DANIEL V ST GEORGE’S HEALTHCARE NHS TRUST AND LONDON AMBULANCE SERVICE  EWHC 23 (QB)
Surrey Personal Injury – Human Rights, Actions against the Prison Service and Clinical Negligence in Prisons
The Claimants were the former foster father and the biological son of the foster father, of JB, who was a prisoner on remand at HMP Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. The First Defendant ("St George's") was a National Health Service ("NHS") Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save the Claimant’s life on the day of his death. The Second Defendant ("the LAS") was a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth was within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived.
The Claimants brought their claim for declarations and damages under the Human Rights Act 1998 ("HRA 1998"), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights ("ECHR"). They alleged that the servants and agents of St George's acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that Sister Gbolie failed to request an ambulance sufficiently promptly, either on arrival at JB's cell or within 1 to 2 minutes of her arrival. They also alleged that the servants and agents of the LAS acted contrary to their duties under section 6 of the HRA 1998 and Articles 2 and 3 ECHR in that there was unnecessary or unreasonable delay in the dispatch of an ambulance.
The issues in dispute were:-
i) Was the operational duty under Article 2 engaged as a matter of principle?
ii) What was the relevant causation test to be applied?
iii) If the operational duty under Article 2 was engaged, was there a violation of that duty on the facts?
iv) Did the Defendants' acts or omissions cross the threshold of inhuman and degrading treatment within the meaning of Article 3?
v) Were the Claimants "victims" within the meaning of section 7 of the HRA 1998?
Mrs Justice Lang considered Article 2 of the ECHR and the following cases:-
- LCB v UK 27 EHRR 212
- Makaratzis v Greece 41 EHRR 1092, at 57.
- Vo v France (2005) 40 EHRR 12
- Calvelli & Ciglio v Italy, App. No. 32967/96
- Powell v United Kingdom App. No 45305/99
Applying Powell, the Defendants submitted that, since there was no allegation of systemic failure in this case, the alleged errors by an individual nurse and Emergency Medical Dispatcher in the course of their duties were not capable of amounting to a violation of Article 2. Lang J said that in her view, that submission was too broad.
In Savage v South Essex NHS Trust  1 AC 681. Lord Rodger analysed the authorities which have held that, because the State had assumed responsibility for the welfare of detainees, and had control over them, there was a heightened duty on the State to protect their Article 2 rights. He explained that the discharge of this duty is likely to require (1) specific systems/procedures to cater for risks to life commonly arising in a prison or other place of detention; and (2) preventative operational measures in respect of an individual detainee where the authorities knew or ought to have known of a real and identified risk to his life. Addressing the case of Powell, Baroness Hale said that Article 2 would not be engaged by "ordinary medical negligence", provided proper systems were in place. But "in some circumstances an operational duty to protect a particular individual was triggered" if the conditions established in Osman v United Kingdom 29 EHRR 245 were met, as for example, in Keenan v United Kingdom (2001) 33 EHRR 38. Moreover, the analysis of Lord Rodger and Baroness Hale on this issue was followed in Rabone v Pennine Care v NHS Trust (2012) 2 AC 72.
The application of the operational duty had developed incrementally. It might be broadly categorised as follows:
i) Protection from attack: Osman (killing of victim of threats and harassment); Van Colle v Chief Constable of the Hertfordshire Police  1 AC 225 (witness in criminal proceedings killed by the accused following threats).
ii) Detainees: Keenan v United Kingdom (2001) 33 EHRR 38 (suicide of mentally ill prisoner); Edwards v UK (2002) 35 EHRR 47 (prisoner killed by cell mate); Savage v South Essex NHS Trust  1 AC 681 (compulsorily detained mental patient absconded and committed suicide).
iii) Informal psychiatric patients at risk of suicide: Rabone v Pennine Care v NHS Trust (2012) 2 AC 72 (voluntary psychiatric patient committed suicide on an authorised home visit).
iv) Protection from risk created by state authorities: LCB v United Kingdom (1998) 27 EHRR 212 (death from radiation exposure); Oneryildiz v Turkey (2004) 41 EHRR 20 (death in a waste dump explosion)
On a number of occasions, the ECtHR had held that a failure to provide timely and appropriate medical care to a detainee, could be a violation of Article 2, even in cases where the allegation was a failing on the part of individual police or prison officers, rather than a systemic failing.
- Anguelova v Bulgaria (2004) 38 EHRR 31
- Tais v France App. 39922/03
- Kats v Ukraine (2010) 51 EHRR 44
- Tarariyeva v Russia (2009) 48 EHRR 26
- R (Greenfield) v Secretary of State for the Home Department  1 WLR 673
- Sarjantson v Chief Constable of Humberside Police  QB 411
Laing J then considered the evidence. JB had a history of alcohol and cannabis dependency; mental illness (including psychiatric in-patient treatment); asthma; Crohn's disease and arthritis. His blood pressure was intermittently high whilst in prison. He said he was taking medication for hypertension but this was not confirmed by his G.P.'s notes. Dr Salim, the independent medical reviewer, concluded that his intermittent hypertension was unlikely to have contributed to the myocardial infarction and cardiac arrest. This finding was not challenged.
JB on the day of his death had suffered the beginnings of a heart attack, and a nurse on duty had been called to his cell. She and other nurses had applied treatment to him, but he had died. An ambulance had been called, but it arrived too late.
