Sammut and ors v Next Steps Mental Health Care & Greater Manchester Mental Health NHS Foundation Trust [2024] EWHC 2265 (KB), 2 September 2024. Judgment here
Anyone who thought the issue of the engagement of Article 2 and health care might now be settled after Maguire[1] was being over-optimistic. There seem to remain a myriad of circumstance in which it is still argued that Article 2 obligations arise.
The Claimants in this civil claim for damages under Human Rights Act 1998 (‘HRA’) sought to rely upon an allegedly poor standard of health care in a private nursing home as engaging Art 2 obligations. However, as the judge found, the private organisation running the nursing home (Next Steps) was not a public authority under s.6 HRA and so owed no duty to uphold Convention rights. Furthermore, the matter in issue was the quality of the medical care provided, which even if delivered negligently (as was alleged), would not have engaged any operational obligation owed to the deceased.
The judge made it clear, something going wrong or functioning badly as a result of clinical negligence should not be misconstrued as being due to systemic failures. In the field of healthcare something far more exceptional, such as a knowing denial of life saving treatment, will be required. Bad clinical negligence, even to the extent of being reckless regarding a risk to life, will not suffice.
The background
Mr Sammut had long suffered from treatment resistant schizophrenia. Following a period of detention in a secure psychiatric hospital under s.3 Mental Health Act 1983 (MHA) he moved to live in a secure private nursing home operated by Next Steps. The nursing home was contracted by the Local NHS Trust to provide care and treatment services to the deceased, paid for by the NHS and Local Authority, further to their duties under s.117 MHA. Mr Sammut’s circumstances amounted to a deprivation of his liberty at the nursing home, although a DOLS authorisation under the Mental Capacity Act 200 (MCA) was not in place.
Just over a year after his admission to the nursing home Mr Sammut died. At an inquest it was determined that his medical cause of death was bronchopneumonia, large intestinal obstruction and faecal impaction related to the side effects of Clozapine (an atypical anti-psychotic used to deal with the effects of schizophrenia).
When Mr Sammut’s relatives commenced a civil action in both negligence and for damages for breach of ECHR rights Next Steps sought to strike out those parts of the claim relating to breaches of Article 2, Article 3, Article 5, and Article 8 ECHR. In particular, Next Steps argued that, for relevant purposes, it was not a public authority and so no remedy under the Human Rights Act (HRA) could be awarded against it. In the alternative, it was submitted that Article 2 was not engaged on the facts.
The admissibility issue
Pursuant to s.6 HRA it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3) HRA defines a public authority as “any person certain of whose functions are functions of a public nature“. However, not every act carried out by such a person is capable of giving rise to a claim, as under section 6(5), the Court must consider the nature of the allegedly unlawful act. If that act is a private act then the person is not a public authority for HRA purposes.
The question to be resolved therefore was whether the functions being carried out by Next Steps which give rise to the claim were functions of a public nature?
There is decided authority that a private psychiatric hospital exercising powers of compulsory detention under MHA will be performing functions of a public nature.[2] However, that did not assist the Claimants’ case in respect of deprivation of liberty in a private nursing home which was not exercising any powers of compulsory detention.[3] That the care was funded through s.117 of the Mental Health Act also did not answer the question in this case.[4]
Next Steps were not acting as a public authority but were simply carrying out a business (which happened to have some social utility) for a profit. The nursing home did not have any relevant statutory power. They could not be considered to be a functional Public Authority under s.6 HRA, and therefore the claim under HRA would be struck out.
This alone would be sufficient to determine the HRA aspects of the claim, but helpfully the judge went on to consider what the position would be under Art 2 had he been wrong about the application of s.6 HRA
Article 2 engagement
The Claimant’s pleaded case for the engagement of the Art.2 operational duty was based upon the argument that “life-saving treatment” had not been given to Mr Sammut: in particular that the medication he required to counteract the effects of Clozapine had not been given and so, it was alleged, Next Steps’ staff had “knowingly or recklessly put his life at risk, a risk that eventually materialised“.
The judge noted that Lord Sales in Maguire had endorsed the Grand Chamber decision in Fernandes v Portugal [5] as being “authoritative clarification” of when the substantive positive Art.2 obligations arose in the field of healthcare.[6] As Lord Sales observed in Maguire, if the state had made “adequate provision for securing high professional standards among health professionals and the protection of lives of patients” medical negligence alone would not be sufficient for a finding. Art 2 obligations did not encompass circumstances where a patient was merely considered to have received deficient, incorrect or delayed treatment – more ‘exceptional circumstances’ would be required.
To engage Art 2 required either:
(i) an individual patient’s life had to be knowingly put in danger by denial of access to lifesaving emergency treatment; or
(ii) a systemic or structural dysfunction in hospital services had to exist that resulted in a patient being deprived of access to life-saving emergency treatment where the authorities knew or ought to have known about that risk.
Looking at the pleaded facts in the present case, firstly, although ‘recklessness’ was pleaded, there was no assertion that Mr Sammut’s life was knowingly put in danger by denying him access to treatment. There was no sense in which the medical practitioners were fully aware that his life was at risk if treatment was not given and, even in the face of such knowledge, denied him that treatment. The ‘denial’ of treatment referred to in argument was no more than an allegation of (very serious) clinical negligence. This was insufficient to engage Art.2.
Secondly, there was no plea of systemic dysfunction which was “genuinely identifiable as systemic“. The pleaded failure to “establish, maintain and apply procedures” was a plain reference to something going wrong or functioning badly not as a result of systemic failures, but as a result of clinical negligence. The remaining particulars simply went on to emphasise the seriousness of the clinical negligence claim. Lapses in an individual’s performance were not to be construed as a failure as regards the systems duty.
It followed therefore that the type of exceptional circumstance that would justify engagement of Art.2 were absent. The HRA aspect of the claim was struck out on this additional ground.
Comment
This case provides some helpful clarification, if such is still needed post Maguire, on where the line is to be drawn between clinical negligence and Art 2 breaches.
It is not clear from the judgment whether the earlier inquest had been conducted as an ‘Art 2 inquiry’. Indeed all that is revealed about the inquest [7] is that the Coroner had apparently found the evidence provided by Next Steps’ staff to be “unhelpful, unreliable and obstructive” although the wider context for these comments (and how they marry up with s.5(3) CJA 2009) is not given.
In a rather unusual step the Claimant had then relied on the comments made by the Coroner at the inquest and pleaded them as evidence of a breach of the Art 2 procedural duty. One can only wonder if the Claimant’s representatives intended to later call the Coroner to prove their pleaded case! It is rather hard to see how a claim for a breach of the procedural duty under Art 2 on the part of Next Steps could ever have been a realistic prospect here, even without the other flaws in the claim.
Footnotes
[1] R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20)
[2] See R(A) v Partnership in Care Limited [2002] EWHC 529 (Admin).
[3] Indeed the Claimants’ case regarding false imprisonment relied on this point.
[4] As arrangements under s.117 MHA with private sector care do not fall under s.73 Care Act 2014.
[5] (2017) 66 EHRR 28
[6] see §7 of Maguire and the general discussion of the decision at §40 to §52.
[7] See §63e