Strike-out on the basis of facts, not law

Lukes v Kent & Medway NHS Trust and Kent Police [2024] EWHC 753 (KB) is an instructive illustration of whether strike-out applications can succeed on factual grounds against either healthcare or police defendants in the context of claims for provision of negligent mental health assessment/treatment.

Alicia Harrison, pupil barrister at 12KBW, analyses the case.

Introduction

Lukes v Kent & Medway NHS & Social Care Partnership Trust & Anor [2024] EWHC 753 (KB) concerns a claim for personal injury suffered by the Claimant (‘C’). C sustained serious injuries when he jumped from height onto railway tracks on 19 August 2020.

C brought a claim against the Kent and Medway NHS and Social Care Partnership Trust (‘D1’), and the Chief Constable of Kent Police (‘D2’) in negligence, on the grounds that both Defendants owed him a duty of care which they had failed to discharge. C alleged that, had D1 and D2 not breached their respective duties, the incident on 19 August 2020 would not have happened.

Both Defendants applied to strike out C’s claim and/or for summary judgment pursuant to CPR r3.4 and/or CPR r24.(3)(a) respectively.

The application was heard by Knowles J.

Facts

The relevant facts are as follows.

Background

• C had a family history of mental illness, with relatives having suffered from schizophrenia and bipolar affective disorder. There was also a family history of suicide.
• In January 2019, C first came to the attention of mental health services when he was coaxed from a bridge by a member of the public. He was detained under s.136 Mental Health Act 1983 (‘MHA’), assessed, and discharged shortly thereafter.
• In September 2019, C was arrested on two occasions for assaulting his grandfather and his mother, respectively. He was detained under s.2 MHA, and again, discharged within a few days. As reported by his mother, C was stating suicidal intentions, said he was hearing voices in his head, and believed that he was Jesus reincarnated.
• In early 2020, C stopped working for his employer having suffered delusions that his colleagues were cult members who had raped him.

Events of August 2020

• On 11 August 2020, having allegedly assaulted his sister and father, C was arrested by D2’s officers. C’s mother informed the arresting officer of C’s mental health issues and the relevant history; she requested that he be attended to accordingly.
• Upon arrival at Medway Police Station, C was initially assessed as not requiring an appropriate adult or medical attention and being fit for interview. Upon reassessment a few hours later, it was deemed that C did, in fact, need an appropriate adult, owing to serious concerns as to his mental health.
• On 12 August 2020, C was seen twice by Mr Parish, a community psychiatric nurse and a member of the CJLDS (a support service provided by D1). C declined to engage with Mr Parish, telling him repeatedly to “fuck off”. Mr Parish concluded that he was unable to complete his own assessment of C, and was further unable to communicate with C’s mother or GP about his condition without consent, which he was unwilling to give.
• That same afternoon at 15.29, C was deemed fit to be interviewed with his mother as an appropriate adult. Post interview, a pre-release risk assessment was completed. This recorded C as having no particular risk factors including harm to himself and others, mental health issues, and vulnerability.
• On 15 August 2020, following concerns raised by C’s father as to his mental health, Ms. Hatfull of D1’s psychiatric support team contacted C.  
• C was discharged following that call. Ms. Hatfull’s screening form recorded that C was not known to local mental health services, that there was no family history of mental illness, and he had never attempted suicide. A box relating to self-harm and risk to others was incomplete. C had apparently said ‘he was absolutely fine and did not want any support with his mental health’ [34].  
• On 19 August 2020, C’s mother called 999 for an ambulance describing C as having a ‘psychotic attack’; he was increasingly agitated, talking nonsense, and had taken a hammer over to a neighbour’s house. He was trying to leave the property by car.
• The police and an ambulance arrived. The police said they were unable to act since C did not need “sectioning” and had not committed a crime. Paramedics confirmed that since C had capacity and declined help they were limited in what they could do.
• C’s mother made a further 999 call later that evening at 20.02 requesting an ambulance and reporting that C had driven away in his car.
• Around two hours later, a further call reported that C had fallen from a bridge and landed on railway tracks; he sustained severe spinal and other injuries.  

The Case Against the Defendants

The case against the Defendants can be summarised as follows:

• C submitted that each Defendant owed a duty of care to C. The existence of such duties was uncontroversial. The dispute was as to the scope of those duties and whether they had been breached.

• As to D1, C’s case was based on the acts and omissions of Mr Parish and Ms Hatfull on 12 August and 15 August 2020 respectively [56]-[57]. C’s position was essentially that, had those individuals screened and assessed him properly, his case would have been escalated towards further interventions which would have prevented the events of 19 August 2020 occurring.

