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You are here: BAILII >> Databases >> European Court of Human Rights >> MCGLINCHEY AND OTHERS v. THE UNITED KINGDOM - 50390/99 [2003] ECHR 211 (29 April 2003) URL: http://www.bailii.org/eu/cases/ECHR/2003/211.html Cite as: (2003) 37 EHRR 41, [2003] Prison LR 314, [2003] ECHR 211, (2003) 72 BMLR 168, [2003] Inquest LR 191, 72 BMLR 168, [2003] Lloyd's Rep Med 264 |
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SECOND SECTION
CASE OF McGLINCHEY
AND OTHERS
v.
THE
UNITED
KINGDOM
(Application no. 50390/99)
FINAL
29/07/2003
JUDGMENT
STRASBOURG
29 April 2003
In the case of McGlinchey
and Others
v.
the
United
Kingdom,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. COSTA, President,
Mr A.B. BAKA,
Sir Nicolas BRATZA,
Mr L. LOUCAIDES,
Mr C. BîRSAN,
Mr M. UGREKHELIDZE,
Mrs A. MULARONI, judges,
and Mr T.L. EARLY, Deputy Section Registrar,
Having deliberated in private on 28 May 2002 and 1 April 2003,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
1. The case originated in an application (no. 50390/99) against
the United
Kingdom
of Great Britain and Northern Ireland
lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the
Convention”) by three
United
Kingdom
nationals, Mr Andrew George
McGlinchey,
Ms Natalie Jane Best and Ms Hilary
Davenport
(“the applicants”), on 17 June 1999.
2. The applicants, who had been granted legal aid, were
represented by Mr K. Lomax, a lawyer practising in Leeds. The
United
Kingdom
Government (“the Government”) were represented by their Agent,
Mr D. Walton, of the Foreign
and Commonwealth Office, London.
3. The applicants alleged in particular that Judith McGlinchey,
the mother of the first two applicants and daughter of
the third applicant, had
suffered inhuman and degrading treatment in prison prior to her death and that
there was no effective
remedy available to them concerning this complaint.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).
5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. By a decision of 28 May 2002, the Chamber declared the application admissible.
7. The Government, but not the applicants, filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants Andrew George McGlinchey
and Natalie Jane Best,
born in 1985 and 1990 respectively, are the children
of Judith
McGlinchey
(born
in 1968). The applicant Hilary Davenport, born in 1945, is the mother of Judith
McGlinchey.
9. On 3 January 1999, Judith McGlinchey
died in Pinderfields
Hospital, Wakefield, West Yorkshire, whilst in the care of
the Home Office of
the
United
Kingdom
government as a convicted prisoner.
10. Judith McGlinchey
had a long history of intravenous heroin
addiction and was asthmatic, for which she had been admitted
to hospital on six
occasions during the previous year.
It is purported that Judith McGlinchey
had, prior to being imprisoned, told
her mother, who now cares for her children Andrew and
Natalie, that she wanted
rehabilitation assistance to rid herself of the heroin addiction. She told her
solicitor that she had
tried to refer herself for help but that it was
impossible to obtain appointments without inordinate delays.
11. After having been convicted of theft, Judith McGlinchey
was
sentenced at Leeds Magistrates’ Court, on 7 December
1998, to four
months’ imprisonment, despite an alternative proposal for a probation
order with a condition that she be treated
for her addiction. Thereafter, she
was detained at New Hall Prison, Wakefield. She stated to her solicitor that she
intended to
use the period in custody as an opportunity to rid herself of her
addiction to heroin.
12. At the health screening on her arrival at the prison on 7
December 1998, Judith McGlinchey
was noted as not seeming
excessively withdrawn,
depressed or anxious. She weighed 50 kg. She complained of swelling to her left
arm, withdrawal symptoms
from her addiction and suffering from severe asthma
especially when withdrawing, and was kept in the health-care centre pending
an
examination by a doctor. That evening, Judith
McGlinchey
telephoned her mother
complaining of her infected arm and asthma. During
the night, when she was
observed to be wheezing, she was given an inhaler. She was also given
paracetamol.
13. The prison medical records showed thereafter that she was
complaining of withdrawal symptoms and that she was vomiting
frequently. The
records consisted of the continuous medical record, prescription and
administration charts and the nursing assessment
notes. Her blood pressure,
temperature and pulse were checked daily.
14. On 8 December 1998 Judith McGlinchey
was examined by Dr K.,
the prison senior medical officer, who prescribed antibiotics
for her arm,
inhalers for her asthma and medication, Lofexidine, to appease the symptoms of
heroin withdrawal. The nursing notes
stated that she threw a cup of tea across
the cell, was “locked in for education” and that during the night
she was
very
loud and demanding. Lofexidine was not administered at 12 noon. The
applicants alleged that this was a punishment, while the
Government submitted
that it was on the instructions of the doctor due to a drop in Judith
McGlinchey’s
blood pressure. The
entries in the nursing notes show that
Judith
McGlinchey
was seen by a medical officer that morning and the drugs
record sheet,
signed by Dr K., indicates that after a blood pressure reading of
80/60 the next dose of Lofexidine was omitted at 12 noon.
15. On 9 December 1998 the record noted that she remained
demanding. She had been told to clean her cell prior to education,
which was a
reference to the routine tidying-up of the cell and in accordance with normal
practice. It was noted that she refused
to comply. She was locked in during the
education period and declined every meal. In the evening her weight was recorded
as 43
kg. It was noted that she had vomited
during the evening and had
complained of
vomiting
during the night. She was encouraged to
take fluids and
given two doses of a mild anti-nausea drug (magnesium trisilicate) by the
nursing staff.
16. Her situation was reviewed by Dr K. on 10 December 1998. As
stated later in a statement to the coroner dated 4 January
1999, her medical
readings (temperature, pulse and blood pressure) remained satisfactory. She did
not appear dehydrated –
it was noted that her tongue was moist and clean
– but as she was still complaining of vomiting
she was given an injection
of anti-emetic medication. She complained of diarrhoea and stomach cramps to the
nurse on duty during the night. A dose of magnesium
trisilicate was given for
nausea but it was recorded that this had little effect.
17. On 10 December 1998 Judith McGlinchey
called her mother in
tears, complaining that despite having been given an injection,
she could not
stop
vomiting
and was getting no other medical support to assist her to come off
drugs. She said that she was having
to clean up her own
vomit
and thought she
was going to die. The Government stated that there was a lavatory in her cell
which she
would have been able to reach and that the practice was for nursing
staff to clean up if
vomit
landed on the floor or any other
area. The only
member of staff involved in the care of Judith
McGlinchey
who remains with the
Prison Service and who is head of
nursing care at the prison has informed the
Government that a prisoner would not have been asked to clean up her own
vomit
and
she has no recollection of Judith
McGlinchey
being asked to do so.
18. On 11 December 1998 she was recorded as keeping down a cup of
tea and a glass of juice but was vomiting
again during
the afternoon and
evening. At 6.10 a.m. she was found smoking in bed and when asked what the
matter was, she replied “nothing”.
The next day, she was found to be
“opiate positive”.
