Patricia Devall v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWHC 1608 (QB) |
| Docket Number | Case no: QA-2020-000209 |
| Court | Queen's Bench Division |
[2022] EWHC 1608 (QB)
Mr Justice Soole
Case no: QA-2020-000209
Claim no: E01CL472
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Williams (instructed by Government Legal Department) for the Appellant
Patrick McMorrow and Sophie Walker (instructed by Tuckers Solicitors) for the Respondents
Hearing date: 10 May 2022
Judgment Approved by the court for handing down
This is an appeal from the decision of HH Judge Freeland QC dated 19 October 2020 whereby he refused to strike out/dismiss the Claimants' claim against the Defendant arising from the death of Billy Rye on 21 May 2017 at Approved Premises (Fleming House, Maidstone) run by the National Probation Service.
The claim is made pursuant to s.7 Human Rights Act 1998 and contends that the Defendant public authority was in breach of systemic and operational duties owed to Mr Rye pursuant to Article 2 ECHR and that these materially contributed to his death. On the same essential facts, it is also alleged that the Defendant breached his rights under Article 8 ECHR. The claims are brought by his mother (the first Claimant) and his former partner and mother of their children (the second Claimant) as administrators of Mr Rye's estate. The first Claimant also brings the Article 8 claim in her own right.
By application dated 17 June 2020 the Defendant applied to strike out the Particulars of Claim (POC) pursuant to CPR 3.4(2)(a) as disclosing no reasonable grounds for bringing the claims and/or for summary dismissal pursuant to CPR 24.2 on the ground that the claims had no real prospects of success. The applications were supported by a witness statement from Ms Jutta Kemppinen, a solicitor at the Government Legal Department. This largely consists of submissions to the effect that the pleaded claims must fail in law, but also exhibits documents which are said to provide further support for the summary dismissal of the claim. Mr Williams placed some reliance on these documents for the purpose of the Part 24 application; but accepted that there was not much difference between the applications under the two CPR rules.
Accordingly the essential assumed facts can be taken from the POC. These state that Mr Rye, aged 28, was released on licence from HMP Maidstone on 28 April 2017, having served one-half of an 8-year sentence for causing grievous bodily harm. As part of his licence conditions he had to reside at Fleming House between 11 pm and 7.30 am.
On the morning of his death (21 May 2017), the CCTV evidence shows that a staff member (Mr Gian Gurung) entered Mr Rye's room at 07.33. He opened the door and looked inside for a few seconds. Mr Rye was breathing at this point.
Shortly after the day shift began at 08.30, Mr Rye's partner (Ms Smith), and subsequently other members of the family, started contacting Fleming House, asking for Mr Rye to be awoken; as he was needed to help and participate in various family events that day.
At 09.04 another staff member (Paul Relf) went to Mr Rye's room, knocked on the door and called out to him. After about 2 minutes, he walked away. At 09.10 he returned with the key; and, after knocking, entered the room. He observed that Mr Rye was breathing. He shook his leg and shouted his name. There was minimal reaction.
At 09.13 Mr Relf returned with another staff member (Carole Sharp). They were in the room for 3 minutes, clapping their hands loudly, shouting his name, shaking him and flicking water on him. There was no reaction. At 09.48, they returned to his room and repeated their previous actions, again with no reaction.
Although family members continued to contact Fleming House, it was nearly 4 hours later before Mr Relf and Ms Sharp returned to Mr Rye's room and repeated what they had done before. On this occasion, Ms Sharp decided to seek medical advice by calling 111. At 13.52 the 111 operators called an ambulance. At 13.58 Mr Relf entered Mr Rye's room and noticed he was not breathing. He called 999 on his mobile. At 14.05 a responder entered the room. At 15.04 Mr Rye was pronounced dead. The medical cause of death was recorded as pneumonia.
An independent investigation into Mr Rye's death was carried out by the Prisons and Probation Ombudsman (PPO). The report dated December 2017 contained criticisms which included the 4-hour delay before return; the failure to call an ambulance at that later occasion; and the absence of emergency first-aid training for the staff on duty.
