Neutral Citation Number: [2008] EWHC 1217 (QB)
Case No: QB/2007/PTA/0354
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/05/2008

Before:

THE HONOURABLE MR JUSTICE KING
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Between:

	A K	Claimant	
	- and -		
	1.) Central and North West London Mental Health NHS Trust 	1st Respondent	
	2.) The Royal Borough of Kensington & Chelsea 	2nd Respondent 	

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Jenni Richards (instructed by Bindman & Partners) for the Claimant
Jeremy Hyam (instructed by Barlow Lyde & Gilbert) for the 1st Respondent
Bryan McGuire (instructed by Weightmans) for the 2nd Respondent

Hearing dates: 19th October 2007 and 19th November 2007
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Judgment
The Hon Mr Justice King: 
1. This is an appeal against the order of Master Eyre of the 4th of June 2007 whereby he ordered that the claim form and the re-amended particulars of claim in these proceedings be struck out and that the action be dismissed pursuant to the provisions of CPR part 3 rule 3.4(2) (a) and CPR part 24.2(a) (i). Under CPR 3.4 (2) (a) the court may strike out a statement of case “if it appears to the court – (i) that the statement of case discloses no reasonable grounds for bringing …a claim”. Under CPR 24.2 the court may give summary judgment against a claimant on the whole of a claim if “(a) it considers that – (i) that claimant has no real prospect of succeeding on the claim”  and “( b) there is no other compelling reason why the case ….should proceed to trial”.

2. It is common ground that in order to defeat the application for summary judgment under CPR 24.2 it is sufficient if the claimant can show some “prospect” of success i.e. some chance of success which is “real” in the sense of better than merely arguable even if improbable.

3. It is equally common ground that a claim should not be struck out under CPR 3.4(2) (a) unless the court is certain that that the claim is bound to fail. In the recent Court of Appeal decision in Smith v. Chief Constable of Essex [2008]EWCA Civ 39, Rimer L. J. agreed that an action which had been struck out by the court below should be restored, because even though in his words “the story of the common law would not therefore appear to promise a favourable outcome to the present claim”       (paragraph 40) and “…the claimant’s case in the present state of the law ( was) “fraught with difficulty” ( paragraph 46), he did not  regard it “as inevitably doomed to failure”. (paragraph 40).

4. In this context Miss Richards on behalf of the Appellant has reminded me of several dicta in recent authority to the effect that where what is in issue is in part the existence of a common law duty of care in an area where the applicable law is uncertain and developing, in particular where as here what is asserted on one view of the pleadings is a common law duty of care which mirrors or arises out of a statutory obligation (and an allegation of common law negligence in the carrying out such statutory functions), it is highly desirable that the facts should be found so that any further development of the law should be based on actual and not hypothetical facts. I was referred for example to the observations of Lord Bingham in Barrett v. Enfield LBC [2001] 2 AC 550, at 557-F – G. I was reminded how notwithstanding the apparent definitive ruling of the House of Lords in X (Minors) v. Bedfordshire Council [1995] 2 AC 633 that it was not just and equitable to impose a common law duty on local authorities in respect of their performance of their statutory duties to protect children, subsequent case law has (to cite the words of Lord Nicholls in JD v. East Berkshire HA [2005] UKHL 23 at paragraph 82) “shown this proposition to be stated too broadly”. It is now clear for example that common law duties can exist albeit they mirror or arise out of a statutory duty owed by a local authority both under various child protection statutes (as in Barrett itself) and under the Education Act (as in Phelps v. Hillingdon [2001]2 AC 619.)  A publicly employed health care professional may now owe a common law duty of care to a child with whom that professional is dealing, albeit “until recently it would have been unthinkable” (per Lord Nichols in JD, supra) since “the law has moved on since the decision of your Lordships house in X (Minors) v. Bedfordshire …” (again Lord Nicholls in JD at paragraph 82).

5. I should say at once that both defendants, the respondents to this appeal, do not dispute that this is the correct approach to any strike – out application. Their main point however is that on any proper analysis of the pleaded claim in this case, (namely that asserted in the Re-Amended Particulars of Claim as purportedly clarified in Replies to Part 18 Requests from each defendant,) the asserted common law duty of care is in fact one said to arise solely out of the statutory duty and associated statutory  functions imposed upon the two defendants jointly under section 117 of the Mental Heath Act 1983 ,and is based upon a background statutory scheme where the applicable area of law is neither uncertain nor developing, but is one in which the issue of the existence of such a common law duty has been conclusively determined against the Appellant by the decision of the Court of Appeal in Clunis v. Camden and Islington Area Heath Authority [1998]  QB 971 at 991E – 993C. To quote paragraph 21 (e) of the skeleton argument of the second defendant:

“The well known authorities cited at paragraphs 29 to 33 of the Appellant’s Skeleton Argument (a reference to the citation of the post “X” authorities of Barrett, Phelps, and  JD amongst others) takes matters no further. It is not the defendants’ case, nor was it found in Clunis, that no common law duty can exist where the obligations contended for mirrored or arose from a statutory duty. The authority’s point is that this particular scheme precludes and has been found to preclude (a reference to Clunis)  the existence of a common law duty of care. Barrett and Phelps are not in point .W v. Essex CC merely confirms that it may be inappropriate to strike out a claim before the true facts have been investigated. But in this case the Claimant has had (including the Answer) 4 attempts to identify the facts said to give rise to a valid claim. This is not a case which requires further investigation”.

6. Emphasis is put in this context on the observations of Beldam LJ in Clunis at 992 
F – G that “the question whether a common law duty exists in parallel with the authority’s statutory obligations is profoundly influenced by the surrounding statutory framework: see Lord Browne – Wilkinson in X (minors) v. Bedfordshire at 739c and per Lord Hoffman in Stovin v.Wise [1996] AC 923,952-3. So too in this case the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged”.