19. The doctor examined her on 11 December 1998. She was given a
further injection of medication to help with her symptoms.
He found her general
condition to be stable. In his statement of 4 January 1999 he noted that,
following the injection, she was
able to keep down oral fluids during the day,
although she vomited
again in the evening. The Government stated that the doctor
checked her for signs of dehydration but did not find any. This was confirmed by
Dr K.’s evidence to the coroner. The notes
stated that her tongue was
moist and clean. In the case of a person who was severely dehydrated, he would
have expected the person
to be physically
very
weak and possibly bedridden, to
have a fast pulse rate and low blood pressure and, on examination, the eyes
would appear sunken, the tongue dry and cracked, the lips drawn and the skin
drawn and thin.
20. On 12 December 1998 she continued to vomit
and suffered from
diarrhoea and abdominal discomfort. Her weight was recorded
as 40 kg. She ate
nothing. The nursing notes recorded that she had had a better night. There was a
reference: “Continues
to
vomit
on occasions? hand down throat.” The
medical record stated that she had been observed with fingers down throat and
vomit
on her hand.
21. On 13 December 1998 according to the nursing entries, there
was no vomiting
complained of or witnessed apart from
twice at the beginning of
the night. It was also recorded that she ate a small dinner and slept for long
periods that night. There
were no entries in the medical record on this day. The
doctor stated in his statement of 4 January 1999 that on 12 and 13 December
1998 her temperature, pulse and blood pressure all remained within normal
limits. Oral doses of anti-emetic drugs (metoclopromide)
were prescribed to
follow the injections, and administered on four occasions between 10 and 12
December 1998. In her evidence to
the coroner, the head of nursing care stated
that the drugs were not given on 13 December as Judith
McGlinchey
had stopped
vomiting.
22. However, at 8.30 a.m. on 14 December 1998, the following was noted in the continuous medical record:
“... went to see inmate in cell, as she got out of bed she collapsed
against me vomiting
(coffee ground). Laid on floor in
recovery position and
summoned help. Patient appeared unresponsive and appeared to be having a fit.
Ambulance called (999). Regained
consciousness, still
vomiting,
2 nurses helped
her onto bed. Oxygen in situ. ECG taken. Unable to obtain pulse or BP.
Unable to gain IV access due to abscesses on arms and previous drug use. Next of
kin
rung at 0915 hours at Judith’s request, unavailable, son to pass on
message within half an hour. Taken to hospital by ambulance.
Ambulance arrived
at 0845 hours and left at 0853 hours for Pinderfields General Hospital,
Wakefield.”
23. Lots of “coffee-ground” vomit
(altered blood in
the stomach) was recorded as being found on her bed. Pinderfields
Hospital
medical records showed that she was admitted at 9.18 a.m. Her mother was
informed around that time that Judith
McGlinchey
was in hospital and that she
was ill but had stabilised. She was recorded as being
“... drowsy but movable and responsive. Staff nurse informed me that the white cell count was raised, with abnormal kidney and liver function ... possible diagnosis of ... drug abuse”.
24. Her mother later learned from the nursing staff that on
admission Judith McGlinchey’s
hair was matted with
vomit.
25. On 15 December 1998 at 8 a.m., the following entry was recorded:
“Transferred to Ward 7; Ward 7 contacted in the middle of an emergency with her, arrested, but has been resuscitated (sic) and now is having a blood transfusion and an airway [made] ...”
At 10.30 a.m.:
“... Ward 7 contacted to ask if relatives have been informed of
deterioration, they are with her now, they are going to reassess
her in half an
hour and if no improvement turn off the ventilator.”
26. The hospital informed the family that Judith McGlinchey
was in
a critical condition and might have suffered brain
damage due to the cardiac
arrest. Her liver and kidneys were failing and they could not stabilise her. She
was
ventilated
by hand
as there were no beds in the Intensive Care
Unit
(ICU).
The doctors said that they would stop the medication to see if she came
round
and breathed on her own and, if not, they would leave her. A Roman Catholic
priest was called. The family was advised to
say goodbye to Judith
McGlinchey
and did. She then recovered a little and at 7.15 p.m. she was moved to Bradford
Royal Infirmary
where there was an ICU bed available. She was stable on the ICU
ward although she was kept on life support and was heavily sedated.
27. On 16 December 1998 at 6.45 a.m., Judith McGlinchey’s
condition was recorded as stable but critical. At 1 p.m.
she was given a
very
poor prognosis. By 2 p.m. on 18 December 1998, her condition had improved a
little. She remained on a
ventilator,
although sedation had then been stopped.
She made jerking movements at times and appeared to be waking up slowly. On the
night
of 23 December 1998, she opened her eyes and responded to light, although
the brain scan did not reveal any activity.
28. On 27 December 1998 Judith McGlinchey
was transferred to
Pinderfields General Hospital to the High Dependency
Unit
and from there to Ward
7. It was recorded on 31 December that although her eyes were open, she remained
unresponsive and in a critical
condition. On 2 January 1999 her mother
visited
with the children. Her eyes were open but she appeared dark yellow in colour and
making jerky movements associated with brain damage.
29. On 3 January 1999 the hospital advised the family to go to the
hospital immediately. The prison medical record stated
that Judith McGlinchey
died at 1.30 p.m.
30. The autopsy report, following the post-mortem examination of
4 January 1999, noted that Judith McGlinchey
weighed
41 kg. It stated that
although one symptom of heroin withdrawal can be
vomiting,
the cause of the
applicant’s
vomiting
was
never fully established. Episodes of severe
vomiting
could have caused a tear in the upper gastro-intestinal tract (“a
Mallory
Weiss tear”) though this would most likely have healed by the time
she died. This was the most likely cause of haemorrhaging
in the stomach which
could result in coffee-ground
vomiting.
If she had lost a substantial amount of
blood, rendering her anaemic,
this could have triggered the cardiac arrest. The
cardiac arrest precipitated hypoxic brain damage and multi-organ failure with
an
inevitably fatal outcome.
31. In a letter dated 18 January 1999, the coroner informed the
family that an inquest would be held before a jury. At
the inquest, which took
place on 6 December, evidence was given by Dr K., the prison doctor, Sister N.,
the head of nursing care
at the prison, the forensic pathologist who carried out
the post mortem, three consultants from the Pinderfields and Bradford Hospitals
who had been involved in treating Judith McGlinchey
and the third applicant,
Judith
McGlinchey’s
mother. The latter was represented
during the
proceedings by a solicitor who put questions to the witnesses on her behalf.
32. During the evidence it emerged that the scales used to weigh
Judith McGlinchey
in prison were inaccurate and incompatible,
those used on
reception being two to three pounds out compared with those used subsequently in
the health-care centre. Due to this
discrepancy, Dr K. explained that he placed
greater importance on his clinical impressions of Judith
McGlinchey
regarding
any effect
of possible weight loss, but was aware of the potential problem and
had given instructions for her weight to be monitored. Notwithstanding
that
antibiotics had been prescribed for her septic arm, it was also indicated that
these had not been given to her over a number
of days – out of twenty
doses that she should have received over five days, she received sixteen. The
head of nursing care,
Sister N., was unable to explain the omissions although
she suggested that the nurse could have forgotten to sign the medicine card.
