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R (KHAN) v SECRETARY OF STATE FOR HEALTH, 17 June 2003
[This is an unofficial summary of this case: the full transcript is available here.]
A three-year old Muslim child died in October 1999 whilst undergoing chemotherapy treatment for cancer in hospital. This treatment involved the need for potassium infusion into the blood. The death was at first certified as natural, as a result of the cancer, and the body was released for burial without autopsy. Subsequently police investigated the death, the body was exhumed, and an autopsy carried out, which concluded that the deceased had died of potassium poisoning. The police produced a lengthy report for the coroner (who supplied it to the claimant, the deceased's father), and the hospital conducted internal inquiries, whose reports were in the end also supplied to the claimant. The NHS Trust admitted liability for negligence. However, the CPS concluded that there was insufficient evidence to prosecute anyone for the death. An inquest was set to be resumed in November 2003.
The claimant contended (1) that ECHR art 2 was engaged, (2) that the inquiries which had so far taken place did not satisfy the requirements of art 2, (3) that art 2 would only be satisfied by proper and effective participation of the claimant and his family in the inquest or any other inquiry set up by the Government, and (4) that such proper and effective participation required the provision by the state of financial assistance to enable him to be legally represented at the inquest or other inquiry (his means being above the limits set by the Government for legal aid).
The defendant claimed (1) that the ECHR was not engaged because the deceased died before the HRA 1998 came into force, (2) even if it were engaged, the requirements of art 2 had been satisfied by the inquiries that had alread been made, and (3) even if that were not so, then they would be satisfied by the holding of an inquest even without legal representation for the family.
Philip Havers QC for the claimant
Nigel Giffin QC for the defendant
Held by the Administrative Court (Silber J):
(1) the adjectival duty to investigate under art 2 applied to the death of a patient in a state hospital in unexpected circumstances; the obligation "is satisfied where the state has an effective independent system to ascertain the cause of death and has established an effective judicial system to establish the responsibility of the professionals and to obtain civil redress."
(2) if an art 2 inquiry had to be held, the defendant had a duty to fund the claimant's legal expenses at such inquiry, whether as a matter of domestic law they could be authorised under the National Health Service Act 1977 or not;
(3) The requirements of art 2 had however already been met in this case, because (i) both the police and the NHS Trust's investigations had ascertained the defects in procedures and equipment, which had now been rectified, (ii) the beginnings of justice to the bereaved had been achieved, with the scrutiny of the events leading up to the deceased's death, the meetings that had occurred, the supply albeit belatedly of the results of the extensive investigations carried out by the police and the Trust and the Trust's open offer to the claimant to answer any of his questions; and (iii) the cause of death had been established by an independent inquiry and the Trust had accepted liability;
(4) Art 2 does not require "equality of arms" between the state and the family, and nor does it require an investigation of any allegation of a "cover-up" of facts relating to a death;
(5) The state had no duty under art 2 to fund representation for the claimant at the forthcoming inquest, because (i) there were other ways in which the state could fulfil its art 2 adjectival obligation, (ii) the inquest (and in particular the witnesses to be called who were independent of the Trust) would effectively scrutinise the circumstances of the death even if the claimant were not legally represented, (iii) the Trust had already indicated that it would provide answers to the outsanding questions reduced to writing by the claimant's solicitors, (iv) even if the inquest did not deal with any outstanding matters, the claimant could ask the Secretary of State to hold an inquiry, and (v) the inquest was not adversarial proceedings for which legal representation was required to be provided;
(6) the duty to investigate under art 2 was not freestanding, but adjectival and intended to support the right to life; hence there was no duty under art 2 to investigate a death that occurred before the coming into force of the HRA 1998 (which was this case).*
*But on this point see the subsequent case of R (Hurst) v North London Coroner, 4 July 2003, DC.
NB: the decision of Silber J was reversed on 10 October 2003 by the Court of Appeal, whose decision is now reported at [2003] 4 All ER 1239.
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Last modified: Monday, 09-Aug-2004 08:53:11 BST by: Malcolm Bishop