Abdulrazak Ali v Heart of England NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] EWHC 591 (Ch) |
| Docket Number | Case No: BM70097A |
| Court | Chancery Division |
| Date | 21 March 2018 |
[2018] EWHC 591 (Ch)
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY and APPEAL CENTRE
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
ORDER OF UPPER TRIBUNAL JUDGE ALLEN 10 MAY 2017
CLAIM NO. B10YJ213
Birmingham Civil Justice Centre
The Priory Courts
33 Bull Street, Birmingham
THE HON. Mr Justice Birss
Case No: BM70097A
Mr Ramby De Mello (instructed by Murria Solicitors) for the Appellant
Mr Gurion Taussig (instructed by G4S Legal Dept) for the Respondent
Hearing dates: 14th March 2018
Judgment Approved
This is an appeal from the judgment of Upper Tribunal Judge Allen sitting in the county court sitting in Birmingham. The claimant/appellant Mr Ali claimed damages for negligence against both defendants and claimed damages for false imprisonment against the second defendant (G4S). After a three day trial from 28 th February to 2 nd March 2017, the judge gave judgment on 27 th April 2017, dismissing both claims. The appellant only sought to appeal the dismissal of the false imprisonment claim against the second defendant G4S. Permission to appeal was granted by Morris J on 7 th July 2017.
The circumstances are as follows. Mr Ali has a daughter A. At the relevant time A was three years old. On 23 rd April 2012 her parents were concerned about A's health and took her to the GP, who advised that she should be taken to hospital straight away with suspected pneumonia. Mr Ali and his wife took A to hospital, arriving at 12:30pm. Mr Ali had to leave the hospital for a period of time. When he returned later in the afternoon, A had been at the hospital for some hours. It seemed to Mr and Mrs Ali that the medical staff were not monitoring or treating their daughter. Mr Ali wished to remove his daughter from the hospital. The nurse Mr McClelland advised him not to because A needed to remain in hospital to be monitored and treated if necessary. Mr Ali persisted. In accordance with the hospital's procedures in place Mr McClelland called the hospital security staff, employed by G4S, and explained what was happening. The security staff tried to persuade Mr Ali to allow A to remain in hospital but to no avail. Mr and Mrs Ali started leaving the hospital car park with A in their car. A member of the hospital security staff, Mr Akram, telephoned the police. One of the things Mr Akram told the police was that he had been told by a warder that there was a “child protection order on” the daughter. That was wrong. However the phrase “child protection order” could be interpreted, there was no such thing in place regarding A. The police arrived and stopped Mr Ali's car. They arrested Mr Ali on suspicion of kidnapping and detained him. They also arrested Mrs Ali but she was released. The child A was returned to hospital. The police discovered that there was no “child protection order” relating to A in place. They de-arrested Mr Ali for kidnap and re-arrested him for neglect instead. Mr Ali was detained for about 20 hours. He was then released without charge. Mr Ali brought this action against the NHS trust and G4S.
The judge heard evidence from Mr Ali, Mr McClelland, Mr Akram, another G4S security office Mr Wall and from Ms Kilcoyne the head of safeguarding at the hospital. Also in evidence were the police custody record and incident log and a witness statement from the relevant police officer, PC Weller. PC Weller was not cross-examined. The judge fully considered that evidence in paragraphs 4 to 57 of his judgment.
The hospital review documents for A recorded that there was “breathing fast, cough, vomiting”, a differential diagnosis recorded “viral induced wheeze” and oxygen levels were noted as low. The judge found (at paragraph 85) that the medical staff were fully justified in having concerns about Mr Ali's daughter's health and that the relevant policies were applied: in Mr McClelland speaking to Mr and Mrs Ali and trying to dissuade them from removing the child and in Mr McClelland contacting security so that the problem might be averted and the need to contact the police and social services avoided.
The judge held (paragraph 80) that it was essentially Mr Ali's decision to take his daughter back to the surgery and that he was aggressive when speaking to Mr McClelland. The judge also held that it was not right that his daughter had not been monitored in Mr Ali's absence. At least some of the monitoring which did take place might not have been observable by Mrs Ali. The judge found that Mr Ali took his daughter away from hospital against medical advice and due to stress and tiredness. He found that Mr Ali made a significant misjudgement to take his daughter away; it put her at unnecessary risk. The judge found that Mr Ali was essentially an honest man who made a mistake in judgment which was the trigger of subsequent events.
