Alex RKIn Lukes v Kent & Medway NHS & Social Care Partnership Trust & Anor [2024] EWHC 753 (KB) Julian Knowles J had to consider whether Mr Lukes had a viable claim for damages for personal injury against either the police or a mental health Trust. Mr Lukes had jumped from height in August 2020 onto railway tracks and sustained serious injuries. In the year or so before this incident, and especially in the days leading up to it, there had been concerns about his mental health, and he had been detained twice the year before under the Mental Health Act 1983. He had also been arrested by police officers for assaulting members of his family. Both the police and the Trust sought to shut the claim down at an early stage, in effect on the basis that there could be no proper basis for a claim against them. The police succeeded in essence because they persuaded the judge that there could be no argument that they had failed to fulfil their duty of care by ensuring that Mr Lukes received appropriate clinical attention (see paragraph 149).
The position of the Trust, however, was different. One striking submission made on the Trust’s behalf and recorded at paragraph 95 was that the claimant that at no point in August 2020 lacked capacity (to decide what is not set out in the judgment). The Trust also emphasised that Mr Lukes was not cooperative. Julian Knowles J addressed these submissions as follows:
179. I next turn to the complaint that Mr Parish [a community psychiatric nurse] wrongly determined that he was unable to speak with C’s mother, or write to his GP, to find out more information about his mental health because of C’s lack of consent. The note made by Mr Parish on 12 August 2020 was, ‘I am unable to speak with his mother or write to his GP without his consent, which he is clearly not going to give to me.’
180. Initially, I was sceptical about this argument, and ventured during the hearing the possible view that whilst C’s lack of consent might not have absolutely prevented Mr Parish from speaking to C’s mother or GP, the reality is that any conversation would have been a short one of little value. I noted the absence of any clear pleading about what such a conversation could have revealed which would have been of assistance.
181. Having reflected, however, I consider that there is force in Mr Woolf’s submission that if he had spoken to C’s mother or GP, Mr Parish could have asked – without breaching confidentiality – about what they had witnessed about C’s state of mind over the previous two years and whether there had been in their mind concerns about his risk of self-harm and, if so, why.
Julian Knowles J found Mr Lukes had a reasonable prospect of showing that the Trust failed properly to ascertain his mental health history and so failed to carry out a proper screening assessment (paragraph 186). The question, though, was what flowed from that arguable breach.
187. […] I acknowledge the strength of the points made by Mr Trusted that: C had capacity; he repeatedly refused to engage with Mr Parish, which he was entitled to do; and that there is little to show that he was psychotic around 12 August 2020, or during the subsequent week when he dealt with Ms Hatfull, or when was assessed in Kings College Hospital in early September 2020 following his accident, and hence there was no basis for him being detained on any view.
188. However, the conditions for compulsory detention under the MHA 1983 for either assessment or treatment are not limited to cases of psychosis. Section 2(2) (admission for assessment) provides:
“(2) An application for admission for assessment may be made in respect of a patient on the grounds that –
(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”
189. Having capacity is also not a bar to being compulsorily detained. In the notes for 8 September 2019 following C’s detention there was this from the duty psychiatrist:
“…Capacity Fully capacitous. Diagnosis Drug induced psychosis. Plan he needs antipsychotic medication. No indication for his prescribed citalopram. Not ready for section 17 leave yet prn medication.”
190. I also cannot ignore the fact that C’s detention in September 2019 took place despite C denying that he had ‘any problems and reported that he actually feels quite clear in his head’.
191. It therefore seems to me that there is a triable issue as to whether a properly conducted screening by Mr Parish would have led to a further mental health assessment – or assessments – and compulsory detention in light of C’s presentation, his extensive mental health history, and his MHA 1983 detention a year earlier. Whilst, as Mr Trusted said, it was not possible for Mr Parish himself to have conducted an assessment given C’s refusals, there were other options open to him by way of referring the case upward to others who could have assessed C.
Julian Knowles J also found that there was a triable issue as regards the conduct of a Ms Hatfull, in the single point of access team:
192. Turning to the alleged breaches by Ms Hatfull, the gist of these is that she failed to gather a proper history and failed to carry out a proper screening, despite apparent evidence of psychosis being relayed to her colleague Ms Pinduke, and wrongly discharged C. This is evidenced by her erroneous completion of the screening form.
193. I also consider that there is a triable issue that there were also breaches of duty by Ms Hatfull. As pleaded in [16] of the PoC, she was arguably wrong to state on the form she completed on 15 August 2020 that C was not known to local mental health services or other agencies; that there was no history of mental illness in the family; and that C had never attempted suicide. As to the last, whether what happened in January 2019 was properly an ‘attempt’ seems less important than the history of suicide threats by C which I outlined earlier. As to this, the box ‘Client Risks (protective factors, self-harm, risk to others, risk from others, etc)’ was left blank and no reference made to these earlier suicide concerns. Also, given that C had been arrested in the days before for assaulting his father and sister (and was then on bail), and had assaulted his grandfather the previous year, the fact no reference was made to this (as ‘risk to others’) is surprising. Whilst not said to be a breach of duty, this omission is perhaps indicative of the incomplete way in which Ms Hatfull conducted her assessment of C.
193. Again, I understand D1’s case that circumstances were difficult in August 2020 because of COVID; that days earlier he had been fit for a PACE interview; and that he had capacity on 15 August 2020; that there is no evidence around that date he was at imminent risk of self-harm, or suffering from a mental illness, such that an urgent MHA 1983 assessment was then required.
194. However, all these matters seem to me to relate to triable issues. As I have already said, lack of capacity is not of itself a bar to compulsory detention. The risk of suicide was arguably not properly assessed by Ms Hatfull. And whether C was suffering from a mental illness requiring an urgent MHA 1983 assessment on 15 August 2020 is a matter of expert evidence. It is relevant that just four days later on 19 August 2020 he was found to require just such an urgent assessment and was said to be possibly psychotic.
It is very important to emphasise that the judge did not find that the Trust did breach its duty of care towards Mr Lukes – all he said was that Mr Lukes must have the chance to seek to establish his case at trial. However, his clear rejection of the assertion that ‘having capacity’ is sufficient to alleviate the need to consider detention under the MHA 1983 is very helpful. For those who want to think more about this issue, I recommend this video discussion with Dr Chloe Beale, a champion of critical thinking in this area.
