QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mrs Rita Goodson
|- and -
|HM Coroner for Bedfordshire and Luton
|- and -
|Luton and Dunstable Hospital NHS Trust
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)
Ian Burnett QC and Paul Matthews (instructed by Withers) for the Defendant
Philip Havers QC and Leslie Millin (instructed by Capsticks) for the Interested Party
Crown Copyright ©
Mr Justice Richards :
There was nothing precluding the procedure on history or physical examination. The patient tolerated the procedure well. Oxygen saturation was not less than 96% during the procedure. Oxygen was delivered at 4 litres per minute.
The major papilla was located in the second part of the duodenum. It was normal in size.
Pancreatic duct cannulation via the major papilla was not attempted. The bile duct was cannulated via the major papilla.
The intrahepatic ducts were normal. The gallbladder was not visualized. In the lower 1/3 bile duct multiple radiolucent stones were evident. The largest was 1-2 cm in diameter.
In the mid 1/3 bile duct multiple radiolucent stones were found. The largest was 0.5-1 cm in diameter. There was dilation to 12-15 mm.
Sphincterotomy performed with DASH and multiple soft stones extracted with basket.
A 10 mm sphincterotomy was undertaken with a dash papillotome. Minor bleeding occurred. The biliary stones were completely extracted with a basket.
Return to ward. Review in Outpatients in 6 weeks."
The immediate cause of death was due to peritonitis due to the escape of gut contents from the duodenum and small bowel. The appearances showed some minimal tethering between duodenum and colon, and this could suggest that this had been established before the operative procedure had taken place. This would therefore mean that the duodenum would not be mobile and therefore more easily subject to perforation from an instrument forced against the mucosa .
Cause of death
1 (a) Organising peritonitis [due to or as a consequence of]
(b) Traumatic perforation of duodenum and colon [due to or as consequence of]
(c) Operative procedure for exploration of bile duct."
"He came to the clinic with one of his daughters. He was reported to be more or less back to normal apart from being slightly confused and was living at home with his disabled wife, with carers and three daughters supporting them. The management of patients with bile duct and gallbladder stones is to perform an ERCP, sphincterotomy and removal of the bile duct stones followed by a laparoscopic cholecystectomy to remove the gallbladder. In an elderly, frail patient it is normal practice to perform an ERCP, sphincterotomy and remove the bile duct stones but to leave the gallbladder in situ. I recommended that Mr Coleman underwent an ERCP to remove the bile duct stones and I did not think that he was fit enough to undergo an operation to remove the gallbladder.
I made arrangements for him to be admitted for the procedure on 25th February 2003. Mr Y Kan, my Specialist Registrar saw Mr Coleman with his daughter before the procedure and took consent. He explained the possible complications of pancreatitis, bleeding and bowel perforation . ERCP was performed between 15.00 hours and 16.00 hours under light intravenous sedation .
The endoscope was passed through the oesophagus, stomach and into the duodenum. The duodenal wall appeared almost translucent and was thought to be very thin making the risk of perforation higher. The bile duct was cannulated and contrast injected which revealed at least four large 1.5 cm diameter square stones within the bile duct. These type of stones can be difficult to remove but in Mr Coleman they came out easily. A sphincterotomy was performed to enlarge the opening into the bile duct so that the stones could be removed. A wire basket was passed into the bile duct to catch a stone and using a standard technique the stone was pulled into the duodenum. This was repeated until all the stones were removed. The stones were released into the duodenum and spontaneously passed on defecation. The bile duct was successfully cleared of stones. It was thought to be a straightforward procedure.
He was returned to the ward by 16.00 hours and at 22.30 hours he was seen by the Senior House Officer because he was confused and his abdomen was distended. Blood tests were performed which were unremarkable and the results were similar to those performed before the procedure. The amylase was slightly elevated which always occurs following an ERCP. His chest and abdomen were x-rayed and free gas was visible outside the bowel. He was reviewed by Mr Gupta, Specialist Surgical Registrar (who is taking up a Consultant Surgeon's post on 1st April 2003) and he rang me at 00.30 hours. We thought that there must have been a perforation to the bowel during the procedure and that the patient should be managed conservatively for a few hours in an attempt to optimise his condition for a possible operation. As stated earlier I had major concerns about him surviving an operation. He was reviewed in the morning by Mr Gupta and Mr Kan, both Specialist Surgical Registrars, the Anaesthetic Registrar and Consultant Anaesthetist Dr Roud-Mayne. He was not fit to undergo operation but an operation was not ruled out and attempts were made to improve his condition. He continued to deteriorate and had a cardiac arrest at 11.45 hours on 26th February. I spoke with the family (three daughters, wife and other family members) at 12.30 hours ."
