Care of psychiatric patients who are a danger to others

The Government is considering a draft mental health bill which, among many other elements, will give psychiatric services the right to treat some patients with mental health problems compulsorily. The existing mental health laws are over 20 years old and were drawn up when most patients received their treatment as in-patients in hospital, rather than in the community, as they do now.

The bill will allow compulsory treatment of patients in the community and will focus on those patients who yo-yo between relapse and readmission because they fail to take their medication. These extended powers will be limited so that only patients assessed in hospital can be forcibly treated in the community.

The bill means that patients with dangerous and severe personality disorders will also be able to be treated and patients who are at risk of harming themselves or others will be able to be treated compulsorily.

Patients will also be better protected by a new independent mental health tribunal and by being able to choose their own representative or advocate.

The draft bill has proved incredibly controversial and has united organisations dealing with mental health who were hoping for increased rights for patients rather than more compulsion. They also fear that the legislation will increase the public’s fear of those with mental health problems.

Michael Howlett, Director of The Zito Trust commented: ‘'The Government has made it clear that mental health legislation has nothing to do with the provision of services.  The purpose of legislation is to describe and define when and how people may be given treatment against their will, and then to build in safeguards such as the new tribunal system and statutory advocacy.

“For years people with severe and enduring personality disorders have been denied treatment from the NHS and this Bill will radically alter their experience.  Much of the criticism of the Bill has been based on a misunderstanding of what the legislation is for.  We expect a new Mental Health Act to respond to the complex demands of a completely different approach to the treatment of mentally illness and disorder in a range of settings, principally the community.”

Marjorie Wallace, Chief Executive of the mental health charity SANE said:  “SANE believes that many of the 40 homicides a year committed by people in contact with mental health services, if not predictable, could have been prevented had the patients been properly treated and cared for and not allowed to discharge themselves, abscond or simply leave psychiatric wards, with little effort being made to follow them up or give adequate information to families, police or those entrusted with their care.

“There seems to be a worrying increase in the numbers of patients who are allowed to disappear in the community while they are extremely disturbed, who then commit suicide and occasionally attack others. These cases further shatter the public’s confidence in the care in the community policy and increase the stigma for the majority of people with mental illness who are never violent.”

Leigh Day has been involved with a number of cases where psychiatric patients have received inadequate treatment and have then harmed or killed someone else and/or themselves.

Christopher Clunis

In 1992, Christopher Clunis, a known paranoid schizophrenic, stabbed Jonathan Zito, a complete stranger, in the eye, killing him. Jonathan, who had just arrived in the UK from Italy and was recently married, was waiting for a tube with his brother at the time.

Christopher Clunis stabbed Jonathan Zito, a complete stranger, at a tube station.

Christopher Clunis was 23 when he was diagnosed with paranoid schizophrenia in 1986 in Jamaica, where his parents came from. He returned to London and was in and out of various psychiatric hospitals over the following years. In 1992 his condition worsened and he was detained under the Mental Health Act. He was discharged less than a month later to accommodation in Haringey.

Eight days before Jonathan Zito's death, Christopher Clunis punched a stranger in the face and then attempted to stab two schoolboys with a screwdriver. No action was taken.

A few days later he stabbed Jonathan Zito in an unprovoked attack at Finsbury Park station. He pleaded guilty to manslaughter and was sent to psychiatric hospital.

The day of the attack, a social worker had called at his house leaving a note asking him to call her.

The subsequent report into the attack revealed a catalogue of errors and missed opportunities in Christopher’s care, stretching back over many years. He had a long history of violence and non-compliance with treatment programmes. He had been seen by 43 different psychiatrists in the past five years and had crossed from one side of the City to the other on four occasions, passing through three out of the four former regional health authorities.

Sally Moore at Leigh Day became involved when she was asked to consider whether the Health Authority responsible for Christopher Clunis’ care might be liable for Jonathan Zito’s death. However, because Jonathan Zito was a complete stranger, the legal test of ‘proximity’ necessary to pursue such cases was not met and no claim could be brought.

In response to the appalling tragedy, Jonathan’s wife, Jayne set up the Zito Trust, which is a mental health charity that  works towards reforming mental health policy, as well as providing advice and support to the victims when community care breaks down.

Gilbert Kopernik-Steckel

On the 14th January 1996, Gilbert Kopernik-Steckel stabbed his mother to death and then killed himself. Immediately prior to the attack and his suicide, he had suffered a severe mental breakdown and was identified as a danger to himself and also, specifically, to his mother.

