FUNDAMENTAL DISHONESTY – YOU HAVE BEEN WARNED (HOPEFULLY)
I recently represented a claimant at trial in relation to a personal injury claim arising out of a road traffic accident.The def...
Benius Razumas v Ministry of Justice  EWHC 215 (QB)
In this case the claimant claimed damages from the MoJ for personal arising from clinical negligence and breach of his rights under ECHR art.3.
The claimant had been in prison for various periods between 2010 and 2013. It was common ground that, whilst in prison, the medical care the claimant had received for cancer was deficient in various respects, as a result of which he had to have his left leg amputated above the knee.
The issues included:
Direct duty of care
The nature of the custodial relationship meant that the MoJ owed the claimant a direct duty of care in relation to matters arising out of custody, such as providing a safe environment. The duty probably also extended to matters relating to access to healthcare. The MoJ had proper systems in place for enabling access to healthcare; there was primary healthcare in all prisons and systems in place to take prisoners to secondary healthcare appointments. The direct duty of care did not include responsibility to actively reinforce the role of healthcare operators.
115. My conclusion as to direct duty is that a direct duty does exist. However it is not the duty for which the Claimant contends, but a more limited duty. That some duty exists is indicated by the nature of the custodial relationship and is tacitly acknowledged by the Partnership Agreement which refers to an overriding duty of care.
116. The question is the substantive content of that duty. Logically that duty extends to matters arising out of custody; so a duty does exist to take care as to a safe environment, and also as to the less obvious risks such as that of suicide which has been found to be linked to the state of custody. The duty also probably extends to matters relating to access to healthcare; as indeed was conceded by the Defendant in its pleading. So if a PCT made provision for GP services for a prison, but the governor failed to put in place arrangements to enable the prisoners to attend the GPs at all, a duty owed by the Defendant would have been breached. That however is not this case. Although a case on denial of access was advanced, there was no evidence that the systems for enabling access to healthcare were defective – there was primary healthcare in all the prisons and systems in place to take prisoners to secondary healthcare appointments. The Defendant facilitated this, by arranging the taxi transfers and paying up front, though it was later reimbursed by the healthcare system in line with its budgetary responsibility for prison healthcare.
119. The question of how the duty manifests in concrete situations where in practical terms the custodial relationship and the healthcare relationship coincide was not addressed in those terms but is inherent in the arguments advanced, which specifically were that (i) there is a duty to actively ensure communication of appointments (inferentially even those not actually known to custodial staff) because the lack of communication of the appointments to the prisoner is a facet of the custodial relationship and (ii) that there is a duty on the custodial staff to actively raise the question of medical hold themselves (effectively in case the healthcare staff failed to do so). Given the existence of systems on the healthcare side, this essentially would mean a duty to act as a safety net not just in terms of establishing systems, but in day to day operations. I do not consider that such a duty is made out. Both these aspects, it seems to me, are ones where the prison role effectively comes back to clinical governance. Against the context of the assumption of healthcare responsibility by the NHS/PCTs taken together with the steps taken to ensure that healthcare providers had systems in place to provide equivalent care to the extent possible in the prison context the assumption of responsibility by the Defendant goes no further than the clinical governance responsibility adverted to above. It does not include a responsibility to actively reinforce the role of the healthcare operators on day to day matters.
120. However this, it seems to me, is insufficient to assist Mr Razumas on the facts of this case, as there is no custodial part of the relationship which went wrong, and there is no part of the oversight of systems which has been established to be deficient.
