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Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

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13 February, 2014
Colin Murray, Human Rights Law
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Tom Watson MP (Picture Credit: The Telegraph)

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP.

His impact as a minister may have been limited, and his spell as Deputy Chair of the Labour Party might have ended ignominiously last summer, but as a backbench parliamentarian he has few equals. He knows how to use the power of select committees, castigating Rupert Murdock as a “mafia boss” when the latter appeared before the Culture, Media and Sport Committee. Alongside this grand standing comes the meticulous use of an MP’s privilege to question ministers. The House of Commons’ Questions Book overflows with queries over the minutiae of UK drone policy, systematic probing which aims to build up a picture of UK operations and to identify weaknesses in the Government’s legal and policy justifications. He is also a master of the Trojan-horse question, keeping the issue of drones alive even in tangentially related debates. A couple of weeks ago, in a debate on redundancies in the UK armed forces, he popped up with the following question:

[W]e have deployed military personnel in a US base in Djibouti. Please will he tell me what their role is? Are they involved in the drones programme in Yemen, and will they be affected by this cuts announcement?

Alas, readers, no substantive answer. For the UK Government is seemingly intent on boring Watson and his tenacious APPG into submission, or at least driving the public to disinterest. Questions on “drone strikes” are met by a blizzard of blandishments and technical-sounding acronyms. The UK doesn’t have drones, it operates UAS (Unmanned Aircraft Systems) or RPAS (Remotely Piloted Aircraft Systems) or UAV (Unmanned Air Vehicles), depending on the minister responding.

But Watson appreciates the limits of a parliamentarian’s reach. The APPG is well-resourced and backed by expert groups outside Parliament (declarations of interest show that the legal NGO Reprieve provides regular funding for a researcher to support its activities). Furthermore, in an effort to deflect the claims of political partisanship that invariably accompany any scrutiny work by MPs, Watson’s APPG has turned to commissioning and publishing legal advice on drones. And not simply on drones. With an eye towards the bigger prize, the legal advice sought by the APPG manages to elide the two most pressing security issues of our times; drones and electronic interceptions by UK spy agencies.

The advice, provided by the highly-respected Jemima Stratford QC and her colleague at Brick Court Chambers Tim Johnson, examines a scenario where the UK intercepts information (whether through the contents of an electronic communication or associated “metadata”), permits the United States to access it, and the United States then employs that information as the basis of a lethal drone strike. The barristers explain in their beginning of their advice (at [5]), ‘the authorities must establish that every step in the chain is lawful if they are to be permitted to carry on with these activities’, before making out what seems like a compelling case on which grounds UK law may fall foul of the requirements of Article 8 of the ECHR (the right to private and family life).

Their analysis is at its strongest when it comes to their discussion of various rouses which may be used by GCHQ to enable “mass” interception (ie, interception not permitted by a specific warrant) of contents of electronic communications within the UK (for example, by arguing that it is routed through a US-based internet server). Such efforts to circumvent the legal regime for intelligence gathering under the Regulation of Investigatory Powers Act 2000 are a key plank of the allegations made by Edward Snowden. And it turns out that with advice in hand focussing on this issue Watson is pushing at an open door. Figures who should know better, like Conservative grandee (and former Foreign Secretary) Sir Malcolm Rifkind, who heads up Parliament’s Intelligence and Security Committee, have in recent weeks spectacularly failed to coherently counter allegations over the legality of UK intelligence gathering. In a Channel 4 News interview Rifkind blustered that his committee’s oversight of Government Communication Headquarters (GCHQ) activities had been entirely appropriate as there was lawful authorisation of these activities under RIPA. This approach abjectly fails to deal with the contention in the Stratford/Johnson advice that it is not the existence but the “quality” of the law which is problematic in granting too broad a power to security agencies (see [35]).

Watson must have been laughing at this point, as the security community has so tied itself up in knots over an intervention before the European Court that Rifkind is reduced to repeatedly saying he thinks that the terms of RIPA are sufficient lawful authority. He would be wise to disappear from our TV screens for a while. All of this looks like pointing towards an easy win in Strasbourg, where Big Brother Watch v United Kingdom is pending before the European Court. High-fives for Watson on the way into Court (with a special degree of kudos for finding a way to hitch his APPG’s work on drones to the challenge to RIPA).

