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Cite as: [2018] EWHC 215 (QB)

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Neutral Citation Number: [2018] EWHC 215 (QB)
Case No: HQ17C01909


Royal Courts of Justice
London, WC2A 2LL

B e f o r e :


- and -



CHRISTOPHER MELTON QC, JASON WELLS AND MARIA ROCHE (instructed by Michael Jefferies Injury Lawyers) for the Claimant
ADAM WEITZMAN QC AND BILAL RAWAT (instructed by Government Legal Department) for the Defendant

Hearing dates: 15-19 January 2018



Crown Copyright ©

    Mrs Justice Cockerill :


  1. The current case is a sad case. It is also a rather unusual case. In it the Claimant, Mr Razumas, brings an action for clinical negligence not against any National Health Service entity but against the Ministry of Justice. He does so because for various periods in between 2010 and 2013 he was in custody and during that time the medical care he received was, it is common ground, deficient in various respects. The highly unfortunate result of the negligence has been that he has had to have his left leg amputated above the knee. His future medical prognosis is uncertain.
  2. The questions in this case are therefore in broad terms whether the negligence is the responsibility of the Ministry of Justice, which has overall responsibility for the prisons in which he was incarcerated, and whether the claim is barred by reason of Mr Razumas' own actions. There are also a number of subsidiary issues including one as to whether his treatment is in breach of the Human Rights Act 1998 ("HRA 1998").
  3. Unusually, because the legislative backdrop informs understanding of the factual background and exactly how the issues arise, I will not commence with the factual background. Instead this judgment is arranged as follows:
  4. i) The Evidence: paragraphs 4-6;

    ii) The Legislative and regulatory backdrop: paragraphs 7-66;

    iii) The Factual Background: paragraphs 68-107;

    iv) Mr Razumas' causes of action: paragraph 108;

    v) Direct duty of care: paragraphs 109-122;

    vi) Non delegable duty of care: paragraphs 123-158;

    vii) Vicarious liability: paragraphs 159-176;

    viii) The Crown Proceedings Act 1947: paragraphs 177-183;

    ix) Intervening Acts: paragraphs 184-202;

    x) Section 57 Criminal Justice and Courts Act 2015: paragraphs 203-215;

    xi) The Claim under the Human Rights Act: paragraphs 216-246;

    xii) Conclusion: paragraph 247.

    The Evidence (and dramatis personae)

  5. In support of his case Mr Razumas gave evidence. He relied on expert evidence from a general practitioner, Dr Nicholas Kearsley, who was not called in the light of the substantial agreement between the expert GPs, and from Professor Grimer, an eminent practitioner in the field of orthopaedic oncology. Dr Ekpo Ekpo, the Tenth Part 20 Defendant, was called by the Claimant under a witness summons.
  6. The Defendant called a number of prison governors ("the Governors") who had had charge of the prisons where Mr Razumas was incarcerated at the time; though all have now moved on to other postings. They were (by reference to their prisons at the time): Mr Blakeman of HMP Bedford, Mr Bradford of HMP Bullwood Hall and later HMP The Mount, Mr Wragg of HMP Belmarsh, Mr Tullett of HMP Brixton as well as Mr Hyde the Ministry of Justice Controller at HMP Thameside and statements were also tendered under CEA notices from Ms Cadden and Mr Valli dealing with the search for relevant contractual documents and the terms of those documents.
  7. The Defendant also relied on the evidence of an expert GP, Dr Fotiadis, and that of a consultant trauma and orthopaedic surgeon, Mr H A Lyall. Dr Fotiadis gave evidence, but (in the light of his agreement with Professor Grimer's report) Mr Lyall did not.
  8. The Legislative and regulatory backdrop

    The Legislation

  9. There are two facets to the legislative backdrop. The first relates to what the legislation says as regards prisons and healthcare. The second is what the legislation says as regards the NHS and healthcare in prisons.
  10. The starting point for the first enquiry is the Prison Act 1952. Section 1 gives the Secretary of State powers and jurisdiction over prisons subject to any other provisions of the Act. Section 4(1) provides:
  11. "The Secretary of State shall have the general superintendence of prisons, and shall make the contracts and the other acts necessary for the maintenance of prisons and maintenance of prisoners."
  12. Expenses incurred in the "maintenance" of prisoners shall be paid to the Secretary of State by Parliament. Maintenance is defined by section 53(2) as:
  13. "… the maintenance of a prisoner shall include all necessary expenses incurred in respect of the prisoner for food, clothing, custody and removal from one place to another, from the period of his committal to prison until his death or discharge from prison."
  14. Section 13(1) provides that prisoner is deemed to be in the legal custody of the governor of the prison. Subsection (2) identifies the circumstances and locations in which that custody will arise.
  15. It is of historical interest and possible relevance to the analysis that prior to November 2007, section 7 of the Prison Act 1952 required every prison to have a 'medical officer'. This requirement was repealed by section 25 of the Offender Management Act 2007; the explanatory note to that Act indicates that this had become the responsibility of the Secretary of State for Health.
  16. Prior to 1st January 2010, rule 20(1) of the Prison Rules 1999 provided: "The medical officer of a prison shall have the care of the health, mental and physical, of the prisoners in that prison".  This rule was amended by the Prison and Young Offender Institution (Amendment) Rules 2009. It now provides that: "The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service".
  17. This change reflects what it is common ground was a transfer of headline statutory responsibility from the Defendant to the Department of Health and the NHS. The reason for the change was to improve the chances of giving effect to the principle of "equivalence", ensuring that prisoners had the same access to health as those in the community. This came about because under the old system there had been concerns that prisoners were disadvantaged in accessing healthcare and in ensuring continuity of healthcare when not in prison. Prisoners are repeatedly identified in the documents leading up to the change, and in the documents generated under it, as a particularly vulnerable group in healthcare terms.
  18. Equivalence also means that in addition to ensuring that the same standard of healthcare is available steps are taken to make sure that, when receiving healthcare, insofar as it is compatible with the custodial setting, a prisoner is treated as a patient. This means that he is afforded the same rights as he would have in the community; a right to refuse treatment, a right to confidential medical consultations and to data protection for his medical records. These are all specifically provided for.
  19. Because of this headline change from this point on the legislation and discussion documents as well as the Prison Service Orders and Instructions indicate that the Defendant is required to work "in partnership" with the NHS. Thus the terms of the amended version of the rule referred to above, and thus also section 249(1) of the National Health Service Act 2006 ("NHS Act 2006") provides:
  20. "In exercising their respective functions, NHS bodies (on the one hand) and the prison service (on the other) must co-operate with one another with a view to improving the way in which those functions are exercised in relation to securing and maintaining the health of prisoners" .
  21. Looking then at the second aspect, the situation from the NHS side of the equation, section 3 of the National Health Service Act 1977 placed an obligation on the Secretary of State for Health to provide health services throughout England, including primary health services. It was silent on the subject of prisons.
  22. This obligation was re-enacted by section 3 of the NHS Act 2006 which effectively replaced the 1977 Act. It provides:
  23. "The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements-.. (c) medical, dental, ophthalmic, nursing and ambulance services.
    For the purposes of the duty in subsection (1), services provided under- (a) section 83(2) (primary medical services), section 99(2) (primary dental services) or under section 115(4) (primary ophthalmic services), or (b) a general medical services contract, a general dental services contract or a general ophthalmic services contract must be regarded as provided by the Secretary of State."
  24. Section 3B of the Act provided that Regulations might require the Board to arrange for the provision of health services to prisoners. No specific regulations were made under this section until 2013 when a specific provision was introduced stating that the Board must arrange for the provision of health services for prisoners.
  25. The general provision under section 3 was to take place via Primary Care Trusts (PCTs). From 1st October 2002, PCTs had the responsibility of fulfilling the Secretary of State for Health's function to provide primary care in England in their respective areas (see: section 16D of the NHS Act 1977/section 7 of the NHS Act 2006, and National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002/2375).
  26. Thus under section 83 of the NHS Act 2006 a PCT becomes responsible for the provision of primary care in its locality:
  27. "Each Primary Care Trust, must to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to provide primary medical services within its area, or secure their provision within its area.
    A Primary Care Trust may (in addition to any other power conferred on it)- (a) provide primary medical services itself (whether within or outside its area), (b) make such arrangements for their provision (whether within or outside its area) as it considers appropriate, and may in particular make contractual arrangements with any person ."
  28. Section 84 of the Act provided that the PCTs could enter into general medical services contracts for the provision of primary medical care.
  29. Regulation 2002/2375 was amended on 8th July 2003 by the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) (Amendment) Regulations 2003/1497, to require PCTs to provide healthcare to prisoners in those prisons that fell within their jurisdiction. As amended it provides:
  30. "3(7) Every Primary Care Trust shall exercise the functions referred to in paragraphs (1) and (2) [the Secretary of State's functions relating to the health service]
    (a) in so far as those functions consist of providing or securing the provision of services to patients, other than the service referred to in sub-paragraph (b) of this paragraph, for the benefit of
    (i) the practice patients (other than any such patients who are detained in prison in England and Wales) of medical practitioners providing general medical services under the Act, or performing personal medical services in connection with a pilot scheme under the 1997 Act, in respect of whom the Primary Care Trust is the relevant Primary Care Trust; and
    (ii) persons usually resident in its area, or resident outside the United Kingdom who are present in its area, and who do not fall under the responsibility of another Primary Care Trust under (i) above.
    3(8A) Subject to paragraph (8B), a person who is detained in England, shall, for the period of that detention, be treated as usually resident at the address of the prison in which he is detained."
  31. The final provision to which I shall have reference is paragraph 16 of Schedule 3 to the NHS Act 2006 which dealt with the rights and liabilities of PCTs:
  32. "Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a Primary Care Trust of any function exercisable by it by virtue of section 7 [SSH appointments], 19 [contracting out PCT functions] or 15 [NHS contracts with other health service bodies] are enforceable by or against the Primary Care Trust (and no other body)."
  33. It is this provision which leads to the only issue between the parties on the legislation. The Defendant relies on this section, taken against the rest of the statutory backdrop, to argue that it follows that only a PCT can incur tortious liabilities arising out of the exercise of its sections 7, 15 or 19 functions. This was said to be indicative that only the PCT could have liabilities in tort more generally – and hence in this case.
  34. The Claimant takes issue with this, arguing that this is a misreading of the legislation and that the reference to 'body', is a reference back to section 19(2)(c) and 19(3). The object, he says, is to make it clear that as between Strategic Health Authorities, PCTs, NHS trusts and Special Health Authorities, only PCTs can be sued - otherwise the word 'person' would be used.
  35. The Claimant adds that it would be a remarkable piece of legislation that denied a Claimant the right to sue a tortfeasor just because that tortfeasor might be a joint tortfeasor with another person, here a PCT.
  36. I do not regard this dispute as being central to the issues. To the extent it matters I would conclude that this provision does not operate as a blanket ban to bar an action against anyone other than a PCT but refers to the possible other candidates for liability which might arise under the specific sections.
  37. For completeness I should note that section 34 of the Health & Social Care Act 2012 abolished the PCTs. Pursuant to arrangements made under section 300(1) of that Act the transfer of the property rights and liabilities of a PCT was made to The National Health Service Commissioning Board, now known as NHS England, the First Part 20 Defendant.
  38. Delivery of healthcare in prisons: the PSOs and PSIs

