K v Central and North West London Mental Health NHS Trust (1) and The Royal Borough of Kensington and Chelsea (2)

Mr K tried to commit suicide by jumping out of a window while living in bed and breakfast accommodation.

He brought a claim in negligence and alleged breach of the duties he was owed under section 117 of the Mental Health Act. He alleged that there was a failure to appoint a competent social worker/care co-ordinator and that he should have been placed in high to medium supported accommodation.

Initially, the defendant trust and local Authority got his claim struck out on the basis of the decision in Clunis, which stated that there was only a statutory duty (under section 117) to provide services and there was no common law duty (in negligence) running in parallel.

On appeal, the claim was reinstated. Part of the reason for this was that the judge was not sure that it could still be asserted there was no common law right to claim in negligence arising out of the statutory duties of section 117 of the Mental Health Act.

The judge was of the view that the decision in Clunis had related more to administrative duties specific to the facts of that case rather than a treatment duty and specific relationship.

Recent developments in case law relating to children and the police suggested that there could be a developing area of law in the mental health arena and that it was possible that prolonged involvement and provision of aftercare services under section 117 could potentially lead to the creation of a common law duty of care.

The judge noted that the decision in Clunis predated the Human Rights Act and that it was possible that, where the claimant was suffering from mental anguish, that could reach the threshold to support a claim under Article 3 of the Human Rights Act (inhuman and degrading treatment) if he could establish the defendants were aware of that anguish but took no steps to deal with it.

His claim for damages is ongoing.