• C’s case against D2 concerns the events of 11-12 August 2020. Given that Code C of PACE required D2 to ensure C received ‘appropriate clinical attention’, there were alleged failures to:
• Determine that C required an appropriate adult at the outset;
• Ensure that C underwent an appropriate and effective mental health assessment by a ‘Healthcare Professional’ to determine if he was fit for interview;
• Obtain an appropriate and effective psychiatric assessment from a ‘Healthcare Professional’ when Mr Parish was unable to assess C;
• Carry out a competent pre-release risk assessment which accurately recorded C’s risk factors.
• Again, it was alleged that, but for D2’s breaches, C’s case would have been escalated in a similar way such that the events of 19 August 2020 would not have happened.

The Applications

• Both Defendants submitted that the claim against them was unarguable, and should therefore be struck out/subject to summary judgment.
• C opposed the applications. He that they required the Judge to reach judgments on incomplete factual evidence, that a cautious approach was required and that the issues were plainly triable.

Findings

The Judge summarised his task as follows: ‘the essential issue on these applications is whether the facts pleaded by C against D1 and D2 disclose a sufficiently strong cause of action in negligence, capable of giving rise to an award of damages ‘[6].

As to D2’s application, the Judge agreed that the case pleaded against Kent Police could not be made out. He found:

• The initial failure to deem that C required an appropriate adult ‘plainly had no causative effect’ [144] given that the position was corrected by the subsequent reassessment.
• As to the alleged failure to ensure C received ‘appropriate clinical attention’, Mr Parish, was, in fact, a ‘Healthcare Professional’ for the purposes of Code C.
• The police were entitled to rely on Mr Parish’s conclusions and opinions as a qualified mental health nurse. D2 fulfilled its duty of care in this regard [161].
• As to the completion of the pre-release risk assessment, it was not possible to ascertain the causative potency of this allegation, and the same had not been pleaded.
• The claim against D2 therefore failed, having no realistic prospects of success. Summary judgment was therefore entered in D2’s favour, and the claim was also struck out.

D1’s application was dismissed. As to that application, the Judge found that:

• There was ‘merit in the criticism’ of Mr Parishthat he did not adduce C’s full history of self-harm such that he was fully informed in dealing with C on 12 August 2020[170]. C’s medical records revealed a greater risk than Mr Parish documented.
• It was ‘at the very least arguable’ that Mr Parish could have spoken to C’s mother and/or GP regarding C’s mental health and was in breach of duty for not doing so [184].
• The conditions for compulsory detention under the MHA are not limited to cases of psychosis. Having capacity also does not preclude a person being compulsorily detained.
• There was a triable issue as to whether a proper screening by Mr Parish would have led to a further mental health assessment [191].  Likewise, whether Ms Hatfull breached her duty with regard to the 15 August 2020 assessment.
• Causation could only properly be assessed by reference to evidence [198].
• D1’s applications therefore failed and were dismissed.

Comment

This is an interesting case. The judge reached opposing conclusions as to the viability of claims in negligence against two public authorities, who admitted they owed a duty of care to C. These applications were unusual in that there were no particular issues of law involved; they were based on the facts [102].

The Judge’s comments as to capacity, and its relevance to detainment under the MHA, are particularly insightful. In making its applications, D1 relied heavily on C’s capacity, and refusal to cooperate, in arguing that it was not in breach of its duty to him.

The Judge made his position clear on this point: ‘as I have already said, lack of capacity is not of itself a bar to compulsory detention’ [195]. It therefore appears that it will not be enough for defendants to simply argue that they were under no obligation to consider detention under the MHA purely because an individual had capacity under the MCA.

The judgment in favour of D2 is also helpful in clarifying the scope of the police’s duty to individuals in this context. The Judge’s findings indicate that a registered mental health nurse will be deemed a Healthcare Professional for the purposes of PACE Code C in exercising the police’s duty to ensure that an individual receives ‘appropriate clinical attention’ (subject, of course, to this being an appropriate type of practitioner).

More broadly, and importantly, the police will be entitled to rely on the conclusions and opinions of such Healthcare Professionals and are not required to conduct a form of ‘quality audit’ [159] on their work, the same being outside of their expertise and knowledge. The success of D2’s applications therefore serves to delineate what the police will, and will not, be responsible for in ensuring they administer ‘appropriate clinical attention’ under PACE.

The wider point illustrated by this judgment is that (1) questions of scope of duty, breach of duty and causation are fact sensitive; (2) they will therefore not normally be suitable for summary determination; (3) however, it particularly clear cases where fundamental flaws in claim can be established on known or incontrovertible facts, such an application can succeed.

Alicia Harrison, pupil barrister