Khan, R (on the application of) v Secretary of State for Health [2003] EWCA Civ 1129

Case No C1/2003/1459[2003] EWCA Civ 1129
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Silber J
Venue Royal Courts of JusticeDate Friday 10 th October 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE BROOKEVice-President of the Civil Division of the Court of AppealLORD JUSTICE WALLERLORD JUSTICE CLARKE
Between
THE QUEENAppellantOn the Application of MOHAMMED FAROOQ KHANAppellantTHE SECRETARY OF STATE FOR HEALTHRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Philip Havers QC (instructed by Freeth Cartwright) for AppellantNigel Giffin QC (instructed by the Solicitor, Department of Health) for Respondent
JudgmentAs Approved by the CourtCrown Copyright ©

INDEX

[1]Introductory; The facts 1[2]The police investigations 10[3]Mr Balen’s activities 15[4]The Trusts’ investigations 26[5]The judicial review proceedings: the respondents’ evidence 29[6]The importance of involving the deceased’s family 40[7]The judgment in the court below and the issues on the appeal 45[8]Question 1: What is the content of the state’s Article 2 obligations in the present case? 47[9]Question 2: Has the state’s Article 2 obligations in this case already been performed? 68[10]Question 3: If the state has not yet fulfilled its Article 2 obligations, can the holding of the inquest satisfy those obligations if Mr Khan cannot play an effective part in it himself? 73[11]Question 4: If the answer to question 3 is “no”, does the 1998 Act apply, so that Mr Khan may obtain relief in a national court? 78[12]Question 5: Whatever the answer to the first four questions, does the Secretary of State have power to make the necessary funding available? 87 Lord Justice Brooke : This is the judgment of the court.[1]Introductory: The facts This is a sad and disturbing case.[2]The applicant Mohammed Farooq Khan came to England from Pakistan when he was a child. He graduated at Bradford University, and in September 1999 he had a good job as new products controller at a firm in Leeds which specialised in making video transmission products. He was intelligent, articulate in both Urdu and English, and was heading for a senior management post in the firm.[3]He and his wife Safia had six children, and the only real cloud in their married life had been the death of one of their daughters at St James’s Hospital, Leeds in 1994. They were very concerned about the quality of the treatment their daughter had received there before she died.[4]In the summer of 1999 their fifth daughter Naazish Farooq Khan, aged three, began to complain of earache and a discharge from her ear. Her condition failed to respond to treatment and she was eventually admitted to St. Luke's Hospital, Bradford on 20th September 1999. It was discovered that her lymph nodes and her spleen had become enlarged. By 24th September 1999, her condition had deteriorated and she was suffering from some respiratory difficulties. She was transferred to St James’s Hospital, Leeds. A biopsy was carried out, and she was transferred to the intensive care unit. A provisional diagnosis of B cell lymphoma was in due course confirmed. She began a course of chemotherapy on 5th October 1999.[5]In anticipation of the need for chemotherapy, and in order to guard against any damage to her kidneys in the course of that treatment, haemodialysis had started on 25th September 1999. This treatment included the administration of potassium in such quantities as were required to maintain the appropriate potassium level. Potassium chloride was infused through the dialysis machine by means of a mixture of fluids run in from a bag of fluids. Every time the infusion bag was changed, a blood analysis should have been carried out in order to obtain, among other things, an accurate reading of the potassium level. If the level was too low, more potassium was added to the next bag. If it was too high, less potassium was added. The prescription for potassium was attached to her bed, and it stated the specific quantity of potassium that had to be given for each level on the blood analysis reading.[6]Because potassium is a heavy solution, the bag containing the potassium and the diluent had to be shaken vigorously in order to mix it properly. Otherwise the potassium would lie at the bottom of the bag where the line entered the bag, and the patient would receive a bolus dose of potassium. This was to be avoided at all costs because an excessive infusion of potassium can cause heart problems, heart attacks, and eventually death.[7]Shortly after Naazish's chemotherapy treatment began, in the early hours of 8th October 1999, something went catastrophically wrong with the administration of potassium. A blood gas analysis carried out at 00.17 hours that morning appears to have showed an appropriate level of potassium in the blood. At about 02.30 hours a fresh bag was put up containing what was apparently a grossly excessive amount of potassium. A police report suggests that one of the reasons why this happened was because no blood gas test was carried out before the bag was made up, the nurse failed to mix the bag properly when she added potassium to it, and her actions were then not checked by another nurse, as they should have been. An independent medical expert was later to castigate this series of omissions as having been grossly negligent (see para 13 below).[8]Naazish suffered a heart attack about an hour and a half later. Attempts were then made to revive her, and during the course of these efforts a blood gas reading was taken. This disclosed an alarmingly high potassium reading of 18.9. This can be compared with a normal therapeutic level of 3.5 to 5. A level of 9 to 10 would be high enough to cause death. Twenty minutes later, a second blood gas test disclosed a potassium level of 13.4. Although this represented a significant reduction, it was still far too high a level, and Naazish died soon after that second test was taken. A doctor at the hospital discussed the situation with her parents at some length, but it is said that he regarded the very high potassium levels as an artefact and made no reference to them at all.[9]Nor did anybody at the hospital say anything to the coroner's officer about these potassium levels. The cause of death was certified by the hospital staff as "cardio-respiratory attack and B Cell Lymphoma”, and Naazish's body was released for burial. She was buried within 24 hours of her death in accordance with Muslim law. Although he has read the evidence collected in the investigations that have so far taken place, Mr Khan’s solicitor is of the view that the circumstances surrounding the defective notification of death in this case “cry out” for exhaustive inquiry, if for no other reason than to overturn the perception that there was a medically orchestrated cover up of the cause of Naazish’s death, which led to all the distressing consequences we now describe.[2]The police investigations[10]On the following Monday the police started to investigate Naazish's death, and at an early stage of their investigations they applied to the coroner for her body to be exhumed. The very idea that his daughter’s body should be dug up caused the greatest possible distress to her father. He believed passionately that nobody should tamper with his daughter’s body after it had been buried. He made desperate, but unsuccessful, attempts to contact the coroner between 8 pm on 2nd November 1999, when he was told of the proposed exhumation, and 4 am the following morning when the exhumation was carried out. He was later to tell a psychiatrist that he went through absolute hell from that day until his daughter’s body was released for reburial a year later. He became deeply depressed and was off work for a year. He then returned to a much more junior post with his old firm. This was all he was able to manage.