But as I noted last summer, the European Court has rarely challenged Security Service judgements over the requirements of national security and has often given considerable leeway, provided a legal framework is in place, on questions of whether interference with privacy interests are “proportionate” (for the classic example of this case law, see Klass v Germany). The claimants will have to establish that abuse of the RIPA framework has occurred or that the framework itself is inadequate constraint upon state surveillance. Even a “win” on the basis that there are not adequate protections surrounding the harvesting of metadata is unlikely to ultimately prevent the Security Services from undertaking this activity. As the Stratford/Johnson advice notes (at [46]):

RIPA is now 13 years old. As discussed above, the statute draws a sharp distinction between content and communications data. That distinction derives (at least to some extent) from the traditional ‘postal’ distinction between the address on the envelope and its contents. However, the significance of that boundary has been eroded by the realities modern internet usage. Communications data now encompasses each individual URL visited, the contents of an individual’s Twitter and Facebook address lists, messages posted on social media websites and numerous other significant elements of an individual’s online private life. Given modern trends in internet use, the binary distinction between contents and communications data has become increasingly artificial.

Precisely because this material is so useful for the work of security agencies across Europe, the European Court is highly unlikely, even if the current RIPA regime is found to be inadequate, to require specific authorisation for every interception of such information (as is required for the contents of communications). Defeat for the UK Government is likely to be embarrassing (and may require enhanced oversight), but in all likelihood GCHQ will be left with sufficient leeway to continue widespread surveillance of metadata.

As for drones, the supposed focus of the Stratford/Johnson advice hardly gets off the ground before running into the brick wall of the Khan case, where just last month the Court of Appeal emphatically refused to get drawn into passing judgment on the illegality of activities of a foreign state (in this case the US). The advice continues to look at the question based on the issue of data transfer ([85] onwards), but with the courts maintaining this stonewalling approach (effectively saying that claimants should pursue a claim against the US directly), it all begins to sound rather hopeful. So much for Government having to make out every step in the chain to win its case, if the courts will not even grant such claims permission to proceed to full judicial review.

Not that this issue necessarily matters. Fear of adverse judgements in the security sphere can have as salutary an effect on Government policy as joyful scenes of victorious claimants. The UK Government seems particularly defensive on issues of drone policy and intelligence sharing, as Professor Michael Clarke of the defence think-tank RUSI noted late last year:

We share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the UK silence [on the UK’s role in the US drone programme] is deafening.

Watson (with a little help from his legal team) appears to have his foes on the run even when the ground he stands on is weak.

Victims’ Law: A Need for Reform?

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9 February, 2014
Criminal Law, Hannah Harrison, Law & Practice
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(Image Attribution:By Lonpicman (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons))

– Hannah Harrison (LLB Law, Newcastle University) h.e.harrison@newcastle.ac.uk

Since his tenure as Director of Public Prosecutions ended on 1st November 2013, Keir Starmer has been leading an enquiry for the Labour Party about transforming victims’ rights in the criminal justice system. In a recent article for the Guardian, Starmer called for a Victims’ Law to protect vulnerable victims of sexual abuse and to support them through the invasive, distressing trial process. Although witness services exist to comfort victims throughout their time in court, Starmer suggests that change is needed to ensure victims feel safer and have more confidence in the criminal justice system.

Starmer evidences the need for change by highlighting the inability victims often feel to even report a crime in the first place. All of the ‘214 victims of recordable offences’ in Operation Yewtree, known as the Jimmy Saville case, reported the incidents following his death and when asked why there was a delay in making a statement ‘many cited a fear of not being believed or a feeling that the criminal justice system would be ineffective in prosecuting the offender’. Starmer states that the ‘crude’ police tests into checking witness credibility often discourage victims from making a statement. Even if a victim does have the courage to step forward, the focus by police and prosecutors, on whether the ‘victim was able to give a coherent and full account first time, whether the victim had returned to the perpetrator, and whether the victim had been affected by drink or drugs’ disheartens many who feel they are not being taken seriously. As Starmer indicates, ‘if the criteria for testing their credibility match the characteristics that make them vulnerable in the first place’ surely this is a fundamental flaw in the approach of criminal justice? We should be identifying victims’ vulnerabilities and supporting them and not discriminating them because of these things.