7. The simple point made in response to the pleaded case is thus that the only common law duty of care against either defendant put forward on the pleadings is  a joint one  arising out of their section 117 duty and functions and this has been   conclusively held not to be capable of existing by the decision at Clunis encapsulated in the words of Beldam LJ at 991H (“in our view the wording of the section is not apposite to create a private law cause of action for failure to carry out duties under the section”) and at 992B- C; F- G  (Is it in the circumstances just and reasonable to superimpose such a common law duty of care on an authority in relation to the performance of its statutory duties to provide after-care? We do not think so. We find it difficult to suppose that Parliament intended to create such an extensive and wide ranging liability for breaches of responsibility under section 117 which would of its nature apply alike to those engaged as professionals as well as those in voluntary services in many disciplines………..the duties of care are it seems to us different in nature from those owed by a doctor to a patient whom he is treating and for whose lack f care in the course of such treatment the local heath authority may be liable”.

8. This overall submission of the defendants clearly found favour with Master Eyre at paragraphs (1) and (2) of his Ruling where he ruled “(1) The Claimant’s own pleading is that the facts of this case are such as to bring his action within the scope of section 117 (2) .There is binding authority for the proposition that in such circumstances there is no right of action for breach of any of the after- care obligations”.

The Appellant’s pleaded case – his re-amended particulars of claim.
 
9. I have no doubt that for the purposes of the strike – out application (and indeed the application for summary judgment) that the strengths or weaknesses of the  appellant’s claim should be judged by reference to the way it is now set out in his Re-Amended Particulars of Claim (“REAPOC”) dated the 28th of September 2006, as clarified by his Replies to the Requests for Part 18 information, made by each defendant, and that the appellant is not entitled in response to these applications to seek to disavow his pleaded case or for example to add an alternative  basis for his pleaded case in negligence not spelt out in what must be regarded as his definitive pleading, i.e. his REAPOC.

10. I say this because of the procedural history in this case whereby it is obvious that the appellant has been given a number of opportunities to put his pleaded case in order. Thus on the 21st of April 2006 the Master having considered that ‘the allegations in the Particulars of Claim are throughout set out in a manner that is unfairly hard to understand’ required the appellant to serve amended particulars of claim by the 31st of May 2006 and stayed the action pending such service. Thereafter on the 31st of July 2006 the stay was continued following production of what was still regarded as a deficient pleading and an order was made that any application to lift the stay should be supported by an amended particulars of claim in accordance with the previous order. Ultimately on the 28th of October 2006 the stay was lifted on the basis of the current pleading with provision for Requests by both defendants for further information. 

11. The claim is pleaded as a claim to damages for the catastrophic injuries sustained by the appellant when, at a time when he was in the “care” (paragraph 2 of REAPOC) of both defendants and in an apparent suicide attempt, he jumped from a second floor window of his bed and breakfast accommodation. The date of this event is pleaded as the 19th of October 2004 although it is common ground that it in fact occurred on the 29th of October 2004.

12. The claim is pleaded in common law negligence and for breach of the appellant’s human rights under Articles 2, 3, and 8 of the European Convention on Human Rights as applied by the Human Rights Act 1998. It is not in dispute that both defendants are each public authorities for the purposes of a cause of action under sections 6 and 7 of the 1998 Act.

13. By the replies to the Part 18 Requests - for example paragraph 1(v) and 4 of the Reply to the first defendant and paragraph 4 of the Reply to the second - the appellant makes clear that he does not maintain any cause of action for breach of statutory duty whether under section 117 of the Mental Health Act or any of the other statutory provisions which in paragraphs 6-8 of REAPOC he pleads as the source of each respective defendant’s provision of various services to him.

The source of the common law duty of care – on the pleadings 

14. The REAPOC does not expressly particularise the basis upon which it is alleged a duty of care arises in this case – other than by inference from all the facts and matters set out under “the Factual Premise of the Claim” (paragraphs 10 – 19). However elsewhere in paragraph 4 of the Reply to the first defendant’s Request it is put in this way which in essence is a plea of reliance upon a proximity of relationship as between himself and both defendants

                    a)  the Claimant was a vulnerable man who presented as a risk to 			                himself, including the risk of suicide;
                    
 b)  that vulnerability was recognised by both defendants who undertook 
       to care for him under the  Community Programme Approach (‘CPA’);
          
 c)  both defendants specialised in the provision of services to vulnerable 
      individuals such as the Claimant;

  d) the Claimant relied upon both defendants;
  
  e) it is accordingly averred that these facts give rise to a duty of care
      owed by both Defendants to the Claimant who at the very least 
      assumed a responsibility to him;

15. In submission to this court Miss Richards developed this plea of proximity by highlighting (by reference to the pleaded facts) the following matters (summarised in her primary skeleton argument):

                     i) C was regularly assessed by the Defendants as being vulnerable; 			               The voluminous paperwork attests to the degree (but not the 				               quality) of the interaction between them;
                        
		  ii) C was highly reliant upon the Defendants;

                     iii) The defendants appreciated that C was reliant upon them;

                     iv) this relationship had extended over several years;

                     v) the defendants were aware of the risk of self harm and suicide, the 		               extent to which C’s unsuitable accommodation exacerbated that risk 		               and the presence of particular stress factors arising out of C’s asylum claim.

The pleaded particulars of negligence 

16. Although the REAPOC is not the easiest of pleadings to disentangle, it is clear from paragraphs 18 and 21 thereof, that there are two – and only two - pleaded failings  on the part of both the Defendants which are said to amount to causative negligence, namely a) the failure to appoint a competent social worker or a care Co-ordinator – one  who was competent to address the supported accommodation needs of the Claimant; b) the failure to ensure the Claimant was placed in high to medium supported accommodation, - which is further described (paragraph 19) as a placement which includes the provision of 24 hours a day suitably trained staff and accommodation specially designed to reduce the risk of suicide and self harm. It is pleaded (paragraph 14) that at all times it was known to the defendants that the Claimant was a vulnerable mentally ill individual who posed a potential risk of suicide with limited insight into his condition and limited ability to protect and care for himself. Paragraph 17 of the REAPOC sets out various allegations of fact in support of the contention that the defendants had notice of this risk and why this placed them on notice of the need for the appointment of a social worker and supported accommodation of the kind identified.