[11]After the exhumation, a post-mortem was carried out. The pathologist, Dr. Milroy, concluded that: "Taking the findings of a high potassium at collapse, combined with the post-mortem findings and the experiments performed on 25th November 1999, described by Professor Forrest, in my opinion death is consistent with potassium poisoning".[12]The police inquiries were extensive. Their aim was to consider if any criminal charge could be brought in respect of any of the acts and omissions that led to Naazish's death. A case might have been established to the effect that one or more of the members of the hospital staff responsible for Naazish’s care had been guilty of manslaughter by gross negligence. The police asked the hospital trust (“the Trust”) not to contact Naazish’s family or to conduct any investigations of their own while the police investigation was under way. They wished any communication with the family to be channelled through them, and not through the Trust. Mr Khan was not in the event involved in the police investigations in any way.[13]In due course they prepared a detailed report on the results of their investigation. This report extended to 84 pages, and its substantial exhibits included witness statements, copies of medical notes and medical reports. One of those reports had been prepared for them by Dr. Mark Bradbury, a consultant paediatrician and paediatric nephrologist at the Manchester Children's Hospital. Dr Bradbury was of the opinion that the most likely cause of Naazish's death was an excessive infusion of potassium from the dialysis solution. He considered that both the sister on duty and the Trust as a whole had been grossly negligent.[14]It appears that there were a number of possible reasons for the cardiac arrest which preceded Naazish's death. These included tumourlysis (caused by her cancerous tumour), respiratory failure, haemolysis, an incorrect dosage of potassium chloride, the potassium chloride being not mixed properly with the haemofiltration fluid, the potassium levels in her blood not being adequately monitored, and faults in the haemofiltration equipment itself. As a result the view has been taken both by the prosecuting authorities and by the NHS authorities that it may not be possible to determine the precise cause of her death with any certainty. The reason for this is said not to stem from the fact that not enough steps have been taken to determine the cause of death, but because in all the circumstances, and particularly because of the lack of blood measurements during the evening before her death and the very nature of her serious illness, it is now very difficult to find the evidence to prove what precisely happened.[3]Mr Balen’s activities[15]In May 2001 the Crown Prosecution Service (“CPS”) told Mr Khan that no criminal proceedings would be taken arising out of his daughter’s death. Mr Khan’s brother then approached Mr Balen, a partner in the solicitors’ firm Freeth Cartwright, who has thereafter acted for Mr Khan. No praise can be high enough for the efforts Mr Balen has made on his client’s behalf.[16]At a very early date Mr Khan and Mr Balen met a senior police officer, now retired, who had taken part in the police investigations and who expressed surprise at their eventual outcome. Mr Balen then contacted the coroner, who gave him a copy of the post mortem report, and said he would contact him again once his own inquiries were complete.[17]Mr Balen and his client next had a meeting with the branch crown prosecutor from the CPS’s casework directorate. He explained to them in some detail why there was insufficient evidence to prosecute anybody for the events leading to Naazish's death. They were given the opportunity to ask questions about the matters that had emerged from the police investigation, but Mr Balen did not at that time ask any questions about Naazish's treatment or about the police investigation into it. During the next three months he was engaged in obtaining all the relevant hospital notes and records.[18]By November of that year he had completed his study of this material, and he then inquired of the Trust whether it would admit liability and causation. He received no reply. On 3rd December the coroner told him that his inquiries were now complete, and that the inquest would be held in just under three months’ time. The coroner enclosed with his letter a list of witnesses and copies of the statements he had obtained. On 10th December Mr Balen told the Trust that it would be clearly right for his client to be legally represented at the inquest. He asked whether the Trust itself or the Department of Health would provide an indemnity for his legal costs. He received no reply. Three chasing letters similarly went unanswered.[19]On 13th February he repeated his request to the chief executive of the NHS Litigation Authority. His client had told him that his means were marginally over the financial limit for publicly funded legal representation at an inquest, and Mr Balen feared that the cost of representation could easily swallow up the sum of £7,500, which was then the value attributed to a claim for the loss of a child’s life.[20]The response to this approach, in contrast to the non-response of the Trust, was both immediate and sympathetic, but he was told that the authority could not assist towards the costs at an inquest. Before the inquest took place he received from the same source a full and complete admission of liability for Naazish’s death.[21]On 22nd February the Trust at long last broke cover. Its solicitors told Mr Balen that the best deal their clients could offer was that they would not be legally represented at the inquest if Mr Khan was not. Mr Balen turned this offer down, since if it were accepted it would mean that no proper inquiry would be held at all.[22]The inquest opened on 25th February 2002. The coroner at first refused to adjourn the inquest to enable Mr Balen to continue his quest for funding. He was then told that the doctors and nurses insisted on legal representation, and in those circumstances he acceded to Mr Khan’s personal request for an adjournment. Mr Khan had told him that this was the second of his children to die in questionable circumstances at this hospital. All the family wished to know were the facts. They had not wanted the exhumation or the post-mortem. After further adjournments, the inquest has now been fixed to start in November of this year.[23]This breathing space allowed Mr Balen to pursue his quest for funding. Pro bono help was not available because of the length and complexity of the inquest, and on 26th March 2002 he wrote to the Secretary of State for Health himself. He asked for funding, alternatively for a separate public non-statutory inquiry. He said:
“To expect our clients to pay for the Health Service’s admitted actions leading to their daughter’s death, to pay to discover what happened, and to pay for lessons to emerge from such a tragedy is, we are sure you will agree, entirely unacceptable. Since their daughter’s death, no one from the hospital has been in touch with the family; no legal admission of liability was made until two days before the inquest and then not by the hospital or its lawyers; and no response made to a whole series of letters from ourselves on the family’s behalf.”
