Human Rights Claims struck out where defendant was not a public authority

Richard Borrett acted for the Applicant in this strike-out application.

The deceased, Mr Sammut, suffered from schizophrenia. In February 2018 he was discharged from his detention under the MHA, to a care home operated by Next Steps. Next Steps had applied for a standard authorisation, but this was not issued and so the deprivation of liberty was not formally authorised (save for a brief period under an urgent authorisation).

Mr Sammut remained at Next Steps until his death in 2019 from complications related to his medication, Clozapine.

Mr Sammut’s estate, along with his family, brought claims against Next Steps and Greater Manchester Mental Health NHS Foundation Trust for clinical negligence, false imprisonment, and breaches of the Human Rights Act (HRA), particularly Article 2 (right to life), 3 (prohibition of torture), Article 5 (right to liberty and security), and Article 8 (right to respect for private and family life).

Next Steps applied to strike out the HRA claims and/or for summary judgment, on the basis that it was not a public authority or exercising public functions, for the purposes of s.6 HRA. Further, Next Steps applied to strike out the Article 2 claims on the basis that Article 2 was not engaged on the facts.

The application was successful on both issues. Ultimately, the court ruled that the claims against Next Steps under the Human Rights Act could not proceed.

Public Authority

The court considered and applied YL v Birmingham City Council, where a care home was held not to be a public authority, despite it being commissioned by a local authority. The court held that there was nothing in this case to distinguish it from YL [49].

The Claimants relied on R(A) v Partnerships in Care Limited, but this was distinguished because it was a Mental Health Act case, where the defendant had statutory powers of detention. In this case, Next Steps had no such powers [48] under the MHA or MCA.

The Claimants referred to section 73 Care Act 2014, but as the court noted, this does not apply where care and support is provided pursuant to s.117 MHA.

The Claimants sought to rely on the Form 3 from the standard authorisation paperwork which recorded that the deprivation of liberty was ‘imputable to the state’. As the court noted, this does not determine whether the care provider is a public authority [33-40].

Article 2

Separately, the court concluded that the circumstances of Mr Sammut’s death, while potentially indicative of clinical negligence, did not meet the “exceptional circumstances” required to engage Article 2, as set out in Fernandez and Maguire. Specifically, there was no evidence that Mr Sammut’s life was knowingly put at risk, or that there was a systemic failure in the healthcare provided.

Richard Borrett was instructed for the First Defendant in this matter, instructed by Terry Zindi, Keoghs LLP. Richard is an expert in both Court of Protection and Human Rights claims. The judgment is available here.