QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
MR JUSTICE HICKINBOTTOM
| THE QUEEN on the application of
DANIEL ROQUE HALL
|- and -
|UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST
THE SECRETARY OF STATE FOR JUSTICE
Christopher Mellor (instructed by Hempsons) for the First Defendant
Galina Ward (instructed by the Treasury Solicitor) for the Second Defendant
Hearing date: 5 February 2013
Crown Copyright ©
Mr Justice Hickinbottom:
The Grounds of Challenge
Article 2: This is now the primary ground relied upon. It is said that the treatment in the prison in the 7-week period to 22 August 2012 was such that his life was put at risk, and it reduced his life expectancy, in breach of his Article 2 rights. Furthermore, to discharge him back to the prison would expose him to a similar risk, so that the decision to discharge him to the prison is itself a further breach of those rights.
Articles 3 and 8: On the basis of the grounds initially lodged in Claim No CO/8752/2012, the prison's treatment of the Claimant in the period 6 July to 22 August 2012 breached his rights under Articles 3 and 8 of the European Convention.
Equality Act 2010: The prison has breached its obligation under the Equality Act 2010 to make reasonable adjustments to ensure compliance with its duty not to discriminate against the Claimant on the ground of his disability, by not making available various equipment and facilities to him, and by detaining him (as a Category C prisoner) in a Category B prison rather than a Category C prison.
i) Prior to sentence on 6 July 2012, the Claimant's various medical conditions were optimally controlled, through a regimen of drugs and non-pharmacological therapy. The Defendants do not suggest other than the care of the Claimant, by his medical attendants, carers and mother was of a high standard, and his symptoms, although inevitably worsening over time, were generally well controlled.
ii) However, by 22 August 2012, due to a general lack of care for his health (including the specific matters upon which he relies in his claims under Articles 3 and 8 below), his short stay in the prison "so damaged him that he nearly died". Although he did not in fact die from it, he was at real and imminent risk of death in the period immediately preceding his admission to the hospital on 22 August; and his stay in the prison has caused permanent damage which has substantially reduced both his life expectancy and the quality of his remaining life.
iii) As a result, the treatment to which he was subject in the prison in the period to 22 August 2012 breached the Claimant's Article 2 rights.
iv) In the circumstances, the Qazi presumption that the Prison Service is fully capable of both protecting the Claimant's life and meeting his needs resulting from disablement is displaced. If he is returned to the prison, Ms Krause submitted that the Claimant will again face a risk that his life will be compromised. Given the fundamental nature of the previous breach of his Article 2 rights, and the absence of any evidence that respect for his right to life will be better honoured at the prison in the future, that risk is real and indeed high. It is higher than when he first went to the prison, because he is now substantially more frail.
v) Consequently, the decision to discharge the Claimant from the hospital to the prison also breaches his Article 2 rights.
i) On 20 August 2012, the prison medical records record that the Claimant appears to have had some sort of anxiety attack and, in the morning, refused to eat when he took his insulin. That apparently made him feel faint at about the time his solicitor visited at 15.12, when he also complained of breathlessness, although there were no signs of respiratory distress. He was seen during the day by a number of doctors and nurses.
ii) In particular, towards the end of the day, he was seen by Dr Collis, a consultant at the Pembridge Palliative Care Centre. She noted atrial fibrillation, which was of course a long standing condition secondary to his Friedreich's ataxia. The differences between his care in prison and home identified by the Claimant himself were that (i) he could not lie on the floor when he wanted to, and (ii) there were no swimming facilities. His condition was noted as being stable, and he showed no signs of being in or near the terminal phase of his illness. A further review in one month's time was suggested, with a view to discharging him from palliative care follow up.
iii) On 21 August, his vital signs were medically monitored at the prison throughout the day, and were found to be unexceptional. The records expressly recorded: "He remains alert and no evidence of physical deterioration noted".
iv) The Claimant was admitted to the hospital on 22 August with atrial fibrillation and a heart rate of 140 beats per minute but no other symptoms. He was assessed in the A&E Unit, and transferred, not to "Resuscitation", but to the Acute Medical Unit. Expressly noted in the records because he must have been specifically asked about these possible symptoms is that he did not complain of chest pain, syncope, sweating or nausea. His vital signs were good, and his condition is expressly noted to be "stable".
