— The patient blinded his mother and injured his sister, and all three sued in negligence and under the Human Rights Act 1998 for the earlier decision not to section him. The local authority sought strike out or summary judgment on some aspects of the claim. (1) The claimants argued that s139 leave was not required as the claim concerned an omission rather than an act, that s139 did not apply when the assessed person was not detained, and that s139 should be "read down" under the HRA to accommodate this claim. Those arguments were rejected so, in the absence of permission, the proceedings were a nullity. (2) In any event, the common law case on duty would have been struck out, for reasons including that the imposition of a common law duty would be inconsistent with the proper functioning of the AMHP's statutory role, and that the AMHP had not assumed responsibility or control. (3) Similarly, the HRA claims, whether phrased in terms of Article 2, 3 or 8, would not have got off the ground because the required obligation on the state was not present (in particular, the local authority did not even know about the sister, and it could not be shown that the local authority knew or ought to have known that the patient presented a real and immediate risk of acting as he did), and the indirect victim claims would have failed as it was undesirable for close family members to claim for the same breach unless the direct victim had died or gone missing.
Full details available at: https://www.mentalhealthlaw.co.uk/Khamba_v_Harrow_London_Borough_Council_(2025)_EWHC_2803_(KB)?id=220426-0954
1 Like