Furthermore, the adversarial system in court lacks support for victims, especially those of sexual abuse. The battle between prosecution and defence to extract all of the intimate and humiliating details from a witness is traumatising to them. Having to retell the worst event of their lives in excruciating detail to a room full of strangers, whilst facing the perpetrator, is highly distressing. Very recently, Tracy Shelvey fell to her death after being told that the man she accused of rape was acquitted. Officers reported that she was ‘angry and upset’ and was even visited at home, before her death, by ambulance and police staff after she called them in a highly distressed state. The Greater Manchester Police and Crime Commissioner, Tony Lloyd expressed a need ‘to learn from this tragedy and others that have come before’ as it ‘is abundantly clear is that victims and witnesses are not where they should be – at the heart of the criminal justice system’. He further highlighted that the issue of victim support was of grave concern and that it is crucial to constantly support victims from the initial reporting of the crime until after the trial has concluded. Starmer and Lloyd both agreed that a more radical review and an upheaval of the current system are needed.

Sadly, this is not the first case where a victim has been so deeply affected by a trial. The family of Francis Andrade are adamant that she was driven to suicide after she accused her former teacher of rape. Mrs Andrade took her own life whilst the trial was ongoing, mere days after she was cross-examined on events that had occurred when she was a teenager. Her son Oliver stated that being branded a liar and a fantasist during the trial seriously compromised her personal integrity, ‘more than she could bear’. It was reported that the judge had to ask Mr Brewer to avert his gaze from her after she felt too under pressure from his stares whilst in the witness box. Mrs Andrade’s husband told the court that she had become deeply depressed following her initial police interview and the fact that she died before a verdict was reached illustrates the intense pressure victims are under in the witness box. Tragically, another woman took her own life two years after alleging she had been raped by two soldiers. The inquest was told that Corporal Anne-Marie Ellement, a royal military police officer who was found hanging in her barracks, was left absolutely devastated by the decision not to prosecute the two soldiers she claimed had raped her while she was stationed in Germany.

A code of practice for victims was released in October 2013 but the death of Miss Shelvey since then, confirms that more must be done to help those in need. Although the code of practice is detailed and comprehensive in how victims can obtain support, it does little to address the need for mental health support, which often troubles victims of sexual abuse.

Starmer’s investigation is still ongoing and he is yet to release any details on his proposals for reform. Following the death of Miss Shelvey, the Ministry of Justice admitted that ‘more could be done’ to help vulnerable witnesses. It added that they are currently trialing a new way of ‘sparing vulnerable witnesses the trauma of appearing in court’ through pre-trial cross examination. Despite this, Tony Lloyd announced that he would be writing to the Home Secretary and the Justice Secretary to demand a review of the current support system for witnesses and alleged victims.

Giving evidence is a harrowing often brutal ordeal, especially for victims of violence or sexual abuse so what is needed is a focus on those deeply affected by crime. As Starmer identified, ‘this is a golden opportunity to recast the criminal justice system as a criminal justice service fit for victims’.

Prisoner’s Voting Rights: Constitutional Implications at their Finest

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19 January, 2014
EU, Human Rights Law, Michael Keightley, North East Law Review Blog Competition
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A prisoner

(Image Source: http://www.theguardian.com/politics/2013/oct/16/votes-prisoners-supreme-court-rejects-appeal)

– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

The European Court of Human Rights (ECHR) ruling that embodies more than the question of prisoner’s rights to vote in the UK is the case of Hirst v United Kingdom ((2006) 42 EHRR 41, [70]). It was a ruling that sparked controversy in 2005 and has set an eight-year resistance against a ruling that has been followed by an incredible 2,354 ‘clone’ cases of people claiming an infringement of their human rights – thereby forcing the question ‘should prisoners be allowed the vote?’

