COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Hon Mr Justice Elias
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE MOORE-BICK
| THE QUEEN
(on the application of HELEN TAKOUSHIS)
|- and -
|HER MAJESTY'S CORONER FOR INNER NORTH LONDON
GUYS AND ST THOMAS' HOSPITAL NHS TRUST
THE COMMISSIONER OF THE METROPOLITAN POLICE
Mr Clive Lewis (instructed by Camden Legal Services) for the First Respondent
Mr Iain Daniels (instructed by Guys and St Thomas' Hospital Trust) for the Second Respondent
Mr Gerard Boyle (instructed by the Director of Legal Services) for the Third Respondent
Hearing dates: 17 and 18 October 2005
Crown Copyright ©
Sir Anthony Clarke, MR:
"Brought in by LAS. Summoned by Police. Patient seen standing on Tower Bridge intending to jump. Police involved with negotiation for 45 mins. O/A patient very calm, complained of slight frontal headache. Says he went to bridge to do "silly thing". Says has been having problem with his wife, who is accusing him of having affairs. Good eye contact. Limited English."
"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect -
(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public,
he shall proceed to summon a jury in the manner required by subsection (2) above.
(4) If it appears to the coroner, [before he proceeds to hold an inquest … ] or in the course of an inquest without a jury, that there is any reason for summoning a jury, he may proceed to summon a jury in the manner required by subsection (2) above."
"[The internal report] concedes that the initial triage category did not match subsequent action. I am not satisfied that this amounts to "systemic neglect"."
That was the first of a number of occasions in which the coroner expressed the view that he was not persuaded that there was any defect in the system operated by the hospital.
"But in documentation that has been disclosed it will be accepted that there was a delay between the initial assessment and then the intended subsequent assessment by a psychiatric liaison nurse and junior A&E doctor, during which time the deceased absconded. On the evidence available before the inquest, I am and remain satisfied that the State's obligation in relation to Mr Takoushis at the A&E Department at St Thomas' Hospital had been discharged by virtue of the fact that there were triage and assessment procedures. As a matter of fact I will be determining what happened when he absconded initially from the Chase Farm Hospital on the 13th January 2003, and I will be establishing as of fact timings in relation to his assessment and absconding from the A & E Department at the St Thomas' Hospital. The fact that there was a delay has not, in my opinion, meant that there were systemic failings. Factually, I find that there was a narrow issue that will be explored in relation to the timings of the initial assessment and the timing of him absconding. This may or may not be an error, but it does not necessarily imply a systemic failing. I'm therefore satisfied that the circumstances do not require me to proceed with a jury, but nevertheless, having summoned a lot of witnesses to come to give direct oral evidence today, if it is decided elsewhere that Article 2 is engaged then this inquest, even though I'm proceeding without a jury will discharge the State obligation into investigating the full circumstances of Mr Takoushis's death. If, after hearing the evidence, I am satisfied that I should make a Rule 43 recommendation or report, then I will do so, but that possibility is ancillary to the inquest the scope of which is to determine who Mr Takoushis was, how, when and where Mr Takoushis died and the registration particulars. I'm not here to deal with any issue of criminal liability by a named person, or civil liability."
"It's my view that the circumstances boil down to a delay, a delay between the assessment or the initial assessment and then a formal assessment by a psychiatric liaison nurse and a junior doctor and then what would have followed from that. That kind of error, if it is an error, is something which can occur as an individual or a specific episode. I don't regard them as circumstances broad or general circumstances, systemic circumstances that are likely to continue or recur and that's why I don't feel that this is a case where I am persuaded under Section 8(3)(d) to proceed with a jury."
Ms Brander then reminded the coroner that it was noted in the hospital's internal inquiry that what had happened was something that happened on a regular basis and the coroner said this:
"I note that and that kind of comment is obviously a hostage to fortune. I can say that I am aware from previous experience that there is a difficulty about how to deal with a voluntary patient who attends then absconds before being assessed, not only in the psychiatric setting, but in a general medical or general surgical setting."