[24]Two and a half years had now elapsed since Naazish’s death. By this time Mr Khan and his wife had withdrawn into themselves. Mrs Khan had effectively become a hermit, and Mr Khan was suffering from what was later diagnosed as a psychiatric illness. He did not open letters, and he allowed county court judgments to be entered against him by default as a consequence. He felt unable to deal with people. The junior post he now held with his firm did not involve this necessity, and his solicitor sometimes experienced difficulty and delay in obtaining instructions. In particular he was quite unable to obtain instructions about his client’s precise means.[25]On 8th July 2002 Mr Balen received the Secretary of State’s substantive reply to his letter. He was told that there was no power to provide the funding he sought, and that the Secretary of State was not prepared to hold a separate inquiry. The Trust had conducted a number of separate investigations of its own. The Regional Director for Public Health had now been asked to review the adequacy of these investigations, and he would then be willing to meet Mr and Mrs Khan in order to discuss his findings and answer any inquiries they might make. In the event no such meeting was suggested at any time before these proceedings were started against both the Secretary of State and the Trust in November 2002.[4]The Trust’s investigations[26]The Trust had indeed been making its own fairly intensive investigations into the cause of Naazish’s death and the way in which such tragedies might be averted in future, but it does not seem to have occurred to anyone to tell her parents what was going on.[27]All these investigations were undertaken by people who were not directly involved in providing care for Naazish, but they were nevertheless employees of the Trust. The Trust’s Head of Health and Safety examined certain aspects of Naazish's care and treatment in the hospital and made recommendations aimed at reducing the likelihood of a similar incident ever occurring again. The Assistant Chief Nurse made a number of recommendations in relation to the administration of potassium to patients. A consultant in paediatrics, anaesthesia and intensive care produced a report in which he considered the cause of Naazish's death and also made recommendations for changes. Three members of the staff of the department of medical physics and engineering produced their own report which dealt with the equipment in operation when Naazish was being treated.[28]These reports, together with Dr. Bradbury’s report, considered wider issues relating to Naazish’s treatment. These included the design and maintenance of equipment, the keeping of records, the training and development of staff, the supervision of staff, the development and use of protocols and procedures, medical prescribing practices and the establishment of a critical incident team. They provided a comprehensive account of the care and treatment provided to Naazish when she was receiving treatment at the hospital, and included an analysis of the practices for administering potassium, and of the design and maintenance of equipment.[5]The judicial review proceedings: the respondents’ evidence[29]From the perspective of the issues raised in this litigation, however, all this activity contained a serious inherent flaw. Nobody had taken any steps at all to tell Naazish’s parents what was going on and to involve them in it.[30]In these proceedings Mr Khan sought an order quashing the defendants’ refusal to fund legal representation for Naazish’s family at the inquest and a mandatory order requiring them to do so. Alternatively he sought an independent non-statutory public inquiry. In the event, the claims against the Trust were not pursued, and the Secretary of State was the only effective respondent at the hearing before Silber J.[31]The Trust’s involvement at the outset of these proceedings led to their disclosing to Mr Khan for the first time the reports they had commissioned. They also explained the steps they had taken to try and prevent the recurrence of such a tragedy. Dr Sugden, the Trust’s associate medical director, said that the clinicians involved with Naazish’s care initially had contact with the family, but when the police came on the scene the Trust was told that more than one line of communication would be confusing for the family.[32]Dr Sugden said that by pursuing an admission of liability Mr Khan had put himself outside the scope of the Trust’s complaint procedures, which included the possibility of independent review. He said he was willing to provide answers to 30 questions posed by Mr Balen in his second witness statement: in the event, the Trust has done nothing at all to follow up that offer. Dr Sugden said that he had not realised that the results of the Trust’s own investigations had not been passed on to the Khan family by the police.[33]His witness statement contained the following passages:
“As a general principle, my approach to providing information to bereaved families is that every effort will always be made to answer questions or concerns but I would not generally send information to a family uninvited, because that information may be distressing, disturbing, or otherwise not appreciated or welcome. Given the knowledge I now have of the family’s concerns I can see it might have been possible to communicate more effectively with them, although there were significant impediments. The family themselves did not trigger other opportunities for dialogue. Quite apart from the outcome of the specific investigations into Naazish’s dearth, lessons learned from the communication difficulties referred to above have been taken on board by the Trust. The investigations looked at a wide range of issues, actions to improve the delivery of the service were recommended and have been taken or are being worked on. A key result is that if Naazish’s death was due to the administration of too much potassium, the protocols now in place very significantly reduce that risk. Further lessons can be learned from the regrettable breakdown in communications with the family, which occurred for a variety of reasons.”
[34]Evidence on behalf of the Secretary of State was furnished by Professor Johnstone, who was appointed to the post of Regional Director of Public Health for Yorkshire and the Humber on 15th July 2002. He did not explain why the meeting foreshadowed in the letter dated 8th July 2002 did not take place until after these proceedings were instituted. On 9th January 2003 he wrote to Mr and Mrs Khan to suggest a meeting, and such a meeting eventually took place in early April 2003, with Mr Balen and representatives of the Trust also present.[35]For his part, Professor Johnstone said that when he was appointed to his present position, he wished to consider a number of matters concerning the investigations into Naazish's death. He wished to find out whether the investigators were truly independent of the clinical team which had been directly involved in providing care to Naazish, how promptly the investigations were conducted, the extent to which there was public scrutiny, whether the next of kin were involved in the investigations, whether the care and treatment provided to Naazish was considered, whether wider systems factors were considered, whether the reports contained clear recommendations, and whether follow-up action was clearly identified and effective arrangements put in place to monitor the implementation of those recommendations.[36]He thought that a number of lessons had been learnt. Proposals had been made for actions to remedy system deficiencies identified in the various reports. These had been brought together in an action plan prepared by the Trust’s Head of Health and Safety in January 2001. His view was that the investigations carried out by the Trust and the West Yorkshire police, which benefited from independent expertise where appropriate, had provided an effective, thorough and reasonably prompt scrutiny of the care and treatment of Naazish and wider deficiencies within the Trust. He doubted whether any further investigations would identify any additional facts.[37]Professor Johnstone had also considered a report prepared by the Trust on 10th December 2002, which set out the progress that had been made on implementing some of the recommendations. He considered that in most respects the Trust had taken the necessary action needed to remedy the deficiencies identified. He observed that there were still some areas in which he was dissatisfied with the progress that had been made towards implementing the recommendations.[38]He said that he was liaising closely with the West Yorkshire Strategic Health Authority to ensure that the remaining outstanding recommendations for change were implemented within appropriate timescales. He added that the dangers associated with intravenous administration of potassium were well recognised. Indeed, the new National Patient Safety Agency had issued its first patient safety alert in July 2002 on this very topic. He said that issues raised as a result of Naazish's death were being considered in the context of the development of both the new Renal Services National Service Framework and the module of the Children's National Service Framework relating to medicine for children.[39]Mr Balen had prepared a list of queries "based on a relatively cursory glance through the police statements surrendered to the coroner". Professor Johnstone considered that only a small number of them related to the care and treatment of Naazish. He said that those relating to entries made in Naazish's medical records, the print-outs of her blood gas levels, and the results of the laboratory tests, and the reporting of her death to the coroner's office were matters which the coroner might wish to consider at the inquest. He expressed the opinion that Mr Balen had not raised any further questions of substance which would necessitate a further NHS investigation. He believes that Mr Balen’s other inquiries, which related to the wider context within which Naazish's care had been given, had been answered either in the Trust's investigation reports or in clinical good practice now adopted by the Trust.[6]The importance of involving the deceased’s family[40]Mr Balen’s response to this evidence is epitomised in the following passages of his third and final witness statement:
“In my experience, [relatives’] involvement in these tragic cases is beneficial, not only to the relatives, but also to the health care workers concerned. Many relatives have important contributions to make to the improvement of health care through lessons learnt from tragedies. They want to know why the system failed their relative; what actually happened; who were responsible and what disciplinary or re-training steps were taken and what steps have been implemented to prevent such a tragedy happening again. Participation in such processes is of the utmost importance to the relatives. The benefit to the health of the relatives dealing with the reaction to the bereavement and the circumstances of the bereavement is considerable. When the opposite takes place and there is no communication and no involvement, damage to the health of the relatives is often in my experience substantial and that appears to be the position in this case. I note Professor Johnstone’s expectation of the main contribution given by a bereaved family in such circumstances. This however is only part of the picture in my experience. Bereaved families may have an enormous contribution to make, not only to an understanding of what went wrong, but how improvements can be implemented. Professionals working in this field – both legal and medical – widely recognise in my experience that families have a real contribution to make in such circumstances. But the importance of their contribution also works the other way. As I have indicated, it is of enormous importance for the family to be involved. It benefits them to understand the processes involved; that lessons have been learnt and that their loved one’s life may not have been in vain. To remove participation generally in my experience leads to a breakdown in the trust between relatives and the medical services and frequently … a breakdown or deterioration in health.”
