CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 mai 2000

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Costa , President ,   Mr   A.B. Baka ,   Sir   Nicolas Bratza,   Mr   Gaukur Jörundsson ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 17 June 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:                 THE FACTS The applicants, Andrew George McGlinchey and Natalie Jane Best, born in 1985 and 1990 respectively, are the children of Judith McGlinchey (born in 1968). The applicant Hilary Davenport, born in 1945, is the mother of Judith McGlinchey. They are British nationals. They are represented before the Court by Mr Lomax, a solicitor practising in Leeds. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 3 January 1999, Judith McGlinchey died in Pinderfields Hospital, Wakefield, West Yorkshire, whilst in the care of the Home Office department of the Government of the United Kingdom as a convicted prisoner. Judith McGlinchey had a long history of intravenous heroin addiction and was asthmatic, for which she had been admitted to hospital on six occasions during the previous year. It is purported that Judith McGlinchey had, prior to being imprisoned, told her mother, who now cares for her children Andrew and Natalie, that she wanted rehabilitation assistance to rid herself of the heroin habit. She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays. After having been convicted of theft, Judith McGlinchey was sentenced at Leeds Magistrates’ Court, on 7 December 1998, to four months’ imprisonment, despite an alternative proposal for a Probation Order with a condition that she be treated for her addiction. Thereafter, she was detained at HMP New Hall, Wakefield. The applicant stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin. At the first reception health screening on 7 December 1998, Judith   McGlinchey was noted as not seeming excessively withdrawn, depressed or anxious. She weighed 50 kg. She complained of swelling to her left arm, withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing, and was kept in the health care centre pending examination by a doctor. That evening, Judith McGlinchey telephoned her mother complaining of her infected arm and asthma. She was given paracetamol and inhalers to help her through the night.         The prison medical records showed thereafter that she was complaining of withdrawal and that she was vomiting repeatedly. The records consisted of the continuous medical record, prescription and administration charts and the nursing assessment notes. Her blood pressure and pulse were checked each day and found to be within normal limits. On 8 December, Judith McGlinchey was examined by Dr K., the prison senior medical officer, who prescribed antibiotics for her arm, inhalers for her asthma and intra-muscular injections to appease the symptoms of heroin withdrawal. The nursing notes stated that the applicant threw a cup of tea across the cell, was locked in for education and that during the night she was very loud and demanding. The prescribed drug for withdrawal (Lofexidine) was not administered at 12 p.m. The applicants allege that this was also as a punishment, while the Government submit that it was on the instructions of the doctor due to a drop in Judith’s blood pressure. On 9 December 1998, the record noted that she remained demanding. She had been told to clean her cell prior to education, which she refused. She was locked in and declined every meal. In the evening, her weight was recorded as 43 kg. She was noted as vomiting during the evening and complaining of vomiting during the night. On 10 December 1998, Judith McGlinchey was continuing to vomit. She called her mother in tears, complaining that despite having been given an injection, she could not stop vomiting and was getting no other medical support to assist her in coming off drugs. She said that she was having to clear up her own vomit and thought she was going to die. The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area. On 11 December 1998, she was recorded as keeping down a cup of tea and   glass of juice but was vomiting again during the afternoon and evening. At 6.10 a.m., she was found smoking in bed and when asked what she had had replied “nothing”. The next day, she was found to be “opiate positive”. The doctor examined her on two further occasions on 10 and 11   December 1998, prescribing anti-emetic medication, of which she received an intra-muscular injection on 11 December 1998. The Government state that the doctor checked her for signs of dehydration but did not find her to be dehydrated. On 12 December 1998, she continued to vomit and suffered from diarrhoea and abdominal discomfort. She was found with her fingers down her throat and vomit on her hand. Her weight was recorded as 40 kg. She ate nothing. During the night she was observed to be vomiting again. On 13 December 1998, according to the nursing entries, there was no vomiting complained of or witnessed apart from twice at the beginning of the night. It was also recorded that she ate a small dinner and slept for long periods that night. There were no entries in the medical record on this day. However, at 8.30 a.m. on 14 December 1998, the following was noted in the continuous medical record: “... went to see inmate in cell, as she got out of bed she collapsed against me vomiting (coffee ground). Laid on floor in recovery position and summoned help. Patient appeared unresponsive and appeared to be having a fit. Ambulance called (999). Regained consciousness, still vomiting, 2 nurses helped her onto bed. Oxygen in situ. ECG taken. Unable to obtain pulse or BP. Unable to gain IV access due to abscesses on arms and previous drug use. Next of kin rung at 0915 hours at Judith’s request, unavailable, son to