Who shall I sue for clinical negligence suffered in prison?
Posted on 26th November 2019
Accessing satisfactory healthcare is a challenge for those in prison. The legal position is that prisoners are entitled to receive the same standard of healthcare as the general population but in practice, this is rarely the case.
In 1999, the NHS Executive and HM Prison Service published The Future Organisation of Prison Healthcare, which proposed transferred responsibility for commissioning of prison health to the NHS. In April 2006, the responsibility for prison healthcare commissioning formally transferred from the Home Office to the NHS, via primary care trusts. This led to policy development which would support and enhance the principle of equivalence, i.e. that people in prison should receive healthcare according to their needs and equivalent to the standard of care provided to people in the wider community.
However, delays in seeing medical staff, missed hospital appointments and disruption to medication due to prison transfers and administrative issues are all common issues, which often result in a worse standard of healthcare than is available in the community. Where prisoners seek compensation for harm suffered due to clinical negligence the alleged failings are often of both an operation and clinical nature. As healthcare in prisons is covered by the NHS operating within the broader system run by the Ministry of Justice, conflict can arise as to which body is the correct defendant for a clinical negligence claim.
This conflict was considered in Benius Razumas v Ministry of Justice  EWHC 215 (QB), which underscored that an element of the duty of care owed by the MoJ as part of the custodial relationship includes providing a safe environment. This likely extends to providing access to healthcare, as was conceded by the MoJ during the case. The judgement found that if provisions were made for GP services for a prison, ‘but the governor failed to put in place arrangements to enable the prisoners to attend the GPs at all, a duty owed by the [Ministry of Justice] would have been breached.’ However the MoJ is not vicariously liable for the provision of healthcare and so, where the allegations relate only to substandard medical treatment, the Defendant will usually be the NHS Trust or GP. Additionally, as healthcare operates separately, the clinical Defendant would not be able to rely on operational failures, such as a lack of escort staff to take the patient to their hospital appointment, as a defence to their own negligence.
The overlap between the duties owed by the two bodies is evident in the tragic case of Natasha Chin, a woman who died in July 2016 in HMP Bronzefield, a private prison run by Sodexo on behalf of the MoJ. The inquest found that her death was caused by the failure of Sodexo to ensure there were appropriate systems in place to administer Natasha’s prescribed medication and to observe her appropriately; issues that had been raised in previous inquests and inspections since 2010. Natasha had alcohol and drug dependencies and experts informed the inquest that had she received proper treatment it is likely she would have survived.
On a wider scale, the 2018 report by the Select Committee on Prison Health highlights the endemic nature of poor healthcare experienced by prisoners, which again often engage the duties of both bodies. It notes that the physical and mental health of those in prison tends to be significantly worse than those in the community and as such, the demand for healthcare services is high. 72% of prisoners report struggling to access services and over half were dissatisfied with the service they received. The most common difficulties included delays in accessing treatment, emergency calls being answered too late or not at all, issues in obtaining the medication required, lack of access to dentists and opticians and problems with making complaints, which should be made via the NHS Complaints procedure rather than the internal prison complaints system. These issues all indicate potential failings across both the prison and healthcare.
Given the role of both the prison healthcare services and the MoJ any prison clinical negligence will be highly fact specific. If you are considering bringing such a claim please call our Medical Negligence team on 0808 231 6369 who can advise you on the best approach to ensure you are properly compensated.