Court rejects Article 3 claim in delayed treatment case

30 Sep, 2019

This article was first published in LexisPSL on 23 September 2019. LexisNexis retains copyright in the article.

Personal injury analysis: In Watling v Chief Constable of Suffolk Constabulary, the claimant's admission to hospital following a stroke was delayed by four hours as a result of the first defendant arresting him on the mistaken suspicion that he was driving a vehicle under the influence of drugs and the second defendant healthcare provider's late examination of him. Gurion Taussig, barrister at 9 Gough Chambers, examines the High Court's decision that, nevertheless, the defendants had not breached the claimant's rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR).

Watling v Chief Constable of Suffolk Constabulary and another [2019] EWHC 2342 (QB), [2019] All ER (D) 25 (Sep)

What are the practical implications of the judgment?

The case, which was originally brought in negligence and for breach of Articles 3 and 8 ECHR (until the negligence claim was discontinued before trial), has practical implications for those advising on medical negligence and also human rights claims.

The decision in Watling v Chief Constable of Suffolk Constabulary at first blush does not give encouragement to practitioners falling back on a claim for breach of human rights as an alternative to a claim in negligence in a ‘delayed-treatment’ case. The decision affirms Lord Dyson's general dicta in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 All ER 381 that in claims under Article 3 ECHR ‘it is more difficult to establish a breach of the operational duty than mere negligence’.

Practitioners should be aware that the court is prepared to find private companies such as the second defendant, which provides healthcare services to detainees, to be a ‘hybrid’ authority within the scope of the Human Rights Act 1998 (HRA 1998).

However, practitioners seeking to invoke breach of Article 3 ECHR should be reminded of the high threshold of suffering required to engage that article at all. The claimant, who was suffering a stroke for four hours after being detained by the police at the roadside, could not show that his suffering met the threshold. The case shows that the court will allow public authorities such as the police and their healthcare providers some leeway in their conduct where, as here, detainees suffer some physical detriment whilst in custody.

Finally, in terms of causation, the case reminds practitioners that low percentage figures might constitute a substantial chance of a better outcome. Here, the court considered that a 6.7% chance would have represented a substantial chance. That decision is in line with the Supreme Court’s decision in Rabone – where a 5% chance was considered significant – and suggests that if breach of Article 3 ECHR can be established, causation is a hurdle that may, in an appropriate case, relatively easily be met.

What was the background?

The claimant had been stopped by police whilst driving his car erratically at 1:30am. At the roadside, he was unable to speak or respond to questions. His body and arm were shaking. A breath test showed he had not consumed alcohol. The police arrested him for being under the influence of drugs and took him to an investigation centre.

At 3:04am, the police called the second defendant to arrange for an assessment of the claimant’s fitness to be detained on suspicion of having committed an offence under section 4 of the Road Traffic Act 1988 (RTA 1988). The police told the call handler that the claimant was ‘not engaging at all’. The second defendant’s target response time was one hour. In the event, its forensic medical examiner (FME) arrived and assessed the claimant at about 5:40am, whereupon a stroke was diagnosed.

The claimant was transferred to hospital but by this time he was outside the window for thrombolytic treatment. He suffered permanent injury, classed at ‘Rankin scale 3’ moderate disability. He was unable to work and his domestic independence was impacted.

Within the litigation, expert evidence was obtained as to the care expected to be provided by the FME. Further, expert neurological evidence was adduced as to the likelihood that earlier thrombolytic treatment would have made a difference to the outcome.

The claim in negligence was abandoned prior to the trial because the neurological experts agreed that, on the balance of probabilities, the claimant would not have benefited from earlier thrombolytic treatment. The matter proceeded to trial under HRA 1998, with the claimant alleging that the defendants had breached his rights under Articles 3 and 8 ECHR by reason of the delay in transferring him to hospital.

What did the court decide?

