In Griffiths v (1) Chief Constable of Suffolk (2) Suffolk NHS Foundation Trust [2018] EWHC 2538 (QB), the High Court dismissed claims that the Chief Constable and the NHS Trust were negligent in breaching their duties of care or had breached human rights. The case is interesting for reaffirming three points:

(i) the law will generally not impose liability on a defendant for failing to prevent harm caused by someone else;

(ii) obligations under Article 2 (right to life) or Article 3 (prohibition of torture) of the European Convention on Human Rights (ECHR) will not arise where the institution does not know of a real risk that those rights would be breached; and

(iii) where there is a protective duty in respect of ECHR, Articles 2 or 3, a breach of Article 8 (respect for private and family life) cannot succeed where Articles 2 or 3 are not themselves breached.

What was the background?

The basic facts of the case were tragic. Ms Griffiths and Mr McFarlane were friends. Ms Griffiths told Mr McFarlane that she did not want their friendship to develop into anything further and told him that she sought a reconciliation with her former boyfriend, with the result that Mr McFarlane attempted suicide later that night. He was found and taken to hospital, after which a mental health assessment panel determined, pursuant to the Mental Health Act 1983, that he did not meet the criteria for compulsory admission. He was discharged.

Two days later, Ms Griffiths made a 999 call to the police, stating that Mr McFarlane was harassing her and that she was ‘really frightened’. The call was graded for a response within four hours but, within that time, the control room operator called her and both agreed that a police officer could attend the following day.

In the very early hours of the following morning, Mr McFarlane broke into Ms Griffiths house with an axe and bolt gun. He shot Ms Griffiths several times, in the presence of her children. He later pleaded guilty to murder.

Ms Griffiths’ three daughters brought claims against the Chief Constable and the NHS Trust. As against the Trust, the claims were that the mental health assessment was flawed, that Mr McFarlane ought to have been admitted to hospital, which would have prevented his being able to murder Ms Griffiths, and that the Trust ought to have communicated with the police. The claim against the police was that the operator ought to have graded Ms Griffiths’ call as more serious and sent someone round that night.

What did the court decide?

Duty of care of the Trust

The judge found, on the facts, that the assessment by the decision of the mental health assessment panel, the formulation of the care plan and the decision not to detain Mr McFarlane were not negligent. He observed that it was now possible to look back and see things which did not seem very important at the time. Those decisions, however, had to be taken on the basis of what was then known and properly appreciated.

The judge then considered the issue of negligence in relation to third-parties. The claimants had submitted that there were two exceptions to the general principle that the law did not impose liability for injury caused by the conduct of a third party—as stated in Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] All ER (D) 215 (Jan) at paras [99]–[100]. Those were, first, where a person was in a position of control over another and should foresee that they could cause damage to someone in close proximity (per Home Office v Dorset Yacht Co Ltd [1970] AC 1004, [1970] 2 All ER 294). The second was where a person assumed a positive responsibility to safeguard another.

With respect to the former, the judge held that a duty to warn did not exist without some relationship between both the person being warned and the person about whom the warning was to be given. There also had to be a relationship of proximity between the defendant and the person injured. For the claimants to establish the necessary proximity between the Trust and Ms Griffiths, who was a non-patient, the risk to her life had to be ‘distinct in the sense of being clearly apparent’. On the facts as found, the panel undertaking the mental health assessment did not know that Ms Griffiths was at risk of harm to a distinct and special degree.

If circumstances were to arise in which no reasonable assessors would have failed to take steps to alert a known potential victim or those who might protect them, the law was not likely to give rise to any novel burden in requiring them to do what any reasonable assessor would have done.

As to the second point, the principal issue was whether the assessment panel should have foreseen that there was such a risk to Ms Griffiths from Mr McFarlane’s murdering or seriously assaulting her. The judge found that if the assessment panel foresaw or should reasonably have foreseen such a risk, the law would impose an obligation to safeguard her, by taking such steps as warning her or alerting the police. The gravity of the risk would be sufficient to impose such a duty—the duty of patient confidentiality would be overridden by the public interest in the avoidance of risk to others. The steps required to be taken to mitigate the risk would depend upon the facts.

There was, however, in this particular case, no basis upon which the mental health assessment panel could have foreseen that Mr McFarlane would murder Ms Griffiths or seriously assault her. There was, therefore, no basis for informing her or the police of a risk, which would involve a breach of what would otherwise be strong patient confidentiality. There had to be more than the fact of a mere mental health assessment to tell the police; there had to be something to tell them to which they could respond.

