Medical Negligence and Human Rights

Hospital corridor

The recent Stafford 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. 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 impressive but when you break this down this must mean awards of just over £8,000 per case.

Why don’t we use the Human Rights Act more often in Scotland to pursue claims arising from significantly poor treatment? The answer probably lies in the following reasons

  • There is a one year time limit for claims
  • 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. Awards are low and therefore funding for a claim may be difficult to find.
  • Human Right claims can only be pursued against public bodies and not against individuals or private organisations. Cases involving care of the elderly in Care Homes are therefore unlikely to fall within the ambit.
  • It has to be the ‘victim’ who brings the case.

So while the HRA may provide one means of seeking redress for poor quality care, it will not be the answer for most who suffer unnecessarily.