  39. The manner in which healthcare was delivered in the relevant period and in relation to the legislative changes outlined above is dealt with by the relevant policy and partnership agreements and was addressed in oral evidence by the Governors.
  40. I was referred to a number of Prison Service Orders (PSOs) and Prison Service Instructions (PSIs). My understanding is that these are rules, regulations and guidelines issued by HM Prison Service and by which prisons are run. They are long-term mandatory instructions which are intended to last indefinitely and as such do not have an expiry date. PSOs were issued until 31 July 2009 and remain in force until replaced by a PSI or cancelled.
  41. The new process was initially set out in PSO 3100. Funding for prison healthcare was transferred to the Department of Health on 1st April 2003. The budget and responsibility were to be transferred to the PCTs over a 3 to 5 year period. Once funding had been transferred the role of the governor would change from being responsible for healthcare to having, "important responsibilities for working in partnership with local NHS to support the delivery of good quality, needs-based health services to prisoner" (paragraph 3.4).
  42. That PSO also indicates that prisons are envisaged as having a role in clinical governance with governors playing a role as "prison health moves into" the NHS, providing leadership and support. It states that "as prison health moves into the NHS" the governor will still "have overall accountability for ensuring that health care is being appropriately delivered within the prison".
  43. A further PSO, 3200, referred specifically to issues of Health Promotion and the need for governors to continue to have regard to planning for this issue.
  44. The position described in PSO 3200 was updated by the 2003 National Partnership Agreement "on the Transfer of Responsibility for Prison Health from the Home Office to the Department of Health" between the Secretary of State for Health and the Home Secretary. Described as a "high level agreement", it is common ground that this document was not intended to be legally binding but rather to set out the intentions of the parties for the implementation and operation of the service. However it had a number of features on which each party relied. In particular:
  45. i) At paragraph 1.5(b), it agreed that healthcare related litigation would be the responsibility of the Department for Health after 1st April 2003.

    ii) The complaints system was to continue until April 2006 after which "complaints about prison services will continue to be dealt with by the prison system and complaints about NHS services will be directed to the NHS system". It contemplated that complaints might also involve both services.

    iii) The agreement was drafted to cover the period to 2006. By that date the expectation was that "all relevant healthcare standards set by the NHS will apply to healthcare for prisoners" (paragraph 3.2).

  46. A further Partnership Agreement was published in January 2007. The intention of that agreement was to cover accountability and commissioning for health services for prisoners from April 2006, when the transfer of responsibility to PCTs would be complete. It provided that:
  47. i) From April 2003 the Secretary of State for Health assumed responsibility from the Home Office for securing a full range of health services for prisoners under the NHS Act and he delegated responsibility for commissioning such services to PCTs;

    ii) PCTs were responsible for commissioning health services for prisoners of the "same range" and quality as were received by the general public (paragraph 1.4);

    iii) Paragraph 2.1 provided for accountability for commissioning of health services to be held by the NHS with responsibility for the development of health services to prisoners being a shared responsibility between the NHS and the prison service;

    iv) Healthcare related litigation in respect of incidents after 1st April 2003 were the responsibility of the PCT and the Department of Health (paragraph 3.13);

    v) The PCT was responsible for commissioning health services for prisoners and monitoring the performance against the service standards (paragraph 3.18);

    vi) PCTs when delivering healthcare in a custodial situation would have to comply with the relevant parts of PSIs (paragraph 4.3);

    vii) The Defendant's role was identified at paragraph 3.19 as:

    a) "Overall duty of care to prisoners",
    b) "Supporting the effective delivery of health services for prisoners, regardless of the provider";
    c) "Managing the healthcare facilities in order to deliver the agreed services set out in the SLA (where appropriate)";
    d) "Acquisition of new items fixed to the building eg dental chairs";

    viii) Prison performance standards for healthcare ceased to apply from 31st March 2006 to be replaced by the normal NHS management process (paragraphs 4.1 and 4.4).

  48. It appears (though there was no evidence from the health providers because of the nature of the hearing) that if the PCT did not itself provide the healthcare it would, with the assistance of the prison governor, draw up a tender taking into account what was required and select the provider through such a process.
  49. Meanwhile in 2006, PSO 3050 dealt specifically with Continuity of Healthcare for Prisoners looking specifically at key stages: first reception, information management, transfers and discharge noting that it "focuses on the vulnerable points of the system, when the prisoner is moved into or out of prison such as entry into custody, leaving and re-entering prison for court visits, transfer to another prison and discharge from custody".
  50. This PSO provides explicitly that "all medical information must be managed in accordance with the relevant legislation and the NHS Code of Practice on Confidentiality". On transfers the need for written and observed guidelines is noted, as is the importance of ensuring information to ensure continuity of care is communicated with the prisoner's consent to their GP and/or other responsible community agencies on discharge. It also deals with the practice of "Clinical Hold" where a prisoner is withheld from transfer for a period of time for clinical reasons; noting that it requires oversight to ensure that clinical risk is managed while not affecting the operational running of the prison by having too many prisoners on hold.
  51. This PSO, the Claimant submits, shows an ongoing important interaction between healthcare and operational sides. It also flags the importance when discharging prisoners with continuing medical needs to ensure communication of relevant information with his consent to his GP or responsible community agencies.
  52. In 2009 PSO 1025 set out a protocol for communicating information about risks on transfer via a Person Escort Record (PER) to assure escort staff and receiving agencies were equipped with information particularly risk information relating to a prisoner during the escort procedure. It mandated a use of a standard form set out on a single sheet of A4 paper. Although primarily directed to risks such as escape, attack and suicide, it notes that the form contains a Health Medical section "to be completed if there is any current and relevant medical health risk. All Medical Holds … should be highlighted 'return to the discharging establishment'". A contact number for healthcare must be given in the box provided so that "questions or clarification relating to health matters can be dealt with directly by the healthcare department." It also provides that on reception "reception staff will alert appropriate staff in the prison to any risks identified on the PER e.g. healthcare…". It was also the evidence of the Governors that although not mandated it was often the case that any particularly pressing information would be highlighted at the top of the form in red ink.
  53. PSI 52/2010 dealing with Early Days in Custody mandates that an assessment of prisoners' healthcare needs is completed on induction by a medically qualified member of the healthcare team or a competent and trained HCA "to determine whether they have any short or long term physical or mental needs … and ensure that any follow up action is undertaken, that anyone who needs to know about individual prisoners ongoing healthcare treatment is informed and that actions taken are recorded in the appropriate record."
  54. PSI 25/2011 dealt specifically with discharge and again required an assessment by a healthcare practitioner prior to discharge during which "the prisoner must be made aware of the place date and time of any appointments."
  55. A later iteration PSI 71/2011 also considered moves at short notice indicating that where they took place "the sending prison must make checks for any booked appointments and make every effort to cancel the visits".
  56. Although the PSOs and PSIs were Prison Service documents, the evidence was that the contract between the PCT and healthcare provider would have incorporated the PSO and PSIs and required compliance by the healthcare provider with them. Of particular relevance is the evidence that PSO 3050 Continuity of Healthcare, which includes at Chapter 7 guidance for release and discharge, would have been incorporated and the contractual specification would have required the healthcare providers to perform a discharge interview.
  57. The somewhat imperfect evidence on the terms of such agreements comes from CEA Notices covering statements provided by Patricia Cadden, who was previously the Commissioning Manager for Inner North West London PCT, and Aly Valli, who was previously the Commissioning Manager for Islington PCT, and so responsible for the contracts to provide healthcare at HMP Holloway and HMP Pentonville. They explain that unfortunately, due to administrative errors and problems, neither electronic nor hard copies of the relevant contracts for the periods and locations relevant to this trial can now be located by NHS England.
  58. They do however refer to contracts disclosed by NHS England. These, I am told, are very similar to what would have been in place, incorporating standard terms and requirements. The fact of the similarity is supported by the fact that directions for these are contained in the Alternative Provider Medical Services Directions 2008 (the 2008 Directions).
  59. The Defendant pointed to a contract in respect of HMP Brixton as an example. The parties to the contract are identified as Lambeth PCT and Care UK Clinical Services Ltd. It highlighted the following provisions:
  60. i) Background: "It is the duty of the PCT to exercise its power so as to provide or secure the provision of prison healthcare services within its area. The Prison Service has operational responsibility for HMP Brixton where the services are provided. Budgetary responsibility for healthcare was transferred from the Prison Service to the Department of Health and thence to the PCT from 1st April 2003";

    ii) Quality standards: these are to be in accordance with NHS requirements and NICE. The contractor is also required to comply with PSOs and PSIs to the extent that they apply to the services;

    iii) Training: an obligation on the contractor to provide appropriate training;

    iv) Terms of employment of any GPs: are to comply with the Secretary of State's directions;

    v) Appraisals for staff: these were required, including an assessment by the National Clinical Assessment Authority when required to do so by the PCT;

    vi) Sub-contracting of clinical services: is subject to prior written authorisation by the PCT;

    vii) Records: the contractor is to keep adequate records and use a computer system authorised by the PCT. The PCT has a right of access to those records;

    viii) Confidentiality: the contractor is obliged to maintain confidentiality;

    ix) Provision of information; the contractor must supply information to the PCT; clinical records of prisoners must be kept in a manner which complies with NHS standards; the contractor acknowledges that while records are the property of the prison they can usually only be accessed by healthcare staff;

    x) Right of inspection by the PCT;

    xi) Indemnity: the contractor is obliged to indemnify the PCT against negligence by the contractor, its staff, agents or subcontractors. The cap is set at £10,000,000;

    xii) Insurance; the contractor is required to be insured for a sum of not less than £10,000,000 to cover liabilities of negligent performance of the services under the contract.

  61. It follows from the above that that the personnel who provided prison healthcare were not employed by the prison; they were employed by the PCT or the party with whom the PCT had contracted employed them. Thus Dr Ekpo was under contract to Care UK, who was itself under contract to the PCT. Their medical training, monitoring and quality control was as a matter of contract the responsibility of their employer and the PCT. So too disciplinary aspects, evaluation of their performance, dismissal and promotion.
  62. How the healthcare staff were made aware of prison procedures was not the subject of evidence, but it appears that the governors predominantly considered this was a matter for the healthcare provider. At the same time healthcare staff had their attention directed to the prison's Local Security Strategy (LSS).
  63. The evidence of the Governors as to their role was broadly supportive of the Defendant's case. It was their evidence that they did not regard themselves or the Defendant as being responsible for healthcare, save as regards the question of accessing healthcare. They agreed that they did have a role in what is termed clinical governance, through partnership boards/clinical governance committees at which the PCT, prison and the healthcare provider would all be represented at these meetings. How that manifested differed from prison to prison with some chairing the clinical governance committee, while others participated under the leadership of a healthcare representative. Clinical governance was seen as ensuring that the healthcare system operated appropriately in the prison setting. Some also had a healthcare attendee at their daily operational meeting, where issues such as particularly sensitive transfers might be discussed and there were also senior management meetings which would be attended by the director or manager of healthcare for the prison.
  64. But in terms of their role they were agreed that it was supervisory - to meet with the relevant providers and check that they are fulfilling their respective roles and appropriate procedures are in place as well as to ensure that the prison on its part was doing what was needed to be done to facilitate the delivery of health services in the setting. As Mr Tullett put it, he couldn't check every step for every prisoner on every occasion. What a governor might however do was to highlight any concerns which emerged as to the way healthcare was running.
  65. Both prison and prison healthcare were subject to inspection. Inspection of the prison would be carried out by HM Inspectorate of Prisons (HMIP), inspection of the healthcare provision by the Care Quality Commission. Mr Tullett's evidence was that he would expect problems on the interaction between prison and healthcare (for example in relation to discharge processes) to be flagged by an inspection, and that if they were, he would regard it as his job to do something to improve matters. In fact a report on Brixton a few months before the issue in this case reported: "Pre-Release planning for prisoners' health needs was satisfactory with weekly discharge planning meetings. Information was provided on access to health services in the community and patients were given letters for GPs outlining their care and treatment....".
  66. Complaints by prisoners about access to healthcare were dealt with by the prison. Complaints about the care actually received by a prisoner would be raised with healthcare direct or if sent to the governor (as seems to have happened on occasion) they were forwarded by the prison to be dealt with by the healthcare provider before the prison governor responded to the complaint. Mr Razumas' 2012 complaint was sent to the matron for her input before the Deputy Governor responded.
  67. The Governors all placed emphasis on the separation of healthcare in operational terms caused by the requirements of patient confidentiality. Thus the evidence was that while healthcare professionals have access to prison records including the National Offender Management Information System (NOMIS), the healthcare records, on a system inventively titled SystmOne, are (save in exceptional circumstances) only accessed by healthcare staff subject to NHS conditions of confidentiality and data protection. Both systems at all relevant times operated across the prison system. So when Prisoner X moved from HMP A to HMP B, notes which had been entered by custodial staff at HMP A would be visible to custodial and healthcare users at HMP B, and notes which had been entered by healthcare staff on SystmOne at HMP A would be visible to healthcare staff at HMP B.
  68. Likewise to preserve confidentiality all communications with outside bodies treating a prisoner are carried on between the prison healthcare staff and that outside treating body, not with the prison's custodial staff. Even where custodial staff attend a medical appointment (for example to prevent escape) they do not report on that appointment.
  69. The system for informing the prison's custodial staff of medical appointments appears to be that prisoners are put on medical hold, meaning that they should not be moved save for court appointments, which take priority over all save extremity. That hold is noted in detail on SystmOne and also noted on the NOMIS system, sometimes but not always along with the appointment date. No medical details are given on NOMIS. Towards the end of each week a list will be produced from NOMIS of the prisoners who will require transport to external medical appointments, and arrangements are then made by the prison for transport and escort to those appointments. The transport is provided by taxi services who initially bill the prison, who then obtain indemnification from the NHS. Until this list is run custodial staff will be unaware of such appointments.
  70. The competing submissions on the documents

