- Supreme Court considers the illegality defence in a personal injury claim (Henderson v Dorset Health Care)
- What are the practical implications of this case?
- Civil lawyers
- Implications for other negligence claims for failure to protect cases against public bodies
- Criminal lawyers
- What was the background?
- What did the court decide?
- The issues
- Case details
Personal Injury & Clinical Negligence analysis: A damages claim by a mentally ill woman who killed her mother while suffering a serious psychotic episode was defeated by the defence of illegality despite an NHS admission of liability in failing to recall her to hospital; but for the negligence she would not have committed the crime. A section 37/41 Hospital Order was made as she needed treatment not punishment. The trial judge agreed she lacked significant responsibility but existing law (Gray) or an application of the new Patel v Mirza test led to the same conclusion. She remained criminally responsible, she was not M’Naghten insane, so allowing recovery would damage the integrity of the legal system and be against the public interest. The case will be of interest to all civil lawyers grappling with illegality issues, criminal lawyers advising on potential insanity pleas as well as anyone interested in fair treatment of the mentally ill. Written by Nicholas Bowen QC, Doughty Street Chambers.
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