Scotland’s highest civil court has ruled that no duty of care was owed to an alcoholic homeless man who died in a rough sleeper centre.
The ruling – with significant implications for councils and charities providing homeless services – acknowledges such centres “aimed” to provide safe alcohol intervention, but this did not create a contract to “absolutely provide” a safe detox.
The Court of Session – the supreme civil court of Scotland – held that there is a significant difference between an aim and a promised outcome.
Reaching his ruling, the Judge referred to the contractual relationship between the deceased and the charity aiming to providing relevant services – such as safe alcohol intervention.
The ruling made it clear that the charity did not contract to absolutely provide a safe detox, and there was “quite a difference” between an aim and a promised outcome – with the deceased understanding he service he was accepting by the forms he had signed.
At the centre of the case was Turning Point Scotland, a Glasgow-based charity providing a rough sleeper service called Link Up – which also assists those experiencing crisis, including difficulties caused by alcohol addiction.
Evidence outlined how, in July 2013, 34-year-old Francis Hughes attended Link Up accompanied by his alcohol support worker with a view to using the service, which he had used on previous occasions.
The court heard how Hughes was admitted after a project worker carried out an initial assessment and a clinical institute withdrawal assessment (CIWA) for alcohol which showed that Hughes would require medication in order to withdraw safely from alcohol.
Calls were made to a volunteer GP, who was unavailable, with messages left.
The court heard how Hughes was checked twice in the space of an hour to be noted as being asleep before the GP called back saying a prescription for the appropriate medication had been faxed to a local chemist and the project worker went to collect it.
However, at around 6.30pm, Hughes was found motionless on the bed and soon afterwards was pronounced dead, with the cause of death certified as “suspected seizure related to alcohol withdrawal”.
Relatives of Hughes brought an action under the Damages (Scotland) Act 2011 on the grounds that Turning Point, and separately the project worker for whose actions Turning Point was vicariously liable, had “failed to exercise reasonable care”.
In court it was argued that Turning Point owed a “common law duty of care” to not assess or admit someone such as a person such as Hughes to its Link Up service.
Alternatively, it was argued there was a duty to provide a “safe system” for admission and treatment.
In addition, the project worker was alleged to have breached his duty to Hughes by failing to follow proper protocol during admission – with Turning Point having “assumed responsibility” for care.
Negligence was alleged due to the project worker not having access to medication, failing to obtain medication, not calling an ambulance, and failing to have regard to the CIWA score.
It was submitted that Turning Point was in breach of its duty of care, as it did not have a protocol advising staff members which people could be safely admitted to the service for withdrawal from alcohol, and failed to comply with its offer of a “safe and comfortable detox”.
It was also submitted that if Hughes C had been immediately admitted to hospital, on the balance of probabilities, he would not have died as he would have received appropriate medication to control his seizures.
At the Court of Session, Lord Clark ruled that Turning Point had not “assumed responsibility” for Hughes on the basis that it did not have control over him in the same manner as a hospital.
Turning Point, said Lord Clark, 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.
Nor, he said, was there any basis in the evidence for concluding that Hughes was either advised that Turning Point had such resources or could reasonably have understood or believed that they had them.
Lord Clark agreed that the project worker owed a duty of care, but the scope of that duty was delineated by the extent to which responsibility was assumed by Turning Point and the whole context in which each operated.
“Having regard to the limits upon the matters for which (Turning Point) assumed responsibility, I conclude that there was no breach of duty.
(Turning Point) carried out what it had undertaken to do and did so with reasonable care,” he said.
In reaching his ruling, Lord Clark effectively rejected the contention that the assumption of responsibility was to provide a “safe and comfortable” alcohol detox, saying that even if the broader duty of care cited by the claimant case was held to exist, it would not have been breached.
Nor, said Lord Clark, was there any breach of duty on the part of the project worker, with Turning Point and its staff “reacting reasonably in all the circumstances” and taking “reasonable care” in responding to Hughes’ presentation.”
Lord Clark held there were “too many unknowns” to properly establish that, on the balance of probabilities, Hughes would not have died had he been admitted to hospital, with the likely cause of death being cardiac arrhythmia rather than a withdrawal seizure.
Even if Hughes had been sent to hospital, the administration of diazepam would not have prevented death by that cause,” he said.