  71. Each party made submissions in relation to what the legislation, combined with the PSOs and agreements imported.
  72. On the legislation there was little between the parties.
  73. The Defendant says that the effect of these legislative changes is that in the relevant period the Defendant no longer had the statutory responsibility for the provision of healthcare in prisons, healthcare in prisons being primary care. Rather, the PCTs held that responsibility. Further their responsibility was, the Defendant says, mandatory: "every Primary Care Trust shall exercise the functions …".
  74. The Claimant accepted that there had been a significant change as a result of the legislation, and did not take issue with the summary of the legislation which the Defendant gave, save in the limited respect outlined above.
  75. It was submitted for him that the effect of the legislation is that it remains the case that the Defendant has the general superintendence of prisons and obligations to make contracts for the maintenance of prisoners. Although it is accepted that the primary responsibility to provide/arrange healthcare in prisons became that of the PCTs from 2003, it is nonetheless said to be the case that the Defendant retains an obligation to work with the NHS to provide healthcare in prisons and to secure the provision of access to healthcare equivalent to that in the community
  76. On the PSOs, the Claimant however says that that there is much in these documents which assists him. He says that the documents support the contention that the Defendant assumes significant responsibility for prisoners' welfare and well-being (of which primary healthcare is one component), for integrating healthcare management within overall prison and prisoner management and for securing prisoner access to healthcare. He says that that assumption of responsibility supports his case that while primary healthcare services for prisoners are commissioned by the Department of Health, the overall duty of care remains with the Defendant – as indeed is indicated by the Partnership Agreement of 2007.
  77. It is the Defendant's case that it is clear from the evidence that while the Defendant, through the relevant governor, was responsible for the operation of the prison it was not responsible for the delivery of healthcare. Primary healthcare was provided by the PCT, either by itself directly, or by the party with whom it had entered a general medical services contract to provide that service.
  78. The Defendant says that so far as its obligations were concerned, following this legislation it had a statutory duty to co-operate with the NHS, and so with those PCTs, but this duty to co-operate distinguished between the respective functions of the NHS bodies and the Defendant. Co-operation did not give either party control over, or responsibility for, the other's operations and the manner in which they delivered the required services to prisoners.
  79. The Governors' roles in clinical governance were, the Defendant submitted, in accordance with the statutory duty under section 249 of the NHS Act 2006. It does not make them directly responsible for the individual faults of those providing the services in specific instances.
  80. The Defendant also submitted that a duty was not easily compatible with the nature of the relationship; to provide equivalence demands a separation between the healthcare provider and the custodial authorities. It would be inimical to the principle of equivalence, if the same body was responsible both for the custodial arrangements under which authority is exercised over the prisoner and his treatment, which arises from an entirely different role. This is reflected in the practice on the ground as outlined above: a prisoner's medical records are treated as they would be in the community and kept confidentially.
  81. This, the Defendant says, is also reflected in the fact that save in very unusual circumstances, (e.g. risk of suicide), a prisoner who has capacity cannot be required to undergo treatment by the prison authorities. His consent is required before any consultation or procedure and that consent is given to a healthcare practitioner, not to the custodial staff. He is not in this respect under the control of the prison.
  82. The factual background

  83. Mr Razumas was born on 21st March 1985 and so is not yet 33 years old. He came to the UK from Lithuania in 2004 and worked for some years doing labouring and other manual work.
  84. The period in question in this case is between January 2011 and January 2013. The picture is somewhat complicated by the fact that in that period Mr Razumas was in custody in a number of different prisons. In summary he was located as follows:
  85. i) HMP Bullwood Hall – 15th November 2010 to 11th January 2011

    ii) Released on licence – 12th January to 4th April 2011

    iii) HMP Brixton – 4th April 2011 to 3rd August 2011

    iv) Released on licence – 3rd August 2011 to 9th July 2012

    v) HMP Bedford – 9th July 2012 to 3rd September 2012

    vi) HMP Thameside – 3rd September 2012 to 1st October 2012

    vii) HMP Bedford – 1st October 2012 to 31st October 2012

    viii) HMP Belmarsh – 31st October 2012 to 15th November 2012

    ix) HMP The Mount – 15th November 2012 to 30th November 2012

    x) HMP Bedford – 4th December 2012 to 14th December 2012

    xi) HMP The Mount – 14th December 2012 to 18th January 2013.

  86. Towards the end of 2010, following a fall in Pentonville prison, Mr Razumas developed a lump on the inner side of his left calf. We now know that this lump was an unusual species of cancer, a soft tissue sarcoma which commenced in his gastrocnemius muscle in the calf.
  87. Following a referral from a doctor in Bullwood Hall prison, an x-ray was performed in late November 2011 and was normal; but his symptoms did not abate. Mr Razumas complained to the Head of Healthcare and returned to the doctor. Mr Razumas was then referred to Southend University Hospital for an orthopaedic consultation. He was seen there on 7 January 2011 and a 10x7 cm mass was noted.
  88. It is following this visit that the first allegation of negligence arises. What happened was that following the visit the hospital doctor wrote to the prison explaining that an MRI scan was being booked and mentioning the possibility of malignancy. No appointment date was given in that letter. That letter was entered onto the SystmOne database which was used by the healthcare systems in all the relevant prisons. Its date of entry is 18 January 2011.
  89. The problem is that Mr Razumas had been discharged from prison on 12 January 2011. It was suggested by the Claimant that there had been no pre-release assessment, but the medical records have three entries for 11 January 2011, culminating in a "fit for discharge" notation which suggests that such assessment did take place. However since the letter had not arrived that could not be communicated to him then. It was suggested that the letter should have been sent on to him, but in fact the letter could not be sent on to him; the prison had been unable to verify an address for him post release.
  90. There is another issue about what happened around the time of discharge. It was Mr Razumas' case that he knew and was told nothing about the forthcoming hospital appointment. The Claimant however produced a document from Southend hospital which has an entry timed very shortly after Mr Razumas' release which says: "Patient waiting by choice because the prison has limited times they can let in-mates out. Was offeres (sic) a few appointments". The Defendant says that this indicates that someone had called at or phoned the hospital and enquired about his appointment. They suggest that person was Mr Razumas and that this indicates that he had at least been told on his discharge assessment that there would be an appointment. The Claimant suggests nothing can be inferred from this document.
  91. On this point, though it is not critical, I favour the view that the document is best explained as reflecting a call made by Mr Razumas, having been told of a future appointment to follow up his hospital visit. It is not clear if an appointment was made. If an appointment was ever made, it was not attended, and the first chance to get an MRI scan of the cancer was missed.
  92. Between January and April 2011 the evidence suggests that Mr Razumas was using drugs.
  93. In April 2011, Mr Razumas was sentenced to a further short term of imprisonment and this time the prison he attended was Brixton. During this period, Mr Razumas was seen on approximately seven occasions by numerous doctors. The GP experts agreed that a full history and review of the records (which were visible on the SystmOne system), and in particular review of the letter from Southend hospital would have led to an urgent orthopaedic referral and MRI scan. It is common ground that this was not done by various GPs who examined the swelling and that accordingly there were negligent failures by three different prison GPs; on 4 April 2011, 21 April 2011, 17 May 2011 and 23 June 2011.
  94. Eventually, on 17 May, a referral letter was sent. On 17 June 2011, an appointment letter was received, addressed to Mr Razumas, care of the prison healthcare department. Mr Razumas never saw this letter because prisoners are not allowed to see such correspondence (or indeed to be told of future appointments) in case they decide to plan an escape. That appointment was for 7 July 2011 at 3pm. On 17 June 2011 without his knowledge it was put back a month to 8 August – after Mr Razumas' scheduled release.
  95. A suggestion was made at trial that this change of appointment dates can only have been as the result of intervention by the prison administration. However this was not a pleaded issue and had it been, evidence would have been needed to deal with it. It cannot therefore be added informally at this late stage. However, I will note as follows (i) there was no evidence to suggest one way or the other why the appointment was moved and the burden of proof on the Claimant would not be discharged and (ii) Mr Razumas was not on medical hold, which would have been noted on the NOMIS system. It follows that custodial staff would have had no information as to his appointment.
  96. On 23 June 2011 one of the Brixton GPs, Dr Ekpo, saw the Claimant. On 27 June 2011 the Claimant returned, and asked to be told the date of his appointment. Dr Ekpo would not tell him the date because he considered that it would have been contrary to prison policy for him to do so. That this was indeed the practice across the system was confirmed by all the prison governors, although Mr Tullett suggested that at this point in a prisoner's release he would not have been outraged if a doctor, exercising his own judgment, had not observed the practice.
  97. Thus Mr Razumas was released on 3 August 2011. The running records do not record any discharge health meeting, as is shown in the Bullwood Hall records and which the evidence indicated was the approved practice and indeed required by a number of PSOs. Such appointments were designed to enable continuity of care. Their primary focus was perhaps to ensure the discharged prisoner had sufficient medication to "tide him over" and to encourage him to engage with a GP on the outside; but it was also intended that at this meeting any fixed appointments would be notified by means of a letter handed over to the prisoner.
  98. All there is at Brixton is an entry on 2 August 2011 showing a prescription of 14 days duration and then an unannotated entry by someone in the surgery on 3 August 2011. There is no "fit for discharge" notation, or other record of a consultation or notes as to Mr Razumas' condition.
  99. The balance of the evidence suggests that this process did not happen on this occasion and that as a result Mr Razumas was not told of the appointment scheduled for five days later. He did not know about it and he also did not know (because no-one had told him) how important it was that he attend. Had he attended the appointment the evidence was that he would have been referred for an MRI scan which would have disclosed a substantial tumour around 11-12 cm. It would have required excision, which would have left some calf muscle problems. However he would not have required amputation.
  100. Mr Razumas was discharged with £46. He indicated in his evidence that once this was spent he would have commenced committing crimes to acquire more money. There is an issue as to when this point would have been. Certainly however after his release, Mr Razumas committed certain further offences. In particular on 20 October 2011 he held up a car at knifepoint, an offence for which he was later sentenced. His evidence was that for much of this period – though there is an issue about how much – he was on the run from police.
  101. In July 2012, he was arrested and imprisoned at HMP Bedford. The records for August 2012 show that there was still a full range of movement around the knee. By now, the tumour would still have been resectable but with a little more muscle loss.
  102. Mr Razumas originally pleaded (and told the Bedford healthcare team) that he had in his period of liberty arranged surgery at Newham hospital in July 2012. He pleaded that there was a negligent failure to ensure he attended that surgery. He then amended to allege that there was a failure to ensure that he attended for an appointment at Newham on 13th July 2012. Mr Razumas conceded in the course of the hearing that he did not have an appointment for surgery, though the case on the existence of an appointment (possibly for "drainage" – though it was not suggested that this would be a treatment for soft tissue sarcoma) was maintained by Mr Razumas in his evidence.
  103. In July 2012 at Bedford Mr Razumas was seen by Dr Caroline Watson. She plainly did read his medical records, appreciated the significance of the Southend letter and acted appropriately. She referred him for an urgent X ray. On 25 July 2012 he was placed on medical hold pending that referral. That medical hold was noted both on SystmOne and on NOMIS, the database to which both custodial and medical staff had access. On the former system the note of the medical hold referred to the appointment in August; the notation on NOMIS did not.
  104. He was seen in the orthopaedic clinic at Bedford on 2nd August 2012. The medical hold on NOMIS was not released, but a reader of the SystmOne records only might have read the medical hold as having expired following that appointment. On 18 August an MRI scan was arranged by phone for 13 September. The written notification was stamped on 28 August and noted to be filed. No new medical hold was raised on either of these dates.
  105. On 3 September Mr Razumas was sent for a court hearing in London. The SystmOne notes show that this took place in the morning, and the NOMIS database suggests he attended court at Thames Magistrates in the morning. While he was at court a further medical hold notation was entered on SystmOne. This stated: "ON MEDICAL HOLD PENDING HOSPITAL APPOINTMENT EARLY SEPT, MRI- Priority: High". This notation would have been visible to the healthcare staff at whichever prison Mr Razumas was admitted next.
  106. After court on 3 September 2012 he was transferred to Thameside prison. This is the usual state of affairs where a prisoner is sent to a court some distance from their holding prison. What is clear is that for some reason Thameside either did not become aware of, or did not act on the medical hold during or following the admissions process. Had they done so the evidence is that arrangements would have been made for him to attend the appointment, either by re-transferring him back, or sending him to the appointment in a taxi. The medical staff at Thameside saw him on two occasions in the next month, but no-one picked up on the situation. It is common ground that they were negligent.
  107. Mr Razumas did not return to HMP Bedford until the start of October 2012. Consequently he missed his September appointment. This is a crucial point in Mr Razumas' story, for the medical evidence indicates clearly that the clock was ticking at this time for his tumour to be excisable without amputation being necessary. Had he had an MRI in September the tumour would have been diagnosed and so long as NHS targets for such operations were anywhere close to being met, he would have had the necessary operation in the nick of time.
  108. It is common ground that after his return to HMP Bedford and later in stays at Belmarsh and The Mount his medical care again fell short of what it should have been. There was a failure to refer him following a complaint about his leg to a doctor on 4 October and there were further such failures.
  109. After his return to HMP Bedford in October 2012, Mr Razumas made a formal complaint seeking better medical help. This was responded to by a matron, who said the x-ray showed it was normal and suggested an appointment with the doctor. Mr Razumas also made a second formal complaint under confidential access directly to the Deputy Governor, complaining that more than once he had been moved or released from prison before receiving scheduled treatment for his leg and seeking treatment as soon as possible, citing the delay. The Deputy Governor said that he had spoken to healthcare and there was no reason for Mr Razumas to be on medical hold and that if he was unhappy, he should speak to a doctor. During this period the time at after which amputation became the only option passed.
  110. It was not until January 2013 that Mr Razumas had a further referral, which led in August 2013 to a non-diagnostic biopsy following which he received his diagnosis of cancer. An above knee amputation was performed on 3rd November 2013, some three years after his first complaint. By this stage the tumour was 20x7 cm in size.
  111. In June 2015, Mr Razumas was seen by Professor Grimer. The prognosis at that time was that there was only a 15% chance of metastatic disease; but it was said that if he did develop such disease, then the median survival would be only ten months.
  112. Mr Razumas developed a lump in his left deltoid/shoulder muscle in March 2016. Biopsy in July 2016 confirmed that this was a metastasis and this was excised in February 2017. His latest chest scan remained clear.
  113. Mr Razumas now has a 70% chance of developing further metastases and he is also at risk of further local recurrence in the arm. If these metastases are multiple, the prognosis is particularly bad, with chances of survival dropping to 10-16%.
  114. The procedural history

