CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 novembre 2013

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De Gaetano,   Paul Mahoney,   Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, Having regard to the above application lodged on 7 January 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant is a British national, who was born in 1987 and lives in York. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Ms A-M. Jolly of the Howard League for Penal Reform, London, and, subsequently, by Mr C. Callender, of Steel and Shamash, Solicitors London.   The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwealth office. 2.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     The circumstances of the case 1. The applicant’s background 3.     The applicant’s parents were heroin addicts. He was taken into local authority care when he was still a baby and adopted. As a young adolescent he became drug dependent and involved in offending behaviour, spending increasingly long periods of time in custody. 4.     In August 2005, aged 18, the applicant was sentenced to two years’ detention for a series of offences. When serving this sentence, he demonstrated serious personality problems including engaging in repetitive, serious and dangerous self-harming behaviour. In a report dated 11 October 2006, Professor Coid, a forensic psychiatrist instructed on behalf of the applicant, noted the repetitive self-harming behaviour of an “extreme and dangerous nature” and that he was at a “serious risk of suicide”. Professor Coid diagnosed a psychopathic disorder under the Mental Health Act 1983 (hereinafter “MHA 1983”). Whilst the applicant was not yet amenable to psychotherapy, Professor Coid recommended that he be transferred to hospital for assessment and treatment under section 47 of the MHA 1983. 5.   From the end of 2006 to early 2007 there was no agreement between the psychiatrists as to the applicant’s diagnosis or treatment. Since he had spent much of his life in Wales, it was thought that any psychiatric hospital treatment would be in Wales so he was examined by Dr. Williams, the Director of Mental Health Services for the National Health Service (“NHS”) Trust which covered South Wales. 6.     Dr. Williams stated in a three-page letter dated 23 January 2007 that, although the applicant had antisocial and borderline personality traits, he was not suffering from a psychopathic disorder and would not be amenable to psychotherapy. He also took the view that there was no evidence that the applicant would benefit from hospital treatment or that his condition would improve as a result. The applicant did not require pharmacological treatment therapy and was not likely to respond to psychological treatments. Indeed, the applicant’s history had shown that his behaviour badly deteriorated in institutions, so that a transfer to hospital would likely result in his detention in a maximum security mental health setting, which Dr. Williams was convinced would not be in the applicant’s best interests. 7.     The Court of Appeal in later proceedings confirmed that this diagnosis meant that it was not possible to transfer the applicant to hospital for treatment under sections 37, 38, 47 or 48 of the MHA 1983. 8.     The applicant was released on licence on 25 January 2007. 2. The applicant’s detention and record of self-harm between 2 March 2007 and 25 June 2008 9.     Between 2 March 2007 and 25 June 2008, the applicant was detained at the Young Offender Institution Feltham ( “Feltham YOI”) on remand on serious criminal charges, including robbery, and then into custody following his conviction by the Crown Court in July 2007 of false imprisonment and dangerous driving. 10.     Feltham YOI received a copy of the reports of Professor Coid and Dr.Williams. The applicant was psychiatrically assessed as suitable for the Assessment, Care in Custody & Teamwork (“ACCT”) care-planning system for prisoners at risk of self-harm. This system was designed to ensure that relevant prisoners received assessment, care, supervision and treatment commensurate with an ongoing process of risk assessment by a multi-disciplinary team trained in the ACCT procedures. The ACCT system could include search provisions, restrictions on possessions, provision of accommodation specially adapted to reduce risk of self-harm, as well as interaction and monitoring appropriate to the risk. The applicant was moved within Feltham YOI depending on his health: the mental health in-patient Unit in Feltham YOI was a restrictive place of safety for periods of acute risk and he was moved to more open environments when he improved. 11.   The applicant displayed, it appears from the beginning, serious and dangerous self-harming behaviour at Feltham YOI. An extract from his medical and prison records for 22-26 March 2007 is demonstrative: “22 March: medical records state that he inserted a pin in his mouth, which he removed when he calmed down. He later put a pencil in his mouth. The prison records record that he put a broken pencil in his mouth. 