[41]A little later in his statement, after expressing his own view that it was far too early to say whether the investigations so far carried out had been effective, Mr Balen observed that one of the purposes of holding an inquest or an inquiry was to explore the lessons to be learned on such occasions from such incidents. The Department’s paper called “Building A Safer NHS for Patients” impliedly accepted the criticism of ad hoc investigations commissioned by Trusts and the fact that patients and carers should have a role in the procedures following adverse events. Its paper on Organisation with a Memory recognised that internal reviews were often not trusted by patients as sufficiently impartial or searching.[42]Mr Balen’s views are supported by the experience of those who have recently conducted public inquiries in circumstances where the families of the deceased had encountered institutional resistance to the idea that an inquiry into the cause of the death or deaths that have caused them such distress should be held in public by an independent arbiter. In Chapter 2 of his recent report into events at the Bristol Royal Infirmary Professor Sir Ian Kennedy suggested that such an inquiry fulfilled the following four purposes:(1) It restored public confidence because a full, fair and fearless investigation was being carried out into the events that had led to the death or deaths;(2) Its object was to identify the lessons to be learned, and then to frame recommendations designed to give effect to those lessons, again for the purpose of restoring public confidence;(3) It should be a means – and Professor Kennedy suggested that this might be as much a duty as a purpose of the inquiry – whereby those affected by the events in question could feel that their concerns had been aired, and that life could move on;(4) It offered an opportunity on a public stage for: (a) those in authority to be held to account; and (b) the public venting of anger, distress and frustration. (a) those in authority to be held to account; and (b) the public venting of anger, distress and frustration.[43]Professor Kennedy summed up the position by saying that the process of inquiry could serve at least four functions: learning, discipline, catharsis and reassurance. Everyone who could assist should be enabled to do so. They should be seen as “participants” in the process of seeking to understand the matters into which inquiry was being made.[7]The judgment in the court below and the issues on the appeal[44]It is evident that this process has not really started in the present case, although nearly four years have elapsed since Naazish’s death. The question we have to determine is whether the judge was right to hold that no fuller inquiry is now required by human rights law than that which has already taken place, or whether that law demands something more, and if so, what.[45]The judge dismissed Mr Khan’s application in a careful and thoughtfully reasoned judgment, to which we would pay tribute. He considered that the state had complied with its adjectival duties under Article 2. Even if it had not, he did not consider that Article 2 obliged the state to fund Mr Khan’s legal representation at his daughter’s inquest. In any event, since she died before the Human Rights Act 1998 (“the 1998 Act”) came into effect, the state did not have any Article 2 obligations that were enforceable by Naazish’s family as a matter of national law.[46]It is convenient to address the legal issues on this appeal by asking five questions:(1) What is the content of the state’s Article 2 obligation in the present case?(2) Has that obligation already been performed?(3) If the state has not yet performed that obligation, can the holding of the inquest satisfy that obligation if Mr Khan cannot play an effective part in it himself?(4) If the answer to question 3 is “no”, does the 1998 Act apply, so that Mr Khan can obtain relief in a national court?(5) Whatever the answer to the first four questions does the Secretary of State have power to make the necessary funding available?[8]Question 1: What is the content of the state’s Article 2 obligation in the present case?[47]To answer the first question, it is necessary to consider recent caselaw both in Strasbourg and in this jurisdiction.[48]We were shown a number of cases decided in recent years by the European Court of Human Rights (“ECtHR”) which cast some light on the issues we have to decide. The first is Powell v United Kingdom (Appln No 45305/99). A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. By the time the case reached Strasbourg, where it was declared inadmissible, the boy’s parents, who had also been very seriously affected by what had taken place, had accepted £80,000 in compensation from the local health authority. They had thereupon discontinued a similar claim for damages for negligence against some of the doctors at their local health centre, and a claim against those doctors in respect of alleged falsification of records had been struck out.[49]Their real grievance, which they took to the Strasbourg court, related to the falsification of these records. They faced the difficulties, however, in the eyes of the Strasbourg court that they had abandoned an appeal against a decision of a local NHS Medical Services Committee with which they were dissatisfied, and they had not pursued their negligence claim against the doctors to trial. The facts of that case were so far removed from the present case that little of value can be derived from the court’s conclusions.[50]What is important about this decision is that the judgment of the court contains the first clear identification of what Lord Woolf CJ described in R (Amin) v Home Secretary [2002] EWCA Civ 390; [2003] QB 581 as the state’s adjectival duty under ECHR Article 2 in a case which did not involve an allegation of an intentional killing.[51]The genesis of such a duty was discussed in the judgment of the ECtHR in Osman v United Kingdom (1998) 29 EHRR 246 at paras 113 and 116. Since these paragraphs are quoted in full by Lord Woolf in paragraph 31 of his judgment in Amin we need not repeat them here. In Powell the court distinguished the cases where a duty might evolve on a law enforcement agency to take preventional operative measures to protect someone’s life, and then continued: “The issue before the Court in the present case is an entirely different one in terms of both the context and scope of the obligation. Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction… The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as errors of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life. In the Court’s opinion, the events leading to the tragic death of the applicants’ son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny – not least for the benefit of the applicant. (Emphasis added) The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention…. The Court considers that the procedural obligation as described cannot be confined to circumstances in which an individual has lost his life as a result of an act of violence. In its opinion, and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter”. (Emphasis added)[52]In Sieminska v Poland (Appln No 37602/97) the applicant’s husband died of natural causes in hospital, but after his death she complained that the ambulance which had taken him to hospital had not been equipped with the necessary resuscitation devices. Under Polish law she had a right (which she exercised) to appeal against decisions of the prosecuting authorities not to bring criminal proceedings. She could also bring a civil action or initiate disciplinary proceedings against the medical practitioners concerned. The court not surprisingly declared her application inadmissible on the grounds that there was no indication that there had been any failure to provide a mechanism whereby the criminal, disciplinary or civil responsibility of persons who might be held answerable could be established.[53]The case is important for its restatement of the relevant obligation of the state in these terms:
“The Court recalls that the first sentence of Article 2 obliges the States not only to refrain from ‘intentionally’ causing death but also to take adequate measures to protect life. The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims… (Emphasis added) In particular, the positive obligation a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims.” (Emphasis added)