  115. Mr Razumas initially sought to bring a claim against the prison healthcare providers who had failed to diagnose the tumour. He approached both private companies who had provided the healthcare in the prisons where he was located and NHS England. No one was willing to accept responsibility for those who had treated him.
  116. On 31 May 2016, Mr Razumas sent a letter of claim to the Defendant. That letter identified the various alleged breaches by the health care professionals, indicated that none were willing to accept responsibility, and instead intimated a claim against the Defendant, based on a non-delegable duty of care.
  117. Mr Razumas issued a claim against the Defendant in the Manchester District Registry on 2 August 2016. Particulars of Claim were served on 1 December 2016. The allegation against the Defendant was again put squarely on the basis of a non-delegable duty.
  118. DJ Davies transferred the case from Manchester to London on 1 March 2017. The Defendant's defence was served on 28 March 2017. It denied that it owed Mr Razumas a duty to provide healthcare or a non-delegable duty in respect of such care, but admitted a limited duty to work with healthcare providers in prison to arrange access to healthcare.
  119. The initial CMC was held in front of Master Roberts on 26 June 2017. Given Mr Razumas' reduced life expectancy, the Master ordered the trial of a number of preliminary issues identified as, "whether or not the Defendant owes the Claimant a duty of care, whether the Defendant is liable to the Claimant by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries described were so caused; and, if such injuries were caused, the extent of the same". It is these preliminary issues that have been tried before me.
  120. Master Roberts gave a truncated trial timetable and ordered that the matter be listed as a matter of extreme urgency. He also gave the Defendant permission to join a number of Part 20 Defendants upon the basis that the joinder of the Part 20 Defendants would not affect the timetable for the trial of the preliminary issue.
  121. At a further CMC in September Master Roberts gave permission to the Defendant to amend its defence, and to Mr Razumas to amend in response and to clarify his case.
  122. Following the request for clarification of Mr Razumas' case, Amended Particulars of Claim were served on 9 October 2017. They added allegations of direct and vicarious liability and, in respect of those allegations, but not the allegation of a non-delegable duty, averred that the duty is owed in respect of those persons involved in the management of Mr Razumas' healthcare needs. In a Re-Amended Defence dated 10 November 2017 the Defendant denied these allegations.
  123. At a pre-trial review on 19 December 2017 Martin Spencer J asked Mr Razumas to identify any points arising under the European Convention of Human Rights ("ECHR") by 5 January 2018. On 5 January Mr Razumas therefore served a Preliminary Skeleton ("the HRA Skeleton"). That document asserted a breach of his rights under Article 3 of the ECHR with reliance also being placed on the significance of Article 13. The Defendant responded to these points in a separate skeleton, raising inter alia limitation issues.
  124. An application was made on the second day of trial to amend the Particulars of Claim to argue the points raised in the HRA Skeleton and some further points which were not fully set out in that skeleton. These included new challenges to systems and the monitoring of systems. No objection was made to the amendments insofar as they did not go beyond the ambit of the pleaded issues factually, but a number were opposed on the basis that they were new allegations going beyond the matters in issue on the existing pleading and which could not fairly be dealt with by the Defendant on the evidence before the court. I considered these objections to be well founded and therefore only allowed the amendments insofar as they were not opposed.
  125. Mr Razumas' causes of action

  126. The issues in the case therefore are:
  127. i) Whether the Defendant is directly liable for those involved in the non-medical management of Mr Razumas' healthcare needs while in prison. It is said that the staff at the various prisons where he was held were themselves directly guilty of institutional and systemic failures that denied him access to appropriate secondary healthcare. This covers two aspects:

    a) Duty to communicate medical appointments: it is said that prison administrative staff failed on discharge/transfer or generally to inform Mr Razumas of booked hospital appointments. It is said that this was breached on two occasions: in January 2011 and in August 2011.
    b) Duty to enable attendance at hospital appointments: it is said that the prisons were guilty of institutional and systemic failures that denied Mr Razumas access to secondary healthcare by failing to ensure he attended booked appointments. This is principally advanced in relation to the September 2012 appointment.
    It is also said that these failures put the Defendant in breach of its admitted duty to ensure that the Claimant had access to healthcare services.

    ii) Whether the Defendant owes a non-delegable duty in respect of those who provided healthcare at the prisons. Again this has two aspects:

    a) Duty to communicate medical appointments;
    b) Duty to protect his health and well-being and/or ensure reasonable care in medical care: It is common ground that there were clinical failings in diagnosis by the doctors who saw Mr Razumas. Such failings, it is said, put the Defendant in breach of two wider duties: first, to ensure or secure that reasonable care was taken in the protection of the Claimant's general, health, welfare and well-being; second, as part of that first duty, to secure that reasonable care was taken in the provision of medical care to Mr Razumas.

    iii) Whether the Defendant is vicariously liable for those involved in the management of Mr Razumas' healthcare needs while in prison. It is said that the healthcare teams and their functions were so integrated into the business of running the prison that the Defendant was vicariously liable for their negligent acts and omissions.

    iv) Whether, if the Defendant is vicariously liable for those involved in the management of Mr Razumas' healthcare needs in prison, that claim is barred by section 2(1)(a) of the Crown Proceedings Act 1947.

    v) Whether if a breach of duty is established the actions of Mr Razumas constitute an intervening cause which prevent his completing his cause of action.

    vi) Whether Mr Razumas' admitted falsehoods in some respects are sufficient to disentitle recovery under section 57 of the Criminal Justice and Courts Act 2015;

    vii) Whether the Defendant is liable for any unlawful infringement of Mr Razumas' Article 3 and 13 rights under the HRA 1998/ECHR.

