Medical negligence and liability of health professionals
THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION 42. The applicant complained that she had no effective domestic mechanism whereby issues of civil liability could be determined in respect of the alleged negligent care of her deceased son and through which she could have obtained compensation for the non-pecuniary loss sustained by her including grief, loss and distress. She invoked Article 2 alone and in conjunction with Article 13 of the Convention. The parties’ observations, summarised below, were filed prior to the delivery of the Supreme Court judgment in Rabone (paragraphs 40-41 above). 43. Article 2, in so far as relevant, reads as follows: “2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Article 13 reads as follows: “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.” 44. The applicant died after introducing the present application and her daughter, Ms King, wished to pursue the application on her behalf. The Government did not make any comment. The Court considers that the conditions for striking the case out of its list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at Ms King’s request ( Arsenić v. Slovenia (nos. 22174/02 and 23666/02, §§ 17-19, 29 June 2006). 45. The Government maintained that the applicant had at her disposal an effective remedy pursuant to section 7 of the HRA, under the 1976 Act and/or under the 1934 Act. The applicant argued that those remedies were not available to her. The Court considers that the question of the availability of effective domestic remedies prior to the above-described Supreme Court judgment in the Rabone case of February 2012 is closely linked with, and should be joined to, the merits of the related complaints under Articles 2 and 13 of the Convention. Even assuming that the Rabone judgment means that the applicant would now have available to her an effective remedy (an action for damages under the HRA within the time-limit for which section 7(5) of the HRA provides), the Court notes any such remedy was not clarified by the Supreme Court until over 4½ years after her original HRA action was struck out and, most importantly, until 4 years after she introduced her application to this Court. The Court does not consider that there exist exceptional circumstances which could compel the applicant to exhaust any such remedy at this point ( Baumann v. France, no. 33592/96, § 47, 22 May 2001; Brusco v. Italy, no. 69789/01 (dec.), 6 September 2001; and, more recently, Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010). 46. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 1. The applicants’ observations 47. The applicant argued that, while a mechanism for establishing any liability and compensation was crucial to the fulfilment of the obligations under Articles 2 and/or 13, such a mechanism was not available to her. 48. In the first place, her action under the HRA was struck out on a point of law without any consideration of the evidence or the facts, the County Court finding that there was no legal basis for it given settled case-law. As pleaded by the State defendants and as found by the County Court, there was clear case-law at the time which distinguished between the positive obligation owed to detained and non-detained patients. Two legal opinions confirmed that an appeal against the County Court’s decision had no prospects of success and, on receipt of one opinion, the Legal Services Commission withdrew legal aid. Nor was there any reason to appeal from the County Court following the Court of Appeal decision in Savage. That decision re-affirmed the distinction between the State’s positive obligation to detained and non-detained patients, a distinction maintained by each relevant domestic decision thereafter. The Court of Appeal judgment in the above-cited Rabone case definitively precluded any argument that there was any prospect of a successful appeal from the decision of the County Court. 49. Secondly, while the Trust and the Council accepted duties of care to Mr Reynolds, they were unenforceable since the applicant, either as a claimant in her own right or on behalf of the estate, had no viable cause of action where there was no dependency claim and where the death had been instantaneous. Whether or not she was an executor of Mr Reynolds’ estate (and she was not), any claim on behalf of the estate for funeral expenses would not have been viable as it would not have satisfied any cost/benefit analysis required to enable the grant of legal aid. Any damages for pre-death pain and suffering would have been minor given the instantaneous nature of the death. In short, in the absence of any pecuniary claim (a dependency claim) and where the non-pecuniary loss was limited to bereavement under the 1976 Act, the value of any such claim would be insufficient to enable the applicant to enforce the substance of a complaint regarding death. 50. Thirdly, no other mechanism (Inquest or complaints/disciplinary mechanisms) could have established civil liability and awarded damages for non-pecuniary loss for bereavement. The internal inquiry was not independent and it did not identify liability, its conclusions were limited to reinforcing glass and it did not satisfactorily address Mr Reynolds’ placement in the ISMOS Unit. The Inquest could not establish any civil liability and it did not even address whether Mr Reynolds should have been placed at the ISMOS Unit. It established the immediate cause of death and not the wider causal factors (such as negligent care) which might be contributory. The enhanced Middleton investigation was not considered necessary where the potential failure related only to clinical care of a non-detained patient and was not of such a character as to reach the bar for a potential finding of gross negligence. 