Regardless of your answer it is easy to see that, in principle, a blanket ban is somewhat immoral. It seems unconstitutional to withhold a right that is crucial to the continuation of democracy from a group of people only on the basis that they are part of that group. Arguably, comparisons can be made to the mistreatment of people based on their gender, race, or belief; if it is immoral to unequally treat people based on such groupings, then is it not immoral to disenfranchise prisoners?

These examples, however, are incredibly general and do not follow similar patterns to the disenfranchisement of prisoners. Take someone’s gender and race, obviously these are dependent upon biological circumstances, as opposed to an active decision. Beliefs are born from socialisation, which can influence action – but people are imprisoned for actions against the state, not the beliefs that may or may not influence that action. Prisoners are sentenced for their actions against the state and consequently are, as a group, disenfranchised for those actions. Allowing prisoners the right to vote in the democratic society that they have committed a crime against undermines the idea of taking responsibility for one’s actions – with civil responsibility being crucial in the structure of a healthy democracy, undermining such a concept is counterproductive to the sustainment of democratic principles.

Outside of constitutional and moral considerations are the wider implications of the European Union (EU). The financial implications seem to be the first at hand as the Strasbourg court could issue orders of compensation as a result of this failure to follow the ruling of the UK courts; seen as though no damages have been awarded in such cases previously, it is open to theory and contemplation as to what financial loss this could cause the government and the taxpayer. Say, for example, if a mere £1,500 was awarded in compensation to all 2,354 prisoners; the government would suffer a loss of £3,532,500 in total (not including court fees). Dominic Raab, Tory MP, simply argues “the Strasbourg court can’t force Britain to give any of these prisoners the vote, let alone compensation.” He then goes on to say that it is a matter of “democratic principle” to let Parliament make such a choice – however, Parliament have been delaying this crucial decision for eight years, surely now is the time for the EU to step in? Regardless of whether or not Raab is correct, defying the issuing of compensation from Strasbourg would hardly benefit the current tenuous relationship that the UK has with the EU. With murmurs of referendum from the Conservatives, shouts of independence from UKIP, and a plethora of statistics scattered across the web stating the consequences of being remaining in the EU the pressure only mounts for action to be taken.

But by blatantly ignoring the ECHR ruling for eight years are we not – in the words of Dominic Grieve, attorney general – “creating a degree of anarchy in the international order that [the UK is] trying to promote?” Thorbjørn Jagland, the secretary-general of the Council of Europe, views England as a “founding father” of convention and a “leading nation on human rights”; and the UK’s refusal to co-operate with the convention they are said to embody undermines the foundations and values of the EU and threatens the UK’s EU-membership.

MPs have now made the decision to draft the Voting Eligibility (Prisoners) Draft Bill, which outlines three main options for allowing prisoners to vote: continue with the current blanket-ban that is in force (option one), allow those with sentences of four years or less to vote (option two), or to allow prisoner’s with sentences of six months or less to vote (option three). This Bill is clearly influenced by the political motivation to hold off threats from Strasbourg and not influenced by a motivation to alter, or grant, constitutional rights.

The political motivation is reflected in the Bill’s inflexible options, which fail to address the real issue of prisoners voting rights. First of all, it does not fully consider the crime committed and its context, only sentence length. The issue here being that there seems to be no clear reason as to why the limit was set at four years, or even six months. The inflexibility and general-nature of these options only lead one to believe that such legislation would only be enacted to allow the UK to attempt to maintain positive relations with the EU and not to respect the concept of human rights; this political move is a poor attempt to respect the value of the right to vote and only shows a lack of consideration of the real issue.

Perhaps it would be more constitutional to create a system where people are not subject to a blanket disenfranchisement, or disenfranchisement based on general sentence length, but a consideration of the crime and its context before disenfranchisement; which could lead to a disenfranchisement system based upon precedent as opposed to generalised sentencing. This proposition opens up room for further debate on how such a system would initially be judged and where the limitations of disenfranchisement should lie. Not to mention, the bill that the taxpayers would be footing to have the cases considered in court could be potentially enormous.