The human rights claims

As to the human rights element of the case against the Trust, the operational duty under Article 2 did not arise because the Trust did not know, nor ought it to have known, of any real or immediate risk to Ms Griffiths’ life. The same applied to any risk that Ms Griffiths’ Article 3 rights would be breached.

There was, further, no basis for concluding that the protective component of those articles was breached, this being where the duty to the general public is engaged. On the facts, there was no basis for concluding that the mental health panel ought to have found that Mr McFarlane posed a risk to the general public due to the possibility of his committing suicide. The actual risk of suicide was low to moderate and lawful. Protective steps had been taken towards him in respect of a care plan put in place. There was no basis for requiring the police to be informed or for further steps to be taken to protect the general public. Where there was a risk to the general public, the victims would be unknowable, such that protective measures have to be directed at the threatening person rather than erected around the unknowable number of victims.

As to the police element, the case against the Suffolk police was twofold. First, they had failed to give Ms Griffiths adequate warning which, judged reasonably, might have been expected to protect her and avoid the risk to her life or her suffering inhuman and degrading treatment. Second, they had failed to take adequate steps to investigate or assess the seriousness of the 999 call.

The existence and breach of any duty to Ms Griffiths had to be measured against how the police reacted to what they knew or ought to have known in relation to that. The judge found that there was nothing in the 999 call to suggest objectively a real and immediate threat to Ms Griffiths’ life or of serious harm to her. She had agreed that the police could come the next day. There was no suggestion of her covering up fear or suffering from additional fright. There was, therefore, no basis for supposing that Ms Griffiths was in real and immediate danger, notwithstanding the risk of harassment and stalking. In those circumstances, there was no breach of either Articles 2 or 3.

Importantly, the judge did not accept that a breach of Article 8 could be raised where Articles 2 and 3 were not breached, nor that Strasbourg jurisprudence permitted a breach of Articles 2 or 3 to be based on a failure to take steps which an Article 8 duty would have required where no breach of Articles 2 or 3 was or should have been foreseen. Accordingly, an Article 8 claim could not succeed—whether as against the police or the Trust.

Conclusion

The judgment in this very sad case has reaffirmed that what must be shown in a negligence claim concerning a breach of duty to a third party is that either the relevant defendant was in a position of control over another who caused the harm where they should have foreseen the likelihood of their causing damage to someone in close proximity or that the person had assumed a positive duty to safeguard that third party.

In order to claim a breach of the operational duty under Articles 2 or 3, it must be shown that the relevant defendant knew or ought to have known of a real or immediate risk to the person’s life or of their suffering inhuman or degrading treatment. Where a protective duty arises under Articles 2 or 3, a claim in Article 8 will not succeed where Articles 2 or 3 are not breached or where no breach could be foreseen.

Separate procedural issues

Separately to the above, the judgment contains a number of criticisms of the pleadings, which demonstrated real judicial irritation. The judge referred to the Particulars of Claim referring to documents which were inadmissible as evidence, that the particulars underwent continued amendment, including after the close of the hearing, that the particularised failings made several similar allegations in different places, that there was imprecision, that a number of claims were not pursued and that the final submissions did not follow the structure of the pleaded case. It would be surprising if these did not, in some way, impact upon the judge’s view of the case.

The judge also criticised the instruction and reports of the instructed medical experts. The report of the claimants’ expert did not directly address the Particulars of Claim. The expert for the Trust had not seen the report of the claimants’ expert before preparing his report. The judge also commented that neither had examined Mr McFarlane or had any first-hand knowledge of his symptoms and that this was a significant drawback to the making of justified criticisms of the mental health assessment.

The judge did not lay down statements of principle in relation to pleadings or experts—but his apparent unhappiness is illustrative of recent comments other judges have made in respect of it being unhelpful for particulars not to be concise and the limited benefit of experts who either fail to address the pleaded issues in the case or have insufficient knowledge of the matters as they were understood at the time. 

Angus Moon QC and Jamie Mathieson acted for Suffolk NHS Foundation Trust.

This article was written by Elliot Gold and is reproduced with the kind permission of LexisNexis. You can get more articles like this from Lexis at this web address www.lexisnexis.com/uk/lexispsl.