The pleaded particulars of breach of human rights;

17. The particulars of breach of the Human Rights Act 1998 pleaded in the REAPOC at paragraph 21 are sparse. The claimant repeats his factual premise set out in the earlier paragraphs at 10-19 and asserts:
                      	
			a) a breach of the obligations owed by the defendants under article 				2 (the right to life) “ in that they failed to prevent to take effective 				measures to protect the Claimant from life threatening injury”;
                    
			b) a breach under article 3 (prohibition of torture or inhuman or 					degrading treatment or punishment) in that “they failed to prevent 				the severe anguish the Claimant would have been suffering in the 				period before he jumped from the window and from the injuries that 				he sustained. It is averred that the Claimant was thereby exposed to 				inhuman and degrading treatment;”
                  
			c) a breach under article 8 (right to respect for private and family 				life) “in that they failed to protect his physical integrity and family 				life.”

The non controversial factual background to the claim

18. The appellant was born in the Lebanon on the 8th of July 1968. He came to the United Kingdom in 1999 seeking political asylum, living at first with his brother. It is not controversial that the Appellant has a lengthy mental heath history, including attempts at suicide, extending back well before he arrived in the United Kingdom, and that he came to the attention of  both defendants in or about April 2000 when he was admitted to the psychiatric  facilities of St Mary’s Hospital London following episodes of mental instability. To quote paragraph 12 of the REAPOC “a diagnosis of paranoid schizophrenia was made with relapse associated with abnormal mood paranoid delusions, auditory hallucinations, and various fluctuating psychopathological symptoms”.

19. It is the appellant’s pleaded case (to quote paragraph 15 of the REAPOC) that from April 2000 he “came under the care of the First and Second Defendants”. As a pleaded fact this is not controversial. The first defendant is a Mental Health NHS Trust. The second defendant is a local social services authority. What is controversial is the basis upon which the defendants thereafter provided the appellant with various services. It is not in dispute that since April 2000 there have been various short term  admissions of the appellant to psychiatric hospital and various incidents of self harm on his part, including in 2001, 2002 and 2003 the taking of overdoses. In 1999 shortly after his arrival in the UK, the Appellant apparently jumped onto the line in an underground station but without suffering any injury.

The report of the independent social worker disclosed by the appellant

20. The order in this case has been made at an early procedural stage. Pleadings have closed but disclosure has not taken place and there has been no exchange of lay or expert evidence save that the appellant in response to this application has disclosed the report of an independent social work expert, Mr James O’Meara dated the 10th of August 2006. 

21. It is apparent that this report is the principal source of the facts set out in the re- amended particulars of claim at paragraphs 10 - 19 (in particular the matters in paragraph 17 which reflect Mr O’Meara’s analysis of voluminous social work and medical records) as the factual premise of the claim, as well as the pleaded particulars of negligence (at paragraph 21), and the pleaded case on causation (again paragraph 21).  It is further obvious that Mr O’Meara’s report is the source of the schedule of information attached to the appellant’s Reply to the first defendant’s Part 18 Request 

22. It is clear from the contents of the report that Mr O’Meara has had access to several Care Plans and Risk Assessments formulated on the appellant by or on behalf of both defendants starting in November 2001 and extending at regular intervals over the next three years culminating with a Risk Assessment of the 24th of October 2004.  These show that a care – coordinator was appointed, namely Reg Musara, a community psychiatric nurse employed by the first defendant, and that the appellant was being regularly seen and his needs being assessed and planned for by the defendants from at least November 2001 right up to the month, namely October 2004, in which the event occurred which is at the heart of this claim to damages, namely the appellant’s attempted suicide. This was in fact only some 5 days after the most recent risk assessment. The need for medication was being assessed as was the need for accommodation. At various times following discharge from stays in hospital, arrangements were made for bed and breakfast accommodation to be provided.  

The pleaded source of the defendants’ provision of services to the appellant; the pleaded source of the defendant’s obligation to provide the services which it is said they negligently failed to provide

23. The only sensible interpretation of the pleadings in my judgment is that the appellant’s pleaded case is premised upon the fact that this planning and these assessments and the provision of services were being carried out by or on behalf of the defendants pursuant to their joint responsibility and duty to provide the appellant with after care services arising under section 117(2) of the Mental Heath 1983. This section provides:

                       “(2) It shall be the duty of the Primary Care Trust or Health Authority 
                        and of the local social services authority to provide, in co-operation 
                        with relevant voluntary agencies, after-care services for any person to 
                         whom his section applies until such time as the Primary Care Trust
                         or Heath Authority and the local social services authority are satisfied
                        that the person concerned is no longer in need of such services…..”

24. Since by the terms of the section (see section 117(1) ) such a duty is owed only to persons who have been detained under section 3 of the Mental Heath Act  (or certain other, for present  purposes, immaterial provisions of the Act) but who have since ceased to be detained and left hospital, it follows in my judgment that the appellant’s pleaded case is premised on the fact that he was at sometime detained under section 3, as indeed appears to have been the assumption before Master Eyre (written reasons paragraph 5 “on a date as yet unconfirmed he was apparently made the subject of a detention order under section 3 of the Mental Health Act 1983”), and any services which the defendants have purported to provide for him have been provided pursuant to their obligations under section 117 and not from any other source of obligation.  

25. Equally I have no doubt that on the appellant’s pleaded case the services which he asserts the defendants negligently failed to provide (the appointment of the competent social worker; the ensuring of the provision of supported accommodation) would have been provided and should have been provided to him by them under section 117 and under no other source of obligation or power.

The nature of the pleaded case in negligence

26. In other words I have no doubt that the pleaded case in negligence is an allegation of common law negligence in the carrying out of a particular statutory function/duty and in negligently failing to provide services pursuant to that particular statutory  duty, namely that falling within section 117. In my judgment the pleading at paragraphs 6 to 9 can be read in no other way as I shall now explain.