"Well subject to hearing direct oral evidence on the issue. Although it is accepted that the difference between the triage category and subsequent action maybe the cause of some comment. In retrospect it may have prevented Mr Takoushis absconding, but in terms of any lack of attention and whether or not such a lack of attention was gross and directly causative. The grossness has got to be judged in terms of when such act or omission occurred and not simply judged retrospectively, I'm satisfied that in terms of systems, there were systems there designed to prevent or designed to promote the rapid assessment of a patient and to assess and determine, not only medical, or surgical, but psychiatric risks and therefore I'm not satisfied that there is a systemic failing by the Trust per se, but it appears that there was an operational failing at that particular time."
"From this Court's experience of the practice, protocols and procedure of A&E Departments in acute NHS Trusts within this jurisdiction… I was satisfied that action has been taken by NHS bodies generally to recognise the risk of psychiatric patients in an A&E setting… I was therefore satisfied that St Thomas' Hospital had already taken action and that there was a reasonable system for voluntary psychiatric patients who appear to be at risk of self-harm but on their symptoms and denial of intent not at immediate risk of self harm. Despite these symptoms these patients do abscond and despite reasonable systems to assess them and treat them and prevent them from absconding. Unfortunately absconding in those circumstances is the nature of their disease and in the circumstances there was no reason to suspect that the circumstances were prejudicial to public health."
As to the second, he said this in a passage also quoted by the judge:
"It was not the intention of Parliament or the Department of Health to render clinical improvements to patient care as a cause to subject previous reasonable systems to scrutiny in the courts. Deaths occur sadly even where there are reasonable systems."
"I'm satisfied that when he was assessed by the staff at the A&E department at St Thomas' he was given a category 2 stage triage on the basis of his previous contemplation of suicide and risk. I'm satisfied that he remained cooperative calm and not distress[ed] and therefore wasn't at immediate risk of absconding and committing suicide. I'm satisfied that on the evidence it was reasonable to expect him to remain for at least 10 minutes to be assessed by the psychiatric nurse and therefore for the psychiatric liaison nurse and the staff at St Thomas' to hopefully identify and trace him back to Chase Farm and arrange for his transfer back there. Unfortunately the ideal time was not followed."
The coroner said that Mr Takoushis was seen by Mrs Matthews at St Katherine's Dock 55 minutes after he left the hospital and held that it was in that 55 minutes that he had changed from contemplating suicide to making deliberate plans to do so and that he committed suicide. He added that there was insufficient evidence for him to be able to say that he did so while the balance of his mind was disturbed.
Before the judge
"There is therefore no evidence within this jurisdiction to support the assertion made by Marjorie Wallace, the Chief Executive of SANE… I am not aware of any evidence which would support the assertion that mentally ill individuals are regularly absconding from A&E Departments and committing suicide shortly thereafter."
The claimant had relied upon the fact that the St Thomas' internal inquiry into Mr Takoushis' death recorded that patients attending A&E following an attempted suicide abscond regularly and upon evidence from SANE that a proportion of such patients go on to take their own lives.
"I can understand the argument that expert evidence should be made available if the system itself is under consideration. There may then be a debate as to what a reasonable system requires and how the system may be improved. In addition there may be evidence, for example, about what is done in other hospitals or even other countries. But once the focus is on the specific error, namely the failure properly to implement the system which meant that Mr Takoushis did not see the doctor in ten minutes, then it is difficult to identify any significant role for an expert of the kind which the claimant wished to call."
"51. … He made a decision as to the witnesses to be called which was, in my judgment, well within his discretion, particularly given his preliminary view on the question of systemic failure. The claimant relied upon some observations in Amin to the effect that it is important that culpable and discreditable conduct should come to light and dangerous procedures rectified (per Lord Bingham at para 31). But the Coroner clearly was of the opinion, which I consider that he was entirely justified in forming, that there was no question of such culpable conduct here. …
52 … His decision not to call for more evidence on this issue was in my judgment fully justified, particularly given his view that there was no basis for saying that there had been a defective system in play."
