S.117 MHA 1983 re-visited: the liability of the State and the existence of a duty of care

Abstract

This article seeks to summarise the movement towards an increased likelihood of branches of the state (in this case, either social services or health trusts) being found to owe a duty of care to specific categories of people. The issue was phrased thus in 2005 by Lord Bingham of Cornhill: ‘The question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and. in human terms, very important problems to be swept up by the Convention. I prefer evolution’. In adopting that Darwinian approach to the development of the law, it is necessary to look at the recent history of duties of care that may be owed by the State. The starting point is X v Bedfordshire County Council (1995); the end point (so far) is AK v Central and North West London Mental Health NHS Trust and Royal Borough of Kensington and Chelsea4 (2008).