[54]Calvelli and Ciglio v Italy (Appln No 32967/96) was a decision of a Grand Chamber of the ECtHR. The case arose out of the death of a two-year old baby in a private clinic in February 1987. There were very long delays in the prosecution of the subsequent criminal proceedings. Eventually a retrial had to be ordered, but the case was then struck out as time-barred. Because the criminal court declined to award provisional compensation to the civil parties, civil proceedings were then started, but the applicants were willing to enter into a settlement with the insurers of the clinic and the responsible doctor, and the civil proceedings were ultimately struck out, too.[55]In Strasbourg the applicants placed great weight on the fact that the state had not pursued the criminal proceedings effectively. The court was influenced, however, by the fact that in settling their civil claim the applicants had lost their opportunity to obtain an order against the doctor for the payment of damages, and possibly the publication of the judgment in the press. A judgment in the civil court could also have led to disciplinary action against the doctor.[56]One needs to be very wary of the applicability of the conclusions reached by the court in the context of a legal system which is so different from our own. Relevant passages of the judgment that set out the court’s approach to a case of this kind are as follows:
“48 The Court reiterates that the first sentence of Article 2 … enjoins the State not only to refrain from the ‘intentional’ taking of life, but also to safeguard the lives of those within its jurisdiction…. (49) These principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public ort the private sector, can be determined and those responsible made accountable. (50) … [I]f the infringement of the right to life … is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged…. (55) [Because the applicants entered into a settlement agreement] The Court accordingly considers that the applicants denied themselves access to the best means – and one that in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor’s responsibility for the death of their child.”
[57]Edwards v United Kingdom (2002) 35 EHRR 19 was a very different case. A psychiatrically disturbed prisoner had been placed in a prison cell with another prisoner who was displaying symptoms of bizarre behaviour, and he was killed by him as a result of their being locked up together. The state authorities appointed a distinguished panel, headed by a QC, to conduct a private non-statutory inquiry. Although the ECtHR praised the thoroughness and sensitivity of the inquiry report, it held that there had been a violation of Article 2 because the panel had no power to compel two of the prison officers to give evidence to them, and because the deceased’s parents were excluded from the inquiry except when they were giving evidence.[58]The court concluded on the facts of that case that because the deceased was a vulnerable individual who had lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. It ended this part of its judgment in these terms:
“The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.” (Emphasis added)
[59]This passage contains an echo of what the court said in the earlier case of Jordan v United Kingdom 11 BHRC 1 at para 109: 109. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç v Turkey [(1998) ECHR 21593/93], p 1733, para 82, where the father of the victim was not informed of the decisions not to prosecute; Ögur v Turkey [(1999) ECHR 21594/93], para 92, where the family of the victim had no access to the investigation and court documents; Gül v Turkey judgment [(2000) ECHR 22676/93], para 93). (Emphasis added).[60]Mr Giffin QC, who appeared for the Secretary of State, drew our attention to two later judgments of the ECtHR in cases of intentional killing where the court referred briefly to its approach in clinical negligence cases. Thus in Oneryildiz v Turkey (Appln 41939/99) the court said (at para 92) that the positive obligation under Article 2 to set up an effective judicial system might be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts. And in Mastromatteo v Italy (Appln No 37703/97 the court said (at para 90) that the form of investigation might vary according to the circumstances. In the sphere of negligence a civil or disciplinary remedy might suffice. The court went on to say (at para 91) that in an investigation for which State agents or authorities are allegedly responsible, it is necessary for the persons responsible for the investigation to be independent from those implicated in the events. This meant hierarchical or institutional independence and also practical independence.[61]It is noteworthy, however that in the first of these cases the court concluded (at para 93) that the case of Mr Oneryildiz bore no comparison with that of the applicants Calvelli and Ciglio due, among other things, to the fact that the repercussions of the risk in question were likely to affect more than one individual and to the tragic nature of the events which had occurred. Neither of these two cases, in any event, were concerned to make any new law in this area: they merely summarised the effect of the earlier decisions to which we have referred.[62]It is possible to derive from these Strasbourg cases the following principles:(1) Where agents of a state bear potential responsibility for the loss of a human life, the state should provide a procedural mechanism whereby the cause of death may be investigated, and responsibility for the death ascertained, through an investigation held in public which must be both judicial and effective;(2) The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests.[63]For reasons that may appear obvious, the present case cannot be simply categorised as one involving errors of judgment on the part of a health professional or negligent co-ordination among health professionals (see the passage in Powell cited in para 51 above). This is a case in which the conduct of those responsible for Naazish’s care has already been stigmatised by an independent expert as “grossly negligent”, and where the family’s solicitor is not unreasonably concerned that there may have been a medically orchestrated cover-up which caused his clients the additional heart-breaking distress to which we have referred in paragraph 10 of this judgment.[64]The leading authority in this jurisdiction on some of the issues raised in this case is the judgment of Lord Woolf CJ, giving the judgment of the court in R (Amin) v Home Secretary (see para 44 above). That case was concerned with the adequacy of the state’s investigations of two deaths in prison custody, but in paragraph 32 appear some observations on Article 2 that are of general relevance:
“32. Against this framework of obligations created by Article 2, it is useful … to make some general observations about the nature of the procedural duty to investigate. Plainly there is no duty on the face of the Convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that, without it, the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. Thus the duty to investigate is adjectival to the duty to protect the right to life, and to the prohibition of the taking of life. It follows that by its nature it cannot be a duty defined by reference to fixed rules. It only has life case by case; contingent upon what is required in any individual instance for the substantive right’s protection. Across the spectrum of possible Article 2 violations, there are classes of case which can readily be distinguished. One class is that of allegations of deliberate killing - murder - by servants of the State. A second is that of allegations of killing by gross negligence – manslaughter – by servants of the State. A third is that of plain negligence by servants of the State, leading to a death or allowing it to happen. In the context of any of these classes, there exists the lamentable possibility that the State has concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate. The duty is in every instance fashioned to support and make good the substantive Article 2 rights. We shall see, as we go through the movements of the argument, that this approach sits with the Strasbourg jurisprudence, whose character has always been essentially pragmatic.” (Emphasis added).
