Ministry of Justice not liable for clinical negligence in prison

26 February 2018 by Dominic Ruck Keene

In 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.