pass on message within half an hour. Taken to hospital by ambulance. Ambulance arrived at 0845 hours and left at 0853 hours for Pinderfields General Hospital, Wakefield.” Lots of coffee ground vomit [altered blood in the stomach] was recorded as being found on her bed. Pinderfield Hospital medical records showed that she was admitted at 9.18 a.m. Her mother was informed around that time that Judith was in hospital and that she was poorly but had stabilised. She was recorded as being: “drowsy but movable and responsive. Staff nurse informed me that the white cell count was raised, with abnormal kidney and liver function...possible diagnosis of... drug abuse.” Her mother later learned from the nursing staff that on admission Judith’s hair had been matted with vomit. On 15 December 1998 at 8 a.m., the following entry was recorded: ‘Transferred to Ward 7, Ward 7 contacted in the middle of an emergency with her, arrested, but has been resuscitated (sic) and now is having a blood transfusion and an airway [made]...” At 10.30 a.m.: “... Ward 7 contacted to ask if relatives have been informed of deterioration, they are with her now, they are going to reassess her in half an hour and if no improvement turn off the ventilator.” The hospital informed the family that Judith was in a critical condition and might have suffered brain damage due to the cardiac arrest. Her liver and kidneys were failing and they could not stabilise her. She was ventilated by hand as there were no beds on the Intensive Care Unit (ICU). The doctors said that they would withdraw the medication to see if she came round and breathed on her own and, if not, they would leave her. The Roman Catholic Priest was called. The family was advised to say goodbye to Judith and did. She then recovered a little and at 7.15 p.m. she was moved to Bradford Royal Infirmary where there was an ICU bed available. She was stable on the ICU Ward although she was kept on life support and was heavily sedated. On 16 December 1998 at 6.45 a.m., Judith’s condition was recorded as stable but very poorly. At 1 p.m. she was given a very poor prognosis. By 2   p.m. on 18 December 1998, her condition had improved a little. She remained on a ventilator, though sedation was then turned off. She made jerking movements at times and appeared to be waking up slowly. On the night of 23 December 1998, she opened her eyes and responded to light, although the brain scan did not reveal any activity. On 27 December 1998, Judith McGlinchey was transferred to Pinderfields General Hospital to the High Dependency Unit and from there to Ward 7. It was recorded on 31 December that although her eyes were open, she remained unresponsive and in a critical condition. On 2 January 1999, her mother visited with the children. Her eyes were open but she appeared dark yellow in colour and was doing jerky movements associated with brain damage. On 3 January 1999, the hospital advised the family to attend the hospital immediately. The prison medical record stated that Judith McGlinchey died at 1.30 p.m. The autopsy report, following the post mortem examination of 4   January   1999 noted that Judith McGlinchey weighed 41 kg. It stated that although one symptom of heroin withdrawal can be vomiting, the cause of the applicant’s vomiting was never fully established. Episodes of severe vomiting could have caused a tear in the upper gastro-intestinal tract (‘a Mallory Weiss tear”) though this would most likely have healed by the time she died. This was the most likely cause of haemorrhaging in the stomach which could present as “coffee ground” vomiting. If she had lost a substantial amount of blood, rendering her anaemic, this could have triggered the cardiac arrest. The cardiac arrest precipitated hypoxic brain damage and multi-organ failure with an inevitably fatal outcome. In a letter dated 18 January 1999, the Coroner informed the family that an Inquest would be held before a jury. At the inquest, evidence was given by the prison doctor, Dr K., consultants from Pinderfields and Bradford hospitals and Judith’s mother. The applicants submit that it was conceded during the inquest that Judith had not been monitored in the prison hospital to ascertain her fluid intake and output. While Dr K. claimed that she had not been dehydrated when he last saw her on 11 December 1998, the doctors from Pinderfields stated that she was suffering from dehydration and her blood was so short of fluid that analysis was difficult. It also emerged that the scales used to weigh Judith in prison were inaccurate and incompatible, those used on reception being 2 to 3 pounds out compared with those used subsequently. Notwithstanding that antibiotics had been prescribed for her septic arm, these had not been given to her over a number of days. Nor were there entries showing the administration of anti-emetic medicine over the last two days Judith was in the prison. It was revealed that Dr K. did not work in the prison on weekends and was not present therefore on 12 and 13 December before Judith’s collapse. A part-time doctor attended on Saturday mornings and the prison depended on calling a doctor on agency if required. This explained the lack of any record in the notes for 13 December. The Coroner invited the jury to return a verdict of death through natural causes or an open verdict. The jury returned an open verdict unanimously. Legal aid was granted to the three applicants to pursue domestic remedies for compensation. Their solicitors sent a Notice of Issue, under cover of a letter dated 12 February 1999, to the Treasury Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of Judith McGlinchey. In a report dated 13 September 2000, the doctor consulted by the applicants stated inter alia as follows: “It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme, I would, however, be very unhappy about managing anyone who was vomiting repeatedly, without the use of intravenous fluids, the intravenous administration of anti emetic drugs and the facility to monitor blood chemistry frequently. ... Judith was severely under weight. Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting, from whatever cause was likely to cause a serious imbalance of her blood chemistry very quickly. Apart from electrolyte disturbance and dehydration, she would be very likely to have had difficulty maintaining an adequate blood sugar level, as she would have had no reserves in the form of stored carbohydrate substances within the body, that could have been utilised, when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting. In such circumstances a vicious circle can occur. A low blood sugar level itself can cause more nausea and vomiting. Multiple metabolic pathways can be interfered with. The subject can become irritable. The level of consciousness may be severely reduced and coma can even occur. Intravenous access is often very difficult in intravenous drug abusers, even for clinicians such as anaesthetists who routinely insert needles. Central lines are likely to be needed. These are special long catheters, often with more than one lumen, that are inserted into major blood vessels close to the heart. I would not expect the average prison medical officer to be proficient in inserting such a line. It is preferable for these lines to be inserted in hospital, by personnel with the necessary skills. After insertion, the correct positioning ... needs to be checked by X-ray before it is used to administer drugs and fluids. Once inserted their maintenance requires skilled, aseptic nursing care... I would be inclined to attribute the agitation and apparent lack of co-operation displayed by Judith after her admission... and before her second collapse to cerebral irritation. Cerebral irritation is often seen following a period of cerebral hypoxia. Certainly, a degree of cerebral hypoxia probably occurred at the time of her collapse <in prison> and continued up to the time that resuscitation was underway at Pinderfields... The bleeding that occurred, following a period of persistent and violent vomiting, could certainly have been caused by a Mallory Weiss tear as suggested ... in the autopsy report. If Judith had been admitted to hospital earlier, it might still have proved difficult to control the vomiting and in view of her poor general and nutritional state, if the cause of her bleeding was a Mallory Weiss tear, this might still have occurred, but she would not have had such a degree of dehydration and/or biochemical disturbance, and the consequences of such an occurrence would probably have been less serious. Alternatively, if her vomiting had been brought under control at an earlier stage, the subsequent sad sequence of events might have been prevented.” In his opinion of 30 October 2000, counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between Judith’s death and the negligent care afforded to her in custody. They are no longer pursuing their claims in negligence. B.     Relevant domestic law and practice 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. 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 GBP 7,500 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.     COMPLAINTS Article 2 Prior to the receipt of an expert medical report and advice from counsel, the applicants complained under Article 2 of the Convention, that whilst in the custody of the United Kingdom Government, necessary steps to safeguard the life of Judith McGlinchey were not taken. In particular they alleged that she was left without appropriate monitoring, treatment and action to ensure that she did not deteriorate to the extent that she did in New   Hall Prison before being taken to hospital. It was submitted that that neglect was a causal factor in Judith McGlinchey’s death such that, had the appropriate care been given, she would not have died. Article 3 The applicants complain that Judith McGlinchey was subject to inhuman and degrading treatment in prison. They allege inter alia that she was not given adequate support in her withdrawal from heroin, that she was left to wallow in her own vomit, that medication was not given as necessary or as prescribed and that medication was withheld on one occasion as a punishment. She was not given the appropriate monitoring, treatment or interventions necessary to ensure that she did not deteriorate to the extent that she did. Though she exhibited symptoms of opiate withdrawal, vomiting, asthma, unstable blood pressure and an unstable pulse rate which warranted close supervision and medical intervention, she was neglected and allowed to suffer and deteriorate unnecessarily. Article 13 The applicants complain under Article   13 of the Convention that there is no satisfactory remedy available to them under domestic legislation to deal with the structural defects of management and policy that allowed the neglect, mistreatment and death in custody.             THE LAW 1.     Article 2 of the Convention The applicants originally invoked Article 2 of the Convention, alleging that neglect in the treatment of Judith McGlinchey caused her death. Since the receipt of medical opinion and counsels opinion indicating that there was insufficient evidence to establish the necessary causal link between death and the negligent care in custody, the applicants have not maintained this complaint and concentrated on their complaints under Article 3 of the Convention. Consequently, the Court has not examined this complaint further. 2.     