In the case of Milner, the court granted a care home partial summary judgment, striking out a claim for damages for alleged breaches of Article 2 ECHR (‘Right to life’). The case concerned the long-standing neglect of a 94-year-old woman with dementia who sadly passed away from pneumonia. Following deliberation, the neglect was deemed insufficient to meet the high threshold of presenting a real and immediate risk to life, whilst the considerations for an Article 3 claim for alleged inhuman or degrading treatment deemed appropriate matters for trial.
In addition, the court made poignant observations about who has standing to bring HRA damages claims.
Mrs Carey (‘Elsie’) was an elderly patient with dementia who resided in the Defendant’s Stamford Bridge Beaumont Care Home between 2013 and her death in 2017. The Claimant in this matter, a lifelong friend of the deceased, initially arranged for Elsie to live at the home.
Elsie had been subject to a Deprivation of Liberty authorisation under Schedule A1 of the Mental Capacity Act 2005 with the Claimant her representative for purposes of authorisation.
Increasingly the Claimant became concerned about Elsie’s care provision, including the following alleged failures:
In light of the gravity of the failings, the Care Quality Commission and local authority investigated finding the home had been “neglectful in their care for Elsie and [had] put her at increased risk of harm” (para 6). Elsie had an extremely miserable end of life, often being left in sub-human conditions, hungry, thirsty and without company and stimulation whilst simultaneously suffering from loss of mental acuity.
Under s73 Care Act 2014 claims were brought for damages against the Defendant, a public body within the meaning of s6 HRA 1998 under and under s6 and s7 of the HRA 1998 for alleged breaches of Articles 2 and 3 of the ECHR in the provision of care.
The crux of the Defendant’s application concentrated upon whether Articles 2 and 3 were engaged on the pleaded facts and whether the Claimant had locus standi to bring the claim.
The Claimant’s pleaded claim: Article 2
The Claimant first pleaded a ‘systems’ obligation, asserting that the Defendant was under a duty to maintain an adequate system to protect the lives of its residents. In alleging this obligation to be engaged the Claimant relied on poor record-keeping, and both lack of training and competency checks.
Secondly, the Claimant asserted that an ‘operational’ obligation mandated that where actual or constructive knowledge existed of a real and immediate risk to life the Defendant was obliged to take reasonable steps to protect the resident. The Claimant relied on the fact that Elsie’s risk of choking was not assessed or referred for specialist care as factual support that Article 2 was also engaged vis-à-vis the operational obligation.
The Claimant’s pleaded claim: Article 3
Firstly, in carrying out its functions the Defendant was subject to an absolute prohibition on the infliction of inhuman and degrading treatment (a “negative” obligation). In addition, a systems obligation in parallel to the Article 2 case was pleaded: that the home was under a duty to maintain and implement appropriate administrative measures and systems of work to protect its residents from treatment was alleged. Finally, the operational obligation to take reasonable steps to safeguard vulnerable residents from prohibited treatment under Article 3 where actual or constructive knowledge existed of an immediate and real risk of said treatment was claimed.
Strike out and Summary Judgment
Master Davison provided a useful summary of the relevant law for striking out and/or granting summary judgment derived from the judgment of Margaret Obi sitting as a DHCJ in the case of AB v Worcestershire County Council [2022] EWHC 115 (QB) alongside stating the correct approach had been summarised by Lewison J in Easyair Limited (trading as Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch) as requiring the court to consider whether the Claimant has a “realistic” or “fanciful” prospect of success. Realistic success was defined as being more than merely arguable (para 17).
Master Davison further acknowledged the speech of Lord Browne-Wilkinson in Barrett v Enfield [2001] 1 AC 500 that in an “uncertain and developing” area of law it is inappropriate to strike out where the law is in a state of development (para 19).
Article 2 – analysis of engagement on the facts
With respect to Article 2, the court noted that following R (Maguire) v HM Coroner for Blackpool & Fylde [2020] EWCA Civ “mere” clinical negligence would not engage Article 2, whilst additionally distinguishing persons who had been “detained” with those “placed in social care homes”. The court accepted the Defendant’s submission that the positive obligation to protect life (the operational duty) was not owed to residents of care homes solely based on their liberty being restricted by a DOLS authorisation.
The trigger cases for the duty to take reasonable steps to avert the danger was assessed as including a “real and immediate risk to life” of which the authorities had actual or constructive knowledge (para 22). A real risk here was defined as one which was not remote or fanciful following the case of Rabone v Pennine Care NHS Trust [2013] 2 AC 72.
The Defendant’s short point here was on the pleaded the case the only available potential trigger was the risk of choking and there was no evidence on the facts that choking was a material contribution to Elsie’s death. The Defendant, therefore, submitted that the Article 2 (operational burden) was not engaged.