[65]In paragraph 45 of its judgment the court asked itself: “How far may the nature and quality of any investigation embarked upon in satisfaction of the article 2 adjectival duty vary according to the circumstances of the case? Are requirements such as publicity and family participation, and other virtuous procedures constant?[66]It gave its answer in paragraph 62:
“Accordingly, this part of the case cannot be satisfactorily resolved by a process of reasoning which sticks like glue to the Strasbourg texts. Just as, in our view, on question (2) [counsel for the Crown] originally adopted too rigid an approach to the Human Rights court's jurisprudence in submitting that the duty to investigate was only triggered in cases of the use of unlawful force by state agents, so also on question (3) [counsel for the claimants] makes the same error in submitting that there are fixed requirements of publicity and family participation, uniformly applicable to every investigation. What is required will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said the state has laid on lethal hands. The procedural obligation promotes these interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduced to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts case by case. In our judgment the Strasbourg authorities including Edwards's case are perfectly consistent with this. And it is an approach which embraces what we will say in the Middleton appeal about the coroner's jurisdiction and inquest verdicts of neglect.”
[67]While this court is now bound to take into account the decisions of the court at Strasbourg, it is bound by the force of precedent by its own earlier judgments. From the judgment in Amin (on which we are now awaiting the decision of the House of Lords) one can derive the following principles:(1) A case involving, as this one does, an allegation of gross negligence by a servant or servants of the state falls in the middle of the spectrum that extends from allegations of deliberate killing by a servant of the state to allegations of plain negligence by such servants that lead to a death or allow it to happen;(2) The “lamentable possibility” that the state might have concealed its responsibility for the death, as is alleged in the present case, may arise at any point on this spectrum;(3) The procedural obligation introduced by Article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public;(4) What is required by way of an investigation cannot be reduced to a catechism of rules; a flexible approach is needed, responsive to the dictates of the facts, case by case.[9]Question 2: Has the state’s Article 2 obligation in this case already been performed?[68]The judge considered that the combination of the thorough police investigation and the thorough inquiries undertaken by the Trust were sufficient in themselves to comply with this obligation, coupled as they were by an admission of liability by the Trust. He reached this conclusion even though Mr and Mrs Khan had played no part in either investigation. They were merely told of the results and invited to ask questions about them after they were all over. The judge categorised the failure to involve the family as regrettable and unfortunate, but he thought that this could not gainsay the fact that thorough investigations had taken place. The fact that the Trust had admitted liability satisfied in his mind one of the main purposes of the requisite investigation, namely to ascertain who was to blame for the death, and he considered that the duty to investigate in this case was pitched at a lower level than in a case of a death in custody.[69]We do not agree with the judge’s conclusion. Subject to what we say in paragraph 76 below, under our law it is the coroner’s inquest, when it takes place, which furnishes the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires. The police investigation, in which the family played no part, and which culminated in a decision not to prosecute, could not act as a substitute. Nor could the investigations carried out privately by the Trust, in which again the family played no part, particularly as the Trust could not be regarded as having the requisite independence.[70]In our judgment the judge seriously under-estimated the gravity of this case. It is, as we have said, a case in which allegations of gross negligence have been made by an independent expert, and these are compounded by the events that led the family’s solicitor to express concern about a medically orchestrated cover-up. So far as the latter is concerned, this case is a long way from the case of Powell where the alleged falsification of records was discrete and separate from the negligent omissions with which the doctors were charged. Here the alleged cover-up was close to the centre of the events into which the coroner will be inquiring, and the evidence as to what really happened could cast light on the credibility of the Trust’s witnesses in this respect.[71]Nor do we consider that in this case the admission of liability takes matters very much further. The Trust has not formally identified the acts or omissions which it considers to have been negligent, and this blanket admission leaves the family not very much the wiser. This is not a case where a single act of negligence is alleged against a single person, and it is dangerous to extrapolate from the facts of one case to the facts of another. We would add that both the Strasbourg court in Edwards (at para 74) and this court in Amin (at para 57) made it clear that there was no obligation on the deceased’s family to initiate civil proceedings in order to find out what happened in a case like this. The state itself must initiate the necessary inquiry. The idea that the family should be obliged to initiate disciplinary proceedings against any of the nurses or the doctors in order to ascertain the facts of their daughter’s death is not one that can be seriously entertained on the facts of the present case.[72]For these reasons we do not consider that the state has yet fulfilled the obligations imposed on it by Article 2.[10]Question 3: If the state has not yet fulfilled its Article 2 obligations, can the holding of the inquest satisfy those obligations if Mr Khan cannot play an effective part in it himself?[73]We have described how the response required of a state by Article 2 varies with the seriousness of the subject matter. Although this of course is not a case in which a servant of the state is charged with intentional killing, it is high up in the second category of cases identified by Lord Woolf in Amin. A little girl has died in circumstances where gross negligence has been imputed to the hospital staff, and the case has the other distressing features we have described in paragraphs 3, 10 and 24 of this judgment.[74]If the public judicial investigation required by Article 2 is to be an effective one – and by “effective” we mean an investigation that satisfies the purposes described in paragraphs 40 to 43 of this judgment, reinforced as they are by the third principle we have derived from Lord Woolf’s judgment in Amin (see para 67 above) – the inquest will not be an effective one unless Naazish’s family can play an effective part in it. The evidence shows (see para 24 above) that they are in no fit state to play that part themselves. Although the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented, every rule has its exceptions, and this, in our judgment, is an exceptional case. We note that the authors of the recent Report of a Fundamental Review into Death Certification and Investigation in England, Wales and Northern Ireland (Cm 5631) share our view, in Chapter 9 of their report, that in an exceptional case something more is needed.[75]In particular, the evidence is so complex that the coroner has enlisted the services of an independent medical expert to assist him. The Trust and its doctors and nurses will have the benefit of legal representation at public expense, and the family are likely to wish to explore the prospects of a verdict of neglect and/or a report by the coroner pursuant to Rule 43 of the Coroners Rules. Mr Khan clearly could not manage this on his own.[76]In the recent case of Sacker v HM Coroner for West Yorkshire [2003] EWCA 217 at [24] – [25]; [2003] Lloyds Med LR 326 Pill LJ expressed some scepticism about the suitability of a coroner’s inquest, in its present form, as a vehicle for carrying out a state’s obligations under Article 2. Those considerations may accentuate the need for an overdue improvement in the arrangements for inquests: it cannot in our judgment serve as a valid excuse for effectively excluding a family from participating in them in a case of this seriousness.