27. It is clear from paragraph 9 that the asserted liability of the defendants to the claimant is pleaded as a joint (my emphasis) liability and that the defendants are pleaded as having provided services to the Claimant by acting in a joint (my emphasis) capacity. The only pleaded source of any such joint responsibility is that arising under section 117 as pleaded in paragraph 8 of the REAPOC:

“The First and Second defendants are jointly responsible for the provision of aftercare services to the Claimant pursuant to section 117 of the Mental Health Act 1983. The duty under section 117 is on the Primary Care Trust or Heath Authority and the Local Social Services Authority to provide in cooperation with each other relevant after care services until such time as both authorities are satisfied that the person is no longer in need of those  services.”

It is then pleaded in paragraph 9, immediately following the above pleading in paragraph 8, that “it is accordingly (my emphasis) averred that at the material times set out below the Defendant were acting in a joint (my emphasis) capacity in the provision of services to the Claimant (my emphasis) and are therefore (my emphasis) jointly (my emphasis) liable for the acts and omissions particularised below”.

28. Confirmation that the liability being asserted against the defendants is that of a joint nature is redolent throughout the appellants’ replies to the Part 18 Requests. See for example at paragraph  3 of the reply to the first defendant (“…the liability contended  for is a joint liability not least arising from the allegation that the defendants were under a continuing obligation to ensure that the Claimant was provided with suitable supported accommodation from the first point at which that need was identified.” )

29. Confirmation that the appellant’s pleaded case is in truth on the basis that the services the defendants failed negligently to provide the appellant, were section 117 services to be provided pursuant to that statutory duty and none other, is to be found at various places elsewhere in the REAPOC, see for example at paragraph 18 a.( “the high level of mental illness displayed by the Claimant and recognised in part by his status under an enhanced CPA and the application of section 117 of the Mental Health Act 1983”); paragraphs  7(viii) and 17 (ix); and at paragraph 21c under particulars of negligence ( ‘……the defendants knew or ought to have known that he was entitled to such accommodation not least by virtue of his status under section 117 of the Mental Health Act 1983….”). The device of qualifying the pleaded source of the defendants’ obligation to provide the material services by the epithet “not least” alluding thereby to the possibility of duties under other enactments or sources, is to nothing in my judgment since no source of joint liability for the provision of these services is pleaded other than section 117.

The plea that the services were being provided under the CPA (the Care Programme Approach).

30. At paragraph 15 of the REAPOC it is pleaded that the delivery of services to the Claimant was framed within the Care Programme Approach (‘CPA’) and (for example) a Care-coordinator was appointed “in accordance with the CPA”. This plea  is subsequently built upon in the appellant’s replies to the Part 18 Requests so that for example in the reply to the first defendant’s requests it is said at paragraph 2 that ‘the defendants were both providing care under the CPA the nature of which is a joint approach to the protection and welfare of the Claimant…’ and at paragraph 7 it said that ‘the requirement for a social worker and supported accommodation arose from the CPA and the joint responsibility that the Defendants had for the Claimant. It is not alleged that the first defendant employs social workers (the second defendant does) nor that it necessarily had at its disposal its own appropriate accommodation (as opposed to private provision which can be purchased). It is averred however they were under a responsibility to ensure that the needs identified under the CPA were  met, ,including a responsibility to ensure a social worker was appointed…..to ensure that the Claimant was assisted…to ensure suitable accommodation would be provided’. 

31. This plea has been further developed by Miss Richards in her submissions to this court. This refinement is encapsulated by paragraph 41 of her skeleton argument where she wrote “however, the responsibilities created by the Care Approach Programme guidance, with which both the defendants would have been expected to comply, at least arguably gave rise to a duty of care which was unaffected by the reasoning  or ratio in Clunis”.

32. I am quite satisfied however on the material which has been produced to me that the Care Programme Approach cannot be the source of responsibilities imposed on these defendants independently of their responsibilities under section 117 so as in effect to override the Appellant’s pleaded case that the defendants’ services with which this action is concerned were section 117 services.

33. I have had placed before me various written expositions of the Care Approach Programme. One is entitled ‘Building Bridges – a guide to arrangements for the inter-agency working for the care and protection of severely mentally ill people.’ Another is a policy booklet entitled “Effective Care co-ordination in Mental Heath Services - modernising the care programme approach.’ These materials indicate that the CPA does not create duties or powers to provide services which do not otherwise exist in a local authority or heath authority. What it does is to provide guidance as to how those duties/powers which do otherwise exist, should be exercised in the context of provision in the community for mentally disordered persons.

34.  Thus paragraph 4 of the policy booklet issued by the Government explains how the CPA was introduced in 1991 [HC(90)23/LASSL(90)11]  to provide a framework for effective mental health care and that it has four main elements, namely:- systematic arrangements for the heath and social needs of people accepted into specialist mental services; the formation of a care plan which identifies the health and social care required from a variety of providers; the appointments of a key worker to keep in close touch with the service user and to monitor and co-ordinate care; and regular review and where necessary agreed changes to the care plan.  I agree with the defendants’ submission that the function of the CPA is not to impose new responsibilities but to identify good practice in the provision of services under existing duties and powers.  It may well inform the standard of care to be expected of an authority purporting to exercise functions pursuant to such other duties or powers (as in effect suggested in paragraph 1(v) of the appellant’s reply to the first defendant’s request) but it cannot in my judgment be the source of such duties or powers.

35. In the context of the presently pleaded claim the reference to the CPA cannot in my judgment derogate from the basic premise of the claim namely that in purporting to follow the CPA guidance the Defendants were exercising their section 117 function. That the CPA does not in this context have an existence independent of the provision of section 117 aftercare is confirmed by paragraph 71 of the policy booklet which reads “The CPA is applicable to service users who have been discharged from hospital into the community and are subject to section 117 aftercare. Given that the principles of the CPA and after-care are the same, it is recommended that the section 117 register becomes a discrete and identifiable subset of the CPA register.’

The free standing nature of the provision of services under section 117.

36. It is true that the appellant has pleaded in paragraph 6 and 7 of REAPOC as against the first and second defendants respectively, sources of obligations to provide services to the appellant, peculiar to the individual separate status of each.

