Ministry of Justice not liable for clinical negligence in prison – Human Rights Blog 26 Feb. 2018


FEBRUARY 26, 2018 BY DOMINIC RUCK KEENE

Ministry of Justice not liable for clinical negligence in prison

MOJIn Razumas v Ministry of Justice [2018] EHWC 215 a prisoner who had made a claim for clinical negligence against the Ministry of Justice, rather than against the specific health care provider, had his claim dismissed.

In a judgment that sheds light on the current approach to both vicarious liability and non-delegable duties of care, Cockerill J held that: (1) the MOJ had not breached its limited direct duty of care, (2) did not owe a non-delegable duty of care and (3) was not vicariously liable.

The Claimant alleged that there was a negligent failure to diagnose and treat a soft tissue sarcoma, a rare form of cancer, which developed in his calf muscle in 2010. He has since had to undergo a left leg amputation above the knee and also surgery for metastatic disease in his left shoulder muscle. It is estimated that there is a 70% chance that he will develop further metastases in the future. His life expectancy has been sharply reduced.

Cockerill J considered three core issues:

(1) The extent of the MOJ’s direct duty to the Claimant and whether any such duty had been breached. The Claimant alleged that there had been institutional and systemic failures, in particular, failures in January and August 2011 to communicate the dates of medical appointments to him and in September 2012 to ensure his attendance at an appointment. These failings were also said be a breach of the MOJ’s admitted duty to ensure prisoner access to healthcare.

(2) Whether the MOJ owed a non-delegable duty of care in respect of those who provided healthcare at the various prisons where the Claimant was located.

(3) Whether the MOJ was vicariously liable for those responsible for the Claimant’s healthcare needs while in prison.

Direct duty of care

Cockerill J began by analysing the claim for a breach of direct duty, and specifically by looking at the legislative background. At trial the Claimant accepted the MOJ’s analysis of the relevant prison and NHS legislation, which showed that there had been a transfer of statutory responsibility for the commissioning and provision of healthcare in prison from the MOJ to the Department of Health and the NHS.

In particular, by 2010 the legislation that had previously imposed on the Defendant a duty to provide healthcare in prisons had been amended such that that prison governors only had to ‘work in partnership with local health providers’. Following the abolition of Primary Care Trusts by the Health and Social Care Act 2012, their responsibilities in this area passed to NHS England. Prison service guidance (prison service orders and prison service instructions) envisaged a limited role for governors in clinical governance – i.e. in effect ensuring the healthcare system operated appropriately in a prison setting working in partnership with the local NHS.

Cockerill J found that the MOJ did have a direct duty to the Claimant but one that was more limited in scope than that for which the Claimant argued (§109-112; 115). Such a duty arose from the fact of custody – ‘to take care as to a safe environment and also as to the less obvious risks such as that of suicide which has been found to be linked to the state of custody’. It was held that the duty ‘probably extends to matters relating to access to healthcare’. Further, the clinical governance process made it likely that a duty arose under the legislative and regulatory framework but it was one that was limited to oversight of systems in place and to raising and seeking solutions to known and identified problems. The duty did not include a responsibility to actively reinforce the role of healthcare operators on day to day matters (§116-119).

Having defined the scope of the direct duty owed, Cockerill J heled that there had been no breach – it was found that no part of the custodial relationship had gone wrong and that no part of the oversight of systems was deficient.

Non-delegable duty of care

In reliance on Woodland v Swimming Teachers Association and Others [2014] AC 537 and Armes v Nottinghamshire County Council [2017] 3 WLR 1000, the Claimant emphasised the ‘unique’ nature of his position as someone in the custody of, and thereby dependent on, the MOJ.

The Claimant submitted that the five features identified by Lord Sumption in Woodland were satisfied, that his situation could be distinguished from Armes and that there were sound reasons why it was fair, just and reasonable to impose a non-delegable duty.