24 March: the medical records state that [the applicant] opened an old abdominal wound; he claimed to have inserted two staples into it. He was taken to [hospital]. He also reported that he had inserted staples underneath his right eye. Wound stitched at [hospital]. The staples on the right side of his face were not taken out as he needed an operation, as he had inserted them through his mouth. The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm. The officer asked him to hand over the screw but he declined. A note timed at 19.30 states that he continued to put staples into an open wound. At 21.00 he was told he would go to hospital. 25 March: the medical records state that he barricaded the door with a mattress. He removed a piece of the door and used it to harm himself, deepening an existing wound on his right arm causing it to bleed. He was taken to [hospital]. He was refusing meals, stating that he was on hunger strike. 26 March: the medical records state that he banged his head on the cell gate. According to the prison record, at 13.30 he was kicking the sink. When asked why, he stated that he wanted to break his foot.” 12.     The records also show that the applicant inserted foreign bodies into his penis on multiple occasions, including a screw on 19 September 2007, forced a piece of glass into his urethra on 7 October 2007 and severed the tendons of both feet on 10 October 2007. The applicant inserted dirt into his self-inflicted wounds causing repeated infections. 13.     The applicant claims that he attempted suicide on at least five occasions and threatened to commit suicide at other times. The Government denied that the applicant ever attempted suicide whilst at Feltham YOI. 3. Medical assessments and related exchanges 14.     On 25 October 2007 the applicant’s then representatives, the Howard League for Penal Reform, sent a “letter before claim” challenging the failure of the Secretary of State to provide a safe environment for the applicant. Noting that the applicant had over 15 surgical interventions in the past 6-7 weeks, other serious incidences of self-harm and that he had made suicide threats, they argued that the prison was not a suitable environment for him. 15.     Professor Coid, instructed on the applicant’s behalf, reported on 8   November 2007, noting that the applicant’s behaviour had rapidly deteriorated since his return to custody. He confirmed his earlier view that the applicant’s condition amounted to mental illness and psychopathic disorder within the meaning of the MHA 1983, so that the applicant should be urgently transferred to a hospital for treatment under section 48 of that Act. He reiterated that the applicant was not yet amenable to psychotherapy. 16.     On 19 December 2007 the Treasury Solicitor responded to the “letter before claim” of the applicant’s representatives’ noting that the applicant was in good health, that he had self-harmed less lately, that his last visit to hospital was on 3 November 2007 and that his behaviour, conduct and mood had improved allowing his transfer to a normal room. The applicant’s representatives did not take any further action at that time. 17.     On 10 March 2008 Dr. Lewis, a Consultant Forensic and Child and Adolescent Psychiatrist and the in-house psychiatrist at Feltham YOI, wrote to the Specialist Commissioner of the Mental Health Services expressing concern about the applicant’s deteriorating health and requesting his transfer to a hospital. It was the opinion of the clinical team at Feltham YOI that the applicant met the criteria for antisocial and borderline personality disorder and required specialist treatment in a hospital setting. He was a prolific self-harmer, the situation having become more serious over the last months. The health services in Feltham YOI considered that they could not provide adequate care for the applicant in prison and that he required a transfer to a secure centre specialising in the treatment of personality disorders. Dr.   Lewis considered, contrary to Dr. Williams, that the applicant would benefit from hospital treatment and that his history did not exclude this option, as he had only been in one psychiatric hospital setting and that was when he was very young. Since the Specialist Commissioner had indicated that she could not consider Dr. Lewis’ request without Dr. Williams’ view, Dr. Lewis requested Dr. Williams to conduct another assessment. 18.     In the meantime, Dr Huckle a consultant psychiatrist, assessed the applicant at the request of the Crown Court due to sentence him (offences committed in 2007). His report dated 15 March 2008 found that the applicant was suffering from a psychopathic disorder as defined in the MHA 1983. He concurred with Professor Coid that the applicant was detainable and should be admitted to hospital for further assessment and treatment of his serious personality disorder. This could be achieved once a suitable placement was identified under section 38 of the MHA 1983 or, if sentenced to imprisonment, under section 47 of the MHA 1983. 19.     