"28. Remarkably, as it now seems, the Court of Appeal made no reference to the European Convention in Ex p Jamieson, and the report does not suggest that counsel referred to it either. Counsel for Mrs Middleton criticised the reasoning of that decision, but it appears to the committee to have been an orthodox analysis of the Act and the Rules and an accurate, if uncritical, compilation of judicial authority as it then stood. Thus emphasis was laid on the function of an inquest as a fact-finding inquiry (page 23, conclusion (1)). Following R v Walthamstow Coroner, Ex p Rubenstein (19 February 1982, unreported), R v HM Coroner for Birmingham, Ex p Secretary of State for the Home Department (1990) 155 JP 107 and R v HM Coroner for Western District of East Sussex, Ex p Homberg (1994) 158 JP 357, the Court of Appeal interpreted "how" in section 11(5)(b)(ii) of the Act and rule 36(1)(b) of the Rules narrowly as meaning "by what means" and not "in what broad circumstances" (page 24, conclusion (2)). It was not the function of a coroner or an inquest jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame (page 24, conclusion (3)). Attention was drawn to the potential unfairness if questions of criminal or civil liability were to be determined in proceedings lacking important procedural protections (page 24, conclusion (4)). A verdict could properly incorporate a brief, neutral, factual statement, but should express no judgment or opinion, and it was not for the jury to prepare detailed factual statements (page 24, conclusion (6)). It was acceptable for a jury to find, on appropriate facts, that self-neglect aggravated or contributed to the primary cause of death, but use of the expression "lack of care" was discouraged and a traditional definition of "neglect" was adopted (pages 24-25, conclusions (7), (8) and (9)). Where it was found that the deceased had taken his own life, that was the appropriate verdict, and only in the most extreme circumstances (going well beyond ordinary negligence) could neglect be properly found to have contributed to that cause of death (pages 25-26, conclusion (11)). Reference to neglect or self-neglect should not be made in a verdict unless there was a clear and direct causal connection between the conduct so described and the cause of death (page 26, conclusion (12)). It was for the coroner alone to make reports with a view to preventing the recurrence of a fatality (page 26, conclusion (13)). Emphasis was laid on the duty of the coroner to conduct a full, fair and fearless investigation, and on his authority as a judicial officer (page 26, conclusion (14))."
"(5) An inquisition –
(b) shall set out, so far as such particulars have been proved –
(i) who the deceased was; and
(ii) how, when and where the deceased came by his death; …"
Rule 36(1) of the Coroners Rules 1984 is to much the same effect. Section 11(5) is to be contrasted with section 8(3)(d) which is quoted above.
"It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused when deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry."
"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect -
(d) that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public,
he shall proceed to summon a jury in the manner required by subsection (2) above."
"when the circumstances are such that similar fatalities may possibly recur in the future, and it is reasonable to expect that some action should be taken to prevent their recurrence."
Bridge LJ said at page 227:
"The key to the nature of that limitation is to be found, I think, in the paragraph's concern with the continuance or possible recurrence of the circumstances in question."
See also, to the like effect per Cairns LJ at page 228.
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law."
"2. The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. See, for example, LCB v United Kingdom (1998) 27 EHRR 212, para 36; Osman v United Kingdom (1998) 29 EHRR 245; Powell v United Kingdom (App No 45305/99, unreported 4 May 2000), 16-17; Keenan v United Kingdom (2001) 33 EHRR 913, paras 88-90; Edwards v United Kingdom (2002) 35 EHRR 487, para 54; Calvelli and Ciglio v Italy (App No 32967/96, unreported, 17 January 2002); Öneryildiz v Turkey (App No 48939/99, unreported, 18 June 2002).
3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated. See, for example, Taylor v United Kingdom (1994) 79-A DR 127, 137; McCann v United Kingdom (1995) 21 EHRR 97, para 161; Powell v United Kingdom, supra p 17; Salman v Turkey (2000) 34 EHRR 425, para 104; Sieminska v Poland (App No 37602/97, unreported, 29 March 2001); Jordan v United Kingdom (2001) 37 EHRR 52, para 105; Edwards v United Kingdom, supra, para 69; Öneryildiz v Turkey, supra, paras 90-91; Mastromatteo v Italy (App No 37703/97, unreported, 24 October 2002)."
"3) As it was put in Salman v Turkey (2000) 34 EHRR 425, paragraph 99,
"Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused [footnote omitted]. The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies."