33. Both Sister N. and Dr K. gave evidence that Judith McGlinchey
did not give a clinical impression of being
very
ill
during this period, stating
that she was up and about and associating with others. Dr K. stated that her
symptoms had been diminishing
and that given her blood pressure, temperature,
pulse and her general condition, he had no concern that she was gravely ill or
that there was any need to admit her to an outside hospital. It was revealed
that Dr K. did not work in the prison on weekends and
was not present therefore
on 12 and 13 December 1998 before Judith
McGlinchey’s
collapse. A
part-time doctor attended on
Saturday mornings and the prison depended on
calling a doctor on agency if required. This explained the lack of any record in
the
notes for 13 December 1998. Sister N. explained that the entry in the
nursing notes on 8 December which stated that Judith
McGlinchey
had been
“locked in for education” referred to the routine procedure whereby
those prisoners not participating
in the education class were detained in their
cells during that period.
34. Evidence was also given by the three consultants who treated
Judith McGlinchey
in hospital, concerning her state on
arrival and her
subsequent deterioration. They were unable to say with any certainty what had
caused her collapse or the bleeding
in her stomach. Dr Tobin considered that she
was dehydrated on arrival at hospital but, due to her disturbed state, he was
unable
to put in a central line which would have allowed an accurate analysis to
be made. Under questioning, he stated that the signs consistent
with dehydration
could also have been caused by fresh bleeding but not by one episode of
coffee-ground
vomiting.
35. In his summing-up to the jury, the coroner summarised the evidence as follows:
“... for the first day Judith was admitted in the Health Care Centre
... she was then seen by the doctor, [Dr K.], on the second
day, on 8 December.
He examined her and made a note. She was still retained in the Health Care
Centre but as the week proceeded,
Judith started to become unwell. You have
heard evidence of the fact that she was a heroin abuser and it was known that if
she
was to withdraw from heroin she might develop some unpleasant symptoms ...
those symptoms might manifest themselves for example
with diarrhoea and
vomiting,
possible stomach cramps, depleted sleep patterns and the like and in
fact the information that Judith
gave to her mother when she first rang rather
gave you the impression that she knew that possibly she was to have a rough road
ahead but she was prepared to put up with that.
Certainly throughout that week ... it is well-documented that Judith was
vomiting
profusely. Although she was given medication for
that on occasions it
only worked for a
very
short time and it is fair to say that from about midweek
onwards she was
vomiting
at
some stage every day. There was also reference to
the fact that she had diarrhoea and she was generally unwell.
Her nutritional state may well have been not all that it should have been and
although drinks were available for her there was no
means of monitoring how much
liquid she was taking in. It was not possible to monitor whether she was
actually drinking and vomiting
it back or not drinking at all. There was no
attempt at measuring fluid during the course of that week and her
vomiting
actually
progressed and on some occasions it was described as a lot of
vomiting.
It was referred to in the notes “
vomiting
+++”
which means rather a
lot and although she was seen by nursing staff every day and by the doctor on
other occasions the medical
staff at New Hall Prison were under the impression
all along that Judith was showing no signs of being dehydrated. In other words,
she was not being depleted of fluids and [Dr K.] explained in his evidence his
findings and the fact that he could see no real
evidence that she was dehydrated
at the time and felt that even with hindsight there was no necessity for her to
be admitted into
hospital.
Almost a week after her admission to [prison] on a particular morning when
she woke up ... she virtually
collapsed in the presence
of nursing staff and she
vomited
a large amount of ... coffee ground
vomit
...
There was some discussion during the evidence ... as to whether Judith had actually had a cardiac arrest at that time. In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case, although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that. There was no evidence at that particular time that she had experienced a cardiac arrest.
She was taken by ambulance to Pinderfields Hospital ... where she was
immediately placed under the care of Dr Tobin ... His working
diagnosis at the
time was that Judith may well have some degree of liver failure and that there
could also be some ... bleeding
from the upper gastro-intestinal tract, the
oesophagus ... because of the fact that she had vomited
the coffee ground
vomit.
The evidence of Dr Naomi Carter, the Pathologist ... found some residual
material in Judith’s stomach which could well have
resembled blood or
changed blood but ... was at pains to explain that she could find no source of
any bleeding within Judith’s
internal organs ... one possible likely cause
of the bleed that had produced itself in the coffee ground vomiting
was that the
retching which she had sustained... might have caused a small tear either in her
oesophagus at the point where it reaches the stomach
or alternatively in the
lining of the stomach itself ... that is a medical condition known as a Mallory
Weiss tear but she could
not find evidence of that. Her
view
was that possibly
that small tear might well have healed by the time that she saw Judith’s
body which was obviously by then some days later. That is the only explanation
as to why there was any bleeding ... The significance
of that bleed is
appropriate because it is highly likely that as a consequence ... Judith will
have lost some
volume
of blood which
will have meant that her heart might have
had to work harder in order to overcome that and certainly when she was at
Pinderfields
Hospital she was extremely unwell.
Dr Tobin was of the view
that he felt that Judith was in fact dehydrated but
he could not prove that specifically because you will
recall from Dr
Tobin’s evidence that it was not possible for him to insert a central
line. Had he been able to do that then
it might have been that could have been
used as a diagnostic tool ... certainly Dr Tobin was of the opinion that there
would seem
to be some suggestion that Judith was dehydrated, notwithstanding,
according to the medical staff at New Hall, they felt that that
was not the case
as the week had gone on.
On the morning of 15 December ... unfortunately Judith experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage.
... The post-mortem evidence ... explained the cause of death and Dr Carter was able to confirm that the cause of death was hypoxic brain damage, deprivation of oxygen to the brain, caused by a cardiac arrest which Dr Carter felt was as a consequence of an upper gastro-intestinal haemorrhage of an undetermined cause ...”
36. The coroner invited the jury to return a verdict
of death
through natural causes or an open
verdict.
The jury unanimously
returned an open
verdict.
37. Legal aid was granted to the three applicants to pursue
domestic remedies for compensation. Their solicitors sent
a notice of issue,
under cover of a letter dated 12 February 1999, to the Treasury Solicitor
requesting disclosure of medical and
prison records in view
of a claim for
damages with respect to the death of Judith
McGlinchey.
38. In a report dated 13 September 2000, the doctor consulted by the applicants stated, inter alia, as follows:
“It is my understanding that repeated vomiting
can be a symptom of
heroin withdrawal and while I have no personal experience
in managing people
undergoing a detoxification programme, I would, however, be
very
unhappy about
managing anyone who was
vomiting
repeatedly, without the use of intravenous
fluids, the intravenous administration of anti-emetic drugs and the facility to
monitor
blood chemistry frequently.
... Judith was severely under weight.