The inquest hearing was held at the Mid Kent and Medway Coroner's Court between 3 and 5 December 2018. The written findings of the Coroner include a variety of criticisms of the staff response and of the absence of first-aid training. There is dispute as to the admissibility of the findings and opinions of the PPO report and inquest. The Judge decided the applications without regard to that evidence, leaving the issues of admissibility for trial. I take the same course.
Pleadings
Existence of Article 2 duties
The POC contend that the Defendant owed systemic and operational duties under Article 2. The systemic obligation was to establish a framework of laws, precautions, procedures and means of enforcement which would, to the greatest extent practicable, have protected Mr Rye's life, including training competent staff and maintaining high professional standards. The operational obligation was to take action which, judged reasonably, might have been expected to prevent Mr Rye's death in circumstances where the Defendant knew or ought to have known of a real and immediate risk to his life.
The Defence admits a general systemic duty to establish a framework of law, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. It admits that where a member state has assumed responsibility for an individual it may be obliged in certain situations (such as prisons and hospitals) to employ and train competent staff and to adopt appropriate systems of work that will protect the life of such individual, including by maintaining high professional standards. It is denied that any such obligation exists in Approved Premises in the circumstances of this case. In the alternative, if there were any such general obligation, it did not apply in Mr Rye's case. The Defendant had not assumed any general responsibility for Mr Rye when he was residing at Fleming House, nor specifically in relation to the illness from which he died and of which it had no knowledge. Where health care to residents is provided by local NHS services, the member state is not obliged to ensure that staff at Approved Premises have any medical expertise, alternatively medical expertise that would have equipped them to intervene or take action in Mr Rye's case: citing Offender Management Act 2007 (Approved Premises) Regulations SI 2014/1198 (‘the 2004 Regulations’) Regulation 11.
As to the operational duty, the Defendant admits that this is engaged where (but only where) the relevant public authority knows or ought to know of a real and immediate risk to the life of a particular individual in its care. It denies any such obligation in Mr Rye's case, in particular because he was not in its care for these purposes; and it neither knew nor ought to have known of a real and immediate risk to his life. Further it denies that any action taken might have been expected to prevent his death.
Breach of duty
As to breach of the alleged systemic duty, the Particulars allege that the Defendant failed to employ and train competent staff or to adopt appropriate systems of work that would protect the right to life and diminish opportunities for self-harm. There was no adequate system in place to care for Mr Rye and other residents who were dependent on the Approved Premises for care, nor adequate monitoring for that purpose, and having particular regard to the vulnerabilities of residents through the prevalence of drugs and the mental health issues experienced by those who have served substantial prison sentences. Neither member of staff on duty that day had received up-to-date medical training. Further there was a failure to have in place policies to ensure that all residents were awake by a specific time; and that, if a resident is found unconscious and unresponsive, to ensure that emergency medical treatment is sought. These breaches materially contributed to his death.
As to breach of the alleged operational duty, the Particulars at [33] allege that the staff knew or ought to have known that there was a real and immediate risk to Mr Rye's life for the following reasons:
‘a. Mr Rye's dependency on the Approved Premises for medical treatment (as ‘a man who was in a locked room in an unresponsive state’);
[I was told by agreement that residents can unlock their doors at all times including during the curfew period].
b. Mr Rye's family repeatedly contacted the Approved Premises asking them to wake him up as he was needed that day to look after the children as his partner had to go [to] the hospital. Approved Premises staff attended Mr Rye's room on three occasions between 9–10 am where staff shouted his name, flicked water on his face and shook him, during which he remained unconscious;
c. The Approved Premises' knowledge of Mr Rye's vulnerabilities as a person recently released from prison with a past history of drug use;
d. Mr Rye's licence conditions requiring that he reside at the Approved Premises overnight (11 pm to 7 am).’
The Defendant failed to take reasonable operational...
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