Articles 3 and 8 in the time of coronavirus

Arianna Kelly looks at a new case with significant implications for local authorities using the Care Act ‘easements’.

The Care Act ‘easements’ were brought into force on 31 March 2020. Per the statutory guidance, local authorities may take a decision to apply the new and much higher threshold for receiving care. That threshold states that a person is not entitled to receive care and support from a local authority as a matter of right unless it is necessary to prevent a breach of the person’s human rights – most likely to be Articles 2, 3 or 8 of the European Convention.

A new judgment from Mr Justice Chamberlain, University College London Hospitals NHS Foundation Trust v MB (Rev 1) [2020] EWHC 882 (QB) (09 April 2020), considers when a refusal to provide hospital care may breach a person’s Article 3 rights. While the judgment makes broad statements about the inapplicability of Article 3 in relation to the allocation of scarce resources, it also highlights the importance of effective provision of community care for those who do not receive hospital care. This case has important implications for local authorities, which will likely bear the responsibility for avoiding breaches of human rights in cases of this nature.

The facts

The case involved an application by the Trust for possession of the room of a patient, MB, in anticipation that the room would be needed for COVID-19 patients. MB had been in the hospital for over a year as a neuropsychiatric inpatient. She had multiple mental health diagnoses and a functional neurological disorder. Hospital staff had found MB extremely difficult to care for due to her behaviour. The hospital had been attempting to discharge MB since August 2019, but she had refused to leave.

MB had care needs, and a 24-hour care package was to be made available to her by the local authority upon her discharge, with a review of this provision after three months. MB considered that the proposed care package was inadequate, and sought a guarantee that she would receive 24-hour care in the community for at least a year.

The arguments

MB opposed the Trust’s application on the basis that it would breach her Article 3, 8 and 14 rights, and would be contrary to ss. 29 and 149 of the Equality Act 2010. She submitted that if her discharge proceeded as planned, she would be at risk of suicide, self-harm or suffering extreme distress.

The Trust argued that the discharge was appropriate notwithstanding MB’s concerns, that the care package was appropriate, and that in any event, the Trust did not have control over the nature of the care package offered by the local authority. In evidence from a treating doctor, it was stated that "there are no mental health reasons…to keep her in this hospital".

The court made the following findings on the evidence:

• MB’s needs could be met with the proposed care package;
• MB was unsatisfied with the care package, and it was ‘unrealistic to suppose’ that the concerns she had raised "will ever be addressed to her satisfaction in the foreseeable future";
• Though MB has a history of using threats of self-harm and suicide, there were no known instances of her self-harming;
• The risk of her attempting suicide or self-harm was moderate to low, though it was likely that she would suffer "extreme distress if discharged now while her concerns have not been addressed to her satisfaction".

The judgment

The court granted the Trust’s application. MB did not argue that the decision to seek possession of her room was irrational, and the court found that such an argument would have been unsustainable. Mr Justice Chamberlain considered whether MB had a public law defence to the hospital’s application under Articles 3, 8 or 14:

Article 3:

• While MB was likely to suffer "extreme distress" if she were forced to leave the hospital, "if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes." MB’s wishes were not determinative of the hospital’s obligations under Article 3.
• Article 3 would not be breached where a hospital refused to treat a patient on the basis that it could not provide care to all who required it and other patients would "derive greater clinical benefit" from that care. The court found this principle held even if the refusal to provide treatment resulted in suffering for the patient who was refused treatment.
• The court found that "in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, '[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands'. Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person."
• In this case, there was no direct comparison between MB’s needs and those of another identified person. However, "the decision to withdraw permission for MB to remain in the Hospital is still a decision about the allocation of scarce public resources…The absence of evidence identifying a specific patient or patients who will be disadvantaged if MB remains where she is does not mean that such patients do not exist."
• The court emphasised that a decision had already been taken that MB would not be provided with further in-patient care. Mr Justice Chamberlain noted that the "where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one."
• The court found that in any event, the evidence did not demonstrate that MB’s discharge would lead her to experience "suffering rising to the level of severity required to engage Article 3 ECHR," particularly where she would be in receipt of 24-hour care package on her discharge.

Article 8:

• Citing McDonald, the court noted the wide margin of appreciation afforded to states "in striking ‘the fair balance … between the competing interests of the individual and of the community as a whole’ and ‘in determining the steps to be taken to ensure compliance with the Convention’, and indeed that ‘this margin of appreciation is even wider when … the issues involve an assessment of the priorities in the context of the allocation of limited state resources'".
• The court found that while MB’s Article 8 rights were engaged by the decision, the evidence "amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment".

Article 14 and s.149 Equality Act 2010:

• The court found that the hospital had not discriminated against MB contrary to Article 14, as it had taken decision based on "her clinical need for such care".
• Likewise, the court found that full consideration had been given to MB’s needs arising as a result of her physical and mental health.

