Psychological well being, scientific negligence and the illegality defence – UK Human Rights Weblog


three November 2020 by

In Ecila Henderson v. Dorset Healthcare College NHS Belief Basis [2020] UKSC 43 the Supreme Court docket has revisited the defence of illegality (“ex turpi causa”) within the context of a declare for scientific negligence.

The claimant — a psychological well being affected person — had dedicated a legal offence on account of the defendant well being authority’s admitted negligence. Can a claimant, who wouldn’t have dedicated an offence however for the Defendant’s negligence, get well losses arising from their very own criminal lawyer Hervey Bay? Can they search compensation for the ache, struggling and lack of earnings brought on by a custodial sentence? Can they get well normal damages for emotions of guilt and regret? The Supreme Court docket answered these questions with a powerful “no”.

The Info

Ms Henderson suffered from paranoid schizophrenia or schizoaffective dysfunction. While beneath the care of the Defendant’s neighborhood psychological well being crew she stabbed her mom to loss of life. She did so while experiencing a severe psychotic episode. She was convicted of manslaughter by cause of diminished accountability.

In sentencing her, the decide stated that: “… there isn’t a suggestion in your case that you need to be seen as bearing a major diploma of accountability for what you probably did”. The decide sentenced Ms Henderson to a hospital order beneath the Psychological Well being Act 1983.

Ms Henderson subsequently introduced a civil declare in opposition to the Defendant Belief. The Belief admitted legal responsibility for its negligent failure to return her to hospital when her psychiatric situation deteriorated and accepted that, if it had executed this, the tragic killing of Ms Henderson’s mom wouldn’t have taken place.

Nevertheless, the Belief argued that Ms Henderson’s declare was barred for illegality (“ex turpi causa”), as a result of the damages she claimed resulted from: (i) the sentence imposed on her by the legal courtroom; and/or (ii) her personal legal act of manslaughter.


The Supreme Court docket’s Determination

The central authorized difficulty was whether or not the Court docket was certain by the Home of Lords’ determination in Grey v. Thomas Trains Ltd [2009] UKHL 33. A declare on very comparable info was dismissed in that case. Alternatively, the Court docket may depart from Grey within the mild of the more moderen determination of the Supreme Court docket in Patel v. Mirza [2016] UKSC 42. In that case the bulk adopted a versatile coverage primarily based strategy to the illegality defence which took under consideration competing public coverage and proportionality elements.

The Supreme Court docket affirmed that the ex turpi defence was justified by two public coverage issues:

First, the necessity to guarantee consistency between the legal legislation and the legislation of tort. The integrity of the justice system relied on its consistency. It might inconsistent for the legislation, on the one hand, to imprison an individual for the implications of their criminality however, on the opposite, to compensate them for it. Or to place it one other approach the legislation mustn’t “condone when going through proper what it condemns when going through left”.

Second, the necessity to preserve public confidence within the authorized system. It was offensive to public notions of the truthful distribution of sources {that a} claimant ought to be compensated for the implications their very own legal conduct. This is able to threat bringing the legislation into disrepute.

The Court docket held that conviction of manslaughter on the grounds of diminished accountability meant that accountability for the legal act was diminished however not that it was eliminated. To permit restoration in civil continuing would result in inconsistency. It might attribute accountability for the legal act not, as decided by the legal legislation, to the legal however to the tortious defendant. The legal beneath the legal legislation would turn out to be the sufferer beneath the civil legislation. Furthermore, to permit a civil decide to revisit the query of whether or not a convicted individual bore private accountability for his or her crimes would create a transparent threat of inconsistent selections within the legal and civil courts.

Making use of the versatile coverage primarily based strategy endorsed in Patel didn’t result in a special conclusion. There was a robust public curiosity within the condemnation and punishment of illegal killing.  Furthermore the Court docket acknowledged that:

NHS funding is a matter of great public curiosity and significance and, if restoration is permitted, funds shall be taken from the NHS finances to compensate the appellant for the implications of her legal conviction for illegal killing.

The claimant relied upon countervailing coverage issues.  The coverage of encouraging NHS our bodies to care competently for probably the most susceptible was one such coverage. The coverage of guaranteeing that public our bodies paid compensation to these they’d injured was one other. The Court docket recognised that there was some drive in these issues. However they didn’t start to outweigh people who supported the denial of the declare:

concern for the integrity of the authorized system trumps the priority that the defendant be accountable.

Accordingly, Grey v. Thomas Trains Ltd remained good legislation and was in keeping with the coverage pushed strategy in Patel v. Mirza.


This case offers useful readability for scientific negligence practitioners who convey or defend allegations of sub-standard psychological well being care. Following Henderson the final rule is that Claimants can get well for the private penalties self-harm on account of negligent psychological well being care however not for the private penalties of inflicting legal hurt to others.

This normal prohibition applies to damages ensuing from the imposition of a legal sentence, reminiscent of normal damages for the detention and lack of earnings throughout it. It additionally applies to damages for emotions of guilt and regret  consequent upon a legal act. Nor can claimants search indemnities from defendants in opposition to claims introduced by the sufferer or the sufferer’s dependents.

Curiously the Court docket left open the likelihood there could also be some very distinctive circumstances the place the defence of illegality wouldn’t apply. This can be the place the legal act dedicated on account of the defendant’s negligence didn’t represent ‘turpitude’. Examples may embrace trivial offences or strict legal responsibility circumstances the place the claimant will not be aware about the info making his act illegal (see [55-56] and [112]). The potential existence of this distinctive class follows from the applying of the versatile coverage primarily based strategy endorsed in Patel. In follow, the writer would anticipate this distinctive class to use very not often certainly. Nevertheless, it will not be a shock if the bounds of the illegality defence have been examined in respect of a a lot much less severe offence sooner or later.

Robert Kellar QC is a barrister at 1 Crown Workplace Row.