Human Rights Act makes inroads into clinical negligence

A recent Court of Appeal ruling has provided further guidance on the appropriate legal test to be applied when considering whether Article 2 of the Human Rights Act 1998 is breached. Anna Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375 concluded that in cases where patients die while detained under the Mental Health Act 1983 (‘MHA’), the legal test is lower than the test for ‘gross negligence’ and should be no different from that of prisoners who are confined by the State.

The case concerned Mrs Savage, who committed suicide after absconding from Hospital, where she had been detained pursuant to section 3 of the MHA. Her daughter, the appellant, sought damages under the Human Rights Act 1998, on the basis that her mother’s right to life under Article 2 HRA had been breached. The claim centres around allegations of negligence, but while these are matters still to be decided at trial, both parties agreed that any shortfall in the care was insufficient to amount to ‘gross negligence’.

Before trial, the Trust made an application to the Court to determine the proper legal test necessary to establish a breach of Article 2 as a preliminary issue. Whilst there was no direct authority on the point, Mrs Justice Swift agreed with the Trust that in these circumstances it was necessary to establish ‘gross negligence’ and struck out the claim. On appeal, the Court of Appeal found for the appellant, stating that the correct test to be applied was not ‘gross negligence’ but the test adopted in Osman v UK (2000) 29 EHRR 245, namely that (on the facts of the present case):

‘the claimant must show that at the material time the Trust knew, or ought to have known, of the existence of a real and immediate risk to life from self harm and it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk’.

The Osman test is not the same as the common law test for negligence. Whilst there is an assumed duty of care, there is no mention of the Bolam test, an important cornerstone in clinical negligence cases, and the judgment does not refer to negligence. As this was an appeal on a preliminary issue, no guidance has been provided on the application of the Osman test and so there is uncertainty as to how the test will be applied in practice.

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Comment

Arguably there is scope for an increase in the number of claims as the criteria for a “victim” (the eligibility criteria under the Human Rights Act) is broader than statutory criteria for ‘dependants’ in negligence claims under the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976 and more claimants may qualify. The courts must still take account of any other relief granted before making an award of compensation for breach of Article 2, that making an award is necessary to afford ‘just satisfaction’ to the victim and awards under the Human Rights Act are generally lower.

The case is subject to an application for permission to appeal to the House of Lords so there may yet be further interesting debate on these issues.

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Extended limitation for sexual assault claims

The decision of the House of Lords in A V Hoare and others [2008] UKHL 6 to overrule Stubbings v Webb [1993] AC 498 may widen the opportunity for victims of sexual assault to bring claims many years later. Six appellants in unrelated claims for sexual assault appealed against decisions dismissing their claims on the basis that they were time-barred under the Limitation Act 1980 (the Act).

The general rule in an action for tort is that the period of limitation is 6 years from the date on which the cause of action accrued (Section 2, Limitation Act 1939 now section 2 of the Act). All the claimants in Hoare started proceedings well after the 6 year period had expired. However, Section 2(1) of the Law Reform (Limitation of Actions) Act 1954 reduced the period to 3 years in cases for 'damages for negligence, nuisance or breach of duty' where the damages consist of or include damages for personal injury (Section 11 of the Act) with the period running from the date when the cause of action accrued or the 'date of knowledge' (as defined in section 14 of the Act) and the limitation period can even be disapplied altogether in appropriate cases (Section 33 of the Act). In Stubbings the House of Lords had decided unanimously that Section 11 did not apply to a case of deliberate assault, including acts of indecent assault. This created an anomaly; a fixed 6 year limitation period for trespass but an extendable (and therefore potentially preferable) 3 year limitation period for an injury caused by negligence.

The House of Lords decision to overrule Stubbings does not come as great surprise, the decision having been described as anomalous by the Law Commission when reviewing this area in 2001. It recommended a uniform regime for personal injuries in respect of limitation whether the claim was made in negligence or trespass to the person. No steps were ever taken to implement any further legislation, perhaps as Lord Hoffman suggests in the Hoare judgement because the Commission's recommendations were not confined to the Stubbings anomaly but proposed a completely new law of limitation.

The House of Lords has now accepted that Stubbings was wrongly decided. The effect is to bring this category of case within Section 11 of the Act, thus allowing the court to exercise its discretion under Section 33 to disapply the limitation period altogether.

This decision disposed of all but one of the appeals, the case of Young who had hoped to avoid the effect of Stubbings by bringing a claim for sexual abuse against the employees at a residential school and detention centre alleging 'systemic negligence' in the management of the institutions. The House of Lords gave guidance on the construction of the legislation relating to Section 14 and concluded that the generous approach to ‘date of knowledge’ (i.e when the appellant would have considered the injury sufficiently serious to take steps to bring a claim) was incorrect. The correct approach was to ask whether what the appellant knew about the injury he had suffered and with that knowledge of the injury he would reasonably have considered it sufficiently serious to justify instituting proceedings. Mr Young was held to have knowledge of the abuse at the time that it occurred. The decisions in the other cases do still allow Mr Young to invite the court to exercise its discretion under Section 33 to allow his claim to continue.

Comment

The situation of a victim of sexual assault is one that will always arouse sympathy. This is especially where the abuse arose in an environmental setting such as a hospital or care home. Victims are often vulnerable due to age (very young or elderly) or disabled by illness. Even if there are good reasons to fix them with a date of knowledge outside the limitation period, there may be good reason for the court to exercise its discretion to disapply the limitation period. The number of cases following this category are unlikely to be significant, but the decision will be a very important one for those who do recover. For those who don't recover the reasons will now be more robust and less the result of what has come to be seen as an inconsistent anomaly.

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Patient Safety trumps libel claim against NHS Trust

In Jide Akinleye v East Sussex Hospitals NHS Trust [2008] EWHC 68 (QB) personal information passed from one Trust to another regarding a doctor’s professional ability was held to be protected by qualified privilege and was not malicious for the purpose of bringing a libel claim. The Defamation Act 1996 provides a statutory defence of qualified privilege for material that is of public concern and for the public benefit. Mr Akinleye’s employment was terminated by Trust A following concerns raised about his ability as an echo-cardiographer. Trust A undertook an internal audit of his work to identify any potential patient safety issues and in doing so contacted his previous employer, Trust B, to enquire whether it had any concerns over his ability. Trust B responded to the enquiry by email and stated that Mr Akinleye was not trained in echo-cardiography and should not be undertaking such work. They went on to state that his standard of work was adequate, but not exceptional or even good, that he owed Trust B rent and that he had come under suspicion about the theft of an echo-cardiograph machine. Mr Akinleye issued libel proceedings against Trust B alleging the email would be understood to mean that he was professionally incompetent, suspected of criminal conduct and had behaved immorally. The issue for the court to consider was whether the publication of the words in the email was covered by qualified privilege and if this was the case whether Mr Akinleye had a real prospect of success of overcoming that defence by showing that it was malicious. The court dismissed the claim stating that the enquiry by Trust A was serious and affected patient safety. Trust B could and was perhaps even bound to provide the other Trust with the information. The judge at trial was likely to find that the whole of the email was protected by qualified privilege. Furthermore there was no evidence to suggest that Trust B did not honestly believe that the contents of the words in the email were anything other than the truth and there was no malice. Summary judgment was given for Trust B.

Comment

While Trusts clearly have to take care when providing information regarding current or ex-employees (or patients) to third parties, it is clear that where the information passed on is done so honestly and in the public interest with the intention of protecting patient safety then there is a defence to a claim for libel.

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