QUEEN'S BENCH DIVISION
ADMINISTRATIVE (DIVISIONAL) COURTS
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOOPER
| The Queen on the application of Brenda Rowley|
|- and -|
Hugo Keith (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 18th and 19th March 2003
Crown Copyright ©
Lord Justice Kennedy :
"He has progressive muscular contractions, which limit the extension of his limbs. His epileptic seizures are both violent and gruelling, but rare. His hearing is impaired and he wears hearing aids in both ears, even with the hearing aids only loud sounds in close proximity to Malcolm are audible to him.
Malcolm is an affectionate and demonstrative young man, well versed in showing his changing moods. Malcolm enjoys attention from staff, members of either sex. Although he cannot speak, he is nonetheless able to interpret the moods of others by taking in facial expressions used by the person dealing with him. He sheds tears when severely distressed, although this is uncommon. He whoops and squeals when happy or excited or startled."
Malcolm was receiving regular physiotherapy, and the care plan went on to spell out his needs. Under the heading "Bathing" paragraph 2.2 states
"Malcolm needs to be bathed by staff using a hoist, this takes place every morning. He enjoys being in the bath as he likes water and tends to splash a lot. However, he dislikes being shaved and will attempt to distract the shaver "
In an undated manuscript note of "Malcolm's needs" which may have come into existence at about the same time it is stated in paragraph 11 that
"Malcolm enjoys a soak in the bath. He needs constant supervision"
In December 1997 there was a House Meeting, attended by Brian Grant, the Dispersed Housing Manager for the Council, and Mrs Mather, at which concern was expressed about an increase in Malcolm's seizures, and on 6th May 1998 his general practitioner referred him to the Department of Neurology at the local hospital because his carers had "been having difficulty controlling his fits and his sleepiness on his increased dose of Epilim." The records show that he attended at hospital on 24th June 1998, there was no change of medication, and a further appointment was made for June 1999.
Saturday 18th July, 1998.
"Normal bubble baths will froth excessively with whirlpools and must not be used."
"Whether or not senior management at the home were aware of the practice adopted in relation to Malcolm Rowley. Were they aware that his bath times were not being supervised? Was any guidance given to members of staff about the level of supervision? Were there any standing orders that people should not be left unattended in the bath?"
The two women were interviewed under caution on 14th July 1999, and on 19th July, 1999 Detective Sergeant Stead responded in writing to the points raised by Mr Lord. Part of his response reads
"I have re-interviewed the senior manager of the home (Eva Murphy) to confirm issues that were addressed after the death of Malcolm Rowley. She confirms that senior management of the City of Salford Social Services were not aware of the practices adopted by the staff of the home, in relation to the bathing procedures of Malcolm Rowley and the other two residents. It is also confirmed that there was no guidance or training given to any members of staff in relation to the level of supervision during bathing procedures or intobathing procedures, and there was not present any written, or verbal, standing orders, or procedures, in relation to these bathing procedures including that of leaving of any of the residents unattended in the bath. As can be seen, the possibility of someone drowning in the Social Services Home in this type of incident, had never even been considered."
At about the same time an anonymous letter was written to a local newspaper which it passed to Mrs Rowley. It purported to come from some one who had cared for Malcolm, apparently in previous accommodation, and asserted that he should not have been left alone.
The Inquest and thereafter.
"Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case But it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction."
"The ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."
A little later on the same page Lord Mackay said
"I consider it perfectly appropriate that the word 'reckless' should be used in cases of involuntary manslaughter, but as Lord Atkin put it 'in the ordinary connotation of that word'. Examples in which this was done, to my mind, with complete accuracy are R v Stone  QB 354 and R v West London Coroner ex parte Gray  QB 467."
"The Court of Appeal held that except in cases of motor manslaughter the ingredients which had to be proved to establish an offence of involuntary manslaughter by breach of duty were the existence of the duty, a breach of the duty which had caused death and gross negligence which the jury considered to justify a criminal conviction; the jury might properly find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled either with a determination nevertheless to run it or with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction or of inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded he should address; and that, in the circumstances, the appeals of the two junior doctors and the electrician would be allowed and the appeal of the anaesthetist, namely Dr. Adomako, would be dismissed."
"(1) Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant's state of mind?
(2) Can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime?"
"Although there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective but a defendant who is reckless as defined in R v Stone may be the more readily found to be grossly negligent to a criminal degree."
In the case of Stone Geoffrey Lane LJ had said at 363 that where a defendant had undertaken a duty of care for the health and safety of an infirm person the prosecution had to prove
"A reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it."
"The law is, therefore, quite clear. If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of any recklessness if on an objective basis the defendant demonstrated what, for instance, Lord Mackay quoted the Court of Appeal in Adomako as describing as:
'failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant's duty demanded that he should address.