Her poor overall nutritional state was almost certainly longstanding and
probably connected to her heroin addiction but any prolonged
bout of vomiting,
from whatever cause, was likely to cause a serious imbalance of her blood
chemistry
very
quickly. Apart from
electrolyte disturbance and dehydration, she
would be
very
likely to have had difficulty maintaining an adequate blood sugar
level,
as she would have had no reserves in the form of stored carbohydrate
substances within the body, that could have been utilised,
when she was unable
to absorb adequate nutrients from her gastrointestinal system due to her
persistent
vomiting.
In such circumstances a vicious
circle can occur. A low blood sugar level
itself can cause more nausea and
vomiting.
Multiple metabolic
pathways can be
interfered with. The subject can become irritable. The level of consciousness
may be severely reduced and coma
can even occur.
Intravenous access is often very
difficult in intravenous drug abusers, even
for clinicians such as anaesthetists who routinely insert
needles. Central lines
are likely to be needed. These are special long catheters, often with more than
one lumen, that are inserted
into major blood
vessels
close to the heart. I
would not expect the average prison medical officer to be proficient in
inserting
such a line.
It is preferable for these lines to be inserted in hospital, by personnel with the necessary skills. After insertion, the correct positioning ... needs to be checked by X-ray before it is used to administer drugs and fluids. Once inserted their maintenance requires skilled, aseptic nursing care ...
I would be inclined to attribute the agitation and apparent lack of cooperation displayed by Judith after her admission ... and before her second collapse to cerebral irritation. Cerebral irritation is often seen following a period of cerebral hypoxia. Certainly, a degree of cerebral hypoxia probably occurred at the time of her collapse [in prison] and continued up to the time that resuscitation was underway at Pinderfields ...
The bleeding that occurred, following a period of persistent and violent
vomiting,
could certainly have been caused by a Mallory
Weiss tear as suggested
... in the autopsy report.
If Judith had been admitted to hospital earlier, it might still have proved
difficult to control the vomiting
and, in
view
of her
poor general and
nutritional state, if the cause of her bleeding was a Mallory Weiss tear, this
might still have occurred, but
she would not have had such a degree of
dehydration and/or biochemical disturbance, and the consequences of such an
occurrence
would probably have been less serious.
Alternatively, if her vomiting
had been brought under control at an earlier
stage, the subsequent sad sequence of events might have
been
prevented.”
39. In his opinion of 30 October 2000, counsel advised the
applicants in the light of this medical report that there was
insufficient
evidence to establish the necessary causal link between Judith
McGlinchey’s
death and the allegedly negligent
care afforded to her in
custody. They did not pursue their claims in negligence.
II. RELEVANT DOMESTIC LAW
40. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation, do not entitle a plaintiff to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.
41. Claims arising from the death of an individual caused by
negligence are brought under the Fatal Accidents Act 1976
or the Law Reform
(Miscellaneous Provisions) Act 1934. The former enables those who were
financially dependent upon the deceased
to recover damages for the loss of
dependency. The scheme of the 1976 Act is compensatory and save for the sum of
7,500 pounds
sterling for bereavement to the spouse of a deceased or parent of a
deceased child under 18 at the time of death, damages are awarded
to reflect the
loss of support. The latter enables damages to be recovered on behalf of the
deceased’s estate and may include
any right of action vested
in the
deceased at the time of his death together with funeral expenses.
THE LAW
I. ALLEGED VIOLATION
OF ARTICLE 3 OF THE CONVENTION
42. Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
43. The applicants complained that the prison authorities
inflicted inhuman and degrading treatment on Judith McGlinchey
during her
detention in prison. They submitted that the prison authorities failed to
administer her medication for her asthma and
that they did not give her
medication for her heroin withdrawal. On one occasion, the prison authorities
deliberately omitted giving
her an injection as a punishment for her difficult
behaviour. The prison authorities also permitted her to dehydrate and
vomit
unnecessarily and delayed unjustifiably in transferring her to a civilian
hospital where she could be expertly treated. She was
forced to clean up the
vomit
in her cell and was left lying in her own
vomit.
They drew attention to
Judith
McGlinchey’s
vulnerability,
the period of time over which she
suffered serious symptoms and the fact that she was not a high-security risk
prisoner.
44. The Government submitted that Judith McGlinchey
received
appropriate medication for her withdrawal symptoms and was
transferred to
hospital as soon as it became clear that her situation required more intensive
medical treatment than the prison
could provide. In particular, she was provided
with anti-emetic medication, which was, pursuant to the prison doctor’s
instructions,
injected on a number of occasions. When it was not administered on
8 December 1998, this was on the instructions of the doctor due
to a drop in
Judith
McGlinchey’s
blood pressure. There was no evidence that she was
left to clean up her own
vomit,
the practice
being for nursing staff to take
care of any such necessities. While it was noted that she was soiled with
vomit
on arrival at the
hospital, this was explained by the speed with which she had
been rushed to hospital when she collapsed, not by a deliberate refusal
to clean
her.
B. The Court’s assessment
1. General principles
45. The Court reiterates that ill-treatment must attain a minimum
level of severity if it is to fall within the scope
of Article 3. The assessment
of this minimum is relative: it depends on all the circumstances of the case,
such as the duration
of the treatment, its physical and/or mental effects and,
in some cases, the sex, age and state of health of the victim
(see, among
other
authorities, Tekin
v.
Turkey, judgment of 9 June 1998, Reports of
Judgments and Decisions 1998-IV, p. 1517, § 52).
46. Under this provision the State must ensure that a person is
detained in conditions which are compatible with respect
for her human dignity,
that the manner and method of the execution of the measure do not subject her to
distress or hardship of
an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands of
imprisonment,
her health and well-being are adequately secured by, among other
things, providing her with the requisite medical assistance (see,
mutatis
mutandis, Aerts v.
Belgium, judgment of 30 July 1998, Reports
1998-
V,
p. 1966, §§ 64 et seq., and Kudła
v.
Poland [GC],
no. 30210/96, § 94, ECHR 2000-XI).
2. Application in the present case
47. The Court observes that the applicants have raised a number of
complaints that the prison authorities inflicted inhuman
and degrading treatment
on Judith McGlinchey,
while the Government have maintained that she received
appropriate medication for
her withdrawal symptoms and was transferred to
hospital as soon as it became clear that her situation required more intensive
medical
treatment than the prison could provide.
48. As regards the allegation that the prison authorities failed
to provide Judith McGlinchey
with medication for her
heroin withdrawal as
punishment, the Court notes that it appears from the medical records that the
prescribed drug Lofexidine was
not administered at 12 noon on 8 December 1998.
Although the applicants complained that this was withheld for misbehaviour, the
Government submitted that it was in fact omitted on the instructions of the
doctor due to a drop in Judith
McGlinchey’s
blood
pressure. This is
supported by the medication notes which indicated that blood pressure had to be
monitored with this drug and
a drop in Judith
McGlinchey’s
blood pressure
had been recorded at this time. The notes also showed that she had been seen
by
the medical officer that morning and the drug record was signed by the doctor.
49. While there is a reference in the nursing notes, after the
entry about omitting the medication, to Judith McGlinchey
throwing a cup of tea
across the room and then being “locked in for education”, it was
explained at the inquest that
it was normal procedure for prisoners who were not
going to classes to be detained in their rooms during that period. The Court
finds therefore that it is not substantiated that relief for her withdrawal
symptoms was denied to Judith
McGlinchey
as a punishment.
