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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 184
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OPINION
OF LADY SMITH
in
the Petition of
ALICE
EMMS
Petitioner;
for
Judicial
Review of the Lord Advocate's refusal to hold a Fatal Accident Inquiry
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Bovey Q.C., Caskie; Thompsons
Respondent: Moynihan Q.C., Smith; M Sinclair, Solicitor
to the Scottish Executive
16 November 2007
Introduction
[1] This petition for judicial review is
brought by the mother of the late George Emms ("the deceased") who died whilst
a patient in St John's Hospital
Livingston. He
was aged 49 years at the date of his death.
[2] First orders were granted on 1 April 2007 and the petition was
served on the Lord Advocate, who is the only respondent, on 2 May 2007.
[3] The petition arises out of the refusal
of the procurator fiscal at Linlithgow to hold a Fatal Accident Inquiry ("FAI")
under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 ("the
1976 Act") in respect of the death of the deceased. The Lord Advocate also refused to order that
such an inquiry be held. She had,
however, made no decision on the matter at the time the present petition was
served. She had the issue of whether or
not to do so under consideration at that time, had instructed an independent
expert report and was, to the knowledge of the petitioner, awaiting that
report. On 6 June 2007, after having received that report, she
decided not to hold such an inquiry.
Following amendment to the original petition it is that decision and
only that decision which the petitioner seeks to have reviewed.
[4] The orders sought by the petitioner are:
1. reduction of the
respondent's decision of 6 June
2007;
2. declarator
that the respondent's refusal is incompatible with Article 2 of the European
Convention on Human Rights and that the petitioner is entitled to an
independent, effective and reasonably prompt public inquiry into the death of
the late George Emms, at which his next of kin can be legally represented,
provided with the relevant material and able to cross examine the principal
witnesses; and
3. an
order ordaining the respondent to cause such an inquiry to be held.
Background
[5] The deceased was admitted to hospital on
25 August 2004 with a
history of breathlessness and pyrexia.
He had a complex medical history including pre-existing brain damage,
diabetes mellitus, and he suffered from hepatitis C and epilepsy, the latter as
a result of having had encephalitis during childhood and a stroke in 1993. He had learning difficulties and was an adult
to whom the provisions of the Adults with Incapacity (Scotland)
Act 2000 applied. He was having
difficulty in swallowing when he was admitted to hospital. Subsequent to his admission, it was decided
that he needed to be fed artificially.
On 1 September 2004,
a percutaneous endoscopic gastrostomy ("PEG") was inserted through his abdomen
into his stomach. A PEG involves a tube
and valve via which the patient can be fed, hydrated and have liquid medication
administered.
[6] On 8 September 2004, the deceased died. A post mortem was carried out by Professor
Busuttil and he concluded that the cause of death, as recorded on the death
certificate was:
"1(a) Septicaemia
(b) Combined effects of
Inhalation of Gastric contents and peritonitis
(c) Insertion of a Feeding
Gastric Tube
(d) Encephalitis and Stroke
II Diabetes
Mellitus; Hepatitis C; Chronic Pancreatitis and Cholelithiasis."
[7] Professor Busuttil's post mortem report
is dated 13 September 2004
and concludes with the following commentary:
"This man had swallowing difficulties brought on by brain changes
resulting from his encephalitis and strokes.
To deal with this a PEG was passed into his stomach under a local
anaesthetic. He had required surgery to
his upper abdomen in the past and an upper abdominal scar was present as well
as nylon sutures within the tissues. As
such, the local anatomy was distorted due to the presence of the adhesions and
other changes consequent on this surgery.
The tube, although appropriately sited, has leaked and as a consequence
there was inflammation of the lining of the abdominal cavity (a
peritonitis). This in turn led to
systemic infection, i.e. blood poisoning (a septicaemia).
He was also a diabetic and as such his immunity would have been deficient
and thus he would have been less able to deal with any intra- abdominal
infection."
[8] Whilst Mr Bovey sought to suggest that
Professor Busuttil could be read as, in his last paragraph, voicing some
criticism of the deceased's treatment, I do not see that it can. He seems there to state no more than that the
deceased's pre existing diabetes would have rendered him more vulnerable to the
effects of infection.
[9] Professor Busuttil provided two further
reports. The first is dated 23 November 2004 and in it he
states:
"I am not personally familiar with the procedure by which a P.E.G tube is
inserted. In retrospect however the
fever, which developed a few days after its insertion, may have suggested a
leak therefrom. This man had a large
number of other medical conditions which predisposed him to infection and to
poor healing - not least his diabetes, and as such the complication of his PEG
insertion has to be viewed in this context."
[10] The second is dated 11 January 2005 and in it he answers some
specific enquiries which had been put to him by Dr Williams, gastroenterologist
at St John's Hospital.
Dr Williams had been present at the post
mortem and had had to respond to enquiries made of him by the procurator
fiscal. Professor Busuttil states, in
this report:
"I have no doubt whatsoever from what you told me that:
(a) the PEG was essential for
this man
(b) it was appropriately
inserted
(c) the
family knew what it was required for and understood fully the complications
inherent in this procedure
This 49 year old man was a person whose immunity and perhaps also his
repair processes were impaired due to the large number of concomitant serious
conditions that he also suffered from not least his post pancreatic (presumably)
diabetes."
