Treatment of prisoners with drug addiction
II. RELEVANT DOMESTIC LAW 40. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation, do not entitle a plaintiff to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death. 41. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency. The scheme of the 1976 Act is compensatory and save for the sum of 7,500 pounds sterling for bereavement to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 43. The applicants complained that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey during her detention in prison. They submitted that the prison authorities failed to administer her medication for her asthma and that they did not give her medication for her heroin withdrawal. On one occasion, the prison authorities deliberately omitted giving her an injection as a punishment for her difficult behaviour. The prison authorities also permitted her to dehydrate and vomit unnecessarily and delayed unjustifiably in transferring her to a civilian hospital where she could be expertly treated. She was forced to clean up the vomit in her cell and was left lying in her own vomit. They drew attention to Judith McGlinchey’s vulnerability, the period of time over which she suffered serious symptoms and the fact that she was not a high-security risk prisoner. 44. The Government submitted that Judith McGlinchey received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide. In particular, she was provided with anti-emetic medication, which was, pursuant to the prison doctor’s instructions, injected on a number of occasions. When it was not administered on 8 December 1998, this was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. There was no evidence that she was left to clean up her own vomit, the practice being for nursing staff to take care of any such necessities. While it was noted that she was soiled with vomit on arrival at the hospital, this was explained by the speed with which she had been rushed to hospital when she collapsed, not by a deliberate refusal to clean her. B. The Court’s assessment 1. General principles 45. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1517, § 52). 46. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). 2. Application in the present case 47. The Court observes that the applicants have raised a number of complaints that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey, while the Government have maintained that she received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide. 48. As regards the allegation that the prison authorities failed to provide Judith McGlinchey with medication for her heroin withdrawal as punishment, the Court notes that it appears from the medical records that the prescribed drug Lofexidine was not administered at 12 noon on 8 December 1998. Although the applicants complained that this was withheld for misbehaviour, the Government submitted that it was in fact omitted on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. This is supported by the medication notes which indicated that blood pressure had to be monitored with this drug and a drop in Judith McGlinchey’s blood pressure had been recorded at this time. The notes also showed that she had been seen by the medical officer that morning and the drug record was signed by the doctor. 49. While there is a reference in the nursing notes, after the entry about omitting the medication, to Judith McGlinchey throwing a cup of tea across the room and then being “locked in for education”, it was explained at the inquest that it was normal procedure for prisoners who were not going to classes to be detained in their rooms during that period. The Court finds therefore that it is not substantiated that relief for her withdrawal symptoms was denied to Judith McGlinchey as a punishment. 50. As regards the allegation that Judith McGlinchey was left to lie in her vomit, the Government pointed out that this appears to derive from the comments of the hospital staff that when Judith McGlinchey arrived at the hospital her hair and clothing were matted with vomit. The medical and nursing notes indicated that Judith McGlinchey had not been seen to vomit during the night and that she collapsed, vomiting, in the morning. The Court does not find that in the urgency of her immediate transferral to hospital the failure to ensure that Judith McGlinchey was adequately cleaned discloses any element of treatment that could be characterised as degrading. As regards complaints made to her mother that she was having to clean up her own vomit, there is no substantiation of this in the hospital or prison records although one entry refers to Judith McGlinchey refusing to clean her cell. The Government, relying on a statement by the head of nursing care, submitted that this was a general tidying requirement, not in response to a vomiting incident. The Government asserted that the practice was for nurses to clean any vomit which landed on the floor or elsewhere in the cell. The Court finds that there is insufficient material before it to reach any findings on this matter. 51. As regards the allegation that asthma medicine was not administered, the Court notes that the nursing notes indicate that inhalers were provided on 7 December 1998 during the night when Judith McGlinchey was seen to be wheezing. In so far as the applicants also mentioned irregularity in administering the antibiotic medicine for Judith McGlinchey’s arm, it appears that out of twenty doses over a five day period, some four were omitted. Sister N. was unable to provide an explanation for this at the inquest, although she suggested the possibility that the nurse in question had forgotten to complete the drugs record. In either case, it indicates a regrettable lapse in procedure. However, the Court does not find any evidence in the material before it to show that this failure had any adverse effect on Judith McGlinchey’s condition or caused her any discomfort. 52. Finally, the Court considered the complaints that not enough was done, or done quickly enough, by way of treating Judith McGlinchey for her heroin withdrawal symptoms, preventing her suffering or a worsening of her condition. 