COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
London, WC2A 2LL
B e f o r e :
Vice-President of the Civil Division of the Court of Appeal
LORD JUSTICE WALLER
LORD JUSTICE CLARKE
| THE QUEEN
On the Application of MOHAMMED FAROOQ KHAN
|- and –
|THE SECRETARY OF STATE FOR HEALTH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nigel Giffin QC (instructed by the Solicitor, Department of Health) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
|Part No||Para No|
|1 Introductory; The facts||1|
|2 The police investigations||10|
|3 Mr Balen's activities||15|
|4 The Trusts' investigations||26|
|5 The judicial review proceedings: the respondents' evidence||29|
|6 The importance of involving the deceased's family||40|
|7 The judgment in the court below and the issues on the appeal||45|
|8 Question 1: What is the content of the state's Article 2 obligations in the present case?||
|9 Question 2: Has the state's Article 2 obligations in this case already been performed?||
|10 Question 3: If the state has not yet fulfilled its Article 2 obligations, can the holding of the inquest satisfy those obligations if Mr Khan cannot play an effective part in it himself?||
|11 Question 4: If the answer to question 3 is "no", does the 1998 Act apply, so that Mr Khan may obtain relief in a national court?||
|12 Question 5: Whatever the answer to the first four questions, does the Secretary of State have power to make the necessary funding available?||
Lord Justice Brooke : This is the judgment of the court.
1. Introductory: The facts
2. The police investigations
"Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25th November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning".
3. Mr Balen's activities
"To expect our clients to pay for the Health Service's admitted actions leading to their daughter's death, to pay to discover what happened, and to pay for lessons to emerge from such a tragedy is, we are sure you will agree, entirely unacceptable. Since their daughter's death, no one from the hospital has been in touch with the family; no legal admission of liability was made until two days before the inquest and then not by the hospital or its lawyers; and no response made to a whole series of letters from ourselves on the family's behalf."
4. The Trust's investigations
5. The judicial review proceedings: the respondents' evidence
"As a general principle, my approach to providing information to bereaved families is that every effort will always be made to answer questions or concerns but I would not generally send information to a family uninvited, because that information may be distressing, disturbing, or otherwise not appreciated or welcome.
Given the knowledge I now have of the family's concerns I can see it might have been possible to communicate more effectively with them, although there were significant impediments. The family themselves did not trigger other opportunities for dialogue.
Quite apart from the outcome of the specific investigations into Naazish's dearth, lessons learned from the communication difficulties referred to above have been taken on board by the Trust.
The investigations looked at a wide range of issues, actions to improve the delivery of the service were recommended and have been taken or are being worked on. A key result is that if Naazish's death was due to the administration of too much potassium, the protocols now in place very significantly reduce that risk.
Further lessons can be learned from the regrettable breakdown in communications with the family, which occurred for a variety of reasons."
6. The importance of involving the deceased's family
"In my experience, [relatives'] involvement in these tragic cases is beneficial, not only to the relatives, but also to the health care workers concerned. Many relatives have important contributions to make to the improvement of health care through lessons learnt from tragedies. They want to know why the system failed their relative; what actually happened; who were responsible and what disciplinary or re-training steps were taken and what steps have been implemented to prevent such a tragedy happening again. Participation in such processes is of the utmost importance to the relatives. The benefit to the health of the relatives dealing with the reaction to the bereavement and the circumstances of the bereavement is considerable. When the opposite takes place and there is no communication and no involvement, damage to the health of the relatives is often in my experience substantial and that appears to be the position in this case.
I note Professor Johnstone's expectation of the main contribution given by a bereaved family in such circumstances. This however is only part of the picture in my experience. Bereaved families may have an enormous contribution to make, not only to an understanding of what went wrong, but how improvements can be implemented. Professionals working in this field – both legal and medical – widely recognise in my experience that families have a real contribution to make in such circumstances. But the importance of their contribution also works the other way. As I have indicated, it is of enormous importance for the family to be involved. It benefits them to understand the processes involved; that lessons have been learnt and that their loved one's life may not have been in vain. To remove participation generally in my experience leads to a breakdown in the trust between relatives and the medical services and frequently … a breakdown or deterioration in health."
(1) It restored public confidence because a full, fair and fearless investigation was being carried out into the events that had led to the death or deaths;
(2) Its object was to identify the lessons to be learned, and then to frame recommendations designed to give effect to those lessons, again for the purpose of restoring public confidence;
(3) It should be a means – and Professor Kennedy suggested that this might be as much a duty as a purpose of the inquiry – whereby those affected by the events in question could feel that their concerns had been aired, and that life could move on;
(4) It offered an opportunity on a public stage for:
(a) those in authority to be held to account; and
(b) the public venting of anger, distress and frustration.
7. The judgment in the court below and the issues on the appeal
(1) What is the content of the state's Article 2 obligation in the present case?
(2) Has that obligation already been performed?
(3) If the state has not yet performed that obligation, can the holding of the inquest satisfy that obligation if Mr Khan cannot play an effective part in it himself?
(4) If the answer to question 3 is "no", does the 1998 Act apply, so that Mr Khan can obtain relief in a national court?
(5) Whatever the answer to the first four questions does the Secretary of State have power to make the necessary funding available?
8. Question 1: What is the content of the state's Article 2 obligation in the present case?
"The issue before the Court in the present case is an entirely different one in terms of both the context and scope of the obligation.
Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction… The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.