[11] He added that he knew the family still had
questions they wished answered, particularly in relation to the PEG insertion
and he was sure that the procurator fiscal would be seeking expert advice in
that respect. He did not feel able to
respond from any personal knowledge of the procedure himself.
[12] St John's
Hospital carried out a Critical
Incident Review ("CIR") in respect of the death of the deceased and of another
patient who had also died in September 2004 after the insertion of a PEG. The CIR did not attribute the death of the
deceased to any failing on the part of those responsible for his care. It did identify that the deceased had not
received insulin on 4 September
2004 but concluded that that had not contributed to his death; his blood sugar readings for that day and the
following day were not significantly elevated.
It noted that the care he received on 4 September, a weekend day,
was not recorded but that was not exceptional and it is evident that his vital
signs and blood sugars were recorded. His antibiotic therapy is noted without
adverse comment.
[13] It is evident from the documents produced
that the deceased's family had a concern about the use of the PEG in the
deceased's case and raised it with the procurator fiscal. The procurator fiscal made enquiries of
consultants at the hospital and of Professor Busuttil and, having done so, had
no particular concerns. He was, however,
prepared to instruct an independent expert and appears to have sought
confirmation from the petitioner's solicitor, both of her present agents and of
her previous agents, that they were happy with the identity of the expert
proposed. By letter dated 6 October 2005 to her
solicitors, he reminded them that he was still waiting to hear from them in
that regard and indicating that if he had not heard from them by the end of the
month then the papers would be passed to Crown Office. The agents' response, by letter dated 17 October 2005, was that the
instruction of an expert was a matter for the procurator fiscal and that they
would be raising with him the matter of a Fatal Accident Inquiry.
[14] The procurator fiscal, by letter dated 9 November 2005, intimated that,
in the light of his investigations including what was contained in the hospital's
CIR and the content of full discussion with
Professor Busuttil, he did not feel it was necessary to seek an expert
opinion.
[15] The petitioner's agents continued to press
for an FAI.
[16] By letter dated 25 November 2005, under reference to the
same matters as relied on in his letter of 9 November and also to having
discussed matters with Dr Williams, the procurator fiscal intimated that
he did not feel that it was appropriate to hold an FAI. He confirmed that he did not consider that it
was in the public interest that he hold one.
[17] All the documents relied on by the
procurator fiscal were made available to the petitioner's agents.
[18] The petitioner's agents again continued to
press for an FAI.
[19] Correspondence continued between the
petitioner's agents and the procurator fiscal during the latter part of 2005
and 2006 in the course of which the petitioner's continued to press for an FAI
and the procurator fiscal persisted in his refusal.
[20] At some point, which appears to have been
whilst the petitioner's previous agents were acting and therefore probably some
time prior to October 2005, the
petitioner had intimated a claim to Lothian Health Board, as the body
responsible for St John's Hospital and the medical and other staff employed there. By letter dated 4 July 2006, the petitioner's agents confirmed that
they would not be claiming in respect of the actings of Wendy Pilkington, a
person who was "aware of the deceased ..." but she is the only person in respect
of whom they gave such confirmation. They did not, for instance, give any such
indication in respect of those responsible for the decision to insert the PEG,
for the insertion of the PEG or for monitoring it in situ.
[21] The procurator fiscal evidently did pass
the papers to Crown Office where Crown counsel decided that it was appropriate
to obtain the views of an independent expert. That is a decision which appears to have been
taken when the petitioner's application for legal aid to bring the present
petition was intimated. Accordingly, the
Deputy Crown Agent, Mr Brisbane, wrote to the petitioner's agents on 22 November 2006 advising that
Crown counsel had instructed that an independent expert's report be obtained. He also wrote, the same day, to the Scottish
Legal Aid Board to advise them that that was being done and that:
"Once that expert report has been received, a final decision will be
taken in relation to whether a Fatal Accident Inquiry should be held."
[22] The Crown instructed Dr David Johnson,
consultant gastroenterologist of Ninewells
Hospital, Dundee,
to provide a report.
[23] Notwithstanding the fact that Dr Johnson's
report was awaited, the petitioner proceeded with the present petition.
[24] Dr Johnson responded by a report dated 18 May 2007. It is evident from that report that he was
asked to focus on specific issues, namely:
- whether
the care afforded to the deceased at St John's
Hospital was appropriate
- the
clinical decision making
- the
professional actions of those involved in the treatment of the deceased whilst
he was a patient at the hospital.
[25] Dr Johnson reached his conclusions having
taken account of:
- the deceased's medical
records
- Professor Busuttil's
post mortem report
- statements
from the staff at the hospital which were made available to him.
[26] It is plain from Dr Johnson's report that
he has accurately noted the deceased's medical history and the details of the
deceased's condition at the relevant times during his last illness. He details the PEG procedure used. He details the deceased's progress and
treatment thereafter. He takes account
of the findings at post mortem. In the
light thereof, he expresses the following views:
"The decision to insert a PEG feeding tube in Mr Emms appears to have
been carefully considered in this case. The
case appears to have been discussed with the Speech and Language team, the
Gastrointestinal Specialist Nurse, the Dietician, the attending Medical Team,
and Mr Emms' family. In addition, there
was a clear indication for the insertion of the PEG tube as he was regarded as
unable to swallow safely. However in addition
to this, he also had limited iv access and had been unable to tolerate
naso-gastric feeding. He was also an
Insulin dependent diabetic and therefore required regular feeding which could
not be achieved without the insertion of the PEG tube."