2. The Government’s observations 51. The Government argued that the applicant did not have an arguable claim of a violation of Article 2 of the Convention. She was not suggesting that the medical personnel knew or ought to have known of a risk of suicide but rather, as alleged before the County Court, that they had been negligent in their assessment and care of her son. However, even if there had been medical negligence, the Powell decision made it clear that this would be insufficient to establish a violation of Article 2 of the Convention. 52. Even if there were such an arguable claim, the Government pointed to a number of mechanisms which together satisfied the Article 2 obligation to implement a legislative and administrative framework to protect life. 53. In the first place, the Inquest was prompt, public and independent and the family was entitled to be legally represented. Numerous relevant witnesses were heard and were questioned by the next-of-kin. The latter could have requested the Coroner to hear further witnesses or to put additional questions. The Inquest identified and exposed to the public the circumstances surrounding his death and the persons involved. 54. Secondly, the internal inquiry further elucidated the circumstances of the death and the steps to be taken to avoid any future similar deaths. 55. Thirdly, and as to the accountability objective of the Article 2, the Government accepted that neither the Inquest nor the Inquiry determined any individual responsibility. Criminal responsibility was not alleged and there was no complaint about a failure to bring disciplinary proceedings. Moreover, the Government argued that the applicant had access to a mechanism to establish any civil liability. 56. In this respect, the applicant had access to proceedings under the HRA whereby her allegation of the State’s liability under Article 2 was examined. The County Court did not strike out the case on the basis of the High Court judgment in Savage as the applicant claimed. The issue in Savage was whether the Osman “operational duty” applied to a mental health detainee, whereas the applicant’s case amounted to a claim that ordinary clinical negligence was sufficient to establish a breach of Article 2 by the State. The County Court concluded that it was unlikely that any appeal in Savage would render the Trust and Council liable under Article 2 because an allegation of ordinary negligent medical care was insufficient of itself to establish a breach of Article 2 of the Convention ( Powell v. the United Kingdom, no. 45305/99, (dec.) 4 May 2000). Accordingly, any future finding in Mrs Savage’s favour by the Court of Appeal would not have changed anything for the applicant who alleged ordinary clinical negligence. The applicant therefore had a remedy which she used and it was found that she did not have a good case under Article 2. Her HRA action demonstrated not a breach of Article 2 but compliance with it. 57. If the applicant considered that the County Court had erred, she could have appealed immediately or sought leave to appeal out-of-time following the judgments on appeal in the Savage case. Counsel’s advice on chances of success could only exempt an applicant from exhausting a remedy when the subject was settled law but, when the applicant’s case was struck out, the scope of the positive duty under Article 2 to protect voluntary mental health patients from suicide was not settled law. At the time of the County Court decision, there was no Court of Appeal or House of Lords’ judgment on the issue as the Court of Appeal judgment in Takoushis concerned only investigative obligations. The matter was not even clear after the House of Lords’ judgment in Savage and it was resolved by the Court of Appeal in the Rabone case. 58. Moreover, the applicant could have taken civil negligence proceedings. She could have applied to be an executor of the deceased’s estate and brought proceedings, on behalf of the estate, as regards any claim vested in the estate at the time of death and which could have been brought by the deceased. Such a claim could have included claims of medical negligence and of a breach of an occupier’s common law duty to protect (the Occupiers Liability Act 1957) and both defendants had accepted in the HRA action that they owed such duties to Mr Reynolds. Any breaches of those duties would render compensation for pecuniary and non-pecuniary loss payable, the amount of damages depending on the level of pecuniary and non-pecuniary damage sustained by Mr Reynolds as a result of the alleged breach of duty of care in accordance with the established principles of law concerning damages in tort: limited damages would be simply a reflection of limited pecuniary and non-pecuniary loss. Even if damages would not be substantial, this would not amount to a bar on obtaining a judicial determination on liability in principle or in practice, the Government referring to the above-described settlement in the Rabone case. 59. Finally, and as regards Article 13, the Government reiterated that the applicant had a remedy under the HRA and a breach of Article 13 of the Convention was not established just because she had been unsuccessful on the merits of that action. 3. The Court’s assessment 60. The Court has examined the applicant’s complaint under Article 13 in conjunction with Article 2 of the Convention. In particular, it has considered whether there is an arguable claim of a breach of Article 2 of the Convention and whether civil proceedings for establishing any liability and, if so, awarding non-pecuniary damages were available to the applicant in that respect ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, §§ 123-133, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 96-102, ECHR 2002-II; and Bubbins v. the United Kingdom, no. 50196/99, §§ 173/176, ECHR 2005 ‑ II). 