    Direct duty of care

  128. The argument advanced for Mr Razumas put direct duty of care first. What was said is that it is the duty of custodians to protect the health of those in their custody. It is said that this is triggered by the fact of taking a detainee into custody. Reference was made to Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 QB 283 in which it was held that the police authorities had a duty to pass on information about the suicidal tendencies of a detainee to the prison authorities. There Lloyd LJ said at p. 289:
  129. "The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility. ... In the present case I have no difficulty in holding that the police assumed certain responsibilities towards Mr. Kirkham when they took him into custody, and in particular assumed a responsibility to pass on information which might affect his well-being when he was transferred from their custody to the custody of the prison authorities. Nor have I any difficulty in inferring reliance. That is sufficient to impose on the police a duty to speak."
  130. Farquharson LJ stated at p.294:
  131. "...  when one person is in the lawful custody of another, whether that be voluntarily, as is usually the case in a hospital or involuntarily, as when a person is detained by the police or by prison authorities. ..., there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which he could reasonably foresee would be likely to harm the person for whom he is responsible."
  132. The Claimant also relies on Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 as extending this duty to protecting detainees from suicide based on the complete control which the police or prison authorities have over a prisoner, combined with the special danger of people in prison taking their own lives.
  133. It is argued for Mr Razumas that the same features as can be seen in these cases are engaged here in that (i) custody denies prisoners unrestricted access to and choice in healthcare (ii) as a result of custody, additional risks of injury arise because prisoners may not get timely healthcare or they or their appointments may be lost in the system. This, it is argued, gives rise to a broad direct duty encompassing a duty to provide healthcare, to provide access to health care and to ensure effective communication and management of healthcare needs.
  134. The specific breaches of the direct duty which are alleged by the Claimant and the Defendant's responses are:
  135. i) The failure to take any steps to pass on the letter in January 2011, despite the fact that Mr Razumas says there was a discharge address. I should note here that ultimately this point was not pressed very hard, given that the Claimant rightly acknowledges that causation issues present an obstacle to his claim in this regard. Aside from issues on causation, the Defendant says that as regards this point the GP experts agree that the GPs cannot be criticised for filing the letter which arrived after Mr Razumas was discharged and since this was only on SystmOne, there could be no default by the Defendant's staff;

    ii) The failures to ensure that Mr Razumas was told of the appointment on 8 August 2011 when he was discharged on 3 August 2011. It is said that Mr Tullett should have ensured this took place. The Defendant says if there was a failure, it was a healthcare failure in that it was up to healthcare to perform a discharge review. The prison authorities could not perform this function, which required access to healthcare records. There is no evidence of a systemic failing which might be the Defendant's responsibility;

    iii) The failure to ensure that Mr Razumas in fact attended the medical appointment on 13 September 2012. Mr Razumas submitted that a taxi transfer to a hospital should have been arranged or that he should have been transferred back to HMP Bedford to attend that appointment. The cause of this failure is said to be the disregard by the Defendant's employees of the medical hold alert on NOMIS or a failure to pass this information on to medical staff. The Defendant submits that there was no failure by custodial staff. There is no evidence that they failed to pass on what they knew. All the relevant information was on SystmOne and available to the medical staff at Thameside, who failed to act on it. This was more information than was available to the custodial staff from NOMIS.

  136. Generally in relation to duty the Defendant drew my attention to In re McKerr [2004] 1 WLR 807 at [71] that: "The common law develops from case to case in harmony with statute. Its principles are generalisations from detailed rules, not abstract propositions from which those rules are deduced. Still less does it provide a solvent for any difficulties which may exist in the rules enacted by Parliament." It says that to the extent that there is any direct duty it has to be looked for as one which harmonises with - and does not conflict with - the legislative backdrop; and that the duties which the Claimant urges fall foul of this principle.
  137. Discussion – direct duty of care

  138. 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.
  139. 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.
  140. Likewise there may be an interesting argument as to whether the Defendant as well as the PCT would be in breach of any duty if the PCT made no arrangements for healthcare in a particular prison at all, but that does not arise here.
  141. What, though, of such matters as clinical governance? Again it seems likely that a duty exists but is limited to the responsibility assumed for this in the light of the statutory and regulatory framework; that, on the evidence both documentary and oral, is as to oversight of systems (e.g. regarding discharge routines and filling in of the medical part of PER forms) and does not extend to putting systems in place. It probably extends somewhat further still – to raising and seeking solutions to identified problems as part of the clinical governance process. Again there may be interesting questions if it came to a governor's attention that a healthcare provider did not have systems in place and was not taking steps to put them in place – by analogy with the situation when no healthcare is in place at all. There might also, it seems to me, be questions as to whether a governor would be discharging his duty if he had done no more than rely on positive outcomes from prison inspectorate reports, if it later emerged that a system which came within the purview of clinical governance was not in fact in place or running properly.
  142. 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.
  143. 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.
  144. I would accept the submissions of the Defendant that there was no breach of any direct duty. In particular:
  145. 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);

    iii) 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.

  146. 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.
  147. Non-delegable duty

  148. Thus the question of non-delegable duty does arise.
  149. When we come to the question of non-delegable duty I have of course been fortunate in having available to me the guidance recently given in Woodland v Swimming Teachers Association and Others [2014] AC 537 and Armes v Nottinghamshire County Council [2017] 3 WLR 1000.
  150. Both parties referred me extensively to Woodland. In that case Laws LJ in the Court of Appeal at [5] explained clearly the real meaning of the perhaps unhelpful term (see [8]) "non-delegable duty":
  151. "This is a step beyond the paradigm of a duty of care in the law of negligence. The paradigm is a duty by which the impleaded party is answerable only for his own acts or omissions. He is obliged to take care himself; not to see that others take care. But what is alleged here is "not merely a duty to take care, but a duty to provide that care is taken": The Pass of Ballater [1942] P 112, 117, per Langton J. The duty will thus be violated not only by want of care by the impleaded party, but also by his agents, whether they are his employees or independent contractors."
  152. 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:
  153. 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 non-delegable duty imposed a higher duty of care upon a defendant and that caution was needed to prevent the exception eating up the rule; "Non-delegable 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".

  154. 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:
  155. "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."
  156. The other five members of the court agreed with this approach. Baroness Hale, who gave the only other judgment, cautioned [38], "I also agree that the principle will apply in the circumstances set out by Lord Sumption JSC at para 23, subject of course to usual proviso that such judicial statements are not to be treated as if they were statutes and can never be set in stone".
  157. The Claimant says that if there is no direct duty there is nonetheless a non-delegable duty because:
  158. i) Feature (i): he was a prisoner dependent on the Defendant for protection against the risk of injury (Lord Sumption uses prisoners as an example);

    ii) Feature (ii): he was in the charge and under the control of the Defendant;

    iii) Feature (iii): he surrendered complete control over his healthcare and, more specifically, his involvement in his access to secondary care; and

    iv) Features (iv-v): the various functions that failed were integral to the positive duties listed.

    Accordingly Mr Razumas says that the Defendant can be taken in all the circumstances to have assumed the responsibility for healthcare and was under a positive duty to ensure that he had access to healthcare services and also to ensure that reasonable care was taken in the protection of his general health, welfare and well-being.

  159. It is contended for Mr Razumas that the present case is different to the situation in Armes for two reasons: (i) the duty arises from the common law and not from statute and (ii) as a custodian with responsibility for the health and welfare of prisoners, the Defendant has to provide healthcare. A prison cannot humanely be run without it.
  160. The Claimant also submits that there are sound reasons why it is fair, just and reasonable to impose a non- delegable duty in these circumstances. In particular he argues that:
  161. i) The position of a prisoner is unique in that he is precluded from knowing the dates when he is to attend hospital and his relevant healthcare provider changes frequently at the behest of the prison service;

    ii) The prison service previously provided primary healthcare and the prison service was liable for its own defaults;

    iii) Primary healthcare provision is only one facet of the prison service's wider pastoral duties and its effective delivery requires coordinated and collaborative working across disciplines. The prison service should ultimately be responsible for these; separation of healthcare from welfare and administration is impossible;

    iv) Without it, prisoners will lack a single solvent target and be without an effective remedy;

    v) The Defendant is financially sound and can protect itself against the defaults of third parties by obtaining appropriate indemnities.

  162. The Claimant also submits that I should follow the decision of Coulson J in GB v Home Office [2015] EWHC 819 (QB) and that I should regard Morgan v Ministry of Justice [2010] EWHC 2248 (QB), in which Supperstone J decided that the Defendant could not hold a non-delegable duty to a prisoner, as wrong for the reasons given at paragraphs 44 - 62 of the GB case.
  163. The Claimant also submits that the concession which the Defendant makes as to the existence of a duty pre-2003 is fatal to the Defendant's case, because the common law duty cannot have altered in content. He submits that the appointment of a medical officer was only a manifestation of one method by which the primary obligation to provide healthcare was performed. The requirement was not and cannot have been the basis for a non-delegable duty. A non-delegable duty always existed as a matter of common law. Any separate duties that arose for the PCTs or the Department of Health as a result of the funding changes in 2003/2006 were in addition to, and not instead of, the prison duties. The statutes cannot be said to have impliedly erased the prison's common law duty.
  164. Further, he says the Prison Rules could not give rise to private law rights of prisoners or any duty on the prison and thus the reliance on statute to frame the duty is misplaced. He relies on Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office [1990] 3 WLR 465.
  165. On the evidence as to the operation of healthcare, the Claimant submits that this does not assist the Defendant in that there was not the impenetrable barrier between custodial staff and healthcare for which the Defendant contends. He points to various aspects in the evidence including:
  166. i) The fact of appointments, date and location (including nature of hospital) were at least sometimes recorded in the Claimant's NOMIS prison records;

    ii) Prisoners are asked about medical information that is deemed relevant to the prison, which is then recorded in the NOMIS prison records. For example, the fact of alcohol or drug dependency is medical information but is recorded on the NOMIS prison record on reception into prison;

    iii) A summary of relevant health problems is an official part of the NOMIS prison records;

    iv) Prison records contain detailed information about medical condition when relevant to other operational matters such as capacity to work. In this case for example Mr Razumas' contention that he was unfit for work in late 2010 led to some discussion of his medical position.

  167. On non-delegable duty the Defendant essentially submits that the approach of the Claimant is overly simplistic. It says that Lord Sumption's rationale for the imposition of a non-delegable duty rested upon the special character of the relationship between the defendant and claimant. What was required was a relationship antecedent to the act of negligence which gave rise to this more onerous duty; see [7] "… the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks". That special relationship would be characterised on the defendant's side by the exercise of control or custody over the claimant, and on the claimant's side by a vulnerability or dependence arising from that custody or control.
  168. 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.
  169. 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.
  170. The Defendant accepts that prior to 2003, or by the latest, 2006, prisons would have owed a non-delegable duty to prisoners in respect of healthcare because the prison was, by statute, obliged to provide the medical treatment to which the prisoner then consented. The prison was the healthcare provider and as such could have contracted with a third party to perform that statutory obligation but it could not delegate its responsibility to ensure the treatment provided was competent.
  171. However the Defendant says that since 2006 the statutory obligation to provide healthcare to prisoners has been transferred from prisons to the NHS. The effect of the change is that when a prisoner seeks treatment he gives his consent to the NHS body providing the healthcare. This creates the antecedent relationship upon which the non-delegable duty regarding healthcare rests. This, the Defendant says, can also been seen in the contractual arrangements; the disclosed documents clearly establish that it was the PCTs who contracted with the private healthcare providers (and it would appear obtained indemnities from them against just such liability).
  172. This is not affected, the Defendant says, by the fact that the Defendant had a statutory obligation to "maintain" Mr Razumas (section 4 of the Prison Act 1952) because that obligation did not include medical treatment. Medical treatment was historically dealt with separately: under section 7 (medical officer), and rule 20 of the Prison Rules 1999 (requirement for medical officer to provide treatment). Those provisions have been repealed and replaced with the provisions which require the prison to provide access to NHS care and to co-operate with the NHS so that each can efficiently discharge their respective functions.
  173. Even if this were not so, the Defendant submits that the fourth of the five features identified by Lord Sumption in Woodland is not present (delegation of a function which is an integral part of the positive duty). The Defendant submits that the statutory provisions and evidence in this case both illustrate the clear distinction between the Defendant's control over Mr Razumas as a prisoner and his treatment by prison healthcare. So far as the evidence is concerned this includes features such as the separation between the Defendant's control and consensual treatment, which is illustrated by the confidentiality of the clinical process and records (itself a part of the principle of equivalence for which the changes were made). The Defendant says that to impose a non-delegable duty upon the Defendant would mean that it would be required to take an active part in managing prisoners' healthcare, and that would be contrary to Parliament's intention when enacting these legislative changes.
  174. The Defendant submits that the importance of the statutory position is reinforced by the Supreme Court's decision in Armes; at [38] Lord Reed emphasised that when considering whether a non-delegable duty arose on a public authority for the exercise of a statutory responsibility, the courts should distinguish between a statutory obligation to perform a particular function, and the obligation to arrange for its performance. He held that, "everything turns on the particular statute". The Defendant says that the position here is analogous to Armes where Lord Reed interpreted the relevant statutory provision, section 21(2) of the Child Care Act 1980, which provided, "(1) A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they see fit, namely- (a) by boarding him out …", as creating a statutory power to arrange rather than to provide the accommodation and maintenance delivered by foster parents and held the fourth feature was absent and there was no non-delegable duty .
  175. The Defendant reiterates that it has no statutory obligation to either provide or arrange for the provision of healthcare in prisons; only an obligation to work in partnership with the NHS to provide access to healthcare, and thus the Defendant had no statutory obligation to provide healthcare, nor even itself to arrange for it.
  176. The Defendant submits that to find a non-delegable duty in this case would be to expand materially on the ambit of the duty envisaged by Lord Sumption and would be to impose just such unreasonable financial burdens on critical public services as those he deprecated in this context.
  177. So far as concerns the two cases of GB and Morgan the Defendant submits that there is no inconsistency and that both decisions are right on their facts. In the former Coulson J held that the Home Office owed a non-delegable duty for a private contractor, Serco, who provided healthcare at a detention centre relying upon section 149 of the Immigration and Asylum Act 1999 and rule 33 of the Detention Centre Rules 2001 [13-15]. These statutory provisions established (a) that the Home Office was responsible for running the detention centre, (b) that responsibility included an obligation to ensure that each detention centre had a medical practitioner registered as a GP and a health care team and (c) the Home Office might enter into a contract with a third party to run a removal centre.
  178. The Defendant contends that the critical distinction between the cases is the statutory provisions. In GB the finding of a non-delegable duty was the correct conclusion based on the statutory provisions which broadly mirrored the position in prisons prior to the transfer of medical care to the NHS. In Morgan the position is truly analogous to the present: healthcare was provided by the PCT, not the defendant, and so there could be no non-delegable duty.
  179. Discussion- non-delegable duty