The question to consider in regard to prisoner’s voting rights is whether or not you consider the right to vote as a privilege or a human right. If you consider it a privilege then you delve into further questions of defining what would allow such a privilege; but if you consider it a human right then, considering that prisoners are human, then prisoners should have the vote – I feel it is fair to say that there is little deliberation about the definition of human.

Whatever your personal opinions on prisoners voting rights and the UK’s membership to the EU it is clear that these two issues would ideally be decided separately. However, given the eight-year long wait for action in consideration of the ECHR’s ruling and the distant proposals for a referendum these issues have become closely intertwined and something of concern to the UK public. In theory, the outcome here stands on the same grounds as the infamous Factortame decision (Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.2) [2002] EWCA Civ 932) – deciding a crucial constitutional decision for the UK and concerning the supremacy of UK Parliament over the European Union.

 

Smacking your child – a place for the law?

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13 January, 2014
Alicia Jones, Criminal Law, North East Law Review Blog Competition
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Dr Maggie Atkinson, the Children’s Commissioner for England, believes all smacking should be illegal (source: http://www.independent.co.uk/news/uk/politics/smacking-children-should-be-illegal-says-childrens-tsar-maggie-atkinson-9027588.html)

– Alicia Jones (LLB Law, Newcastle University) a.v.jones@newcastle.ac.uk

In today’s society many struggle to comprehend how smacking one’s child could be considered legal. However, for others the age old phrase ‘I was smacked and I turned out fine’ still rings true. Dr Maggie Atkinson, the Children’s Commissioner for England, has recently expressed her poignant personal view that the current law gives pets and adults more rights to be protected from violence than children. A view which for many is heart-wrenching. In stark contrast, Tottenham MP David Lammy has suggested that the law regarding smacking children should be relaxed so ‘working-class parents could still instil discipline in their homes without fearing prosecution’. However, I would be interested to hear why Mr Lammy believes that this is a problem only faced by the working-class? In the UK, parents can mildly smack their child if it can be regarded as reasonable chastisement.  However, the law regarding smacking one’s child remains a grey area; particularly with regard to the linguistic frailties that the term ‘reasonable’ offers. For example, when does reasonable chastisement become child abuse? For some, a punch in the face is equitable to a slap on the bottom.

For many the advantages of an outright ban on smacking children are clear. It protects vulnerable children from corporal punishment which could cross the boundary into abuse. John Cameron, the Head of Child Protection Operations at the NSPCC has suggested that ‘there is a greater likelihood of children being involved in criminal and antisocial behaviour if they have been in receipt of smacking as a standard form of parenting’. It is common knowledge that if one adult hits another adult this is regarded as assault in the eyes of the law. Moreover, it is widely accepted that children learn their own behaviour through imitating their parents. Therefore, Cameron’s statement is entirely comprehendible. It can also be suggested that if an outright ban on smacking is enforced, an individual’s internal beliefs and morals could be changed. For some, this may mean their beliefs of what is right and wrong regarding child chastisement could be entirely shifted and the horrific violent crimes against children, we so often read about in the media, reduced.

Although there are many benefits to an outright ban on smacking children, there are also many practical implications of such a law being enforced. Perhaps, as Dr Atkinson describes, the most significant implication being that ‘no public body can be behind the front door of every family in the land’. Therefore, it would be practically impossible to ensure that no parent ever breaks the law and does not hit their child through frustration or anger. In fact, such a law, could potentially hide the problem behind the front door of the child’s own home, ironically where the child should feel most safe. Thus, although in the abstract legal sense the problem would appear solved, in reality the problem would just be hidden further by those who are responsible for protecting and nurturing their offspring. Arguably, this could result in even more violent crimes towards children becoming undetectable by Social Services. A further implication would be the number of parents that would be labelled a criminal if an outright ban was enforced. A recent poll on parents.com found that 81% of parents have smacked their child at least once. Although this statistic seems unbelievably high, if it is true, it would be incomprehensible to legislate a law which criminalised 81% of parents. Moreover, even if the problem of criminalising 81% of parents was dismissed; it would be practically impossible for Social Services to intervene in every single case where a parent was convicted for hitting their child. This would further heighten the risk of Social Services missing the crucial cases where a child’s life is in danger, whilst they are focusing on a parent who had hit their child through frustration and despair.