Gilbert had been visited at home by a GP and consultant psychiatrist in the days leading up to the killing. They had assessed his mental state and said that he was a danger to himself and to his mother, describing her as a ‘sitting duck’.

Gilbert admitted himself voluntarily to a psychiatric hospital twice in the following days, but discharged himself on both occasions. The hospital should have detained him under the Mental Health Act and the inquiry following the murder severely criticised the repeated failures of those involved.

It was after he left the hospital the second time that he went home and stabbed his mother to death and then killed himself. His sister Christina, who was then 21, witnessed her mother being killed. She suffered post traumatic stress disorder and depression.

Sally Moore, head of the personal injury department at Leigh Day, represented Christina in her legal action against the hospital.

South London and Maudsley NHS Trust, who were responsible for Gilbert’s care, admitted negligence in his care, in what was thought to be the first successful case of its type.

Christina had just finished her degree at Oxford University and was looking forward to a promising career. She suffered severely as a result of witnessing the death of her mother and all aspects of her life were affected. Most importantly in terms of compensation, she had only been able to work on a voluntary basis and was unlikely to work and earn in the way she would have anticipated before the incident.

She received record compensation for this type of injury, based on her loss of future earning capacity and any further medical care she may need.

Palmer v Tees Health Authority

The case that was used in support of Christina’s was Palmer v Tees Health Authority[2000] PIQR P1. Four year old Rosie had been abducted, sexually assaulted and killed by a man who had been diagnosed as suffering from a personality disorder or psychopathic personality.

The child’s mother, Mrs Palmer claimed that Tees Health Authority had been negligent by releasing the man in to the community. The Hospital Trust successfully had the case struck out of court by claiming that they did not have a responsibility to look after the girl because the man had not threatened her. It was not enough to show that any child was at risk from him or that she was at increased risk because she lived near to him.

The Court of Appeal confirmed that there was not a sufficient link between the girl and the Hospital for there to be a legal case.

In light of the case, negligence can be established if it was foreseeable that the person could be harmed as a result of the Hospital’s negligence and there was time and opportunity to prevent the event.

In Christina’s case both these criteria were met because her mother had been identified as a target and her brother had admitted himself to hospital before the attack.

Theophillous (Phillip) Theophilou

On the 15th April 2004, Phillip Theophilou, a dangerous psychiatric patient who was under the care of Barnet, Enfield and Haringey Mental Health NHS Trust,  stabbed his next door neighbour, Simon Breed, to death on his doorstep.

Mrs Breed helped her husband after the attack and was with him when he was rushed to hospital. Simon Breed later died of his stab wounds.

Philip Theophilou pleaded guilty to manslaughter on the grounds of diminished responsibility and is awaiting sentencing in Broadmoor.

The year before, Philip had smashed the windows of the Breed's family car and van, and all of their downstairs windows, with a meat cleaver. Mr Theophilou was arrested and then put in the care of the local mental health services. During his initial medical assessment he told an independent psychiatrist that he wanted to kill children in the street and that he would have killed the neighbours if they had been around. He was held in a secure unit.

Over time he was thought to be less of a threat and when he finally escaped from the unit, he was discharged without any formal review of his mental state or a proper plan for his follow up in the community.

A report by an independent doctor raised significant concerns about the clinical and administrative management of Theophilou's care. Despite being a high risk patient and stating his intention to kill others including specifically his neighbours, he was discharged before any effective community follow up could be devised. No contact was made with the police or his neighbours, the Breed family, despite his homicidal ideas towards them. Community follow-up in the period before the killing could probably have identified that Phillip's condition was deteriorating and could have prevented the death of Simon Breed.

The Legal Case

We are advising Mrs Breed generally in respect of the various enquiries being conducted and concerning a compensation claim for the death of her husband and for the psychological injury she suffered as a result of witnessing the immediate aftermath of her husband's murder. She has not yet returned to work as a teacher.

The claim will be against Barnet, Enfield and Haringey Mental Health NHS Trust.

The law

Previous legal cases have shown that a 'duty of care' exists between a medical practitioner and a third party to any treatment if a close relationship, legally speaking, exists between them and that it is 'reasonably foreseeable' that the third party could be harmed as a result of the medical practitioner's negligence.

Phillip Theophilou was Simon Breed's next-door neighbour. Philip had already attacked their property, and had said that he would have killed them too if they had been there.

Mrs Breed and her children are being represented by Sally Moore, head of the Personal Injury Department at Leigh Day.

For more information about these cases or if you have been affected by a similar case and need legal advice please call 020 7650 1200 or email us at postbox@leighday.co.uk.