Bolam V Friern Hospital Management Committee - Misfeasance

Misfeasance

Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.

• Palmer v Tees Health Authority All ER 180; (1999) Lloyd’s Medical Reports 151 (CA) A psychiatric out-patient, who was known to be dangerous, murdered a four year old child. The claim was that the defendant had failed to diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences. But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.

• Akenzua v Secretary of State for the Home Department EWCA Civ 1470, (2003) 1 WLR 741 where a dangerous criminal due to be deported, was released by the police/immigration services to act as an informant and killed a member of the public. The Lords held that if a public officer knows that his or her acts and omissions will probably injure a person or class of persons, the public body (or the state) will be liable for the consequences. In this case, it was arguable that there had been an illegal use of the power to permit the deportee to remain at liberty and that the officials exercising that power must have known that it was illegal. Given the criminal's record, the officials must at least have been reckless as to the consequences. For these purposes, it was not necessary to prove foresight that a particular individual might be at risk: it was enough that it was foreseeable that the criminal would harm somebody. Palmer was distinguishable because the relevant officials had the power to detain and deport the dangerous person.