A difficult question of fact which the judge had to decide was who was the origin of the entirely wrong statement that there was a “child protection order” in existence concerning A. It had either come from Mr McClelland or from Mr Akram. The judge decided (at paragraphs 81–84) that it had not come from Mr McClelland but was a mistake by Mr Akram. He noted that it was common ground that there was no question of bad faith in this case.
The transcript of the 999 call by Mr Akram was available and the judge set it out in paragraph 53 of the judgment. Given its significance to this appeal, I will set it out too. It is:
“Yes this is security at Heartlands Hospital, one of our warders reported a parent taking a child off the ward that's got a child protection order on it.
Operator: Right okay and the mother?
Caller: And the mother yeah the mother and the father taken the child off the site.
Operator: They've tried to take the child do you know how old the child is
Caller: 3 years old.
Operator: Is it a male or female child do you know.
Caller: Female
Operator: 3 year old female
Caller: Yes
Operator: Okay which ward are they on
Caller: They're in our visitors' car park at the moment trying to leave the hospital premises.
Operator: Right so they're now on the visitors' car park
Caller: They're in a motor vehicle
Operator: Can you see the reg
Caller: Yes, it's VU11 Lima Oscar Juliet
Operator: What sort of car
Caller: It's a white Toyota
Operator And it's the Heartlands
Caller: Yes as you drive in it's the first car park on the right-hand side
Operator: Ok and what is your name Sir
Caller: Akram AKRAM
Operator: And you're on 0121 424 2001
Caller: That's right yeah
Operator: Okay we'll get someone on there all right bye.”
The agreed chronology puts the phone call at 17:12 and the arrest at 17:21. The content of the police custody log, incident log, and investigation log were summarised by the judge at paragraphs 50, 52 and 54 as follows:
“50. The police custody record is exhibited to Mr Ali's statement. It notes under “circumstances of arrest” that officers were called to Heartlands Hospital by staff members' stating that Mr Ali and his wife had kidnapped a 3 year old female. Staff stated they were the parents of the child and there was a child protection order in place whereby they cannot contact the child.
…
52. The police incident log notes among other things police being informed at 1800 hours that there was no protection order. This was confirmed and clarified at 18:29 but the medical staff said that the child required oxygen overnight and against medical advice the parents had removed the child and if she did not receive oxygen there was a serious risk to her health. The officer advised that the child should be placed on the PPO and the parents arrested for neglect.
…
54 In the police investigation log it is noted that it appears the whole incident may have been misconstrued by staff members in the hospital call centre (operator). It is said that it appears from comments made by the father that the parents had been waiting for approximately six hours in the hospital. They became impatient with the delay and stated they were going to see their GP in the morning. The staff somehow have thought the child is subject of a protection order and have called the incident and accordingly it now appears that the child may not be subject to a protection order but this will need confirming by PPU.”
PC Weller's witness statement was summarised by the judge at paragraph 56:
“56 PC Weller in his witness statement recorded what was said in the emergency call and set out above. He identified the car and blocked it. He shouted for the driver to open the door and he looked at him and the vehicle lunged forward. This concerned PC Weller, who therefore drew his baton and held it at the high carry position with the intention of smashing the driver's window if he continued to ignore his instructions. He continued to shout to the driver to open the door and he eventually complied with these instructions. Her told the driver to get on the floor but he continued to ignore him and remained in his seat and he could see there was still a potential threat of the driver driving off or PC Weller being assaulted so he pulled him out of the car and put him on the ground and he was detained and consequently arrested.”
Even though the judge's finding about the origin of the reference to a “child protection order” meant that the first defendant could not be liable on any view, the judge considered whether a relevant duty of care should be imposed on the first defendant, the NHS Trust, and held that it should not be (paragraph 88–92). The judge then addressed the question of a duty of care owed by the second defendant G4S and held that no duty should be imposed on them either (at paragraphs 93–95). Therefore the negligence claim failed. It has not been...
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