[27] Dr Johnson expresses the view that the
insertion procedure was "carried out without any problems".
[28] In summary, he concludes:
"... in my opinion, the decision to insert a PEG in Mr Emms case was
entirely justified on the basis of the information given. The PEG tube itself appears to have been
inserted correctly with no obvious concern that the procedure was not carried
out appropriately. In some cases,
previous gastric surgery could be considered a relative contra-indication to
PEG insertion, but in this case, previous surgery does not appear to have had
any influence whatsoever. Unfortunately the patient developed a recognised
complication (peritonitis) of a PEG tube insertion which can occur in up to 1%
of cases. When it does occur it is a
significant mortality which unfortunately has been the outcome in this case. It appears that death in this case was despite
the fact that possible further prophylactic antibiotics were given. PEG misplacement was considered, feeding
stopped and antibiotics given.
Overall, having reviewed the notes I can find no problems with the care
given to Mr Emms, the clinical decision making or the professional action of
PEG insertion."
[29] Following receipt of that report, the
procurator fiscal advised, by letter dated 6 June 2007, that the respondent's depute took the
view that in all the circumstances, including the expert report from Mr
Johnson, it was not appropriate that an FAI be held.
[30] A first hearing was due to have taken
place at the end of the summer term 2007 but it was discharged to enable a
meeting to take place between the Crown and the petitioner's agents, in the
light of Dr Johnson's report, which had been made available to the petitioner. At that meeting, the Crown confirmed its
position and the petitioner's agents continued to question the use of the PEG. They did not raise any questions about lack of
notes, failure to give insulin or antibiotic therapy at that meeting.
The Pleadings
[31] The petition sets out a number of
questions which, it is said, arise from the death of the deceased. These questions remain in the form they were
in prior to Dr Johnson's report. Although Mr Bovey submitted that some of them
could be characterised as a list of "contra-indications to the insertion of the
PEG", that does not seem right. Rather,
they can, as a whole, be summarised as including a series of questions
apparently directed to asking why the PEG was inserted, a series of questions
regarding what explanations were given to the next of kin, a series of
questions regarding the PEG insertion procedure and questions about post
insertion care relating to the lack of care records at the weekend, the failure
to administer insulin, the antibiotic therapy given and "why was the PEG
allowed to leak"?
[32] At one point (6.2(i)(g)), the averments
appear to suggest that there should have been a trial of nasogastric feeding prior
to the insertion of a PEG. No attempt to
review that averment has been made notwithstanding that Dr Johnson's report
identifies that one of the factors on which the decision to insert the PEG was
based was "repeated removal of naso gastric tubes" also referred to as the
deceased being "unable to tolerate naso- gastric feeding" in circumstances
where adequate nutrition was of particular concern on account of the deceased
being a diabetic. It is not the only
averment which calls to be reviewed in the light of that report, particularly
since Mr Bovey made it plain on more than one occasion in the course of the
hearing that the petitioner has not instructed her own report and is not, as he
put it, in a position to disagree with the terms of Dr Johnson's.
[33] At paragraph 8.2, it is averred:
"The sheriff's determination following any Fatal Accident Inquiry into Mr Emms'
death could usefully answer the matters of public concern apparently raised by
the death of Mr Emms in determining inter
alia 'the reasonable precautions, if any, whereby the death ... might have
been avoided', 'the defects, if any, in the system of working which contributed
to the death' and 'any other facts which are relevant to the circumstances of
the death'."
At times during
submissions, Mr Bovey sought to argue that there were criticisms inherent in
the questions contained in the petition.
That was at odds with the petitioner's position also being (as it was)
that she could not take issue with what is said in Dr Johnson's report. She cannot have it both ways. What, in my view, is significant is that
nowhere is it suggested in the averments that those responsible for the care of
the deceased were in breach of any duty owed under the criminal or civil law
and nowhere is it suggested that there was any breach of professional conduct
calling for disciplinary action. Indeed,
Mr Bovey candidly stated in the course of the hearing that the petitioner does
not have evidence that would justify her bringing a civil action. The three year limitation period has now
expired.
[34] Mr Bovey referred to two other matters by
way, it seemed, of explanation for the fact that the petitioner (despite having
intimated a claim at an earlier stage) has not sought to pursue a civil claim. One was that the family was not, as he put it,
"in the blame game". They would, he
said, be just as happy with an inquiry in which the outcome was that it was
determined that all was done that could have been done. The other was that any claim would be small
in value, given that there would have been no dependency element to it and it
was questionable, therefore, whether it was appropriate to claim, particularly
once account was taken of the possibility of damages being eroded by the legal
aid "clawback" that would arise if damages were awarded. That approach was what appeared to lie behind
the averments in paragraph 9.6 (substituted by way of amendment) in the
following terms:
"The Respondent was or should have been aware that the triennium for the
Petitioner making any claim for loss of society in respect of George Emms expired
on 7 September 2007, but the Petitioner has not made any such claim as it
was not practicable for the Petitioner to procure an effective investigation of
the facts by pursuing civil proceedings as her claim would be for a
comparatively small sum and it would not make practical or economic sense for
civil proceedings to be begun, in respect of such a small sum, the late George
Emms not being a person who provided support to any other person."
