Court dismisses claim against homelessness charity
Francis Hughes & Ors v Turning Point  CSOH 42
The family of a man who died whilst in the residential care of homelessness and addiction charity, Turning Point, have had their claim for damages for his death dismissed. Andrew Hughes, 34, had a history of alcoholism and homelessness when he attended Turning Point Scotland’s “Link Up” service centre in Glasgow. Mr Hughes was admitted after an initial assessment, but died shortly afterwards in one of the service’s residential units. The court dismissed the pursuers’ claim made under the Damages (Scotland) Act 2011 finding that there had been no breach of any duty of care by the defender.
The pursuers brought their claim under section 4(3)(b) of the Damages (Scotland) Act 2011 which allows for the family of a deceased person to claim damages where the negligence of the defender is shown to have caused or contributed to the death.
In order to prove a claim in negligence, it must first be established that the defender owed a duty of care to the deceased. The pursuers sought to establish that a duty of care was owed by the defenders to the deceased, and that when the deceased passed away in the care of the defenders, this duty was breached. Further, the pursuers argued that the defenders were obliged to ensure a “safe system for the admission and treatment” as part of their duty of care.
Prior to his admission to the Link Up service, the deceased was given an initial assessment upon arrival, which was conducted by Mr McCourtney, a project worker at the charity. Mr McCourtney also carried out a clinical institute withdrawal assessment (CIWA) on Mr Hughes. The CIWA showed that Mr Hughes was in need of alcohol detoxification treatment, which would require medication such as diazepam.
Mr Hughes was admitted to the centre’s crisis residential unit (CRU) at roughly 3:30pm, but despite repeated calls to the relevant voluntary medical officer (VMO) Dr Poole (a GP), Mr McCourtney was not able to obtain a prescription for the relevant detoxifying medication until 5:30pm, due to Dr Poole being unavailable.
Mr Hughes had indicated that he was tired and needed to sleep, and so had been allocated a bedroom in the CRU. From his admission at 3.30pm, he was checked upon every hour, and on each occasion He was seen to be facing a wall motionless on his bed. At 6:30pm, a final check found that Mr Hughes had passed away on the bed.
The pursuers argued that Mr McCourtney had individually breached his duty of care owed to the deceased, as he had access to the results of the CIWA test and failed to obtain the required medication in a timely fashion. Furthermore, the pursuers proffered that had Mr McCourtney or Link Up successfully referred the deceased to hospital, he would not have died.
The Court’s Decision
The court found that no duty of care had been breached by the defender or Mr McCourtney individually as they had not assumed responsibility for the deceased’s welfare. Lord Clark stated that to place this assumption of responsibility on the defender would be to hold them to the same standard as a hospital. Clark continued that the defender “simply did not have medical and nursing staff of various ranks and roles, and medication, to be taken as having held itself out to provide a safe and comfortable detox”. As such it would not be right to hold the defender to standards and expectations for which it was not resourced.
The responsibility, that the court found the defender to have taken on, was as a provider of a place for Mr Hughes to rest (the CRU) and to act as a facilitator in the obtaining of medication. The defender would also have been responsible for the administration of medication if prescribed. Upon admission to the care of the defenders Mr Hughes had signed a number of documents, which the court interpreted to be indicative of the deceased’s understanding and acceptance of the defender’s role and responsibility being limited to these activities.
Further, on the subject of causation, the court found that the likely cause of death had been cardiac arrhythmia. The court opined that even if the deceased had been successfully referred to hospital instead of being left in the care of the defender, it was likely he would still have died. As such the court also dismissed the pursuers’ arguments relating to causation.
This case demonstrates that bodies which are created with the aim of providing important public services, such as that of Turning Point, will not be unduly punished for outcomes beyond their control. Turning Point’s Link Up centres are charity-led initiatives manned largely by volunteers with the aim of providing assistance to people experiencing homelessness and associated crises. There are clear public policy reasons why a service such as this should not be burdened with the same level of responsibility as a fully resourced hospital. The finding of the court in this case demonstrates a judicial willingness to hold services such as Turning Point responsible only within the context of their stated aims