Griffiths v Chief Constable of Suffolk
Summary
Ouseley J has examined whether a claim in negligence following a murder committed by an individual whom a mental health trust failed to detain under the MHA could succeed. He concluded ultimately that it could not on the basis that the relevant NHS Trust had not acted negligently in performing its s.2 assessment and that it had had no duty to warn the relevant victim or the police.
The case concerned a claim for damages brought by the three children of Mary Griffiths. Ms Griffiths was murdered by a man John McFarlane after she had made clear to him that she did not wish to have a romantic relationship with him. In the days prior to the murder, Mr McFarlane had attempted suicide. Having been saved by the intervention of friends, he was taken to North Suffolk NHS Foundation Trust where a panel was convened to determine whether he was eligible for admission pursuant to s.2 Mental Health Act 1983. It concluded that he did not meet the criteria for admission on the basis that he was not suffering from mental disorder of a nature or degree which warranted detention and released him. Two days later, Ms Griffiths called Suffolk police complaining that Mr McFarlane was harassing her and she was frightened. The Police offered to send someone round the next morning. A few hours later at 2.40am, Mr McFarlane broke into Ms Griffiths house and murdered her in the street in front of her children.
Ms Griffiths' young daughters pursued a claim under the Fatal Accidents Act 1976 on the basis that her death was caused by the wrongful act, neglect or default of either Suffolk Police or the North Suffolk NHS trust. The daughters also claimed damages under s.8 of the Human Rights Act 1998 alleging breaches of Articles 2,3 and 8 ECHR.
The claim was argued on the basis that the NHS Trust ought to have admitted Mr McFarlance under section and/or to have warned Ms Griffiths and/or Suffolk police that he posed a danger to her; further that having received a worried call from Ms Griffiths, the police should have graded the risk to her as more severe and taken swifter action.
Ouseley J noted that counsel for the claimants "denied that the allegation was that detention ought to have taken place unlawfully; yet his questions at times came perilously close to such a suggestion, and at least suggested that the issues which the criteria require to be resolved could and should be fudged, where other difficulties were present, such as accommodation or risk." (paragraph 265)
Having concluded that the s.2 MHA assessment was properly carried out, Ouseley J concluded that there was no expert support for the claim that the NHS Trust breached its duty of care towards Mr McFarlane.
With regard to the duty of the various statutory bodies towards Ms Griffiths, Ouseley J engaged in an analysis of the notoriously difficult area of proximity in tort law – though interestingly it appears that this case was not pleaded and therefore did not address the possibility of Ms Griffiths children as being secondary victims to her murder (ie as suffering from what was formerly referred to as "nervous shock").
Ouseley J identified the key issues as control over the malefactor with proximity to the victim, and the existence of a positive duty to safeguard someone and noted at paragraph 446 that "a duty to warn does not exist without some relationship between both the person being warned, and the person about whom the warning is given. The special relationship between defendant and wrongdoer [is] not the only relationship which mattered because there also had to [be] a relationship of proximity between the defendant and the person injured."
On whether there was sufficient proximity between Ms Griffiths and the NHS Trust for a duty of care to arise, Ouseley J held that there was not. He noted that once Mr McFarlane was discharged from hospital, having been deemed not to meet the statutory criteria for admission – an assessment which Ouseley J had already concluded was not negligent – the issue of whether or not Mr McFarlane was in the "control" of the NHS Trust became more complicated.
Ouseley J held that:
if the panel foresaw or should reasonably have foreseen the risk of Mr McFarlane murdering her or assaulting her in a way which breached Article 3, serious physical assault, the law would in my judgment impose an obligation to safeguard her by taking steps such as warning her or alerting the police. I consider that that duty would have arisen whether or not he had been sectioned or admitted voluntarily. The gravity of the risk would be sufficient to impose such a duty; a good measure of that point is that it would be at the point at which the duty of confidentiality to the patient was overridden by the public interest in the avoidance of risk to others (para 459)
However, Ouseley J concluded on the facts of the case that there was no basis upon which the panel could have foreseen that Mr McFarlane might murder Ms Griffiths, holding at paragraph 462 that:
The facts are not such as to impose responsibility for protecting Ms Griffiths on the NHS Trust. When it comes to the legal imposition of responsibility, the fact that the potential victim is aware of all the relevant behaviour tells against it with some force, especially, as here, if the NHS Trust has nothing of significance to add to what she knows. Nor did Ms Griffiths, in my judgment, come into the category of a victim vulnerable through disability or mental capacity or state, in respect of whom a warning should be given to the police, rather than to the potential victim."
With regard to the Human Rights Act claims Ouseley J noted (at 472) the Osman v UK (1998) 29 EHRR 245 basis for the state's protective duty towards a potential victim and its conclusion that "the positive obligation [arising under Article 2 ECHR] should not be applied in such a way as to impose impossible or disproportionate burdens on the authorities. Not every claimed risk to life could entail an obligation to take operational measures to prevent it. To prove a violation of that positive obligation to prevent and suppress offences against the person, in the context of Article 2, [116] : "… it must be established…that the authorities knew or ought to have known at the time of the existence of a real and immediate threat to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk...."
Ouseley J at paragraph 504 further concluded that no Article 8 claim could arise given the failure of any claim pursuant to Articles 2 and 3.
even if the operational duty in these circumstances could impose an obligation to take reasonable steps to protect Ms Griffiths against stalking, harassment or sexual assault, and could lead to a breach of the duties under Articles 2 and 3, because such steps might have in fact prevented the murder, albeit unintentionally and unforeseeably, there was no breach. That risk was not foreseen nor ought it to have been. There were no steps which the assessors ought to have taken which they failed to take. It is at the very least debatable what nature and degree of the risk would permit patient confidentiality to be breached, and how the knowledge of the potential victim of the relevant facts would affect that duty. In my judgment, nothing short of knowledge of the position as at the time the police were phoned on 5 May, and of how Ms Griffiths then saw matters, could have produced any obligation, and the likeliest would have been to alert the police. But that situation did not arise.
Ouseley J noted the severity of the level of failure in operation or in a system necessary to constitute a breach of the protective duties in either Articles 2 or 3 (paragraph 619), none of which arose in the case. Even though there was clearly a risk of harassment and stalking to Ms Griffiths of which Suffolk Police were aware,
there was nothing to suggest that it was an imminent risk, against which measures were required that night. So if there were a protective duty in relation to such a risk, which could arise under Article 8, the Suffolk Police did not breach it in their response, by grading the call as 3, and ringing back at 21.43 and acting in reliance upon what Ms Griffiths said. I do not accept that a breach of Article 8 can be raised where Articles 2 and 3 were not breached, nor that Strasbourg jurisprudence permits 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 (parah 620).
Comment
This is a tragic case and it is in the context of its extreme facts that Ouseley J dedicates over 600 paragraphs to analysis of the rights and duties at play. Given the conclusions as to the appropriateness of the s.2 Mental Health Act assessment however, the ultimate conclusion that there was no breach of duty is, in the context of existing tort law and Strasbourg jurisprudence, unsurprising. It is an important case, however, in terms of confirming that it is always necessary to consider what the relevant individuals knew or ought to have known at the time, and not to superimpose hindsight through the operation of the 'retrospectoscope' that can all too often be deployed.