61. As to the existence of an “arguable claim” for the purposes of Article 2, the Court notes as follows. The applicant’s son had a history of schizophrenia and was known to the health services. Having suffered a relapse of his psychotic symptoms, including voices telling him to kill himself, he was assessed as a low suicide risk and transferred as a voluntary patient by the NHS Trust to an ISMOS Unit for which the Council was responsible. At one point during the evening before he died, he was found wandering outside the ISMOS Unit and encouraged by staff to return, which he did. Moreover, the applicant’s son later broke a window in the Unit and fell to his death from the sixth floor of the building occupied by the Unit. The Coroner, concerned as he was about a psychiatric facility on a sixth floor, reported the incident to the NHS Trust under Rule 43 of the Coroner’s Rules 1984. The windows have since been reinforced and the long term plan is to transfer the ISMOS Unit to a two-storey building. In such circumstances, the Court considers that there is an arguable claim that the position of the applicant’s son was such that an operational duty arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled. 62. As to the compensatory remedies available, it is common ground that the Inquest, while constituting a detailed examination of the circumstances of the death, could not examine individual civil liability (paragraphs 15 and 27-28 above). It was not suggested that there was any question of criminal or disciplinary responsibility in the present case. The internal inquiry held was not independent, the NHS being responsible for the Trust. 63. As to an action under the HRA on which the Government first relied, the Court recalls that the applicant’s HRA action, alleging negligence and a violation of Article 2 of the Convention, was struck out under Rule 3.4 of the Civil Procedure Rules on the basis that she had no reasonable grounds for bringing the claim. The Government argued that this amounted to a rejection of the merits of her negligence case. The applicant maintained that the HRA action was a limited remedy which did not apply to her case. The Court recalls that the Court of Appeal had found in 2005, in the above-cited Takoushis case which concerned allegations of negligence as regards a voluntary mental health patient, that the Powell decision meant that the relevant Article 2 substantive responsibility was limited to cases where gross negligence or manslaughter was alleged. The Government suggested that Takoushis was not clear precedent because the core dispute therein concerned the investigatory duties under Article 2. However, the Court of Appeal in Takoushis explained why its view on the applicability and scope of Article 2 protection was important in that case and subsequent domestic courts did not treat as obiter the Takoushis ruling on the Powell substantive obligation under Article 2. On the contrary, the High Court in Savage later accepted that obligation as outlined in Takoushis and went on to apply it to a case concerning the death of an involuntary patient due to alleged negligence. The County Court therefore applied this case-law from two superior courts to the present applicant’s case (death of a voluntary patient due to alleged clinical negligence) and found it clear from that case-law that the parameters of the applicant’s case fell outside the scope of an action under the HRA alleging a violation of Article 2 of the Convention. Indeed the County Court considered the case-law to be so certain in these respects that an appeal in the Savage case did not raise sufficient prospects of success for the applicant’s case as to require it to be adjourned pending the Savage appeal. The applicant’s case was not therefore rejected as failing to disclose negligence but rather as not disclosing a cause of action under the HRA and, in particular, the County Court applied contemporary domestic case-law to the effect that she had no cause of action under the HRA about the allegedly negligent care and death of her son as he was a voluntary psychiatric in-patient. Moreover, the Court does not accept that any purpose would have been served by the applicant lodging an appeal immediately after the County Court decision if she considered it to be erroneous or by lodging an appeal thereafter on an out-of-time basis following the appeals in the Savage case. While the House of Lords in the Savage case (2008) later confirmed the existence of an Article 2 “operational duty” to suicide-risk patients, the Court of Appeal in Rabone found in 2010 that any such duty did not concern voluntary psychiatric patients. It was not until February 2012 that the Supreme Court in Rabone definitively confirmed that an operational duty to protect could arise as regards voluntary psychiatric patients such as the applicant’s son and, further, that parents would be entitled to damages for non-pecuniary loss following the death of a child in such a situation. Accordingly, while the underlying reasoning may have changed over the years, prior to February 2012 the applicant did not have an action for damages under the HRA for her non-pecuniary loss following the death of her son. 64. As to a civil action in negligence pursuant to the 1934 and 1976 Acts on which on which the Government further relied, it is noted that, in their written pleadings in the applicant’s HRA action, the Trust and Council accepted that they owed common law duties of care to the applicant’s son (paragraph 21 above). 