"Choice of treatment and complications
ERCP and sphincterotomy is a minimally invasive procedure, which is performed under sedation. There is a small but significant risk of complications (6-10%) and mortality (1.3%) related to the procedure, which is higher in elderly patients. In the past the only means of treatment was by operation, which in patients over seventy-years old carried a much higher risk of complication (22%) and death 8-10%. The post-mortem revealed a perforation of the third part of the duodenum into the colon where the colon was abnormally fixed to the duodenum.
I postulate the following mechanism of injury. To remove a stone the basket containing the stone is pulled into the lower bile duct, the endoscope tip straightened and the scope made to rotate to the right. The basket and stone pop out of the bile duct into the duodenum. If the duodenum is thin walled and not sufficiently mobile to move with the endoscope there is higher risk of perforation as in this patient. Patients normally survive for several days with a bowel perforation and I believe that his rapid deterioration was related to his age and general frailty.
I have been a Consultant Surgeon specialising in pancreato-biliary surgery for ten years at the Luton and Dunstable Hospital and take tertiary referrals from the four hospitals in Hertfordshire. I was trained in ERCP by Dr Peter Cotton who pioneered the technique of ERCP. I perform 90% of the ERCP's at the Luton and Dunstable Hospital, which amounts to twelve hundred procedures over ten years. The overall death rate has been 0.25% (three deaths) and two patients have died following the extraction of bile duct stones."
"You will see from the submissions put forward that we consider that Mr Coleman died at the hands of a public body namely the NHS and as such Article 2 of the ECHR is engaged and your enquiry should consider whether there has been a system failure in relation to Mr Coleman's care since the authorities at the Luton & Dunstable Hospital knew or ought to have known that a perforation of the bowel left untreated, or treated 'conservatively' would result in his inevitable death.
We consider that Mr Coleman's condition required a prompt laparotomy to be performed and we are of the view that the failure in the system meant that Mr Coleman did not receive the necessary emergency care which would have saved his life.
The only medical evidence you are proposing to rely upon is the medical review expressed by Miss Cheslyn-Curtis and as she is employed by the Luton & Dunstable Hospital it will be necessary for you to seek the views of an independent surgeon who can consider the notes and records and advise you on the level and standard of care provided to Mr Coleman. Without such independent evidence the inquest would be regarded as an insufficient inquiry and would be subject to judicial review.
We also believe that the account given by Mss Cheslyn-Curtis is not borne out by the clinical notes and therefore further statements or reports should be obtained from the other clinicians involved.
We would therefore request that the inquest be adjourned from 1 July, that you consider whether or not Article 2 is engaged and you confirm that you will be instructing an independent expert to review the notes and records and prepare a report."
"8. Having considered the statements and evidence obtained, I started the Inquest by hearing the two applications, made by the Claimant's solicitor, for (1) the Inquest to be conducted as an enquiry for the purposes of article 2; and (2) for an independent medical expert to be instructed. These applications were refused, although I agreed to review this decision at the end of the Inquest once I had heard all the evidence.
9. I then called Mrs Goodson followed by Dr Calder. As Dr is a Forensic Pathologist who is very experienced in carrying out autopsies relating to hospital deaths and recognising signs of negligence, once I had heard his evidence, I asked him to remain for the duration of the Inquest in case I needed to re-call him. I then called Miss Cheslyn-Curtis followed by Mr Gupta, the then specialist Senior Registrar (now a consultant at another hospital Trust).
10. In the light of the evidence I had then heard, I re-called Miss Cheslyn-Curtis and Dr Calder who were re-examined on the further evidence and who were both able to provide their further comments on this. Finally, having heard all the evidence, I then heard further submissions from the Claimant's solicitor in relation to his previous applications. As I was well aware that my decision might be one that the Claimant's solicitor would seek to review, I retired for a short time to consider these further submissions in the light of all the evidence. However, I was satisfied that there were no signs of any negligence and that this was not a case which called for further independent evidence. Had further expert evidence been required, I would have obtained it."
"On 25.2.2003 he was admitted to Hospital for elective operation necessary for his diagnosed condition. ERCP procedure caused a perforation of the duodenum which unusually had fused with the colon. Despite subsequent and appropriate treatment and care he died on .2.2003 at 11.45 a.m."