[77]For the sake of completeness we would add that we do not consider that the judgments of this court in R (Green) v Police Complaints Authority [2002] EWCA Civ 389, to which Mr Giffin referred us, cast any useful light on the matters we have to decide in the present case. We therefore consider that the answer to question 3 is “no”.[11]Question 4: If the answer to question 3 is “no”, does the 1998 Act apply, so that Mr Khan may obtain relief in a national court?[78]The provisions of the ECHR formed no part of our national law until 2nd October 2000. Before that date citizens of this country who believed their Convention rights had been violated had to exhaust their opportunities of obtaining a remedy in our courts before they could seek relief in Strasbourg. The 1998 Act changed all that. Now anyone who seeks redress for the violation of a Convention right can obtain relief in the courts of this country. Naazish, however, died in September 1999, and there is a difference of opinion in the lower courts as to whether the family of someone who died before 2nd October 2000 may rely on their right to enforce the state’s obligations under Article 2 if those obligations remained unsatisfied when the 1998 Act came into force.[79]The judge held that they could not. After mentioning other conflicting judgments at first instance and considering Lord Woolf’s judgment in Amin at paragraphs 32, 43 and 81, he concluded that the duty to investigate in Article 2 was not an independent duty. It was dependent on whether the main duties expressly stated in that article had arisen. If a death occurred before October 2nd 2000, Article 2 was not engaged, and as a matter of English law the state’s adjectival duty to investigate did not arise, whether by necessary implication or at all.[80]In R (Hurst) v HM Coroner for the Northern District of London [2003] EWHC 1721 (Admin) the Divisional Court disagreed. Rose LJ, with whom Henriques J agreed, accepted that the state’s duty to investigate a death was adjectival in the sense that it was ancillary to the main right to life recognised by Article 2. But he said (at para 19) that it seemed to him that it was nonetheless a freestanding right. In Hurst the coroner had decided in November 2002 and June 2003 not to resume the inquest, and by then the 1998 Act had come into force.[81]In Amin this point was never argued, although both the deaths in that case had antedated 2nd October 2000. Mr Giffin, however, derived a principle from Lord Woolf’s judgment to the effect that the state’s procedural duty to investigate existed, and existed only, in order to ensure the effectiveness of the substantive rights conferred by Article 2. It had no fixed content in itself: “It only has life case by case, contingent upon what is required in any individual instance for the substantive’s right protection”. (at para 32)[82]We certainly accept that if this case did not have an ECHR ingredient it might well be legitimate for an English judge to conclude, as Silber J did, that Naazish’s right to life could not be relied upon after her death in September 1999. But we do not believe the court at Strasbourg would look on this matter in this way.[83]In Hurst Rose LJ referred to the judgment of the ECtHR in Jordan v UK without expressly citing the passage he had in mind. The relevant passage is at paragraphs 102 – 109. The court stressed (at para 102) that Article 2 ranked as one of the most fundamental values of the Convention, enshrining (along with Article 3) one of the basic values of the democratic societies making up the Council of Europe. It went on to say:
“The object and purpose of the convention as an instrument for the protection of individual human beings also requires that article 2 be interpreted and applied so as to make its safeguards practical and effective.”
[84]It is Naazish’s right to life that is at the centre of this case, and the fundamental importance of that right obliges the state to investigate her death judicially and publicly in the manner indicated by Strasbourg case-law. Her parents simply act as her proxy in requiring this investigation to take place. They are entitled to say after 2nd October 2000, just as much as they were entitled to say before she died, that the state must implement the Convention obligations it owed to her. Paragraphs 102 to 109 of the judgment in Jordan contain none of the precision one would expect of a Chancery judgment. The court does not identify the precise moment when a right vested, or the precise legal status of the persons who are entitled to enforce that right after the death of the deceased. The dead Mr Jordan is spoken of as the “victim”. But the court accepts without the need for any profound analysis that the victim’s family is entitled to stand in his shoes after his death and make his right a real one.[85]In our judgment Naazish had a right to life which the Strasbourg court would have recognised when the 1998 Act came into force, even though by that time her parents had to act as her proxies, and they were limited to a reliance on the state’s adjectival duty to investigate her death properly. We do not therefore consider that the fact that Naazish died in September 1999 provides any effective bar to the relief sought by her father in these proceedings. It was in July 2002 that the Secretary of State first denied them the relief they are now seeking, and by then the 1998 Act had been in force for nearly two years. If this decision causes practical difficulties in other cases, the solution to those difficulties will have to be worked out on a case by case basis. The answer to question 4 is therefore “yes”.[86]We are therefore giving the following answers to the questions in paragraph 46 of this judgment:(i) The United Kingdom has not so far discharged its obligation under Article 2 of the Convention in the present case.(ii) The holding of an inquest will not discharge that obligation if Mr Khan cannot play an effective part in it himself.(iii) The 1998 Act applies, so that Mr Khan is entitled to relief in a national court. We will therefore allow the appeal to this extent at least, and (subject to detailed argument as to their form) make declarations to that effect.[12]Question 5: Whatever the answer to the first four questions, does the Secretary of State have power to make the necessary funding available?[87]It appears to us that the next question now is whether there is any way in which the United Kingdom can discharge its obligations to Mr Khan under Article 2. It follows from the conclusions that we have reached so far that the United Kingdom owes Mr Khan a duty to set up an inquiry which will discharge that obligation. As we see it, that could be achieved in one of two ways. The first way would be to provide reasonable funding at an inquest in order to ensure that the Khan family is represented, and the second would be to set up some other type of inquiry at which such funding would be possible.[88]It would certainly be open to the Secretary of State (whatever views he has previously expressed on the matter) to set up an inquiry under section 84 of the National Health Service Act 1977 (“the 1977 Act”) and to make provision for the payment of Mr Khan’s reasonable legal costs at such an inquiry. We imagine that there may have been many such inquiries at which the interests of the family have been provided out of public funds without their being granted legal aid. It follows that this is not a case in which the United Kingdom cannot discharge its obligations to Mr Khan under Article 2.[89]Mr Havers QC, who appeared for Mr Khan, submitted, on the basis that the Secretary of State has so far declined to hold an inquiry, whether under section 84 or otherwise, that although Parliament has created the Legal Services Commission for the purpose of channelling taxpayers’ funds towards the cost of legal representation when circumstances warranted it, the Secretary of State nevertheless has an equivalent power in a case like this pursuant to Section 2 of the 1977 Act. This section provides, so far as is material, that:
“Without prejudice to the Secretary of State’s powers apart from this section, he has power – (a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed upon him by this Act; and (b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.”