v) The Claimant relies upon the fact that a vulnerable persons report was opened on his admission to hospital; but no such report was in fact opened. In its Response to Claimant's Questions 15 January 2103, Answer 2 (prepared by the Clinical Pharmacology Team which includes Dr George), the hospital explained that the Claimant's mother raised the issue of the Claimant's vulnerability on 28 August, but he was found not to fulfil the relevant criteria. There is a reference to him being a vulnerable adult in a proforma nursing patient care plan dated 25 October 2012; but that form is incomplete and unsigned, and that plan was never instituted. No safeguarding alert was ever raised about the Claimant.
vi) However, thyroid tests on admission showed the Claimant to be severely thyrotoxic. There is no mystery about that condition. One of the drugs that had been used to maintain the Claimant's heart rhythm, since well before he was detained in prison, was amiodarone, a drug that tends to be reserved for use when other agents have failed because of a number of well-known serious potential side effects including thyroid problems. In response to a raised thyroid level, and after liaison with the Claimant's cardiologist, amiodarone was stopped by the prison doctor on 2 August 2012. However, as Professor Martin explained (in his 30 January 2013 Statement, paragraph 8), even after discontinuation, the drug typically remains in the body for up to 300 days and its side effects might be delayed. As a result, the control of the thyrotoxicosis in that period may be difficult. Difficulties can be compounded by the need to replace the drug with other therapy to steady the heart beat, and the fact that thyrotoxicosis may be accompanied by significant weight loss and muscle weakness, with all that that entails, including speaking and feeding problems. Various witnesses, including the Claimant himself and his mother, refer to various signs and symptoms that he increasingly suffered during his seven weeks in prison. However, they were predominantly signs and symptoms typical of thyrotoxicosis. The various medical practitioners appear agreed that the exacerbation of the Claimant's Friedreich's ataxia including, for example, his problems with motor function, swallowing and speech was a result of his thyrotoxicosis (see, e.g., the discharge summary 22 December 2012, referring to the opinion of the Claimant's consultant neurologist, Dr Giunti). The thyrotoxicosis did not result from his treatment in the prison, but from his longstanding use of a drug to stabilise his heart rhythm.
vii) About 24 hours after he had been admitted to the hospital, the Claimant was transferred to the Critical Care Unit where he was treated with a battery of drugs and was put onto a ventilator. He contracted some sort of secondary infection, noted in blood tests and there was evidence of secondary clinical pneumonia (Response to Claimant's Questions 15 January 2103, Answer 7). Although the Claimant was "very unwell", Professor Martin explains that he was not at any immediate risk of death (30 January 2013 Statement, paragraph 5). He improved on a daily basis, and was extubated on 28 August 2012. He continued to improve, and by November 2011 he had been clinically stable for several weeks; although the symptoms of thyrotoxicosis take a long time to resolve often months and, although his underlying condition would of course unfortunately but inevitably continue to decline, the Claimant was expected to continue to improve from those particular symptoms.
viii) Therefore, there is simply no evidential basis upon which to base an assertion that the Claimant's life was in danger because of his time and treatment in prison. Professor Martin's evidence is directly to the contrary.
ix) Nor is there any evidential basis for the assertion that the Claimant's life expectancy has been reduced by his imprisonment. Ms Krause's submission is based upon the premise that the Claimant's substantial deterioration in health whilst in prison was due to his treatment there: she specifically relied upon the discharge summary dated 22 December 2012 (prepared by Dr George), where it is said: "Daniel is significantly more frail at present than he was when admitted to [the prison]". She submitted that that additional frailty could only have resulted from his treatment in prison. She also relied upon the evidence of two medics that the Claimant's life expectancy had been diminished by that treatment. The Claimant's GP (Dr Abrahams) said that she felt very strongly that, if the Claimant's medical and disability needs were not and could not be met whilst he is in prison, then, if he were to return there, "this would be a terminal diagnosis for him" (21 January 2103 Statement, paragraph 7). The Claimant's occupational therapist (Julie O'Keefe) made a similar comment.
