Human Rights Act Declarations and damages award of £2.3 million secured for Claimant who was abused by the Care Co-Ordinator responsible for her treatment

The Judgment of Mr Justice Fordham in UXA v. Merseycare NHS Foundation Trust [2021] EWHC 3455 (QB) was handed down on 21st December 2021 and is available here.

Marc Willems QC, leading Peter Edwards and Professor Conor Gearty QC (Hon.), instructed by Mark McGhee, Rebecca Burgess and the expert Human Rights team at Lexent Partners, represented the Claimant, UXA, a Vulnerable Adult, in the action against the Defendant, Merseycare NHS Foundation Trust, that was responsible for her care.

Whilst under the care of the Defendant Trust, in the period from November 2014 to May 2016 the Claimant, who was a Vulnerable Adult by virtue of her serious pre-existing psychiatric condition, was groomed and emotionally and sexually abused by an employee of the NHS Trust who was her Care Co-Ordinator for the purposes of the Mental Health Act, 1983. 

The subsequent actionable breaches by the Defendant Trust, once the abuse by the Care Co-Ordinator was disclosed, is best-summarised in the agreed Joint Statement of the medico-legal Psychiatrists instructed on behalf of the Claimant and the Defendant Trust, as follows: “various managers and clinicians in the Defendant Trust failed to act, or acted inappropriately, and did not provide the appropriate response, which would have mitigated the damage caused by the abuse by PD. Their actions included taking a position that was unhelpful, coloured by their understanding of UXA’s condition, leaving her in a very difficult situation, abandoned and alone and effectively discharged.  Their failure to act meant that she received nothing treatment-wise until she got her legal representatives involved … We agree that the failure by the clinicians and managers resulted in UXA missing out on treatment which would have been helpful, contributing to her delayed recovery and impacting on the course of her illness into the future.”  By way of example, the Defendant Trust failed to take any action to prevent the abuser moving in to live with the Claimant despite the known abuse.

Claims of trespass to the person, negligence, misfeasance in public office, breach of the Defendant’s ongoing duty to of providing care (also a breach of section 117 breach of section 117 of the Mental Health Act, 1983), breach of confidence, misuse of private information and for breach of the Data Protection Act, 1998, were pursued in respect of both the abuse perpetrated by the Care Co-Ordinator and the Defendant Trust’s inadequate, negligent and abusive approach after the abuse was revealed.  The damages claimed included claims for aggravated and exemplary damages.

Claims were also pursued on behalf of the Claimant for Declarations of breach by the Defendant Trust of the Claimant’s Article 2 (right to life), Article 3 (prohibition against torture and inhuman and degrading treatment) and Article 8 (right to respect for personal and family life) rights under the European Convention/the HRA.

An Anonymity Order was obtained on behalf of the Claimant, protecting the release or publication of the name and other identifying details of herself and her daughter.

Judgment in default was obtained on all common law and statutory claims, save for the HRA claims, following the Defendant Trust’s repeated failures to comply with its standard disclosure obligations, including a breach of a final, Unless Order.  A claim for aggravated damages was subsequently pursued on behalf of the Claimant in respect of the Defendant’s contumelious approach to its disclosure obligations, relying particularly on its status as a public authority.  

As confirmed in paragraph 11 of the Judgment of Mr Justice Fordham, the Declarations sought under the European Convention/HRA were “judicial acts and ought not to be made on default of pleadings … or by consent, but only if the court is satisfied by evidence.” Those claims, therefore, proceeded and were subject to judicial determination and a Substantive Order of the Court, handed down on 15^th October 2021 (and reproduced at paragraph 4 of the Judgment).

This is believed to be the first time that a judicial, HRA Article 2 Declaration has been secured against an NHS Trust relating to events that occurred whilst the Claimant was neither detained under the MHA nor on temporary release.  UXA was, for the majority of the relevant period, living in her own property.  The HRA Declaration was, nevertheless, appropriate on the basis that she was under the “effective control” of the Defendant Trust by reason of its ongoing obligation under section 117 of the MHA, 1983, and the fact that the Claimant was at all times “exceptionally vulnerable.”   

It is also the first time that a judicial, HRA Article 3 Declaration has been secured against an NHS Trust for breaches of the Article 3 prohibition against torture and inhuman and degrading treatment.  

The failure on the part of the Defendant Trust to report the abuse to the Care Quality Commission (CQC) as a Serious Untoward Incident Review, through the Strategic Information System, together with the Trust’s failure to act once it became aware of the abuse warranted a Declaration of breach of the operational obligation under Articles 2 and 3.  

The Article 8 Declaration related to the Claimant’s consequent loss of contact with her daughter, which arose because of the serious deterioration in her mental health, caused by the Defendant’s breaches.

The issue of the appropriate damages award was settled very shortly before the listed Trial date with the Claimant recovering damages of just under £2.3 million, inclusive of interim payments made during the course of the proceedings. 

Whilst the settlement did not include a breakdown of the damages awarded, it was based on the assessment of the Claimant’s legal team of: a general damages award for the exacerbation of the Claimant’s mental health condition of around £50,000; a general damages award of around £60,000 for an abdominal wall hernia, requiring multiple laparotomies, caused by acts of self-harm by the Claimant as a result of that exacerbation; and aggravated damages of £100,000, with the remainder of the award being for past and future loss of earnings and past and future treatment, care and therapy costs.

A further contested issue then arose, following the settlement, and the Court granting the Claimant HRA Declarations for breaches of Articles 2,3 and 8, as to the use that the Claimant could make of certain documents that had been produced and disclosed during the course of the proceedings. These included the pleadings, the parties’ Skeleton Arguments, the Joint Statement of the Psychiatric experts, the Defendant’s formal Admissions and a Report of NICHE that had conducted an investigation into the index events. 

The dispute led to the need for further detailed submissions by the parties and a 41-page Judgment by Mr Justice Fordham, which was handed down on 21^st December 2021.     

Mr Justice Fordham held that: (i) the granting by the Court of Human Rights Declarations was a substantive judicial determination, to which the principle of “open justice” applies, irrespective of whether a hearing was held prior to the Declarations being granted; (ii) the Claimant had an entirely legitimate interest in the wider use of the identified documents, including in her dealings with recognised media organisations who are reporting on the Claimant’s case and its wider implications; (iii) wider access to the identified documents would promote the “public policy in the administration of justice” and “public scrutiny of the way in which courts decide cases” (iv) wider use of the identified documents is justified and necessary under the Court’s inherent jurisdiction, having regard to the open justice principle and the interests of justice, and/or pursuant to CPR 31.22(1)(b); and (v) the Claimant would, consequently, be permitted to use all of the identified categories of documents for purposes outside of the litigation.   

Given the critical importance of this case for the Claimant, the legal team was delighted to receive the following message from UXA, following the handing down of the Judgment:

“I have achieved what I have because of the support, empathy and brilliance of my Legal Team. At no time have they ever doubted the strength of my case, despite everything that was thrown at me by the Defendant. What I wanted out of this case was recognition of wrongdoing and violation of my basic human rights by the Defendant. I have achieved that and as the Judge has said, I have been vindicated. There were times when I doubted what we were doing; however throughout, the confidence and commitment from my Barristers Marc Willems, Peter Edwards and Conor Gearty and my Solicitors, Lexent Partners, has never wavered. They were always certain that we would succeed and we have. I owe that success in large part to all of them; I will always be grateful to them all. I now see a future for myself, a future with hope that would never have been possible if it wasn’t for my Legal Team.”

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