Discussion and application for local authorities

If there is scarcity of resources in the health and social care sectors as a result of the pandemic, difficult decisions will need to be made as to which individuals receive care and which do not. In this judgment, the court appeared to find that that Article 3 was not (or was extremely unlikely to) be engaged by a decision to refuse care to a person on the basis of scarcity, so long as the care was denied for the purpose of providing care to others – even where such a decision caused the person who was denied care to experience serious suffering.

I do not believe that this is an accurate statement of what is required of the state under Article 3, and that the finding in MB was strongly influenced by two factors:

• The apparent clinical consensus that MB had no objective need for health care; and
• the extensive care package MB was set to receive from the local authority on her discharge from hospital.

My view is that the ratio in this case was overbroad in its statements on the inapplicability of Article 3 in cases of allocation of scarce resources, and that the key finding was actually that MB was not at any meaningful risk of experiencing Article 3 suffering because she would always have support available to her. If upon discharge, MB would have been likely to experience suffering of a level as to engage Article 3, the court would have had to grapple with the far more difficult question of whether the hospital was permitted to inflict this fate upon her in order to free up resources for as-yet-unidentified others.

In support of its ratio, the court in MB looked to two cases, Pretty v DPP and R v North West Lancashire Health Authority, both of which present different and more complicated pictures of what is required by Article 3:

• The judgment cites Pretty v DPP for the proposition that the Article 3 positive duty requires only that a state take ‘reasonable steps’ to prevent suffering of a level to engage Article 3. The cited paragraph of the judgment relates to the Secretary of State’s submissions, and states, inter alia:

The negative prohibition in the article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v United Kingdom, above; Rees v United Kingdom (1986) 9 EHRR 56…states…may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him (D v United Kingdom (1997) 24 EHRR 423)’.

• The House of Lords judgment in Pretty was appealed to the European Court of Human Rights in Pretty v UK. The Strasbourg court found that:

o The ‘treatment’ prohibited by Article 3 refers to ‘“ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering… The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

o Looking primarily to D v United Kingdom, the Strasbourg court considered that a state’s responsibility may be engaged by removing a person who was very unwell to a place where ‘no effective medical or palliative treatment’ was available.

• In the Pretty cases, neither the House of Lords nor the Strasbourg Court made a finding that only ‘reasonable efforts’ to avoid suffering rising to the level required to breach Article 3 were necessary.
• The MB judgment also cites R v North West Lancashire Health Authority in support of the proposition that Article 3 is "not designed for circumstances…where the challenge is as to a health authority’s allocation of finite funds between competing demands". North West Lancashire related to a challenge to a policy decision by the health authority not to offer sex reassignment surgery "in the absence of overriding clinical need". While the above statement is included within the ratio, I would suggest that again the key finding made by the Court of Appeal was that the suffering which the claimants argued that they experience if denied the surgery clearly would not meet the threshold to engage Article 3.

The threshold for the suffering required to engage Article 3 is high, but my view is that where such suffering arises, the obligations of the state to prevent it are significantly less flexible than is suggested in MB. I would note the following passage from D v United Kingdom:

“49. The Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection.

In D v United Kingdom, N v United Kingdom and De Almeida v Kensington and Chelsea, courts were called upon to consider whether an Article 3 breach would occur if either a local authority refused to provide support for the person, or the person was removed from the UK to a country where no (or grossly inadequate) social support was available to the person. Where the prospect of grotesque suffering of such a level as to make an Article 3 breach a serious prospect was present, the courts did take into account the finite nature of finances for either health or social care – in stark contrast to arguments under Article 8, where these arguments were often central.

Conclusion

In short, I would advise local authorities considering their obligations under Article 3 to treat the judgment in MB with caution. Per the statutory guidance, the Care Act ‘easements’ should not be exercised until a depletion of the workforce or a surge in demand for care is so great that local authorities are unable to comply with their Care Act duties. Thus, local authorities should only be making determinations of eligibility on the basis of avoiding breaches of Article 3 if they are in a position of allocating scarce resources.

While the threshold for engaging Article 3 is very high, my view is that cases will exist which oblige local authorities to provide care to avoid breaching it – and the potential breach would not fall away simply because the budget for social care has been spent in other ways. The facts of what level of suffering the person would be likely to experience in the absence of care will be key, particularly in cases where an affirmative act is taken to withdraw care and support which a person relies upon. Further, social care resources are typically more flexible than health resources, (particularly where direct payments may be appropriate for meeting needs), and are less likely to run up against the hard limitations of resources which may be seen in health settings.

Where brutal decisions may need to be taken on an urgent basis in relation to access to health care, the existence of an effective provision of social care for people who are not afforded hospital care will be vital to ensuring that their Article 3 rights are upheld.

Arianna Kelly is a barrister at Kings Chambers.