x) However, this proposition is again fatally undermined by the fact that the deterioration in the Claimant's health in prison was due to his thyrotoxicosis, from which he is now recovering. The best available medical evidence in relation to this issue is from Professor Martin who says (30 January 2013 Statement, paragraph 15):"Friedreich's ataxia is an irreversible, progressive neurological disorder. Therefore, whilst it is true that Mr Hall's overall condition has deteriorated over the last year and the deterioration is likely to be permanent, it is not possible to state that any deterioration has been disproportionate to a combination of his underlying condition and thyrotoxicosis and its consequences. It is impossible to say whether any permanent deterioration is specifically attributable to the events of August 2012. Similarly, a reduced life expectancy is consistent with the natural progression of this disease and it is not possible to say whether Mr Hall's recent admission has had any effect on this."
xi) On 21 November, there was a multi-disciplinary team ("MDT") meeting between the clinicians at the hospital and the healthcare staff of the prison, which determined, as a clinical judgment, that the Claimant's medical needs could be met outside an acute hospital setting; but the actual discharge was delayed "to ensure that a full package of care could be arranged" (see Dr George 4 January 2013 Statement, paragraphs 7-8). It is clear from the minutes of that meeting that the hospital would not discharge the Claimant unless themselves satisfied that the prison would be able to provide all appropriate care services:"It was agreed that [the Claimant] would be transferred back to [the prison] at the point when his clinical needs could be met in the community and that the level of care expected in the community setting would be the level of care expected on transfer. Therefore, the various out-patient and community services that would be normally arranged by [the hospital] on discharge, would have to be in place, in the setting of [the prison], prior to transfer."A planned date for discharge of 2 January 2103 was fixed.
xii) A second MDT meeting was held on 28 November, but this time with the Claimant, his mother and a former carer of the Claimant. Care plans were discussed, as was the proposed discharge date of 2 January.
xiii) A third meeting again with the Claimant and his mother present for part was held on 31 December, at which the joint hospital/prison plan was detailed, and the Claimant and his mother were given an opportunity to raise any concerns, which they did. Concerns were raised about the availability of complementary treatments (the prison agreed to make some available): the ability of prison staff to feed the Claimant safely (a plan involving the use of specific personnel and training of others was to be out in place); the availability of regular physiotherapy (an exercise regime was to be developed by the community physiotherapist); and the continuation in prison of antioxidants which had been administered to the Claimant in hospital (which was agreed). Dr George said (4 January 2013 Statement, paragraph 19):"It was made clear at the end of the meeting that [the hospital] team were of the opinion that it was safe for [the Claimant] to be discharged to the prison and the representatives of [the prison] were clear that they could offer the level of medical, nursing, physiotherapy and speech and language therapy needs, as stipulated by [the hospital] team".At the end of the minutes of the 31 December meeting, it is said that:"[Prof Martin] thanked all present for their hard work in arranging the transfer of [the Claimant] back to [the prison] and said he was very impressed with the level of professionalism shown by all, and that it was clear that the care of [the Claimant] was the central concern in all decisions that had been made."
xiv) As Ms Krause stressed in her submissions, this claim is based entirely on the medical concerns the Claimant and his mother have; and we appreciate that, in the light of the Claimant's condition, they have understandable concerns about his care and welfare. However, from the evidence we have before us, it is clear that the hospital's decision to discharge the Claimant to the prison was a clinical judgment, taken with care and deliberation by a dedicated team, that the Claimant could properly be discharged from the acute care of the hospital and be discharged to the prison. It may be a moot point as to the extent to which a hospital is legally required to take into account the circumstances into which a patient is discharged, but there can be no question in this case: the hospital delayed discharging the Claimant until they were satisfied that (a) a comprehensive care package had been worked out for the Claimant's care in the prison and (b) the prison would be capable of implementing that plan, as will be monitored by the prison medical staff and through the Claimant's various outpatient appointments with his consultants. Their being satisfied as to those matters which the hospital have expressed themselves to be required clinical judgment, with which this court would be slow to interfere. It was judgment that was exercised on the basis of appropriately full evidence, and is unimpeachable.
xv) In the event that the Claimant's health were to deteriorate again whilst he is in prison for whatever reason he could be (and, on the evidence, would be) re-admitted to hospital.