  180. On this argument I am also unpersuaded by the arguments advanced so ably for Mr Razumas by Mr Melton QC. Mr Weitzman QC for the Defendant has, as I have already indicated, advanced detailed analysis as to why the Claimant's argument is wrong. I substantially accept that argument, but it seems to me that although the argument can be broken down at a number of stages (as the Defendant has done) the point can be boiled down to this.
  181. It is clear (see Lord Sumption [24]) that the distinguishing feature of the non-delegable duty cases is "control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility". See to similar effect Court of Appeal [9] which indicates that one is looking at "persons in need of particular care, for which they place themselves or are placed in the hands of the [relevant target for the non-delegable duty]".
  182. What this part of the analysis makes clear is that there is a nexus between the control of the claimant by the target and the purpose of that control/placing, and the care inherent in that relationship. That facet can be easily seen in a hospital, as regards healthcare – a patient gives himself over to the hospital for the very purpose of healthcare. Or as Lord Sumption put it at [30] the claimant, as well as being in the target's care should be "receiving a service which is part of the institution's mainstream function". To similar effect is Baroness Hale's point at [40 and also 42] that the conundrum in the Woodland case resulted from "outsourcing of essential aspects of [public authorities'] functions".
  183. 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 [2005] QB 183, discussed in detail in Woodland and endorsed by Lord Sumption at [24], where a non-delegable duty on the part of the Army for healthcare was not made out because (Lord Phillips at [28]) 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.
  184. Likewise one sees in Myton v Woods (1980) 79 LGR 28 (also endorsed by Lord Sumption at [24]) a rejection of a non-delegable duty where the school had no statutory duty to transport children, but only to arrange and pay for it. As Lord Denning said: "he is not liable for the negligence of an independent contractor in the ordinary way: except he delegates to the contractor the very duty which he himself has to fulfil. If it is his own duty which is not fulfilled, he cannot escape responsibility for negligence by saying that it was delegated to a contractor." This too, of course echoes the point made in Armes as to the need to look at the substantive content of the (there) statutory duty.
  185. 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.
  186. This same point can be looked at from the other direction (as was the Defendant's preferred approach) to come to the conclusion that there is no (relevant) antecedent relationship. I have not preferred that approach myself because there is of course an antecedent relationship which could give rise to a non-delegable duty in relation to custodial matters (as expressly adverted to in (i) of Lord Sumption's analysis). Thus my own approach would be to say that the earlier stages of the analysis may be important in other cases, but here the fact that a duty might arise in other contexts can render those steps confusing or artificial.
  187. I do not consider that the case of GB compels any different conclusion. The legislative backdrop there was entirely different. In that case there was an express provision in Rule 33 of the Detention Centre Rules that "Every detention centre shall have a medical practitioner.... Every detention centre shall have a health care team." Thus healthcare was an essential part of the relationship undertaken between detainee and detention centre. Here it is not. However I do note that Coulson J found the answer on the question of whether (even on that wording) healthcare was integral to be difficult ([34]) and that in that case there was not only a different legislative framework, but also a specific factual context for imputing a duty.
  188. I note that Coulson J in GB indicated (extremely politely) that he considered Morgan to have been wrongly decided. With the greatest of respect to him, I venture to disagree. It is true that Morgan was not decided primarily in reliance on the legislative position as to healthcare funding and responsibility – the Crown Proceedings Act played a much more prominent role in that case than it does here. However it is plain from paragraphs 28-9 of Supperstone J's judgment, where he gives an elegant summary of the complicated statutory position, that he had had cited to him much of the legislation which has been cited to me, and to similar effect. It appears from reading paragraphs 46-53 of GB that Coulson J may not have had that passage cited and fully explained; and the Byzantine nature of the relevant legislation would tend to mean that if it had not been fully argued, its effect would tend to be unclear.
  189. Nor do I consider that there is any difficulty in the fact that the position as to duty has changed since the change in legislative provision. In the context of the flexibility of the common law principles and the authorities which indicate the complementary nature of the relationship between statute and common law there is nothing difficult or surprising in the position as to duty changing with such a major change in legislative arrangements. Nor is there any problem caused by the fact that the duty itself is not one set out in statute; that would be an artificial distinction and one which would sap flexibility from the common law.
  190. So far as concerns the Claimant's submission that if I were not satisfied on the Woodland principles, a non-delegable duty could be established simply on "fair and reasonable" principles, this was (rightly) advanced fairly tentatively. It seems to me that Lord Sumption's judgment at [9] is clear, that this offers very little guidance for principled enquiry, and that the requisite "sharper edge" to which he there refers is provided by his later principles. Therefore, having failed on those, there is no alternative route for non-delegable duty.
  191. Vicarious liability

  192. As with non-delegable duty, the issue here is informed by recent authority, in particular: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1, Cox v Ministry of Justice [2016] AC 660 and Armes.
  193. In my judgment the most useful starting point here is the passage from the speech of Lord Philips at [35] in Various Claimants, which identified five relevant features and was affirmed by Lord Reed in Cox and Armes:
  194. "There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer."
  195. I should note, given the terms in which this passage is cast, that in Cox at [20-23] Lord Reed made it plain that a relationship of employment was not necessary, only that the features (and in particular (ii) to (iv)) were present. The reason for this was that these measured the extent to which the tortfeasor was integrated into the business or enterprise of the defendant. The rationale for this reflects the fact that we live in an economy/society where the provision of services is so often outsourced. This approach ensures that the party responsible for creating the risk which produced the injury of the claimant could still be held liable for the damage.
  196. Turning to the parties' submissions, the Claimant by reference to the judgments of Lord Reed in Cox and Armes focuses on the three middle issues: (a) carried out on behalf of the defendant, (b) integral to business activities of the defendant and (c) whether the defendant, in engaging the tortfeasor to carry out the relevant activity had created the risk of the tort being committed by the tortfeasor.
  197. The Claimant says that in this case such integration was patently present in that:
  198. i) The healthcare operation is to some extent subject to the Governor's authority:

    a) The governor is responsible for overall health and welfare of prisoners;
    b) Healthcare serves are run on the Defendant's premises with the provider having a licence to use only designated parts of the premises;
    c) The governor has the power to direct the positioning of equipment and prisoners;
    d) The contracts allow the governor to remove any member of the healthcare team from work;
    e) The healthcare provider also had to comply with the local security strategy, governors' orders, governors' information notices and prison service standards.

    ii) There were (inextricably) linked custodial and healthcare functions:

    a) The PSIs and PSOs applied to those who ran healthcare and prevailed above all the contractual terms in PCT/provider contracts;
    b) There were regular meetings by governors about healthcare, (clinical governance meetings and daily meetings with representatives of healthcare providers);
    c) There is a bespoke individual patient medical record for use by all working in healthcare in prisons;
    d) There are rules which span the two areas: eg. the rule against providing appointment details, risk assessments, many aspects of reception, transfer and discharge functions, including joint completion of PER forms.
  199. Undoubtedly, he says, engaging a healthcare provider created the risk of clinical and related negligence that might harm prisoners.
  200. The Defendant put the test slightly differently; arguing that the imposition of vicarious liability depends overall on the answer to two questions at [53] Armes, "First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct or an individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship for vicarious liability to be imposed?", Lord Phillips' five questions break down the first of these, the nature of the relationship necessary before liability can be imposed.
  201. The Defendant submits that on this basis factor (i) is absent. The private health providers who treated Mr Razumas are likely to be insured. If they are not, then the PCTs who contracted with them or NHS England their successor were public bodies and able to meet any claim for damages.
  202. On the second factor it says that this too is absent: the torts complained of are a negligent failure to appropriately treat and specifically a failure to refer Mr Razumas to an orthopaedic surgeon. These activities were performed by the individual staff employed either by the PCT or the contractor. They had no employment relationship with the Defendant and were external to the Defendant's organisation.
  203. As regards the third factor, the business activity was not part of the Defendant's statutory obligations. As a matter of both statute and fact the provision of treatment had deliberately been separated from the Defendant's custodial activities.
  204. As regards the fourth factor, while by contracting with the private companies or individual medical practitioners to provide care a risk of clinical negligence was created, it was not the Defendant who created that risk. Again this was the PCT who arranged and entered into the contracts.
  205. The Defendant also submits that the final factor, control, is absent. It exercised no control over healthcare in prisons. This is very different, says the Defendant, from Armes where Lord Reed focused on the control that a local authority was able to exercise over foster parents through the comprehensive rules set out in the Boarding Out Regulations 1955. In this case the Defendant exercised nothing like this control – but the PCT did.
  206. Taking these points together, the Defendant submits that it is clear that the healthcare providers were integrated into the business and organisation of the PCTs and not into the prisons. If there is vicarious liability for these private contractors then it is the PCT that is liable.
  207. While Various Claimants establishes that joint vicarious liability is possible, when the Defendant's position is considered, each of the five factors is absent and there is thus no ground for finding that the relationship between the Defendant and those who provided healthcare in the prisons is one which would give rise to vicarious liability.
  208. The Defendant submits that if the answer to Lord Reed's first question at [53] is negative the court need not consider the second; whether the acts complained of were closely connected to the Defendant's relationship with the healthcare providers. But in any event it says the answer is in the negative. They were not. The clinical negligence was closely connected with the healthcare providers' relationship with the PCT.
  209. Discussion – Vicarious Liability

  210. 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):
  211. 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.