Conversely, the Claimant contended that clinical negligence is a spectrum with ‘simple’ clinical negligence at one end and at the other cases of protracted neglect sufficient to trigger Article 2: the facts qualified Elsie’s case at the “protracted neglect” end of the spectrum, citing E’s assessment of being at medium risk of choking as sufficient to establish a “real and immediate risk to life” and, therefore, a sufficient trigger for the operational risk case (para 32).
Article 2 – real and immediate risk
It was held that the only particularised risk, that of choking, did not meet the extremely high threshold of a “real and immediate risk to life” with Elsie’s exposure to this risk only ever being of “medium” risk (para 40). The fact that Elsie had lived at the care home for 4 ½ years sat “uneasily” with the immediacy required and could open the floodgates to other “relatively benign” conditions (para 40).
Moreover, the only particularised link between Elsie’s death and the risk of choking was a bare assertion that Elsie’s pneumonia was linked to aspiration. Whilst Elsie had been acutely unwell with a chest infection prior to her death, her death certificate didn’t mention choking and, therefore, causation was hopeless as there was no evidence to link the cause of death to choking (para 41).
Secondly, with respect to the systems obligation, given this was not an exclusively clinical negligence case the strict criteria set out in Lopes de Sousa v Portugal and paragraph 49 of the Guide did not apply. Whilst the Claimant had pleaded a “systems” failure to maintain and implement appropriate administrative measures and safeguards to protect the lives of residents it was not possible to see how the pleaded lapses in Elsie’s care would establish such a failure had caused the death (para 33).
Article 3 – severity of treatment
Master Davision held, following AB v Worcestershire CC, that for the treatment to fall within Article 3 the treatment must objectively meet a minimum level of severity to satisfy the high threshold. Relevant factors for consideration included: duration of treatment, physical and mental effects, sex, age, and state of health of the victim (Ireland v UK 2 EHRR 167). Examples, where this threshold were met, included Z v United Kingdom (2002) 34 EHRR 3 where children in a care home endured a “horrific experience” and “appalling neglect” (para 24).
Concerning the question of whether the Article 3 threshold has been met, Master Davison found it apposite that this was a matter for trial where the “full picture of evidence…would emerge” (para 50).
HRA damages claims – standing considerations
With respect to the Article 2 standing question, Master Davison accepted the approach to be taken was based on the decision of Lang J in Daniel v St George’s Healthcare NHS Trust & Anor [2016]. The relationship between the Claimant and the individual who suffered the direct damage needed to be sufficiently proximate that the claimant “suffered gravely” because of the serious violations of the injured parties Article 2 violations (para 23).
Master Davison also indicated that there was a further limitation: the indirect victim criteria required a family or legal tie.
Concerning Art 3, the Admissibility Guide of the ECHR provided further guidance highlighting that courts had previously accepted locus standi for applicants where either or both a close nexus existed between the prohibited conduct and the death of a relative and a “strong moral interest” in the claim (para 27).
In light of his findings on Article 2 engagement and causation, the discussion of the claimant’s locus standi became academic. Master Davison did, however, go on to consider the claimant’s standing finding that the Claimant for the purposes of an Article 2 claim had sufficient standing because she had been Elsie’s property deputy and had signed the DOLS authorisation, consequently the relationship qualified the claimant as an indirect victim under Article 2.
Finally, turning to locus standi, given no close link had been shown between the prohibited conduct and Elsie’s death it was incumbent on the claimant to demonstrate a “strong moral interest” in the claim as an indirect victim. Master Davison found finding standing in respect of Article 3 to be a tighter test and one which was again a matter for trial.
Sarah Crowther QC, a barrister in our clinical negligence team commented on the case as follows:
There is a lot of legal ground covered in this comprehensive decision. It demonstrates that the Courts are sensitive to the fact that the jurisprudence in respect of HRA damages claims is developing, not least in respect of the issues of engagement and standing.
The absence of any clear medical expert opinion linking the alleged breach of Art 2 in respect of management of the aspiration risk to the death appears to have been a significant factor in the decision to strike out the Article 2 claim.
It might have been thought ambitious for the Defendant in view of the CQC and other findings regarding the seriousness of the neglect in Elsie’s case to suggest that it was not arguably an Art 3 situation. In some senses, the use of labels such as ‘clinical negligence’ to sub-categorise HRA claims is unhelpful. The judgment demonstrates that the courts will approach Art 3 claims separately and that involves consideration of all the conduct which is arguably degrading and inhuman treatment.
On the other hand, it is clear that the court had significant reservations about standing in respect of Art 3 where the claimant had no family tie and where the legal relationship did not extend to responsibility for Elsie’s welfare. It would be unfortunate if the law diverted itself down a path of hard distinctions in this area, although it might be thought that the facts of this case were relatively unusual and normally there would be a direct victim available to bring any claim.
