Dolly Daniel and Another v St George's Healthcare NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 19 January 2016 |
| Neutral Citation | [2016] EWHC 23 (QB) |
| Docket Number | HQ12X03641,Case No: HQ12X03641 |
| Court | Queen's Bench Division |
| Date | 19 January 2016 |
[2016] EWHC 23 (QB)
Mrs Justice Lang DBE
Case No: HQ12X03641
TLQ/15/0259
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Kirsten Sjøvoll (instructed by Irwin Mitchell) for the Claimants
Mr Edward Bishop QC (instructed by Bevan Brittan LLP) for the Defendants
Hearing dates: 30 November, 1, 2, 3, 4 & 7 December 2015
Introduction
James Best ("JB") was a prisoner on remand at Her Majesty's Prison (HMP) Wandsworth when he died from natural causes on 8 September 201He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym.
The First Defendant ("St George's") is a National Health Service ("NHS") Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB's life on the day of his death.
The Second Defendant ("the LAS") is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived.
The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant's biological son, and described JB as his foster brother.
The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (" HRA 1998"), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights ("ECHR").
Issues
The Claimants allege that the servants and agents of St George's acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that Sister Gbolie failed to request an ambulance sufficiently promptly, either on arrival at JB's cell or within 1 to 2 minutes of her arrival.
The Claimants allege that the servants and agents of the LAS acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that there was unnecessary or unreasonable delay in the dispatch of an ambulance.
The issues in dispute are:
i) Is the operational duty under Article 2 engaged as a matter of principle?
ii) What is the relevant causation test to be applied?
iii) If the operational duty under Article 2 was engaged, was there a violation of that duty on the facts?
iv) Did the Defendants' acts or omissions cross the threshold of inhuman and degrading treatment within the meaning of Article 3?
v) Are the Claimants "victims" within the meaning of section 7 of the HRA 1998?
Law
Article 2
In LCB v UK 27 EHRR 212, at [36], the ECtHR held that this establishes a positive obligation upon member states to take "appropriate steps to safeguard the lives of those within their jurisdiction".
The positive obligation requires member states to put in place a legal and administrative framework to deter the commission of criminal offences against the person, backed up by law enforcement machinery, for the prevention and suppression and punishment of offences: Makaratzis v Greece 41 EHRR 1092, at 57.
In the context of medical care, Article 2 requires member states to put in place provision to ensure that health authorities adopt appropriate measures to protect patients' lives. Member states are also required to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable. See Vo v France (2005) 40 EHRR 12, at [89], Calvelli & Ciglio v Italy, App. No. 32967/96, at [49].
In Powell v United Kingdom App. No 45305/99, the ECtHR held:
"… where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life."
Applying Powell, the Defendants submitted that, since there was no allegation of systemic failure in this case, the alleged errors by an individual nurse and Emergency Medical Dispatcher in the course of their duties were not capable of amounting to a violation of Article 2. In my view, that submission is too broad.
Similar questions were considered by the House of Lords in Savage v South Essex NHS Trust [2009] 1 AC 681. Lord Rodger, at [18] to [42], analysed the authorities which have held that, because the State has assumed responsibility for the welfare of detainees, and has control over them, there is a heightened duty on the State to protect their Article 2 rights. He explained that the discharge of this duty is likely to require (1) specific systems/procedures to cater for risks to life commonly arising in a prison or other place of detention; and (2) preventative operational measures in respect of an individual detainee where the authorities knew or ought to have known of a real and identified risk to his life.
Addressing the case of Powell, Baroness Hale said, at [91] and [97], that Article 2 would not be engaged by "ordinary medical negligence", provided proper systems are in place. But "in some circumstances an operational duty to protect a particular individual is triggered" if the conditions established in Osman v United Kingdom 29 EHRR 245 were met, as for example, in Keenan v United Kingdom (2001) 33 EHRR 38.
In my view, when Lord Scott referred to patients in prison hospitals being in the same position as patients in a community hospital (at [10]) he was merely making the same point as Baroness Hale about cases of ordinary medical negligence, not challenging the view of Lord Rodger and Baroness Hale that an Osman operational duty could arise in, inter alia, the care of patients in detention, if certain conditions were met. In any event, Lord Scott was in a minority, since Lord Neuberger and Lord Walker agreed with Lord Rodger and Baroness Hale.
Moreover, the analysis of Lord Rodger and Baroness Hale on this issue was followed in Rabone v Pennine Care v NHS Trust (2012) 2 AC 72, per Lord Dyson at [19] to [34].
In Osman, the ECtHR held:
"115.…. Article 2 of the Convention may also imply in certain well defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual….
116…. bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measure to prevent that risk from materialising…
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirement of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
The application of the operational duty has developed incrementally. It may be broadly categorised as follows:
i) ...
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