121. I would accept the submissions of the Defendant that there was no breach of any direct duty. In particular:
i) In January 2011 (putting causation aside) the Defendant's staff would have known nothing about his appointment at the time of Mr Razumas' discharge, so they could not have informed him of it. After his discharge it is dubious whether any duty would persist, but in any event, there was again nothing for them to pass on, since the information would entirely properly never have emerged from the SystmOne system to which they did not have access. The GPs agreed that the healthcare professionals had no obligation to do more than file the letter on the system;
ii) As regards August 2011 there are two aspects to this. As regards the failure to inform Mr Razumas of the appointment during his appointment with Dr Ekpo, that could only be a healthcare failing. However I do not consider that it was such a failing, in circumstances where (i) there were plainly reasons which made the policy of not informing prisoners of appointments reasonable, even at a late stage in the day (because, for example, a scheduled discharge might be delayed by a penalty or the existence of other charges) and (ii) there was a system in place to ensure such appointments were communicated prior to discharge (the discharge meeting with healthcare); i
ii) As regards the discharge meeting, if there was no discharge meeting or it took place without informing Mr Razumas, this was plainly a failing by healthcare. Although no healthcare worker was called on this point, I consider I can infer from the records (which should have been completed if such a meeting took place and would almost inevitably be the best source of evidence on this point) either that no such meeting took place or that it was not properly completed. It follows there was such a healthcare failure. But was it also a failing by administrative staff and hence the Defendant? I do not consider that it was as I have indicated above. The problems with the argument are to an extent demonstrated by the fact that the Claimant in framing his complaint was driven to say it was a failing by the governor (Mr Tullett) in that he should have ensured that such a meeting took place. This indicates that it has not proved possible to identify a fault in the administrative process nearer to the specific event and as I have indicated I do not consider the duty in relation to clinical governance extended beyond systems oversight and (probably) known issues;
iv) In my judgment Mr Tullett had a role in ensuring that facilities were provided to enable healthcare services could be provided and also in enabling access to those services. He had in addition a limited role in clinical governance which (given the primary responsibility as to provision being on the NHS) was effectively limited to oversight of procedures and identified issues. There is no evidence that he did not have proper process in place to perform this role. There is no suggestion of a systemic failure which he should have spotted – indeed an inspection report by HMIP eight months before this incident indicates that proper systems had been observed to be in place. The conclusion at which I arrive therefore is that there was a failing by healthcare in this case, but that failing did not also constitute a breach of duty by the Defendant;
v) As for September 2012, there is no evidence as to whether the Defendant's employees did not pass on the limited information they had, or as to whether the PER (the relevant portion of which was filled out by healthcare rather than custodial staff) did or did not reference the medical hold. I do not regard the evidential burden of proof to be discharged by the Claimant on either point. However even if either fact were established I would not regard a breach of duty as having been established;
vi) As regards the PER it would have been, prior to the arrival of the letter with the new appointment, a natural reading of the SystmOne entries that the medical hold had lapsed after the August appointment was attended. A failure to log the medical hold on the PER might well not be negligent in those circumstances. But in any event, the systems in place put the obligation on healthcare workers to fill out the PER correctly and to access the relevant records on a prisoner's arrival. The obvious breach of duty (failure to read the relevant SystmOne entries and take appropriate action) was a healthcare breach, and I do not regard the custodial staff as being negligent if they did not second guess the actions of the healthcare staff, who had greater access to relevant healthcare information.
122. I would therefore conclude that there was no breach of the duty owed because it was not the Defendant who breached any duty. At the relevant points in time it was the healthcare providers who committed the breach; I do not accept that there was a separate default by the Defendant.
The imposition of such an onerous duty would be exceptional, arising only where there was a special relationship antecedent to the act of negligence (Woodland v Swimming Teachers Association  UKSC 66 and Armes v Nottinghamshire CC  UKSC 60 applied). Custody was not enough: the claimant had to show that negligent healthcare was one of the particular types of risk which the MoJ had undertaken to protect him from when assuming his physical custody. Those risks did not include negligent medical treatment, which was different in nature. The provision of healthcare was not part of a prison’s mainstream or essential function, and formed no part of its statutory common law duty: that was the duty of primary healthcare trusts. The MoJ was under no non-delegable duty.