In the Court's opinion, the events leading to the tragic death of the applicants' son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny – not least for the benefit of the applicant. (Emphasis added)
The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention….
The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. In its opinion, and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter". (Emphasis added)
"The Court recalls that the first sentence of Article 2 obliges the States not only to refrain from 'intentionally' causing death but also to take adequate measures to protect life. The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims… (Emphasis added)
In particular, the positive obligation a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients' lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims." (Emphasis added)
"48 The Court reiterates that the first sentence of Article 2 … enjoins the State not only to refrain from the 'intentional' taking of life, but also to safeguard the lives of those within its jurisdiction….
(49) These principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public ort the private sector, can be determined and those responsible made accountable.
(50) … [I]f the infringement of the right to life … is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged….
(55) [Because the applicants entered into a settlement agreement] The Court accordingly considers that the applicants denied themselves access to the best means – and one that in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor's responsibility for the death of their child."
"The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests." (Emphasis added)
109. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v Turkey [(1998) ECHR 21593/93], p 1733, para 82, where the father of the victim was not informed of the decisions not to prosecute; Ögur v Turkey [(1999) ECHR 21594/93], para 92, where the family of the victim had no access to the investigation and court documents; Gül v Turkey judgment [(2000) ECHR 22676/93], para 93). (Emphasis added).
(1) Where agents of a state bear potential responsibility for the loss of a human life, the state should provide a procedural mechanism whereby the cause of death may be investigated, and responsibility for the death ascertained, through an investigation held in public which must be both judicial and effective;
(2) The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests.
"32. Against this framework of obligations created by Article 2, it is useful … to make some general observations about the nature of the procedural duty to investigate. Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect the right to life, and to the prohibition of the taking of life. It follows that by its nature it cannot be a duty defined by reference to fixed rules. It only has life case by case; contingent upon what is required in any individual instance for the substantive right's protection. Across the spectrum of possible Article 2 violations, there are classes of case which can readily be distinguished. One class is that of allegations of deliberate killing - murder - by servants of the State. A second is that of allegations of killing by gross negligence – manslaughter – by servants of the State. A third is that of plain negligence by servants of the State, leading to a death or allowing it to happen. In the context of any of these classes, there exists the lamentable possibility that the State has concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate. The duty is in every instance fashioned to support and make good the substantive Article 2 rights. We shall see, as we go through the movements of the argument, that this approach sits with the Strasbourg jurisprudence, whose character has always been essentially pragmatic." (Emphasis added).
"How far may the nature and quality of any investigation embarked upon in satisfaction of the article 2 adjectival duty vary according to the circumstances of the case? Are requirements such as publicity and family participation, and other virtuous procedures constant?
"Accordingly, this part of the case cannot be satisfactorily resolved by a process of reasoning which sticks like glue to the Strasbourg texts. Just as, in our view, on question (2) [counsel for the Crown] originally adopted too rigid an approach to the Human Rights court's jurisprudence in submitting that the duty to investigate was only triggered in cases of the use of unlawful force by state agents, so also on question (3) [counsel for the claimants] makes the same error in submitting that there are fixed requirements of publicity and family participation, uniformly applicable to every investigation.
What is required will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the state has laid on lethal hands. The procedural obligation promotes these interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts case by case. In our judgment the Strasbourg authorities including Edwards's case are perfectly consistent with this. And it is an approach which embraces what we will say in the Middleton appeal about the coroner's jurisdiction and inquest verdicts of neglect."
(1) A case involving, as this one does, an allegation of gross negligence by a servant or servants of the state falls in the middle of the spectrum that extends from allegations of deliberate killing by a servant of the state to allegations of plain negligence by such servants that lead to a death or allow it to happen;
(2) The "lamentable possibility" that the state might have concealed its responsibility for the death, as is alleged in the present case, may arise at any point on this spectrum;
(3) The procedural obligation introduced by Article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public;
(4) What is required by way of an investigation cannot be reduced to a catechism of rules; a flexible approach is needed, responsive to the dictates of the facts, case by case.
9. Question 2: Has the state's Article 2 obligation in this case already been performed?
10. Question 3: If the state has not yet fulfilled its Article 2 obligations, can the holding of the inquest satisfy those obligations if Mr Khan cannot play an effective part in it himself?
11. Question 4: If the answer to question 3 is "no", does the 1998 Act apply, so that Mr Khan may obtain relief in a national court?
"It only has life case by case, contingent upon what is required in any individual instance for the substantive's right protection". (at para 32)
"The object and purpose of the convention as an instrument for the protection of individual human beings also requires that article 2 be interpreted and applied so as to make its safeguards practical and effective."
(i) The United Kingdom has not so far discharged its obligation under Article 2 of the Convention in the present case.
(ii) The holding of an inquest will not discharge that obligation if Mr Khan cannot play an effective part in it himself.
(iii) The 1998 Act applies, so that Mr Khan is entitled to relief in a national court.
We will therefore allow the appeal to this extent at least, and (subject to detailed argument as to their form) make declarations to that effect.
12. Question 5: Whatever the answer to the first four questions, does the Secretary of State have power to make the necessary funding available?
"Without prejudice to the Secretary of State's powers apart from this section, he has power –
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed upon him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty."
Section 1(1) of the Act prescribes the Secretary of State's duty to continue the promotion of a comprehensive health service in England and Wales, and other sections of the Act identify particular facets of that duty.
"… where Parliament has made detailed provision as to how certain statutory functions are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the statutory code."