Mr Benius Razumas v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 12 February 2018 |
| Neutral Citation | [2018] EWHC 215 (QB) |
| Court | Queen's Bench Division |
| Date | 12 February 2018 |
| Docket Number | Case No: HQ17C01909 |
[2018] EWHC 215 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cockerill
Case No: HQ17C01909
Christopher Melton QC, Jason WellsANDMaria Roche (instructed by Michael Jefferies Injury Lawyers) for the Claimant
Adam Weitzmanqc AND Bilal Rawat (instructed by Government Legal Department) for the Defendant
Hearing dates: 15–19 January 2018
Judgment Approved
Background
The current case is a sad case. It is also a rather unusual case. In it the Claimant, Mr Razumas, brings an action for clinical negligence not against any National Health Service entity but against the Ministry of Justice. He does so because for various periods in between 2010 and 2013 he was in custody and during that time the medical care he received was, it is common ground, deficient in various respects. The highly unfortunate result of the negligence has been that he has had to have his left leg amputated above the knee. His future medical prognosis is uncertain.
The questions in this case are therefore in broad terms whether the negligence is the responsibility of the Ministry of Justice, which has overall responsibility for the prisons in which he was incarcerated, and whether the claim is barred by reason of Mr Razumas' own actions. There are also a number of subsidiary issues including one as to whether his treatment is in breach of the Human Rights Act 1998 (“ HRA 1998”).
Unusually, because the legislative backdrop informs understanding of the factual background and exactly how the issues arise, I will not commence with the factual background. Instead this judgment is arranged as follows:
i) The Evidence: paragraphs 4–6;
ii) The Legislative and regulatory backdrop: paragraphs 7–66;
iii) The Factual Background: paragraphs 68–107;
iv) Mr Razumas' causes of action: paragraph 108;
v) Direct duty of care: paragraphs 109–122;
vi) Non delegable duty of care: paragraphs 123–158;
vii) Vicarious liability: paragraphs 159–176;
viii) The Crown Proceedings Act 1947: paragraphs 177–183;
ix) Intervening Acts: paragraphs 184–202;
x) Section 57 Criminal Justice and Courts Act 2015: paragraphs 203–215;
xi) The Claim under the Human Rights Act: paragraphs 216–246;
xii) Conclusion: paragraph 247.
The Evidence (and dramatis personae)
In support of his case Mr Razumas gave evidence. He relied on expert evidence from a general practitioner, Dr Nicholas Kearsley, who was not called in the light of the substantial agreement between the expert GPs, and from Professor Grimer, an eminent practitioner in the field of orthopaedic oncology. Dr Ekpo Ekpo, the Tenth Part 20 Defendant, was called by the Claimant under a witness summons.
The Defendant called a number of prison governors (“the Governors”) who had had charge of the prisons where Mr Razumas was incarcerated at the time; though all have now moved on to other postings. They were (by reference to their prisons at the time): Mr Blakeman of HMP Bedford, Mr Bradford of HMP Bullwood Hall and later HMP The Mount, Mr Wragg of HMP Belmarsh, Mr Tullett of HMP Brixton as well as Mr Hyde the Ministry of Justice Controller at HMP Thameside and statements were also tendered under CEA notices from Ms Cadden and Mr Valli dealing with the search for relevant contractual documents and the terms of those documents.
The Defendant also relied on the evidence of an expert GP, Dr Fotiadis, and that of a consultant trauma and orthopaedic surgeon, Mr H A Lyall. Dr Fotiadis gave evidence, but (in the light of his agreement with Professor Grimer's report) Mr Lyall did not.
The Legislative and regulatory backdrop
The Legislation
There are two facets to the legislative backdrop. The first relates to what the legislation says as regards prisons and healthcare. The second is what the legislation says as regards the NHS and healthcare in prisons.
The starting point for the first enquiry is the Prison Act 1952. Section 1 gives the Secretary of State powers and jurisdiction over prisons subject to any other provisions of the Act. Section 4(1) provides:
“The Secretary of State shall have the general superintendence of prisons, and shall make the contracts and the other acts necessary for the maintenance of prisons and maintenance of prisoners.”