Dr. Williams re-assessed the applicant as requested in March 2008. In his report of 1 April 2008 he revised his earlier opinion about the applicant’s condition and about the prospects of treatment, stating that there had been some change since he reviewed the applicant, so that he considered that a treatment trial would be worth considering (section 38 of the MHA 1983). However, Dr. Williams queried whether or not the applicant was a patient for whom his Trust (Welsh) was responsible. The applicant had indeed been born and had spent much of his life in Wales, but he had informed Dr. Williams, during his re-assessment interview in March 2008, that he had re-registered in 2007 with a medical practice in England. Enquiries confirmed this and, as a result, the applicant’s case had to be transferred to Sussex NHS Trust which had, in turn, to re-assess the applicant and, if relevant, identify an appropriate and available hospital place. 20.     On 7 April 2008 Dr. Lewis followed up with another letter to the Specialist Commissioner recommending that the applicant be considered for placement in a specialist personality disorder unit. His mental health had deteriorated and his self-harming had increased whilst in prison: any delay caused by his transfer to another NHS Trust had to be kept to a minimum. 21.     On 28 April 2008 the applicant’s representatives wrote to the Treasury solicitor. They recognised that the applicant’s behaviour was difficult and challenging and that staff at Feltham were seeking to put in place, within limited resources, skills and training, as safe a regime and environment as possible, but the truth was that this was insufficient to protect the applicant’s health and life. They enclosed a report dated 10 April 2008 by Dr. Bell, a consultant in intensive care and anesthesia, who had been instructed by the applicant to report on whether his self-harming behaviour was life-threatening. Dr. Bell noted that staff in Feltham YOI considered the severity and frequency of the applicant’s self-harming placed him in a “completely different category” from virtually all other self-harmers whom they had encountered. Dr. Bell’s report examined the risk posed to the applicant’s life, concluding: “9.1 The nature and pattern of self-harm inflicted by [the applicant] are clearly disquieting to any external reviewer and indicative of an extremely disturbed mindset. 9.2 His current injuries and their sequelae place him at risk of renal failure due to obstruction of the urinary tract and at constant risk of life-threatening infection from necrotizing fasciitis, urinary tract sepsis, bacterial endocarditis and deep-seated pelvic infection. The risk of these complications is enhanced not only with each new additional injury but also by the multiple retained foreign bodies within the tissues which create susceptibility to colonisation by bacteria and subsequent infection from any distant source of sepsis carried around the body by the circulation. 9.4 He is also currently at risk of losing limbs through refractory infection and the use of his penis for normal urination and sexual function. 9.5 [His] life is also in jeopardy from exsanguination with either intentional or accidental arterial damage during further self-harm. 9.6 This pattern of self-injury will predictably induce a state of chronic ill-health within a short time-frame and leave [the applicant] more vulnerable to the above complications of his injuries. The cycle will then become self-fuelling, inevitably culminating from one complication or another in [the applicant]’s death. 9.8 There also appears to be a more immediate urgency in placing [the applicant] in the short-term within a hospital environment to ensure optimal medical and nursing management of both his abdominal wound and the urinary tract foreign bodies and strictures due to scarring, which are capable of causing acute urinary tract obstruction and severe septicaemia. Such optimal management depends very much on [the applicant]’s compliance with advice and cares, and provision of appropriate psychiatric and psychological support whilst within any conventional hospital setting. The required duration of stay is not possible to calculate, [...] but the endpoint should be one of satisfactory healing of his current injuries and a greatly reduced frequency and magnitude of further self-harm with a commitment to overcoming this pattern of behaviour over the long term. The severity of the abdominal wound and urinary tract injuries, coupled with the instability of his mental health status which will predictably lead to further self-harm, would suggest that this option should be pursued within days rather than weeks.” Dr. Bell added a postscript to his report: “Since completion of this report, I have been informed by the Howard League that there has been an escalation in [the applicant’s]’s pattern of self-harm following news of his birth mother’s death. Given the extreme vulnerability of this individual to significant life-threatening complications with the level of injury at the time of my assessment, it should be apparent that the hospital-based care specified in 9.8 should be expedited as a matter of urgency.” 22.     A letter of 28 March 2008 by Christian Brown, a specialist registrar in urology, was appended to Dr. Bell’s report and stated, inter alia : “Although there is currently no evidence of urethral stricture or bladder injury over a period of time, it is almost certain that he will develop a urethral stricture. ...If he continues to abuse his body in this way, it may lead to a poor bladder emptying which in turn can cause renal failure and death. While currently none of [the applicant’s]’s urological incidents have been a risk to his life, it is only a matter of time until he develops sepsis, a urethral stricture, renal failure or death. It has been the opinion of the Urology Department here...that something more definitive needs to be done for [the applicant]’s psychological care. On each occasion that his bladder is cleared of foreign bodies, it is usually only a week or two before he is readmitted having inserted something else ...” 