The Human Rights Act Claims and the Care Home

By way of section 73 of the Care Act 2014 registered registred care providers, in the provision of adult care (personal care at home or in a care come providing personal care or nursing care) that has been funded by a public authority, are exercising a function of a public nature, pursuant to the Human Rights Act 1998. The At covers the entirety of the United Kingdom.

Case Law

In Milner v Barchester Healthcare Homes Ltd [2022] EWHC 593 (QB) – the court set out the articles of relevantce to the claim, firstly, Article 2 of the Human Rights Convention

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, and

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

And, secondly, Article 3 of the Convention reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The claim related to a number of alleged failings in care provision within a care home, regulated by CQC.

The court noted that mere clinical negligence (with some exceptions) does not engage Article 2. There is also a notable a difference between a person “detained” and a person “placed” in a care home. The case disusses the standing of people not directly related to resident of a care home. In this case the claimant was fomd fo be an indirect victiim under Article 2, in the capacity of more than a close friend. She was also deputy under the Capacity Act.

The judge struck out the claim purusant to Article 2 but did not strike out the claim pursuant to Article 3. Article 3 required greater analysis, whcih a strike out hearing could not deal with, as it was impermissible. In essence, there were factual matters that needed to be explored. At para 50, the judge held:

“The conclusion that I have reached is that whether the Article 3 threshold has been met in this case is a matter for trial. I acknowledge that the threshold is high. I acknowledge also that a court might take the view that the matters complained of in fact amount to no more than sub-standard care and fall short, perhaps well short, of that [Article 3] threshold. But these are matters of fact and degree that I cannot resolve (a) on paper and (b) without the full picture of evidence that would emerge at trial. To put that another way, it seems to me that I could not decide that the Article 3 threshold has not been, and never could be, met without conducting an impermissible “mini-trial” on incomplete evidence.”

If you are a care home facing a claim under the Human Rights Act, contact us without obligation to discuss possible legal remedies.