"The evidence of precisely what transpired and how Mr Coleman's condition progressed or deteriorated between his return to the Ward at about 1600 hrs and his examination by the Senior House Officer at about 2200 hours is open to differing interpretations, but I am satisfied that from that time the facts are clear and that, whatever the intervening events, the outcome would have been no different. At 2230 hours the Senior House Officer carried out a thorough examination and undertook a recognised series of tests when Mr Coleman appeared confused and his abdomen was noticeably extended. Many of his findings were within normal recovery expectations. Nevertheless, he was later reviewed by Mr Gupta, the Specialist Senior Registrar (now a Consultant) who concluded that there may have been a perforation of the bowel during the ERCP procedure. Around midnight he spoke with Miss Cheslyn-Curtis and it was decided that Mr Coleman should be monitored overnight in the hope that his condition would improve sufficiently to enable a decision to be made as to whether further surgery could and should be undertaken. It was the clinical decision of Dr Gupta in consultation with Miss Cheslyn-Curtis that Mr Coleman might not survive any major and intrusive operation. He was reviewed subsequently and regularly by senior doctors but was never considered fit for an operation before he suffered a fatal cardiac arrest at 1145 hours on 26 February 2003.
The post mortem evidence revealed, inter alia, that there was an established adhesion between the duodenum and colon which would have inhibited the mobility of the thin tissue of the duodenum and more readily subjected it to a perforation of both. The medical cause of death was 1(a) Organising Peritonitis, (b) Traumatic Perforation of Duodenum and Colon, (c) Operaton Procedure for Exploration of Bile Duct.
Other findings of fact have not been set out in this Summary as not being relevant to the Applications save that:
1. Perforation of the duodenum is a rare but recognised complication of this procedure. In itself the mortality rate is extremely low (about 1%). This patient's particular adhesion problem, which also led to perforation of his colon, was extremely rare though recognised in the medical textbooks, it could not have been established prior to ERCP, nor anticipated in the early post-operative care.
2. Surgical intervention between 2200 hrs 0800 hours would not have been clinically appropriate, but if so required, an emergency procedure could have been undertaken at the L&D within this period notwithstanding the Department of Health Clinical Guidelines to which I was referred.
3. The Post Mortem evidence revealed an enlarged heart, a 50% narrowing by atheroma of the left coronary artery and generally complicated dynamics. Life expectancy was therefore compromised and thus endorsing the clinical judgments made ."
"1. Article 2:
I cannot believe that every hospital death, let alone one such as in this case, is capable of invoking Article 2. There are certain failings in current Coronial Law, but for the most part there are now adequate opportunities for the Coroner to investigate any medical malfeasance or procedure of public concern without relying on Article 2. In this case I am firstly not convinced that the Luton & Dunstable NHS Hospital Trust is a State Body or an Agent of it . [I]f it were to be held that the L&D fell within the provisions of Article 2, I do not see that it has any meaningful implications for this case beyond the enquiries I have already conducted, which are proportional to the circumstances .
Mr Coleman was aged 83. He had gallstones. As a result he was jaundiced and his health was deteriorating, potentially shortening his life expectancy further without some attempt at alleviation. He opted for a surgical procedure which, as with virtually all other surgical procedures, has inherent risks, however small, even for a younger, fitter, person. The procedure appeared to be successful in its own terms. Sadly he subsequently deteriorated and died the following day. His duodenum and colon, which were unusually fused, were unfortunately perforated. This rare condition resulted in peritonitis which was diagnosed by competent and experienced clinicians and, for understandable clinical reasons, Mr Coleman was treated conservatively and his condition monitored. He died before he was considered fit for a further life-threatening operation. Clinical judgments were exercised at each stage. [The claimant's solicitor] demanded that a detailed inquiry into hospital procedures and protocols should be undertaken. He potentially objected to Department of Health Guidelines advising against surgical operations during the night, except where life-saving. This is not a case where Government Policy should be put to enquiry and in any event I am satisfied that life-saving operations have and can be undertaken at this Hospital should an emergency situation arise. If I had thought for one minute that I ought to undertake a 'Systems Review' to minimise the risk of future deaths to assuage the anxieties of the public, I would have undertaken such a Review within existing Coronial powers irrespective of Article 2. I believe that the Inquest, now concluded, properly and effectively investigated the circumstances of Mr Coleman's death and would not be found wanting by any extended or further review. Other family concerns could and should be independently investigated by the Hospital itself. The Application was therefore refused.
