Failure to provide medication was a breach of human rights

In Birmingham Community Healthcare NHS Trust v Mr Dahir Ibrahim [2026] EWHC 2468 (KB), Mr Justice Soole heard an appeal by Birmingham Community Healthcare NHS Trust against a finding by a judge at Birmingham County Court that, in breach of the Trust’s obligations under the European Convention on Human Rights (the Convention), the Trust had failed to provide Mr Ibrahim with medication prescribed for him.

The Convention and the Human Rights Act

Article 8 of the Convention provides:

Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 of the Convention provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 14 of the Convention provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Section 6(1) of the Human Rights Act 1998 provides:

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The facts

Mr Ibrahim is a Muslim and (at least at the time of the hearing) a serving prisoner. Until 24 October 2019 he was held at HMP Birmingham. The Trust is responsible for providing primary health care at HMP Birmingham.

Medication at the prison is generally provided to prisoners either ‘in possession’, i.e. held by the prisoner in his cell and taken by him unsupervised, or ‘under supervision’. In the latter case, the prisoner has to present himself each day at a medication hatch where a nurse gives him a single dose of medication. Medication hatches only operate during fixed hours each morning and afternoon/evening. Save in an emergency, there is no general system in place to provide medication under supervision outside those hours. (Separate provision is made to provide medication to prisoners who are detained temporarily, prisoners in the medical wing and/or prisoners arriving at or returning to the prison late in the evening or at night.)

In 2019 the Islamic holy month of Ramadan began on the evening of 5 May 2019. Unless exempt, for example on medical grounds, Muslims are required to fast during the hours of daylight throughout the month of Ramadan. When fasting, a Muslim is not permitted to consume any food, drink or oral medication. There was no suggestion that Mr Ibrahim should have sought exemption on medical grounds from his fasting obligation.

During Ramadan 2019 the medication hatch operating hours fell during fasting hours. In advance of Ramadan the Trust had a system in place whereby Muslim prisoners would be provided with Ramadan medication packs which, although ordinarily provided under supervision, were provided to some prisoners in possession on a temporary basis. This permitted most Muslim prisoners who fasted to take prescribed medication outside fasting hours. However, some medication was deemed unsuitable to be provided in possession under any circumstances and thus was not included in the Ramadan medication packs. This included Codeine. This opiate based medication has sensitive and/or psychoactive effects which makes it highly sought after in prison and is accordingly not provided in possession at HMP Birmingham under any circumstances.

By May 2019, the Codeine was being prescribed to Mr Ibrahim primarily for knee pain. Before Ramadan the procedure required him to present twice daily (at about 8 a.m. and then about 5 p.m.) at the medication hatch on his wing to receive his daily dose.

On the first full day of fasting (6 May 2019), he presented himself at the medication hatch in the afternoon (4.55p.m.). He explained that he could not take his dose of Codeine at that time. The nurse told him that Codeine could not be provided in possession and that if he wished to take it he would have to do so there and then under her supervision. He did not do so and left. The same essential course of events took place on the following afternoon (7 May) and on the morning and afternoon of 8 May. On that day he made an appointment to see a prison GP on 16 May.

On 9 May a clinical pharmacist at the prison sent a note to a prison GP Dr Alam in which she asked him to consider whether there was a suitable alternative medication which could be prescribed and provided ‘in possession’ to Mr Ibrahim. Later that day Dr Alam prescribed Paracetamol in possession as a temporary alternative to Codeine. This was provided to Mr Ibrahim on 10 May and he thereafter took it as required.

At a pre-arranged appointment with Dr Alam on 16 May, Mr Ibrahim complained that as a result of being unable to take Codeine during Ramadan he had been suffering from withdrawal symptoms, including diarrhoea, cold flushes and high temperature. He was prescribed medication including Nefopam, a non-opiate based pain medication. Once Ramadan was over, he was again prescribed and took Codeine under supervision.

The Claimant’s case

Mr Ibrahim’s claim was that the Trust’s refusal to provide him with his prescribed dose of Codeine outside of fasting hours during Ramadan was an unlawful interference with or limitation on his right to manifest his religious beliefs under Article 9. Further, that the refusal constituted unlawful discrimination against him on the grounds of religion in violation of Article 14, when read with Articles 8 and 9.

Mr Ibrahim sought declarations of violation and an award of damages. As to the latter, he contended that the failure to provide him with his prescribed dose of Codeine outside fasting hours had resulted in him not taking Codeine and in consequence suffering from withdrawal symptoms.

The Trust’s case

The Trust contended that its failure to provide Codeine to Mr Ibrahim outside daylight hours did not engage Articles 8 or 9, alternatively did not constitute any violation thereof. As to Article 14, it did not discriminate against him on the grounds of religion, alternatively any such discrimination was objectively justified and did not amount to a violation. Further, the Trust did not accept that he had suffered from any withdrawal symptoms as a result of not taking Codeine during Ramadan, alternatively contended that any such symptoms were no more than transient and de minimis. Accordingly, there was no entitlement to any declaration or damages.