If Tottehnham’s MP Mr Lammy is correct in stating that the law should be relaxed to allow parents to instil discipline, I would suggest that the law is not the problem; arguably, smacking is primarily used to replace inadequate parenting. As an individual who has never been hit, the methods of punishment avoiding physical chastisement are obvious and satisfactory. When one reads the opinions of the public on this controversial issue it is clear to see public opinion is largely in favour of Lammy and the majority appear to believe that smacking is a valid punishment. This could suggest that the problem lies in the parenting skills of individuals who neither know nor understand alternative methods of discipline and are not equipped to teach and guide a child to understand that frustrations are a normal part of everyday life and that through communication, patience and understanding we can modify our feelings and frustrations to co-exist in a community without corporal punishment. This prepares a child to integrate into today’s society whereby no one can assault another member of the public without prosecution.

Ultimately, it can be seen that this debate will rumble on for decades, with both sides having strong opposing arguments.  However, it could be suggested that the conclusion of this debate will not be found in a change in legislation. Rather, the need to educate parents on how to guide a child’s behaviour and the rather poignant issue of inadequate funding to local services; which have already been drastically cut in the austerity measures in recent times. Which have consequently reduced access to classes and programmes which teach families alternative methods to discipline their children and mechanisms to control their anger.

Medical Malpractice, NHS Liability and Proving Causation

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8 January, 2014
Medical Law, Zia Akhtar
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– Zia Akhtar (Grays Inn, London, UK) plawgraduate@gmail.com

Introduction

The government is to propose a new law in 2014 that will criminalise breach of the duty of care by those medical staff who are grossly negligent or who abuse their patients.  There will be a sanction of a five year jail term when there is a finding of culpable negligence that results in serious injury or death.

The offence would transfer liability to hospitals or those involved in providing aftercare who are ‘guilty of willful or reckless neglect or mistreatment’ if they perform their task negligently. The intention of the statute would be to punish those who fall well below the standard of care expected of medical professionals.  The scale of penalties would reflect the regime established in the Mental Capacity Act 2005, which allows for fines, imprisonment for a maximum of five years, or both.

This upcoming legislation, announced in December 2013, has followed the report into the deaths that occurred in the Mid Staffordshire hospital between the period of 2005-09. There were an estimated 1,200 people who died due to poor care of patients who were left in the wards without any supervision. It resulted in two inquiries chaired by Robert Francis QC into the cause of the deaths at the hospital.

The Francis report disclosed that the hospital hierarchy was more concerned with meeting their targets of resource allocation than the basic levels of primary care of the patients. The Report which was published in February 2013 made 290 recommendations for improvements in NHS healthcare but not one medical professional faced prosecution as a result of findings of what went wrong at the Mid Staffordshire Hospital.

In a review of criminal investigations into medical error conducted by a University of Manchester Law department team, it was shown that it is difficult to convict doctors and nurses for deliberately failing their patients. Of the 75 Crown Prosecution Service files they studied, just 5% resulted in prosecutions of those medical staff who were reported for criminal negligence.

These findings were set out in Professor Margaret Brazier’s public lecture  ‘My Doctor is a Criminal’ on 23 April 2013  which expressed the view that ‘bad’ doctoring should be a crime.  She stated that the reasons why charges are not being brought for criminal negligence is the requirement that the case is the causation and the burden of proof. This is dependent on the omission or the commission of an act that may have made a substantial contribution to a patient’s death.

There are mitigating circumstances, such as the patients’ previous poor health, infirmity or old age, which can present a difficulty for the prosecution, and were a  factor in the indictments were being withheld in the Mid Staffordshire deaths. This was despite there being evidence of deliberate or reckless infliction of unnecessary suffering on the patients. It did not lead to a single negligence based action but the announcement of the Mid Staffordshire NHS hospital trust that served 275,000 people in the region to be closed at the end of 2013.

Need for extending the breach of duty

There are increasing concerns being expressed in the UK of hospitals providing sub-standard care and there has been an incremental increase in the level of claims to the NHS from patients. The NHS litigation authority official figures for the year 2012-13 showed a 20% rise in the number of patients seeking compensation from the previous year.