53. The Court observes that she was screened by a nurse on entry to the prison on 7 December 1998. On 8 December 1998 she was seen by Dr K., the prison doctor who set up a course of treatment for her various problems. For the heroin withdrawal symptoms, he initially prescribed a withdrawal drug, Lofexidine. One dose of this drug was omitted at midday due to her low blood pressure. On 10 December 1998 she was seen again by Dr K., who prescribed an intra-muscular injection for the continuing withdrawal symptoms. He found no signs that she was dehydrated and placed more importance on his clinical impressions than her apparent drop in weight from 50 kg to 43 kg since there was known to be a discrepancy between the scales used on admission and those in the health-care centre. He was aware however that there was a potential problem and gave instructions for her weight to be monitored. On 11 December 1998 she was examined again by Dr K., who found no signs of dehydration and considered that her condition was generally stable. He ordered a further injection which was observed to have some effect as she was able to keep down fluids during the rest of the day. Oral doses of the anti-emetic drug were prescribed to continue over the weekend. The nursing notes indicate that on occasion during this period the nurses administered mild anti-nausea medication to assist Judith McGlinchey with her symptoms and were encouraging her to take fluids. 54. While it appears therefore that Judith McGlinchey’s condition from 7 to 12 December 1998 was subject to regular monitoring, with the medical and nursing staff taking steps to respond to Judith McGlinchey’s withdrawal symptoms, the Court notes that during this period she was vomiting repeatedly, taking very little food and losing considerable weight in an undefined amount. Although injections had been given twice, these had had, at most, a short-term effect and by the evening of 11 December 1998 she was vomiting again. The evidence of any improvement in her condition by this point is, in the Court’s view, slim. 55. In the two following days, the weekend, according to the staffing arrangements at the prison, Dr K. was not present. A locum doctor visited the prison on the Saturday morning, 12 December, but the records do not indicate that he saw Judith McGlinchey. If a doctor was required at any other time over the weekend, the nursing staff were expected to call out a doctor or arrange for transfer to hospital. It appears therefore that Judith McGlinchey was not examined by a doctor for two days. On 12 December 1998 her temperature, blood pressure and pulse were observed to be normal. She was however continuing to vomit and her weight was recorded as dropping to 40 kg, a further 3 kg decrease since 9 December and a possible 10 kg decrease since her admission five days earlier. Notwithstanding this further deterioration, the nursing staff did not find any cause for alarm or the need to obtain a doctor’s opinion on her condition. 56. The Government have pointed to positive signs over this period – that she slept better during the night and on 13 December took a small meal. However, she vomited on both days and after the meal in question. Dr K. emphasised that, throughout, her vital signs were within the normal range, and that a person suffering serious dehydration would be expected to show lassitude and identifiable physical symptoms which were not present in Judith McGlinchey. However, at the inquest, Dr Tobin considered that, although it had not been established by specific analysis that Judith McGlinchey was dehydrated on entry to hospital due to an inability to insert a central line, there were strong indications to that effect. While the findings could be accounted for by significant blood loss, one episode of coffee-ground vomiting would not provide an adequate explanation. 57. The evidence indicates to the Court that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith McGlinchey distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establishing Judith McGlinchey’s weight loss, which was a factor that should have alerted the prison to the seriousness of her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of the prison to take more effective steps to treat Judith McGlinchey’s condition, such as her admission to hospital to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the vomiting. 58. The Court concludes that the prison authorities’ treatment of Judith McGlinchey contravened the prohibition against inhuman or degrading treatment contained in Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 59. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 60. The applicants submitted that there was no adequate remedy for their complaints about the treatment of Judith McGlinchey in prison, or a remedy that would address the defects in management and policy which allowed the neglect and ill-treatment. Any cause of action in negligence was dependent on establishing the necessary causal link between the negligent acts and the death and/or personal injury, which was not present in this case. The treatment in issue was nonetheless inhuman and degrading treatment contrary to Article 3 of the Convention. No other remedies, which could provide compensation and an acknowledgement of the breach, existed. 61. The Government stated that remedies were available as required by Article 13 of the Convention. Judith McGlinchey could have used the internal prison complaints system to complain about her treatment. Intolerable conditions of detention were also the proper basis for an application for judicial review. The applicants had available to them a range of causes of action, including negligence and misfeasance in public office. This was not a case where national law did not provide a viable cause of action at all. The fact that the applicants could not prove negligence on the facts did not mean that there was no remedy available. B. The Court’s assessment 62. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 63. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V). 64. On the basis of the evidence adduced in the present case, the Court has found that the respondent State is responsible under Article 3 of the Convention for inhuman and degrading treatment suffered by Judith McGlinchey prior to her collapse in custody. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 in connection with Article 3 of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; Kaya, cited above, pp. 330-31, § 107; and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113). 65. While the Government referred to internal prison remedies as being available to Judith McGlinchey to complain about any ill-treatment prior to her death, the Court observes that they would not provide any right to compensation for any suffering already experienced. The Court has already found, in its decision on admissibility, that no action in negligence could be pursued in the civil courts where the impugned conduct fell short of causing physical or psychological injury. It is not apparent that, in an action for judicial review, which Judith McGlinchey could have brought alleging that the prison had failed in its duty to take reasonable care of her in custody and which could have provided a means of examining the way in which the prison authorities carried out their responsibilities, damages could have been awarded on a different basis. Although the Government argued that this inability to pursue a claim for damages flowed from the facts of the situation and not from any omission in the law, it remains the case that no compensation is available under English law for the suffering and distress which has been found above to disclose a breach of Article 3 of the Convention. 66. The question arises whether Article 13 in this context requires that compensation be made available. The Court itself will often award just satisfaction, recognising pain, stress, anxiety and frustration as rendering appropriate compensation for non-pecuniary damage. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies. 67. In this case therefore, the Court concludes that Judith McGlinchey, or the applicants acting on her behalf after her death, should have been able to apply for compensation for the non-pecuniary damage suffered by her. As there was no remedy which provided a mechanism to examine the standard of care given to Judith McGlinchey in prison and the possibility of obtaining damages, there has, accordingly, been a breach of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 69. The applicants claimed damages for the treatment of Judith McGlinchey for her estate and in respect of their own shock and distress at the suffering experienced by Judith McGlinchey. They submitted that she had been given insufficient and inadequate medical care and was thereby put through unnecessary suffering, including seven days of continued vomiting, an inability to eat or drink and acute fear and mental distress, including the belief that she was going to die. They also referred to their belief that she had been forced to clean up her own vomit and punished by the withdrawal of medication. They also referred to the distress and anguish which they suffered by the realisation of the conditions in which their daughter/mother spent her last conscious days and hours. They claimed a sum of 20,000 pounds sterling (GBP). 70. The Government made no comment on these claims. 71. The Court notes that it has made a finding of a violation of Article 3 in respect of shortcomings in the treatment which Judith McGlinchey received while in prison. It did not find it established however that Judith McGlinchey had been forced to clean up her vomit or that medication had been withheld by way of punishment. Noting that much of Judith McGlinchey’s suffering derived from the heroin withdrawal itself, but that the failure of the prison authorities to take more effective steps to combat her withdrawal symptoms and deteriorating condition must have contributed to her pain and distress, the Court decides, making an assessment on an equitable basis, to award a sum of 11,500 euros (EUR) in respect of Judith McGlinchey’s estate and EUR 3,800 each to the applicants, making a total of EUR 22,900. B. Costs and expenses 72. The applicants claimed GBP 5,480.54 in respect of legal costs incurred in domestic procedures. This included the costs of being represented at the inquest and seeking advice about the cause of Judith McGlinchey’s death and the existence of any domestic remedies. They claimed GBP 844.43, inclusive of value-added tax, in respect of costs and expenses in bringing the case to the Court in Strasbourg. This made a total claim of GBP 6,324.97 73. The Government made no comment on these claims. 74. The Court observes that the costs incurred in obtaining legal advice and attending the inquest were connected at least in part in regard to issues as to the cause of Judith McGlinchey’s death and any possible responsibility of the authorities. The complaint under Article 2 of the Convention however was not pursued before the Court. Making an assessment on an equitable basis, the Court awards EUR 7,500 under this head. C. Default interest 75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court concluded from the evidence before it, in particular the medical records, that the applicants’ allegations that the prison authorities had failed to provide their relative with medication for her heroin-withdrawal symptoms and locked her in her cell as a punishment were unsubstantiated. However, with regard to the complaints that not enough had been done, or done quickly enough, to treat the applicants’ relative for her heroin-withdrawal symptoms, the Court found that, while it appeared that her condition had been regularly monitored from 7 to 12 December 1998, she had been vomiting repeatedly during that period and losing a lot of weight. Despite some signs of improvement in her condition in the following days, the Court concluded from the evidence before it that by 14 December 1998 the applicants’ relative had lost a lot of weight and become dehydrated. In addition to causing her distress and suffering, this had posed very serious risks to her health. The Court found that the prison authorities had failed to comply with their duty to provide her with the requisite medical care, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention.