Functions of a Public Nature – The Human Rights Act 1998 and Care Home Providers – Revisited

The Facts

Paul Sammut (“Mr Sammut”) had suffered from chronic treatment resistant schizophrenia and, for large parts of his adult life, was detained under section 3 of the Mental Health Act 1983.

On 26 February 2018, Mr Sammut was moved from a secure hospital to a private nursing care facility operated by the first defendant, Next Steps Mental Healthcare Limited (“Next Steps”). Next Steps were a privately owned company contracted by public authorities to provide nursing care.

The state paid for Mr Sammut’s care and accommodation costs, during his time at Next Steps.

While at Next Steps, Mr Sammut was treated as a person subject to deprivation of liberty safeguards. However, at no time was this deprivation of liberty authorised.

On 20 April 2019, Mr Sammut died as a result of bronchopneumonia and a condition related to the side effects of his schizophrenia medication.

Mr Sammut’s family and estate subsequently claimed that Mr Sammut’s death had resulted from clinical negligence through breaches of various t European Convention on Human Rights (“ECHR”) rights enforceable under the Act. Mr Sammut’s family and estate claimed that Next Steps shared liability with Greater Manchester Mental Health NHS Foundation Trust (“the Trust”).

Consequently, Mr Sammut’s estate, his mother, his sister and his nephew all commenced proceedings against Next Steps and the Trust alleging clinical negligence and false imprisonment as a result of breaches of Mr Sammut’s rights under the Act.

The Claimant’s brought their claims pursuant to sections 6 and 7 of the Act and alleged that breaches of articles 2, 3, 5 and 8 ECHR had occurred.

As a result, Next Steps applied to have the claims struck out or, in the alternative, for summary judgment to be entered in its favour.

Next Steps brought their application based on the fact that:

• a) They were not a public authority and therefore no remedy under the Act could be awarded against them; and
• b) Alternatively, due to the fact that article 2 of the ECHR was not engaged in this instance.

The Trust made a similar, but more limited, application.

The Law

Section 6 of the Act makes it unlawful for a public authority to act in a way that is incompatible with an ECHR right.

Although the Act does not define what a ‘public authority’ is for the purposes of the Act, in Section 6(3)(b) it is stated that a public authority includes “any person certain of whose functions are functions of a public nature”.

Section 73 of the Care Act 2014, which extends to the whole of the UK .private care home would be considered to be exercising a function of a public nature, for the purposes of Section 6(3) of the Act, if:

• a) the care or support is arranged by an authority listed in column 1 of the Table below*, or paid for (directly or indirectly, and in whole or in part) by such an authority, and
• b) the authority arranges or pays for the care or support under a provision listed in the corresponding entry in column 2 of the Table.

A copy of the Table can be seen at section 73 of the Care Act 2024. It was agreed between the parties that section 73 Care Act 2014, did not apply as Mr Sammut was not being provided with the care under the funding arrangements so as to deem the activities of the care provider to be a public function. The key issue was whether the functions being carried out by it were of a public nature, as set out in the leading case of YL v Birmingham City Council [2007] UKHL 27.

YL had contracted with an independent care home provider for a patient to live in one of its homes, the fees for which were largely paid by the local authority. The then House of Lord’s (HoL) determined that the care home was not exercising a function of a public nature but was carrying on a business for profit. The HoL considered the care home provider’s arrangement with the local authority was a private business matter that happened to have an element of social utility. It was noted that the care home company had no special statutory powers and was under no obligation to accept residents.

The Decision

His Honour Judge (“HHJ”) Bird agreed that section 73 of the Care Act 2014 did not apply.

Applying the principles of YL, HHJ Bird considered that Next Steps did not have any special statutory powers and considered that they were conducting a private business, albeit with an element of social utility.

As such, HHJ Bird determined that the claim brought was bound to fail and accepted Next Step’s strike out application. Specifically, HHJ Bird stated that:

HHJ Bird also went onto say that, in any event, he would have found that article 2 of the ECHR was not engaged in Mr Sammut’s case as there are only two exceptional circumstances in which the State would become responsible for the acts and omissions of healthcare providers. These being:

• 1) Where a patient’s life was knowingly put in danger by denial of access to lifesaving emergency treatment; or
• 2) Where there was a systemic or structural dysfunction in hospital services that the authorities knew about.

Neither applied to Mr Sammut’s case.

It should be noted that Next Step’s application for strike out/summary judgment solely related to the claims under the Act. This application was not brought in relation to the clinical negligence claim advanced by the Claimants.

Blake Morgan has significant experience is assisting with health and social care matters, as well as matters relating to Human Rights Act 1998. Should you require advice upon any of the above areas please contact Eve Piffaretti or Richard M Jones.