The Submissions of Parties
The Petitioner:
[35] The petitioner's case was that the death of
the deceased gave rise to an obligation on the part of the state to hold, of
its own motion, an inquiry which was prompt, comprehensive, that allowed for
the participation of the next of kin, that was prepared on a proper evidential
basis and that was effective in result. For
the duty to hold an inquiry, he relied on the cases of Calvelli & Ciglio v Italy, Powell v UK ,
and Silih v Slovenia. For the submission that the inquiry required
to be by the state of its own motion, he relied on the case of R (Amin) v Home Secretary.
For the specific features of the
requisite inquiry, he relied on Tarariyevah
v Russia. The key
was, he said,
that the inquiry had to be effective. It
had to allow for lessons to be learned: Byrzykowski v Poland.
[36] Mr Bovey submitted that the investigations
carried out in this case were not sufficient. Dr Johnson's opinion was not good enough, it
was not public and it had not "involved the family". For the submission that the family required to
be involved, he relied on Tarariyevah
and on paragraph 18 of Lord Drummond-Young's judgment in the petition of Mohamed Moneim Ali Fayed unrepd 12 March 2004. An
FAI would, he said, be a suitable but not the only vehicle. There was no need for an allegation of medical
negligence for the obligation to hold an inquiry to be triggered. It was more logical to require it wherever an
issue of public interest arose from a death.
In this case, there was a public interest in respect of the possible
failure in record keeping, the failure to give insulin and failures in antibiotic
therapy; Mr Bovey did not, however,
suggest that any of these factors was causative in the death. There was also public interest in, he said,
whether high professional standards were achieved and the nursing of adult patients
with learning disabilities. Again, it
was not suggested that any of these factors were causative of the death.
[37] Mr Bovey responded to the respondent's
submissions regarding alternative means of fulfilling the Article 2 obligation
and I have already referred to the petitioner's position in that regard. Mr Bovey's submission was that to look at the
availability of a civil action for damages in the present case was to confuse
such an action with the extent of the state's duty to investigate. He sought to support his submission by drawing
a comparison with systems where there was no fault liability. The court's duty was, Mr Bovey submitted, to
keep the state in compliance with
Article 2 and
that required the orders sought to be pronounced. This court required to remember that its
function was not to review the decision of the respondent but to determine
whether or not she was in breach of Article 2: Huang v
Home Secretary.
Respondent:
[38] For the respondent, Mr Moynihan submitted
that the petition was ill founded. It was proceeded with in circumstances where
no attempt had been made by the petitioner to review her position after Dr
Johnson's report became available. That
report had, to all intents and purposes, been ignored by the petitioner. To adhere to the questions posed in the
petition whilst accepting that she was not in a position to challenge Dr
Johnson's report or to put forward an allegation of negligence was inexplicable.
[39] The position was that the state, via the
respondent, had concluded that there was no need for an FAI. She had concluded that no wrongful conduct had
occurred and there was no issue of public interest to look into under the FAI
jurisdiction. Dr Johnson's report
was clear and it was significant in its rationale. The cause of death was
identified, namely that it was the result of a recognised complication of an
appropriate and properly performed procedure. There was a significant statistical chance of
such a death occurring again; that was
the nature of it being a recognised complication. As regarded the suggestion that questions
needed to be asked about the nursing notes, insulin administration and
antibiotic therapy, these were all based on facts which had been known about
since October 2004 and the CIR had looked at these matters. The deceased's family had not raised any of
them as issues of concern. The concern
that they had and raised with the procurator-fiscal was the use of the PEG. He discussed that further with Professor
Busuttil who in turn had had further discussions with staff at the hospital in
the light of which he was satisfied that there was no cause for concern about
the use of the PEG. The procurator
fiscal, on that basis, was satisfied that there was no need for him to have any
concerns. Notwithstanding that, because of the family's anxieties in that
regard, he was as a result of caution and out of respect for the family
prepared to instruct an independent report if they would agree the identity of
the appropriate expert. That
did not happen because no expert was agreed on but subsequently, when
intimation of the petitioner's legal aid application for the present petition
was received, Crown counsel decided that an independent report should be
obtained. That was done. Dr Johnson's subsequent report was clear and
unequivocal. The question was whether an
FAI should be ordered. It should be
borne in mind, in considering that question that the requirements of Article 2 were
more restricted than the width of the 1976 Act.
[40] Regarding Article 2, Mr Moynihan submitted
that its purpose was to protect life, to ensure that that protection is
practical and effective protection and to promote life in addition to avoiding
the deprivation of life. To that end,
states required to have criminal, civil and disciplinary systems in place and
they required to be backed up by sanctions.