Whether objective justification

It was not in dispute that ensuring security and the non-proliferation of opiate-based and other controlled substances in the prison environment was a legitimate aim.

On behalf of Mr Ibrahim, it was submitted that the refusal or failure to provide Codeine under supervision and outside Ramadan fasting hours by another procedure (in particular, by the nurse going to the cell; or reopening the medication hatch for a short period; or arranging for him to be brought to the medication hatch there or at another location where healthcare staff were present could not be said to be in pursuit of that legitimate aim. In each case there was no risk to security nor of the proliferation of opiate based and other controlled substances. By contrast, insofar as the Trust in its evidence had cited a lack of resources to carry out such alternative procedures, that was not a legitimate aim: it was simply the excuse. Even if it was a legitimate aim, the means employed were not reasonably proportionate to that aim.

On behalf of the Trust it was submitted, first, that the policy was in pursuit of the legitimate aims of security and non-proliferation of opiate-based and other controlled drugs. The proposed alternative procedures raised legitimate concerns as to the safety of nurses. Leaving aside exceptional emergencies, it was legitimate and proportionate to not expose them to such risks for the purpose of the provision of routine pain medication to prisoners. The alternatives raised legitimate public order concerns.

The Trust further submitted that there were legitimate concerns as to the prioritising of limited resources. If healthcare and prison staff resources were diverted to provide routine pain medication to prisoners during the patrol state, this could affect the safety and security and also the prison environment more generally. Bearing in mind that Mr Ibrahim predictably did not suffer any withdrawal or other symptoms, the means employed (namely applying the policy without exception but at the same time mitigating its effects by providing wherever possible Ramadan medication packs and/or alternative medication) were reasonably proportionate to that aim. The difference in treatment was therefore objectively justified in all the circumstances.

The County Court judgment

The Judge concluded that Mr Ibrahim had not suffered the alleged or any withdrawal or other symptoms as a consequence of not taking Codeine during Ramadan 2019.

The Judge held that Mr Ibrahim was treated differently to other prisoners on the grounds of his religion and that the Trust’s policy of not providing medication under supervision outside operating hatch hours constituted indirect discrimination within the meaning of Article 14. In doing so he rejected the Trust’s arguments that there was no such discrimination.

The Judge held that the failure to open/reopen the medication hatch on Mr Ibrahim’s wing for a short period outside fasting hours once or twice each day or arranging for him to be brought once or twice each day outside fasting hours to the medication hatch or another location where healthcare staff were present was not in pursuit of the legitimate aim. The Trust had thus failed to establish that such alternatives would give rise to risks in respect of security, opiate proliferation, or the diversion of nursing staff from an emergency.

In the light of the evidence, the Judge concluded that the real reason that Mr Ibrahim was not provided with Codeine in Ramadan 2019, by one or both of the alternative procedures, was a perceived lack of resources and/or a need to prioritise limited resources.

The judge concluded that the Trust had failed to establish an actual lack of resources and/or that the provision of Codeine outside fasting hours by the alternative procedures would have caused any significant or disproportionate administrative, financial or technical burden.

The evidence showed that no one actually raised the issue with the Trust’s higher management nor the prison authorities. The matter had proceeded on the basis of an assumption by the relevant nurses and Dr Alam that resources would not permit the provision of Codeine by one or other of the alternative procedures, but ‘ …without anyone actually applying their mind to the issue in any proper or meaningful way ‘.

The Appeal

The Trust contended that the judge wrongly ignored or excluded from consideration the allocation of healthcare resources when determining what could constitute a legitimate aim of the relevant health policy of providing only emergency medical care to prisoners at night when the prison was in a lockdown state.

Mr Justice Soole noted that the judge had accepted that ensuring security and preventing the proliferation of opiate-based and other controlled drugs was in each case a legitimate aim of the Trust.

He was satisfied that the County Court judge did not ignore or exclude from consideration the allocation of healthcare resources as a potential legitimate aim.

The failure to consider alternative options, as with the failure to raise the issue with the prison authorities or higher management, was all part of an overall failure by anyone at the Trust to apply their mind to it. Failure to consider an option (or to consider the issue at all) provided further support for the County Court judge’s conclusion that neither security nor resources was in fact the aim of the Trust when failing to make such alternative arrangements.

Mr Justice Soole said that he did not accept that his decision opened up floodgates to other claims of the same kind.

Comments

• Despite what Mr Justice Soole said about the opening of floodgates, similar cases are believed to be pending.
• The finding by the County Court judge that Mr Ibrahim did not suffer withdrawal symptoms, as alleged, meant that there was no award of damages. Perhaps a risk of a similar finding in other cases will discourage other claimants.
• The problem was effectively resolved on the fifth day of Ramadan, following action taken by a clinical pharmacist. This begs the question of whether any pharmacy professional at the prison should action have taken sooner and, if so, what.
• It is unclear what the position would be in a case like Mr Ibrahim’s if the UK withdraws from the European Convention of Human Rights.