That is a test in objective terms."
"Malcolm Savage, aged 16, suffered from leukaemia. He came regularly for treatment with cytotoxic drugs at the Peterborough General Hospital. Once a month he was injected intravenously ("I.V.") with vincristine and every other month intrathecally ("I.T.") with methotrexate, that is into his spine. Malcolm Savage was due for both his injections on 28 February 1990. On the previous day the consultant in charge, Doctor Fairham, filled out the necessary prescription forms and the patient's drugs' chart. He sent them to the pharmacy department to be prepared for injection. Doctor Fairham had no doctors working directly under him. If he needed junior doctors, he used those working for a fellow consultant, Doctor Dronfield. The latter worked in general medicine and gastroenterology. Under him were his registrar, Doctor Chuah, his houseman, Doctor Sullman, and a pre-registration houseman, Doctor Prentice.
The drugs were duly prepared by the pharmacy and taken to the ward which Malcolm Savage was due to attend. They were put in a red box bearing labels indicating that they were cytotoxic drugs. Also on the outside of the box were two labels bearing the patient's name, the name of the drug and the route by which it was to be injected, that is bearing either the letters "I.T." (intrathecal) or "I.V." (intravenous). Inside the box were the two syringes containing the drugs. They too bore labels with the same information upon each of them as the labels on the outside of the box. The drugs chart showing Doctor Fairham's prescription usually was put with the patient's medical notes which went on the trolley with the drugs. It is not clear if that happened in this case. Sometime on 27 February 1990 Doctor Prentice was informed by Doctor Fairham's secretary that Malcolm Savage was coming in for his lumbar puncture on the next day. Doctor Prentice was not told then that he would be giving the lumbar puncture.
On 28 February 1990 the box of cytotoxic drugs was put out on a trolley in the ward. Normally cytotoxic drugs are put on a special cytotoxic trolley which also contains the manufacturers' data sheet. But on this occasion the lumbar-puncture trolley was used because it was larger and could hold all the necessary equipment. Unfortunately, the data sheet was not transferred from the cytotoxic to the lumbar-puncture trolley. The medical notes were on the trolley, but whether the drugs chart was there is not clear.
About 9.30 a.m. Malcolm Savage and his mother arrived at the ward. Doctor Prentice told them that he did not know if he would be dealing with the matter as he was inexperienced. He then saw the registrar, Doctor Chuah, and told him that Malcom Savage had come in for his cytotoxic and added that he was reluctant to do it because of inexperience. Doctor Chuah asked him to get Doctor Sullman to supervise him, but added that if Doctor Sullman had not done a lumbar puncture previously he would supervise the treatment himself. Doctor Sullman had only once previously attempted to do a lumbar puncture and that attempt had failed. He had some limited previous experience of cytotoxic drugs and on one occasion previously had injected vincristine intravenously.
A ward sister saw Doctor Prentice with Doctor Sullman. Doctor Prentice made known to her his concern about doing the lumbar puncture. Doctor Sullman agreed to supervise. The sister considered that Doctor Sullman was going to supervise Doctor Prentice doing a lumbar puncture. But here it appears that an important and regrettable misunderstanding took place. Doctor Prentice thought Doctor Sullman was supervising the whole procedure, including the administration of the cytotoxic drugs. Whereas Doctor Sullman thought he was there only to supervise the use of the needle to make a lumbar puncture but had no responsibility over the administration of the cytotoxic drugs. A responsible nurse set up the trolley ready for the lumbar puncture and took that and the red box with the drugs to the side ward where the patient and the two doctors were. As it happened there were two student nurses on the ward who wished to watch the lumbar puncture. Seeing that there were two doctors and two student nurses present, the nurse left. In view of the misunderstanding between Doctor Prentice and Doctor Sullman, this was unfortunate. The two student nurses had no experience of cytotoxic drugs and, as students, were not allowed even to touch them.
Before the lumbar puncture a local anaesthetic was administered by Doctor Prentice. One of the student nurses handed him the local anaesthetic, reading aloud its name in accordance with her training as she did so. After that had been done, Doctor Prentice inserted the lumbar puncture needle into the spine successfully. A little spinal fluid leaked out. This sometimes happens, but it appeared to trouble Doctor Prentice. He then asked for a pair of goggles, which was the normal procedure when dealing with cytotoxic drugs. After putting them on, he asked for the drugs themselves. Both student nurses refused to touch them because they were not allowed to. Doctor Sullman opened the red box, took out the first syringe and handed it to Doctor Prentice, warning him that it was now unsterile. Doctor Sullman was not scrubbed up, nor was he wearing gloves, so he was unsterile. It is not clear how Doctor Prentice understood this comment by Doctor Sullman. Doctor Prentice then fitted the syringe on the needle and injected it into the patient's spine. He then unscrewed that syringe and took the second syringe from Doctor Sullman and also injected that into the spine. Neither doctor checked the labels on the box or the labels on the syringes before these two injections. So it was that the vincristine was injected wrongly into the spine with fatal results.