Such systems were in place in this jurisdiction: the criminal law protected life through the
imposition of penalties, the civil law protected it through delicts and
disciplinary systems also played a part. For such systems to be effective, there required
to be a proper investigation; disciplinary measures could suffice and would
not need to be in public. Damages were a
means of enforcement. The duty was not,
though, a duty to investigate public interest issues at large. The proper focus of an Article 2 investigation
would be the consideration of the non-implementation of systems put in place by
the state for the protection of life.
Article 2 did not require the investigation of every death, only those
which gave rise to a need for the state to address its duty to promote life
whether substantively, because the death was brought about by an agent of the
state or procedurally because the state needed to review its protective systems
and consider whether its civil law remedies were working effectively. If a death was due to natural causes then the
case was not within Convention territory at all.
[41] In support of his analysis, Mr Moynihan
referred to and relied on Banks v United Kingdom ,
as showing that the purpose of the procedural obligations was to render the Article
2 right practical and effective and as illustrative of the procedural
obligations not being identical in every case. He also relied on R (Takoushis) v Inner North
London Coroner [2006] 1 WLR 461 and Calvelli
as indicating that what mattered was that the state provided the requisite
mechanism. In some circumstances, the
state required to hold a full public inquiry, as in Tarareyivah but in others, it was enough for the state to hand over
matters to the relatives, as in Calvelli.
It may not be necessary to proceed
to a full public investigation, even in the case of a death in custody: R (JL) v Secretary of State for the Home Department. Further, it was not for this court to
extend the operation of Article 2 beyond that which had been determined by the European
Court thus far.
[42] Mr Moynihan submitted that in the present
case the relevant question was whether there were grounds for thinking that the
death of the deceased may have resulted from a wrongful act on the part of the
state's agents; he accepted that the
hospital and its staff could be regarded as agents of the state. There were though no
such grounds. Whilst he accepted that not every specific
question posed in the petition had been answered by the respondent, that was
not the point. The procurator fiscal had
investigated at his own hand. Dr Johnson
had seen all the relevant documents and he had no concerns. His report provided a proper basis for the
respondent to decide not to hold an FAI. If there were any relevant residual questions,
the remaining available procedures were sufficient for Article 2 and a public
inquiry was not required.
[43] Finally, Mr Moynihan referred to the need
for a person who claims violation of a Convention right to be a victim. Such a
claim is not available for the purpose of advancing an abstract challenge. That was what the petitioner was seeking to
do. Yet the civil system of this
jurisdiction had been available to her. The
fact that it was not being used by her was not due to any defect in the system
itself. Article 2 was not, accordingly,
engaged. This being a petition for
judicial review, matters required to be considered in the light of present
facts not on the basis that something more might emerge at a future date. Those facts were that the petitioner had no
basis on which to criticise the deceased's treatment in hospital. Nothing advanced by the petitioner afforded good
grounds for questioning the correctness of the respondent's decision.
Discussion and Decision
[44] The petitioner asserts that the respondent
is in breach of her obligations under Article 2 of the European Convention on
Human Rights, paragraph 1 of which provides:
"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 by a court following his
conviction of a crime for which this penalty is provided by law."
[45] As has often been remarked, this article
of the convention is both negative and positive in aspect. Life is not to be taken away except in very
restricted circumstances but states must take positive action to protect life. The latter is liable to raise questions as to
the nature and extent of the action that a state is required to take for
compliance with the obligation. That is
the issue in the present petition.
[46] Article 2 has been the subject of
discussion in a number of the Strasbourg
cases and also in the appellate courts in England.
Much of that discussion focuses on the
positive actions required of the state where it is evident that, unlike the
death of this deceased, the death in question has been caused by force, at the
hand of an agent of the state, or in custody.
[47] The decisions reached in these cases
demonstrate a flexibility of approach. The
precise details of the positive action called for can, it seems, be adapted
according to the particular circumstances of each case. That is only to be expected of a convention
that has often been described as a living instrument. Insofar as principles of general application
can be deduced, they appear to be as follows.
[48] States have a positive obligation to
protect by law the right to life of every natural person within their
jurisdiction. To that end, they are
required to provide for a sufficient degree of protection of life in their
legal systems in respect of the acts of individuals and of state agents. How that is to be done is left primarily for
each state to determine in accordance with a margin of appreciation. The obligation to protect life will usually be
reflected in criminal offences where one person kills another, in the civil
wrongs provided by states where death occurs as a result of an act or omission
and in disciplinary provisions applying to the control and regulation of
relevant persons including the medical profession. By the imposition of these sanctions society
conveys to its members the message that the right to life is a value which it
is determined to and will protect. It is
through them that it seeks to deter those who would devalue or disregard that
right.
[49] In Scotland,
the killing of one person by another may amount to the crime of murder or
culpable homicide and there is a system in place whereby the perpetrator of
such an offence is held to account and punished under the criminal law. Under the civil law, it may be determined that
a death has been caused by an act or omission which is delictual in nature and
in that event, the defender will be found accountable and held to account. There are systems in place throughout the United
Kingdom for registration, control and
discipline of health care professionals. For instance, under the Medical Act 1983,
there is a system provided for whereby doctors require to have full
registration to carry out any unsupervised medical practice and whereby the
General Medical Council was set up and charged with responsibilities in
connection with the setting of standards for and disciplining of the medical
profession. Its work, particularly in the disciplinary
field, regularly receives widespread publicity.
