate risk to a third party even in circumstances where such a risk may not materialise for a significant period and where the precise identity of the third party is not known. This case is also an important reminder that when patients have capacity and have firm views on their treatment, those views have an overriding effect on the options of clinicians in a way that is necessarily factored into determinations on breach and causation.
