Human Rights Act 1998: scope of potential claims for victims’ relatives

Friday 11 December 2020

Michael Etienne of the Garden Court Chambers Civil Liberties & Human Rights Team, instructed by Chez Cotton of Matthew Gold & Co Ltd Solicitors, represented the parents of a patient receiving care at a mental health hospital in circumstances where the common law of negligence appeared to offer no remedy to close family members.

Michael Etienne, Chez Cotton and Dylan Morley discuss the settlement of a claim for damages pre-issue.

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Undercover hospital abuse scandal', a Panorama documentary broadcast by the BBC on 22 May 2019, showed staff abusing vulnerable patients including A, a young woman with autism and significant sensory deficits. A was a patient admitted for treatment and detained under Mental Health Act 1983 s3. She was tormented, provoked and then restrained by ‘carers’ at Whorlton Hall. Experts reviewing the footage said aspects of A’s treatment amounted to psychological torture.[1] The private hospital closed as a result of the exposé.

The settlement considered in this article concerns A’s parents, Sarah and Tony, who sought legal redress for the secondary impacts on them as a result of A’s mistreatment. They instructed Chez Cotton and Michael Etienne. With Sarah and Tony’s kind permission, they explain the practical and legal issues of the case.


Sarah and Tony were not eligible for public funding, had no insurance to cover litigation and could not pay privately. A conditional fee arrangement was the only way of funding the litigation, with disbursements and/or adverse cost orders crowdfunded if necessary.

Date of knowledge

The BBC’s Panorama first made contact with the parents on 23 April 2019, revealing the Whorlton Hall undercover operation and the existence of disturbing footage. By this time, A had moved to a successful placement nearer to her family. They had no idea their daughter had been abused. Their reaction watching the footage for the first time was part of the documentary broadcast on 22 May 2019. The first approach by Panorama was taken as the date of knowledge.

Early notification and limitation standstill agreement

Instructed at the end of February 2020, with a date of knowledge of 23 April 2019, limitation was an immediate concern. Identifying the correct defendant(s), cause(s) of action and protecting the claim was critical. Given the complexity and novel circumstances, and so as to avoid wasted time and costs, on receiving early notification of the claim, each of the four potential defendants signed a limitation standstill agreement (LSA). No point would be taken if the claim was issued within the time frame agreed in the LSA, even if the usual limitation period had passed. As psychological injury could only exist with knowledge of the abuse, it was anticipated any argument that the Human Rights Act 1998 (HRA) claim was already out of time when the LSA was signed (because others had earlier knowledge of the abuse) could be defeated.

Defendant identified

The parents accepted advice that the best claim was against the private company receiving public authority funding to provide care at Whorlton Hall, making it a quasi-public authority for litigation purposes.

Negligence considered

Ultimately, the law of negligence seemed unlikely to provide any remedy. As Lord Steyn observed in one of the leading cases, White v Chief Constable of South Yorkshire Police [1999] AC 455 at 500:

[T]he law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.

However, what is clear is that, for ‘policy’ reasons, the law is fiercely resistant to secondary claims for psychiatric injury and stipulates a number of stringent ‘control mechanisms’ to limit such claims. As Chamberlain J reminds us in the albeit successful High Court appeal in Paul and Paul (by their mother and litigation friend Balbir Kaur Paul) v Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) at para 5:

In general, the law does not allow recovery by such secondary victims. An exception came to be recognised in cases where secondary victims suffered ‘nervous shock’ having witnessed the death or injury of a primary victim. The appellate courts have, however, been careful to keep recovery for this type of injury within strict limits.

Moreover, in Alcock and others v Chief Constable of South Yorkshire Police [1991] 3 WLR 1057, the House of Lords rejected negligence claims by relatives traumatised by watching the Hillsborough disaster unfold on television, leading to the deaths of their loved ones. Most pertinently, it was held that the viewing of the disaster on television could not be said to be equivalent to being within sight and hearing of the tragedy or its immediate aftermath. As a result, there was an absence of sufficient proximity between the claimants and the defendant.

Given ‘policy’ decisions around negligence, a claim under the HRA was preferred if viable.

Human Rights Act 1998

The defendant was a quasi-public authority and HRA s6 requires ‘public authorities’ to act compatibly with the rights protected by the European Convention on Human Rights (ECHR). A ‘victim’ of an unlawful act by a public authority is entitled to bring proceedings in reliance on their ECHR rights, so long as they are or would be a ‘victim’ (HRA s7(1)).

Could Sarah and Tony claim as victims?

Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2; March 2012 Legal Action 11, established that the parents of Melanie Rabone were entitled to bring their own ECHR article 2 claim arising from their daughter’s suicide, which resulted from the trust’s failure to meet its article 2 obligations to protect her from this real and immediate risk. Lord Dyson, who gave the leading judgment, stated at para 46:

The [European Court of Human Rights (ECtHR)] has repeatedly stated that family members of the deceased can bring claims in their own right both in relation to the investigative obligation and the substantive obligations.

The judgment makes clear that Mr and Mrs Rabone were entitled to recover in their own right for the personal impact of Melanie’s death on them, particularly in the circumstances in which it occurred. That right was unaffected by the entitlement of any other party (in that case, Melanie’s estate) to bring claims and recover for their own losses. As Lord Dyson explained at para 59:

As I have said, the redress that the trust has made as a result of Melanie’s death has been limited to payment of compensation to Mr Rabone in respect of his claim on behalf of the estate. Nothing has been paid to Mr or Mrs Rabone to compensate them for their bereavement. No decision of the ECtHR has been cited to us which supports the surprising proposition that the compensation that has been paid in respect of the estate’s losses would be considered by the court to be adequate redress in respect of the personal losses of Mr and Mrs Rabone.

In applying the decision of Rabone, in Daniel and Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016] EWHC 23 (QB); June 2016 Legal Action 27, Lang J observed, at para 147, that:

Article 34 of the [ECHR] provides that the court may receive applications from any person claiming to be the victim of a violation of a convention right, but does not define the term ‘victim’. The status of ‘victim’ is an autonomous concept which the ECtHR interprets independently of domestic law rules on capacity and standing. In principle, therefore, the class of victims of an article 2 violation might well extend beyond the class of persons entitled to seek financial compensation for a death under domestic law.

Relying on Rabone, the parents had standing to pursue a HRA claim. The focus of the claim was ECHR article 3.

Article 3

ECHR article 3 provides an absolute prohibition on torture or inhuman or degrading treatment or punishment. As the primary victim, this was clearly relevant for any claim that might be pursued on their daughter’s behalf.

However, Strasbourg jurisprudence has recognised that family members can also be ‘direct victims’ of treatment contrary to article 3 on account of the suffering stemming from serious human rights violations affecting their relatives: Janowiec and others v Russia App Nos 55508/07 and 29520/09, 21 October 2013 at paras 177–181 and Selami and others v Former Yugoslav Republic of Macedonia App No 78241/13, 1 March 2018 at paras 54–56.

The relevant principles were set out at para 177 of Janowiec (emphasis added):

The court has always been sensitive in its case-law to the profound psychological impact of a serious human rights violation on the victim’s family members who are applicants before the court. However, in order for a separate violation of article 3 of the [ECHR] to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself. The relevant factors include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question and the involvement of the applicants in the attempts to obtain information about the fate of their relatives.

Special factors

Accordingly, not unlike negligence claims, in order to succeed Sarah and Tony had to show ‘special factors … giving their suffering a dimension and character’ over and above what might be expected. There was no dispute as to their close, loving relationship with A. Regular visitors at Whorlton Hall during the 16 months A was resident there, they were encouraged to, and did, believe that they were working as a team with the staff for A’s benefit. The staff actively cultivated a relationship of trust and friendship with the parents, including complimenting their commitment to A. The parents provided key information to staff, such as A’s phobias and fear of male carers when distressed. Seeing these ‘triggers’ deliberately used by staff to provoke and then restrain A when she reacted was ‘utterly devastating’ to the parents.

The psychologist treating the parents confirmed by letter that significant trauma had been caused as a direct result of the abusive treatment of A.

Articles 8 and 14

Further and in the alternative, reliance was placed on ECHR articles 8 (private and family life) and 14 (the prohibition on discrimination within the ambit of an ECHR right). This reflected consideration of the impact of A’s abuse on the entire familial relationship and the breach of trust it represented for these parents.

Letter of claim

A letter of claim sent under the Practice Direction – Pre-action Conduct and Protocols of the Civil Procedure Rules 1998 (CPR) included the factual background, psychological impact and legal basis of the claim, with two months given to investigate and respond on liability.

Part 36 and medical evidence served

A CPR Part 36 offer was served, along with the treating psychologist’s supporting letter, during the two-month investigation period. Negotiations were entered into immediately.

Claim settled with an apology

The claim was settled for damages, an apology and legal costs, within the LSA timescale, without issuing proceedings and with no admission of liability.
[1] For other comments, see The detention of young people with learning disabilities and/or autism. Second report of session 2019, HC 121/HL Paper 10, Joint Committee on Human Rights, 1 November 2019, footnote 130, page 32.

A version of this press release was first published in November 2020 by Legal Action Group (LAG), please click here to view the original.

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