37. Thus in paragraph 6 as against the first defendant, reference is made to the provision of various mental healthcare services to the claimant pursuant to sections 1 and 3 of the National Heath Service Act 1977. However this plea can have no relevance to the pleaded cause of action against this defendant which as indicated is that of a joint liability through acting in a joint capacity with the second defendant. The duties under section 1 and 3 fall only on the first defendants and moreover on established case-law  these provisions create only target duties to meet, in the context of a mentally disordered patient,  the reasonable  requirements for the after care of the generality of such  patients (see Watts v. Bedford Primary Care Trust [2006]1 QB 667), whereas section 117 places an enforceable joint duty on both local authorities and health bodies to consider the aftercare needs of each individual to which it relates. Similarly the pleaded reference in paragraph 7 as against the second defendant, to its provision of services to the claimant pursuant to the National Health Service and Community Care Act 1990 and the Chronically Sick and Disabled Persons Act 1970 section 2, and section 29 of the National Assistance Act, can have no relevance to the pleaded cause of action against it which as indicated is expressly pleaded as a joint liability with the first defendant. These statutory provisions apply only to a local authority. 

38. It is now moreover clearly established that services provided under section 117 are provided under section 117 alone. It is not a gateway provision which leads to services being provided under other statutes. On this see R. v. Manchester City Council ex parte Stennet [2004] 4 All E.R.124, 128 per Lord Steyn:
             
                     “Next it is necessary to identify what is embraced in the concept
                      of ‘after care’ services in s.117(2). There is no issue on this point.
                      In Clunis v. Camden and Islington Health Authority, at 992 Beldam
                      LJ observed on behalf of the Court of Appeal ‘After-care services are
                      not defined in the Act. They would normally include social work, support
                      in helping the ex-patient with problems of employment accommodation 
                      or family relationships, the provision of domiciliary services and the use 		  	  of day and residential facilities.’  It is common ground that this was a 
                     correct description. It is agreed that caring residential accommodation is 
                     within the scope of s.117(2).

                     It is now possible to address the issue before the House. If Parliament 
                     had intended by s.117(2) to provide that after-care services would be 
                     provided under other statutory provisions one would have expected
                     s.117(2) to specify the statutory provisions to be triggered…In my view
                     s.117(2) is incapable of being read as a duty to secure the provision of
                     such services under named other enactments. Indeed sub-s (2A) (a) 
                     refers to ‘after-care’ services provided …under this section….”

 39. Accordingly, on the face of the appellant’s now pleaded case as set out in his re-amended particulars of claim it is not in my judgment open to the appellant now to assert (as he now seeks to do both en passim in paragraph 2 of his reply to the  Request of the second defendant, and more openly by way of submission to this court)  that it is a triable issue as to whether section 117 ever applied to the appellant and whether the defendants therefore were purporting to “care” for him pursuant to some other source of responsibility. I refer in this regard to paragraph 40 of the appellant’s skeleton argument to this court which seeks in effect to avoid any difficulties to his claim arising out of the decision in Clunis by recourse to a doubt as to the fact of the appellant’s detention.

“Furthermore and in any event it is presently unclear (and clearly a triable issue) as to whether section 117 of the Mental Heath Act ever applied to C. The documentation disclosed to C shows that the  defendants’ employees proceed throughout on the basis he was being cared for pursuant to section 117 of the 1983 Act and indeed this is the basis upon which all parties pleaded their cases . Close analysis of the documents however has failed to identify whether and if so when C was detained under section 3 of the Act (the pre-requisite of an obligation under s.117 to arise). The defendants have been asked to confirm whether C was in fact detained under section 3 and if so when but there has been no substantive response this request. If in fact the defendants are unable to demonstrate that C was sectioned then no formal obligation under s.117 ever existed. Accordingly the case would simply rest on an assumption of responsibility and on the Defendant’s own analysis Clunis would not apply”.

40. This in my judgment is an illegitimate attempt to extend the basis of the pleaded case in negligence beyond the parameters of the REAPOC.

The courts conclusions

41. I turn now to my conclusions on this appeal.

The pleaded claim in negligence - The impact of the decision in Clunis on the prospects of success for the pleaded basis of the asserted common law duty of care.

42. I have already in paragraph 26 of this judgment set out what on my analysis of the pleadings must be the pleaded basis of the claim in negligence, namely that of the defendants negligently carrying out their duty/functions  under section 117 to provide after care services for the claimant and in negligently failing in particular to provide or  to make arrangements for the provision of two particular after care services, namely the provision of a competent social worker or care-coordinator to address the Claimant’s need for supported accommodation, and secondly, the actual provision of appropriate high to medium supported accommodation.

43. In these circumstances the submission of both defendants that the decision in Clunis effectively excludes the existence of the common law duty of care to support such a private law action in negligence is on any view a formidable one. 

44. The second defendant supported by the first defendant submits that in Clunis the Court of Appeal found (a) that the wording of section 117 was not apposite to create a private law cause of action for failure to carry out duties imposed by the statute and (b) parliament could not be supposed to have intended to create such liability for breaches of responsibility under section 117. That this was the view of the court is undoubtedly correct. I have already set out the material part of the judgment at paragraph 6 above. In reaching its conclusion on (a) the court was undoubtedly influenced by the provision in the statute of methods of enforcement distinct from a private law action (the default powers of the Secretary of State under section 124 )and the availability of a remedy to a dissatisfied patient by way of judicial review, and further by the observations of Lord Browne-Wilkinson in X when describing duties (the child protection duties) which the court in Clunis clearly thought  were closely analogous to the duties created under section 117.Thus at 991F-G of the judgment of  the court one reads:

‘The character of the duties created seem to us top closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633, 747 as requiring :  “exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions, should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties” ’.