Articles 3 and 8
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
i) On arrival at the prison on 6 July, the Claimant was taken to reception, where he was interviewed by Dr Edwards, a prison doctor, with nurses present. The Claimant was then taken to an examination room, placed on an examination couch and left unattended. He fell to the floor, banging his head. He was taking Warfarin, and, following his fall, it is said that he should have been immediately taken to hospital. However, he was taken first to a care home, and only then to the Charing Cross A&E Unit for assessment.The cause of the fall is in dispute. The Claimant says that it was a result of an involuntary spasm, to which his condition makes him prone: indeed, he says that he would have been physically incapable of making himself move and fall from the couch. The prison believes that he deliberately threw himself from the bed, a psychiatric assessment that day post-fall warning that he "has a vested interest in demonstrating that prison cannot meet his needs".In our view, it is unnecessary for this court to make any finding of fact as to the cause of that unfortunate fall because, even assuming that the fall was due to a spasm and that the prison were careless in leaving the Claimant unrestrained on a couch, the incident falls very far short of anything that might engage Article 3. Fortunately, the Claimant suffered no significant injury: his medical records show that he had superficial bruises and swelling to his head, but no loss of consciousness, nausea, visible bleed or headache. Nor can the treatment he was given be sensibly criticised, in human rights terms. A general practitioner immediately examined him, in consultation with Charing Cross Hospital. The Claimant's condition remained entirely stable, but the hospital shortly afterwards contacted the doctor and told him that the Claimant should be admitted for review. He was transferred to the Princess Louise Unit, and thence an hour later at 17.20 by ambulance to Charing Cross A&E Unit. There is no evidence of undue delay. The Claimant was subject to review at the hospital until 9 July, when he was discharged back to the prison.
ii) The Claimant complains that the prison did not produce a care plan for him. However, that does not appear to be factually correct: there is a care plan in the medical records, describing the required care from 6 July with regular reviews, there being eight reviews of the plan between 9 July and 15 August 2012. The fact that the Claimant does not consider the plan adequate because "there is no clear multi-functional approach" is a different point, but not a point that arguably engages Article 3. In any event, the prison's care plan provided to the hospital on the Claimant's admission on 22 August was considered appropriate by the hospital (Response to Claimant's Questions 15 January 2103, Answer 6). Further, it is also worthwhile noting that, as we have already observed (see paragraph 21(ii) above), on 20 August 2012 (just two days before he was admitted to the hospital), the Claimant was reviewed by an outside consultant in palliative medicine at the Pembridge Palliative Care Centre, who had no concerns about the Claimant's care although making a number of pharmacological recommendations, "none of [which, she said,] are urgent". A Disability Assessment was also been completed on 22 August 2012.
iii) The Claimant says that, until the end of July 2012, he was only allocated one carer, rather than two. Two carers were needed, for example to lift him. However, again, that is not factually accurate: even at night, the Claimant had two nurses or health care assistants allocated to him, to attend him at all times (see the Second Defendant's Summary Grounds, paragraph 6).
iv) In order to exercise by standing, the Claimant requires a standing wheelchair, the use of which itself of course requires assistance. The prison accepts that a standing wheelchair was not provided as a facility to the Claimant by the time he was admitted to the hospital on 22 August. However, they say that this was because staff needed to be trained, and only 3-4 staff had been trained on 3 August. Seven more staff were due to be trained on 23 August: so the prison were at the point of being able to provide this facility to the Claimant. We have some concern about the delay in training staff to enable the Claimant to have the use of this important piece of equipment to which we will return (see paragraph 37(iv) below) but it is not arguable that the temporary absence of this facility engages Article 3.
v) The Claimant says that the prison staff are inadequately trained in using and maintaining his own wheelchair which he took to prison with him so that his body was not properly supported when he was in the chair. The prison deny that this was so but in any event, as Kenneth Parker J said in his observations when refusing this ground, this is a matter that can be resolved at a practical level on any return of the Claimant to prison. It does not touch Article 3.