  212. As for the first question, on compensation, the question is a poor fit in the factual scenario. The reality is that there is no likely shortfall of cover, in that both the PCT and the Defendant have means and the healthcare providers were required to take out very considerable insurance.
  213. There remains of course the possibility of joint liability. But is seems to me that for that to arise the answers to the individual questions above would need to be very different and to speak to a much greater degree of integration and control than the facts of this case evidence.
  214. Crown Proceedings Act 1947

  215. The next issue is one which only arises if I consider that vicarious liability exists. Accordingly on the conclusion I have reached it does not arise in this case. However for completeness, and because I understand that there are other cases in which similar issues arise, I will deal with the point briefly.
  216. The Defendant submits that cause of action is barred by the CPA 1947. It says that while the Defendant is an authorised Government department for the purposes of section 17(3) and proceedings against the Crown can be brought in a claim against it, the restrictions under the Act as to the proceedings that can be brought against the Crown apply. In particular, Section 2(1)(a) allows claims in tort to be brought against the Crown's servants or agents. It is common ground that the provision as to servants is inapplicable. Agents are defined in section 38(2) as,
  217. '"Agent" when used in relation to the Crown, includes an independent contractor employed by the Crown'

  218. As indicated by Lord Reed in Armes, vicarious liability involves a breach of duty by the tortfeasor, not the defendant. The Crown did not employ the healthcare professionals who treated Mr Razumas. They were engaged by the PCTs. The PCTs were not authorised Government departments under section 17. The clear legislative intention is that they should be separately and solely liable for any tortious liabilities which they incurred. While the Crown can be liable for the torts of its officers (section 2(3)), it is not liable for the acts of others unless they fall within the scope of section 2(1)(a); that is not the case here.
  219. In response to this, the Claimant submits that the definition is not exclusive; it 'includes' independent contractors employed by the Crown. If the Court accepts the factual basis for vicarious liability (integration of the healthcare set up into the prison business) then the various independent contractors (the corporate healthcare provider, its staff, its agency workers and its locum doctors) could all be said to be employed by the crown. There is no requirement for them to be in a direct contractual relationship.
  220. The Claimant submits that in considering this point I should also bear in mind that the Act was passed in order to clarify and not to narrow the scope of the Crown's liability and to put the Crown in the same position as ordinary citizens (per Coulson J in GB v Home Office paragraph 62).
  221. Discussion – Crown Proceedings Act

  222. There are two reasons for keeping this discussion short. The first is that the point does not arise. The second is that the very reasons why the point does not arise make the point very artificial. The idea of that definition extended to include healthcare professionals seems very strained when one concludes, as I have, that the necessary integration of the two aspects is a long way from meeting the requirements of vicarious liability.
  223. I will therefore confine myself to saying this. It seems to me not unlikely that if the conditions for vicarious liability were met, a court would (given the aim of the Act) be minded to conclude that the definition was not exclusive, and that the action would not be barred by the operation of the Act. The provision seems to have been designed broadly to reflect the position as to vicarious liability at common law. It would be odd if it should be interpreted to take it out of step with that area of law as it has evolved.
  224. Intervening acts/causation

  225. Again, given the conclusions I have reached above, this does not arise. However as it could arise if a higher court were to take a different view on the law, and I have heard the evidence I will deal with this point.
  226. The starting point is that Professor Grimer has identified an eight week treatment period from the date of referral. If an amputation was required after 1 January 2013 the causative breaches are prior to November 2012.
  227. The point in fact relates to the periods between 11 January and 4 April 2011 and again between 3 August 2011 and 9 July 2012 when Mr Razumas was not in prison. The Defendant submits that in these periods he did not seek medical treatment and that this was unreasonable and so breaks the causative connection between any earlier negligence and the effects of a failure to treat prior to his return to prison in July 2012.
  228. The Defendant relies in particular on McKew v Holland & Hannen & Cubits (Scotland) Ltd [1969] 3 All ER 1621 per Lord Reid at 1623E
  229. "In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment, he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability, which in turn was caused by the defender's fault. But if the injured man acts unreasonably, he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens . The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it."
  230. It also directs my attention to Smith v Youth Justice Board for England and Wales [2010] EWCA Civ 99 per Sedley LJ at 31:
  231. "It is today well established that causation is in essence a question of fairness. Lord Justice Laws in his judgment in Rahman v Arearose Ltd [2001] QB 351 , §33, (cited with approval by Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 , §12) explained the issue as one of responsibility. In Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 , §15, I said that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue."
  232. The Defendant points out that on his own case, had Mr Razumas sought treatment from a GP then he would have been referred to an orthopaedic surgeon, an MRI scan would have been taken and the diagnosis of a tumour made, resulting in an earlier operation. The orthopaedic referral would have been within 8 to 12 weeks if not urgent, 4 to 6 weeks if urgent.
  233. On this point the Claimant's submissions are brief. He says that this point is logically unsustainable if any breach post July 2012 is established, but that is not controversial.
  234. Apart from that, the Claimant submits that the failure to seek medical attention does not 'eclipse' the prolonged, repeated failures of the healthcare staff. This is, says the Claimant, predominantly because his failure is understandable. However he also submits that it is relevant that there were repeated and prolonged failures and submits that we do not know what would have happened had he been seen.
  235. As to the first period, the Defendant says that Mr Razumas was able to seek treatment in the community between January and April 2011, a period in excess of 8 weeks. This is not contradicted by the Claimant.
  236. The Defendant says that the correlate of this is that either treatment would have been completed in the community or it would have been well advanced by the time of his return to prison. Even if he had only started the process he would have been able to convey the information to prison healthcare ensuring continuity of care. This would have led to a local excision in late March or April. At this point Professor Grimer is clear that most of the function in the leg would have been spared.
  237. It seems to me (and the Claimant did not press this point with any enthusiasm) that so far as this first period is concerned, the Defendant's point is well founded. Were there any negligence attributable to the Defendant in early 2011 (as I have found there is not), liability would be precluded by Mr Razumas' own failure to seek treatment in this period. There is also of course the evidence as to the apparent contact with the hospital which was not followed up.
  238. The second period is therefore the controversial one. This coincides in part with the alleged summer 2012 appointment. The Defendant says nothing was done by Mr Razumas for the whole of the period. When he returned to prison in July 2012 Mr Razumas told the healthcare staff that he had attended a GP and been given a date for an operation at a hospital for the removal of the lump. This is also his pleaded case – identifying Newham as the hospital. The Defendant does not accept that Mr Razumas did attend a GP, Newham Hospital or that he was listed for surgery (or any other treatment) there on 13th July.
  239. It is quite clear that there was nothing done prior to this. As to alleged appointment, the position is that despite attempts by Mr Razumas' solicitors, no records of these medical consultations have been obtained. Nor have they been able to identify the charity which Mr Razumas says arranged the visit. Theirs were not the only enquiries; it is clear that healthcare staff in the prison took a number of steps to confirm the identity of the GP and the hospital at which the operation was to be performed, also without success.
  240. There are also issues raised by the fluctuations in Mr Razumas' account. On 15 June 2015 Mr Razumas was interviewed by Professor Grimer and told him that he had not registered with a GP or been to hospital but simply got on with his life, and that for much of the period he was on the run from the police after taking a car at knife point. Professor Grimer also records that Mr Razumas said that he had lied about this appointment (and his family medical history) to get attention from the medical staff at HMP Bedford.
  241. In his evidence Mr Razumas accepted in broad terms that his evidence about the surgery was a lie, although he suggested that there might have been an appointment for some other intervention – such as drainage (which, as I have noted above, has not been suggested to be a treatment for Mr Razumas' actual condition).
  242. The Defendant therefore invites me to conclude that there was no such appointment and that Mr Razumas made a deliberate choice between August 2011 and July 2012 not to seek medical attention. It submits that given the concerns that he had previously expressed, his behaviour was unreasonable, particularly if one of the reasons for this decision was because he was trying to evade arrest by the police for a robbery that he had committed.
  243. Although some cross examination was directed to this point, no case was advanced in closing that Mr Razumas would not have been treated in the community. That position seems to me to reflect the evidence which I heard, which indicated that Mr Razumas would have been seen at A&E if he had difficulty registering with a GP, though the likelihood of his condition being diagnosed was possibly less at an earlier stage when the symptoms were less manifest. It is therefore apparently common ground that if Mr Razumas had sought treatment following his release from prison in August 2011, by the time of his return to prison in July 2012 a local excision would have been performed and the tumour removed.
  244. I accept the Defendant's submissions. Mr Razumas' evidence as to the alleged appointment was confused and unconvincing. He accepted that he had lied in one respect about it. He was then not straightforward about his actions, shifting ground in order to try to justify his position. I concluded that I could place no reliance on his evidence in this respect. Further it is implausible that if he had had such an appointment it could not have been traced during the course of this litigation. I therefore accept that he failed to seek medical treatment during the relevant period.
  245. 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.
  246. Section 57 Criminal Justice and Courts Act 2015

  247. 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.
  248. It is common ground that this provision is applicable to this case and which provides:
  249. "Personal injury claims: cases of fundamental dishonesty
    (1) This section applies where, in proceedings on a claim for damages in respect of personal injury ("the primary claim")-
    (a) the court finds that the claimant is entitled to damages in respect of the claim, but
    (b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
    (2) The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
    (3) The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
    (4) The court's order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim."
  250. The Defendant submits that although the allegation in question is only one of a number of allegations over a period of time it is one if which proven was all that was needed to establish liability because it involved breach of non delegable duty, and also the alleged direct duty. Thus it is said that the allegation was a central part of the case, not a collateral or minor part of the case.
  251. The Claimant urged me to regard the dishonesty as being some way from the test of fundamental dishonesty. It was submitted that even if the court should find that Mr Razumas lied about the Newham proposed surgery, these untruths "barely scratch the bark" and go nowhere near the root of the case.
  252. The Claimant also submitted that if he were to lose the claim on this basis, he would suffer substantial injustice within the meaning of section 57(2) because of the gross disproportion between the lies and the effect of depriving him of an award.
  253. On the meaning of fundamental dishonesty I was referred to Howlett v Davies and Ageas Insurance Ltd [2017] EWCA Civ 1696 where at paragraphs 16 and 17) Newey LJ endorsed the following passage of the judgment of His Honour Judge Moloney QC in Gosling v Hailo 29 April 2014:
  254. "44. It appears to me that this phrase in the rules has to be interpreted purposively and contextually in the light of the context. This is, of course, the determination of whether the claimant is 'deserving', as Jackson LJ put it, of the protection (from the costs liability that would otherwise fall on him) extended, for reasons of social policy, by the QOCS rules. It appears to me that when one looks at the matter in that way, one sees that what the rules are doing is distinguishing between two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability.
    45. The corollary term to 'fundamental' would be a word with some such meaning as 'incidental' or 'collateral'. Thus, a claimant should not be exposed to costs liability merely because he is shown to have been dishonest as to some collateral matter or perhaps as to some minor, self-contained head of damage. If, on the other hand, the dishonesty went to the root of either the whole of his claim or a substantial part of his claim, then it appears to me that it would be a fundamentally dishonest claim: a claim which depended as to a substantial or important part of itself upon dishonesty."
  255. 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 [2018] 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.
  256. Having reviewed the numerous County Court authorities and the debates on the Act, the learned judge said as follows:
  257. "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."
  258. 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.
  259. 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.
  260. I do not consider that there could be any way out for Mr Razumas via the argument on substantial injustice. It cannot in my judgement be right to say that substantial injustice would result in disallowing the claim where a claimant has advanced dishonestly a claim which if established would result in full compensation. That would be to cut across what the section is trying to achieve.
  261. In the Sinfield case Julian Knowles J had no difficulty in dismissing this argument in the context of a dishonesty which went only to part of the quantum claimed. At [89] he stated that it was plain from section 57(3):
  262. "….something more is required than the mere loss of damages to which the claimant is entitled to establish substantial injustice. Parliament has provided that the default position is that a fundamentally dishonest claimant should lose his damages in their entirety, even though ex hypothesi, by s 57(1), he is properly entitled to some damages. It would render superfluous s 57(3) if the mere loss of genuine damages could constitute substantial injustice."
  263. This, it seems to me, must be right. Something more is required. That something more is not made out here and so, if there were a claim it would fail at this stage.
  264. The Claim under the HRA 1998