Where the facts are largely or wholly within the knowledge of the state authorities there is an onus on the state to provide a satisfactory and convincing explanation of how the death or injury occurred: Salman, paragraph 100; Jordan v United Kingdom (2001) 37 EHRR 52, paragraph 103.
(4) The obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state: Salman, paragraph 105.
(5) The essential purpose of the investigation was defined by the Court in Jordan, paragraph 105:
"… to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures …..."
(6) The investigation must be effective in the sense that (Jordan, paragraph 107)
"it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances . . . and to the identification and punishment of those responsible . . . This is not an obligation of result, but of means.
(7) For an investigation into alleged unlawful killing by state agents to be effective, it may generally be regarded as necessary (Jordan, paragraph 106)
"for the persons responsible for and carrying out the investigation to be independent from those implicated in the events . . . This means not only a lack of hierarchical or institutional connection but also a practical independence . . . ".
(8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under article 2 (Jordan, paragraph 121), there must (Jordan, paragraph 109)
"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."
(9) "In all cases", as the Court stipulated in Jordan, paragraph 109:
"the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".
(10) The Court has not required that any particular procedure be adopted to examine the circumstances of a killing by state agents, nor is it necessary that there be a single unified procedure: Jordan, paragraph 143. But it is "indispensable" (Jordan, paragraph 144) that there be proper procedures for ensuring the accountability of agents of the state so as to maintain public confidence and allay the legitimate concerns that arise from the use of lethal force."
"There was in that case a long and thorough inquiry conducted by independent Queen's Counsel. But the case is important because, although addressing a case in which there had been no killing or alleged killing by state agents and the responsibility of the state (if any) could only rest on its negligent failure to protect the life of Christopher Edwards, a prisoner in its custody, the European Court applied essentially the same principles as in the cases already considered. In my respectful opinion, the Court was fully justified in doing so, for while any deliberate killing by state agents is bound to arouse very grave disquiet, such an event is likely to be rare and the state's main task is to establish the facts and prosecute the culprits; a systemic failure to protect the lives of persons detained may well call for even more anxious consideration and raise even more intractable problems."
"Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paras 106-109".
"The Court of Appeal plainly thought that in the case of acts by state agents causing death in custody there is a more exacting and rigorous duty to investigate than in cases of negligent omissions leading to death in custody. That cases in the former category may be a greater affront to the public conscience than cases in the latter category can readily be accepted. But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases. And in the decision in Edwards the European Court of Human Rights applied the same minimum standards to a case of omissions as it had previously applied in Jordan v United Kingdom (2001) 37 EHRR 52 to acts by state agents. The distinction drawn by the Court of Appeal infected its analysis of the Strasbourg decisions. Relying on this distinction the Court of Appeal in effect departed from the requirements as explained in Edwards. Given the crucial public importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence. I prefer the decisions of Jackson J R (Wright) v Secretary of State for the Home Department  UKHRR 1399 and Hooper J in the instant case to the judgment of the Court of Appeal."
The House of Lords said much the same in Middleton: see paragraph 19 of the opinion of the appellate committee, delivered by Lord Bingham.
i) there is a positive obligation on the state to ensure that there is adequate provision for securing high professional standards and the protection of patients;
ii) errors of judgment or negligence on the part of a health professional or negligent co-ordination amongst health professionals do not constitute a breach of any positive obligation on the part of the state under article 2;
iii) in relation to potential medical negligence, there is a procedural obligation to have in place a system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on their part;
iv) where, the issue is alleged medical negligence, the availability of a civil remedy (in a claim initiated by the next of kin or the deceased's estate) is sufficient to satisfy the state's obligations under article 2;
v) in ordinary cases of medical negligence, there is no additional requirement for an effective, official inquiry, initiated by the state, although the position may be different if there is an allegation of gross negligence amounting to a criminal offence.