4. The judicial review proceedings 23.     On 6 May 2008 the applicant applied for leave to take judicial review proceedings to obtain an order that he be removed from Feltham YOI. He cited the Secretary of State (responsible for Feltham YOI) and Sussex NHS Partnership Trust as defendants. At this point, the applicant had been hospitalised 90 times in the previous 15 months. 24.     On 27 May 2008 Dr. Noon, a consultant forensic psychiatrist, advised the Sussex NHS Trust that the applicant suffered from a severely abnormal personality and reached a high diagnostic threshold for specific personality disorder types, which suggested that he might reach a threshold for psychopathic disorder classification. Given his background of frequent and severe self-harm, Dr. Noon concluded that it was appropriate to admit the applicant for a period of in-patient assessment under section 38 of the MHA 1983. He confirmed that a bed would be available at Ashen Hill hospital within the four-week period to which section 38 referred. (a) The Crown Court 25.     On 5 June 2008 the Crown Court made a hospital order under section 37 of the MHA 1983 for the applicant’s admission to Ashen Hill Psychiatric Hospital. The applicant was transferred to that hospital on 25   June 2008. He then withdrew his proceedings against the Trust. (b) The High Court 26.     On 30 June 2008 the High Court refused leave to apply for judicial review. The court considered the manner in which his claims were expressed to be strikingly unhelpful. However, since he had been transferred to hospital, his representatives confirmed that the purpose of the action was now to seek an order that there be an investigation into what had occurred, including how the relevant agencies could work better, which would serve a real public interest. The High Court considered this to be rather an afterthought to the principal claim. The applicant sought damages for a breach of Articles 2, 3 and 8 of the Convention. 27.     The High Court clarified that the Secretary of State had no power under section 48 of the MHA 1983 to transfer the applicant from Feltham YOI to a hospital because, unlike section 47, it did not apply to prisoners who suffered from psychopathic disorders. 28.     The High Court considered that Article 2 had not been engaged. While according to Dr. Bell’s bleak summary, the applicant would undoubtedly put his life at risk if he continued to self-harm in the way that he had, his life was not imminently at risk. Nor was it a case of a “near-death experience” such as a failed suicide attempt. 29.     Likewise, there was no arguable breach of Article 3 by the Secretary of State and therefore no duty to hold an inquiry. The High Court remarked that the Secretary of State had accepted the version of events advanced by the applicant. This, supplemented by the many reports done and the records which could still be produced from Feltham YOI and the hospital, meant that there could be no doubt about the facts. There was no suggestion in the documents that the applicant’s injuries had not been promptly and skilfully treated or, indeed, that it was detention at Feltham YOI which had caused the applicant to harm himself.   Had the applicant wished to complain about his treatment in detention, he could have complained under the Detention Centre Rules and onward to the Prison and Probation Service Ombudsman, who could have conducted an independent inquiry. The wider “lessons learned” objective of the action fell outside the scope of Article 3 ( Banks v. the United Kingdom (no. 21387/05 (dec.) 6 February 2007).   (c) The Court of Appeal 30.     In October 2008 the High Court granted leave to appeal limited to the claim that the Secretary of State should hold an inquiry. By judgment of 6 July 2009 the Court of Appeal accorded leave to apply for judicial review but dismissed the substantive application. The applicant had confirmed to his representatives that he wanted an explanation about his treatment in Feltham YOI and that an inquiry would have a wider public benefit. His representatives made a statement to the court that they were concerned about the treatment and conditions experienced by the applicant and other prisoners. 31.     As regards the Article 2 complaint, the Court of Appeal considered: “40. This case is not a case of attempted suicide. [The applicant] did not attempt suicide. The medical evidence was that his self-harming, if continued, could lead to life-threatening injury or disease. His medical condition, and his actions, cannot in my judgment be assimilated to cases of suicide and near suicide. It cannot be said that there was a ‘real and immediate risk’ to [the applicant’s] life while he was at Feltham. The risk was real but not immediate.” 32.     