Article 3 of the Convention The applicants have complained that Judith McGlinchey suffered inhuman and degrading treatment in prison, invoking Article 3 of the Convention, and alleging that the prison withheld medication for punishment reasons, failed to give Judith required treatment and delayed her transfer to hospital, leaving her to lie in her own vomit. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” (a)     Exhaustion of domestic remedies The Government submit that the applicants have not exhausted domestic remedies as required by Article 35 § 1 of the Convention, arguing that proceedings in the courts provided a mechanism for establishing the alleged negligence of the prison authorities and for obtaining damages. As two of the applicants were Judith’s children, they would have been able to claim dependency under the Fatal Accidents Act 1976. Though the applicants did not pursue an action due to medical and legal advice that there was insufficient evidence to establish a necessary causal link between the death and the alleged negligent treatment, the mere fact that there were doubts about the prospects of success did not exempt them from the requirements of exhaustion or detract from the effectiveness in practice of the remedy offered by the domestic system in respect of any injuries suffered by Judith McGlinchey. The applicants submit that any cause of action in negligence was dependent on establishing the necessary causation between negligence and death and/or personal injury. In the absence of medical evidence, they had no cause of action. However, they also argue that negligence proceedings would not have offered redress for the pain, suffering and degrading treatment suffered by Judith prior to her death, as under English law there has to be proof of injury, physical or psychiatric, as a consequence of the negligence. They were not in a position to establish such causation, though the treatment of Judith was of itself inhuman and degrading, irrespective of the absence of proof of damage. In that context, they referred to the failure to administer medication for asthma on 7 December 1999, permitting Judith to dehydrate or vomit unnecessarily, failing to administer medication for her heroin withdrawal and delaying in transferring her to a civilian hospital where she could have been expertly treated. The Court recalls that Article 35 § 1 of the Convention requires those seeking to bring their case against a State to use first those remedies provided by the national legal system in respect of their allegations. The complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see the Cardot v. France judgment of 19   March 1991, Series A no. 200, p. 18, § 34). Moreover, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (Cardot v.   France judgment, loc. cit. ). The Court observes that an action for negligence in the courts would have permitted the applicants to establish any liability of the prison authorities for treatment which caused injury or death to Judith McGlinchey and to obtain damages, either under the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976. To the extent therefore that it might be alleged that the lack of adequate treatment caused damage to her health and led to her death, an adequate and effective remedy existed and any complaints in this regard must be rejected for failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. The medical evidence obtained by the applicants however indicated that it could not be established that it would have been possible to control Judith   McGlinchey’s vomiting even in hospital, or to avoid the Mallory-Weiss tear which appears to have led to the cardiac arrest and the multiple organ failure. Though this lack of evidence of causation between the alleged negligence and Judith’s collapse and death explains the applicants’ decision not to pursue proceedings for negligence, the Court considers that an adequate and effective remedy was thereby available for the applicants’ complaints concerning the most serious allegations raised in the case, which lay blame on the prison authorities for allowing Judith’s health to deteriorate to such a state that she died and failing, therefore, to take steps which would have saved her. The Court has examined below the applicants’ allegations that the treatment, or failures of the prison authorities, which stopped short of damaging health but arguably caused Judith pain and suffering or inflicted degrading treatment for which proceedings in negligence were not available, violated Article 3 of the Convention. (b)     Concerning alleged inhuman and degrading treatment The Government submit 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’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. The Government state that remedies were available as required by Article 13 of the Convention. Judith McGlinchey could have used the internal complaints system to complain about her treatments. 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 actions, including negligence and misfeasance in public office. The applicants complain that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey during her detention at the prison. They submit 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 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 left lying in her own vomit. They drew attention to Judith’s vulnerability, the period of time over which she suffered serious symptoms and the fact that she was not a high security risk prisoner. The applicant also submitted under Article 13 of the Convention that   there was no adequate internal prison procedure which would have provided a remedy in this case. nor was there any domestic remedy in the courts as a civil action would have no prospects of success.   The Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.   For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.     S. Dollé   J.-P. C osta   Registrar   President