King's / Queen's Bench Division of the High Court

QB-2022-002447 - [2025] EWHC 2803 (KB)

Fecha: 29-Oct-2025

Duty of Care Discussion

Duty of Care Discussion

107.

D1’s case is that the Claimants are wrong to allege that D1 owed each of them a duty at common law. A common law duty would be inconsistent with the statutory scheme of the Mental Health Act 1983. Alternatively there is no analysis of the relationship between these parties in this case that would give rise to a duty. There is no decided case in which such a duty has been found, D1 points out. Further as a matter of analysis, on the basis of recent case law Mr Weston submits no duty should be found.

108.

The arguments were in large part based upon a series of recent cases of the highest authority concerning the liability of a public authority, with duties under statute, for liability in negligence to individuals. There was little disagreement as to the effect of these authorities but Mr Bowen submitted for the Claimants that they were not of assistance in the present circumstances.

109.

Mr Weston made the following propositions in his written argument:

the liability of public authorities for negligence is governed by the same principles that apply to private individuals see Poole at para [65] and Tindall and another v Chief Constable of Thames Valley Police [2024] UK 33 (“Tindall”). The mere existence of statutory powers does not give rise to a common law duty of care even in circumstances where, by exercising those statutory functions and, having a duty to protect, they could prevent suffering (Poole).

A duty of care inconsistent with the statutory framework under which the public body operates will not be found since such would interfere with the authority’s performance of its statutory duties (Poole and HXA v Surrey County Council, YXA v Wolverhampton City Council [2023] UKSC 52 (“HXA”)

A duty of care is commonplace where a defendant causes the harm in question or makes matters worse. This is fundamentally different from a failure to confer a benefit, which includes failing to protect someone from harm. In such circumstances no duty of care is generally owed (Tindall para [44]; Poole para [28] HXA para [48];

where a defendant assumes responsibility to protect a person from harm or has control of the third party that caused harm to a person there may be a duty of care to protect someone from harm see HXA para [87] and [88], Tindall at para [44], GN at para [76]. See also Dorset Yacht Co .

a duty of care must be capable of being inferred from the Particulars of Claim and provide a basis for leading evidence at trial Poole para [82], para [83] and Tindall para [70].

This applies to a duty owed whether by a public body or by its employees HXA para [4,] Poole para [8 ]to [87].

110.

Both D1 and the Claimants recognise that the liability of public authorities in negligence has been the subject of recent high level consideration and in addition to those mentioned above the cases of Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] AC 1732, and Robinson v Chief Constable of West Yorkshire [2018] UKSC [2018] 4; [2018] AC 736 are of relevance to the scope of duty.

111.

Mr Weston submitted in essence as his preliminary point that the obligations under the 1983 Act upon an AMHP to consider whether to make an application for admission, namely whether a person ought to be detained in the interests of his own health or safety or for the protection of others, would conflict with a further superimposed common law duty to the assessed person or to others such as family and would restrict and inhibit the performance of the statutory duty.

112.

Mr Weston pointed to the case of E v East Berkshire County Council [2005] 2AC 373. In that case it was postulated that healthcare and childcare professionals owed duties to the parents of children who were treated in a child protection scheme. The parents had been suspected of child abuse and they brought actions for negligence against a local authority, and others, for damages for the harm caused by unfounded allegations made by the professionals. There the House of Lords held that the professionals ought not to be subject to conflicting duties owed both to the children and to the parents. Mr Weston drew attention to the speech of Lord Nicholls who expressed it at para 71 that whilst ordinarily the interests of parent and child were congruent, here their interests were in conflict. Accepting a duty of care upon the professionals to the parents would cloud the duty owed to the child (para [86]).

113.

Here the conflict was between a duty to carry out the AMHP’s tasks under the Act, which was carried out in the public interest, and a duty to the potential patient and a duty to his relatives/others who came in contact with him. A similar example was the court declining to hold a duty of care upon the Commissioner of Police to her employees to protect their reputational issues in misconduct proceedings. In an action against individual police officers by an aggrieved person arrested as a terrorist, the Commissioner settled his claim admitting liability and apologising on behalf of the officers – who had been exonerated by their disciplinary tribunal. The court held that the Commissioner’s public duty was inconsistent with the imposition of the further obligation to the officers in this manner, the Commissioner was required to be free to act appropriately as she considered in the public interest (James-Bowen v Commissioner of Police of the Metropolis [2018] 1 WLR especially para [33] citing SXH v Crown Prosecution Service [2017] 1 WLR 1401 where a duty of care to victims or suspects was not placed upon the CPS.

114.

In each case, says D1, where public duties are owed such as by the police or the CPS to the wider public, a comparison is to be drawn with the AMHP and their duties which would conflict with individual duties to prospective patients and their families.