It clarified that serious injury, in the absence of a risk to life, could not give rise to any relevant duty by virtue of Article 2. There was, therefore, no necessity under Article 2 to conduct an inquiry. 33.     The Court of Appeal also found that no Article 3 investigative duty could be imposed on the Secretary of State for three main reasons. In the first place, it agreed with the High Court that there was no evidence of an “arguable breach” or of a “credible assertion” of a breach of Article 3. Secondly, the exclusion of psychopathic disorders from section 48, which precluded the applicant’s transfer to hospital under that provision, was not the proper subject of an Article 3 inquiry. Thirdly, even if there had been an arguable breach of Article 3, there could be no investigative duty because all the relevant facts in the case were known. 34.     In particular, the only complaint that could be made was that: “50. ... [the applicant] should have been transferred to a psychiatric hospital earlier. But, as I have pointed out, in not doing so, the Secretary of State was acting in accordance with Dr Williams’ medical opinion. The action or inaction of the executive based on medical advice of an appropriately qualified doctor, as Dr Williams was, cannot amount to a breach of Article 3. Once Dr Williams had changed his opinion, steps were taken to transfer [the applicant] to a hospital, but any delay then was attributable to Sussex NHS Partnership Trust and the need to meet the requirements of section 37...” 35.     As to whether an inquiry was needed, the Court of Appeal considered the applicant’s case remarkably similar to the above-cited case of Banks v. the United Kingdom (cited above). The allegations of a breach of Article 3 could be dealt with by the combination of criminal (if relevant) and civil proceedings. Any wider interest inquiry (including to publicise the alleged lack of appropriate care for persons such as the applicant in a YOI such as Feltham) was a matter for public and political debate which fell outside the scope of Article 3 of the Convention. 36.     In any event, the Court of Appeal saw no need for an investigation: “In the present case, I see no need for an investigation. The facts relating to [the applicant]’s detention in Feltham and the reasons why he was only transferred after Dr Williams’ re-assessment are known. [The applicant’s Counsel] was pressed to identify what an inquiry might reveal that was not already known. In my judgment, he was unable satisfactorily to do so. The summary of the applicant’s case, set out in the Addendum to his Grounds, does not include a formulated allegation of breach beyond the assertion that the Secretary of State was in breach of her protective obligation.” 37.     In conclusion, the Court of appeal summarised its findings: “58. Article 2 was not engaged in this case, where there was no immediate risk to [the applicant]’s life. Where Article 3 may be engaged, an inquiry is not mandatory. Whether the Secretary of State is bound to conduct an inquiry depends on the circumstances of the case, including the availability of other means of eliciting the relevant facts, such as civil proceedings and investigation by the prison ombudsman. To impose an obligation to hold a human rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown. In the present case, all the relevant facts are known: why [the applicant] was kept at Feltham and not transferred until after Dr Williams had re-assessed him and why there was some delay thereafter.” (d) The Supreme Court 38.     On 7 December 2009 that court refused leave to appeal. (e) Later developments 39.     On 29 June 2009 Dr. Noon submitted a psychiatric report to the Mental Health Review Tribunal in which he indicated that the applicant’s level of self-harm was “markedly better” than when he was in Feltham YOI. In January 2010 the applicant was being treated in a secure psychiatric unit. On 15 September 2010 he was assessed as being suitable for admission to Broadmoor High Security Hospital. B.     Relevant domestic law and practice 1. The Mental Health Act 1983 (“the MHA 1983”) 40.     Sections 37 and 38 of the MHA 1983, as in force at the relevant time, provided that a court may, after convicting a defendant, make an order or an interim order that the individual be treated in hospital instead of sentencing him to a term of imprisonment. “ 37. – Powers of courts to order hospital admission... (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order... (2) The conditions referred to in subsection (1) above are that- (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either- (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act ; and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section... (4) An order for the admission of an offender to a hospital (in this Act referred to as ‘a hospital order’) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital in the event of such an order being made by the court, and for his admission to it within the period of 28 days beginning with the date of the making of such an order ; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. 