65. However, it is also noted that, as the mother of an adult child and a non-dependant, the applicant would have been unable to claim damages under the 1976 Act on her own behalf. Moreover, the Court does not consider that a negligence action on behalf of the estate of her son was available to the applicant even assuming she could have applied to be an executor of that estate and that any such award to his estate could constitute compensation for the applicant’s bereavement. The survival of any such action on behalf of the deceased and in favour of his estate is governed by the 1934 Act. Given the circumstances of the applicant’s son’s death (which was instantaneous), there is no evidence that he inflicted physical injury on himself before the moment of his death. While it is likely that he suffered significant anguish and fear, there is no evidence that this would be regarded as psychiatric “injury” in the sense recognised by domestic law. The most therefore that could be recovered under the 1934 Act on behalf of the deceased’s estate would have been the funeral expenses (as regards the 1976 and 1934 Acts, see the above-cited Keenan judgment, § 129 and Bubbins v. the United Kingdom, no. 50196/99, § 172, ECHR 2005 ‑ II). It must be concluded therefore that the applicant had no prospect of obtaining adequate compensation for the non-pecuniary damage suffered by her as a result of the death of her child (either directly or as a beneficiary of her son’s estate). 66. Moreover, and contrary to the Government’s argument, this lack of compensation would itself reduce access to the civil remedy. The lack of compensation for non-pecuniary damage would almost certainly have had a negative bearing on any application by the applicant for legal aid to take civil proceedings and the Government did not dispute that she could not afford legal representation or that she would have required legal aid to effectively pursue any such negligence action (the above-cited Bubbins judgment, § 172). 67. The Court has therefore concluded that the present applicant did not have available to her, prior to the introduction of her application to this Court, civil proceedings to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death. 68. The Court therefore concludes that there has been a violation of Article 13 in conjunction with Article 2 of the Convention and, consequently, it dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies. 69. It is consequently not necessary also to examine the same complaint under Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. 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.” 71. The applicant claimed that she suffered bereavement and distress following her son’s death which was compounded by her distress and frustration at the failure of the State to provide an adequate civil remedy. She claimed 25,000 euros (EUR) in respect of non-pecuniary damages, plus any tax or interest payable on that amount. 72. The Government argued that a finding of a violation would constitute sufficient just satisfaction. Alternatively, since her complaint concerned a procedural aspect of Article 2 only, the applicant could not, as a matter of principle, seek to recover damages for her bereavement arising from the death itself. In the alternative, the sum claimed was excessive and the Government left to the Court the assessment of any sum which it considered appropriate to award under this head. 73. The Court has found a violation of Article 13 in conjunction with Article 2 (paragraph 67 above) in that domestic law did not afford a civil remedy to the present applicant enabling any liability to be established and any appropriate redress to be obtained as regards the non-pecuniary loss sustained by the applicant on the death of her son. The Court notes that the applicant did have the benefit of a detailed Inquest which elucidated the central facts of the present case but it accepts that the lack of civil remedy likely caused her some frustration and distress so that the Court awards the applicant the sum of EUR 7,000, plus any tax that may be chargeable on this sum. B. Costs and expenses 74. She claimed the sum of GBP 29,826.09 for the costs and expenses incurred before the Court comprising GBP 4387.34 in solicitors’ fees, GBP 13,453.75 in barrister’s fees and GBP 11,985.00 in Queen’s Counsel’s (“QC”) expenses. Vouchers were submitted. The Government considered the claim excessive. They argued that it was unnecessary to brief both a barrister and a QC, that the barrister’s claim for more than 35 hours of work to reply to the Government’s observations was excessive, that there was no breakdown of the solicitor’s and the QC’s costs and that the latter’s claims were excessive when viewed against the claim for the barrister’s work. 75. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 for the proceedings before the Court, plus any tax that may be chargeable on this sum. C. Default interest 76. 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 held that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 2 (right to life) of the Convention. It noted in particular that it was not until February 2012 that the UK Supreme Court had confirmed in a separate case that an operational duty to protect suicide-risk patients could arise as regards voluntary psychiatric patients such as the applicant’s son, and that parents would be entitled to non-pecuniary damage following the loss of a child in such a situation. However, prior to that date the applicant had not had any remedy available in respect of her non-pecuniary loss.