Expenses incurred in the “maintenance” of prisoners shall be paid to the Secretary of State by Parliament. Maintenance is defined by section 53(2) as:
“… the maintenance of a prisoner shall include all necessary expenses incurred in respect of the prisoner for food, clothing, custody and removal from one place to another, from the period of his committal to prison until his death or discharge from prison.”
Section 13(1) provides that prisoner is deemed to be in the legal custody of the governor of the prison. Subsection (2) identifies the circumstances and locations in which that custody will arise.
It is of historical interest and possible relevance to the analysis that prior to November 2007, section 7 of the Prison Act 1952 required every prison to have a ‘medical officer’. This requirement was repealed by section 25 of the Offender Management Act 2007; the explanatory note to that Act indicates that this had become the responsibility of the Secretary of State for Health.
Prior to 1 st January 2010, rule 20(1) of the Prison Rules 1999 provided: “ The medical officer of a prison shall have the care of the health, mental and physical, of the prisoners in that prison”. This rule was amended by the Prison and Young Offender Institution (Amendment) Rules 2009. It now provides that: “ The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service”.
This change reflects what it is common ground was a transfer of headline statutory responsibility from the Defendant to the Department of Health and the NHS. The reason for the change was to improve the chances of giving effect to the principle of “equivalence”, ensuring that prisoners had the same access to health as those in the community. This came about because under the old system there had been concerns that prisoners were disadvantaged in accessing healthcare and in ensuring continuity of healthcare when not in prison. Prisoners are repeatedly identified in the documents leading up to the change, and in the documents generated under it, as a particularly vulnerable group in healthcare terms.
Equivalence also means that in addition to ensuring that the same standard of healthcare is available steps are taken to make sure that, when receiving healthcare, insofar as it is compatible with the custodial setting, a prisoner is treated as a patient. This means that he is afforded the same rights as he would have in the community; a right to refuse treatment, a right to confidential medical consultations and to data protection for his medical records. These are all specifically provided for.
Because of this headline change from this point on the legislation and discussion documents as well as the Prison Service Orders and Instructions indicate that the Defendant is required to work “in partnership” with the NHS. Thus the terms of the amended version of the rule referred to above, and thus also section 249(1) of the National Health Service Act 2006 (“NHS Act 2006”) provides:
“In exercising their respective functions, NHS bodies (on the one hand) and the prison service (on the other) must co-operate with one another with a view to improving the way in which those functions are exercised in relation to securing and maintaining the health of prisoners”.
Looking then at the second aspect, the situation from the NHS side of the equation, section 3 of the National Health Service Act 1977 placed an obligation on the Secretary of State for Health to provide health services throughout England, including primary health services. It was silent on the subject of prisons.
This obligation was re-enacted by section 3 of the NHS Act 2006 which effectively replaced the 1977 Act. It provides:
“The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements-.. (c) medical, dental, ophthalmic, nursing and ambulance services.
For the purposes of the duty in subsection (1), services provided under- (a) section 83(2) (primary medical services), section 99(2) (primary dental services) or under section 115(4) (primary ophthalmic services), or (b) a general medical services contract, a general dental services contract or a general ophthalmic services contract must be regarded as provided by the Secretary of State.”
Section 3B of the Act provided that Regulations might require the Board to arrange for the provision of health services to prisoners. No specific regulations were made under this section until 2013 when a specific provision was introduced stating that the Board must arrange for the provision of health services for prisoners.
The general provision under section 3 was to take place via Primary Care Trusts (PCTs). From 1 st October 2002, PCTs had the responsibility of fulfilling the Secretary of State for Health's function to provide primary care in England in their respective areas (see: section 16D of the NHS Act 1977/section 7 of the NHS Act 2006, and National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002/2375).
Thus under section 83 of the NHS Act 2006 a PCT becomes responsible for the provision of primary care in its locality:
“Each Primary Care Trust, must to the extent that it considers necessary...
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