126. Thus the question of non-delegable duty comes into play if there is a duty owed but there is no actual breach by the Defendant – because he has entrusted the relevant care to someone else. The particular passages to which I have been referred and have had regard include:
i) Paragraph 7: Lord Sumption summarised the three critical characteristics of cases where such a duty arises: “First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's”;
ii) Paragraph 22: Lord Sumption recognised that the imposition of a nondelegable duty imposed a higher duty of care upon a defendant and that caution was needed to prevent the exception eating up the rule; “Nondelegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional”;
iii) Paragraph 25: in another note of caution Lord Sumption warned that when considering whether this more onerous duty applied courts should be sensitive about, “imposing unreasonable financial burdens on those providing critical public services”.
127. But the central part of the judgment is at paragraph 23, where he identified the five features which would need to be present before this more onerous duty could be imposed, thus:
“If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features: (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes. (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no control over how the defendant chooses to perform those obligations, ie whether personally or through employees or through third parties. (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it. (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”
137. So far as concerns the first of the five features at paragraph 23 the Defendant says that although the custody relationship between the Defendant and Mr Razumas is capable of giving rise to a non-delegable duty, custody is not enough; Mr Razumas must show (i) that negligent healthcare was one of the particular types of risk which the Defendant had undertaken to protect him from when assuming his physical custody and (ii) the other four features identified by Lord Sumption are present.
138. The Defendant says the argument fails on both limbs. First as to the type of risk, it submits that the prison undertook to protect from risks that arose from its control and custody over Mr Razumas; and these did not include a duty to protect against negligent medical treatment, which is different in nature. By reason of custody a prison assumes a responsibility to protect a prisoner from the risks that arise from the exercise of control. A medical duty arises not from control but from the patient’s consent to treatment, based on their reliance upon the medical practitioner’s skill and care; alternatively, by consenting to treatment, the patient entrusts his physical wellbeing to the care and control of a doctor, so giving rise to an antecedent relationship which involves an obligation upon that doctor to ensure that the treatment is performed competently.
151. Here the reasoning breaks down in the current case: the reason for the prisoner being in the hands of the prison is not for, and does not comprehend, healthcare. Healthcare is not (at least since 2003) part of the prison institution’s mainstream (or essential) function. It has not been outsourced by the Defendant. Here the position is a fortiori that in the case of A (A Child) v Ministry of Defence  QB 183, discussed in detail in Woodland and endorsed by Lord Sumption at , where a non-delegable duty on the part of the Army for healthcare was not made out because (Lord Phillips at ) there was “no sound basis for any finding … that secondary treatment in hospital … was actually provided by the Army (MoD) as opposed to arranged by the army”. Here healthcare is not even arranged by the Defendant.
153. Turning to this case there is a statutory duty regarding custody and maintenance. Those are duties which the Defendant has to fulfil. Neither of those are in question in the complaints made. There is a statutorily derived common law duty as to accessing healthcare. Again that is not relevant, as I have found above. But the provision of healthcare forms no part of the statutory or common law duty. That is the duty of the PCT and its subcontractors – as reflected in the statute and the other documents – including of course the arrangements for litigation following the legislative change.
The MoJ was not vicariously for the negligence of healthcare providers. The tort was not committed as a result of activity being taken by the healthcare providers on behalf of the MoJ but on behalf of their contracting counterpart, the primary care trusts. There was no relationship of employment or even delegation between the MoJ and healthcare providers.
174. On this issue, I cannot see how the Claimant's case meets the hurdles of the relevant test. Taking the questions in turn (leaving aside question 1 for now):
i) Was the tort committed as a result of activity being taken by the healthcare providers on behalf of the Defendant? No, the activity was undertaken on behalf of their contracting counterpart (directly or otherwise): the PCTs;
ii) Is the healthcare provider's activity part of the business activity of the Defendant? Only geographically. Substantially it is not. But it is (again) part of the PCT's business. I do not consider that the Claimant’s submissions on integration really bite. There is a limited crossover between healthcare and custody which can give rise to limited integration (such as use of PSOs in both contexts) but that crossover is again caused by location or context rather than substance;
iii) Did the Defendant, by employing the healthcare provider to carry on the activity, create the risk of the tort committed by healthcare? First there is no relationship of employment or even delegation – that is from the PCT. Secondly it is that contract with the PCT (over which the Defendant has no control) which creates the risk; iv) Is the healthcare provider to a greater or lesser degree, under the control of the Defendant? Only to the limited degree imported by the location of the service and the security considerations which go along with that. Control in terms of training, contractual terms, and discipline channels through the contractual chain to the PCT.