  265. The backdrop to this aspect of the claim is in section 6(1) of the HRA 1998 which requires the Court to act compatibly with any relevant Convention right:
  266. "6 Acts of public authorities.
    (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.…"
  267. Mr Razumas points in particular to Article 3 ECHR: Protection Against Inhuman and Degrading Treatment. Article 3 ECHR (as incorporated by s.1 and Schedule 1 of the HRA) provides:
  268. "ARTICLE 3: Prohibition of torture
    No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
  269. In summary it is said that the successive failures to provide the requisite medical assistance for the treatment of his sarcoma amounted to degrading treatment within the meaning of the Article. The Claimant points to his pain and distress, his increasingly restricted mobility and the outcome of serious ongoing disability resulting from failures to give him the proper treatment promptly.
  270. Limitation

  271. Section 7(5) of the HRA 1998 provides the time limit for bringing a claim to be:
  272. "7(5) Proceedings under subsection (1)(a) must be brought before the end of—
    (a )the period of one year beginning with the date on which the act complained of took place; or
    (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
    but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
  273. Prima facie therefore Mr Razumas' HRA claim, first made in the skeleton argument on 5 January 2018, is time barred. The matters complained of began in January 2011 and ended in January 2013. The claim was first made between four and six years after the expiry of the one year limitation period. So the year is well past.
  274. For Mr Razumas it was argued that the extension of time should be granted because he was unable to bring his claim within one year of his diagnosis in September 2013, due to the ongoing consequences of the human rights violation he suffered, including the adjustment to his serious disability within the prison environment, with limited aids and equipment. It was also submitted that he was experiencing an ongoing language barrier and was unfamiliar with the English legal system. Reliance was also placed on the fact that he was homeless after his release on 15 June 2015.
  275. It was submitted that in all the circumstances it would be inequitable for him to be prevented from pursuing his HRA claim because it was not pursued earlier on his behalf. It was also argued that the Defendant has suffered no prejudice by the late amendment given that the fact base for the case replicates that for the common law claim.
  276. The Defendant submits that the application for an extension should not be granted.
  277. As to "all the circumstances" it says that adopting the approach contended for on behalf of Mr Razumas would be manifestly inappropriate given the fact that this claim could have been advanced much earlier. It submits that the intention of Parliament was to ensure that public authorities would be put on notice and could deal expeditiously with such claims. Given Mr Razumas spent two periods of seven and 12 months out of prison, it is said that this cannot be argued as a continuous course of conduct.
  278. The Defendant points out that Mr Razumas was seeking to instruct solicitors before the amputation of his leg in November 2013. He signed a CFA in February 2014. Those solicitors had access to his medical notes and wrote detailed letters before action in 2015 and had instructed medical experts prior to the issue of proceedings in August 2016. The Defendant also notes that the claim form specifically indicated that no issues arose under the HRA 1998, though he did via another firm of solicitors make a claim against the Home Office, which included a cause of action under the HRA 1998. Further, as late as autumn 2017 Mr Razumas amended his claim to add allegations of direct and vicarious liability but did not plead any HRA claim.
  279. So far as Mr Razumas relies on homelessness as an excuse for the delay the Defendant says that this was only at an early stage and in any event his homelessness was because he had committed an armed robbery. As a matter of public policy he cannot rely on his own illegal acts as a basis for the exercise of an equitable discretion in his favour.
  280. It is also submitted for the Defendant that the HRA claim adds nothing to this case. If he succeeded on a common law claim he would receive common law damages which would be more substantial than any HRA damages and extinguish any claim under the HRA. There would be no need, given the finding of negligence, for declaratory relief (section 8(3) HRA 1998).
  281. In relation to this point I have been reminded that the approach under this section is similar to that under section 33 of the Limitation Act 1980. Thus I have an unfettered discretion and I am not required to give one factor more weight than another: Dunn v Parole Board [2009] 1 WLR 728 at [30 to 32], approved by the Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at [75].
  282. The starting point is that burden is on the Claimant, as the party seeking the exercise of the court's discretion in its favour, to satisfy me that it is appropriate to do so. I am not so satisfied. I am firmly of the view that taking all the circumstances into account there is no reason to disapply the limitation period. The limitation period is there for good reason, which was not disputed. The delay is more than substantial, being between three and four times the length of the limitation period after the expiry of that limitation period.
  283. No good reason has been given for the delay. Nor do I see how there could be a good reason in circumstances where for nearly the whole period Mr Razumas has been legally advised. Although I have no doubt that he has been in very difficult circumstances and his new situation has been very challenging to adjust to, he has managed in this period to instruct two sets of solicitors and pursue two claims. His homelessness did not apparently prevent this. The submissions as to the language barrier also did not cohere with Mr Razumas' own evidence as to his linguistic abilities. I will therefore not permit the extension of time.
  284. Given the potential for further issues to arise from this decision, I should also for completeness indicate what would have been my view on the substantive issue had I allowed the extension. This raises the question of whether the Defendant is the appropriate public authority, which the Defendant submits constitutes a knock- out blow on the merits.
  285. Public authority

  286. As a matter of law, a claim for breach of the HRA 1998 is brought against a public authority, not the state; this means that the claim will only lie against the public authority with responsibility for he activity or omission complained of (see Lord Hoffmann in In re Kerr [2004] 1 WLR 807 at [63 and 64]).
  287. The Defendant submits that the essential violation identified by Mr Razumas is a failure to advise and treat, leading to amputation. This, it says, was (as submitted in the common law context) a failure by the healthcare professionals and any Article 3 claim should therefore have been brought against the PCT; or now NHS England. It submits that if the common law case fails because the correct defendant was the PCT that mistake cannot be remedied by an Article 3 claim.
  288. The Claimant submits that there are custodial failures which make the Defendant the correct defendant. So too does the fact that the degrading nature of the treatment effectively comes from the custody relationship. But in any event it is submitted that in considering the correct identity of the Defendant in respect of the Article 3 ECHR violations, the Court should not take an overly formalistic approach.
  289. The relevant question, he says, is whether a claimant can obtain an effective remedy either preventatively or, after the event, in the form of compensation. He submits this is not possible via the "myriad alternative defendants that the Defendant proposes that this Claimant should instead pursue"; particularly given that some are not (it is said) solvent or insured. The remedy is therefore ineffective. Furthermore it is said that the costs consequences alone of pursuing so many different links in the chain are prohibitive, and place an excessive burden on the Claimant in breach of Article 13 ECHR.
  290. I am unconvinced by these submissions, attractively as they were put by Ms Roche for Mr Razumas. The breaches complained of are in essence medical matters. The complaint is not made about anything to do with the custody of the Claimant – the matters which go to make up the particulars of the HRA claim relate to pain, to lack of medical information and lack of therapeutic strategy. These are not even affected by custody. The failures were healthcare failures and the correct defendants to this claim, as to the common law claim, are prima facie the relevant healthcare entities.
  291. Nor do I see the principled basis on which I could properly hold that the wrong defendant should be permitted to be sued because of difficulties in identifying the right one(s). Similar issues arise as occur in relation to the use of "just and reasonable" to evade the requirements of the criteria for vicarious liability. The Court has procedures to enable such identification to be done (non-party disclosure, Part 20 proceedings and so forth). As to the financial aspects, there is no evidence that anyone except Dr Ekpo may not be insured, and he is hardly a primary target. The primary target must be the PCTs and their successors. The contracts evidence a requirement for insurance. There is no question of genuine ineffectiveness.
  292. Minimum severity

  293. The starting point here is the decision in Kudla v Poland (2002) 35 EHRR 11 where the European Court of Human Rights held that :
  294. "90 As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victims' behaviour.
    91 However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim."
  295. It was accepted before me that the test is as set out in the judgment of Hickinbottom J in Grant and Gleaves v The Ministry of Justice [2011] EWHC 3379 QB,:
  296. "46 The Strasbourg cases consistently adopt the following approach in prison cases. Where treatment or conditions in prison generate more humiliation, distress or other suffering than is inherent in a prison sentence, in order to prove a violation of Article 3, it is necessary for a complainant to show that, in all of the circumstances, the treatment or conditions satisfy the minimum severity test. That test has a high threshold; although the fact that the complainant is vulnerable because in state detention will often be a significant factor so that, even if treatment would not be humiliating if endured outside prison, it may well be found to be humiliating and degrading if suffered in a prison context.…

    52 In my view, the test with regard to minimum severity is an objective test, to be determined on the basis of all relevant circumstances, including the effects that the treatment or conditions are likely to have upon a person with the attributes of the victim. However, the definition of "degrading treatment" is focused on the effects on the victim; and, as the Strasbourg cases indicate, unless a claimant can show, by direct or inferential evidence, that the ill treatment in fact caused him serious suffering in terms of (e.g.) physical or psychiatric injury, or psychological harm or particularly serious evidenced distress, it will usually be difficult for him in practice to show that that objective test has been satisfied… He may be able to do so if, for example, (i) it can be inferred from the nature of his ill-treatment that he must have suffered distress or anguish of a sufficient level, or (ii) he suffered from a mental condition that meant that he could not fully appreciate his own suffering, or protect himself from it by (e.g.) pursuing a complaints procedure."
  297. In relation to this the Defendant submits that the matters complained of do not amount to a violation of Article 3 having regard to the minimum severity threshold. The Defendant relies on the facts that:
  298. i) It is accepted that there was no intention to humiliate or debase Mr Razumas;

    ii) It is accepted that there was no deliberate infliction of harm or suffering;

    iii) Mr Razumas had access to a complaints system and used it;

    iv) He also received medical treatment including pain relief, physiotherapy and (on his account) treatment in the community;

    v) There was no continuous failure because Mr Razumas was at liberty for significant periods; and when at liberty Mr Razumas could himself have sought treatment;

    vi) The allegations are of a negligent failure to diagnose. There is no suggestion of gross negligence. This negligent failure does not reach the very high threshold for even an arguable breach of Article 3.

  299. On this the Claimant submits that the absence of a deliberate intention to inflict pain or suffering is not fatal and that on the authority of R(P) v Secretary of State for Justice [2010] 2 QB 317 all that is needed is a neglect or failure to act or a failure to make proper provision.
  300. He reminds me of the authorities which establish that failure to provide prompt and adequate medical treatment can amount to a breach of Article 3, even if the applicant is receiving other forms of medical treatment.
  301. All in all, although it is accepted that the test is a high one, he therefore submits that it is met in this case, given the extremity of the result and the substantial period of time for which Mr Razumas was left with severe ongoing pain and loss of mobility while in prison.
  302. On this issue also I would not be minded to find for Mr Razumas. The hurdle for establishing minimum severity is a high one. There was no intent to humiliate or degrade. This is not a case where there was a denial of treatment. Mr Razumas received very considerable medical attention when he was in prison and neglected to take opportunities open to him to seek medical attention when he was at liberty.
  303. The cases where medical treatment given was found to be insufficient are cases of very different levels of severity – a delay of four years in receiving any treatment for diagnosed kidney stones in Pilcic v Croatia (Application no. 33138/06). Again in Kotsaftis v Greece (No 39780/06) a diagnosed chronic and irreversible liver condition was left untreated.
  304. This is a case in which medical treatment was given, but on occasions was given negligently. There was no malicious intent. There was no differential treatment. There was no gross negligence. It is, quite simply, a case where a system which should have worked fell short. I cannot see how such a case can be said to meet the requisite hurdle.
  305. Conclusion

  306. For the reasons I have given I conclude that Mr Razumas' claim fails.

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