More than negligence: considering claims under the Human Rights Act 1998

Posted: 28/02/2020

Sustaining an injury through clinical negligence is often an extremely painful and distressing experience. In the elderly, an injury can frequently lead to a dramatic change of lifestyle if a complete recovery is not achieved. In some tragic cases, negligence can even lead to death.

In the majority of cases where a breach of duty can be proven and is shown to have caused injury or death, a negligence claim will adequately address the wrongdoing and allow the injured person or their personal representatives/dependants to recover compensation. However, in some cases, the circumstances giving rise to the claim also meet the criteria for a claim under the Human Rights Act 1998. It is therefore important to consider whether such a claim can be pursued alongside a clinical negligence claim. 

The Human Rights Act is designed to protect a person’s basic rights, such as the right to life and privacy. Fortunately, most people in the UK will only come across it when watching the news rather than having to cite it for personal reasons.

A Human Rights Act claim can be considered if the injured person was a victim of a public authority acting incompatibly with the European Convention of Human Rights. In the clinical negligence context, this could apply to NHS trusts providing care, local authorities providing social and residential care and individuals who have been detained under the Mental Health Act or who are subject to a deprivation of liberty order.

In the context of a clinical negligence claim, the majority of cases will surround a breach of one of the following articles of the Human Rights Act:

• Article 2: everyone’s right to life shall be protected by law;
• Article 3: no one shall be subjected to torture or to inhuman or degrading treatment or punishment;
• Article 5: everyone has the right to liberty and security of person; or
• Article 8: everyone has the right to respect for their private and family life.

In order to successfully show that the articles of the Human Rights Act 1998 have been breached, strict criteria must be met.

For example, negligence leading to the death of the injured person does not automatically mean that Article 2 has been denied. To successfully prove that this right has been breached, the harm must usually have been caused by systematic failings of the institution, rather than the negligence of one or a few individual clinicians.

There must have also been a sufficient degree of control over the injured person’s welfare by the state or a private organisation providing public functions. For example: detaining the person in question or providing them with inpatient medical or nursing care.

If these criteria are met, the claim could still fail unless it can be shown that there was a real and immediate risk to life at the time of the harm. Prior case law has defined ‘real and immediate’ as a substantial or significant risk which is present and continuing. Any harm must therefore be caused by more than a chance failing.

A common scenario in which the clinical negligence team at Penningtons Manches Cooper has considered Article 2 breaches is in the context of vulnerable patients subject to deprivation of liberty orders in state-funded care homes.

Similarly, the threshold for proving a claim under Article 3 is also high. The Act confirms that ill treatment only amounts to torture where it is deliberate and causes very serious and cruel suffering. In the context of a negligence claim, suffering caused by a negligent act alone is unlikely to satisfy this requirement unless deliberate abuse can be proven.

As with a clinical negligence claim, damages can be awarded in successful Human Rights Act claims. If a clinical negligence claim is ongoing as well, these will be offset against any damages awarded in the Human Rights Act claim to avoid any double recovery. However, compensation is not the primary objective of the Human Rights Act. The main purpose of a Human Rights Act claim is to hold the state to account for failing to uphold universal rights, to highlight institutional failings and remedy these appropriately so that rights are protected.

Laura Tonna-Barthet, associate in Penningtons Manches Cooper’s clinical negligence team and a member of its specialist elderly care and falls team, commented: “A Human Rights Act claim is not intended to replace a clinical negligence claim. Instead, the two can run alongside each other where possible, with the Human Rights Act claim providing a further tool to allow the legal team to explore significant systemic failings in care that require change to avoid similar occurrences happening again. Members of our specialist elderly care and falls team have experience in considering the care provided to vulnerable individuals in the context of both clinical negligence claims and the Human Rights Act to ensure that any and all failings are appropriately addressed.”

For more information on elderly care claims and hospital falls, click here.

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