Traylor v KMPT  EWHC 260 (QB)
Child protection takes many forms. Agencies may be called to protect children at risk of physical abuse from their parents who are suffering from a serious psychiatric illness or disorder. We report on an interesting decision about the liability of an NHS trust towards a patient treated under the Mental Health Act 1983, and allegations it breached the human rights of the patient’s daughter. See judgment here.
In February 2015 Marc Traylor (the father) suffered a severe psychotic episode, during which he kidnapped and stabbed his daughter Kitanna. He had had a long history of violence and morbid jealousy. He was diagnosed with paranoid schizophrenia and detained under the Mental Health Act in late 2012. He was discharged under a Community Treatment Order (CTO) in June 2013 and received regular injections of anti-psychotic medication. A year later he asked to switch to oral medication and the CTO was discharged. He later stopped taking his medication (against the advice of his psychiatrist). Almost eight months later he had a violent psychotic episode and kidnapped his daughter. The police were called and shot him, but not before he had time to stab his daughter. The father suffered a cardiac arrest and brain injury. He is now in a wheelchair and needs 24-hour nursing care. He was tried and found not guilty by reason of insanity. The daughter sustained significant physical and psychiatric injuries.
Both father and daughter sued the trust. There is an interesting analysis of the duty owed to the father, the standard of care, causation and the defence of illegality. But we focus on the daughter’s claim for breach of her rights under Article 2 (right to life) and Article 3 (prohibition of inhuman and degrading treatment) of the ECHR and the findings by Mr Justice Johnson.
The judge found that Articles 2 and 3 were engaged. There is a positive obligation on the state (and its emanations such as the trust) to protect life (often described as a ‘systemic duty’ in clinical negligence cases). There is also an obligation to provide protection against a known risk to life, such as the risk of suicide (Rabone) but also the risk of criminal acts by a third party (Osman). The judge found that this duty also applied to the risk of violence by a third party, and that it could coexist with the systemic duty found in clinical negligence. The Osman duty requires 3 elements:
- a real and immediate risk to the life of an identified individual from the criminal acts of a third party
- knowledge (actual or implied) by the authorities of this real and immediate risk
- failure “to take measure within the scope of their powers which, judged reasonably, might have been expected to avoid [the] risk”
The judge looked in detail at the decision made by the psychiatrist in June 2014 to discharge the CTO and allow the father to take oral medication. He found that the father had capacity at the time when these options were discussed. The psychiatrist could not override the father’s views or force him to accept injections. The judge refused to criticise the psychiatrist for accepting the father’s protestations that he would continue to take his oral medication. The judge also found that the trust had taken appropriate steps to avert the risk of harm: there was a relapse plan and regular monitoring in place. The Osman duty was not breached.
Two further points should be noted:
- The judge accepted that the decision to switch to oral medication in June 2014 created ‘a real and immediate risk to [the daughter’s] life’, even if that risk only materialised eight months later.
- The judge would have expected the daughter to prove causation between any breach and her physical and psychiatric injuries. But there would have been no need to prove causation when looking at the psychological damage occasioned by the breach of her rights.
Geneviève Rich, Associate, BLM