The level of damages sought from the NHS was approximately 19 billion from patients, nearly 1/5 of its budget based on claims of negligence. There was a sum of £1bn spent on settlements last year, but around one quarter of costs were absorbed by legal fees, mainly in payments to claimants’ lawyers under a “no-win, no fee” system which means legal firms can charge up to £900 an hour for their services if claims are successful.

The impact of the below standard care in the UK is that elderly patients face a higher risk of death when placed in general wards instead of critical care wards after unplanned surgery. The European Surgical Outcomes Study (EuSOS) Mortality after Surgery in Europe: A 7 day cohort 2012 (published in the Lancet’s  September 2012, vol.380, no. 9847, pp.1059 – 1065), found that hospital inpatients had a 3.6% chance of dying, whilst in Germany the figure was a very low at 2.5%. The patients who died were in the main elderly, and the findings also stated that there were insufficient resources being invested in the facilities at the hospital to care for the critically ill which increased the mortality rates.

The study coordinator Dr Rupert Pearse from the London School of Medicine at the Queen Mary College, University of London states in the report:

‘The substantial variations in mortality between countries highlight the urgent need for national and international strategies to improve care for this group of patients. Nearly three-quarters of patients who died were never admitted to intensive care. Failure to allocate critical care resources to patients at greatest risk of death is a serious public health concern for patients undergoing surgery in Europe.’

There will have to be substantial improvements in the infrastructure and quality of medical treatment.  This can be inferred from the Channel 4 news special report on September 2013 prepared by emeritus Professor Barry Jarman of Imperial College whose input went into the Bristol Royal Infirmary Inquiry and Mid Staffordshire hospital scandals. These are about the level of care and mortality rates in UK hospitals. The study demonstrates that death rates in UK hospitals were considerably higher than in US hospitals and among the worst anywhere in Europe.

The average HSMR for England was 122.4, making it the highest of the seven countries examined. The average HSMR for the US was 77.4. The HSMRs in the NHS were 58% higher than the most favourable country, the US, and in 2012 a patient in the average NHS hospital was still 45% more likely to die in hospital than if they had been admitted to a US hospital.  The figures also confirm that patients in hospitals aged over 65 fared worse and were five times more likely to die of pneumonia in hospital in England and twice as likely to die from a blood infection (septicaemia) than if they were admitted to a hospital in the US.

Establishing Causation in the injury   

The reason for the high threshold in proving any wrong doing against medical health professionals that establish their liability is the casual link between the act and the resulting death or injury.  There are three elements in an action for negligence which need to be satisfied claim which are: if there was a duty of care, causation and proof of actual damage. The majority of claims in negligence cases fail because of the lack of sufficient causation between the injury or death and the negligent conduct of the staff.

In the medical profession the decision of what is acceptable care and what is substandard care is measured by reference to whether a responsible body of medical opinion considers a particular instance of care was substandard. The subsequent advances in medicine have to be ignored. If the hospital trust finds a reputable medical expert who states that the care was acceptable then the burden of proof on the claimant is very onerous to discharge in order to succeed in a civil claim. The breach of duty of care has to be of such degree that no reasonably competent medical expert in the same discipline would have acted in that way.

The higher degree of immunity extended to the medical profession was originally intended so that a hospital authority could not be liable for negligence in matters involving the complex exercise of professional skills.  Under English law there is a legal precedent known as the Bolam principle where if the hospital trust can provide a witness who is a reputable medical expert, who states that the care was acceptable, then the claim fails unless it could be shown that the expert acting was wrong.

In Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, Lord McNair in his judgment stated as follows:

‘A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.’ pp 586-587

This test has been moderated by the House of Lords’ judgment in Bolitho v City & Hackney Health Authority [1997] 4 ER771 whereby the court will be the arbiter of fact, determining whether the injury had been caused by the defendant’s negligence and not the medical practitioner. However, their Lordships emphasised that they would hold a procedure that was in accordance with a sound body of specialist opinion to be negligent only in “a rare case”.