[50] Secondary to the obligation to provide for
sanctions is the obligation to inquire.
The obligation to inquire is not a "stand
alone" obligation but arises in respect that states should be astute to
identify when the laws and rules it has put in place in implement of its Article
2 obligations have not been complied with and when its sanctions should be
imposed. If it does not do so, those
laws and rules are liable to become like St Paul's
sounding brass or tinkling cymbals. As
was observed by Lord
Bingham of
Cornhill in R (Amin), at paragraph
18:
"The European Court
has made plain 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 its
provisions to be interpreted and applied so as to make its safeguards practical
and effective."
[51] Against that background of generalities I
turn to look at what guidance can be gleaned from the authorities as to what is
required of states by way of investigation and inquiry. The cases considered in the various
authorities to which I was referred were evidently fact sensitive and much is
liable to turn on the particular facts of each case. That
is only to be expected in the context of a system of jurisprudence which
emphasises the need for flexibility. There
is though a clear impression that where the death in question was the result of
the use of force or could have been brought about by the act of an agent of the
state those factors are regarded as being of particular relevance and in such
circumstances, the court has been more demanding of the steps that the state
must take by way of investigation and inquiry.
The need for public investigation and
scrutiny is liable to be regarded as much more compelling in, for instance, the
case of a death in custody.
In R
( Amin), Lord Hope of Craighead put such deaths in the same category as
those where a lethal act has been perpetrated by an agent of the state and he agreed, at paragraph 62, that
wide exposure and rigorous investigation was called for. Waller LJ, in R (JL) refers to the need for an "enhanced investigation"
in such circumstances. Similar
sentiments were expressed by the European Court
in its admissibility decision in the case of Banks & Others where, at p.10, it states:
"In the context of Article 2 of the Convention, the obligation to conduct
an effective investigation into allegations of the unlawful use of force
attracts particular stringency in situations where the victim is deceased and
the only persons with knowledge of the circumstances are officers of the
State."
[52] Plainly however, the death of a patient in
hospital does not fall into the same category.
[53] I am satisfied from the terms of the
article itself and a reading of the authorities that the obligation to hold a
public inquiry does not arise in every case where a person dies whilst under
medical care. Nor will fulfilment of the
obligation necessarily require there to be a judicial inquiry. Although at an early point in his
submissions, Mr Bovey suggested that every time there was a death of a patient
whilst in the care of the medical profession, there required to be a judicial
inquiry into its cause, he later qualified that proposition so as to submit
that it is only if such a death raises any question of public interest that
that would have to occur. Even thus
qualified his proposition is, however, a far reaching one and would involve an
obligation to hold a judicial inquiry even in cases where there is no
reasonable possibility of the death having been caused by breach of the
criminal or civil law or of relevant disciplinary rules. I do not agree that an obligation of such
magnitude can be deduced from either a plain reading of Article 2 or of the
relevant authorities. So to hold would be to impose an enormous
burden on the state and to impose it in the absence of any concern that the
domestic laws which are designed to protect life have not been observed. The Strasbourg
court has recognised the need not to make unreasonable demands of states in
relation to their Article 2 obligations. In the case of Keenan v UK,
which involved a death in custody, the court confirmed that states have a
duty to secure the right to life by putting in place an effective criminal law
with provisions which seek to deter the commission of offences backed up by law
enforcement machinery and in appropriate cases to take preventive operational
measures to protect a person whose life is at risk from the criminal acts of
another but added:
"Bearing in mind the difficulties in policing modern societies, the
unpredictability of human conduct and the operational choices which must be
made in terms of priorities and resources, the scope of the positive obligation
must be interpreted in a way which does not impose an impossible or
disproportionate burden on the
authorities. Accordingly, not every
claimed risk to life can entail for the authorities a Convention requirement to
take operational measures to prevent that risk from materialising."
[54] Whilst made in the context of a death in
custody and a state's fulfilment of its Article 2 obligations by the imposition
and implementation of criminal sanctions, these comments would appear to apply
generally whenever the question of whether a state has met its Article 2
obligations arises. They seem particularly apt where what is under
consideration is not a death caused by force or at the hand of an agent of the
state but the unforced death of a patient whilst in medical care.
[55] Moving then to those cases where the court
has had to consider deaths whilst in medical care, I consider firstly what it
is that has thus far been regarded by the European Court as the appropriate
trigger for the need for a public inquiry to arise. The following narrative
appears in a number of the Strasbourg
cases to which I was referred:
"... the first sentence of Article 2, ... ranks as one of the most
fundamental provisions in the Convention and also enshrines one of the most
basic values of the democratic societies making up the Council of Europe (see,
among other authorities, McCann and
Others v the United Kingdom,
judgment of 9 June 1998, Reports of
Judgments and Decisions 1998 - III, p.1403, 36).
