Human rights may not plug the gap

When pursuing actions against public authorities, it is tempting to supplement private law delictual claims with a human rights argument. Public authorities are bound to act in compliance with the ECHR, and lawyers may see this obligation as an attractive way to “sneak a claim in under the radar” where a private law breach of duty is not obviously made out. However, the recent English decision in Razumas v Ministry of Justice [2018] EWHC 215 (QB) demonstrates that this approach will not automatically be successful.

Why the negligence claim failed

Razumas spent significant periods in the custody of various English prisons between 2010 and 2013. During this time, a number of medical appointments were made for him but not communicated to him as a result of administrative failures on the part of the prison healthcare providers. Unfortunately, this meant that a tumour in Razumas’s calf was not identified and his leg required subsequent amputation.

Razumas raised an action for clinical negligence, not against his treating doctors or the companies contracted to provide medical services within the relevant prisons, but against the MoJ. His position was that:

(a) the MoJ owed a non-delegable duty of care to secure reasonable medical care for those in its custody; and

(b) the MoJ was vicariously liable for the actions of those involved in the management of his care, notwithstanding the fact that they were employed by external contractors.

Mrs Justice Cockerill held that while the defendant did have a duty of care towards prisoners in relation to healthcare, that duty was limited to ensuring that there were systems allowing access to healthcare, which there were. Any clinical breach which led to Razumas’s injury was a result of the actions of the healthcare practitioners. The argument based on vicarious liability also failed on the basis that healthcare provision was not sufficiently connected to the purposes of the MoJ. 

The human rights claim

Razumas also submitted an alternative ground of liability on the basis of the MoJ’s breach of his article 3 right to protection from degrading treatment. His position was that the successive failures to provide the requisite medical assistance constituted behaviour which amounted to degrading treatment. This argument failed on three key points.

First, Mrs Justice Cockerell held that the claim was time barred. Section 7(5) of the Human Rights Act 1998 requires proceedings to be brought within one year of the alleged breach, subject to equitable extension by the court. Razumas’s claim was raised four years after the latest purported breach and, on the basis that he had continuous access to legal advice during this period, there was no reason to provide an equitable extension of the deadline.

Secondly, the court held that Razumas had raised his action against the wrong public authority. This finding stemmed from the same reasoning as in the private law claim. Any duty to treat his condition was not a duty for the MoJ but for the medical practitioners who dealt with him. Any more limited duty to provide access to healthcare services had been discharged. 

Finally, it was held that the treatment in question did not reach the minimum level of severity to amount to a breach of article 3. Whilst there have been cases where the Strasbourg court has held that denial of healthcare to prisoners constituted a breach, the treatment endured by Razumas was not comparable with the severity of the treatment in those cases.

Consequently, on both procedural and substantive grounds, the human rights claim was dismissed. 

Nothing to add

It is easy to see why Razumas’s lawyers believed a human rights argument might assist in identifying a ground for reparation in this case. However, the case provides a reminder that many private law cases will not receive any substantial benefit by the inclusion of such an argument. On procedural levels, the limitation period for a personal injury action in Scotland is three times longer than in a Human Rights Act claim, and on a substantive point, much of the consideration as to whether a private law duty exists is substantially similar to whether there was an ECHR breach.

John Blackie has previously argued that: “free-standing human rights claims add nothing of practical use to a litigant to whom there is no duty of care in delict, or where there is, but there is no breach of that duty” (“Liability of Public Authorities and Public Officials”, in Reid and Visser, Private Law and Human Rights, 2013). Razumas provides a timely reminder of that point.