Watling v Chief Constable of Suffolk [2019] EWHC 2342 (QB)
This article originally appeared in Issue 4 (March 2020).
The High Court rejected a claim that a failure to recognise the signs of a stroke in a detained person and transport him to hospital entailed breaches of his human rights.
In the early hours of 18 May 2014, the Claimant was driving home from a visit with a friend. He was stopped by the police, who had observed him driving erratically. In fact, he had suffered a sudden stroke.
There was no smell of alcohol and a breath test was negative, but the police suspected that he had been driving under the influence of drugs. He was arrested and transported to a nearby police station. A Forensic Medical Examiner (“FME”) was called, but a medical assessment did not take place until around two hours later (outside the one-hour target time). Upon examination, he was conveyed to hospital, but despite treatment was left significantly disabled.
The Claimant brought an action against the police and G4S (the company contracted to provide the FME services) for acting in violation of his Article 3 and 8 rights under the European Convention on Human Rights (“ECHR”). Initially, he had also sought damages for false imprisonment and negligence giving rise to personal injury. Those claims were not pursued to trial, however, in part because the evidence had shown that, on the balance of probabilities, earlier medical attention would not have yielded a better result. Focusing on the human rights claims would lower the causation threshold for the Claimant, who would need to show only that there was a failure to take steps which had had a real chance of altering the outcome or mitigating the harm (see Daniel v St George’s Healthcare NHS Trust [2016] 4 WLR 32, quoting from Simor & Emmerson, Human Rights Practice (2015)).
It was said to be common ground between the parties that a failure to provide appropriate medical care to a detained person could, in principle, constitute a violation of their Article 3 rights, and the majority of the judgment focuses on the Article 3 claim. After determining that G4S was a public body for the purposes of the litigation (as a “hybrid” public body carrying out a relevant public function under section 6(3)(b) of the Human Rights Act 1998), the court considered the two ways in which it was alleged that one or other of the Defendants had contravened Article 3 by exposing the Claimant to inhuman or degrading treatment:
1. It was alleged that there had been a breach of the positive “systems duty” under Article 3 i.e. a duty to have in place adequate legislative and administrative systems to provide for the health of detained persons such as the Claimant, and thereby protect them from treatment or circumstances which might constitute inhuman or degrading treatment.
2. It was argued that there had been a breach of the positive “operational duty” under Article 3 i.e. the Defendants had an obligation to take further specific steps to protect the Claimant (e.g. by taking him to hospital) because they knew or ought to have known that he was at “real and immediate” risk of suffering inhuman or degrading treatment.
The Claimant argued that but for these failings, he would have been taken to hospital earlier for treatment, and had a realistic chance of a better recovery.
Both arguments were unsuccessful. The court carried out a detailed analysis of the evidence relating to the Claimant’s presentation in the police station and determined that the police officers reasonably concluded either that the Claimant was choosing not to engage with them, or was unable to due to the effects of drugs. The signs of a stroke were subtle and could be missed by someone who was not a doctor. That meant that their conduct did not reach the threshold of severity which Article 3 required, and the Claimant could not show that they knew or ought to have known that he was, actually or potentially, a medical emergency case, or at risk of any form of treatment prohibited by Article 3.
Further, the court found that the system in place (through the arrangements with G4S) was adequate, and so there was no breach of the systems duty. This was based largely on the evidence of experts with experience of out-sourced medical services.
Finally, the court noted that because Article 8 did not have a severity threshold requirements, there could be cases where Article 3 claims would fail but Article 8 cases would succeed. This was not one of those cases, according to the court.
It is a case which does not break significant new ground on matters of principle, but is a useful example of the way claims under Articles 3 and 8 of the ECHR can be advanced and defended in medical cases.