45. However, in reaching the conclusion which  the Court of Appeal undoubtedly did on the facts of Clunis that it would not be fair and reasonable to impose a common law duty of care on the defendant health authority in relation to the performance of its statutory duties to provide after care, in parallel with its statutory obligations to make such provision under section 117, (see again the citation from the judgment at p.992C-G), the court clearly had regard not only to its view of the statutory framework but also to  its characterisation of the duties which in the instant case it was alleged that the defendant had failed to perform as essentially “administrative” ones, which the court crucially  regarded were different in nature from  those owed by a doctor to a patient whom he was  treating and for whose lack of care in  the course of such treatment it was conceded in the local health authority might  be liable. Thus although I fully accept that the overall thrust of the judgment at 992C - G is to support the proposition put forward by the defendants that the Court in Clunis held that the duty of care under section 117 was different in nature from that normally owed by a doctor to a patient and this informed its decision to deny the common law duty said to be owed in that case, it is still  nonetheless the position  in my judgment that the court  in Clunis was addressing its mind specifically to the nature of  the “errors and omissions of the kind alleged” ( 992F-G) in that case. 

46. Clunis concerned a patient to whom the defendant owed a section 117 duty to provide after care following his discharge from detention under section 3 of the 1983 Act but who had failed/refused to attend medical assessments and who subsequently went on to kill a man and thereafter lost his liberty consequent on the making of a hospital order following his conviction for manslaughter on the grounds of diminished responsibility. Mr Clunis  brought a claim against the health authority on the basis that they failed to appreciate the seriousness of his condition and that had they done so he would have been given urgent treatment such that he would not have gone on to kill and thereby lose his liberty. The essence of the claim in common law negligence which the court struck out as disclosing no reasonable cause of action (as well as on the application of the principle of ex turpi causa) was that the defendant and defendant’s doctor in particular had failed to arrange pursuant to section 117 a timeous mental heath assessment on the claimant whom it was alleged they ought to have realised was dangerous and in urgent need of treatment. See the description of the claim in negligence at 984H to 985C. In these circumstances on these facts it is easy to understand why the court felt able to characterise the duties which the defendants had allegedly negligently failed to perform as “essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community” in respect of which it would not be “fair just and reasonable” to superimpose on the defendant authority a common law duty of care to provide those particular after-care services. The reference to “fair just and reasonable” is of course a reference to the Caparo (Carparo Industries plc.v Dickman [1990] 2 AC 690) test for the existence of a common law duty of care – whether the court considers it ‘fair just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another’.

47. Thus it seems to me that  one has to be careful in using Clunis as authority for the proposition that in all circumstances any alleged failure of an authority to provide an after- care service under section 117 is necessarily an allegation of a failure to carry out  simply an “administrative duty” not amenable to the imposition of a common law duty of care, or that any alleged failure  under that section  which can be characterised as failure to carry out an “arrangement duty” as opposed to a “treatment duty” (a distinction strongly contended for by the first defendant in submission to me) necessarily excludes the existence of a common law duty of care in relation to the performance of that duty. I agree with the submission made by Miss Richards in her written Reply to the defendants’ submissions that this purported “arrangement/treatment” distinction does not lie easily with the “arrangement duties” said by the House of Lords to be capable of being subject to a common law duty of care notwithstanding they were being exercised in pursuance of a statutory function in for example both Barrett v. Enfield (a failure “to make proper arrangements for his adoption”- p.556A-B) and in Phelps v. Hillingdon “(a failure to provide or arrange for the provision of reasonably appropriate tuition and treatment”-)(p.646A- B).

Conclusion on the pleaded claim in negligence 

Clunis distinguishable on its facts 

48. Formidable although the submissions of the defendants on the reach of the decision in Clunis undoubtedly are, I have in all these circumstances concluded that it would be wrong to debar the Appellant from seeking to argue at trial that on the facts of his case the decision in Clunis is no bar to his establishing a common law duty of care even on his pleaded case as I have found it to be.

49. It seems to me that on a narrow reading of Clunis its ratio is no more than that simply because a person is cared for under section 117, no general (i.e. general to the class of persons whose social welfare it is designed to promote – see Clunis at 991E) common law duty of care to provide section 117 after -care services automatically arises and a claimant cannot lay claim to the benefit of such a duty simply because he can he show he is a member of the particular class. On the facts of Clunis it is easy to understand why the court (to quote Miss Richards’ skeleton argument at paragraph 23) “refused to accept that simply because section 117 imposed a statutory duty to provide or facilitate (in association with others) medical after - care this gave rise to a common law duty to ensure that Mr Clunis had timeous medical assessments.”

50. In my judgment it would be wrong to debar the Appellant from arguing at trial that on the facts of his case there was a relationship and proximity between him and the defendants that was far closer than between claimant and the defendant health authority in Clunis, and that  on the facts of that proximity as may be established at trial it would be “fair just and reasonable” to superimpose the common law duty of care contended for in this case, notwithstanding the ruling in Clunis on its particular facts. The essential facts alleged to give rise to that proximity are set out above in this judgment at paragraph 14 and 15 and I agree with Miss Richards that the pleaded facts of the Appellant’s case are far removed from the facts of Clunis (where the claimant in reality had no relationship with the defendant authority beyond being a member of the general class of person to which the section 117 relates.)  It must on these facts in my judgment be arguable as contended for by Miss Richards that both  defendants here were not engaged simply  in an ‘administrative capacity’ but were directly responsible on an ongoing basis for  aspects of the care of a person whom they knew to be vulnerable and reliant upon them. I repeat that which I have already expressed above on the need to approach some of the wider observations in Clunis with some caution.

51. I am fortified in my view that this claim in negligence is not necessarily “doomed to failure” albeit it may be “fraught with difficulties” by two further citations of authority.

52. First are the judgments of the House of Lords in Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15. The observations of Lord Steyn at paragraph 3 emphasise that in his judgment in the case of a case framed in negligence against the background of a statutory duty or power ,a basic question is whether the statute excludes a  private law remedy which was not a question directly addressed in Clunis. Secondly even Lord Scott  who said at paragraph 71  in a passage heavily relied on by the defendants ,that  he was “ inclined to go further “ and expressed the opinion that “ if a statutory duty does not give rise to a private right to sue for breach ,the duty cannot create a duty of care that would not have been owed at common law if the statute were not there”, did however in paragraph 73  make the further point “ that there are of course many situations in which a public authority with public duties has  a relationship with a member of the public that justifies imposing on the public authority a private law duty of care towards that person .And the steps required to be taken to discharge that private law duty of care may be steps comprehended within public duties. Barrett ….and Phelps.  .are examples. But the council in the present case had no relationship that it did not have with every other motorist driving on the stretch of road in question”. This reflects Lord Hoffman’s observations at paragraph 38.