The MOJ argued that a prison solely undertakes to protect against risks that arise from its custody and control of the Claimant. The duty did not extend to protecting against negligent medical treatment. In particular, in relation to the fourth feature identified by Lord Sumption (delegation to a third party of some function which is an integral part of the positive duty assumed), the MOJ relied on the statutory framework which it argued showed a clear distinction between its control over the Claimant as a prisoner to which he could not consent and his treatment as a patient which required his consent. Relying on Armes, the MOJ argued that it had no statutory obligation to provide or arrange for the provision of healthcare in prisons.

Cockerill J emphasised the need for ‘a nexus between the control of the claimant by the target and the purpose of that control/placing, and the care inherent in that relationship’. Here there was no nexus: the Claimant was not in prison for the purpose of receiving healthcare, which had not (at least since 2003) been part of the prison’s ‘mainstream (or essential) function’. The position was akin to that in A (A child) v Ministry of Defence [2005] QB 183 – treatment of a British Army dependent in a hospital in Germany. The provision of healthcare formed no part of the statutory or common law duty owed by the MOJ; it was the duty of the PCT and its subcontractors.

Vicarious liability

Relying on Cox v Ministry of Justice [2016] AC 660 and Armes, the Claimant argued that his circumstances showed that the provision of healthcare was carried out on behalf of the MOJ and was integral to its business activity, the healthcare and custodial functions being inextricably linked. Engaging a healthcare provider created the risk of negligence that might harm prisoners.

The MOJ argued that on looking at the five factors identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 for identifying an underlying an underlying duty, crucial factors were absent, including the absence of any employment relationship with those responsible for the torts complained of, that healthcare provision was not part of the MOJ’s business activity, that the MOJ had not created a risk of clinical negligence and that it exercised no control over healthcare provision in prison.

Cockerill J held that the Claimant had failed to meet the relevant test. She concluded that:

(1) the tort complained of had been committed by healthcare providers acting on behalf of the Primary Care Trust and not the MOJ;

(2) the healthcare provider’s activity was part of the business activity of the Primary Care Trust, but it was not substantially part of the activity of the MOJ, as there was only ‘limited integration’ between the custodial and healthcare functions;

(3) it was the contract with the Primary Care Trust (over which the MOJ had no control) that created the risk of clinical negligence by a healthcare provider and that the healthcare provider was only under the MOJ’s control with regards to training, contract and discipline. Further, there was no shortfall of insurance cover, the Primary Care Trust having the requisite means and the providers being required to take out considerable insurance.

Comment

The judgment shows the degree of overlap between the factors considered when assessing whether there is a relationship akin to employment such as to ground vicarious liability and those considered when assessing whether there is a non delegable duty of care. The focus is on the practicalities of the relationship between the parties, and as such the facts of each case will be significant in determining the court’s decision on the issues.

source: https://ukhumanrightsblog.com/2018/02/26/37155/comment-page-1/#comment-57549

Maurice Kirk, 73, has served over 6+ years since 2009 on the most questionable of charges on various imprisonments. Denied urgent medical operation + medications whilst imprisoned on again dubious charges whilst in HMP Cardiff etc. between March 2014 and his release in March 2015 – he was on hunger strike for 33 days ending late March 2014, and after had a colostomy or similar serious stomach ailment whereby parts of his stomach exited his rectum after taking food again – the prison denied any hospital treatment and even painkillers since the end of the hunger strike + his release in March 2015 [a whole year] when he finally received the much needed treatment. This time, since entering prison on 14 December 2017, he’s been denied his medication to be taken before food, and has as a result been on hunger strike since 1 Feb. 2018 – he had prearranged hospital appointments for a probable “torn stomach diaphragm” but the prison not only denied him the pre-prescribed medication [Omerzaparole etc.] but also his hospital appointments. Expected release date – mid November 2018. Much more unwarranted victimisation and persecution has and will ensue up till his release if previous sentences and what’s happened so far is anything to go by..

.