Section 1(1) of the Act prescribes the Secretary of State’s duty to continue the promotion of a comprehensive health service in England and Wales, and other sections of the Act identify particular facets of that duty. (a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed upon him by this Act; and (b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.”[90]The judge did not answer the question whether sections 1(1) and 2 of the Act, read in accordance with the precepts contained in section 3 of the 1998 Act, gave the Secretary of State the requisite power. He cut the Gordian knot by holding that if the effect of ECHR Article 2 was that the Secretary of State would be acting unlawfully if he did not provide for the payment of Mr Khan’s legal costs, then he was under an obligation under Article 2 to make the necessary payments irrespective of whether the 1977 Act gave him power to do so.[91]This conclusion cannot be right. First principles of Parliamentary sovereignty do not permit ministers to make payments out of public funds when Parliament has given them no power to do so, and the courts cannot require ministers to make unlawful payments. Whether the Secretary of State has power to pay a family's costs at an inquest thus depends upon the true construction of section 2 of the 1997 Act in the light of section 3 of 1998 Act.[92]Mr Giffin submitted in relation to the interpretation of section 2 that the legal representation of a family at an inquest is not calculated to facilitate, and is not conducive to, the provision of medical services. Nor is it incidental to the provision of such services. He said that the purpose of an inquest is to establish how the death of the deceased came about. Its purpose is not to deal with the future provision of medical services. He observed in this context that in R (Wagstaff) v Secretary of State for Health [2001] 1 WLR 292 Kennedy LJ considered that the Secretary of State might only lawfully establish a tribunal of inquiry pursuant to section 2(b) of the 1977 Act if its terms of reference were restricted to the operation of the National Health Service and the way in which the functioning of other agencies impacted on that service.[93]Mr Giffin added that it would be wrong to interpret a general power in a statute in the imaginative way suggested by Mr Havers when Parliament has made a different express provision which is designed to deal comprehensively with public funding of representation at courts and tribunals. In Credit Suisse v Waltham Forest LBC [1997] QB 362 Neill LJ said at p 374C:
“… where Parliament has made detailed provision as to how certain statutory functions are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the statutory code.”
[94]Although we see the force of Mr Giffin’s arguments, we consider that it would be premature for us to reach a final view on the interpretation of section 2 of the 1977 Act (bearing in mind our interpretative obligations under section 3 of the 1998 Act) before we have received fuller argument about the alternative ways in which the state might fulfil its obligations under Article 2 in this case. We have in mind the possibility that the Secretary of State might now opt to conduct a statutory inquiry under section 84 (notwithstanding his earlier views on the topic) or that he might identify a lawful non-statutory route to the same end. Alternatively the Lord Chancellor might wish to consider, with the Treasury’s consent no doubt, relaxing the provisions of the statutory instrument that denies legal aid funding to the parents of a dead child on an occasion like this.[95]In this context we have been shown how the Lord Chancellor, in the exercise of his powers under section 6(8)(a) and (b) of the Access to Justice Act 1999, has been making more generous provision for legal representation at inquests out of public funds than was open to him before that Act was passed. In particular we have been shown the direction he made in this context pursuant to section 6(8)(a) in November 2001 and the guidance he issued at the same time under section 6(8)(b), with particular reference to representation at inquests.[96]All the conditions set out in paragraph 7 of the Lord Chancellor’s new guidance appear to be satisfied in the present case, save one. The circumstances of Naazish’s death certainly seem to be such that funded representation for her family is necessary to assist the coroner to investigate the case effectively and to establish the facts, and this is an inquest which concerns an agency of the state. The one condition that is not satisfied relates to Mr Khan’s means. Although he has been unable to take instructions on the matter, because of his client’s distressed state, Mr Balen understands that his financial position is marginally above the rigid financial limits prescribed by regulation 5(6) of the Community Legal Service (Funding) Regulations 2000 (“the 2000 Regulations”).[97]It would be wrong to say very much about these regulations in the absence of a representative of the Lord Chancellor and in the absence of a clearer understanding of Mr Khan’s financial position and of his commitments to his family.[98]If the legal aid route is the state’s preferred route towards fulfilling its Article 2 obligations in a case like this, it seems to us at present seriously open to question whether a provision which requires someone like Mr Khan to fund the entire cost of his lawyer’s appearance at the inquest into his daughter’s death entirely out of his own pocket in a case as serious and as complex as this (without any possibility of reimbursement by the state) is compatible with the requirements of the Convention. After all, the Convention imposes on states the obligation to conduct an effective investigation in a case like this, and without Mr Khan’s participation the inquest cannot fulfil that role. With a wife and four other children to support it seems absurd, on the information at present available to the court, that he could reasonably be expected to fund the whole of the cost of his own representation himself in order to enable the state to perform the obligations that rest on it, and not on him.[99]We must stress that this is an exceptional case, remarkable as it is for the fact that the Trust excluded the family completely from the investigations it conducted. But human rights law casts long shadows in exceptional cases. Those who drafted the 2000 Regulations do not appear to have appreciated the power of Article 2 when they excluded even an exceptional case like this from the category of cases in which legal representation might be made available without a strict and unyielding means test. We were unimpressed by the suggestion made by Mr Giffin that economic exigencies might be called in aid by a state to whittle down its obligations in a case as serious as this.[100]In these circumstances we propose to hold a further hearing in this appeal on the first open day on or after 27th October in order to give further consideration to the question whether we need to interpret section 2 of the 1977 Act as giving the requisite power by which the state may perform its duties to Mr Khan at the forthcoming inquest, or whether the state suggests some other route to that end. We would benefit greatly on that occasion from the help of counsel instructed by the Lord Chancellor (in relation to his legal aid responsibilities). We would also welcome the assistance of counsel instructed by the Attorney-General (representing the Government as a whole) so that we may consider the possibilities if it were to be submitted on behalf of both the Secretary of State for Health and the Lord Chancellor that each has no power to fund representation at an inquest in the circumstances of this case. We would then wish to have assistance in order to answer the question how the United Kingdom proposes to discharge the obligation under Article 2 which we have held to exist.[101]It may be, of course, that some satisfactory and lawful means may be found by the Government for funding Mr Khan’s representation at the forthcoming inquest, so that the difficult issues on which we wish to hear further argument may take place on an occasion uninhibited by external time pressures created by the need not to delay the inquest (which concerns a lot of people other than Mr Khan) any further.

Order

Minute of order to be lodged with court. (Order does not form part of the approved judgment)

Cited in 23 later judgments

and 14 more of the most senior