53. In this case the Appellant must in my judgment be entitled to seek to argue at trial that on the facts to be investigated at trial as currently alleged in his pleadings, the two defendants here, unlike the defendant in Clunis, did have a specific relationship with him capable of founding the common law duty contended for by reason of their dealings with him over the years. 

54. Secondly there is the very recent decision of the Court of Appeal in Smith v. Chief Constable of Sussex to which I have already referred. I accept fully that this case concerned the development of the law of negligence in the context of claims against the police involving witness protection and was not concerned with the effect of an underlying statutory scheme upon the question of the existence of a common law duty of care upon which a previous court had already expressed a conclusion. Nonetheless in sanctioning the removal of any blanket ban on such negligence claims against the police which was thought to exist by reason of the House of Lords decision in Hill v. Chief Constable of West Yorkshire [1989 ]1 AC 53 the court did demonstrate  how the very proximity of the parties  on particular facts may lead to a different conclusion being reached than hitherto ,and that  that which  may have been regarded as definitive expositions of principle  at the highest level as to when a common law duty of care might or might not arise, have to be reconsidered in the light of that proximity. Thus Sedley L.J. having at paragraph 8 stated that ‘no duty of care is owed by the police to the public at large so as to render them liable to an individual who suffers harm from their neglect ‘observed at paragraph 17 that nonetheless ‘it has become clear … .that in some cases involving the police the very proximity of the parties can not only create a duty of care but can overcome the public policy considerations which would otherwise bar the claim”

Clunis no longer to be regarded as a definitive ruling on the question of a common law duty of care in the context of section 117 functions 

55. Moreover I  have been persuaded by the further submission of Miss Richards that even if contrary to my present view, Clunis has to be read as authority for the proposition that a common law duty of care in the exercise of the statutory duty under section 117 is absolutely excluded in all cases whatever the facts,  such a wide proposition is no longer tenable in the light of subsequent legal developments in this area  at a level higher than the Court of Appeal ,and that Clunis cannot be regarded as 
“the final chapter on the destiny of claims such as the present” (to adapt the words of Rimer L.J. in Smith), and that  this is not a case where a strike-out application of the claim in common law negligence should succeed when there has been no investigation of the facts.

56. Notwithstanding the submissions of the defendants I do regard this as a developing area of law especially in the light of the jurisprudence emanating from the European Court which necessarily was not before the court in Clunis, decided as it was prior to the passing of the Human Rights Act 1998. I agree with Miss Richards that the Court of Appeal in Clunis  very much  founded its approach on the analysis of duties imposed by  Parliament on local authorities expressed  in X.( Minor) v. Bedfordshire (see again 991C,991F,992E-F) which duties it regarded as analogous to the obligations created under section 117. But as I have already observed that which was once regarded as an all embracing definitive ruling in X against the imposition of a common law duty of care in respect of the performance of statutory child protection duties, has since been held by the House of Lords in cases such as Barrett v. Enfield as too broadly stated.

57. For all these reasons I have come to the conclusion that the Master was wrong to strike out and to dismiss the pleaded claim based on common law negligence by reason of the decision in Clunis.  This is a case which should go to trial for the facts to be determined, and for the question of whether a duty of care existed and whether there has been a breach, to be determined on a further analysis of the law in the light of the findings of fact. On the material before me it cannot be said that this claim is certain to fail. Further I am satisfied that it has some “real” chance of success in the sense explained at the beginning of this judgment. 

 58. In so interfering with the decision of the Master I make clear I am not simply disagreeing with his exercise of discretion under the material provisions of the CPR. I do so because I have reached the conclusion that his decision was wrong within the meaning of CPR 52.11(3) (‘The appeal court will allow an appeal where the decision of the lower court was – (a) wrong;…”). 

Causation 

59. An additional ground upon which the Master in his Ruling struck out and dismissed the claim in negligence was on the question of causation of loss. He ruled (paragraph (3) (b)(i) ) that the Appellant’s case on causation was “ hopelessly weak”. In my judgment this was a conclusion which was wholly unjustified on the pleaded case and the material before him which included the report of Mr O’Meara. It may well be that at trial the Appellant will lose on the question of causation ,but in my judgment it cannot be said at this stage that he is bound to fail on this issue  or that he has no real prospect of success of  establishing causation.

60. Again I make clear that in so ruling I am not merely interfering with an exercise of discretion on the part of the Master which was otherwise reasonably open to him on the material before him .If that were the case it would not be within this court’s powers to allow this appeal which I accept are circumscribed by the terms of CPR 52.11. In my judgment the Master’s conclusion on the issue of causation was not one reasonably open to him on that material and was wholly wrong. In reaching this  conclusion I have had in mind the statements of principle concerning an appeal court’s approach to interfering with an exercise of discretion, set out by Lord Fraser in G. v. (Minors: Custody Appeal)[1985]1 WLR 647,652 and by Lord Woolf MR in AEI Rediffusion Music Ltd v. Phonographic Performance Ltd [1999] 1 WLR 1507,1523. Both relevant passages are set out in the current Civil Procedure White Book vol.1 at paragraph 52.11.3.  

61. I agree with Miss Richards that the REAPOC at paragraph 21 pleads a “clear and eminently arguable case on causation” to the effect:
                                  
                  a) had a social worker been appointed and/or the defendants complied with their 	duties to the Claimant,	he would have been placed in high to medium 	supported 	accommodation.

                   b) such accommodation would have provided the Claimant with access to 		trained staff who would probably have been alerted to any change mood or 		other causes for concern displayed by the Claimant;
                   
		c) such staff would have sought to address such concerns by for example 			talking to the Claimant and/or offering him access to specialist services or 			securing immediate admission to hospital;
               
                   d) the Claimant would have been accommodated such that he would not 			have been able to jump from a second floor window;

                   e) whilst such steps would not have eliminated the possibility that the 				Claimant would have jumped from a window and sustained catastrophic 			injury it would have made it improbable;

62. I also agree with Miss Richards that the report of Mr O’Meara gave good evidential support both to the pleaded case on breach of duty (assuming a duty of care exists) and on causation, the essential features of which are set out in her skeleton argument at paragraph 44.