The pic in this video is from 2015 weeks after MK was released from HMP Cardiff after serving 16 months in prison [from the end of November 2013 until March 2015] – on the same charges as this time! See all the updates on Maurice Kirk, on hunger strike in HMP Parc, https://butlincat.com/?s=maurice+kirk – serving 2 years imprisonment on extremely dubious and questionable charges relating to him “breaching a restraining order” – an order that was never served in the 1st place!! Maurice has served literally years in prison because of this outrageous discrepancy manufactured by mainly the Welsh police and judiciary – it is a public scandal what has happened over the past 23+ years whereby MK has been blatantly victimised and persecuted by these dubious agencies + authorities.

Maurice Kirk: Prison Regime failing badly at HMP Parc, still – 24 Feb. 2018 + archive

Received 23 Feb. 2018: From his note, below, Maurice seems to have been given, finally, a laptop he was promised weeks back. This good news was marred by the fact that after spending all day typing up letters etc. to be  sent to the Royal Courts of Justice pending  his appeal, along with other communications to neer-do-wells posing as “solicitors” etc. the screws confiscated the memory stick he’d paid for, full up with the  said notes, at the end of the day. Disgusting. Anything to stop Maurice getting any kind of justice.  [Thinks: if only this were America…].

  from earlier:

Maurice Kirk: On hunger strike, still denied medication at the proper times, + urgent hospital visits in HMP Parc – 21 Feb. 2018 + archive

Received from Maurice Kirk 21 Feb. 2018:  Maurice states his medication is being dispensed at inappropriate times – if it is not given directly before the intake of food, it is not worth being given.

He stated in the week that the prison apologised for wrongly classing him as a MAPPA 3 subject – however his urgent hospital appointments are sill denied him, along with the laptop he was promised and paid over £100 for before Christmas, which  also included “printing and posting” items.  Other irregularities continue.

See more posts on Maurice Kirk going back to 2011 here:

https://butlincat.com/?s=maurice+kirk

Maurice Kirk: On hunger strike, still denied medicines, hospital appointments, MAPPA details, and more – 16 Feb. 2018 + archive

Received 14 Feb. 2018:

1]  MAPPA: failure to disclose information, etc.:

2]  MAPPA abuse, continued:

3]   Letters sent that are ignored, since mid-December 2017, the date MK entered this prison – are his letters even leaving the prison?

4]  To: S. Wales Mental Health Authority

Archive continues:

Maurice Kirk – Call 10 Feb. ’18 – Lawyers don’t even turn up at court after being paid! and more 14 Feb. 2018 + archive

https://player.vimeo.com/video/256361039

Call from Maurice Kirk –  10 Feb. 2018

more:

MAURICE KIRK: ON HUNGER STRIKE – LAW BOOKS BANNED + more AT HMP PARC – 10 FEB. 2018 + archive

Received 10 Feb. 2018: Maurice writes regarding being denied a laptop he’d been promised but is still denied [along with vital medication and urgent hospital visits] and as the authorities have erred so many times regarding court cases etc., he is even denied access to law books in the library of HMP Parc!!:

Archive continues:


Maurice Kirk, unfairly imprisoned, calls from HMP Parc on 06 Feb. 2018, telling of the appalling treatment he is subject to there. Many authority figures have been notified, with nothing being done. G4S staff this prison. 

 See more posts on Maurice Kirk going back to 2011 here:

https://butlincat.com/?s=maurice+kirk

FAIR USE NOTICE: This item may contain copyrighted (© ) material. Such material is made available to advance understanding of ecological, political, human rights, economic, democracy, scientific, moral, ethical, and social justice issues. This constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, this material is distributed for analysis, commentary, educational and intellectual purposes. In some cases comedy and parody have been recognized as fair use.
Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. For more information please visit:
http://www.law.cornell.edu/uscode/text/17/107

NB: DISCLAIMER: Everything posted on this site conforms to the meaning of the word “alleged” as defined under UK and US Laws and Statutes.

About butlincat

my blog: http://www.butlincat.blogspot.com http://www.youtube.com/butlincat http://www.twitter.com/butlincat
This entry was posted in Uncategorized and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.