In this post Rachit Buch of 12KBW examines the recent decision of Cockerill J in Razumas v Ministry of Justice  EWHC 215 (QB), a case concerning two distinct issues: (i) the liability of the MOJ for negligence arising out of healthcare provided in prisons and (ii) fundamental dishonesty in relation to clinical negligence claims.
The factual circumstances were as follows: the Claimant noticed a lump on his left calf in late 2010. He attended numerous appointments whilst in prison without referral to a specialist. When a referral was made, he was released on license before the appointment and was not informed of it. He was subsequently arrested and returned to prison in July 2012 and further delays in referral ensued. By the time the Claimant underwent biopsy, in August 2013, it was too late to excise the identified tumour, the Claimant’s leg was amputated and the cancer had metastasised.
The Claimant alleged that there had been institutional and systemic failures to communicate the dates of medical appointments to him and ensure his attendance at booked appointments. These failings were also said be a breach of the MOJ’s admitted duty to ensure prisoner access to healthcare.
Summary of decision
Cockerill J held that whilst there is a direct duty of care owed by the MOJ to inmates in respect of healthcare, that duty is limited to matters relating to access to healthcare.
In the instant case the system for the provision of access to healthcare was not found to be deficient. Accordingly, notwithstanding the fact that the Claimant had received substandard medical care on a number of occasions, it was the healthcare providers alone who had been negligent and there was no separate default by the MoJ.
Furthermore, even had the duty been engaged the claim would have been dismissed under s.57 Criminal Justice and Courts Act 2015 (‘CJCA’) due to the Claimant’s fundamental dishonesty in presenting his case.
Duty: direct or non-delegable
Healthcare in prisons is subject to a number of statutory provisions some of which have changed in recent years. In short, by virtue of s.3 National Health Service 2006, the Secretary of State for Health had headline responsibility to provide healthcare, including in prisons, up until the provision was amended with effect from 2013.
This duty was put into effect at the relevant time by Primary Care Trusts (‘PCTs’). Regulations required PCTs to secure the provision of healthcare to prisoners within their jurisdiction. PCTs were abolished by the Health & Social Care Act 2012 and their duties were replaced by the NHS Commissioning Board.
The Claimant argued that the custodial relationship gave rise to a direct duty of care between prison authorities and prisoner, relying on Kirkham v Chief Constable Greater Manchester  2 QB 283.
Cockerill J held that a direct duty does exist – but one of a more limited scope than that alleged by the Claimant. He found that the duty extends to matters arising out of the relationship of custody. This includes a duty to provide a safe environment, to take reasonable steps to prevent suicide (which was the issue in Kirkham) and probably also extends to the provision of access to healthcare. However the duty does not include a responsibility to actively reinforce the role of healthcare operators.
In short, the learned judge held that there was a duty to put clinical governance systems in place but not to ensure their day-to-day application. At the relevant times it had been healthcare providers who been negligent, and there had been no separate default by the MoJ.
As to a non-delegable duty of care, the parties accepted that the correct approach was that set out by Lord Sumption J.S.C. in Woodland v Swimming Teachers Association & Ors  1 A.C. 537. Applying Lord Sumption’s reasoning, Cockerill J held that in the present case there was no non-delegable duty primarily because the relationship of prisoner and custodian was not to provide healthcare or take care for the prisoner’s medical needs. As set out in the statutory framework, since 2006 it has not been part of the prison’s essential functions to provide or secure the provision of healthcare – that is the responsibility of PCTs (or now, clinical commissioning groups ‘CCGs’).
It was accepted that on a number of occasions the care provided by the various healthcare providers was substandard.
At issue was whether or not the relationship between the healthcare providers and the Defendant was such as to give rise to vicarious liability. The providers were not prison employees, they were contracted to work in the prisons by PCTs (or CCGs) either directly or through private healthcare providers.
Cockerill J held that the relevant relationship required to establish vicarious liability was not made out: the provision of healthcare was on behalf of the PCTs (rather than the prison); healthcare was, if anything, part of the business of the PCT not the prison; there was no employment relationship; control was only to a limited degree in the hands of the prison; and the training, contractual terms and discipline channels were decided by the PCT.
Fundamental dishonesty – s 57 CJA 2015
An interesting aspect of Razumas is its consideration of fundamental dishonesty in a clinical negligence context. We have recently seen a number of decisions in the higher courts concerning the circumstances in which an otherwise meritorious claim should be dismissed for fundamental dishonesty under S 57 CJA 2015.
Under s57 where a court finds that a claimant is entitled to damages in respect of a claim, but on an application by the defendant for the dismissal of the claim, is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim, it must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
In the instant case Mr Razumas originally pleaded that he had, in his period of liberty, arranged surgery at Newham hospital in July 2012. He then pleaded that there was a negligent failure by prison authorities to ensure he attended that surgery. This pleading was then amended to allege that there was a failure to ensure that he attended for an appointment rather than surgery. During the course of the hearing the Claimant conceded that he did not have an appointment for surgery, but maintained that an appointment (possibly for drainage) had been arranged.
Cockerill J rejected the Claimant’s evidence and found that there was no appointment for surgery or otherwise. He then adopted the approach to fundamental dishonesty formulated by Knowles J in LOCOG v Sinfield  EWHC 51 (QB) [at 62], namely that: “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.”
The learned judge held that the requirements of this test were made out: the dishonesty was related to the primary claim; and the argument which the Claimant advanced went to an entire factual section and pleaded occasion which would have entitled relief on the main claim.
Cockerill J then turned his attention to the Claimant’s submission 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.
The learned judge rejected this argument stating that it could not 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. He cited with approval the decision of Knowles J in Sinfield where he stated [at 89] “…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.”
This case makes it clear that prison authorities do owe a duty of care in relation to securing access to and putting in place systems to provide healthcare.
If local NHS bodies commission healthcare in prisons, but reasonable steps are not put in place to ensure this care is available, the NHS body is unlikely to be liable but the Ministry of Justice may be.
However, the scope of this duty is limited in the current statutory framework. It does not extend to the day-to-day provision of healthcare; breaches of what might be considered the more ordinary clinical duties are likely to remain the responsibility of the NHS (or private company employing the practitioner).
Razumas also brings fundamental dishonesty provisions clearly into clinical negligence context. The dishonesty here was in relation to one of numerous alleged breaches. It was initially stated to healthcare providers at the time and was not brought into existence merely for the legal claim. However, the untruth was repeated in pleadings and partly maintained in evidence.
It may be that in time s.57 CJCA will be treated more leniently for claimants than the current crop of cases – but this is an issue not restricted to personal injury cases and can have serious consequences for clinical negligence claims.