50. As regards the allegation that Judith McGlinchey
was left to
lie in her
vomit,
the Government pointed out that this
appears to derive from
the comments of the hospital staff that when Judith
McGlinchey
arrived at the
hospital her hair and clothing
were matted with
vomit.
The medical and nursing
notes indicated that Judith
McGlinchey
had not been seen to
vomit
during the
night
and that she collapsed,
vomiting,
in the morning. The Court does not find
that in the urgency of her immediate transferral to hospital
the failure to
ensure that Judith
McGlinchey
was adequately cleaned discloses any element of
treatment that could be characterised
as degrading. As regards complaints made
to her mother that she was having to clean up her own
vomit,
there is no
substantiation
of this in the hospital or prison records although one entry
refers to Judith
McGlinchey
refusing to clean her cell. The Government,
relying
on a statement by the head of nursing care, submitted that this was a general
tidying requirement, not in response to a
vomiting
incident. The Government
asserted that the practice was for nurses to clean any
vomit
which landed on the
floor or elsewhere
in the cell. The Court finds that there is insufficient
material before it to reach any findings on this matter.
51. As regards the allegation that asthma medicine was not
administered, the Court notes that the nursing notes indicate
that inhalers were
provided on 7 December 1998 during the night when Judith McGlinchey
was seen to
be wheezing. In so far as the
applicants also mentioned irregularity in
administering the antibiotic medicine for Judith
McGlinchey’s
arm, it
appears that
out of twenty doses over a five day period, some four were omitted.
Sister N. was unable to provide an explanation for this at the
inquest, although
she suggested the possibility that the nurse in question had forgotten to
complete the drugs record. In either
case, it indicates a regrettable lapse in
procedure. However, the Court does not find any evidence in the material before
it to
show that this failure had any adverse effect on Judith
McGlinchey’s
condition or caused her any discomfort.
52. Finally, the Court considered the complaints that not enough
was done, or done quickly enough, by way of treating
Judith McGlinchey
for her
heroin withdrawal symptoms, preventing her suffering or a worsening of her
condition.
53. The Court observes that she was screened by a nurse on entry
to the prison on 7 December 1998. On 8 December 1998
she was seen by Dr K., the
prison doctor who set up a course of treatment for her various
problems. For the
heroin withdrawal symptoms,
he initially prescribed a withdrawal drug,
Lofexidine. One dose of this drug was omitted at midday due to her low blood
pressure.
On 10 December 1998 she was seen again by Dr K., who prescribed an
intra-muscular injection for the continuing withdrawal symptoms.
He found no
signs that she was dehydrated and placed more importance on his clinical
impressions than her apparent drop in weight
from 50 kg to 43 kg since there was
known to be a discrepancy between the scales used on admission and those in the
health-care
centre. He was aware however that there was a potential problem and
gave instructions for her weight to be monitored. On 11 December
1998 she was
examined again by Dr K., who found no signs of dehydration and considered that
her condition was generally stable.
He ordered a further injection which was
observed to have some effect as she was able to keep down fluids during the rest
of the
day. Oral doses of the anti-emetic drug were prescribed to continue over
the weekend. The nursing notes indicate that on occasion
during this period the
nurses administered mild anti-nausea medication to assist Judith
McGlinchey
with
her symptoms and were encouraging
her to take fluids.
54. While it appears therefore that Judith McGlinchey’s
condition from 7 to 12 December 1998 was subject to regular
monitoring, with the
medical and nursing staff taking steps to respond to Judith
McGlinchey’s
withdrawal symptoms, the Court
notes that during this period she was
vomiting
repeatedly, taking
very
little food and losing considerable weight in an
undefined
amount. Although injections had been given twice, these had had, at
most, a short-term effect and by the evening of 11 December
1998 she was
vomiting
again. The evidence of any improvement in her condition by this point
is, in the Court’s
view,
slim.
55. In the two following days, the weekend, according to the
staffing arrangements at the prison, Dr K. was not present.
A locum doctor
visited
the prison on the Saturday morning, 12 December, but the records do not
indicate that he saw Judith
McGlinchey.
If a doctor was required at any other
time over the weekend, the nursing staff were expected to call out a doctor or
arrange for
transfer to hospital. It appears therefore that Judith
McGlinchey
was not examined by a doctor for two days. On 12 December 1998
her temperature,
blood pressure and pulse were observed to be normal. She was however continuing
to
vomit
and her weight was recorded
as dropping to 40 kg, a further 3 kg
decrease since 9 December and a possible 10 kg decrease since her admission five
days earlier.
Notwithstanding this further deterioration, the nursing staff did
not find any cause for alarm or the need to obtain a doctor’s
opinion on
her condition.
56. The Government have pointed to positive signs over this period
– that she slept better during the night and
on 13 December took a small
meal. However, she vomited
on both days and after the meal in question. Dr K.
emphasised that, throughout,
her
vital
signs were within the normal range, and
that a person suffering serious dehydration would be expected to show lassitude
and identifiable physical symptoms which were not present in Judith
McGlinchey.
However, at the inquest, Dr Tobin considered that,
although it had not been
established by specific analysis that Judith
McGlinchey
was dehydrated on entry
to hospital due to an
inability to insert a central line, there were strong
indications to that effect. While the findings could be accounted for by
significant blood loss, one episode of coffee-ground
vomiting
would not provide
an adequate explanation.
57. The evidence indicates to the Court that by the morning of
14 December 1998 Judith McGlinchey,
a heroin addict
whose nutritional state
and general health were not good on admission to prison, had suffered serious
weight loss and was dehydrated.
This was the result of a week of largely
uncontrolled
vomiting
symptoms and an inability to eat or hold down fluids. This
situation,
in addition to causing Judith
McGlinchey
distress and suffering,
posed
very
serious risks to her health, as shown by her subsequent
collapse.
Having regard to the responsibility owed by prison authorities to provide the
requisite medical care for detained persons,
the Court finds that in the present
case there was a failure to meet the standards imposed by Article 3 of the
Convention. It notes
in this context the failure of the prison authorities to
provide accurate means of establishing Judith
McGlinchey’s
weight
loss,
which was a factor that should have alerted the prison to the seriousness of her
condition, but was largely discounted due
to the discrepancy of the scales.
There was a gap in the monitoring of her condition by a doctor over the weekend
when there was
a further significant drop in weight and a failure of the prison
to take more effective steps to treat Judith
McGlinchey’s
condition, such
as her admission to hospital to ensure the intake of medication and fluids
intravenously, or to obtain more expert
assistance in controlling the
vomiting.
58. The Court concludes that the prison authorities’
treatment of Judith McGlinchey
contravened the prohibition
against inhuman or
degrading treatment contained in Article 3 of the Convention.
II. ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
59. Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention
are violated
shall have an effective remedy before a national
authority
notwithstanding that the
violation
has been committed by persons acting in an
official capacity.”