vi) The Claimant's condition requires that he regularly stretches his muscles, to prevent spasms and pain caused thereby. He claims that, in his period in the prison, he received only sporadic stretching and no physiotherapy or acupuncture; and he was not provided with any stretching equipment. However, on admission to the prison, he was given a stretching regime by a physiotherapist, who did not consider that any equipment was required and who has trained staff to assist the Claimant's stretching. Stretching took place every day, sometimes more than once a day. Again, any perceived shortfall in the Claimant's care falls very far short of engaging Article 3.
vii) The Claimant requires repositioning in bed, which he cannot do for himself. He complains that he had to wait for up to 30 minutes to be repositioned, which adversely affected his sleep. However, the evidence suggests that the Claimant was frequently repositioned and massaged during the evening and night: for example, the medical record for 20 August refers to "frequent repositioning done approximately every five seconds" the previous evening, when the Claimant does appear to have been distressed. In any event, it is unlikely that a wait to be repositioned measured in minutes, even given the Claimant's medical condition and pain he suffers if not repositioned regularly and promptly, would be capable of engaging Article 3.
viii) The Claimant requires a hoist to be lifted. He complains that the prison staff were not trained in its use. However, again, that is factually incorrect. All staff had had basic training, and 19 staff had bespoke training in respect of the Claimant, including using the hoist, on 11 and 13 July 2012.
ix) The Claimant says that he suffered a hypoglycaemic attack on 12 August 2012, because insulin was administered but no food provided. However, the medical records for that day show regular normal blood glucose level checks during the day, and no mention of a hypoglycaemic attack. On other occasions, there is the suggestion in the records that the Claimant simply refused to eat after taking insulin; but not apparently on that day.
x) Prior to his detention, the Claimant took a variety of dietary supplements, which have not been provided in prison. However, all such alternative medication can only be prescribed by a pharmacist in prison. The head pharmacist at the prison has reviewed the list of medicaments that he took, but those that are not provided by the NHS were not prescribed. That stance is not arguably unreasonable.
xi) The Claimant says that he has been subjected to degrading treatment in terms of his personal hygiene arrangements. He says that he is required to use a commode in full view of persons passing his cell, and can only use the shower at times of association. However, we were told that his disabled toilet is entirely private, and the staff always moved him to that toilet except some times at night when he preferred to use the commode, which was nearer but potentially observable by passers-by. The Claimant says that he could only use the shower at times of association; but he was in fact permitted to shower at any time between 8am and 8pm, except at lunchtime. Finally, he refers to one specific incident when, after he had urinated, he was left soiled for two hours before he was cleaned; but there is no record (nor any complaint) of such an incident. But again, even if that isolated incident had occurred, Article 3 is not arguably engaged: if it occurred, the prison accepts that it ought not to have done, and there is no evidence at all of any systemic (as opposed to operational) problem.
xii) The Claimant complains that he was not given proper visiting facilities for lawyers and family, nor additional telephone credits to remain in contact with his lawyers and family. Further, he says that his carers were not permitted to write complaints on his behalf, and so his complaints are restricted to verbal complaints when the governor visited him, which was irregular. However, again, these complaints are fully answered in the Second Defendant's Summary Grounds, at paragraphs 15-17. The Claimant had 13 visits in the under 6 weeks in the prison. He had access to further telephone credits, which he could purchase: he has only been denied free calls. There are systems in place whereby the Claimant can make any complaint he wishes to make although his carers at one stage expressed concern at being required to write complaints on his behalf about themselves. The Unit Manager visited the Claimant every day; Governor Jarvis visited him four times per week; the carers were able to complete complaint forms that were no about their own conduct; and complaint forms were left with the Claimant to be completed by others (including visitors) as and when complains arose.