The ineligibility of the claimant for housing benefit as a failed asylum seeker

63. The Master further struck out the claim in negligence on the ground expressed in his Ruling at (3)(b)(ii) that the Appellant was “in any way quite unable to met the objection that he was not in the circumstances eligible for supported accommodation”. It is not in dispute that this ground of strike-out/dismissal cannot be supported and arises out of a misunderstanding on the part of the Master. Services provided under section 117 of the Mental Heath Act under which the supported accommodation would have been provided are free of charge. As already explained, the provision of services under section 117 is free standing and not affected by any restrictions which might apply in this context had accommodation been provided pursuant to some other power or duty.

The HRA claims 

64. The Master expressly  struck out the pleaded human rights claims on the final ground to which I have referred which all now agree was erroneous for the reasons stated.

65. I have accordingly had to consider whether I should nonetheless strike out these claims on different grounds as now advanced by the defendants before me. In considering these submissions I have had to bear in mind the overall point made by Miss Richards that the HRA is still relatively speaking in its infancy, that it is a developing area of law and hence unless a claim is certain to fail it should not be struck out and that the basic principle emphasised by Lord Bingham in Barrett remains that in a developing and uncertain area of law, a claim should not be determined without a full exploration of the facts

66. I also bear in mind that only a relatively short part of the hearings before me were devoted to the human rights claims and there was no in depth  oral analysis of the relevant case law. Indeed in respect of the article 2 claims it is only since the hearings before me that I received written submissions from the respective defendants on the impact of the recent decision of the Court of Appeal in Savage v. South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375. I have received written submissions from Miss Richards in respect of the Human Rights claims although because of the way the hearings developed no substantive oral submissions.

67. In all these circumstances I have been very hesitant in reaching any decision adverse to the appellant in respect of the Human Rights claims and I propose only to strike out those claims where I am convinced that the appellant is bound to fail and there is no realistic prospect of the law developing in his favour.

68. On this basis I have decided that the article 2 claim is doomed to failure and should be struck out but not those under articles 3 or 8.

69. As regards Article 2 there is a legitimate debate between the parties whether article 2 is engaged at all given the appellant was not at the time of the incident complained of, detained in any way by either of the defendants or the State generally. Were this the only issue I would in the circumstances have allowed the article 2 claim to proceed. However it seems to me an unanswerable submission now made on the part of both defendants that even if article2 were engaged, the appellant could not succeed as a matter of law absent any plea or evidence in this case of gross negligence, by which is meant the kind of negligence which would be sufficient to sustain a charge of manslaughter.

70. In  my judgment the Court of Appeal  both in  R (Takoushis) v. Inner North London Coroner and another [2005] EWCA Civ 1440  and in Savage, following on the decision of the European Court in Powell v. UK (2000) 30 EHRR CD 152 has clearly held that ‘simple negligence’ on the part of hospital personnel in the care and treatment of a patient in hospital, is not sufficient to amount to a breach of the state’s obligations under article 2 to protect life, unless (and this is the distinction now drawn by the decision in Savage) the patient were himself detained compulsorily under section 3 of the Mental Health Act when he is to be equated to a person detained in prison (when  the lesser standard of simple negligence would apply , following Osman  v. UK (1998) 29 EHRR 245. ). The appellant in complaining of the defendants’ failings towards him under section 117 after he has ceased to be detained   must in my judgment on this line of authority be in the same position of needing to show gross negligence .Absent any plea or indeed evidence of such gross negligence in this case, his article 2 claim must in my judgment be doomed to failure,

71. However, as regards his other two HRA claims I do not reach the same pessimistic conclusion.

72. As regards Article 3, the essential dispute between the parties is whether the appellant will succeed in establishing suffering sufficient to  engage article 3 ,that is to say sufficient  to cross the admittedly high article 3 threshold which requires a ‘minimum level of severity’. On the material before me I am not prepared to find that the appellant is bound to fail in this regard. I accept Miss Richards submission that the appellant’s state of mind must have been such as to lead him to attempt suicide and this anguish must in principle be capable of engaging the article 3 threshold. Whether it in fact did will be a matter to be determined at trial.

73. Similarly with regard to the claim under Article 8. The first defendant submitted that any interference with the appellant’s article 8 rights was bound to be held “trivial” and hence not sufficiently substantial for the engagement of article 8. I was referred in this regard to the judgments of the House of Lords in M v. Secretary of State for Work and Pensions [2006] UKHL 11. I accept however Miss Richards’ submission that on the material before me, in particular in the light of Mr O’Meara’s report setting out what happened to the Appellant, this submission is not made out. The appellant does in my judgment have a more than arguable case for breach of Article 8 which is by no means certain to fail. I was referred by Miss Richards to the Strasbourg case law which recognises that treatment which does not reach the severity of article 3 treatment may nonetheless breach article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity (Bensaid v. UK (2001) 33 EHRR 10 at paragraph 46). I was also referred to the decision of Sullivan J. in R (Bernard) v LB Enfield [2002] EWHC 2282 where a breach of article 8 was found and an award of damages made ,where a local services authority had failed to provide accommodation to a disabled woman leaving her in unsuitable accommodation.

Overall Conclusion.

74. For all these reasons I allow this appeal to the extent of restoring the Appellant’s pleaded claim in negligence and for breach of the defendants’ obligations to the Appellant under the Human Rights Act 1998 in so far as it is based on alleged breaches under Article 3 and Article 8 of schedule 1 of the Act. I will hear submissions from the parties on the handing down of this judgment on the precise form of the order and as to costs.