Legal Commentary: Human Rights arguments in medical negligence cases

Blurred out hospital ward

Joanne Gosney from Digby Brown’s Clinical Negligence team, examines the human rights implications and domestic legislation that need to be considered and addressed in medical and clinical negligence cases and provides some top points to consider.

The recent Mid Staffordshire Hospital scandal has highlighted the approach of some English firms in using the Human Rights Act in medical negligence case. Claims are generally brought by elderly victims or relatives of the deceased victim.

Lawyers from Leigh Day, a large English firm, brought claims against Mid Staffordshire NHS Foundation Trust under the Human Rights Act (HRA). Such was the severity of the abuse, Leigh Day argued, that Articles 2 – Right to Life, Articles 3 – prohibition of Torture and inhuman and degrading treatment and Article 8 – right to respect for a private and family life had all been breached by the Trust. As evidence of these breaches, examples were given of 70% of clients reported to have been left to sit in faeces or urine for extended periods of time, at times for up to four or five hours, food and drink was left out of reach with thirsty patients forced to drink water from flower vases. Examples were also given of patients suffering from severe pain denied pain medication for up to 15 hours.

120 cases have been successfully settled to date with compensation recovered totalling over £1million. This sounds substantial but when you break this down this must mean awards of just over £8,000 per case.

Relevant Human Rights Convention Articles

Article 2 – Right to Life
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Article 3 – Prohibition on Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

What is not clear is in what circumstances there will be a breach of Article 3. There have been a number of cases before the Courts on this issue. It appears that the treatment must amount to gross negligence, unless the person is detained under mental health law.

Article 8 – Right to Respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.

Relevant domestic legislation

Human Rights Act 1998 & Scotland Act 1998. See also Scotland Act 2012 re. actions against Scottish Minsters

Human Rights Act 1998
Section 7 (1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b)rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(5)Proceedings under subsection (1)(a) must be brought before the end of—
(a)the period of one year beginning with the date on which the act complained of took place; or
(b)such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Main points to remember:

  • It is important to remember the 1 YEAR TIMEBAR LIMIT!!
  • It is also important to note that Human Right claims can only be pursued against public bodies and not against individuals or private organisations. Care home cases involving the elderly are therefore unlikely to fall within the ambit.
  • A Human Rights argument can be raised at the same time as a negligence argument
  • The HRA extends the power to award damages for a breach of the Convention rights under the Act to any court that already has the power to order compensation in a civil case. In considering whether to award damages, the court will have regard to the principles applied by the ECHR. Courts have recently stressed that in many Human Rights cases it will be a finding of an infringement that is the result and damages will rarely be awarded.
  • It has to be the ‘victim’ who brings the case. The Convention provides no guidance as to the meaning of ‘victim’. It is clear from the decisions of the ECtHR that the Court takes a broad view in determining whether a person is capable of claiming to be a ‘victim’ of a breach of Article 2 of the Convention.

More information

Digby Brown have extensive experience in clinical and medical negligence compensation claims and litigation and access to a comprehensive network of medical and other experts throughout the UK to assist with the assessment and, where appropriate, pursuit of claims.

Sue Grant, head of the Clinical Negligence Department, has more than 20 years experience in personal injury and clinical negligence litigation.  Chambers Guide to the UK Legal Profession ranks Sue as band one “Leader in their Field” under Clinical Negligence.