Laing J said that in her view, JB's mental health had no bearing on the events of 8 September, or the treatment which he ought to have received. As to his physical health, the only relevant condition was that he was asthmatic. Importantly, JB had no known history of cardiac disease and had no symptoms suggestive of coronary heart disease. The time that it took the nurse to reach JB's cell was reasonable, bearing in mind the size and layout of the prison. She acted reasonably in going to the treatment room to collect equipment, and then in selecting the equipment which she was likely to need, and which she could carry relatively easily and quickly. Both nursing experts were of the view that it was reasonable for her not to call for an ambulance until she had arrived at JB's cell and assessed his condition. Both nursing experts were of the view that, upon arrival at JB's cell, the reasonable professional response of a trained nurse was to assess JB's condition before deciding whether to call for an ambulance. The difference between the experts was that the Claimants’ expert considered that, after an initial assessment lasting only 1 or 2 minutes, the nurse should have asked for an ambulance to be called, whereas the First Defendant’s expert, considered that the nurse acted professionally and reasonably in first attempting to treat JB for an asthma attack, and only calling for an ambulance once he did not show the expected improvement, and instead deteriorated. The difference in view between the experts turned on a matter of a few minutes. Overall, Laing J preferred the Defendant’s expert. The nurse’s treatment to JB was appropriate and reasonable.
Laing J then turned to the claim against the London Ambulance Service (LAS).It was not in dispute between the paramedic experts that it was both appropriate and necessary for LAS to use a system such as the one that was actually in use, to assess and prioritise calls because ambulances and paramedics were a limited resource which had to be allocated according to need. That system (“MPDS”) was a well-established and highly-respected system for ambulance dispatch, used world-wide. It was intended to be used alongside national and local protocols which would determine what level of response should be allocated to the determinant code generated by MPDS, depending upon locally assessed priorities and available resources. On the basis of evidence of the Defendant’s expert (which Laing J preferred) she concluded that the LAS system was not unreasonably inflexible. Taking into account all the evidence, Laing J considered that LAS took all reasonable steps to respond to this call, and did so within a reasonable period of time.
Laing J turned to the issue of causation. The legal test of causation was whether there was a failure to take reasonably available measures which could have had a "real prospect of altering the outcome". Put another way, the Claimants had to establish that JB "lost a substantial chance of avoiding the outcome". The fact that, judged with the benefit of hindsight, a Convention-complaint response would not have prevented the outcome, was not relevant to liability. In the light of all the evidence, Lain J did not consider that the Claimants had succeeded in establishing, on the balance of probabilities, that, even if the nurse had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a "real prospect of altering the outcome" or that JB "lost a substantial chance of avoiding the outcome".
The claim under Article 3 was unarguable, in my view. The nurse acted promptly, reasonably and professionally and did all she could to save JB's life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. The conduct of the Defendants could not amount to "inhuman or degrading treatment" for the purposes of Article 3.
In relation to victim status, by subsection 7(1) of the HRA 1998, a person might only bring a claim if he was a "victim of the unlawful act" complained of. Subsection (7) provided that "a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act". Article 34 of the Convention provided that the court may receive applications from any person claiming to be the victim of a violation of a Convention right, but did not define the term "victim". The status of "victim" was an autonomous concept which the ECtHR interpreted independently of domestic law rules on capacity and standing. In principle, therefore, the class of victims of an Article 2 violation might well extend beyond the class of persons entitled to seek financial compensation for a death under domestic law. Laing J referred to the following authorities:-
- Savage v South Essex NHS Trust  1 AC 681
- Rabone v Pennine Care NHS Trust  2 AC 72
- The "Practical Guide on Admissibility Criteria" (2015) 60 E.H.R.R. SE8
In the judgment of Laing J, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess:
i) the nature of the legal/family relationship between the Claimants and JB;
ii) the nature of the personal ties between the Claimants and JB;
iii) the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer;
iv) involvement in the proceedings arising out of JB's death.
In her view, the ECtHR would not be likely to treat foster parenting as automatically giving rise to a lifelong family/legal relationship analogous to a biological or adoptive parent, because foster parents do not have parental responsibility; foster placements are temporary and may be brief; and foster parents are providing a service to the local authority for reward. However, the ECtHR might accept that a foster parent was an indirect victim on the particular facts of the case. Some examples (by no means exhaustive), were (1) if the alleged Article 2 violation occurred during the currency of the foster placement; or (2) if the foster placement lasted for a very long period representing most of the child's minority; or (3) if the foster parents and child had voluntarily entered into an informal parent/child relationship which transcended the limits of a conventional foster placement and continued after its termination.
Laing J accepted that both Claimants maintained personal relationships with JB after the end of the foster placement.
As the Claimants did not live with JB, and were not in any way dependant upon him, his death had no practical impact upon them. However it had caused them suffering.
The First Claimant had taken a very active role in pressing for an investigation into the circumstances of JB's death and criticising those whom she believed to be at fault. The Second Claimant seemed to have a secondary role, supporting his mother.
Laing J was “just” persuaded that the ECtHR would be likely to be satisfied that the First Claimant was an indirect victim under Article 34. She was not satisfied that the ECtHR would find that the Second Claimant was an indirect victim under Article 34.
For the reasons set out above, the Claimants had failed to establish violations of Articles 2 or 3 and their claim against both Defendants was dismissed.