2. To obtain evidence from an Independent Consultant to assess the treatment.
Whenever a sudden or unexplained death is reported to me I ensure that full and sufficient enquiries are made on my behalf and that independent, professional or expert advice or opinion is obtained when appropriate. This is not a case where the clinical judgment of any person individually or collectively should be subjected to independent scrutiny. I am well aware that my Independent Pathologist should not be relied on to give expert evidence beyond his remit. However, in this case, the statistical evidence coupled with the clinical judgment of more than one Specialist, the facts of the case, the medical text-books and common sense, do not in any way lead towards negligence, let alone gross negligence or incompetence and the public interest has been fully satisfied from the evidence of the witnesses called or whose statements were presented.
Although in the interests of transparency I have authorised advance disclosure of all available evidence, the family have not themselves taken the opportunity of undertaking an independent scrutiny or invited me to hear or read other medical evidence beyond the Department of Health Guidelines.
From my many years of experience in investigating hospital deaths, which has afforded me some judicial knowledge, I cannot envisage that any 'Independent Consultant' apprised of the facts of this case could conceivably come to a clinical judgment so widely different from those already before me as to lead to a verdict other than 'misadventure' or 'accidental death' without any of the qualifications or riders that would be open to me if it were otherwise.
There is no case for an Independent Report and this Application is rejected."
The claimant's case
i) In the circumstances of the death, and since it occurred while Mr Coleman was a patient in an NHS hospital (a public authority within the meaning of s.6 of the Human Rights Act 1998), the acts and omissions of its medical staff are capable of engaging the responsibility of the state under article 2 ECHR. The inquest had to meet the criteria laid down for an investigation under article 2, which in this case required the coroner to seek the assistance of an independent witness with expertise in endoscopic procedures and in the management of bowel operations.
ii) Even if article 2 was not engaged, the coroner was required to summon the assistance of an independent medical expert rather than placing reliance solely on the evidence of the clinicians who had been directly responsible for the death.
"105. 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 a 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 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 .
106. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent of those implicated in the events . This means not only a lack of hierarchical or institutional connection but also a practical independence .
107. The investigation must also be effective in the sense that 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. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record injury and an objective analysis of clinical findings, including the cause of death . Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."
i) The Luton and Dunstable Hospital NHS Trust is a public authority within s.6 of the Human Rights Act 1998. This is now accepted on the coroner's behalf, although he expressed a different view in his written reasons.
ii) All deaths in hospital potentially require an article 2 investigation. At a minimum there is a requirement for such an investigation where the state potentially bears responsibility for the death: Sieminska v. Poland (application no. 37602/97, 29 March 2001).
iii) In any event deaths in hospital which fall into the coroner's jurisdiction (amounting to only 5% or so of all deaths in hospital) require an article 2 investigation. This introduces a practical threshold for such an investigation.
v) Ordinarily an article 2 investigation into a hospital death should fall to the coroner: Middleton, para 47 ("In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2"). The relevant local authorities will have to indemnify the coroner for any increased costs which are incurred.
vi) Whilst the scope and extent of the investigation may vary according to the circumstances, minimal criteria apply to any article 2 investigation: Amin, para 50 per Lord Steyn. In particular, the minimal Jordan criteria apply (see paras 105-107 of Jordan).
vii) Where there is an article 2 investigation into a death in hospital, the minimal criteria for such an investigation will not be met without appropriate evidence being called. In practice in most cases where surgical procedures and clinical management are involved, the investigation would involve the assistance of an independent clinical medical expert. Without independent expertise in the relevant area, there can be no realistic prospect of any inquiry being fair and balanced. In another context, the difficulty of using witnesses of fact as expert witnesses has been recognised in a multi-agency protocol published in September 2004 by the Royal College of Pathologists and the Royal College of Paediatrics and Child Health, relating to care and investigation in cases of sudden unexpected death in infancy. The evidence of Miss Cheslyn-Curtis and Dr Gupta was not independent. As to the need for independent investigation, see Gulec v. Turkey (application no. 54/1997/838/1044, 27 July 1998) at para 85; Kilic v. Turkey (application no. 22492/93, 28 March 2000) at para 72; R (Wright and Bennett) v. Secretary of State for the Home Department  EWHC Admin 520 at para 60; R (Nicholls) v. HM Coroner for Liverpool  EWHC Admin 922 at para 29; R (Stanley) v. Inner North London Coroner  EWHC 1180 (Admin) paras 45-47. Further, the Report of a Fundamental Review 2003 into Death Certification and Investigation in England Wales and Northern Ireland, Cm 5831, recommended the establishment of a statutory medical assessor independent of any health service provider or professional grouping. See also the recommendations of Dame Janet Smith, in her report on the Shipman Enquiry, as to the establishment of a new system whereby coronial functions requiring the exercise of medical judgments are carried out by independent medical coroners.