"On that formulation the substantive or positive obligations are (1) not to take life without justification and (2) to establish a framework of laws etc. which will, to the greatest extent reasonably practicable, protect life; and the separate, procedural obligation to investigate arises where it appears that one of those positive obligations has been or may have been violated and that agents of the state are or may be implicated. Thus the existence of the procedural obligation is linked with a breach or possible breach of one of the positive obligations. If taken at face value, that appears to limit very substantially the circumstances in which the investigative obligation will arise. In the case of deaths in hospital, a breach or possible breach of one of the positive obligations is likely to exist in only a small minority of cases."
"The Court observes that the applicants do not in any manner allege or imply that their son was intentionally killed by the doctors responsible for his care and treatment at the material time. They aver, on the other hand, that the responsible doctors knew or can be considered in the circumstances to have known that their son's life was at immediate risk but failed dismally to take the necessary measures to treat him. In the Court's opinion, the reasoning employed by the applicants in support of their argument that the doctors' inadequate response to their son's condition at the time amounted to a breach of the State's duty to protect the right to life cannot be sustained ….
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 applicants.
The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention. It recalls that the obligation to protect life under Article 2, read in conjunction with the State's general duty under Article 1 to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State ….
The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as 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 care professionals and any liability on the part of the latter.
The Court stresses that its examination of the applicants' complaint must necessarily be limited to the events leading to the death of their son, to the exclusion of their allegations that, following his death, the doctors responsible for his care and treatment fabricated his medical records to exonerate them of any blame …"
"Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court's opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctors' responsibility for their son's death ….
Having regard to the above considerations the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son's death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death."
"… 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 ….
In particular, the positive obligations 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 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 …."
"49. Those 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 their 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 or private sector, can be determined and those responsible made accountable (see, among authorities, Erikson v. Italy … and Powell v. United Kingdom …).
50. The Court therefore considers that Article 2 is applicable. It must now determine what judicial response was required in the specific circumstances of the present case.
51. … However, if the infringement of the right to life or to personal integrity 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.
54. In the instant case, the Court notes that the criminal proceedings instituted against the doctor concerned became time-barred …. However, the applicants were also entitled to issue proceedings in the civil courts and that is what they did …. It is true that no finding of liability was ever made against the doctor by a civil court. However, the case file shows that in the civil proceedings … the applicants entered into a settlement agreement with the doctor's and the clinic's insurers and voluntarily waived their right to pursue those proceedings ….
55. 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. In that connection, the Court reiterates, mutatis mutandis, that 'where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim' (see Powell …)."
"59. I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows:
(i) Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life. This is stated clearly in Powell.
(ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.
(iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases the availability of a civil action in negligence and/or the applicant's settlement of such an action is central to the court's conclusion that there has been a sufficient investigation of the death: i.e. it is the existence of an effective judicial system that seems to be decisive. Secondly, Calvelli is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.
"8. The Court has recognised (in McCann v United Kingdom, para 146) that its approach to the interpretation of article 2
"must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective."
Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established."
"88. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), requires the State not only to refrain from the "intentional" taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, for example, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36).
89. Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, 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 or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio, cited above, § 49).
90. Although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004- ), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to physical integrity 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" (see Calvelli and Ciglio, cited above, § 51; Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII).
91. In the instant case, in addition to the criminal proceedings which the applicant instituted against the doctor for unintentionally causing her injury – which, admittedly, were terminated because the offence was covered by an amnesty, a fact that did not give rise to any complaint on her part – she had the possibility of bringing an action for damages against the authorities on account of the doctor's alleged negligence (see Kress v. France [GC], no. 39594/98, §§ 14 et seq., ECHR 2001-VI). Had she done so, the applicant would have been entitled to have an adversarial hearing on her allegations of negligence (see Powell, cited above) and to obtain redress for any damage sustained. A claim for compensation in the administrative courts would have had fair prospects of success and the applicant could have obtained damages from the hospital. That is apparent from the findings clearly set out in the expert reports (see paragraph 16 above) in 1992 – before the action had become statute-barred – concerning the poor organisation of the hospital department in question and the serious negligence on the doctor's part, which nonetheless, in the Court of Appeal's opinion (see paragraph 21 above), did not reflect a total disregard for the most fundamental principles and duties of his profession such as to render him personally liable."
"(iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.
(v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state's positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state's positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.
(vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state's positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in oral argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state's positive obligations under article 2."