The Claimant’s deliberate failure to seek medical attention during the periods he was not in custody amounted to an intervening cause, preventing recovery for any established breach during his time in custody.
202. It seems likely that his reason for doing so was that he did not want to bring himself to the attention of the authorities, given that he had reverted to criminal behaviour. That may be understandable (as was argued on his behalf) on an empathetic level, it is not however, as a matter of law, reasonable behaviour. His actions therefore in my judgement amount to an intervening cause, preventing recovery for any established breach relating to this period.
Section 57 of the 2015 Act (fundamental dishonesty)
The claimant was found to have been knowingly dishonest when he positively averred and alleged in his particulars of claim that he had sought medical attention whilst outside prison (something which he repeated in his evidence). He had thereby substantially affected the presentation of his case, which potentially adversely affected the MoJ in a significant way, thereby meeting the test for fundamental dishonesty within s.57(a)(b). Had the claimant had a valid claim, it would have been barred under s.57(2).
203. The Defendant points out that this conclusion as to Mr Razumas’ evidence means the positive averment and allegation in the Particulars of Claim (and repeated in Mr Razumas’ evidence) was false to his knowledge. It submits that it follows that he has sought to base one of his allegations of negligence on a false assertion that he sought treatment, and this means that he has been “fundamentally dishonest” in an aspect of his claim and the claim fails pursuant to section 57 of the Criminal Justice and Courts Act 2015.
209. Through the diligence of counsel I have also been referred in this connection to the very recent judgment of Julian Knowles J in London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield  EWHC 51 (QB) in which Mr Sinfield who had suffered an injury for which the LOCOPG was liable, claimed (as a not insignificant part of his loss) gardening expenses which were found to have been advanced dishonestly, supported by faked invoices.
210. Having reviewed the numerous County Court authorities and the debates on the Act, the learned judge said as follows:
“62. In my judgment, a claimant should be found to be fundamentally dishonest within the meaning of s 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim (as defined in s 57(8) ), and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation. Dishonesty is to be judged according to the test set out by the Supreme Court in Ivey v Genting Casinos Limited (t/a Crockfords Club) , supra.
63. By using the formulation 'substantially affects' I am intending to convey the same idea as the expressions 'going to the root' or 'going to the heart' of the claim. By potentially affecting the defendant's liability in a significant way 'in the context of the particular facts and circumstances of the litigation' I mean (for example) that a dishonest claim for special damages of £9000 in a claim worth £10 000 in its entirety should be judged to significantly affect the defendant's interests, notwithstanding that the defendant may be a multi-billion pound insurer to whom £9000 is a trivial sum.”
211. The learned judge then held that on that test, Mr Sinfield had indeed been fundamentally dishonest and dismissed the whole claim under section 57(2) of the Act.
212. I gratefully adopt the test set out by Julian Knowles J and ask myself first: Did Mr Razumas act dishonestly in relation to the primary claim and/or a related claim? To this the answer must be yes. He has one main claim, and the dishonesty went to one route to succeed on it in full. Has he thus substantially affected the presentation of his case, either in respect of liability or quantum, in a way which potentially adversely affected the defendant in a significant way? Again the answer must be yes. The argument which he advanced went to an entire factual section and pleaded occasion which would have entitled relief on the main claim. Thus the first part, fundamental dishonesty is made out.
Human rights claim
Any claim would be time barred under s.7(5) of the 1998 Act. In any event, the acts complained of were healthcare failures and the correct defendants were prima facie the relevant healthcare entities. Finally, those acts did not meet the minimum severity threshold. There had been no intention to humiliate or degrade the claimant and he had not been denied treatment.
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