viii) An article 2 investigation into a hospital death gives the coroner greater scope than he would otherwise have to investigate through evidence systemic failures and the general circumstances in which the death occurred: see Middleton and R v. HM Coroner for West Yorkshire, ex p. Sacker  1 WLR 796,  UKHL 11, at paras 27-28. By contrast, if an inquest falls outside article 2, it is constrained by the principles laid down in Jamieson and there is no power to undertake a systems review: R v. HM Coroner for East Berkshire, ex p. Buckley (1992) 157 JP 425.
The submissions for the Coroner
"In a succinct and accurate judgment Jackson J reviewed the domestic and Strasbourg case law, deriving from Jordan v. United Kingdom 37 EHRR 52 the requirement that an investigation, to satisfy article 2, must have certain features . (1) The investigation must be independent. (2) The investigation must be effective. (3) The investigation must be reasonably prompt. (4) There must be a sufficient element of public scrutiny. (5) The next-of-kin must be involved to an appropriate extent. From the recent case law Jackson J derived five propositions of which the fourth was: '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 submissions for the NHS Trust
Whether the investigative obligation under article 2 is engaged
"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 .
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 ."
"The Court points out that the first sentence of Article 2 obliges the State 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 like 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 .
With reference to the first limb of these obligations, the Court observes that the hospital does not appear to have had any particular reaction to the death of the applicant's mother .
The Court observes however that, after the applicant had filed the complaint against the practitioners whom he deemed responsible for his mother's death, the judicial authorities carried out a thorough investigation into the events .
The Court further observes and stresses that it was open to the applicant to bring an action for negligence against the hospital. The Court underlines in this respect that the criminal investigations had only aimed at establishing the identity of the practitioners concerned, and not also at assessing whether there had been any negligence in treating the applicant's mother: this question therefore remained open. In civil proceedings, the application would have enjoyed the possibility of seeking and adducing further evidence and his scope of action would not have been limited as in criminal proceedings.
In the light of the above, the Court finds no indication that the facts of this case have not been sufficiently investigated or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable ."
"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 ."
"The Court further observes that it was open to the applicant to bring a civil action in tort against the State Treasury, seeking compensation for her husband's death. She could also have instituted proceedings in order to establish disciplinary responsibility of the medical practitioners concerned .
In the light of the above, the Court finds no indication that there has been any failure to provide a mechanism whereby criminal, disciplinary or civil responsibility of persons who may be held answerable could be established.
The Court further finds no indication that the prosecuting authorities arbitrarily assessed the evidence at their disposal .
Given that no fresh evidence has been brought before the Court, it must rely on the facts established at the domestic level. In the circumstances of the present case, it cannot find any appearance of negligence on the part of the staff involved. Accordingly, there is no appearance of a violation of Article 2 of the Convention."
"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 )."
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.
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.
"62. It is possible to derive from these Strasbourg cases the following principles. (1) Where agents of a state bear potential responsibility for the loss of 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.
63. For reasons that may appear obvious, the present case cannot be simply categorised as one involving errors of judgment on the part of a health professional or negligent co-ordination among health professionals: see the passage in Powell cited in para 51 above. This is a case in which the conduct of those responsible for [the deceased's] care has already been stigmatised by an independent expert as 'grossly negligent', and where the family's solicitor is not unreasonably concerned that there may have been a medically orchestrated cover-up which caused his clients the additional heart-breaking distress to which we have referred in para 10 of this judgment."
Whether the inquest complied with any investigative obligation under article 2
"[Counsel for the Secretary of State] was right to insist that the European Court has not prescribed a single model of investigation to be applied in all cases. There must, as he submitted, be a measure of flexibility in selecting the means of conducting the investigation. But [counsel for the claimant] was right to insist that the Court, particularly in Jordan and Edwards , has laid down minimum standards which must be met, whatever form the investigation takes. Hooper J loyally applied those standards. The Court of Appeal, in my respectful opinion, did not. It diluted them so as to sanction a process of inquiry inconsistent with domestic and Convention standards."
"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 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 importance of investigating all deaths in custody properly, I consider that full effect must be given to the Strasbourg jurisprudence ."
Whether the coroner's decision was otherwise lawful