The court first considered the issue of whether HRA 1998 applied to the second defendant, ie whether it was a ‘public authority’ within the meaning of HRA 1998, s 6. The court concluded that it was a ‘hybrid’ authority: in providing medical services as a private company to the police and detainees in its custody, the second defendant was exercising both public and private functions. The acts in question, ie those involved in attending a detainee to take a sample for the purposes of RTA 1988, s 4, were public acts. Those relevant acts included the provision of an adequate triage system and providing a contractually timely response to a call-out.

The court went on, however, to decide that the level of the claimant’s suffering did not meet the required threshold for a minimum level of severity so as to engage Article 3 ECHR. The court accepted that authorities such as R (on the application of MD) v Secretary Of State For The Home Department [2014] EWHC 2249 (Admin), [2014] All ER (D) 114 (Jul) illustrated that delays in accessing medical treatment or inadequate response to medical needs of a detainee could engage Article 3 ECHR, particularly where the potential impact on the detainee was serious.

However, the court found that the claimant was not showing discernible signs of being at risk of medical deterioration or was otherwise in need of medical attention. The claimant did appear bewildered at times but the police were reasonable in construing that as the effect of drugs. As HHJ Saggerson stated: ‘Bewilderment, even when combined with a strong, subjective sense of isolation and abandonment (for what cannot have been more than about 2 hours during part of which the claimant was asleep) does not, in my judgment, objectively represent a high level of suffering even given the need for most stroke victims to be treated quickly’ (see paragraph 85 of judgment).

As to the system employed by the defendants in such a situation, the court considered that Article 3 ECHR did impose a positive operational duty which was owed to detainees such as the claimant. The claimant had to establish there was a real and immediate risk of ill-treatment within the meaning of Article 3 ECHR, whereupon the defendants had to show they took reasonable steps within their system to address that risk.

The court relied heavily upon the expert FME evidence. In particular, HHJ Saggerson found that the experts were in agreement that there was no requirement for the second defendant's call-handler to probe further behind the information she was given by the police or to make further enquiries. The second defendant did not have constructive knowledge of a medical emergency and its system for processing non-urgent call outs was reasonable. Notwithstanding the claimant’s criticism that the geographical area covered by the FME was excessively large to be a safe system, in the context of a non-urgent call-out, the geographical area was relevant only to the viability of sample for the purposes of RTA 1988, s 4.

As to causation, the court confirmed the test as set out in Daniel and another v St George's Healthcare NHS Trust and another [2016] EWHC 23 (QB), [2016] All ER (D) 197 (Jan), in the context of Article 2 ACHR also applied to Articles 3 and 8 ECHR. The court emphasised that the claimant had to show that any violation of Articles 3 and 8 meant he had a lost a real or substantial chance of his medical condition being mitigated. In the claimant’s case, the court accepted that a relatively low percentage (6.7%) would constitute ‘a substantial chance’. However, the court found that the claimant’s actual chance of a better outcome was between 1 and 2%, which was negligible and not substantial.

Thus, although the claimant failed to prove causation, this was only because the court preferred the expert evidence of the defendants’ neurologist. The court criticised the claimant’s neurologist for being too wedded to statistics, as opposed to the circumstances of the claimant’s individual case.

With regard to Article 8 ECHR, the court found that there was no ‘threshold’ requirement for interference with private life under Article 8.1 ECHR.  The court accepted in principle that ‘there will be cases where the difference in approach is capable of producing a different result to that arrived at under Article 3’ (paragraph 109). This case was not, however, one of them.

The court therefore dismissed the claims against both defendants.

In considering damages, the court accepted that a broad-brush approach on ECHR principles would have been appropriate had the claimant been successful. The schedule of damages pleaded in excess of £464,000 was appropriate to a domestic personal injury action but not to an action for breach of ECHR. The court held that the appropriate figures would have been £10,000 for non-pecuniary damages and £15,000 for pecuniary losses.

Gurion Taussig appeared for the second defendant in this case.


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