A little later, after the patient had been cleaned up and the trolley removed to the preparation room, Doctor Fairham arrived. He quickly discovered that a terrible mistake had been made. Doctor Prentice went to the preparation room and looked at the data chart on the cytotoxic trolley. He was extremely upset and said: "Oh my God. It can be fatal." From this it can be inferred that he had never previously read the data sheet and had never been informed by anyone that an injection of vincristine into the spine could be fatal."
"The prosecution case against Doctor Sullman was put in two ways. First, that he had a duty to supervise the whole operation and ensure that the right drugs were inserted in the right place, by checking the labels and making sure that Doctor Prentice injected the drugs correctly. Secondly, they said that even if he did not have a duty to supervise the whole operation, he had a duty to intervene when he saw Doctor Prentice was preparing to inject the patient without having checked the labels himself. It was said that on one or other of these grounds his conduct was reckless.
In effect, therefore, once the jury found "that the defendant gave no thought to the possibility of there being any such risk," on the judge's directions they had no option but to convict. Mr. Arlidge's point is that if the jury had been given the gross negligence test, they could properly have taken into account "excuses" or mitigating circumstances in deciding whether the necessary high degree of gross negligence had been established. The question for the jury should have been whether, in the case of each doctor, they were sure that the failure to ascertain the correct mode of administering the drug and to ensure that only that mode was adopted was grossly negligent to the point of criminality having regard to all the excuses and mitigating circumstances in the case.
Of those, there were many. Doctor Prentice was required to give the treatment without the consultant who prescribed it giving any instruction or thought as to who should do so. This, despite the fact that Doctor Prentice was inexperienced, reluctant to give the treatment and wholly unaware (as, it seems, was Doctor Fairham) of the likely fatal consequences of giving vincristine by lumbar puncture. Doctor Prentice did not have the data chart on the cytotoxic trolley because that trolley was not in use. The senior nurse was not present, leaving only two students at the scene. Moreover, having asked for supervision and believing that Doctor Sullman was supervising the whole treatment, he was actually handed each of the two syringes in turn by Doctor Sullman and administered the drugs under his very eyes.
So far as Doctor Sullman was concerned, he believed he was simply required to supervise the insertion of the lumbar puncture needle by an inexperienced houseman. He understood the drugs were for administration by lumbar puncture. He did not have special experience or knowledge of cytotoxic drugs. Although the box in which the drugs came was red and properly labelled, it was accepted that to put the two syringes into the same box was bad practice which is no longer followed.
Had the directions to the jury left it open to them to take these matters into account on the specific issue of gross negligence which we hold was the right issue, they may well, in our judgment, have concluded that the prosecution had failed to establish that essential ingredient. Accordingly, in our view the appeals of these two appellants must be allowed and their convictions quashed."
"In my view, the proper approach to a case like this should be to assess the quality of the conduct/omissions and to consider whether a properly directed jury is more likely than not to conclude that the conduct/omissions was so bad as to be criminal. In so doing, it is important to ensure that a properly objective approach is taken. This means that issues such as the awareness of risk by the accused is not a prerequisite to a finding of gross negligence. Of course if there was subjective recklessness, i.e. say the accused realised that there was a level of risk but decided to run it, that may well make it easier to determine that the conduct was so bad as to amount to gross negligence. On the other hand, the lack of subjective recklessness most emphatically does not preclude prosecution."
That seems to us to be right, but it must not lead to a blinkered approach because, as Mr Enzor said in his paragraph 7.7
"I consider that I must also look at 'all the circumstances in which the (accused) was placed."
"Unless an identified individual's conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not, in the present state of the common law, liable for manslaughter. "
For obvious reasons that is also the position in relation to a local authority.
"We would need to prove that the act or omission causing the death was the act or omission of a person who is the embodiment of the corporation and was acting as the corporation. Further, that person must be sufficiently senior to be a directing mind and will of the corporation."
Mr Ensor's conclusions
"The simple fact that a severely disabled person, who could do virtually do nothing for himself, was left unsupervised in the bath, posing an obvious risk of death. In my view, it did not require risk assessment, training or written instructions to realise this. Plain common sense should have dictated that this practice was unsafe."
"Looking at the position of the Council in the round, I do not think that the case can be made out that the conduct of the council as a whole was so bad as to be grossly negligent and therefore a crime."
