QB-2022-002447 - [2025] EWHC 2803 (KB)

As to C3, the Claimants argue, as expressed in their skeleton argument, that

“The Defendants (including D1) owed a duty to protect C3 from himself. … C3 does not claim that the process undertaken pursuant to the MHA amounted, inherently, to inhuman or degrading treatment. It is not suggested that the consequent disposal of C3’s criminal case and his hospital detention amounts to inhuman or degrading treatment in and of itself.

Rather, C3 contends that the failure of the D1 to adhere to its positive obligations caused a heightened risk of harm to C3, as a result of actions taken by C3 himself, which was sufficient to meet the minimum threshold of severity necessary to engage Article 3 ECHR. Reliance is placed upon the risk of C3 self-harming and the exacerbation to C3’s pre-existing mental health conditions caused by the knowledge of the consequences of his actions on 23rd December 2018.”

It is said that a protective duty was owed by D1 to C3 who ought to have known or did know of the real and immediate risk of C3 harming himself or that he would do things that, in effect “made himself worse”. Reliance is placed on the case of Rabone v Pennine Care NHS Trust [2012] 2 AC 72, SC(E) where the Court recognised a duty to a mental patient who later went on to commit suicide. This by extension should apply to a person in the position of C3 to mean there is a duty to prevent him engaging in harmful conduct caused by his mental illness.

The case of Paposhvili v Belgium (Application No. 41738/10) (Grand Chamber) at [175] supports the proposition say the Claimants that Article 3 covers suffering which flows from a naturally occurring illness, where it is, or risks, being exacerbated by treatment or other measures for which authorities can be held responsible, and the responsibility is engaged because of acts which result in the risk of (C3) being exposed to treatment prohibited by Article 3. This also applied to Article 8 they submit – such that there is a duty to protect where the authorities ought to know of a “risk to the interference with the physical or moral integrity” of an identified individual”.

The position of C2 and C3 as victims, in the absence of a direct breach of their rights, has been challenged and Mr Bowen submits that the interpretation so far placed on victimhood is not a fixed rule. Further here both direct and indirect claims are advanced, and Mr Bowen says there is no reason in practice that there could not be such a claim here where the state’s protective duty is in issue.