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Milner v Barchester Healthcare Homes Limited


The case of Milner v Barchester Healthcare Homes Limited [2022] EWHC 593 (QB) provides some useful guidance on the juxtaposition of the Human Rights Act and claims arising from alleged negligent care within a care home setting.

In this case, Keoghs represented a local authority – one of six defendants initially pursued by the claimant.


The claimant was a lifelong friend of Mrs Elsie Casey. Mrs Casey was a resident within a care home owned by Barchester Healthcare Homes Limited, and subject to a Deprivation of Liberty Safeguards (DoLS) authorisation. The claimant was Mrs Casey’s representative for the purposes of the DoLS authorisation.

The claimant sought to pursue a claim as an indirect victim within the meaning of the HRA 1998. A number of allegations were raised regarding the standard of care that Mrs Casey received within the home – a failure to adequately address personal hygiene, poor practice regarding nutrition and hygiene, and a failure to manage Mrs Casey’s risk of falls. In addition, it was contended that Mrs Casey was at risk of choking and this had not been appropriately assessed or managed.

The claimant sought damages pursuant to Articles 2 and 3 of the European Convention on Human Rights. All the defendants challenged both the status of the claimant as an indirect victim and the applicability of the articles raised in light of the alleged circumstances.

The matter was eventually listed for a summary judgment hearing before Master Davison. By this stage, the claimant had chosen to discontinue against our client (the local authority) and/or not serve on the other defendants, and only Barchester remained as a party to the proceedings.

Basis of the Article 2 claim

The claimant’s case on Article 2 was pleaded as a twofold obligation. It was asserted that the care home had a duty to implement and maintain appropriate administrative measures and systems of work to protect lives, and to take reasonable steps to protect a vulnerable resident’s life where it knew, or ought reasonably to have known, of a real and immediate risk to life.

Basis of the Article 3 claim

The claimant’s case on Article 3 was pleaded as a threefold obligation. It is said that in carrying out its functions the home was prohibited on the infliction of inhuman and degrading treatment (a “negative” obligation). Further, the home was under a duty (1) to maintain and implement appropriate administrative measures and systems of work at the home in order to protect its residents from treatment prohibited by Article 3 (a “systems” obligation), and (2) to take reasonable steps to protect vulnerable residents from treatment prohibited by Article 3 where it knew, or ought reasonably to have known, of a real and immediate risk of such treatment

The court’s summation of the basis of an Article 2 claim

Master Davison, referring to a range of earlier European case claims, made clear that “mere” clinical negligence does not engage Article 2. The acts and omissions of a healthcare provider must go beyond mere error or medical negligence.

Firstly, the act would involve the denial of emergency medical treatment to a patient despite being fully aware that the person’s life is at risk if that treatment is not given; secondly, the impugned dysfunction had to be objectively identifiable as systemic or structural in nature; thirdly, there had to be a link between the impugned dysfunction and the harm sustained; and finally, the dysfunction must have resulted from the failure of the state to meet its obligation to provide a regulatory framework in the broader sense.

The trigger for the duty to take reasonable steps to avert the danger is a “real and immediate risk to life” about which the authorities knew or ought to have known at the time.

The court’s summation of the basis of an Article 3 claim

In order to fall within Article 3, treatment must attain a minimum level of severity – it is an objective test based on the circumstances of the case. Master Davison emphasised that the Article 3 threshold is set at a high level. The assessment of the minimum level is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical and mental effects, and in some cases, the sex, age and state of health of the service user.

Actual bodily injury of sufficient severity or intense suffering is required for inhuman treatment. Neglect and inadequate home standards can meet the requisite threshold depending on the seriousness and severity – but this would ordinarily be clear and apparent (Z v United Kingdom [2002] 34 EHRR 3).

The test of “real and immediate risk” of the prohibited treatment applies to Article 3 in the same way as it does to Article 2; Master Davison commented that “real and immediate risk to life” is an extremely high threshold and that it has “rarely been shown”.

Outcome of Milner

The claimant’s case failed and summary judgment was awarded upon the application of the above principles.

Only one risk had been identified in the Particulars of Claim – a risk of “choking or aspirating”. This was never described as more than a “medium” risk and Master Davison’s view was that, self-evidently, this could not qualify as a real and immediate risk to the deceased’s life. Individuals in a care home comprise many of old age and in poor health – there may be a risk of choking but to characterise that risk as one such as to “call the state to account” is unrealistic. Further, the “real and immediate” risk test sits very uneasily with a risk which was present when the deceased was admitted to the home and which then persisted for 4½ years at the same or a similar level. The claimant had failed to identify any specific point in time when there was an immediate risk to the deceased’s life from choking, or, for that matter, anything else. It was no more or less distinguishable from other risks, such as a risk of falling, or ill health arising from the chronic or co-morbid conditions that affect individuals of a particular age.

Master Davison was of the view that it would be undesirable to extend the application of Article 2 (and if follows Article 3) in such a manner.


This case shows the limits of the HRA in claims of this nature. Where such claims are received there should be a full analysis of the circumstances, remembering the high threshold to be met for a successful claim.

Terry Zindi

Terry Zindi


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