Nursing home held not to be a public authority for the purposes of an Article 2 claim

HHJ Bird began by reminding himself at [7] of the test for summary judgment including whether the Claimant has no real prospect of success: “In order to decide if the evidence shows a more than fanciful prospect of trial, there must be some evaluation of the evidence. In doing so caution must be exercised and in particular the court should not conduct a mini trial. A hope that “something may turn up” (sometimes expressed as “Micawberism”…is not enough to move prospects of success from fanciful to real.”

The Claimant’s case was that the nursing care home (said to provide a locked door environment with a secure perimeter fence) was contracted by Greater Manchester Mental Health NHS FT to provide care and treatment services to the deceased. The weekly cost of accommodation and care was met jointly by Manchester City Council, Manchester Clinical Commissioning Group and NHS England. The relevant obligations arose under section 117 of the Mental Health Act 1983 and section 75 of the Care Act 2014. The Claimant’s case as to the factual context was summarised at [19]

“a. The facility operated by the first Defendant was a secure facility, similar to those operated by the state.

b. The first defendant was contracted to provide services to Paul. The counterparty to the contract was the second Defendant. In effect, there was a subcontracting of the State’s function to the 1st Defendant.

c. Practically speaking, the state paid for the entirety of Paul’s care and nursing needs.

d. Paul was treated in exactly the same way as a person for whom deprivation of liberty safeguards were in place.

e. If matters had proceeded as they ought to have proceeded, the first Defendant would have been exercising special statutory powers to limit Paul’s freedoms.”

HHJ Bird at [28] held that the nursing care home was not a core public authority for the purpose of section 6 of the Human Rights Act 1998 and in determining whether or not it was a hybrid public authority, the “…main question to be resolved is therefore: were the functions being carried out by the first Defendant which give rise to the claim, functions of a public nature…by reference to YL V Birmingham City Council [2007] UKHL 27).”

HHJ Bird before considering that question, noted at [31-32]  that section 73 of the Care Act 2014 did not apply as the specific circumstances required such that a private care home would be taken as exercising a function of a public nature – “His care was not arranged by a specified authority and in any event the relevant arrangements or payments would not made in accordance with a specified statutory provision… The fact that Paul’s care was funded through section 117 of the Mental Health Act does not, in my judgement, assist him. Such funding, excludes private sector care from Section 73 and so prevents those who are cared for from enjoying the special rights it grants.”

HHJ Bird further considered the effect of the Form 3 best interests assessment completed as part of a Deprivation of Liberty safeguarding authorisation process. At [36] he held that even if the deceased’s “placement” was (as a matter of law) “imputable to the state” (i.e. whether deprived of liberty for the purposes of Article 5 ECHR), it did not follow that the nursing care home was discharging functions of a public nature at the relevant time – “It may be that State funding and State regulation were enough to justify [the social worker’s conclusion that public authorities would be “directly involved” in Paul’s detention. Whether the first Defendant’s functions were “of a public nature” seems to me to be a very different question.”

HHJ Bird referred to YL and held at [46] that it was satisfied it represented the present state of the law for a case that did not fall within section 73 of the Care Act – which represented only a partial overriding by statute of the decision in YL. He summarised YL

“43. The House of Lords concluded (by a majority, Lord Bingham, and Lady Hale dissenting) that the care home was not a public authority for the purposes of the HRA, because its relevant functions were not “public functions”. Lord Scott’s overarching view was that the company was carrying on a private function, it was neither “a charity nor a philanthropist”, but rather a company carrying on business for profit. It just so happened the business had an element of social utility. He felt it important that the care home received no public funding (it was simply paid for services provided), had no special statutory powers and was under no relevant obligation to accept residents.

44. Lord Neuberger like Lord Scott felt that the arrangement with the care home was essentially a private, business matter. He agreed with the reasons given by Lord Mance and provided more of his own. He took the following facts into account: (i) care homes were closely regulated and controlled by statute, (ii) the provision of care and accommodation for the elderly and firm was a beneficial public service, (iii) the elderly and infirm were particularly vulnerable members of society, (iv) the care and accommodation in the case was provided pursuant to the local authority’s statutory duty to arrange its provision, (v) the local authority paid for the care and accommodation pursuant to its statutory duty, (vi) the local authority had the power to run its own care homes and so provide the service itself, and (vii) it might be said that section 6(3)(b) should apply to contracting out of a state function. None of these factors, taken individually or collectively was sufficient to justify the conclusion that the care home was performing a function “of a public nature” in providing care and accommodation to the claimant.

45. Lord Neuberger felt that it was of “particular importance” that the care home had been given no (or no significant) statutory powers of residents. At paragraph 167 he said this:

“The existence of a relatively wide-ranging and intrusive set of statutory powers in favour of the entity carrying out the function in question is a very powerful factor in favour of the function falling within section 6(3)(b). Indeed, it may well be determinative in many cases, because such powers are very powerfully indicative of a public institution or service.” [Emphasis added]

At [49-52], HHJ Bird concluded that nothing in the claim took the facts beyond those in YL, and held that it was clear that the nursing care home’s functions were entirely private, and it was simply carrying out a business for profit (even if its business had some social utility). It was an important factor that there was no special statutory power – and irrelevant that the nursing care home appeared to believe it did –“The outcome of the inquiry is binary: there is either a power or there is not.” The estate was also bringing a claim for false imprisonment predicated on the absence of any statutory right to detain – “The assertion that I should treat the first as acting under a statutory authority contradicts that position and would create an inappropriate internal tension in the [claim].”

HHJ Bird went on hold at [56] that even if the nursing care home was a public authority, Article 2 would not have been engaged – referring to R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20. He held that:

“66. It is in my judgement clear that the claimants pleaded case in respect of Article 2 is not sufficient to engage Article 2. First, there is no assertion that Paul’s life was “knowingly put in danger by denial of access to treatment”. There is no sense that the medical practitioners were fully aware that his life was at risk if treatment was not given and, even in the face of such knowledge, denied him that treatment. The “denial” referred to in argument is on its own insufficient to engage Art.2. It is no more than an allegation of (very serious) clinical negligence. It follows that the first type of exceptional circumstance that would justify engagement of Art.2, is absent. Secondly, there is no plea of dysfunction which is “genuinely identifiable as systemic”. The pleaded failure to “establish, maintain and apply procedures” is a plain reference to something going wrong or functioning badly not as a result of systemic failures, but as a result of clinical negligence. The remaining particulars simply go to emphasise the seriousness of the clinical negligence claim.

…

68. I am satisfied, on the proper application of McGuire, that it would be inappropriate (and wrong in law) to allow the matter to proceed on the basis, as suggested in the skeleton argument, that “recklessness” as to the risk to life as a result of denial of treatment would be sufficient to engage Art.2. It is the need for “full awareness” that elevates the matter above the realm of clinical negligence. It is therefore plainly, a necessary element if the first exceptional circumstance is to be made out.”

Comment

This judgment is a useful reminder of the limitations of the application of both the Human Rights generally to private care providers, and also of Article 2 to what are in reality allegations of clinical negligence falling outside the scope of Article 2 as recently reiterated in Maguire.

Dominic Ruck Keene is a barrister a 1 Crown Office Row

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