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 (dec.), no. 37900/97, 26 October 1999; and Powell v United Kingdom (dec.) no. 45305/99, ECHR 2000-V; see also Isiltan v Turkey, no. 20948/92, Commission decision of 22 May 1995, DR 81-B,
p.35)."
and envisages
the state taking a number of administrative measures as regards putting systems
in place which have as their objective the provision of medical care that has
the protection of patients' lives as their objective. There are a number of such systems in Scotland
and, indeed, in the United Kingdom
as a whole and it was not suggested by the petitioner that there was any
failure in that regard in this case.
It goes on and refers to the need for
there to be an independent effective judicial system. Again, it is not suggested that such a system
is not available in this case. Mr Bovey
accepted that an FAI under the 1976 Act would constitute such an inquiry. It is important to note, however, that the
above narrative then indicates when it
is that the system requires to be accessed and brought into play. That is in circumstances where there is a
need for those responsible for the death to be made accountable. That can arise only in circumstances where
there is a reasonable possibility that the death has been caused by an act or
omission for which some person or persons ought, by means of such an inquiry,
to be held to account.
[57] I find further support for the above conclusion
from the approach that has in fact been adopted in a number of the cases to
which I was referred. For instance, in Sieminska, where a patient had died
whilst under medical care, the European Court approached the case on the basis
that an Article 2 duty to hold an effective public investigation arose where "agents
of the State potentially bear responsibility for loss of life"
and do not seem to have envisaged it arising, in the case of a non violent
death in hospital or in any other circumstances in a medical case. In Calvelli,
also a medical case, the Court noted that the Italian legal system afforded
injured parties mandatory criminal proceedings, the possibility of bringing an
action in the relevant civil court and that there was a possibility of
disciplinary proceedings and commented:
"Consequently, the Italian legal system offers litigants remedies which
in theory meet the requirements of Article 2."
[58] There was an allegation of medical
negligence in Calvelli and I
recognise that the comments were made in that context but there is no
indication from the Grand Chamber that they would have regarded a case where
there had been a non violent death in hospital in which no allegation of
negligence was made as demanding of a higher standard, an approach which is inherent
in the petitioner's case.
[59] In Silih,
another case involving the death of a patient in medical care, there is
reference to the requisite procedure being one:
"whereby the criminal and civil responsibility of persons who may be held
answerable could be established."
Again, I take
it from that that it means that the requirement to hold an effective public
judicial inquiry into the death of a patient in medical care does not arise in
the absence of at least some reasonable possibility of a person or persons
responsible for the care of that patient being found in breach of duty.
[60] Then, more recently, in the case of Tarariyeva, on which much reliance was
placed by the petitioner, where the court was considering a death in custody,
the indications given of what would be required of an effective judicial system
in the investigation of such a death were made on the basis that it was for:
"... enabling liability for loss of life to be established and any
appropriate redress to be obtained."
[61] I would also refer to a passage at p.13 in
Banks in which the court responds to
a submission that there required to be a public inquiry where the deceased had
died following what was referred to as "a putative suicide in prison". His
family were
apparently
suspicious that his death was not the result of suicide but was an unlawful
killing. It is clearly relevant:
"It is not however apparent that such an inquiry would be a means of
identifying and bringing to account the perpetrator(s) of any unlawful violence
where the police investigations and inquest have been unable to do so. There is, in the Court's opinion, no general
requirement under Article 2 of the Convention to provide a public inquiry into
the general background to a suspicious death, where, as was the case in the current
application, the ordinary mechanisms have provided for an adequate scrutiny of
the incident itself."
[62] If there is no such general requirement in
respect of a suspicious death, it seems illogical to suggest that there is such
a requirement in the case of a non-suspicious death. That, however, is of the essence of the
petitioner's case.
[63] Further assistance is afforded by some of
the comments made by the Court of Appeal in the case of R (Takoushis) where, in the judgment of the court handed down by
the Master of the Rolls, it is stated:
"Before going any further we think it may be helpful to clarify what is
meant in this context by saying that article 2 is or is not engaged. For reasons which will become apparent later
in this judgment we are satisfied that article 2 is engaged in the sense that
it gives rise to certain obligations on the part of the state whenever a person
dies in circumstances which give reasonable grounds for thinking that a death
may have been caused by negligence on the part of a member of staff in an NHS
hospital."
and
"It seems to us that, however it is analysed, the position is that, where
a person dies as a result of what is arguably medical negligence in an NHS
Hospital, the state must have a
system which provides for the practical and effective investigation of the
facts and for the determination of civil liability. Unlike in the cases of death in custody, the
system does not have to provide for an investigation initiated by the state but
may include such an investigation. Thus
the question in each case is whether the system as a whole including both any
investigation initiated by the state and the possibility of civil and criminal
proceedings and of a disciplinary process, satisfies the requirements of
article 2 as identified by the European court in the cases to which we have
referred, namely (as just stated) the practical and effective investigation of
the facts and the determination of civil liability."
[64] The absence of any indication that Article
2 would be engaged in the case of a death in hospital in which there were no
reasonable grounds for thinking that it may have resulted from a wrongful act
is striking. I do not agree, as was
submitted by Mr Bovey, that a case of alleged negligence was simply being
put forward as an example of a relevant trigger. Even if it was, it remains the case that the
petitioner was not able to refer to any specific authority as support for the
proposition that Article 2 is engaged in circumstances such as those of the
present case where there are no reasonable grounds for thinking that the death
of the deceased was due to anyone having committed a wrongful act. Mr Bovey said that he suggested that his position
was based on "the Strasbourg case
law" but he was unable to refer to any authority that was directly in point.