A. The parties’ submissions
60. The applicants submitted that there was no adequate remedy for
their complaints about the treatment of Judith McGlinchey
in prison, or a remedy
that would address the defects in management and policy which allowed the
neglect and ill-treatment. Any
cause of action in negligence was dependent on
establishing the necessary causal link between the negligent acts and the death
and/or personal injury, which was not present in this case. The treatment in
issue was nonetheless inhuman and degrading treatment
contrary to Article 3 of
the Convention. No other remedies, which could provide compensation and an
acknowledgement of the breach,
existed.
61. The Government stated that remedies were available as required
by Article 13 of the Convention. Judith McGlinchey
could have used the internal
prison complaints system to complain about her treatment. Intolerable conditions
of detention were
also the proper basis for an application for judicial review.
The applicants had available to them a range of causes of action,
including
negligence and misfeasance in public office. This was not a case where national
law did not provide a
viable
cause of
action at all. The fact that the
applicants could not prove negligence on the facts did not mean that there was
no remedy available.
B. The Court’s assessment
62. The Court reiterates that Article 13 of the Convention
guarantees the availability at the national level of a remedy
to enforce the
substance of the Convention rights and freedoms in whatever form they might
happen to be secured in the domestic
legal order. The effect of Article 13 is
thus to require the provision of a domestic remedy to deal with the substance of
an “arguable
complaint” under the Convention and to grant
appropriate relief, although Contracting States are afforded some discretion
as
to the manner in which they conform to their Convention obligations under this
provision. The scope of the obligation under
Article 13 varies
depending on the
nature of the applicant’s complaint under the Convention. Nevertheless,
the remedy required
by Article 13 must be “effective” in practice as
well as in law (see Aksoy
v.
Turkey, judgment of 18 December 1996,
Reports 1996-
VI,
p. 2286, § 95; Aydın
v.
Turkey,
judgment of 25 September 1997, Reports 1997-
VI,
pp. 1895-96, § 103;
and Kaya
v.
Turkey, judgment of 19 February 1998, Reports 1998-I,
pp. 329-30, § 106).
63. In the case of a breach of Articles 2 and 3 of the Convention,
which rank as the most fundamental provisions of the
Convention, compensation
for the non-pecuniary damage flowing from the breach should in principle be part
of the range of available
remedies (see Z and Others v.
the
United
Kingdom
[GC], no. 29392/95, § 109, ECHR 2001-
V).
64. On the basis of the evidence adduced in the present case, the
Court has found that the respondent State is responsible
under Article 3 of the
Convention for inhuman and degrading treatment suffered by Judith McGlinchey
prior to her collapse in custody.
The applicants’ complaints in this
regard are therefore “arguable” for the purposes of Article 13 in
connection
with Article 3 of the Convention (see Boyle and Rice
v.
the
United
Kingdom,
judgment of 27 April 1988, Series A no. 131, p. 23, § 52;
Kaya, cited above, pp. 330-31, § 107; and Yaşa
v.
Turkey, judgment of 2 September 1998, Reports 1998-
VI,
p. 2442,
§ 113).
65. While the Government referred to internal prison remedies as
being available to Judith McGlinchey
to complain about
any ill-treatment prior
to her death, the Court observes that they would not provide any right to
compensation for any suffering
already experienced. The Court has already found,
in its decision on admissibility, that no action in negligence could be pursued
in the civil courts where the impugned conduct fell short of causing physical or
psychological injury. It is not apparent that,
in an action for judicial review,
which Judith
McGlinchey
could have brought alleging that the prison had failed
in its duty to
take reasonable care of her in custody and which could have
provided a means of examining the way in which the prison authorities
carried
out their responsibilities, damages could have been awarded on a different
basis. Although the Government argued that this
inability to pursue a claim for
damages flowed from the facts of the situation and not from any omission in the
law, it remains
the case that no compensation is available under English law for
the suffering and distress which has been found above to disclose
a breach of
Article 3 of the Convention.
66. The question arises whether Article 13 in this context requires that compensation be made available. The Court itself will often award just satisfaction, recognising pain, stress, anxiety and frustration as rendering appropriate compensation for non-pecuniary damage. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies.
67. In this case therefore, the Court concludes that Judith
McGlinchey,
or the applicants acting on her behalf after her
death, should have
been able to apply for compensation for the non-pecuniary damage suffered by
her. As there was no remedy which
provided a mechanism to examine the standard
of care given to Judith
McGlinchey
in prison and the possibility of obtaining
damages,
there has, accordingly, been a breach of Article 13 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention
or the Protocols thereto, and if the internal law of
the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction
to the injured party.”
A. Damage
69. The applicants claimed damages for the treatment of Judith
McGlinchey
for her estate and in respect of their own shock
and distress at the
suffering experienced by Judith
McGlinchey.
They submitted that she had been
given insufficient and inadequate
medical care and was thereby put through
unnecessary suffering, including seven days of continued
vomiting,
an inability
to eat
or drink and acute fear and mental distress, including the belief that
she was going to die. They also referred to their belief
that she had been
forced to clean up her own
vomit
and punished by the withdrawal of medication.
They also referred to the distress
and anguish which they suffered by the
realisation of the conditions in which their daughter/mother spent her last
conscious days
and hours. They claimed a sum of 20,000 pounds sterling
(GBP).
70. The Government made no comment on these claims.
71. The Court notes that it has made a finding of a violation
of
Article 3 in respect of shortcomings in the treatment
which Judith
McGlinchey
received while in prison. It did not find it established however that Judith
McGlinchey
had been forced
to clean up her
vomit
or that medication had been
withheld by way of punishment. Noting that much of Judith
McGlinchey’s
suffering derived from the heroin withdrawal itself, but that the failure of the
prison authorities to take more effective steps
to combat her withdrawal
symptoms and deteriorating condition must have contributed to her pain and
distress, the Court decides,
making an assessment on an equitable basis, to
award a sum of 11,500 euros (EUR) in respect of Judith
McGlinchey’s
estate
and EUR 3,800 each to the applicants, making a total of EUR 22,900.
B. Costs and expenses
72. The applicants claimed GBP 5,480.54 in respect of legal costs
incurred in domestic procedures. This included the costs
of being represented at
the inquest and seeking advice about the cause of Judith McGlinchey’s
death and the existence of
any domestic remedies. They claimed GBP 844.43,
inclusive of
value-added
tax, in respect of costs and expenses in bringing the
case to the Court in Strasbourg. This made a total claim of GBP 6,324.97
73. The Government made no comment on these claims.
74. The Court observes that the costs incurred in obtaining legal
advice and attending the inquest were connected at least
in part in regard to
issues as to the cause of Judith McGlinchey’s
death and any possible
responsibility of the authorities.
The complaint under Article 2 of the
Convention however was not pursued before the Court. Making an assessment on an
equitable
basis, the Court awards EUR 7,500 under this head.