xiii) The Claimant complains of being handcuffed during transport, e.g. when going to a medical appointment. As we understand it, he is not complaining of being handcuffed during treatment, only during transport. The risk of escape was assessed on each exit: the Claimant is mobile in his wheelchair. A single chain cuff was used, and his hands were not cuffed together. No injuries as a result of being handcuffed thus are reported, or alleged. We did not find the recent Strasbourg case of Sizarev v Ukraine (Application No 17116/04, 17 January 2013), to which Ms Krause referred us, of any assistance in relation to this claim: that case (which concerned the chaining of an individual in hospital whilst in pre-trial detention for an offence of violence akin to assault occasioning actual bodily harm) turned upon its facts, which were very different from these. Again, we do not consider that there is an Article 3 claim here.
xiv) Finally, the Claimant complains that there was no disability liaison officer at the prison. However, such an officer has now been appointed.
Equality Act 2010
i) The failure to provide him with a bookstand, without which he cannot read. The Claimant cannot read without assistance, such as a bookstand and someone to turn the page of a book for him. The prison accepts that he needs assistance to read books, but the first stand provided by the Claimant's mother had sharp edges and therefore could not be used. However, by 6 August, he was given assistance possibly, said Miss Ward, with the benefit of some form of bookstand and there are references in the medical records to a health assistant turning book pages for him. The prison has confirmed that it would accommodate any reasonable request from the Claimant for assistance in reading.
ii) The failure to allow him to use his standing wheelchair. His mother sent this piece of equipment to the prison, and a physiotherapist assessed the need for staff training on 3 August. Training of the staff was planned for 23 August; but that training needed the Claimant to be present, and he was taken to hospital the day before. It is unclear and, in our view, of some concern why there was a three week delay in arranging the staff training, in circumstances in which this piece of equipment was clearly very important to the Claimant's health and welfare. The prison say that staff training could be done quickly if the Claimant is returned to the prison.
iii) The failure to provide him with private toilet facilities. We have already dealt with this issue (see paragraph 28(xi) above). The prison says that, if the Claimant wished to use the toilet (as opposed to commode) that wish was (and always would be) respected.
iv) The failure to provide him with purposeful activities. However, the medical records show that the Claimant was regularly engaged with association, exercise in the yard and some education (although the Claimant claims at far too elementary a level). The prison also say that, in addition to making some facilities available to the Claimant, he has limitations on what he can do, because he becomes fatigued.
v) The failure to provide him with private telephone facilities. The Claimant needs someone to help him, by holding the telephone. When he was in the prison, that person was always a health assistant. The Claimant contends that he should be able to be assisted by another prisoner, to prevent the privacy of his conversations being overheard. The prison says that the health assistants are not employed by them they are employed by the Primary Health Care Trust and they are, in that sense, "independent". Furthermore, the Claimant has never asked for the helper to be another prisoner. Any reasonable request would, the prison says, be considered.
vi) The failure to enable the Claimant to make complaints. That issue is dealt with above (paragraph 28(xii)): the prison says that the Claimant had every reasonable opportunity to make any complaint that he wished to pursue.
vii) The failure to provide two trained health assistants. So far as the July-August 2012 period is concerned, that is dealt with above (paragraph 28(iii)). In terms of the future and any return to prison, the Claimant's care plan has two, 24-hour per day health care assistants marked in it.
viii) The failure to provide a quiet environment at night. The Claimant says that that is particularly important to him, because of his difficulties in sleeping. The prison says that a prison environment is unavoidably noisy, and the Claimant's own disability is recognised because he is in a separate room on the health care wing. They are not obliged to eliminate all noise, only ensure that the Claimant does not suffer a substantial disadvantage as a result of his disability.
ix) The failure to detain the Claimant in a Category C prison. He is a Category C prisoner (the status of which is currently being reviewed, with a view possibly to re-categorising him as Category D): but the prison is a Category B prison. There are in fact approximately 700 Category C prisoners in the prison. In the Claimant's case, the prison says that it is essential for him to be detained in London (which is where his medical team is, and his medical care cannot be transferred), and there is no Category C prison in London with suitable health facilities. There are four Category B prisons with such facilities, of which the prison is one. There is therefore no alternative but to detain the Claimant in a Category B prison. Although the security level is higher, that does not affect the manner in which he is treated whilst in prison, or the manner in which he will be treated on release.