Practice and Procedure


PUBLISHED September 22, 2003

The claimant's application that the defendant secretary of state had failed to properly investigate his daughter's death failed as the state had complied with its duties under Art.2 European Convention on Human Rights. There was no obligation on the state under Art.2 to fund legal representation for the claimant at the inquest.Application for judicial review of investigations carried out into the death of the claimant's daughter ('N') in an NHS hospital. The claimant ('K') contended that the inquiries into N's death did not comply with the state's obligations imposed by Art.2 European Convention on Human Rights to properly investigate her death. N died in hospital on 8 October 1999 aged three years old. It was suggested that N died as a result of potassium poisoning negligently caused by a nurse at the hospital. K's case was that the defendant secretary of state's ('S') failure to properly investigate N's death could only be remedied by the proper and effective participation of K and his family in the inquest (which was due to start on 24 November 2003), or in an inquiry into the causes of her death carried out by the government. K also sought a declaration that S should pay for legal representation for K and his family at the inquest. S argued that: (i) N died before the Human Rights Act 1988 came into effect and consequently no Art.2 rights existed; (ii) even if an obligation was owed to K under Art.2 to investigate N's death, it had already been complied with, or in any event would be complied with at the inquest, even if K was not represented; and (iii) even if S had the power to fund K's legal representation it would not be appropriate to do so as K was ineligible for legal assistance due to his financial position. K contended that: (a) his family were unaware of the hospital and police investigations until after they were concluded and thus were not able to participate and had many unanswered questions; and (b) there was a cover up at the hospital after N's death.HELD: (1) Following decisions in the Strasbourg court in (Sieminska v Poland (2001) and Calvelli & Anor v Italy (2002)), in cases where a patient died in hospital, the adjectival obligation of the State was satisfied where the State had an effective independent system to ascertain the cause of death and had an effective judicial system to establish responsibility and to obtain civil redress. (2) Irrespective of whether the National Health Service Act 1977 itself gave S power to pay K's legal expenses at the inquest, K would succeed on his claim if S was under an obligation under Art.2 to make those payments, irrespective of whether he had such powers. (3) There had been four investigations into the events of N's death. It was regrettable that the family had not been involved in the investigations. However it was doubtful that family participation in the investigative process was required to comply with an Art.2 obligation. Any requirement of family participation had been satisfied by K's meetings with the CPS and a pathologist as well as by the offer of the hospital to answer any further questions from K. The police inquiry and NHS trust investigation did consider how and why N died. (4) An objective of Art.2 was to ensure that any responsibility of the State for the death was exposed. When the State had, as in the instant case, admitted responsibility and become liable to pay compensation, that objective would have been achieved. (5) The investigation of a cover up by the State after a death was not covered by Art.2. (6) The obligation under Art.2 to investigate N's death had been satisfied. Therefore K had no valid complaint under Art.2. (7) In any event the State was not obliged to fund K's legal representation at the inquest as the inquest would effectively scrutinise the evidence without lawyers for K as its purpose was inquisitorial and not adversarial. If the inquest did prove inadequate K could request that S hold a further inquiry. (8) No claim could be based on the express obligation under Art.2 if the death occurred before the commencement of the Human Rights Act 1998 on 2 October 2000. K was not entitled to the relief sought.Claim dismissed.

[2003] EWHC 1414 (Admin)