C. Default interest
75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by six votes
to one that there has been a
violation
of Article 3 of the Convention;
2. Holds unanimously that there has been a violation
of
Article 13 of the Convention;
3. Holds unanimously
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, plus any tax that may be chargeable, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement:
(i) EUR 22,900 (twenty-two thousand nine hundred euros) in respect of non-pecuniary damage;
(ii) EUR 7,500 (seven thousand five hundred euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 29 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EARLY Jean-Paul COSTA
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Costa;
(b) partly dissenting opinion of Sir Nicolas Bratza.
J.-P.C.
T.L.E.
CONCURRING OPINION OF JUDGE COSTA
(Translation)
In the end, having weighed up the pros and cons in this difficult case, I
found a violation
of Article 3 of the Convention. However,
I would like to
explain my
views,
as the judgment, with which I concur for the most part, does
not fully represent them.
1. I would observe in the first place, because I feel it is right
to do so, that I did not discern in this case any intention
on the part of the
British judicial, prison or medical authorities to humiliate or maltreat Judith
McGlinchey,
who was sentenced
to four months’ imprisonment and accordingly
incarcerated in New Hall Prison, Wakefield, on 7 December 1998. But I would add
immediately that in the Court’s
view
“the absence of any such
purpose cannot conclusively rule out a finding of a
violation
of Article
3” (see
V.
v.
the
United
Kingdom,
no. 24888/94, § 71, ECHR
1999-IX, and Peers
v.
Greece, no. 28524/95, § 74, ECHR 2001-III).
That case-law has to be taken into account.
2. Nor do I think that it is desirable to lower the threshold of
severity below which the Court will not hold that treatment
is inhuman or
degrading. Article 3 should not be cheapened or trivialised through overuse.
However, I think that the present judgment
does not lower that threshold.
Moreover, I firmly believe that the facts of the case should not be assessed
with “the wisdom
of hindsight”, nor should one be influenced by the
fact that Judith McGlinchey
unfortunately died, on 3 January 1999, as a
result
of the cardiac arrest she suffered on 14 December 1998 and its after-effects.
But, for the reasons I shall give, even if
I confine my attention to the
position at the time of her incarceration, disregarding its tragic outcome, I
can reach the conclusion
that the treatment suffered by Judith
McGlinchey
was
objectively inhuman and/or degrading.
3. What counts in my opinion is a nexus of facts. The victim
was a
heroin addict and suffered from asthma – she
had been taken into hospital
six times in the previous year on that account. In spite of her run-down state
of health she was sentenced
to prison, although there had been an alternative
proposal for a probation order. As soon as she entered New Hall Prison she began
to suffer frequent attacks of
vomiting.
Although she had stated that she wished
to come off heroin and the prison doctor had immediately
prescribed her medicine
to ease the withdrawal symptoms, this drug was not given to her on her second
day in prison (perhaps for
good reasons, but the fact remains). She was also
twice locked in her cell as a punishment for bad conduct. But above all, the
vomiting
did not cease, day or night, and it was accompanied by a steep and
heavy loss of weight – 7 kg in forty-eight hours
and 10 kg between the
Monday of her arrival and the following Saturday. I can accept that the prison
doctor’s absence during
the weekend was not decisive, as there was a locum
doctor in attendance, and she could have asked to see him. But I cannot
understand
why the prisoner was not taken into hospital during the first few
days of her sentence, when she was
vomiting
continually, had lost
20% of her
body weight in five days and was known to be simultaneously trying to come off
drugs. It was only on Monday morning,
that is one week after she began her
sentence, that she was taken to hospital by ambulance, because she had collapsed
and the appearance
of her
vomit
revealed the presence of blood in her stomach.
That factual nexus is the reason why I and the majority of my colleagues
reached
the finding of a
violation.
4. Moreover, that finding must be placed in a wider context, that
of the special treatment to be given to prisoners whose
state of health gives
cause for concern. In cases like that of the victim,
such concern might even
entail a decision that their
state of health is incompatible with committal to
prison, or in any case with continued detention.
5. The growing awareness of such a necessity, which in itself is a separate matter from the issue I mentioned above of the threshold of suffering to be taken into account, is reflected in numerous Council of Europe instruments. I could cite three recommendations of the Committee of Ministers to member States: the Recommendation of 12 February 1987 on the European Prison Rules (No. R (87) 3), the Recommendation of 8 April 1998 concerning the ethical and organisational aspects of health care in prison (No. R (98) 7) and the Recommendation of 29 September 2000 on improving the implementation of the European rules on community sanctions and measures (Rec(2000)22). I could also cite the third general activity report of the European Committee for the Prevention of Torture, covering the period from 1 January to 31 December 1992, which includes a chapter (no. 3) on health services in prisons.
6. Our Court itself is becoming more and more sensitive to this
concern. It has frequently stated in its judgments that
assessment of the
question whether treatment reaches the minimum level of severity for the
purposes of applying Article 3 may depend
on the sex, age and state of
health of the victim
(see, for example, Raninen
v.
Finland, judgment
of 16 December 1997, Reports of Judgments and Decisions 1997-
VIII,
pp.
2821-22, § 55). I might also mention, although the facts were different
(the prisoner being seriously disabled),
Price
v.
the
United
Kingdom
(no.
33394/96, ECHR 2001-
VII),
with the separate opinion of Sir Nicolas Bratza, whom
I joined, and the separate opinion of Judge
Greve; the authors of those opinions
considered that the
very
principle of committing the applicant to prison was
incompatible
with Article 3 on account of her condition. See also the recent
Mouisel
v.
France (no. 67263/01, ECHR 2002-IX) in which the Court
unanimously held that there had been a
violation
of Article 3 on account of the
conditions of treatment and continued detention of a person suffering from an
incurable illness.
7. I naturally do not underestimate the difficulties the judicial
authorities have to face when they are required to determine
what kind of
sentence to impose on an offender in bad health or those of the prison
authorities and health services when they have
to choose between treatment on
the spot and admission to a hospital outside prison, especially as ill health
among prisoners is
unfortunately not an exceptional circumstance, particularly
on account of the ravages of drugs among offenders. But if I return
to the
instant case, I think that all those authorities, for their part, underestimated
the seriousness of Judith McGlinchey’s
personal condition. The
accumulation of errors was such, in my opinion, as to constitute in the final
analysis a
violation
of Article
3 of the Convention. And I would have reached
the same conclusion if the
victim
had in the end survived; the emotion aroused
by
her death must not be allowed to distort the assessment of her detention and
conditions of treatment as such.
PARTLY DISSENTING OPINION OF JUDGE Sir Nicolas BRATZA
To my regret, I am unable to agree with the majority of the Chamber that
there has been a violation
of Article 3 of the Convention
in the present
case.
The general principles governing the application of Article 3 are well
summarised in the judgment of the Chamber. The case-law of
the Court sets a high
threshold, requiring that ill-treatment must attain a minimum level of severity
if it is to fall within the
scope of the Article. In the specific context of
conditions of detention, the Court has held, inter alia, that while
Article 3 cannot be interpreted as laying down a general obligation to release a
detainee on health grounds, the Article
obliges States to ensure that a person
is detained in conditions which are compatible with respect for human dignity
and that,
given the practical demands of imprisonment, the health and well-being
of a prisoner are adequately secured by, among other things,
providing him or
her with the requisite medical assistance (see, for example, Kudła v.
Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000-XI).
The central question raised in the present case is whether the material
before the Court establishes to the required standard of
proof that the
treatment, including the medical treatment, of Judith McGlinchey
by the prison
authorities was in all the circumstances
so deficient as to give rise to a
breach of Article 3.
In deciding this question, I note at the outset two points which appear to me to be of some importance.
In the first place, it is not alleged, and it has not been found by the
majority of the Chamber, that Judith McGlinchey’s
state
of health at the
time of her conviction was such that she should never have been committed to, or
detained, in prison. In this
regard, the situation is materially different from
that examined by the Court in its judgment in Price
v.
the
United
Kingdom
(no. 33394/96, ECHR 2001-
VII)
in which a
violation
of Article 3 was found in a
case involving an applicant who was a four-limb
deficient thalidomide
victim
with numerous health problems and who was committed to prison without any steps
being taken to ascertain
whether there existed facilities adequate to cope with
her severe level of disability. In the present case, by contrast, it has
not
been argued or found that the facilities in prison were not capable of treating
a prisoner who was withdrawing from heroin
addiction, with the additional
complication of being an asthma sufferer.
Secondly, I note that several of the specific complaints of inhuman and
degrading treatment made by the applicants have been rejected
by the Chamber or
found not to have been established. In particular, the Chamber has found
unsubstantiated the complaint that relief
for Judith McGlinchey’s
heroin
withdrawal was denied by the prison authorities as a punishment, the medical
notes confirming
that the prescribed drug was not administered on only one
occasion on 8 December 1998, and this on the instructions of the doctor
due to a
drop in her blood pressure. The Chamber has similarly found unsubstantiated the
allegation that asthma medicine was not
administered, the nursing notes
indicating that inhalers were provided when Judith
McGlinchey
was seen to be
wheezing. As to the
fact that, out of a total of twenty doses of antibiotic
medicine for Judith
McGlinchey’s
arm over a five-day period, four
were
either not administered or not entered in the drugs record, the Chamber, while
observing that in either event a regrettable
lack of procedure was indicated,
has found that there is nothing to show that this failure had any adverse effect
on Judith
McGlinchey’s
condition or caused her any discomfort.
It is the complaint that not enough was done, or done quickly enough, to
treat Judith McGlinchey
for her heroin withdrawal symptoms,
or to react to the
serious deterioration in her general condition during her period of detention in
the prison, that has been found
by the majority to give rise to a breach of
Article 3 of the Convention.
It is common ground that Judith McGlinchey
was screened by a nurse on entry
to the prison on 7 December 1998 and that, on the following
day, she was seen by
the prison doctor, Dr K., who set up a course of treatment for her
various
health problems. As appears from
paragraphs 53 and 54 of the judgment, Judith
McGlinchey’s
condition from 7 to 12 December was subject to regular
monitoring
by the medical and nursing staff of the prison, who took steps to
respond to her withdrawal symptoms. There is, in my
view,
no indication
in the
material before the Court that she was neglected or abandoned to cope without
assistance.
While it is true, as emphasised by the majority of the Chamber, that during
that period Judith McGlinchey
continued to
vomit,
took
little food and had lost
weight, the evidence of the medical and nursing staff at the inquest was that
her condition remained stable
and that, although she
vomited
again in the
evening of 11 December, there were signs of improvement in her condition. Both
Sister
N. and Dr K. gave evidence that Judith
McGlinchey
did not give a clinical
impression of being
very
ill during this period and both
noted that she was
active and associating with others. Dr K., in particular, stated in evidence
that, given her blood pressure,
temperature and pulse and her general
presentation, he did not consider that there was any need to admit her to an
outside hospital.
Of greater concern is the fact that in the two following days – the
weekend of 12 and 13 December – Dr K. was not present
in the prison and
Judith McGlinchey
was not apparently seen by any doctor, even though a locum
doctor came to the prison on the
Saturday morning. While, according to the
evidence at the inquest, Judith
McGlinchey’s
temperature, blood pressure
and pulse
were observed by the prison medical staff to be normal on 12 December,
it was also recorded that she was continuing to
vomit
and
that there had been a
sharp drop in her weight to 40 kg – representing a 3 kg decrease since 9
December and, in all probability,
a still more substantial
weight loss since her admission to prison.
However, I note that, despite the weight loss, the nursing staff found no
cause for alarm and nothing which apparently required them
to call out a doctor
or arrange for her transfer to hospital in accordance with the practice
established in the prison. It is recorded
that, on 12 December, Judith
McGlinchey
had spent a better night. During 13 December, when she took a small
dinner and did not
vomit
during the day, she was regarded by the nursing staff
as improving, to the extent that it appears that it was not considered
necessary
to give her the prescribed anti-emetic medicine. Although she did
vomit
again
twice that evening, no problems were observed
during the night. Further, while
the lack of any examination of Judith
McGlinchey
by a doctor, qualified, for
example, to discern
any problems of dehydration during a two-day period causes
me some concern, I note that it was not established by the evidence at
the
inquest that Judith
McGlinchey
was in fact dehydrated when she arrived at
hospital after her collapse on the morning of 14
December. Dr Tobin was unable
to inject a central line due to her condition and, though there were in his
view
signs consistent
with dehydration, he did not exclude that these could also have
been the result of significant blood loss. More important still,
to my mind, is
the fact that none of the doctors who gave evidence at the inquest criticised Dr
K. for failing to have Judith
McGlinchey
admitted earlier to hospital.
In these circumstances, I cannot find it established on the evidence before
the Court that the medical treatment of Judith McGlinchey
by the prison
authorities was so deficient as to cause her distress or hardship or to amount
to a
violation
of her rights under
Article 3.
There were, as noted in the judgment, aspects of the arrangements in the
prison or of the care given which could be criticised, as
for example, the
inaccuracy of the scales, the failure to provide or to record all the medication
prescribed, and the lack of a
doctor’s presence in the prison over most of
the weekend. Moreover, had Judith McGlinchey
been transferred to a hospital
earlier, more expert care, and perhaps more palliative nursing, could have been
made available. However, even judged with the wisdom
of hindsight, I am unable
to conclude that it has been shown that the prison authorities subjected Judith
McGlinchey
to inhuman
or degrading treatment.
Accordingly, and not without some hesitation, I have voted
against the
finding of a
violation
of Article 3 of the Convention in the
present case.
This conclusion does not however, mean that the applicants’ complaints
fall outside the scope of protection of Article 13.
The complaints were not
declared inadmissible as manifestly ill-founded and necessitated an examination
on the merits. I am satisfied
that the various
complaints of the applicants
raised an arguable claim of a
violation
of the Convention for purposes of
Article
13 and, for the reasons given in paragraphs 71 to 74 of the
Chamber’s judgment, I consider that the applicants’ rights
under
that Article were
violated.
Out of deference for the view
of the majority of the Chamber that Judith
McGlinchey’s
rights under Article 3 were also
violated,
I have
voted in
favour of the full sums of compensation for non-pecuniary damage and of costs
and expenses awarded in the judgment.