Having referred again to the difficulty of identifying anyone who could be described as a directing mind and will of the Council, Mr Enzor concluded that in the absence of conduct so bad as to be capable of being described as gross negligence "further investigation to identify an individual who might be personally guilty is hard to justify".
Grounds on which relief are sought
(2) The second ground on which relief is sought is that the defendant failed to take into account various relevant factors, such as positive evidence of subjective recklessness on the part of Sarah Peters, and took into account matters which are said to have been irrelevant. The submission in relation to Sarah Peters is simply an attempt to re-evaluate her position in the light of all the evidence, and it is apparent to us that Mr Enzor did have regard to all of the evidence. His evaluation is then attacked on the basis of his reference to Sarah Peters being junior to Mrs Mather and his reference to the inquest verdict. We have already dealt with the former, and the reference to the inquest verdict was sensible and appropriate. It was unnecessary for Mr Enzor to conduct any analysis of the verdict because, as he made clear, he did not place particular weight on it. He concentrated he said on the merits of the case.
(3) The third ground is that the defendant failed to indicate how important each factor was in his overall assessment as to whether or not the evidential test was satisfied in relation to each potential defendant. Mr Enzor accepts in his witness statement that not all of the factors are of equal weight, but he goes on to explain that separate weighting was not in his view was practical or appropriate, saying
"My approach was to consider all of the factors I had identified in the round, as the jury would be directed to do. In so doing, I asked myself the question whether, taking the factors I had identified into account, a properly directed jury would be more likely than not to convict of the offence of gross negligence manslaughter. I concluded that they would not."
In our judgment that was a correct approach.
(4) The fourth ground is really an amplification of the Article 2 point made in relation to ground 2. It is said that the defendant failed to exercise his power under section 3(2)(e) of the Prosecution of Offences Act 1985 to advise the police to make further enquiries or seek out further evidence compatibly with Article 2 which, in all of the circumstances, required further enquiries to be made to satisfy the procedural obligation properly to investigate the death of a person in the state's care. We accept that, as contended, the defendant is obliged by section 6 of Human Rights Act 1998 to exercise his powers compatibly with Convention rights, and that it is the duty of the state properly to investigate the circumstances of the death of a person who was under the care of a public authority when he died. In Jordan v UK  11 BHRC 1 the European Court of Human Rights considered the adequacy of inquest and judicial review proceedings which followed a death in Northern Ireland allegedly caused by shots fired by a police officer. In paragraph 105 of its judgment the court said
"The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the state's general duty under Article 1 of the Convention to "secure to everyone within (its) jurisdiction the rights and freedoms defined in (the Convention), also requires by implication that there should be some form of effective official investigation when individuals have been killed as the result of the use of force . The essential purpose of such investigation is 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 death occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever form is employed, the authorities must act of their own motion, once the matter has come to their attention."
The court went on to say that the investigation must be effective, prompt, open and involve the next of kin.
"What is required will vary with the circumstances. A creditable 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 risks of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxiety 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. "
So Mr Keith in his skeleton argument submits, in our judgment rightly
"The investigating body is not required to pursue evidential leads indefinitely, to establish that someone was responsible or to ensure that criminal liability attaches to an individual. In every case it is a question of taking reasonable steps to ensure that such evidence as is reasonably available is properly secured. In other words the investigation must be thorough."
Turning to the particular position of the defendant, he has no express or implied residual responsibility in that regard. His functions are prescribed by statute, and we see no reason why in order to fulfil the obligation of the state to comply with Article 2 he should, without any appropriate resources, be given an investigatory role which Parliament did not plainly assign to him. As it happens the point is of no real moment in the context of this case, because over the years since 1998 the tragic death of Malcolm has been carefully investigated time and again, and Mr Enzor was entitled to conclude as he did, in paragraph 9.53, that the prospects of establishing gross negligence manslaughter against any person of sufficient seniority to be regarded as the directing mind and will of the Council are not such as to justify further investigation. Perhaps it was in an attempt to circumvent that obviously reasonable conclusion that Mr Hunt submitted that further enquiries might identify an individual in some managerial post who knew of the near fatality in some other home to which reference was made by another carer and whose position and responsibilities in relation to 96 New Lane were such that he or she should be regarded as a person against whom proceedings for gross negligence manslaughter could be commenced with realistic prospects of success. It is true that save in his paragraph 9.54 Mr Enzor did not address that possibility directly but there was and is, as Mr Hunt recognises, no evidential basis for his speculation, and in our judgment, having regard to the duties and functions of the defendant, it must follow that the conclusions of Mr Enzor cannot be impugned on that ground.