GB v Home Office [2015] EWHC 819 (QB): Case comment

‘Home Office owes non-delegable duty to detention centre detainees in respect of medical care’

In GB v Home Office [2015] EWHC 819 (QB) Coulson J found, as a preliminary matter, that the Home Office owed the claimant a non-delegable duty of care in respect of any negligent acts or omissions on the part of medical care providers at Yarl’s Wood IRC. The case will now proceed to trial.

This case is an important application of the Supreme Court’s judgment in Woodland v Swimming Teachers Association and Ors [2014] AC 537 to the immigration detention context.

The claimant, a Nigerian woman in her 30s, had been detained at Yarl’s Wood under immigration powers. While there, she was prescribed Mefloquine (an anti-malarial drug) as it was proposed to remove her to Nigeria where malaria is commonplace. The claimant claims that the drug caused her to suffer a severe psychotic reaction. A trial of a preliminary issue was ordered on whether or not the Home Office owed her a non-delegable duty of care in the provision of medical care at the centre.

Coulson J rejected the Home Office’s attempt to distinguish between prisoners and detainees (the former having been expressly identified by Lord Sumption in Woodland as likely to satisfy his first requirement of vulnerability or dependency): “Inmates of both establishments have one vital feature of their lives in common: they are held against their will and cannot leave the place where they are detained…[they] are thus dependant on the protection of the defendant.” (para.25)

He considered that there is a significant element of control in these circumstances, and a positive duty to protect the claimant from harm (para.28). Indeed, it was in recognition of that positive duty that the Detention Centre Rules and relevant IDIs were made. Lord Sumption’s second requirement of an ‘antecedent relationship’ was consequently satisfied.

The defendant sought to argue that the medical situation was no different from that of someone at liberty. However, that was soundly rejected by Coulson J who agreed with Mr McCullough QC that these submissions were “unreal”: GB was detained by the Home Office and was obliged to accept the medical treatment she was given. “There was no free choice” and the third of Lord Sumption’s ingredients was also made out (para.31).

Of the five elements identified by Lord Sumption in Woodland, Coulson J found the fourth the most difficult to apply to the present case, namely whether the provision of medical treatment (delegated to Serco) was an integral part of the positive duty owed. However, he concluded that it was for two reasons, one general and one specific.

  1. Firstly, the Detention Centre Rules emphasise the importance of the provision of proper medical care to detainees and “on a fair reading of those documents…this was an integral part of the duty owed to GB” (para.35).
  2. Secondly, and even if wrong about the first reason, on the specific facts of this case, the prescription of anti-malarial drugs was an integral part of the duty owed to this claimant as the Home Office was preparing for at least the possibility of her removal to Nigeria; GB was given Mefloquine to prepare for that removal. The prescription of the drug therefore arose directly out of the Home Office’s detention and control of the claimant prior to removal and was thus an integral part of the positive duty assumed towards her (para.36).

As Coulson J said, his reasoning in this regard meant that the final of Lord Sumption’s elements was also satisfied, although the question of whether or not there was negligence as a matter of fact will be a matter for trial.

Finally, Coulson J concluded it would be fair, just and reasonable to impose a duty in this case. The argument of the defendant amounted to a submission that, since the doctor or Serco were more ‘directly’ responsible for what had happened, it would not be fair to impose potential liability on the Home Office; however, as Coulson J pointed out, “this submission, taken to its legal conclusion, would have defeated the existence of the non-delegable duty in Woodland” (para.41).

As Coulson J stated at paragraph 43 of his judgment:

It is also worth undertaking something of a reality check at this point. The defendant decided to detain GB, and consequently had clear responsibilities for her treatment as a detainee as a result. It would not be just, fair or reasonable to conclude that those responsibilities disappeared simply because of an outsourcing decision.”

This case represents an important extension of the Woodland principles to the immigration detention context. Coulson J found no difficulty in rejecting the defendant’s arguments that the first three of Lord Sumption’s ‘features’ are not applicable to immigration detainees.

It was to be expected the ingredient Coulson J found most difficult to grapple with was the fourth feature: is the provision of medical care an integral part of the positive duty assumed by the defendant. Ultimately, however, he resolved this resoundingly in the Claimant’s favour, finding reasoning of both general and specific application to support his finding that it was an integral part. The Judge’s findings are such that medical care provided in immigration detention pursuant to the Detention Centre Rules forms part of the positive duty; it remains to be seen whether there will be an attempt to distinguish this case from other cases involving the provision of other types of medical care on those facts.

[As an aside, Coulson J also resoundingly rejected the submission that the Crown Proceedings Act 1947 operated to prevent any liability on the part of the Crown in respect of the non-delegable duty he had identified.]

Doughty Street’s Michelle Knorr was led by Angus McCullough QC; they were instructed by Kay Everett at Wilson Solicitors LLP).

Julie Anderson, instructed by the Treasury Solicitor, acted for the Defendant

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