The Supreme Court hands down judgment in Ecila Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43

The Supreme Court has today handed down a unanimous judgment in Ecila Henderson v Dorset Healthcare University NHS Foundation Trust. The appeal concerned the defence of illegality.

Ms Henderson was convicted of the manslaughter of her mother by reason of diminished responsibility, she had stabbed her mother to death and was sentenced to a Hospital Order under section 37 / 41 Mental Health Act 1983.  She had been in and out of hospital for many years but at the time of the killing was living in the community under a s17 Community Treatment Order under the MHA. The NHS admitted negligence, that she should have been recalled to hospital and were heavily criticised in the subsequent independent report into the competence of her treatment.  The sentencing judge felt she had no significant personal responsibility for the crime as she was in the midst of a psychotic attack. 

Ms Henderson then brought a negligence claim against Dorset Healthcare, claiming damages caused by her killing of her mother under six heads: (i) damages for the depressive disorder and post-traumatic stress disorder; (ii) damages for loss of liberty; (iii) loss of amenity; (iv) £61,944 being the share in her mother’s estate which she did not inherit due to operation of the Forfeiture Act 1982; (v) cost of psychotherapy; (vi) cost of a care manager/support worker. Her claim was dismissed by the High Court, and the appellant’s appeal to the Court of Appeal was also dismissed.

The argument turned not on the existence or breach of a duty of care but whether or not the heads of loss were stopped by the illegality defence and the ratio of Clunis v Camden HA and Gray v Thames Trains.  She took her appeal to the Supreme Court arguing that Clunis should be declared bad law and Gray departed from as incompatible with Patel.

In a conservative judgment, which will come as disappointment to many who work in the mental health field, the court unanimously dismissed her appeal, holding that her claim against Dorset Healthcare is barred by the illegality defence.  The judgment is likely to provoke extensive professional and academic comment by tort lawyers and mental health campaigners alike.

The Appellant was represented by Nicholas Bowen QC, Katharine Scott and Duncan Fairgrieve.

You can read the full judgment here or watch here.