38. - Interim hospital orders (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners- (a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and (b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case, the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as an “interim hospital order”) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section. ... (5) An interim hospital order- (a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order ; but (b) may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the responsible medical officer, that the continuation of the order is warranted ; but no such order shall continue in force for more than six months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the responsible medical officer to deal with the offender in some other way.” 41.     Sections 47 and 48 of the MHA 1983 empower the Secretary of State to direct that an individual who is serving a sentence of imprisonment, or who is on remand, be removed to, and detained at, a hospital: “ 47. Removal to hospital of persons serving sentences of imprisonment, etc.   (1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners- (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital (not being a mental nursing home) as may be specified in the direction ; and a direction under this section shall be known as " a transfer direction " ... (3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case. ... (5) References in this Part of this Act to a person serving a sentence of imprisonment include references- (a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings (other than an order under any enactment to which section 46 above applies) ; ... 48. Removal to hospital of other prisoners. (1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment, the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment. (2) This section applies to the following persons, that is to say- (a) persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection ; (b) persons remanded in custody by a magistrates’ court ; ... (3) Subsections (2) to (4) of section 47 above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section.” 42.     Following the enactment of the Mental Health Act 2007, section 48 of the MHA 1983 has been amended to permit the power to apply to “persons suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”. 2. The Juvenile Secure Estate 43.     Young Offender Institutions (“YOI”) form part of the juvenile secure estate in the United Kingdom. YOIs are managed by the prison service and hold young offenders between the ages of 15 and 21. There are some differences between YOI and adult prison regimes: the YOI has a better staff/offender ratio; at least 25 hours of education per week; and its overall objectives are helping the detainee improve behaviour, develop practical skills and prepare for employment. 3.   Complaints procedures/redress 44.     A prisoner can make a complaint about treatment whilst in detention under the Young Offender Institution Rules 2000 (“the 2000 Rules”). He may complain, initially, to for example, a member of staff or to the Independent Monitoring Board; he can also make a formal written complaint under Rule 8 of the 2000 Rules); and any prisoner can complain about his treatment in detention to the Prisons and Probation Ombudsman. 45.     A prisoner can also bring a civil action about treatment in prison. Under the common law, the prison authorities owe a duty to take reasonable care for the safety of those in custody and, in particular, to take reasonable care to prevent a prisoner from taking his own life or harming himself deliberately, irrespective of whether the prisoner is mentally disordered or of sound mind ( Commissioners of Police for Metropolis v Reeves (Joint Administratix of Estate of Martin Lynch, Dec .) [1999] UKHL 34). A medical practitioner also owes a duty of care to a person that he or she treats or assesses and that liability may arise if the standard of care falls below the standard to be expected of that practitioner in accordance with a reasonable body of medical opinion ( Bolam v Friern Hospital [1957] 2 All ER 118; and Bolitho v City & Hackney Health Authority [1988] AC 232). 46.     If the prisoner can prove that his conditions of confinement have caused him injury, physical or psychiatric, resulting from the alleged negligence, he may claim damages for any damage suffered. He may even claim exemplary damages in the event of oppressive, arbitrary or unconstitutional action by the servants of the government. COMPLAINTS   47.     The applicant complained under Article 2 of the Convention about the lack of an investigation into his treatment whilst detained at Feltham YOI. Under Article 3, he complained about his treatment in custody, including the failure to provide him with the appropriate medical care and environment for his condition, as well as about a lack of an investigation in that regard. Finally, he complained under Article 13 that he did not have a domestic remedy in those respects. THE LAW A. Complaint under Article 2 of the Convention 48.     The applicant complained under Article 2 that there had been no adequate investigation into his treatment in Feltham YOI. Article 2 reads, in so far as relevant as follows: “1. Everyone’s right to life shall be protected by law. .....” 49.     