The question of a hospital authority’s negligence is one of primary liability for breach of its own duty to the patient.  The court determines the actions of the individual who is a servant of the hospital on the basis of vicarious liability but the claimant of the burden of showing the procedural and legal causation. This is the most arduous task where the patient or their representatives fail where it is not prima facie evident that there had been negligence by the medical practitioner who was carrying out a duty imposed by law.

Lack of a Duty of Candour

In English medical law there is no legal duty of candour and the courts have rejected any imposition of a duty of care to the parents and the matter. This matter has been the subject of appeal to the European Court of Human Rights under Article 2, granting a Right to Life.  The parents of the patient who had died applied for the hospital to disclose to them the records of his illness.

There was an admissibility hearing before the Strasbourg Court  in Powell v UK Application (1999)  no 45305/99  where the ECHR held that the ‘doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records’.

In the aftermath of the decision, the General Medical Council has issued guidelines to medical practitioners to have a more informed relationship between the patient and the doctor.  However, it stops short of the legal obligation of disclosure. The UK Government refused the attempts to introduce a statutory Duty of Candour in the Health & Social Care Act 2012, which has brought in the role of the Quality Care Commission and developed Monitor, the body that currently regulates the NHS. It has not established a legal duty of candor but only an ethical duty that exists between the doctor and the patient that is privileged.

There is consensus in the medical profession that there is no relationship between the tort system and patient safety that requires a duty of candour. J Miola, in ‘The tort of negligence and patient safety’ (pp 41–52 in J Tingle and P Bark, Patient Safety, Law Policy and Practice (Abingdon, Routledge, 2011)) states that ‘the law of tort is  not designed for patient safety, and is only a retrospective remedy to compensate those who bring legal actions.  The deterring of bad practice is secondary to the main purpose of compensation’.

The main justification for not imposing this duty of candour as a legal requirement is that the compensation is that the hospital trust does not want to be held accountable for failure of the procedures at the hospital which are an administrative matter. The law of tort offers only limited protection for patient autonomy despite seeming to punish the negligent failure to disclose required information such as prior to surgical operations.

Statutory offence and causation element 

The government’s proposal of a new offence of ‘willful or reckless neglect or mistreatment’ will come on to the statute books in the foreseeable future. The difficulty of proving a causal link to the injury or death of the patient and the breach of legal duty of the doctors and medical professionals is that the principle of corrective justice serves to pay damages to the victim but it does not address the issue of the unsafe environments in which such substandard medical cultures originate.

However, prior to the new criminal offence, which the government has stated it will introduce in the near future, the criminal negligence claims for breaches of patient safety have proceeded on the basis of the failure of a combination of individual and system factors. The offence that most often comes up for possible indictment against individuals is gross negligence manslaughter but the difficulty of proving causation is also very onerous in this case.

The leading cases in establishing individual culpability in defining gross negligence are R v Adomako [1995] 1 AC 171 and R v Misra and Srivastava [2004] EWCA Crim 2375. This is an abstract concept which is incapable of objective measurement and potentially unfair to those indicted given the difficulty of ensuring an objective and consistent interpretation of a common law definition.  The challenge of establishing causation is the main factor, as also appears to be in the case of the statutory offence of corporate manslaughter.

The issue that comes to the fore is whether there is a correlation between the criminal law and patient safety, and does it prevent the unsafe and bad practices of the legal profession. Oliver Quick states in ‘Patient safety and the problem and potential of law’ (Journal of Professional Negligence, Vol. 28 No. 2, 2012 pp 79-99), ‘we might speculate that criminal law is likely to be unhelpful in terms of further fuelling a culture of secrecy and shame about errors. Whilst we lack direct evidence, manslaughter prosecutions are likely to be harmful rather than helpful to safe healthcare’.

The reason for there to be few criminal negligence prosecutions is because of the causation requirement.  The problem that is encountered in bringing charges is that it may encourage the culture of secrecy and will not be able to assist candour. It will be imprudent of an organisation to implicate other members in the crime alleged to have been committed by an individual or some members of the medical trust.  Fatal medical mistakes that may involve the criminal justice system in the form of an indictment for ‘willful or reckless neglect or mistreatment’ may be a way forward but the charges will have to deter and to penalise criminal negligence.