[65] I turn, secondly, to the ways in which the
duty to inquire may be discharged where a patient has died in hospital. It seems clear that performance of the Article
2 obligation need not involve a public judicial inquiry. The adoption of other forms of procedure may
suffice. The mere availability of other
forms of procedure may suffice. In
particular, the availability of civil litigation may be enough. The latter is evident from what was said in
the cases of Powell, Calvelli, Vo, Banks,
Byrzykowski, Silih and Tarariyevah. In Powell,
where the parents of a deceased child had withdrawn their appeal to the Welsh
Office and settled a civil claim the court said:
"... by withdrawing their appeal, the applicants closed one of the options
which may have uncovered the extent of the lack of co-ordination among the
doctors concerned at the relevant time.
Of greater significance for the Court is the fact that the applicants
settled their civil action in negligence 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. Had the
civil action proceeded the applicants would have been entitled to have a full
adversarial hearing on their allegations of negligence, to subject the doctors
concerned to cross examination under oath and obtain discovery of all documents
relevant to their claim...
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."
[66] Comments to similar effect appear in Calvelli at paragraph 51, where it is
said:
"In the specific sphere of medical negligence the obligation may 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
redress, such as an order for damages and for the publication of the decision,
to be obtained. Disciplinary measures
may also be envisaged.",
in Vo at p.296 - 297, in Banks
at p.11 - 12, in Byrzykowski at paragraph 105, in March of this year, in Tarariyevah, at paragraph 75 and, in June of this year, in Silih at paragraph 118.
[67] Thus, it seems to me that the clear
current view is that it is liable to be fatal to a claim of breach of Article 2
in circumstances such as those of the present case that the claimant has either
not made use of a civil litigation avenue that is available to him or has used
it but settled his claim out of court.
The petitioner here has chosen not to go down the civil litigation
route.
[68] The petitioner's argument is, in effect,
that she should not be regarded as in the same category as a person who has
failed to make use of civil litigation that is available. She cannot, it is said, properly do so as she
has no basis upon which to allege negligence on the part of any person
responsible for the deceased's care. In
these circumstances, she calls on the state not only to investigate but to
afford her what Waller LJ termed an "enhanced investigation". The problem with that approach is that it
seeks to place a greater burden on the state in a case where it is frankly
accepted that there is no arguable case of negligence (and thus no good reason
to apprehend that there has been a breach of the civil law) than where there is
such a case. I do not see that such a
result would be consistent with the approach of the European court at least
thus far and it is not, I agree with the respondent, for this court to seek to
go further than Strasbourg in this respect; whilst its duty is to do no less than that
which to date has been required by the
Strasbourg court, it has no duty to do more
and I can see no good reason for it choosing to do so.
[69] I note further that the petitioner seeks
to elide the difficulties inherent in this petition by advancing a general
public interest case. The purpose of
Article 2 is not, however, to oblige states to investigate and inquire into all
matters relating to a death in which the public may have an interest. That may in fact happen in the course of an
FAI but that is because the scope of such an inquiry can, under the 1976 Act,
go beyond that which is required for Article 2 compliance. The secondary obligation of investigation
under Article 2 is limited, as I have already discussed. Further, no claim for violation can get off
the ground if the claimant is not a victim. That is a problem for the petitioner because
it became apparent that the petitioner's approach was that the public interest
she looked to as justification for the order sought was really as yet
unidentified. Despite references to
notes, insulin and antibiotics, Mr Bovey spoke in generalities of looking to
the possibility of the need for improvements in practice being identified. Thus, the public interest which the petitioner
had in mind was, as Mr Moynihan suggested, an abstract one. The plain impression was that she sought to
have an inquiry so as to see if something emerged that none of those who had
examined this case so far had noticed.
She is not, in these circumstances, able to bring herself within the
category of "victim" for the purposes of Article 2.
[70] I have also given consideration to what,
on the information before me, would happen at an FAI or other public judicial
inquiry, as sought by the petitioner. The
focus of any such inquiry would be the cause of death. The petitioner is not in a position to
challenge Dr Johnson's views in that regard. It follows that it would be established that
the cause of death was as he states it to have been and also that there is no
reason to have any concerns about the care and treatment of the deceased. That is, the position would remain the same
as at present. Nobody would be said to
be at fault. Nobody would be said to
have breached those laws which serve to meet the state's Article 2 obligations.
In respect that it was indicated that
there was a desire on the part of the family to know more because there may be
matters of concern, as I have indicated, what seemed to be being suggested was
that something might emerge that would show how practices and procedures might
be improved. But it is not apparent how
the petitioner would be in a position to pursue any such line when she is
unable to challenge Dr Johnson's views and the suggestion was not made in
the context of seeking to link any deficiencies in practice or procedure with
the death. Whatever the purpose of such
an inquiry, I do not see that it would be an inquiry to fulfil the Article 2 obligation
at all.
[71] As will be evident from the above, I agree
with the respondent that this petition is not well founded and will pronounce
an interlocutor dismissing it.