The Government argued that Article 2 was not engaged. There had been no death, no suicide attempt and none of the acts of self-harm resulted in a real and immediate risk to life. There was therefore no basis for seeking to bring complaints about incidents of self-harm in such circumstances within the ambit of Article 2 rather than Article 3 of the Convention. Alternatively, they argued that there was no arguable claim of a breach of the substantive obligation, so that no procedural obligation arose. Further in the alternative, the procedural obligations had been complied with by the availability of a civil action for damages, a complaint procedure to the PPO or, alternatively, a public-law action (including a claim for damages) in respect of the acts of the prison officers. 50.     The applicant maintained that Article 2 was engaged because of the duty on the State to protect vulnerable detained persons from life threatening self-inflicted injuries in custody, of which the State was aware or ought to have been aware. It was the life-threatening risk of the penal regime which led to Article 2 being engaged, in that his mental health would, if untreated, have inevitably led to his death. It was not necessary to demonstrate a real and immediate risk to his life but, in any event, that risk demonstrably existed. Moreover, the separate nature of the substantive and procedural obligations under Article 2 meant that he could make a procedural complaint ( Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009) without it being necessary to show an arguable breach of the Article 2 substantive obligation. All that had to be shown for the procedural obligation to arise was for the case to fall within the ambit of, or to have a nexus with, Article 2. In any event, there was clearly an arguable claim of a substantive breach of Article 2. The applicant submitted, not in his application but later in his observations in response to the Government, that the substantive protective obligation had been breached with the consequence that a procedural obligation clearly arose. 51.     It is an established principle that Article 2 can apply to unintentional deprivations of life flowing from a failure to adequately protect a vulnerable detainee (for example, Keenan v. the United Kingdom , no. 27229/95, §§ 89 and 92, ECHR 2001‑III and Trubnikov v. Russia , no. 49790/99, § 69, 5 July 2005). The Court has also examined complaints about a failure to protect a detainee under Article 2 even in non-fatal cases (for example, Erikan Bulut v. Turkey (no. 51480/99, 2 March 2006). However, the parties disputed whether Article 2 applied in the circumstances of the present case. 52.     Since the fundamental nature of the rights guaranteed by Article 2 imposes important substantive and procedural obligations on a State ( Velikova v. Bulgaria , no. 41488/98, § 68, ECHR 2000-VI, Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000 VII; and McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, §§ 146-47), the Court will scrutinise whether that provision applies in the first place, not least to avoid an impossible or disproportionate burden being placed on a State (Osman v. the United Kingdom , 28 October 1998, § 116, Reports 1998 VIII). It is recalled, at the outset, that the application of Article 2 to a non-fatal case is exceptional ( İlhan v. Turkey [GC], no.   22277/93, § 76, ECHR 2000 VII). 53.     The Court observes that the High Court and Court of Appeal considered that, for Article 2 to be engaged in the non-fatal context of an alleged failure by the State to protect a detainee from himself, there had to be a “real and immediate risk” of death. The Court would underline that the applicability of Article 2 is a separate matter from the merits of the question as to whether or not a positive obligation to protect arose on the particular facts of a case ( Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004 ‑ XI; and Erikan Bulut v. Turkey (cited above) , although the “real and imminent” nature of a risk to life could inform the Court’s examination of both questions. In the Erikan Bulut case, the Court first examined the applicability of Article 2 because the applicant had fallen from the fifth floor of a building whilst in police custody but had not died. Finding that Article 2 applied, the Court underlined the gravity of the applicant’s injuries (requiring a three-month stay in hospital) and that it had been simply “fortuitous” that he had not died. Examining separately the merits of Article 2, the Court concluded that the police could not have known the applicant carried a real and immediate risk of suicide so that there was no breach of their positive protective obligation. 54.   The Court has, on the one hand, applied Article 2 to attempted murders which, by the same fortuity referred to in Erikan Bulut, did not result in death. In Yaşa v. Turkey (2 September 1998, § 100, Reports 1998 VI) the applicant was hit with eight of the bullets fired during a shooting incident in the street and, in Osman v. the United Kingdom (cited above), the applicant was shot and seriously wounded when a man fired a shotgun at him and his father at close range, when his father died. Similarly, Article 2 was applied in the above-cited Makaratzis case where it was considered fortuitous that the applicant did not die from the force used to arrest him: sixteen shots were fired by the police at the applicant’s car, including at the driver’s side, the applicant being hit four times but surviving. In Menson v. the United Kingdom ((dec.), no. 47916/99, ECHR 2003 V) the victim was found lying in the street late at night in a severe state of shock with extensive third degree burns. Even though Mr Menson later died from those injuries, it was the “life-threatening” nature of those injuries as well as the “suspicious circumstances” in which they were sustained which led the Court to apply Article 2, the obligations under that Article assuming greater importance when death resulted. 55.     On the other hand, in İlhan v. Turkey ([GC], no. 22277/93, §§ 76-78, ECHR 2000 VII), the Court considered that the “degree and type” of force used and the “unequivocal intention or aim” behind the use of force were relevant in assessing whether the actions inflicting injury short of death were incompatible with the object and purpose of Article 2. Abdüllatif İlhan had suffered brain damage from at least one blow to the head with a rifle butt inflicted by the police who had also kicked and beaten him. Two contemporaneous medical reports identified the head injury as being of a life-threatening character leaving him with long-term loss of function. While the injuries were grave, the Court considered that the force applied by the police in arresting the applicant was not of such a “nature or degree” as to breach Article 2 of the Convention 56.     The present applicant seriously and regularly self-harmed in Feltham YOI, often inflicting injury on himself of singular severity. While the parties disputed the rate and pattern of self-harm, the staff in Feltham YOI had not previously encountered a case of self-harm as serious as that of the applicant. Dr. Bell, briefed by the applicant to assess whether his self-harming behaviour was life-threatening, opined that, if the applicant continued to self-harm, he could put his life at risk and that, even without further self-harming, his physical condition could worsen and become life-threatening. Having regard to the applicant’s history and various expert reports, it was likely that the applicant would continue to self-harm in Feltham YOI. 57.     However, in the present case there is no suggestion of a criminal or reckless lack of care: the purpose of the applicant’s treatment was, of course, the opposite. He was in custody in a young offenders’ penal institution which was part of the juvenile secure estate designed to provide adapted environments for juvenile offenders. He was the subject of a particular care-plan system (ACCT) and, although it was disputed as to whether it was properly applied or not, its purpose was to ensure the applicant received comprehensive, specialist and adapted care by a multi-disciplinary team given his particular difficulties ( mutatis mutandis , Rappaz v. Switzerland , (dec.), no. 73175/10, §§ 54-57, 26 March 2013). The applicant’s essential grievance was therefore that, despite these objectives, Feltham YOI could not and did not adequately care for him. The records and medical reports submitted by the applicant are noted, as are the judgments of the domestic courts which reviewed all of that material in some detail. However, the applicant did not refer to any one incident when it could be said that his death was fortuitously avoided ( Makaratzis v.   Greece, at § 54; and Erikan Bulut v. Turkey , at § 26) and, consistently, the domestic courts found that the facts before them could not be assimilated to a case of near-suicide. Moreover, both domestic courts also concluded that, while the risk to his life might have been a real one given the gravity and frequency of his self-harming to date, at no point prior to his transfer to hospital was the risk to his life demonstrably imminent or acute: it was a future risk dependent on whether the applicant continued to self-harm and on whether his health worsened. In the event, he was moved to a hospital before the risk of death approached a critical stage. It is also relevant to note, in this regard, that while the applicant challenges the quality of the medical care he received, the domestic courts considered that nothing in the documents submitted indicated that his injuries had been treated other than “promptly and skillfully”. It is also significant that the applicant did not complain about a substantive failure to protect his life under Article 2 to either the domestic courts or to this Court: while he did argue, in his later observations in response to those of the Government, that the facts of his case were sufficient to demonstrate a breach of that substantive obligation, he did not indicate that he was now making that complaint to the Court, a complaint which would have been, in any event at that point, outside of the six-month time-limit set down by Article 34 of the Convention. 58.     Having regard to the circumstances and purpose of the applicant’s detention, including the absence of any averred and acute life-threatening incident or injury, the Court does not consider that Article 2 is applicable in the instant case. It follows that the applicant’s complaint under Article 2, about a failure to carry out an investigation, is manifestly ill founded (for example, İlhan v.